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[2019] ZAFSHC 197
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Tshabalala v S (A87/2019) [2019] ZAFSHC 197 (19 September 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
Appeal
No.: A87/2019
In
the appeal between:
MOYENE
PETER TSHABALALA
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
VOGES,
AJ
JUDGEMENT:
REINDERS, J
HEARD
ON:
26
AUGUST 2019
DELIVERED
ON:
19
SEPTEMBER 2019
[1] The
appellant, who was legally represented, appeared before the Regional
Court, Frankfort on a charge of contravening
the provisions of
sec 3 (rape) of the Criminal Law (Sexual Offences and Related
matters) Amendment Act 32 of 2007 (hereafter “the
Sexual
Offences Act”).
[2] It was
alleged by the State that on or about 14 July 2017 the appellant
unlawfully and intentionally committed an
act of sexual penetration
with a ten year old girl by penetrating her vagina with his penis.
Appellant pleaded not guilty
but was convicted on 19 July 2018 and
sentenced to the imprisonment for life on 6 September 2018. He
feels aggrieved by both
the conviction and the sentence and exercises
his automatic right of appeal against same before us.
[3] Ms
Kruger, appearing for the appellant, submitted in her heads of
argument that the trial court misdirected itself
in finding that the
State has proven its case beyond a reasonable doubt and that the
accused should have been acquitted.
Before us no further
arguments were advanced. In the event that the conviction is to be
confirmed, she submitted that the court
a quo erred in not deviating
from the prescribed minimum sentence of life imprisonment.
[4] Mr
Mthethwa on behalf of the State supported both the conviction and the
sentence on the papers and before us. He
contended that the
trial court did not misdirect itself in either convicting the
appellant as charged or in imposing the minimum
sentence of life
imprisonment in the circumstances of the instant matter.
AD CONVICTION:
[5] To prove
its case the state called the complainant and her mother, Ms
M[....]. The crux of their versions,
as accepted by the
magistrate, entailed the following:
[5.1] The
complainant testified through an intermediary. On the night in
question, her mother had gone to a funeral,
leaving her and her seven
year old brother with her father. They watched television until
about 20:40 when her brother fell
asleep. Her father told her
that he would show her how babies were made, and in her parents’
bedroom appellant threw
her on the bed. He undressed her pants
and underwear, pulled down the zip of his trousers and inserted his
penis into her
vagina, whilst making movements on top of her.
She was lying on her back. She complained to him three times
that it
was painful (she used the word “sore”), and after
the third time he withdrew his penis and ordered her to dress
herself.
Upon her mother’s return from the funeral the
following morning she made a report to her mother. After
deposing to
a statement at the police station, she attended a
gynaecological examination.
[5.2] Ms M[….]
testified that upon her return from the funeral the next morning on
the 15
th
, the complainant reported to her that the
appellant did “
stoute dinge
” to her. Hereupon she
took the complainant to the police station where complainant relayed
what happened whilst crying.
[6] It is
common cause that, although the appellant was not her biological
father, the relationship between them was
that of a father and
daughter. The appellant denied ever having committed an act of
rape on his daughter. He testified
that the mother of the
complainant on the night in question was not at home, hence he
prepared food for the children. He
instructed them to go to
bed, where after he followed suit and went to sleep at 21h00.
The following day he received a call
informing him to visit the
police station, where he was arrested for the rape of his minor
daughter.
[7] It is
trite that factual findings of the trial court and its acceptance of
oral evidence are presumed to be correct
unless and until they are
demonstrably or, on adequate grounds, shown to be wrong.
See:
S v Francis and
Others
1991(1) SACR 198 (A) at 198J-199 A.
S v Hadebe and Others
1997 (2) SACR 641
(SCA)
at 645 E-F.
[8] It is
clear from the record that the magistrate was alive to the fact that
he had to apply the necessary caution to the
evidence of the
complainant, she being a single witness and 10 years of age. He
concluded that she was a good witness and
accepted her evidence.
He found corroboration for the complainant’s version in report
on the medico-legal examination
(the “J88”) as well as in
her first report made to her mother. In my view the learned
magistrate’s conclusion
in this regard cannot be faulted in any
way.
[9] The J88 was accepted
into evidence as Exhibit “B”. The medical doctor in
his gynaecological examination of
the complainant made the following
clinical findings:
·
Increased
friability/redness on the Fossa Navicularis
·
bruising
on the hymen
He concluded that his
findings are “consistent with attempted forceful vaginal
penetration”.
