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[2019] ZAFSHC 139
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Meya v S (A240/2017) [2019] ZAFSHC 139 (29 August 2019)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: A240/2017
In
the matter between:
SETETELANE
CHRISTIAN
MEYA
Appellant
a
nd
THE
STATE
Respondent
Coram:
Opperman,
J
et
Moeng,
AJ
Heard:
29
July 2019
Delivered:
29
August
2019
Summary:
Appeal
– conviction and sentence – vagueness of grounds of
appeal - rape of minor – charges taken together for
purpose of
sentence
JUDGMENT
I
CONTEXT OF THE APPEAL
[1] The appellant was
convicted on 19 January 2017 of three counts of rape in terms of
section 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
.
The convictions were taken
together for purpose of sentence and he was sentenced to life
imprisonment in accordance with
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
. Two of the complainants were nine
years old and the other six years old at the time of the alleged
rapes. He appeals against the
convictions and sentence.
[2]
Scrutiny of the case in all its facets demands the following aspects
to be dealt with and adjudicated:
2.1 The delay in the
appeal;
2.2 the grounds for
appeal;
2.3 the dilemma in count
2;
2.4 the evaluation of the
evidence by the court
a quo;
2.5 the application of
section 280 of the
Criminal Procedure Act 51 of 1977
(CPA) as
opposed to the taking together of convictions for purpose of
sentence, and;
2.6 the sentence.
II
THE DELAY IN THE APPEAL
[3]
Appellant was represented by Legal Aid South Africa in the court
a
quo
and the appeal.
[4]
The Notice of Appeal was served on the Director of Public
Prosecutions: Free State and the Clerk of the Court: Bloemfontein
on
25 January 2017. The appeal was only submitted to the Registrar: Free
State High Court on the 17
th
of August 2017. The matter merely served before this court on 29 July
2019; two years and six months after the sentence. There
is no record
or explanation for the undesirable delay.
[5]
The delay is to such an extent that it cannot be other than offensive
towards the constitutional decree i
n
section 35(3)(o) of the Constitution, 1996 that the appellant
has a right to an appeal to, or review of, his conviction and
sentence by a higher court. The Supreme Court of Appeal stated that
delays of appeals negate that right either wholly or in part.
[1]
As I indicated in another case
[2]
that also served before us on the 29
th
of July 2019; the delay is water under the bridge. That said, it
remains an irregularity.
[6]
The effect of the irregularity must be measured to the outcome of the
case and might not be fatal, even so; it remains intolerable
and will
the judgement be forwarded to the Offices of the Director of Public
Prosecutions: Free State, Legal Aid SA, Bloemfontein
Justice Centre,
Bloemfontein, Regional Court President: Free State, Bloemfontein as
well as the Office Manager: Bloemfontein Magistrate’s
Court.
The issue will also be brought to the attention of the Registrar of
this court. Continued disregard of constitutional due
process in this
manner has the real potential to cause severe injustice and must be
prevented.
III
THE GROUNDS OF APPEAL
[7]
The convictions stem from the following charges:
1.
In
January 2011 the appellant allegedly raped “MM”, a
six-year-old girl by penetrating her genitally.
2.
In
March 2012 the appellant allegedly raped “MpM”, a
9-year-old girl “more than once” by penetrating her
genitally.
3.
In
March 2012 the appellant allegedly raped “LS”, a
9-year-old girl “more than once” by penetrating her
genitally.
[8]
The grounds of appeal are standard and vague in that the court
a
quo
did not properly analyse the evidence in the State’s case and
did not give due regard to the improbabilities inherent to
the
versions of the witnesses. Further; the court should not have
rejected the evidence of the appellant as not being reasonable
possibly true.
[9]
The slightly more specific grounds of appeal were that in convicting
the appellant the court erred in making the following findings:
1.
That
the State proved the guilt of the appellant on all three counts
beyond a reasonable doubt;
2.
that
there are no improbabilities in the State’s version;
3.
that
the state witnesses gave evidence in a satisfactory manner;
4.
that
the evidence of the state witnesses can be criticized on matters of
detail only whereas the evidence was contradictory in material
aspects;
5.
that
the testimony of all three complainants was clear and that they were
testifying from personal experience; and
6.
that
despite material contradictions between the second and third
complainants the court found that the truth has been told.
