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[2019] ZAFSHC 78
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Binyane v S (A281/2018) [2019] ZAFSHC 78 (20 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No. : A281/2018
In
the matter between:-
THABO
BINYANE
Appellant
and
THE
STATE
Respondent
CORAM
:
MATHEBULA, J
et
MOLITSOANE, J
HEARD
ON
:
25 MARCH 2019
JUDGMENT
BY
:
MOLITSOANE,
J
DELIVERED
ON
:
20 JUNE
2019
[1]
The Appellant was arraigned in the Regional Court: Botshabelo on a
charge of rape read with the
provisions of
s51
(1) of the
Criminal
Law Amendment Act 105 of 1997
. He was convicted as charged and
sentenced to life imprisonment. He has an automatic right of appeal
and this appeal is against
both his conviction and sentence.
[2]
The evidence of the state is briefly as follows: On the 21
st
May 2015 the complainant, then eight years of age was playing outside
in her parental yard together with her other friends. The
appellant
then called her and sent her to his home to look for a wallet. When
she got in his shack, which was demarcated with a
curtain he told her
to undress her pants and underwear. He put her on the bed and
inserted his penis into her vagina and thus raped
her. The children
who were playing outside noticing that the complainant was taking
long alerted her aunt one M[….] Y[….].
The latter went
to the house of the appellant and called both the appellant and the
complainant. The appellant came from behind
a curtain in his house
busy pulling the zip of his fly. He was followed by the complainant
who was crying. M[….] left with
the complainant and alerted
the neighbours about what she had just witnessed. The police were
summoned and the appellant was subsequently
arrested.
[3]
The appellant deny the allegations against him and asserts that he is
being falsely implicated
by M[….]. He further alleges that he
was in a love relationship with M[….] and according to him
M[….] cheated
him with a taxi driver. According to him on the
day of this incident he was drunk. He arrived at his home and found
K[….]and
T[….] playing in his yard. He switched his TV
on so as to enable the said children to watch it while he went to
sleep. He
was awoken from his sleep by M[….] who accused him
of raping the complainant. As indicated he denied any wrongdoing.
[4]
The following are the grounds of appeal on the conviction:
1.
The
court a quo erred in finding that the complainant was a credible
witness;
2.
The
Court erred in drawing a negative inference of the appellant’s
version and not making a credibility finding in favour
of his
testimony;
3.
The
Court erred in finding that the State had proved its case beyond a
reasonable doubt;
[5]
The evidence of the state is based on the evidence of a single
witness. Apart from being a single
witness to the act of rape the
complainant was a child aged eight years at the time. This means that
the court had to be more cautious
in approaching her evidence.
[6]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that a
conviction may follow on the evidence of a single competent witness.
It is settled that the evidence of a single
witness must be
approached with caution. In
S
v Stevens
[1]
the court said:
“
In
terms of
s208
of the
Criminal Procedure Act, an
accused can be
convicted of any offence on the single evidence of a competent
witness
.
It is, however, a well-established
judicial practice that the evidence of a single witness should be
approached with caution, his
or her merits as a witness being weighed
against factors which militate against his or her credibility.”
[7]
Apart from the complainant being a single witness, she is also a
child. State also led the evidence
of another child O[….] who
was nine years of age at the material time. The court should thus
approach the evidence of both
children with the necessary caution. In
Woji v
Santam Insurance Co Ltd
[2]
the court said the following with regard to the evidence of children:
“
Trustworthiness….depends
on factors such as the child’s power of observation, his power
of recollection and his power
of narration on the specific matter to
be testified….His capacity of observation will depend on
whether he appears ‘intelligent
enough to observe’.
Whether he had the capacity of recollection will depend again on
whether he has sufficient years of discretion
‘to remember what
occurs’ while the capacity of narration or communication raises
the question whether the child has
capacity to understand the
questions put, and to frame and express intelligent answers.
”
[8]
The complainant testified in a nutshell that she was playing outside
in her parental yard when
the appellant, who is their neighbour
called her and asked her to go and fetch his wallet at his home. This
evidence is corroborated
by O[….] who testified that prior to
the complainant being sent to fetch the wallet the appellant sent her
to go and buy
a box of matches and home-made beer for him. O[….]
further testified that the appellant also told her to take the things
he sent her to buy to his home. Upon arrival the appellant gave her
money. It is her testimony that thereafter he asked her to
undress
but she refused and ran away. Of crucial importance she testified
that the appellant thereafter called the complainant
to his house.
From her testimony it is clear that the complainant went to the
appellant’s house. She (O[….]) and M[….]
then
went to inform the complainant’s aunt(M[….]) that the
complainant went to the appellant’s house.
