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[2019] ZAFSHC 185
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Barnard v S (A144/2019) [2019] ZAFSHC 185 (24 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
no: A 144/2019
FRANS
BARNARD
Appellant
and
THE
STATE
Respondent
HEARD ON:
21 October 2019
CORAM:
MOLITSOANE, J
et
MURRAY
AJ
JUDGMENT BY:
MURRAY AJ
DELIVERED ON:
24 OCTOBER
2019
[1]
The Appellant was convicted of the rape and sexual assault of a
4-year old girl on 18 May 2017 in the Odendaalsrus Regional
Court by
Magistrate C Nekosie. On 26 July 2017 he was sentenced to Life
Imprisonment for the rape, and to 3
years’
imprisonment for the sexual assault, which sentence is to be served
concurrently with the life sentence. He is
now exercising his
automatic right of appeal. The appeal lies against both the
convictions and the sentences.
[2]
Adv PL van der Merwe of the Bloemfontein Justice centre drafted the
Heads of Argument for the Appellant, but Ms V Abrahams appeared
in
his place during the appeal, and Adv DW Bontes appeared for the
State. The State supports both the convictions and the
sentences.
[3]
The two charges on which the Appellant was arraigned were properly
put to him at the beginning of the trial, and the relevant
parts of
the charge sheets are as set out below, namely:
3.1
Count
1
: Contravention of Section 3 of Act 32 of
2007 … read with the provisions of Sections 51(1) * 51(2)(b)
of the
Criminal Law Amendment Act 105 of 1997
as amended …
RAPE in that … he unlawfully and intentionally committed an
act of sexual penetration with the 4-year
old Complainant by
penetrating her mouth, and/or vagina, and/or anus with his penis
and/or finger without her consent more than
once over a period of
time.
3.2
Count
2
: Contravention of Section 5(1) of Act 32 of
2007 … SEXUAL ASSAULT in that he did unlawfully and
intentionally sexually violate
the Complainant by kissing her,
inserting his tongue into her mouth and/or touching her vagina,
and/or other action.
[4]
Before he was asked to plead, the court
a quo
and the prosecutor explained to the Appellant
the relevant minimum sentences he was facing upon conviction if no
substantial and
compelling circumstances were to be found, namely
Life Imprisonment on Count 1 and 10 years’ imprisonment on
Count 2.
[5]
The Appellant pleaded not guilty on both Counts and gave no plea
explanation. When he testified in his defence, his version
amounted to a bare denial. He alleged that he was being falsely
implicated because an alleged request of the Complainant’s
parents to borrow money from his mother had been refused. He
averred that her parents then told the 4-year old Complainant
to tell
the court
a quo
that
he had raped her and that the mother not only told her what to say,
but also showed her what and how to demonstrate what happened
during
her testimony with anatomically correct male and female dolls.
[6]
The Appellant’s grounds of appeal against his convictions are
that the court erred:
6.1 in finding that the
Complainant and other State witnesses were credible witnesses;
6.2 in drawing a negative
inference of the Appellant’s version and not making a
credibility finding in favour of his testimony;
and
6.3 in finding that the
State had proved its case beyond reasonable doubt.
[7]
The Appellant’s grounds of appeal against the sentences are:
7.1 that the sentence of
life imprisonment is shockingly inappropriate and induces a sense of
shock;
7.2 that the severity of
the offence was over-emphasised at the cost of the personal
circumstances of the Appellant; and
7.3 that the court erred
in finding that there were no substantial and compelling
circumstances to justify a deviation from the
prescribed minimum
sentence.
[8]
Because of her age, the Complainant testified through an
Intermediary. Her version is that ‘Fransie’, the
Appellant,
hurt her. She testified how, in the toilet at Frogs Bar,
and on the farm, he ‘made love to her’
[1]
with his tongue in her mouth, how he touched her vagina and inserted
his penis into her vagina and her anus, telling her over and
over
that he loved her whenever she told him she did not want him to do
the ‘things’ to her. She testified that
when he
told her he loved her, she told him that she is still small. In
testifying she used age appropriate terms like “parra”
and “tottie” for the relevant female and male body
parts. She testified how the Appellant knelt in front of her
as
she was sitting on the toilet and inserted his finger into her
vagina. She testified about various events at Frogs Bar
and on
the farm, which she demonstrated with the two anatomically correct
dolls, the female one depicting her and the male one
depicting the
Appellant. She showed how the Appellant took off her panty and
then took off his own pants, underwear and shirt,
and how he inserted
his penis into her vagina while kissing her with his tongue in her
mouth.
