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[2019] ZAKZPHC 19
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Ngobese v S (AR751/17) [2019] ZAKZPHC 19 (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not Reportable
CASE NO: AR751/17
In the matter between:
SIBONELO
BO NGOBESE
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Gorven J and Ntshulana AJ
Heard:
1 March 2019
Delivered:
29 March 2019
ORDER
On
appeal from:
Mtubatuba
Regional Court (sitting as court of first instance):
The appeal against convictions and
sentence is dismissed.
JUDGMENT
Ntshulana AJ
Introduction
[1]
This is an appeal against convictions and sentence. On 25
November 2015, the
appellant, Mr Ngobese, was convicted in the
regional court sitting at Mtubatuba, of two (2) counts of rape (in
respect of two 9
year old girls) in contravention of s 3, read
with ss 1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law
(Sexual Offences
and Related Matters) Amendment Act 32 of 2007 (the
Act) having been legally represented during his trial.
[2]
On 29 January 2016, he was sentenced to undergo life imprisonment in
respect of both
counts which were treated as one for purposes of
sentence. The court
a quo
also ordered that his name be
entered into the register for sexual offenders in terms of s 50
of the Act.
[3]
Accordingly, and in terms of section 309(1)(a) of the Criminal
Procedure Act 51 of
1977 (the CPA) read with sections 10, 11 and
43(2) of the Judicial Matters Amendment Act, 42 of 2013, the
appellant has an automatic
right to appeal against both his
convictions and sentence.
Summary of the evidence
[4]
The complainant on the first count, who will be referred to as BG,
testified through
an intermediary. So did the complainant on the
second count who will be referred to as NM. Before evidence was led,
their birth
certificates and medical reports in respect of both
complainants, contained in J88 forms, were handed into court and
accepted by
the appellant as accurate. BG was born on 10 October 2004
and NM on 9 December 2004. They were both 9 years old when
the incident took place on 1 August 2014.
[5]
Dr SL Nkosi, who examined both complainants and completed the J88s,
recorded in respect
of BG: ‘
Hymen intact with thin,
transparent edging . . . Vulva not inflamed at present. Thus no
transhymen penetration has occurred but
this does not rule out sexual
acts on the victim without penetration including attempted rape
.’
His examination took place some 14 days after the incident.
[6]
In respect of NM he observed: ‘
Hymen slightly loose for her
age and intrectus (?) opens >1x1cm. Not usual for her age.
Penetration has occurred in the past
.’ In the schematic
drawing he marked ‘
Portion without
hymen’.
[7]
BG told the court that on the day of the incident she and NM were
playing at home
and they were alone. Her grandmother was away at
Empangeni and her brothers were out playing soccer. The appellant,
who is well
known to both her and NM, came and told them to go with
him to the bush under threat to beat her. They both followed him to
the
bush near the Nkosi homestead. At the bush in the presence of NM,
the appellant lifted up BG’s skirt, undressed her panty,
opened
her thighs and made her lie down facing up. The appellant also
undressed his pants and underwear. He then lay on top
of her and
inserted his private part which he uses to urinate into her private
part which she uses to urinate. He made movements
on top of her. He
stopped and instructed her to dress. He then did the same thing to
NM. When he finished with them both he told
them to go and threatened
to beat them if they told anyone. BG eventually told her mother of
the incident. This happened because
BG was sick and her mother took
her to the clinic and she was walking slowly. When her mother asked
why she was walking slowly
BG told her what the appellant did to her.
She and NM were taken to the clinic and examined. Under
cross-examination she confirmed
making this first report to her
mother. She denied the appellant’s version that he was at his
home building a house. She
denied any knowledge of NM’s mother
in 2014 threatening to have the appellant arrested. She did not know
about any land dispute.
[8]
NM corroborated the evidence of BG in every material respect. She was
sexually penetrated
by the appellant and she witnessed the same
happen to BG at the same spot in the forest. She was a bit more
detailed then BG but
they corroborated each other about their ordeal
at the hands of the appellant in the bush.