[9]
It is understandable why O[….] went to
inform the aunt of the complainant that the complainant
went to the
appellant’s house. At that stage the appellant had already
offered her money and asked her to undress. Young
as she was she
testified that she was scared that the accused was going to do what
the witness said were ‘nasty things’
to her. For this
reason she must have feared that the appellant would in all
likelihood do ‘nasty things’ to the complainant
or ask
her to undress hence she went to call her aunt.
[10]
The evidence of the complainant is further corroborated
by the testimony of her aunt who testified that
after she was alerted
to the whereabouts of the complainant she went to the house of the
accused. She called both the accused and
the complainant. The accused
came out of the bedroom pulling the zip of the fly of his trousers.
This also corroborates the testimony
of the complainant that when the
appellant left the bedroom he was pulling his zip. He was followed by
the complainant. The complainant
was crying. The aunt then called the
neighbours who together with the said aunt confronted the accused
about the alleged rape of
the child. Both the aunt and Ms N[….],
the neighbour, corroborate each other in material respect that the
appellant was
armed with a weapon although the aunt said that
appellant had a knife while Ms N[….] said he had what she
described as a
sable. All the four state witnesses called by the
state place the appellant at the scene of this incident, namely, his
house.
[11]
Further corroboration in the version of the
complainant comes by way of medical evidence handed in by consent
in
the form of the so-called J88. The doctor who examined the
complainant observed injuries to the private parts of the
complainant.
He observed abrasions and redness on the labia minora,
paraurethral folds and fossa navicularis. The hymen of the
complainant had
fresh tears at five and seven o’clock
positions. The doctor concluded that there were signs of forceful
intercourse.
That
the complainant was raped cannot be disputed.
[12]
In
S
v Gentle
[3]
the court said the following about corroboration:
“
It
must be emphasised immediately that by corroboration is meant other
evidence which supports the evidence of the complainant and
which
renders the evidence of the accused less probable, on the issue in
dispute. If the evidence of the complainant differs in
significant
detail from the evidence of other State witnesses, the Court must
critically examine the differences with a view to
establishing
whether the Court must critically examine the differences with a view
to establishing whether the complainant’s
evidence is
reliable.
”
[13]
The
overall testimony of the complainant was consistent and in my view
credible and reliable. She did not contradict herself in
anyway. It
is so that some criticism cam be levelled against her testimony when
same is mirrored against the testimony of O[….].
O[….]
testified that K[….] and T[….] were present and playing
under the tree when the appellant called the
complainant. The
complainant denied their presence and further denied knowing them. In
my view the contradictions in this case
are not material.
[14]
When an appeal is centred on the issue of corroboration, the
appeal court would not lightly interfere
with the factual findings of
the trial court unless they are manifestly wrong or are based on the
wrong premise. It has to be borne
in mind that it is the trial court
which was steeped in the atmosphere of a trial. The trial court saw
the witnesses and observed
their demeanour. The trial court was in
the vantage position to believe or disbelieve the witnesses. The
court in
S
v Francis
[4]
said:
“
Bearing
in mind the advantage which a trial court has of seeing, hearing and
appraising witnesses, it is only in exceptional cases
that this court
will be entitled to interfere with a trial court’s evaluation
of oral testimony.”
In
my view the trial court cannot be faulted in the evaluation of the
oral testimony in this case. Save to make a general statement
that
the trial court erred in finding that the evidence of the complainant
was not credible, no particular parts of the evidence
could be
highlighted to make the said assertions.
[15]
On the other hand I am in agreement with the learned Regional
Magistrate that the version of the appellant
was false and stood to
be rejected. In essence his defence boiled down to a bare denial. It
is clear to me that the identity of
the appellant was not in dispute.
He is well known to all the witnesses in this case. He is of the view
that these charges are
of the making by M[….] who he alleges
was her girlfriend. I am unable to comprehend why M[….] would
involve an eight
year as well as a nine year old children in her
elaborate ‘scheme’ of fabrication. What is further
puzzling is the
fact that the neighbours also went to confront the
appellant immediately after this incident. For M[….] to have
succeeded
in the alleged fabrication she would have needed not only
the complainant but also O[….], Ms N[….], her live
in lover and the doctor to have been complicit in the scheme. The
doctor found evidence of genital injuries and forceful
intercourse.
This rules out any notion of fabrication. I find that this
fabrication story is a lie. The appellant’s version
is in my
view not reasonably possibly true and was correctly rejected by the
trial court.
