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[2019] ZAKZPHC 46
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Nxumalo v S (AR265/2017) [2019] ZAKZPHC 46 (19 July 2019)
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO.
AR265/2017
In the matter between:
ELLIAS MPISI NXUMALO
APPELLANT
and
THE STATE
RESPONDENT
O R D E RS
1.
The
application by the State in terms of
s 310A
of the
Criminal Procedure
Act 51 of 1977
as well as the application for condonation are hereby
granted.
2.
The
respondent is granted leave to appeal the sentence of 12 years’
imprisonment imposed.
3.
The
appellant’s appeal against his conviction is dismissed.
4.
In
respect of the appeal against sentence, the appellant’s appeal
against sentence is dismissed. The respondent’s cross-appeal
to
increase the sentence imposed by the court a quo is upheld. The
sentence imposed by the court
a quo
is
set aside and substituted with a sentence of 20 years’
imprisonment.
J U D G M E N T
HENRIQUES J (MASIPA J
concurring)
Introduction
[1]
On 29 February 2016 the appellant was convicted of the rape of the
complainant, seven
year old N[….] C[….] and was
subsequently sentenced to 12 years’ imprisonment. Leave to
appeal the conviction
and sentence was granted by the court a quo on
31 October 2016. It is common cause that the provisions of the
minimum sentencing
legislation, the
Criminal Law Amendment Act 105 of
1997
, applied to his conviction and that the court a quo deviated
from imposing the prescribed minimum sentence of life imprisonment.
The appellant at the time of conviction and sentence was 57 years old
and was known to the complainant and her family.
[2]
In 2018, subsequent to the appeal being enrolled for hearing, the
respondent filed
an application in terms of s 310A of the Criminal
Procedure Act 51 of 1977 (the CPA) to increase the sentence of the
appellant.
As per a directive of the Judge President of this division
dated 4 June 2018, such application was to be dealt with at the
hearing
of the appeal. It is common cause that on 24 April 2018, when
the matter served before Gorven J, he found that the provisions of
s
310A(3) of the CPA were peremptory and directed the respondent to
serve the application personally on the appellant. In consequence
thereof, the appeal and the s 310A application were adjourned sine
die.
[3]
It is common cause that a copy of the s 310A application was served
personally on
the appellant, his legal representatives as well as the
presiding magistrate in the court a quo. The presiding magistrate
confirmed
receipt of the application and filed a notice to abide the
decision of the appeal court.
[4]
When the matter served before court on 8 February 2019, Mr
Mkumbuzi
who appeared for the appellant, had not had an opportunity to
consider the respondent’s s 310A application. Consequently,
he
was given an opportunity to do so and at the next hearing date, being
25 February 2019, had filed an answering affidavit seeking
to oppose
the s 310A application and for condonation.
The
application in terms of s 310A of the CPA
[5]
It is perhaps useful at this juncture to consider the relevant
provisions of s 310A
of the CPA to give context to the affidavits
filed in the application.
[6]
Section 310A of the CPA reads as follows:
‘
(1)
The attorney-general may appeal against a sentence imposed upon an
accused in a criminal case in a lower court, to the provincial
or
local division having jurisdiction, provided that an application for
leave to appeal has been granted by a judge in chambers.
(2)
(a)
A written notice of such an application shall be
lodged with the registrar of the provincial or local division
concerned
by the attorney-general, within a period of 30 days of the
passing of sentence or within such extended period as may on
application
on good cause be allowed.
(b)
The notice shall state briefly
the grounds for the application.
(3)
The attorney-general shall, at least 14 days before the day appointed
for the hearing of the application, cause to be served
by the deputy
sheriff upon the accused in person a copy of the notice, together
with a written statement of the rights of the accused
in terms of
subsection (4): Provided that if the deputy sheriff is not able
to serve a copy of the notice, it may be served
in any other manner
that may on application be allowed.