[9]
BG’s mother testified that, when they were coming from the
clinic, BG was walking
slowly. Upon questioning her why this was so,
BG reported that the appellant had done a naughty thing to her and NM
in the bush.
She established from BG that the appellant had inserted
his private part into the private parts of BG and NM. She then took
BG
back to the clinic where a doctor examined her.
[10] The
mother of NM testified. She recalled that on 1 August 2014 she had
gone to collect a grant
at Hluhluwe. NM was not at school but at BG’s
home. She first heard from BG’s mother that the children had
been raped
and upon asking NM she confirmed this. In IsiZulu NM
reported that the appellant took his penis and inserted it into her
vagina.
Under cross examination she stated that on 1 August 2014 she
noticed NM walking in a gingerly fashion. Upon asking the reason, NM
reported that she had been stung by thorns. The witness did not
enquire any further until the issue came out. Another State witness,
Mduduzi Mlawu, testified that, on that day, he was with the appellant
at the Zikhali homestead drinking sorghum beer and that at
about
13h00 the appellant left after quarrelling with another person.
[11] The
appellant testified that he knew both the complainants in that they
are his neighbours. He
stated that there was a dispute over land
between his family and the family of the two complainants. He said
that, during the feud
in February 2014, some members of the
complainants’ family stated to his mother that the year 2014
would not end before her
child was arrested. He believed this was a
reference to him. About the day of the incident, he stated that he
was at home building
a house and later fixed a fence and remained at
home. He denied Mlawu’s version of his being at the Zikhali
homestead until
13h00. He stated that he thought the case had been
fabricated because of the families’ feud. The appellant called
no other
witnesses.
[12] The
court
a quo
rejected the appellant’s alibi and convicted
him.
Issues
[13]
Three main points were raised before us in challenging the conviction
of the appellant. They
are:
a)
That the medical evidence in respect of BG was inconclusive regarding
the question
of penetration of BG.
b)
That the doctor did not testify to confirm his findings in respect of
NM.
c)
The need for caution in evaluating the evidence of children.
[14] The
identity of the appellant is common cause; this is clear from the
evidence of all the witnesses
including that of the appellant. Any
feud, if it existed, was not between the accused and the two
complainants. There is not a
shred of evidence that the two
complainants even knew of such feud. It is common cause that the
complainants were together on the
1 August 2014. It is common cause
also that the two complainants did not make reports soon after the
incident of rape. It is common
cause that on the day 1 August 2014
there was a traditional function at the Zikhali family’s
homestead in the area. There
is no dispute that the children were not
at school.
[15] In
my view, if the children were part of some conspiracy or plot as
suggested in the appellant’s
evidence, to falsely implicate
him, it makes no sense that they did not report the matter
immediately after it occurred. The incident
only came to light
because BG was walking slowly from the clinic some 14 days later. Had
she been walking fast that day, this matter
might not have seen the
light of day. There is no doubt in my mind that the learned
magistrate correctly found that the incidents
occurred.
[16] It
is clear from the medical evidence that there was penetration of NM.
The only challenge mounted
by the appellant was that the doctor did
not testify. This would, of course, be preferable but the report was
accepted by consent
at the trial and there was no challenge by the
defence to the findings in it.
[17] In
respect of penetration of BG, in my view the court
a quo
was
correct in finding that penetration did take place despite the
inconclusive findings recorded in the J88. This, in my view,
is not
strange in the light of the passage of time. It should also be borne
in mind that penetration beyond the
labia majora
is sufficient
for purposes of sexual penetration as defined and provided for in the
Act. The inference that such penetration took
place is irresistible
in the light of the following facts:
a)
BG was lying down facing up and her panty removed with open thighs.
b)
The appellant had his pants and under pants down with his penis
exposed.
c)
He lay on top of her and made movements.
d)
The direct evidence of BG is that he inserted his penis into her
vagina. This
was not challenged.
e)
Her mother noticed a change in the way she walked, even after some
time had elapsed.
We are satisfied that BG was
penetrated at least beyond the
labia majora
.