[9]
She also demonstrated how the Appellant took off her shirt and later
all her clothes and removed his own when she was preparing
to take a
bath. She demonstrated, with the dolls, how, when they were
both completely naked, they were lying on the floor
with the
Appellant on top of her, with his penis in her vagina while he was
moving up and down. She testified that it hurt her
vagina. She
testified, furthermore, that at the farm on another occasion he
inserted his finger and his penis into her buttocks
and her vagina.
She demonstrated this with the dolls, the female doll lying face-down
with her legs spread wide and the male on
top with his penis in her
anus, also moving up and down.
[10]
She testified that some of the incidents also happened at the toilets
or in the Appellant’s car outside Buddies Diner
which the
Complainant’s parents had before they had Frogs Pub, and where
they apparently lived in 2013. She demonstrated
how, there too,
they would both be completely naked when the Appellant inserted his
penis into her mouth, and as she called it,
‘spit’ into
her mouth, and described how it smelled and tasted bad and made her
vomit, and how her mouth felt sick
when he put his penis in it.
[11]
The Complainant testified, furthermore, that the Appellant told her
not to go to the police and that, if she told her mother,
he would
find her and her mother and father and would slit their throats.
According to her, when she heard that, she felt
sick and started
vomiting. She testified that she told only her mother what had
happened and only when her mother took a
bath with her and noticed
the redness and swelling of her private parts and started asking her
questions. Her mother then took
her to be examined by a doctor.
[12]
According to Capt Buys, a forensic social worker in the South African
Police Services who works with young children subjected
to sexual and
physical abuse, a child of the Complainant’s age would not know
about, remember and be able to add all the
sensory details that the
Complainant did if she had not experienced it herself but had merely
been shown how to demonstrate the
movements with the dolls as the
Appellant alleged.
[13]
The version that the Complainant gave to Sister Ceba also
corroborates her testimony. The Complainant’s and her
mother’s evidence, furthermore, was corroborated by the
findings in the J88 report which was handed up by agreement:
it
reported clear signs of redness and erosion on the Complainant’s
perineum and inner labia minora, which, according to
Sister Ceba, the
forensic nurse who examined her two days after the last incident, is
basically the lower part of the vagina, and
which injuries were
painful upon examination and “
fit well
to the history of penetration”
.
[14]
Dr Kotzé, who deals with forensic medicine and runs a clinic
for sexually abused children under the age of 11 explained
in court
that because the Complainant was so young, estrogen remaining from
her mother would make it possible for her vagina and
hymen to still
be so soft and pliable as to not show tears and bleeding such as one
would expect to find in an older rape victim.
The hymen would also be
less sensitive than in an older child and any injuries could heal
fast enough that two days after penetration,
they would no longer be
visible. The same would apply to anal injuries.
[15]
Dr Kotzé was adamant, furthermore, that a child of the
Complainant’s age would not be cognitively advanced enough
to
describe specific body parts like the Complainant did if not from
experience. She stated that a 4-year old child cannot
tell
elaborate lies. She indicated, furthermore, that the clarity,
detail and consistency of the Complainant’s evidence
pointed to
a history of probable sexual abuse. It is most
improbable, in my view, too, that a 4-year old child could
have
imagined everything the Complainant described in such fine and
graphic detail if someone had merely coached her, and to so
accurately and vividly demonstrate everything that happened by way of
the two anatomically correct dolls. As Holmes JA warned in
S
v Artman
[2]
“
the
exercise of caution must not be allowed to displace the exercise of
common sense.”
[16]
The Complainant’s version was also corroborated by her mother
who testified how the Appellant would visit them, sometimes
for two
weeks at a time, and how his visits continuously caused friction
between them because of his conduct with the Complainant.