(4)
An accused may, within a period of 10 days of the serving of such a
notice upon him, lodge a written submission with the registrar
concerned, and the registrar shall submit it to the judge who is to
hear the application, and shall send a copy thereof to the
attorney-general.
(5)
Subject to the provisions of this section, section 309 shall apply
mutatis mutandis
with reference to an appeal in terms of this
section.
(6)
Upon an application for leave to appeal referred to in subsection (1)
or an appeal in terms of this section, the judge or the
court, as the
case may be, may order that the State pay the accused concerned the
whole or any part of the costs to which the accused
may have been put
in opposing the application or appeal, taxed according to the scale
in civil cases of the provincial or local
division concerned.’
[7]
The section makes provision for the Attorney-General now the Director
of Public Prosecutions
(the DPP) to make application to a high court
to appeal a sentence imposed by a lower court, provided leave to
appeal has been
granted by a judge in chambers. Notice of such
application is to be lodged with the registrar within a period of 30
days from the
date of the passing of sentence or
within such
extended period as may on application on good cause be allowed
.
After personal service of the application by the deputy sheriff,
together with a written statement of the accused’s rights,
an
accused person may within 10 days of service of such notice lodge
written submissions with the registrar which shall be considered
by
the judge who is to hear the application.
[8]
It is common cause that the respondent was required to bring the
application within
30 days from 29 February 2016 but did not do so,
hence Mr
Singh
who appeared for the respondent sought
condonation. In the application for condonation, Mr
Singh
who
is the deponent to the affidavit explains the reasons for the delay
which can be summarised as follows:
(a) on receipt of the record on 1
February 2018 in preparation for the appeal, he ascertained
the
misdirection in respect of sentence by the court a quo, and, on 5
February 2018 an email was dispatched to Legal Aid South
Africa
informing them of the intention to cross-appeal the sentence
imposed;
(b) on 23 February 2018, an
adjournment was granted to enable the respondent to file the s
310A
application;
(c) the affidavit
acknowledges that the prosecutor in the lower court did not take any
further steps to cross-appeal the sentence nor was it brought to the
attention of the DPP, KwaZulu-Natal that the matter ought
to be
assessed to decide whether the sentence ought to be appealed against.
It was only in preparation for the appeal that these
steps were
taken;
(d) as the respondent has good
prospects of success in the cross-appeal, this outweighs the
prejudice caused by the non-compliance with the 30 day period
prescribed in the section; and
(e) the affidavit also deals at
length with the submissions in respect of the alleged misdirections
of the court a quo on sentence and the merits of the cross-appeal.
[9]
In summary the appellant opposes the application on the following
basis:
(a)
it has been filed outside of the 30 day time period stipulated in s
310A;
(b) the respondent has not shown
good cause as to why condonation ought to be granted;
(c) the explanation
proffered and the
ipse dixit
of the State Advocate is an
insufficient explanation for the failure to comply with the time
limits;
(d) although there may be
prospects of success on appeal, this is not sufficient reason to
grant condonation;
(e) the written statement of
rights was not properly served on the appellant at the time the
application was served by the sheriff and the appellant was unable to
exercise his right to make written submissions. As a consequence,
the
appellant’s fair trial rights envisaged in s 35(3) of the
Constitution of the Republic of South Africa, 1996 have been
breached;
(f) there was no
misdirection or error on the part of the court a quo in imposing the
sentence it did, and this court ought not to interfere with the
sentence imposed by the court a quo; and
(g) a further submission made by
Mr
Mkumbuzi
was that s 310A made provision for the application
to be granted by a single judge in chambers and not in terms of the
procedure
contained in the Judge President’s directive.
[10]
Turning now to consider the merits of the condonation application and
the explanation provided,
firstly, the Judge President of this
division has indicated that such applications ought to be dealt with
at the hearing of the
appeal. In my view there does not appear to be
anything wrong with this procedure being followed given the workload
of judges in
the division and possible delays in placing such
application before a single judge in chambers. More importantly,
among the considerations
when deciding on condonation are the merits
of the appeal and there seems no good reason to burden three judges
with deciding this,
when two judges can deal with this at the actual
appeal hearing. In any event the high court can regulate its own
proceedings.
