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[2019] ZAFSHC 146
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TM v S (A77/2019) [2019] ZAFSHC 146 (2 September 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A77/2019
In
the appeal between:
T
M
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J et VOGES, AJ
JUDGMENT
BY:
VOGES,
AJ
HEARD
ON:
26
AUGUST 2019
DELIVERED
ON:
02
SEPTEMBER 2019
[1]
The Appellant was convicted on 13 May 2015 in the Regional Court,
Bloemfontein of contravening the provisions of Section 3 of
Act 32 of
2007 and sentenced to life imprisonment on the same day.
[2]
The Appellant appeals against both the conviction and sentence.
[3]
The appellant was charged with the rape of the five year old daughter
of his brother. The State called the child, her
teacher and the
doctor who examined the victim the day after the alleged rape.
The
appellant testified in his own defence.
[4]
In short, the complainant testified that the Appellant fetched her
and her younger brother from the crèche on 21 November
2012.
It was only the three of them present at her grandmother’s
house. After the Appellant had given them food
to eat and the
little brother was playing outside the Appellant pulled her to the
bedroom. He closed the door, put Vaseline
on his penis and made
her lie down on the bed where he raped her.
She
reported to her grandmother that she was raped and the grandmother
called the police. The police did, however, not show
up.
She
went to school the next day, wearing the same clothes. Her
teacher then noticed blood stains on her and took her
to the
doctor.
[5]
Queen Malutabaleng Phala, a teacher at Retswela Penny Day Care,
testified that the accused, who is well known to her, fetched
the two
children from school on 21 November 2012 at 14h00. By then he
was under the influence of liquor. He was also
there at 11h00.
The next morning she saw bloodstains on the pink tights that the
complainant was wearing. The complainant
told the teachers that
she was raped by R (the Appellant). The police was eventually
called and the complainant taken for
a medical examination.
During
the evidence of this witness it transpired that there had previously
been allegations that the complainant was sexually molested
by P, a
minor brother of hers.
Since
the incident, the complainant is staying with this witness.
[6]
Dr Maria Elizabeth Schultz testified that she examined the
complainant on 22 November 2012. She completed a J88 medical
report. Her main findings were: Very irritated, swollen,
almost bleeding urethral orifice; swollen, bruised para-urethral
folds; bruising of the labia minora; increased friability and
bleeding of the posterior fourchette, as well as fresh tears
and
scarring. She also noted a bloody, watery discharge in the
vagina. She was convinced that the complainant was raped.
She
was informed that this child was also previously raped by her
underage brother and she noted the scarring.
[7]
The Appellant denied that he fetched the children from school or that
he raped the complainant. He testified that he was
at his
workplace at the old age home from 7h30 until 16h00 that day.
He
had previously heard that the complainant was raped by P.
[8]
The complainant was 5 years old at the time of the commission of the
offence and 8 years when she testified. The court
a quo
considered her evidence meticulously, especially taking into account
the cautionary approach applicable to single and child
witnesses.
His reasoning and evaluation of the evidence cannot be faulted.
[9]
Ms Phala was found to be a credible and reliable witness whose
evidence supplemented and corroborated the evidence of the
complainant.
She immediately suspected that P was the culprit
again, but the complainant was adamant that it was her uncle, the
Appellant, who
raped her this time.
[10]
On the evidence there is no indication that the complainant was
falsely implicating the Appellant or that she was “covering”
for P. Previously she was quite prepared to tell the teacher
when P raped her (p. 60).
[11]
Even though the Appellant made a favourable impression as witness,
the court a quo did not accept his version as reasonably
possibly
true in light of the overwhelming evidence against him.
[12]
The trial court is in a better position to judge on the credibility
and reliability of witnesses. It is trite law that
a court of
appeal will assume that the trial court’s findings are correct
and will accept these findings, unless it is convinced
that these are
wrong. See
R v Dhlumayo and another
1948 (2)
SA 677
(AD) at 705 -6
[12]
There is nothing in the Appellant’s heads of argument that
convince me that the court a quo was wrong in its findings.
AD
SENTENCE
[13]
The Appellant was convicted of a very serious, repulsive crime that
no doubt warrants a heavy sentence.
[14]
The court a quo correctly took into account as aggravating
circumstances that the victim was a vulnerable child, that the
Appellant was “in control” of the child and that the
offence was planned. Furthermore the interests of society,
the
prevalence of this type of offence and the need to send out a clear
message to persons of like mind was taken into account.
All of these
factors are relevant and should be reflected in the sentence.
[15]
The minimum sentence prescribed by Section 51 (1) of Act 105 of 1997
on conviction of an offence referred to in Part 1 of Schedule
2 is
imprisonment for life. It must be imposed, unless the court is
satisfied that substantial and compelling circumstances
exist which
justify the imposition of a lesser sentence.