[18] The
appellant’s counsel, in his heads, relied on the difference
between the two complainants
regarding what the appellant exactly
said upon approaching the two complainants. In my view this is
indicative of an absence of
any collusion between them. The fact that
BG does not mention a cane knife is also no indication of
discrepancies between their
versions. As can be seen from the record,
NM gave more details than did BG. In my view the versions were not
contradictory but
merely differed in detail.
[19] The
learned magistrate was clearly aware for the need to apply caution in
the evaluation of the
evidence of the two children. In his judgement
he stated:
‘
Evidence
for the State is that of the minor victims who were involved here,
which must be approached with greatest caution in terms
of the Judges
Rules’. (Vol. 2 page 134 lines 11-13)
[20]
Throughout the trial, the appellant only challenged the State
evidence based on his alibi and
his assertion that the entire
incident was concocted due to the alleged family feud. He at no stage
challenged the experience of
the two complainants in the bushes. It
is barely conceivable that two young children could fabricate and
consistently carry through
the kind of detailed account to which they
testified if it had not occurred.
[21]
Our law has long held that the approach by an appeal court to
findings of fact is that, in the
absence of a demonstrable and
material misdirection by the trial court, they are presumed to be
correct, and will only be disregarded
if the recorded evidence shows
them be clearly wrong (see in this regard
S v Hadebe and others
1997 (2) SACR 641
(SCA) at 645e-f). I am satisfied from the evidence
on record that no such misdirection was demonstrated.
[22] In
my view the trial court correctly rejected the version of the
appellant as false
beyond reasonable doubt. Given the
credible evidence of the State witnesses, which covered all the
elements of the crimes in question,
the appeal against his
convictions must fail.
Sentence
[23]
Punishment is pre-eminently a matter for the discretion of the trial
court. An appeal court can
only interfere with the sentence of the
trial court if such sentence is vitiated by irregularity,
misdirection or is so disturbingly
inappropriate that it induces a
sense of shock (see in this regard
S v Rabie
1975 (4) SA 855
(A) at 857D-F;
S v Petkar
1988 (3) SA 571
(A) at 574C).
[24] The
complainants were 9 years old at the time of the incident and the
provisions of the
Criminal Law Amendment Act 105 of 1997
accordingly
find application. This provides for a minimum sentence for each rape
of life imprisonment. To avoid this, substantial
and compelling
circumstances must be present. In
S v PB
2013 (2) SACR 533
(SCA) para 20, Bosielo JA formulated the approach by a court on
appeal against a sentence imposed under this legislation as follows:
‘
What
then is the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate court interfere
with
such a sentence imposed by the trial court's exercising its
discretion properly, simply because it is not the sentence which
it
would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of the Act should,
in my view, be
different to an approach to other sentences imposed under the
ordinary sentencing regime. This, in my view, is so
because the
minimum sentences to be imposed are ordained by the Act. They cannot
be departed from lightly or for flimsy reasons.
It follows therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are
substantial and compelling, or
not.’
[25] As
Rogers J agreed in
S v GK
2013 (2) SACR 505
(WCC), whether or
not substantial and compelling circumstances are present is not a
discretionary issue but rather involves a value
judgment by the trial
court. A court of appeal is only entitled to interfere if it is of
the view that the lower court erred in
its conclusion.
[26] In
S v Vilakazi
2009 (1) SACR 552
(SCA) para 20, Nugent JA said
that ‘it is enough for the sentence to be departed from that it
would be unjust to impose it.’
To determine whether or not it
would be unjust to impose the sentence the court is entitled to
consider factors traditionally taken
into account in sentencing,
including mitigating factors.
[27] In
S v Nkomo
2007 (2) SACR 198
(SCA), Lewis JA para 3 held as
follows:
‘
But
it is for the court imposing sentence to decide whether the
particular circumstances call for the imposition of a lesser
sentence.
Such circumstances may include those factors traditionally
taken into account in sentencing - mitigating factors - that lessen
an accused's moral guilt. These might include the age of an accused
or whether or not he or she has previous convictions. Of course
these
must be weighed together with aggravating factors. But none of these
need be exceptional.’