[10] In
reaching the conclusion that the appellant is guilty as charged, to
wit having committed an act of sexual penetration
by inserting his
penis into the vagina of the complainant, the learned magistrate
remarked as follows:
“
Nou daar is
nie getuienis voor die hof dat sy wel gepenetreer is nie… Maar
volgens die definisie van verkragting is dit baie
duidelik dat sou sy
privaatdeel slegs haar privaatdeel aangeraak het kom dit neer op
penetrasie…”
[11] I do not agree
with the magistrate that the mere touching of genitals will suffice
for a conviction on rape.
[12] Rape is defined in
Sec 3 of the Sexual Offences Act as the crime in terms whereof a
person unlawfully and intentionally commits
an act of
sexual
penetration
with another (the complainant) without the consent of
the complainant.
See:
Sec
3 of the Sexual Offences Act, 32 of 2007.
Sexual
penetration is defined in sec 1 of the aforesaid Act to include “
any
act which causes penetration to any extent whatsoever by
–
(a)
the genital organs of one
person into
or beyond
the genital organs
,
anus or mouth
of another person
;
(b)….
(c)…”
Genital organs as defined
in sec 1 “
includes
the whole
or part of the
male and
female genital
organs
”
[13] In the context
of rape in terms of the common law, the Supreme Court of Appeal in
S
v MM
2012 (2) SACR 18
at para [21] accepted for purposes of that judgment
that “
the
slightest penetration is sufficient, and that this includes any
degree of penetration, however minor, into the labia…
”
In my view sec 3 of the
Sexual Offences Act is in line with
S v MM
supra
that
even the slightest penetration of the sexual organ of a complainant
would suffice for a conviction on rape, as the said section
does not
specify the extent of penetration.
[14] Having due regard to
the above authorities there should therefore at least be some form of
penetration for a conviction on
rape. The complainant both in
her evidence in chief and in cross examination on various occasions
testified that the appellant
inserted his penis
into
her
vagina. The magistrate accepted her evidence. On the J88
bruising of the hymen is noted (para [19] above). This
lends
credence to the complainant’s evidence. I am accordingly
convinced that the magistrate should therefore have
concluded that
penetration was in fact proved on the evidence accepted by him.
So seen I am of the view that the conviction
was in order and it
stands to be confirmed.
AD
SENTENCE:
[15] The next
enquiry is whether or not the sentence imposed is just, regard being
had to the cumulative impact of mitigating
and aggravating factors
inclusive of the interests of society. It is trite that the
powers of a court of appeal to interfere
with the sentence imposed,
are limited insofar as it can only interfere where the sentence is
disproportionate, harsh or the sentencing
court committed a material
misdirection or did not exercise its discretion properly or at all.
See:
S v Pieters
1987(3) SA 717 (A)
See also:
S v Makondo
2002 (1) All SA 431
(A).
[16] The
aforementioned principles applicable to an appeal in respect of
sentence, was restated in
S v Hewitt
2017(1) SACR 309 (SCA):
“
[8]
It is a trite principle of our law that the imposition of sentence is
the prerogative of the trial
court.
[1]
An appellate court may not interfere with this discretion merely
because it would have imposed a different sentence. In other words,
it is not enough to conclude that its own choice of penalty would
have been
an
appropriate penalty. Something more is required; it must conclude
that its own choice of penalty is the appropriate penalty and
that
the penalty chosen by the trial court is not.
[2]
Thus, the appellate court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it.
[3]
So, interference is justified only where there exists a ‘striking’
or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the appellate
court would have imposed. And in such instances
the trial court’s
discretion is regarded as having been unreasonably exercised.
[4]
”
[17] It is
evident from the record that the learned magistrate in handing down
sentence addressed the triad consisting
of the crime, the criminal
and the interest of society.
[18] The court
a quo
had regard to the appellant’s personal circumstances.
These were: his age of 32 years; he was in a relationship with
Ms
M[....]; he is a father to 3 children staying with their mother and
he contributed to their expenses; his highest scholastic
education
level is grade 6; he was employed as farmer and had an income; he was
in custody awaiting trial for 14 months and he
was a first offender.
[19] The interest of the
victim was comprehensively dealt with by the magistrate with
reference to the Victim Impact Report before
him. He alluded to
the emotional and psychological trauma suffered by the complainant as
a result of the crime as evidenced
from the Report compiled by Mr
Mafada. The court
a quo
stressed the remarks of the
complainant’s teacher who indicated, amongst others, the
detrimental effect on complainant’s
school results, sudden
aggression and withdrawal from her peers. According to
complainant’s mother she is afraid of
dark and being alone,
distrusts male persons and is aggressive towards her brothers.