[16]
It is an established principle of our law that the sentencing
discretion lies pre-eminently
with the sentencing court. A court
exercising appellate jurisdiction will only interfere with the
sentencing discretion of the
trial court if it is tainted by a
material misdirection or the sentence imposed is so disproportionate
to the crime, the personal
circumstances of the accused and the
interest of society. Where a sentence does not seem to be shockingly
inappropriate, a court
of appeal is also entitled to interfere and to
consider the sentence afresh if there has been a material
misdirection in the exercise
of the discretion. See
S
v Jiminez
[5]
.
[17]
The grounds on which it is contended that the sentence is
inappropriate are briefly as follows:
1.
That
the sentence is shockingly inappropriate and induces a sense of
shock;
2.
The
severity of the offence was over emphasised at the cost of the
personal circumstances of the appellant;
3.
The
court erred in finding that there was no compelling and substantial
circumstances present to deviate from minimum sentence.
[18] It
was submitted on behalf of the Appellant that the Court
a quo
erred in finding that no substantial and compelling circumstances
existed warranting the Court to deviate from imposing the prescribed
sentence. This court is obliged to deviate from imposing a
minimum sentence of life imprisonment if it is satisfied that
substantial and compelling circumstances exist which justifies the
imposition of a lesser sentence.
[19]
In assessing whether there are compelling and substantial
circumstances justifying the imposition of a lesser
sentence the
court is guided by the approach as laid down in
S
v Malgas
[6]
that
, “if the
sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the
prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal and needs of society, so that an injustice
would be done by
imposing that sentence, it is entitled to impose a lesser sentence.”
[20] With
regard to the personal circumstances of the appellant the following
come to the fore in mitigation of sentence.
The appellant is an
unmarried man of 27 years of age. He has no children. He was not
formally employed at the time of this incident
and he did odd jobs.
He is a first offender and he spent a year and three months awaiting
trial. It is further contended in the
heads of argument that the
complainant did not sustain any serious injuries and there no
evidence of lasting emotional trauma suffered.
In his address in the
court
a
quo
,
Counsel for the appellant conceded that there were no substantial and
compelling circumstances that existed in this case in favour
of the
appellant.
[21]
The appellant is a first offender. I hasten to add that this fact
alone cannot constitute
a compelling and
substantial circumstance. The court in
Shubane
v The State
[7]
said the following with regard to first offenders:
“
[10] A first
offender is therefore already given the benefit of a lesser sentence
by the Act itself. The fact that the appellants
have no previous
convictions is most certainly a positive mitigating factor in their
favour, but it can hardly be a compelling
or substantial circumstance
on its own.”
[22]
Prior to his sentencing the accused had spent a year and three months
in custody awaiting trial. The period in
detention prior to
sentencing is but one of the factors that should be taken into
account in determining whether the effective
period of imprisonment
to be imposed is justified and whether it is proportionate to the
crimes committed. See
DPP
v Gcwala
.
[8]
[23]
In
S v
Chapman
[9]
the court said that rape is ‘a humiliating degrading and brutal
invasion of the privacy, the dignity and the person of the
victim’.
[24]
A victim impact report was not submitted during the trial. It can,
however, not be argued otherwise
that cases of child rape have taken
unprecedented proportions. The victim in this case was a mere eight
year old. The appellant
was a neighbour of the complainant. To say
that this rape was not one of the worst kind ignores the
psychological impact this ordeal
may have on the child.
Section
51(3)(a)(aA)
of Act 105 of 1997 specifically precludes the court from
taing into account the apparent lack of physical injuries as
substantial
and compelling. Taking into account the aggravating
circumstances and weighing same against the mitigating circumstances
I am of the view that there are no substantial circumstances
warranting this court from deviating from the prescribed sentence.
I
accordingly make the following order:
[25]
ORDER
:
1.
The appeal
against the conviction and sentence is dismissed.
P.E.
MOLITSOANE, J
I
agree.
M.A. MATHEBULA, J
On behalf of the
Appellant: Mr
ML Tshabalala
Instructed
by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the
Respondent: Adv. R Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
2005(1) All SA 1 (SCA) at par [15].
[2]
1981(1) SA 1021(A) 1028B-D.
[3]
2005(1) SACR
42(SCA) @ 430j-430c.
[4]
1991(SACR 198(A) at 2014D.
[5]
2003(1) SACR 507(SCA) at 512 par [7].
[6]
2001(1) SACR 469 SCA at 482e.
[7]
(073/14)[2014] ZASCA 148
(delivered on 28 September 2014).
[8]
(295/13) [2014]ZASCA 44
(delivered on 31 March 2014).
[9]
1997(2) SACR 3 (SCA).