[11]
The above practice appears to have been followed in this division on
a number of occasions and
I was specifically referred to
Sihle
Gedleyihlekisa Mfeka v The State
case number AR218/2016, an
unreported judgment of this division by Seegobin J (Koen J
concurring), delivered on 1 February 2019.
There does not appear to
be any bar to the procedure as set out in the Judge President’s
directive being followed, provided
the procedural requirements of s
310A of the CPA have been complied with and an appellant is provided
an opportunity to file written
submissions by the time of the hearing
of the application.
[12]
Although Mr
Mkumbuzi
in his heads of argument submitted that
the written statement of rights had not been properly served on the
appellant, this point
was in my view correctly not pursued at the
hearing of the appeal given the return of service which reflected
compliance with the
section. In addition, apart from the application
being served on the appellant it was also served on his attorneys of
record, Legal
Aid South Africa.
[13]
I have carefully considered the explanation provided by the
respondent for the failure to bring
the application within the time
periods stipulated in s 310A. Among the aspects which this court must
consider in granting condonation
is whether or not good cause has
been shown. Good cause involves the consideration of the prospects of
success on appeal as well
as whether or not a reasonable explanation
has been provided for the delay, convenience of the court, delays in
the administration
of justice and the interests of the parties in
bringing finality to the matter.
[1]
The respondent concedes that the application was instituted a
considerable time after the sentence was imposed by the court a quo.
Although the adequacy of the explanation leaves much to be desired,
and the delay is a long one, as the respondent has good prospects
of
success on appeal, the application in terms of s 310A and condonation
ought to be granted.
[14]
In granting condonation, however, it must be borne in mind that the
application for condonation
has been decided based on the particular
facts of this matter and that the court was alive to the submissions
made by Mr
Mkumbuzi
that the DPP ought not to be given carte
blanche to bring an application such as this where there has been a
considerable delay
and an unsatisfactory explanation tendered. The
fact that condonation has been granted in this matter ought not to be
viewed as
this court countenancing such conduct for future matters.
Each matter will be dealt with on its own peculiar set of facts.
The
appellant’s grounds of appeal against conviction
[15]
Turning now to the appeal against the conviction, there are several
grounds on which the appellant
challenged the conviction, namely:
(a) the court a quo erred in
administering the oath in relation to the complainant and the
second
State witness, both of whom were child witnesses;
(b) the evidence of the
complainant, a single witness, was not satisfactory in all material
respects and was unreliable;
(c) the court a quo erred
in dealing with the medical evidence presented and committed
a
misdirection in that no evidence was tendered by the doctor that
there was any interference with the ‘
hymenal
diameter
’; and
(d) the court a quo committed a
misdirection in finding there was no bias or malice by the
complainant and her family against the appellant and that they had a
motive to lie and falsely implicate him.
[16]
At the commencement of the proceedings in the court a quo, both the
appellant and his legal representative
confirmed that the provisions
of the minimum sentencing legislation had been explained to him and
that the prescribed minimum sentence
of life imprisonment was
applicable. He pleaded not guilty and his alibi defence was that he
was at his place of employment at
Z[....] Construction on 13 January
2015. In addition, the appellant submitted that the complainant was
influenced by her parents
to fabricate these false allegations
against him.
[17]
The State led the evidence of the complainant as well as her two
sisters, T[….] and N[….]
C[….], her mother N[….]
C[….] and the investigating officer Constable Ngobese. It must
be borne in mind that
at the commencement of the trial, the
prosecutor sought to use the services of an intermediary in order for
the evidence of the
complainant and that of her one sister to be led
given their age and the nature of the proceedings.