[16]
Pursuant to the guidelines in
S v Malgas
2001 (1)
SACR 469
(SCA)
and mindful of the Supreme Court of Appeal’s
view that “specified sentences are not to be departed from
lightly and
for flimsy reasons” the court a quo
considered itself bound to impose the minimum sentence, after having
found that
no substantial and compelling circumstances exist.
In
S v Moswathupa
2012 (1) SACR 259
(SCA)
it
was said: “Where sexually abusive adults reprehensibly
satisfy their carnal desires with helplessly young
children they have
to be deterrantly punished by imposing on them sentences that would
reflect not only the strong disapproval
of the court but also the
natural indignation of society”
The
trial court was also of the opinion that sentences should be
consistent and that he “want to send out the very same message
to all offenders who has raped young children”.
This
reasoning would be in line with the sentencing aim of deterrence, but
it must also be borne in mind that sentences must be
individualized.
[18]
In
S v Shongwe
1999 (2) SACR 220
(O)
Cilliè
J concurred with the view that “…
dit wat
as die gewone versagtende omstandighede beskryf kan word duidelik
volgens die bedoeling van die Wetgewer nie kan kwalifiseer
as
wesenlike en dwingende omstandighede soos bedoel in die voormelde
wetgewing nie”
, but found that “
Die voorkoming van
‘n skokkende onreg by vonnisoplegging is myns insiens wel ‘n
wesenlike en dwingende omstandigheid
wat die oplegging van ‘n
mindere vonnis regverdig”
[19]
In considering the imposition of the prescribed minimum sentence it
was said in
S v Mahomotsa
2002 (2) SACR 435
(SCA) at
444a – b
: “
Even in cases falling within the
categories delineated in the Act there are bound to be differences in
the degree of their seriousness.
There should be no
misunderstanding about this: they will all be serious but some
will be more serious than others and, subject
to the caveat that
follows, it is only right that the differences in seriousness should
receive recognition when it comes to the
meting out of punishment.
As this court observed in
S v Abrahams
2002 (1) SACR 116
(SCA)
‘some rapes are worse than others and the life
sentence ordained by the Legislature should be reserved for cases
devoid of
substantial factors compelling the conclusion that such a
sentence is inappropriate and unjust’ “
A
higher degree of violence or brutality increases the moral
blameworthiness of the offender.
The
complainant was not assaulted or seriously injured. There is no
evidence about the psychological effect of this ordeal
on the
complainant, but I am convinced that she did not get through it
unscathed. She was removed from the unfortunate conditions
at
her grandmother’s house and has been living with ms Phala since
the incident
The
trial court did not give credit to the Appellant for the fact that he
did not use excessive violence towards the complainant.
[20]
The Appellant in this case is a 45 year old first offender and the
father of two minor children. He was in fixed employment
and living
with the complainant and her grandmother. By the time he was
sentenced he has spent 30 months in custody awaiting
finalization of
the trial.
It
was argued on behalf of the Appellant that the court a quo erred by
not properly taking into consideration the period spent in
custody
awaiting the finalization of this matter as a compelling and
substantial circumstance.
In
S v Ngobo
2018 (1) SACR 479
(SCA)
it was held
that a pre-conviction period of imprisonment was not, on its own, a
substantial and compelling circumstance:
it was merely a factor
in determining whether the sentence imposed was disproportionate or
unjust.
[22]
Life imprisonment is the heaviest sentence a person can be legally
obliged to serve. Taking into account the circumstances
of the
offence, the interests of society and the personal circumstances of
the Appellant I am of the opinion that life imprisonment
differ to
such an extent from the sentence that would be regarded as
appropriate had it not been for the prescribed minimum sentence
that
it would lead to an injustice to the accused.
[23]
In the absence of a material misdirection no appellate interference
is justified.
S v Pieters
1987 (3) SA 717
(AD)
at 728 B – C
.
Cumulatively
taking into consideration what was said
supra
, in paragraphs
[16], [19] and [20] I am persuaded that the regional magistrate
misdirected himself in not finding compelling and
substantial
circumstances. The above circumstances should have been regarded as
such.
Having
found that, we are accordingly at liberty to consider the question of
sentencing afresh.
[24]
There is no doubt that the offence warrants a long term of
imprisonment. It is the only sentence that would do justice
to
the offence and the interests of society.
[25]
The following order is made:
1. The appeal against
conviction is dismissed.
2. The appeal against
sentence is upheld. The sentence of the court a quo is set
aside and replaced with a sentence of 20
years imprisonment.
The
sentence is ante dated to 13 May 2015.
______________
C.
REINDERS, J
I
concur.
____________
M.
VOGES, AJ
On
behalf of the appellant: Adv. T J Modise
Instructed
by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S Mthethwa
Instructed
by: Director: Public Prosecutions
BLOEMFONTEIN