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[2019] ZAFSHC 69
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Masanabo v S (A180/2016) [2019] ZAFSHC 69 (21 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case
No: A180/2016
In
the matter between:
MOSES
SIMON MASANABO
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO,
J
et
MOLITSOANE
J
JUDGMENT BY:
NAIDOO
J
HEARD ON:
11 MARCH 2019
DELIVERED ON:
21 MAY 2019
INTRODUCTION
[1] The appellant was convicted
of contravening section 3, read with other relevant provisions of Act
32
of 2007 (the Sexual Offences Act) as well as the relevant
provisions of the Criminal Procedure Act 51 of 1977 (the CPA) on one
count of Rape (count 1) and one count of Sexual Assault (count 2) in
the Regional Court, Heilbron. He pleaded not guilty to the
charges,
but on 16 January 2013, was convicted thereon and sentenced on 25
June 2013 to life imprisonment on count 1 and two years’
imprisonment in respect of count 2. The appellant has an automatic
right of appeal in respect of the sentence of life imprisonment
and
the court a quo granted leave to appeal in respect of count 2. Mr D
Reyneke represented the appellant in this court and Mr
Harrington
represented the respondent, being the state.
BACKGROUND
[2] On 14 Augusut 2010, ten year
old R[….] G[….] M[….] (R[….]) and his 5
year
old sister were asleep in their room in their home. Their
mother, D[….] R[….] M[….] was away from the
house,
attending a funeral. Their mother’s partner, or their
stepfather as he has been referred to, was (ostensibly) asleep in the
next room which he shared with their mother. The stepfather, Moses
Simon Masanabo, is the appellant in this matter. In the early
hours
of 15 August 2010, the appellant allegedly went into the children’s
bedroom, and climbed into the bed with the children.
He was naked. He
began fondling the complainant’s penis and forced the
complainant to stroke his (the appellant’s)
penis.
Thereafter he turned the complainant over and penetrated
him anally with his penis. The complainant thereafter went to the
bathroom
and the appellant left the room.
[3] The next morning, or later
that morning, the appellant gave the children some money and they
went to
their grandmother’s house, where the complainant, who
was crying, reported to her what had happened the night before and
told her what the appellant had done. The children played at the
grandmother’s house and returned to their home in the
afternoon.
Later as the complainant was washing himself, his mother
came into the room and noticed that he was hurt and asked him how he
sustained
those injuries. He then repeated to her what he had told
his grandmother. Thereafter, they went to the police station, where a
case was opened, and he was taken to the hospital to be medically
examined.
[4] The complainant’s
mother and grandmother also testified and confirmed that he told them
what the
appellant had done, namely that he had fondled the
complainant’s penis and pushed his penis into the anus of the
complainant.
The doctor who examined the complainant in the late
evening of 15 August 2010 testified that the complainant was in a
poor state
of bodily hygiene, and it appeared that he did not clean
himself properly. He also indicated that he found sores at the base
of
the complainant’s penis and cracks around his anus. The
doctor indicated that these could be due either to poor hygiene or
to
penetration, and he was unable to come to a conclusion. . The state
then closed its case.
[5] The appellant confirmed that
the mother of the two minor children was not at home and was
attending
what appeared to be a night vigil and he was alone with the
complainant and his sister that evening. He was aware that she would
not be at home that evening as she had earlier in the day informed
him so. He fell asleep around 19h00 and did not see the complainant’s
mother leave. He woke up at approximately 1h00 on 15 August 2010, and
when he did not see his wife, he went to the children’s
room
and shook the complainant awake to ask if he knew where his mother
was. The complainant sleepily said no, so the appellant
went to
either the lounge or diningroom and watched television until 2h00. He
thereafter went back to sleep and awakened about
7h00 that morning.
His wife was still not back, so he gave the two children money to buy
bread. They left the house but did not
buy the bread. They went to
the grandmother’s house. He denied raping or sexually
assaulting the complainant and also denied
that he was naked. He was
arrested later that day.
[6]
As
correctly pointed out by the court
a
quo
, the state
bears the onus to prove the guilt of an accused beyond reasonable
doubt and that the accused person bears no onus to
prove his
innocence. In this matter the appellant assails the judgment of the
trial court on a number of grounds the most important
of these being
that the court failed to undertake a proper analysis and evaluation
of the evidence. The appellant also alleges
that the court erred in
finding that the state proved its case beyond reasonable doubt,
especially as the complainant was a single
witness, and as such, the
court failed to apply the cautionary rule. The court also erred in
failing to consider the improbabilities
in the state’s case.
In this respect the appellant relied on the fact that it
was only towards the end of his evidence that the complainant
indicated
that the appellant had penetrated him anally. Similarly the
complainant’s mother indicated only under cross-examination
that
the complainant had reported to her that he had been penetrated
anally.