[10]
There is not much to be done with the above. Counsel should take care
to be more specific when drafting notices. More often
than not will
it happen during the appeal that the matter cannot be taken further
than where it stands by counsel for the appellant
or that new issues
come to light in the Heads of Argument.
[11]
In the Heads of Argument, appellant conceded that he cannot take the
arguments on counts 1 and 3 further than his instructions
from the
appellant. The position remained the same during the hearing of the
appeal.
“
3.8
It is writer’s hereof
instructions
that the Court erred in finding that the version of the Complainant
was credible, taking above into consideration writer
hereof also do
not have any further submissions to make in this regard.
3.9 It is however
submitted that penetration on Count 2 was not properly proven by the
State and that the conviction on this charge
must be reversed and
Appellant acquitted.
3.4 The Court found
however that penetration was proven by testimony of Complainants.
This aspect was raised by attorney for the
Appellant during address
to Court without much success. This matter was not properly discussed
in the court’s judgement on
merits, there is a question
surrounding penetration on Count 2 due to lack of injuries sustained
by the complainant. The case law
on this issue is clear, that the
State must proof penetration and the court cannot just accept that it
has taken place.
In
this matter 2
nd
complainant testified that Appellant inserted his thing into her.
This evidence is without any corroboration as there was no mention
of
injuries on the vagina of this Complainant. See P 231.”
IV
THE DILLEMMA IN COUNT 2
[12]
The dilemma that to a certain extent, slots in with the above and
that was not realised by either counsel for the State or
appellant,
is that the complainant’s evidence in count 2 was not
concluded. On page 66 of the record it shows that the complainant
became tired during cross-examination and the matter was postponed.
She was never called back. This is a fatal mistake and irregularity
that cannot be cured since the trial has taken its course. In result
the conviction must be set aside.
V
THE EVALUATION OF THE EVIDENCE
[13]
The principles according to which a court of appeal should consider
the case are set out in
R
v Dhlumayo
1948 (2) SA 677
(A). The court of appeal must bear in mind that
the trial court saw the witnesses in person and could assess their
demeanour.
That was stated seventy years ago and it is still true;
especially in cases where sexual offences are involved. If there was
no
misdirection of facts by the trial court, the point of departure
is that its conclusion was correct.
In
S
v Hadebe
1997
(2) SACR 641
(SCA) at 645 G – H it was held that the
credibility findings and findings of fact of the trial Court cannot
be disturbed
unless the recorded evidence shows them to be clearly
wrong.
[14]
The succinct factual finding of the trial court is that the appellant
lured the complainants to his room and there and then
raped them.
They were not raped more than once as alleged in the charge sheet.
[15]
In scrutinising the judgment of the magistrate and the conclusions
reached by him, we can find no reason to interfere; but
for the issue
in count 2, with the court
a
quo’s
factual and credibility findings. The court found that the State
witnesses were honest and reliable and they corroborated one another
on all material aspects. The magistrate was, in fact, impressed by
their evidence.
[16]
The trial court was also specifically careful in the evaluation of
the evidence. He stipulated the burden of proof that lies
on the
State and took the judgement from there. The complainants were, in
essence, single witnesses as to their experiences but
their evidence,
all in all, directs to the trustworthiness of the facts found proven.
[17]
The appellant was well known to the complainants and the detail of
their evidence is good and unique. Collusion and bias were
considered
and correctly rejected on solid reasoning. The version of the
appellant was feeble and ambiguous in the face of the
totality of the
evidence against him.
[18]
The discrepancies in the evidence were dealt with appropriately by
the magistrate. The witnesses were cross examined at length.
The
nature of the discrepancies did not negate the identity of the
perpetrator.
[19]
Counsel for the appellant correctly submitted that he cannot take the
matter for the appellant any further than the issue in
count 2.
VI
THE TAKING TOGETHER OF CONVICTIONS FOR PURPOSE OF SENTENCE
[20]
Hiemstra
[3]
with reference to
case-law correctly stated that the taking together of convictions for
the purpose of sentencing is related to
concurrent running but is not
the same thing. It is normally undesirable to take offences together
for the purposes of sentencing.
In
S
v Swart
2000 (2) SA 566 (SCA)
paragraphs [17] to [28] it was held that two rapes committed four
hours apart are not
sufficiently closely related to justify taking
the convictions together for sentence.