[18]
Mr
Mkumbuzi
submitted and is quite correct that the provisions
of inter alia, ss 162, 163 and 164 of the CPA apply when evidence of
child witnesses
is to be led. In summary he indicates that the
witnesses, specifically the complainant were not properly admonished
to tell the
truth before giving evidence. Consequently, this court
has to consider the transcript of the proceedings in relation to how
the
complainant was admonished prior to her testifying.
[19]
Section 164 of the CPA enjoins a court to hold an enquiry in
circumstances where it is apparent
the witness does not understand
the nature and import of the oath or the affirmation as a consequence
of ignorance arising from
youth, poor education or any other
cause.
[2]
The enquiry which the court conducts is not a rigid one and a court
resorts to admonishing a child witness when it appears the
witness
does not understand the nature of the oath.
[3]
A presiding officer is required to form an opinion that a witness
does not understand the nature and import of the oath in order
to
admonish a child witness.
[20]
The transcript of the proceedings indicates that initially the court
for some inexplicable reason
required the prosecutor to hold the
competency enquiry. However, what is also evident from the transcript
is that the court then
conducted the enquiry as it was enjoined to do
and performed the competency enquiry. It is clear from the answers to
the questions
that the complainant who was eight years old at the
time she testified, did not understand the nature and import of the
oath due
to her youthfulness. Consequently, the court made a
conscious decision that the complainant be admonished.
[21]
In relation to the form that such admonishment must take, the
Constitutional Court in
Director of Public Prosecutions, Transvaal
v Minister of Justice and Constitutional Development, & others
[4]
stated that all that is required is for a witness to be able to
understand what it means to relate what occurred and that a child
witness understands what it means to tell the truth.
[22]
The questioning by the court in relation to whether or not the
complainant understood what it
meant to tell the truth was elementary
but seemed to be appropriate for a child of such youthfulness. In
addition, the court a
quo was best suited to observe the
complainant’s demeanour when she answered the questions. The
admonishment was properly
administered in my view and consequently
the challenge to the admissibility of the complainant’s
evidence namely, that she
was not correctly admonished to tell the
truth on the facts of this matter are without merit and must be
dismissed.
[23]
Similarly with the complainant’s sister, T[….] (who
wanted to be called by her second
name N[….] when she
testified), the court after conducting a competency test admonished
her as it was apparent she did not
understand the nature and import
of the oath on questioning her. In relation to N[….], the
elder of the sisters who was
15 years old at the time she testified,
the court did not admonish her but established that she understood
the nature and import
of the oath and consequently the witness took
the oath and was sworn in.
[24]
I agree with the submission of Mr
Singh
that one cannot be an
armchair critic in these matters and often there is no textbook
approach to follow in each matter. It often
depends on the presiding
officer’s view of the demeanour of the witness. Of further note
is that after the court had engaged
in the process of the competency
test as well as admonishing the complainant, the appellant’s
legal representative was pertinently
asked whether there was anything
his wished to add or raise a complaint about the nature of the
competency test and the admonishment.
The record indicates at page 46
line 6 that no complaint was ever raised at the trial that the
complainant was not correctly admonished
nor that the competency test
had not been properly performed. Similarly no complaints were raised
by the appellant’s legal
representative in relation to the
manner in which the competence of these witnesses was established nor
the manner in which they
were admonished and took the oath.
Consequently, the evidence of these witnesses has been properly
received.
[25]
Turning now to the merits of the conviction and the evidence
presented at the trial, the complainant
testified that on the day in
question, she was en route to M[….]’s home to return a
towel which her mother had previously
borrowed to wrap her baby
brother in. As she approached the appellant’s home which is on
the way to M[….]’s
home, the appellant chased her,
grabbed her and threw her over his shoulder. He then carried her to
his home and pushed her inside
through a window. The appellant
entered the home through the front door alone and closed the door.