[7] It is trite that a
n
appeal court will not lightly interfere with the findings of the
trial court especially as the latter was steeped in the atmosphere
of
the trial and had the benefit of observing witnesses. The trial court
is in the best position to make findings as to such matters
as
credibility, demeanour and reliability. The court
a
quo
in this matter
specifically remarked that, in spite of his age, the complainant
testified in a clear and logical fashion, and made
a good impression
on the court. An appeal court will only interfere if there is a
misdirection on the part of the trial court in
the application of the
law or the facts. The trial court was very cogniscent of the doctor’s
testimony
that given the state of the
complainant’s personal hygiene, he opined that there was a 50%
possibility that the cracks observed
around the anus of the
complainant could have been caused by anal penetration.
[8] The court then proceeded to
examine the surrounding circumstances, much of which was common
cause. The
court concluded that it was very improbable that a ten
year old child who enjoyed a good relationship with his stepfather
who took
care of the complainant and his family, would simply declare
one morning that the stepfather had sexually abused him. He found
that on the probabilities the complainant’s version is the more
probable one, given that the complainant arrived at
his
grandmother’s house the following morning, crying, and narrated
to her what had happened. This is also corroborated by
the mother who
found injuries around the complainant’s anus, and that his
penis was painful. The complainant then repeated
to her what he had
told his grandmother. In my view, a ten year old has neither the
maturity, nor the level of life experience
and knowledge of sexual
matters to have made up his detailed version. Although the court
a
quo
did not specifically say so, it was apparent from the court’s
judgment that it rejected the appellant’s version as false.
[9]
The
case of
S v Singh
1975(1) SA 227 (N)
gives
guidance on how to approach the evidence where the state and defence
versions differ from each other where the court said:
“…
.
it
would perhaps be wise to repeat once again how a court ought to
approach a criminal case on fact where there is a conflict
of fact
between the evidence of the State witnesses and that of an accused.
It is quite impermissible to approach such a case thus:
because the
court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses,
including the
accused, must be rejected. The proper approach in a case such as this
is for the court to apply its mind not only
to the merits and the
demerits of the State and the defence witnesses but also to the
probabilities of the case. It is only after
so applying its mind that
a court would be justified in reaching a conclusion as to whether the
guilt of an accused has been established
beyond all reasonable doubt.
The best indication that a court has applied its mind in the proper
manner in the abovementioned example
is to be found in its reasons
for judgment including its reasons for the acceptance and the
rejection of the respective witnesses”.
[10] The court
a quo
dealt briefly
with the evidence of the appellant, without going into much detail,
but contrasted his version with that of the complainant
and declared
that the evidence of the complainant was more acceptable. In my view,
the lack of a detailed examination of the appellant’s
version
is not fatal, and does not amount to a misdirection on the part of
the court. As bare as it may be in respect of details,
it is apparent
that the court considered both versions and correctly rejected that
of the appellant. This is particularly so where
the court found that
the appellant was aware that his wife would be attending a funeral
and would be away the whole night.
The
court correctly rejected as false, his reason for waking the
complainant, namely to ask where his mother was. I can find
no
fault with the conclusions of the trial court in respect of the
conviction on count 1.
[11] With regard to count 2, I am of the
view that the actions of the appellant were part of one act leading
to the
rape of the complainant, and it amounts to a duplication of
charges to have charged him separately with sexual assault. The act
of causing the complainant to hold his penis was too close in time to
be regarded as a separate act. In this respect, I am of the
view that
the court
a
quo
misdirected itself in convicting the
accused in respect of count 2, warranting the interference of this
court
[12] With regard to sentence, it seems that
the record was reconstructed, as the portion of the record where the
magistrate
dealt with sentence was missing.
The
court properly examined the personal circumstances of the appellant
and weighed that against the seriousness of the offence
and the
interests of society. The court was unable to find any substantial
and compelling circumstances to deviate from the prescribed
minimum
sentence of life imprisonment in respect of count 1. The defence
initially conceded that there was nothing substantial
or compelling
in the circumstances of the appellant, save that he is HIV positive.
After the reconstruction of the record, the
defence asked that the
appellant’s HIV status be regarded as substantial and
compelling. In my view, this is an aggravating
factor, as he sexually
assaulted a child in the knowledge that he was HIV positive and was
uncaring that the child could have been
infected as a result of is
actions.
[13] In the circumstances, the following order is
made:
13.1
The
appeal against the conviction and sentence in respect of count
1
is dismissed.
13.2 The conviction and sentence in respect
of count 1 are
confirmed.
13.3 The appeal succeeds in respect of
count 2, and conviction and sentence in respect of count 2 are hereby
set aside
and replaced with the following finding:
“
In respect of count 2, the accused is found not
guilty”
S. NAIDOO,
J
I
agree
P MOLITSOANE J
On behalf
of Appellant:
Adv. D Reyneke
Instructed
by:
The Justice Centre
Bloemfontein
On
behalf of Respondent:
Adv. Harrington
Instructed
by:
The State