She
testified how she had to tell him to stop picking up the Complainant
because of the way he carried her around on his hip, as
if he was
deliberately making her private parts rub against his side, and how
he insisted on time-and-again removing the clips
and rubber bands
from the Complainant’s hair, despite the mother’s
objections. She described how he bought the
Complainant sweets,
and even took her into town to buy her a dress and a panty (which he
admitted during his testimony). She testified,
furthermore, how she
once found them alone in the Appellant’s car and described how
the Complainant immediately ran to her
in apparent relief. She
also described how upset she was one night to find the Appellant
drying the Complainant’s hair
after apparently having given her
a bath (which he denied) whereas her own father does not even go into
the bathroom while she
is having a bath.
[17]
The mother stated that although the Complainant had from time to time
told her she was hurting, she thought it was just from
playing out in
the sand. It was only when she took a bath with the Complainant
one evening and noticed that the area around
her vagina was red and
swollen, while around her anus there were swellings resembling piles,
that she realised that something was
really wrong. It was on
that occasion, when she started questioning the Complainant, that the
Complainant for the first time
told her what the Appellant had been
doing to her.
[18]
Since it was late at night, she only took the Complainant to the
doctor the next day and to the Police the day after that.
That is
when the Complainant was then examined by Sister Ceba whose
conclusion was set out in the J88 report, and which is material
corroboration of the Complainant’s version. As the court
remarked in
Mocumi
v S
[3]
:
“
Clinical findings
and conclusions drawn by doctors who examine complainants in sexual
assault cases are generally accorded significant
weight by our courts
as an indication that sexual intercourse probably did or did not
occur, particularly in relation to young
children. The identity
of the perpetrator then becomes determinable on its own merits.”
[19]
The court
a quo
correctly
took into consideration that the Complainant was a single witness
regarding the rapes and the sexual assault and approached
her
testimony with caution, finding corroboration for her version in the
evidence of the various State witnesses. Although her
testimony was
not chronological, it was clear that the events she described took
place at various locations over an extended period
of time, according
to the State from 2013 until April 2014. Vigorous and
relentless cross-examination by the attorney for
the Appellant failed
to make her materially contradict herself or shake her version.
[20]
I can therefore find no reason to doubt the court
a
quo’s
credibility
finding regarding the Complainant’s evidence. Her ability
to recall and demonstrate in graphic detail the
different events, the
Appellant’s words and actions, her own reactions, feelings and
attempts to make him stop, the different
positions they were in to
make the various forms of sexual assault and rape possible, and even
such sensory reactions as pain,
smell, taste and hate is remarkable,
seeing that she was only four years old when the sexual assault and
rapes took place and the
trial only commenced two years after that.
Those characteristics of her evidence in my view gives her
implication of the
Appellant as a rapist and child molester enough of
‘a hallmark of trustworthiness to reduce substantially the risk
of a wrong
reliance on her evidence’ as a single child
witness. (See:
S
v MG
[4]
).
[21]
I agree with the trial court’s finding that the slight
contradictions between her evidence and her mother’s are
not
material and that her evidence, even though not chronological, was
indeed satisfactory, credible and reliable. It is
common cause
that the Appellant was well-known to the Complainant since their
parents were related and according to the Complainant’s
mother,
frequently visited them. His mother is a cousin of the
Complainants father and it is undisputed that he visited the
Complainant’s family from time to time in 2013 and 2014 and
assisted her father in the pub. His identity was therefore
never in question.
[22]
The Appellant’s version in court boiled down to a bare denial
of facts. He averred that he had had a good relationship
with
the Complainant and would buy her sweets, dresses and underwear.
He denied that he ever bathed the Complainant and averred
that he
only drew her a bath on her mother’s request. He denied,
furthermore, ever having touched her inappropriately
or ever having
performed any of the acts which the Complainant described. He
averred that he only played with her by from
time to time by catching
her as she jumped from the stairs.
[23]
The Appellant’s averment that the Complainant’s mother
must have told her to make the false accusations against
him and must
have shown her how to demonstrate her averments with the dolls, is
not borne out by the evidence. He materially
contradicted
himself, furthermore, by averring at first that he visited the
Complainant’s family only once, in 2014, then
later admitting
that he was also there in January of that year, as well as in April.