[26]
At the time the complainant was dressed in a skirt, underwear and
t-shirt. She tried to run away
but the appellant pulled her by her
skirt and she fell down and hurt the back of her head. He then
undressed her and made her lie
on his bed on her back with her knees
pulled up and legs apart. The appellant removed his pants and
inserted his penis into her
vagina. At the time she informed him that
she did not like what he was doing. It was painful and he had his
penis in her vagina
for a long time. After a while when she was
leaving he said to her ‘
go
away, I was not even interested anyway
’. Whilst on her
way to M[….]’s home, her sister T[….] who had
come to look for her, asked her where she
was coming from. T[….]
told her that it was late in the afternoon and that they should
return home.
[27]
When her sister questioned her as to where she was coming from, the
complainant, who was crying,
told her that she was coming from uncle
M[….]’s (being the appellant) home and informed her that
he had grabbed her
and put her in the house through the window. She
told her sister that she attempted to run away but he had pulled her
and she had
hurt the back of her head.
[28]
The two sisters then returned home to N[….] and T[….]
reported to her what had
transpired. On the day in question they were
home alone as both their parents were out. On her mother’s
return that afternoon,
the complainant and her two sisters reported
what had happened. Because their parents did not have money they only
travelled to
the hospital some time later.
[29]
The complainant recalled attending at the Montebello Hospital and the
doctor on examining her
told her parents that she had been raped. The
police were called and took them to Ndwedwe Police Station where her
mother made
her statement. She also recalled her mother advising the
police person that she had gone to collect her pension and when she
observed
her taking a bath she noticed that she was passing urine
very slowly and having difficulty. On their return from the police
station
she confirmed that they were involved in an accident and the
car collided with a bus. They were transported to the hospital for
treatment of their injuries and the following day they travelled with
the investigating officer Constable Ngobese to Ndwedwe to
arrest the
appellant. The complainant pointed the appellant out to the police.
[30]
She denied that she would make up any stories to falsely implicate
the appellant and confirmed
that he had raped her in his bedroom. She
testified that at the time the appellant resided with M[….]
and his son P[….],
but they were not there on the day of the
incident. Although she tried to scream when they were in the house
together and he was
raping her, the appellant threatened her with a
knife and a doll.
[31]
She also confirmed that her mother had examined her and informed her
that she had been raped.
She confirmed that she had forgotten to
inform the police that the appellant had threatened her with a knife
but she did inform
her mother and sisters of this and it appears that
they had forgotten about this too. She disputed the appellant’s
version
that on the day in question, his girlfriend and P[….]
were at home. She denied this and indicated that her sisters had also
gone to M[….]’s house to confront him about why he had
raped her and on their arrival at his home found him at the
doorway
with his penis hanging outside of his trousers.
[32]
N[….] C[….] testified she recalls the incident very
clearly as it was her sister,
the complainant’s birthday. That
morning their mother had instructed the complainant to return the
towel to M[….]’s
house. At approximately midday, N[….]
left. When it started getting late and the complainant had not
returned, she went
looking for her. She found the complainant walking
on the road and she was crying. She asked the complainant where she
was coming
from and the complainant informed her that she was coming
from M[….]’s home as when she was walking to M[….]’s
house, he had chased her and grabbed her and put her in his house
through the window and closed the window. He then came into the
house
and when she tried to run away he closed the door. He removed her
skirt and underwear and inserted his penis into her vagina.
Thereafter he gave her a doll which makes a noise saying ‘I
love you’. He also showed her a knife and threatened that
if
she ever told anyone at home what had happened he would stab her.
[33]
This conversation took place on the road whilst they were going home
and on their arrival at
home they informed their sister N[….]
what had happened. N[….] confirmed that all three of them went
to the appellant’s
home to confront him about what he had done
to the complainant and that they found him there naked. He kept quiet
even though they
questioned him a number of times. They then left the
appellant’s home and returned home. M[….] informed their
mother
what had transpired and their mother then informed their
father.