The court
a quo
was of the view that it was one of the worst
cases of negative behavioural changes after the rape that he has
dealt with. The lasting
impact of the ordeal would, according to the
psychological assessment, be impacting on her for the rest of her
life. He considered
the aforementioned, the tender age of the
complainant of 10 years and the fact that the appellant was in a
trust relationship with
both the complainant and her mother, as
aggravating circumstances.
[20] The seriousness of
the crime of rape was stressed by the court
a
quo
with specific reference to
S
v Chapman
1997
(
3
)
SA
341
(
SCA
).
Further
reference was made to
Chapman
supra
regarding the interest of the community in being protected from
criminals and the courts’ duty to send out a clear message
of
no tolerance to rapists.
[21] The regional
magistrate in handing down sentence balanced all of the
aforementioned factors. In following the guidelines in
S v Malgas
2001 (1) SACR 469
(SCA) he did not find any substantial and
compelling circumstances in respect of the rape charge and invoked
the prescribed minimum
sentence of life imprisonment as envisaged
Section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
read
with Part ll of Schedule 2.
[22] It was submitted by
Ms Kruger on instruction that we, sitting as a court on appeal,
should consider that the rape
in
casu
was not the most serious cases of rapes, and accordingly a deviation
from imprisonment for life is justified. We were referred
to
S
v Mahomotsa
2002 (2) SACR 435
(SCA) at 436 b-d where it was held that “
Even
in cases falling within the categories delineated in the Act there
are bound to be differences in the degree of their seriousness.
It is
only right that the differences in seriousness should receive
recognition when it comes to the meting out of punishment.”
[23] From a reading of
the record the magistrate referred to physical injuries inflicted on
the complainant, supposedly the bruises
and redness to the genitalia
of the complainant as indicated on the J88. From the evidence
it is indeed evident that the
rape was not brutal and did not involve
any violence. However, the magistrate considered the psychological
injuries and trauma
suffered by the complainant (as indicated in para
[19] above) to be so severe that “
…
haar
lewe verwoes is
”
.
Accordingly he held the view that the rape was indeed serious.
From the proven evidence it is clear that complainant
had been
profoundly affected emotionally and psychologically by the rape and
that the effect will be long lasting.
[24] In unreported
judgement of
S v S
(CC 42/2018) [2018] ZAECGHC 68 (16 August
2018) Plasket J dealt with the rape of a child of 8 years by her
father. The child
sustained minor physical injuries that
healed. A psychological assessment report on the impact that the
crime had on the victim,
confirmed that the psychological trauma and
its consequences will endure for the long-term and were extremely
serious. The
learned judge in handing down a sentence of
imprisonment for life, stated the following at para [10]:
“
I also take into account
the
seriousness of the offence of which the accused has been convicted
,
which I have discussed above,
and
the severe psychological impact that the accused’s conduct has
had and will continue to have on the life of his daughter.
These
factors negate any mitigatory effect that the accused’s
personal circumstances may otherwise have had…
”
(own emphasis)
[23] I have not been
convinced by appellant that the court a
quo
erred in finding
as he did. I therefore come to the conclusion that the appeal
against appellant’s sentence should
fail.
[24]
I accordingly make the following order:
The appeal is dismissed.
C. REINDERS, J
I concur.
M. VOGES, AJ
On behalf of the
appellant: Adv. S. Kruger
Instructed by:
Legal Aid South
Africa
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Mthethwa
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
[1]
S v Pieters
1987 (3) SA 717 (A) at
727F-H;
S v Sadler
2000 (1) SACR 331 (SCA) at
para 8;
S v Swart
2000 (2) SACR 566 (SCA) para
21. See also,
S v L
1998 (1) SACR 463 (SCA) at
468
f
;
S v Blank
1995 (1) SACR 62 (A)
at 65
h-i
.
[2]
Sadler,
para10.
[3]
S v Pillay
1977 (4) SA 531 (A) at 535E-F.
[4]
S v Snyders
1982 (2) SA 694
(A) at 697D;
S
v N
1988 (3) SA 450
(A) at465I-J;
S
v Shikunga
465I-466A;
S
v Shikunga & another
1997 (2) SACR 470
(NmS) at 486
c-f.
See
also
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
1987 (3) SA 717
(A) at 733E-G;
S
v Petkar
1988 (3) SA 571
(A) at 574D; 1997 (2) SACR 470 (NmSC) at 486
d.
See
also
S
v Abt
1975 (3) SA 214
(A);
S
v Birkenfield
2000 (1) SACR 325
(SCA) para 8;
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
fn
3 at 733E-G.