His averment that the Complainant’s
parents must have told her
what to say because they had wanted to borrow money from his mother
and their request had been refused,
was refuted by the accepted
evidence of the Complainant’s father who testified that he had
no knowledge of such a loan.
[24]
It is trite that, if the Appellant’s version were to be found
to be reasonably possibly true, he would be entitled to
have his
conviction set aside. To determine if his version was reasonable, as
held in
S
v Sithole,
[5]
the court correctly weighed the probabilities of the Appellant’s
version against the totality of the evidence against him.
In
S
v Phallo and Others
[6]
the
court cautioned that the fact that the State has to prove the
Appellant’s guilt beyond a reasonable doubt, does not mean
that
it must close every loophole. But, having had regard to the evidence
of all the State witnesses and the medical evidence,
in my view the
finding by the trial court that the evidence proved beyond reasonable
doubt that the Complainant was raped and sexually
assaulted must be
accepted as correct. And so must the Complainant’s
identification of the Appellant as her assailant.
[25]
On the totality of the evidence, accordingly, I cannot fault the
court
a quo’s
finding
that the Appellant’s version is not reasonable. It is simply
not probable that the Complainant would, at her age,
have been able
to conspire with her parents to take revenge and falsely implicate
the Appellant and would then be able to describe
and demonstrate a
series of events in such vivid and graphic detail. I therefore have
no doubt that the magistrate correctly found
the State to have proved
its case beyond a reasonable doubt.
[26]
The Appellant’s conviction therefore has to stand.
[27]
Prior to sentencing, it was submitted that the court
a
quo
had failed to take into proper account
the Appellant’s personal circumstances, namely that he is
36 years old, is divorced
with two minor children, was self-employed
earning R8 000 per month, is a first offender for this type of
offence, was a productive
member of society who maintained his
children and that he had attended a special school since he was a
slow learner.
[28]
As stated in
S
v Vilakazi
[7]
regarding
an accused person’s personal circumstances, however:
“
Once it becomes
clear that the crime is deserving of a substantial period of
imprisonment the question whether the accused is married
or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial to what
that period
should be, and those seems the kind of “flimsy” grounds
that Malgas said should be avoided.”
[29]
One has to look at the cumulative weight of the personal
circumstances to see whether they outweigh the aggravating
circumstances
in order to constitute substantial and compelling
circumstances which would justify a deviation from the prescribed
minimum. First
of all, the Appellant was, at 35 years old, not young
enough for his moral blameworthiness to have been affected by
immaturity
(See:
S
v Matyityi
[8]
)
and indeed there was no such evidence. His age is therefore at
best for the Appellant a mere neutral factor when mitigation
is
considered.
[30]
There is no evidence, either, that the R8 000 that he earned was
indeed applied towards the maintenance of his mother
and children,
except for his legal representative’s reference in argument to
his doing so.
[31]
In my view the Appellant’s age, as well as the fact that he has
two children of his own, should in the circumstances
of this case,
rather be viewed as aggravating factors since as a mature father of
two children and a relative of the Complainant’s
he should have
known better than to abuse the trust of his relatives and to rape and
sexually abuse their 4-year old daughter in
her own home.
[32]
Seriously aggravating, furthermore, is that his actions were planned
and committed over an extensive period of time. It is
obvious from
the Complainant’s testimony how he systematically groomed her
with kisses and gifts and assurances that he loved
her, to the point
where she could be raped and abused, at first because he told her he
loved her, and later under threat of his
slitting the throats of her
parents if she told anyone.
[33]
The Appellant showed no remorse for violating the trust and the
emotional and psychological well-being of his 4-year old victim.
Instead he simply denied any liability and even concocted an
obviously improbable motive for the charges brought against him. His
lack of remorse virtually obviates the need to consider possible
rehabilitation in deciding on a sentence.