[21]
The first rape
in
casu
was committed in January 2011 and the next incident was in March
2012. During the March 2012-incident the one complainant was made
to
wait behind a curtain whilst the other was raped. The offences were
perpetrated against two different individuals. It demands
two
separate sentences. Sentences of life imprisonment automatically run
concurrently
[4]
and was it not
necessary to sentence in the manner the court
a
quo
did.
[22]
Hiemstra
[5]
therefor correctly
concluded that concurrency can also lead to iniquity when one or more
convictions is set aside on appeal. Any
determinate sentence of
imprisonment runs concurrently with a sentence of life imprisonment.
A court cannot order that a determinate
sentence does not run
concurrently with a sentence of life imprisonment. (
S
v Mashava
2014 (1) SACR 541
(SCA)).
[23]
In this instance the effect is theoretical and without any
consequence to the terms of life imprisonment to be served. The
custom in law to take convictions together for purposes of sentence
is moot in the light of the legislative and more effective
option
that courts have in terms of
section 280
of the
Criminal Procedure
Act 51 of 1977
to order sentences to run concurrently. The result
is legal certainty and the complications
in casu
could have
been avoided.
VII
THE SENTENCE
[24] The words of the
complainants in their victim impact statements say it all when
adjudicating the effect and seriousness of
the crimes for purpose of
sentence.
The
complainant in Count 1:
“
It
hurt me a lot because every time when I see a male person calling me,
I will ask myself should I go or not. Then I will be afraid.
When I
am at school and they talk about abuse it seems as if my classmates
see me only as an abused person. So, I will always think
about this
thing and feel bad. Is like they are doing it deliberately; I so wish
this thing could not had happened to me. Then
I will start asking
myself why people are doing this thing. My friends will explain how
abused people are feeling. When I am supposed
to sleep, I will be
afraid.”.
The
complainant in Count 3:
“
It’s
unfair!
I had to leave Bloem
because of just a stupid rape. Am always dreaming about it and
sometimes I think it’s happening in real
life and now I don’t
trust any stranger man ever. When male teacher sends me, I will tell
him I don’t feel like going
and that’s disrespecting.
Performance
Am losing lot of marks
because sometimes I don’t concentrate in class and always think
about what happened to me and I drop
marks.
Abuse
When
my teacher talks about the sexual thing I go out because I feel like
they are talking about me while the teacher doesn’t
know so
some learners will ask some questions and I will not answer them.”
[25]
The above must be weighed against the personal circumstances of the
appellant.
[26]
At the time of sentencing the appellant was 25 years old. The
offences were committed when he was 19 years old. He lured the
girls
that were familiar with him and trusted him, into his room with a
promise to watch movies. The deeds were premeditated. The
lapse of
time between the first and second-and-third charges was more than a
year. There was ample opportunity for him to reconsider
his actions
but, again with premeditation, he perpetrated a similar heinous
crime.
[27]
His only child, a girl of three years old, was and is in the primary
care of the grandmother. Appellant was still in school
at the time of
his arrest and his level of education; grade 9. He was incarcerated
for two years awaiting trial because he failed
to attend the trial
after release on bail. He was arrested on a warrant and further
release was refused. The appellant is a first
offender but repeatedly
raped with a time-lapse of more than a year between the crimes.
[28] Nothing in the
personal circumstances of the appellant raises any grounds to
interfere with the minimum sentences as prescribed.
He might have
been young when he perpetrated the crimes but the pendulum swings
against him. He had the opportunity to cease his
heinous conduct; he
re-offended and added two more very young victims to his list.
VIII
ORDER
[29]
In result of the above:
1.
The
convictions of rape on counts 1 and 3 are confirmed.
2.
The
conviction on count 2 is set aside.
3.
The
appellant is sentenced to a term of life imprisonment on each of
counts 1 and 3.
________________
M. OPPERMAN, J
I
concur.
_________________
L.
B. J. MOENG, AJ
On
behalf of the appellant: PL van der Merwe
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: M Strauss
Director
of Public Prosecutions: Free State
BLOEMFONTEIN
[1]
S v MM
2012 (2) SACR 18
(SCA).
[2]
Simon Lesesa Matroos v The State
:
Case No: A69/2017.
[3]
Hiemstra's Criminal Procedure
;
Albert Kruger, Last Updated: May 2019 at section 280.
[4]
Supra at section 280.
[5]
Supra at section 280.