[28]
I
turn then to the central issue and consider all the circumstances
available to the court
a
quo
to assess whether it erred in the conclusion that no substantial and
compelling circumstances were present. Put differently, was
it unjust
to impose life imprisonment?
[29] The
appellant has no previous convictions. He was 26 years old. He was
employed when arrested.
He was in custody for 1 year and five months
prior to sentencing. His highest level of education was grade 4. The
court also considered
the reports of a Probation Officer and a
Correctional Supervision Officer. The Probation Officer noted that
the appellant had not
shown any remorse and recommended imprisonment
including imprisonment for life in terms of section 276(1)(b) of Act
51 of 1977.
The Correctional Officer recommended direct imprisonment.
[30] The
court
a quo
considered the seriousness of the crimes, the
prevalence thereof and the fact that the appellant showed no remorse.
The complainants,
as children, should have been able to trust that
the appellant would protect them from harm. He was well known to them
and a close
neighbour. Instead, he took advantage of their
vulnerability and tender ages.
[31] The
court
a quo
, in my view, was aware of the importance of taking
a victim-centred approach in offences of this nature, as laid down in
S v Matyityi
2011 (1) SACR 40
(SCA). It considered this case.
This is important to achieve proportionality and a balance between
the interests of society and
those of the appellant.
[32]
Whilst is it regrettable that no victim impact report was presented
to the court, we are of the
view that in the context of this
particular case, the court
a quo
had sufficient facts before
it to assess the proportionality and the other circumstances relevant
to sentence.
[33] The
appellant’s refusal to take responsibility for his actions
showed that he was someone
who would not easily be rehabilitated.
Not only did he rape his neighbours’ children but he also put
them through the
additional trauma of testifying and imputing
dishonesty to their version in the process.
[34]
Rape of a child under the age of 16 is a heinous and abhorrent crime,
which is why the lawmaker
has placed this type of rape in the
category of crimes attracting a life sentence in the absence of
substantial and compelling
circumstances.
[35]
In S
v
Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344 l-J, it was correctly said that ‘rape
is a very serious offence, constituting as it does a humiliating,
degrading
and brutal invasion of the privacy, the dignity and the
person of the victim.’ Despite the introduction of the minimum
sentencing
regime, there is no sign that these kinds of incidents are
on the decline.
[36]
In
S
v Jansen
1999 (2) SACR 368
(C) at 378G-379B, the court aptly put it as
follows:
‘
Rape
of a child is an appalling and perverse abuse of male power. It
strikes a blow at the very core of our claim to be a
civilised society
. . . The community is entitled to demand that
those who perform such perverse acts of terror be adequately punished
and that the
punishment reflect the societal censure.
It
is utterly terrifying that we live in a society where children cannot
play in the streets in any safety; where children are unable
to grow
up in the kind of climate which they should be able to demand in any
decent society, namely in freedom and without fear.
In short, our
children must be able to develop their lives in an atmosphere
which behoves any society which aspires to
be an open and
democratic one based on freedom, dignity and equality, the very
touchstones of our Constitution. The community is
entitled to demand
of the police that they bring those who subvert these minimum
aspirations before the courts and that the courts,
in punishing such
persons, should ensure that the sentence adequately reflect the
censure which society should and does demand,
as well as the
retribution which it is entitled to extract.’
[37]
Having considered and examined all the circumstances of this case we
are not convinced that the
court a quo erred in coming to the
conclusion that substantial and compelling circumstances which would
warrant a sentence other
than life imprisonment were not present. It
cannot be said that the sentence imposed by the court
a
quo
give rise to an injustice. Nor could the appellant point to any
material misdirections on the part of the learned magistrate. There
is therefore no basis on which to interfere with the sentence. In my
view, the prescribed sentence is indeed proportionate to the
offences
charged.
Order
[38] In
the result, the appeal against the convictions and sentence is
dismissed.
Ntshulana
AJ
I
Agree
Gorven
J