[34]
These types of offences are prevalent, not only in that area, but
also in the entire country and have been referred to as a
scourge and
a pandemic. Rape is an abhorrent offence which invades and
violates the innermost privacy and security of the
victim in a
brutal, degrading and humiliating way, and which mostly leaves
permanent emotional and psychological scars. As
one rape victim
put it so eloquently: childhood sexual abuse is a life
sentence.
[35]
Ms Abrahams submitted that the trial court should have found there to
be substantial and compelling circumstances since the
Complainant did
not sustain any serious injuries and that, with the Appellant’s
personal circumstances, that should have
been sufficient to establish
such substantial and compelling circumstances. With reference
to
S v
MM
[9]
it
was also submitted that the trial court should have differentiated
between degrees of seriousness and that, accordingly, the
sentence
should be reduced to 15 – 20 years’ imprisonment.
[36]
However, as determined in s 51(3)(aA)(ii) of Act 105 of 1997 the fact
that the Complainant did not suffer serious physical
injuries is not
by itself a substantial and compelling circumstance. It is
nevertheless a relevant factor which the Court,
in order to prevent
an unjust sentence, needs to take into account as indicative of the
lesser objective gravity of the rape (See:
S
v MM
[10]
).
[37]
A lack of serious injuries is therefore not in itself a substantial
and compelling circumstance, but is merely one of the many
factors
the court may take into consideration in mitigation. As Ms
Abrahams correctly conceded, physical injuries are not
the only, or
even the most serious, injuries a rape victim suffers.
The victim impact study made by the Complainant
when she was 8 years
old clearly shows the emotional and psychological scars that
she was left with. It stated that
she was afraid that ‘Fransie’
would kill her and her parents by slitting their throats and that he
would know where
they lived and would then come to their house to do
so. It stated, furthermore, that she has no friends and that
nobody wants
to play with her.
[38]
It is clear that the entire family has been left severely
traumatised. The effect on her parents is apparent from her
mother’s victim impact report in which she stated that they
have no contact with friends or relatives or the Appellant’s
family; that they do not want them to know where they live because
the Appellant is obsessed with the Complainant; that they
had
to give up their Bar; that the Complainant had been severely
sexualised, masturbates continuously and plays sex games
with her
dolls; and that they keep her away from friends because they are
afraid that it will happen to her again.
[39]
Therefore, although the Complainant did not suffer serious physical
injuries, this is one of the worst instances of continued
sexual
abuse and rape of a very young child that this Court has come
across. I cannot find that there are substantial and
compelling
circumstances which would justify the imposition of a lesser
sentence. It would, in fact, in my view be a significant
injustice and a shockingly inappropriate and disproportionate
sanction of such a heinous crime, and would undoubtedly cause outrage
in the community, if the Appellant were to be sentenced to anything
less than the minimum prescribed sentence of Life Imprisonment.
[40]
The appeal against the sentences therefore cannot succeed either.
WHEREFORE
I make the following order:
1.
The appeal against conviction is dismissed.
2.
The appeal against the sentences is dismissed and
the sentences are confirmed, namely:
Count 1:
Life Imprisonment
Count 2:
3
(THREE) years’ imprisonment
The sentences are to be
served concurrently.
__________________
MURRAY
AJ
I
concur and it is so ordered.
___________________
MOLITSOANE
J
For
the Appellant: Ms V Abrahams
Attorney
for the Appellant
Bloemfontein
Justice Centre
BLOEMFONTEIN
For
the Respondent: Adv DW Bontes
Office
of the Director of Public Prosecution
BLOEMFONTEIN
[1]
“
Hy het my ‘gevry’”.
[2]
1968 (3) SA 339
(A) at 341C
[3]
(323/2015)
[2015] ZASCA 201
(2 December 2015) at para [14]
[4]
2010 (2) SACR 69
(SCA) at 72A and 72B.
[5]
S v Sithole and Others
1999 (1) SACR 585
(W) at 590 f – h.
[6]
1999 (2) SACR 558
(A) at 562j – 563a
[7]
2009 (111) SACR 552
at 574 at para [58]
[8]
2011 (1) SACR 40
(SCA) at para [13]
[9]
2013 (2) SACR 292 (SCA)
[10]
2013 (2) SACR 292
(SCA) at 302b – g at par [26]