[34]
During cross-examination N[….] confirmed that she had
proceeded to M[….]’s
house and found her and the
grandfather there and asked her about the complainant’s
whereabouts. M[….] informed her
that the complainant had not
arrived there. N[….] confirmed that her family and the
appellant’s were no longer getting
along but this was as a
consequence of the incident and denied that her father had assaulted
the appellant or that they had an
issue concerning cats and
chickens.
[35]
N[….] confirmed that she made a statement to the police and
that the incident was reported
to the police a few days after the
incident as their parents had no money at the time. In relation to
the difference between her
evidence in court and in her statement,
she confirmed that the reason why she did not inform the police at
the time of making the
statement that they had gone to the
appellant’s house to confront him was because the police had
never asked her that question.
She denied that she was falsely
implicating the appellant because her family had told her to do so.
She was further adamant that
it was the appellant who had raped her
sister.
[36]
She confirmed that the appellant worked at C[….]’s but
did not know about him working
at Z[....] Construction Company. She
disputed that the appellant’s son and wife were always at home
as they were unemployed.
She indicated that they were not always at
home because they would go away with the appellant to C[….]’s
home.
[37]
N[….] C[….] testified that the appellant was their
neighbour and that she knew
about the rape as the complainant had
relayed the story as to how she was raped to their sister T[….],
and, that T[….]
had in turn reported this to her when they
arrived home. She confirmed that after T[….] had relayed to
her what the complainant
had told her, she confirmed this with the
complainant. The three of them then went to the appellant’s
home to confront him
about what had transpired. They were standing a
distance from his home and he was standing by the door, naked on his
upper body
but dressed on his lower body. His penis was showing
outside of his pants. They confronted him about what he had done to
the complainant
and initially he kept quiet and did not respond. He
then chased them away and insulted them using vulgarity. He informed
them that
they should leave his home or he would catch them and do
the same thing to them that he had done to the complainant.
[38]
They then returned home and when their mother arrived later that
evening they made a report to
her about what had transpired. N[….]
confirmed that the appellant resided with his wife and child but they
did not see them
on the day in question, specifically when they went
to the appellant’s home to confront him about what had
transpired earlier
on that day with the complainant.
[39]
She also confirmed that they had made a report to their aunt earlier
that day as their aunt had
heard the complainant crying. Their aunt
examined the complainant and confirmed that she had been raped and
said they should tell
their mother when she returned home that day.
N[….] confirmed that she did not tell her mother when she
returned that the
complainant had been examined by her aunt, but she
confirmed that she did inform their mother that they had confronted
the appellant
earlier on.
[40]
She further confirmed that although her statement to the police does
not record that they had
gone to confront the appellant, she did
mention it and possibly the police officers did not take it down. She
also testified that
she had forgotten to inform the court that the
complainant had mentioned to her that the appellant had threatened
her with the
knife and promised her a doll. She confirmed that she
had mentioned to the police the aspect relating to the doll and the
knife
but they had forgotten to mention it when they were taking down
her statement.
[41]
N[….] further confirmed that the appellant and her family were
no longer on good terms
with each other given this incident and also
that she knew that the appellant’s wife was not at home on the
day in question.
The previous day she had overheard the appellant’s
wife speaking with her mother informing her mother that she was going
to her parental house at Umdloti and thereafter to C[….]’s
place as they were working with the municipality on the
roads. She
also testified that she observed the appellant on the morning of the
incident as he had greeted her father before her
father had gone to
the pension office.
[42]
N[….] confirmed that initially her father did not believe that
the complainant had been
raped. She indicated that on the day of the
incident they were informed that her parents had gone to fetch their
pension money
but they did not have any money left as on the same day
they purchased groceries. They went to the police and to the hospital
after
her mother had borrowed money at M[….]’s homestead
to enable them to do so. She further disputed the appellant’s
version that the windows are too high for him to put a person inside
the house through the window. She testified that this was
not correct
as the windows of the RDP houses are not high and there are
approximately four rows of bricks before the window. One
can climb or
jump into the home through the window and the appellant’s bed
is next to the window. She confirmed that on the
day in question the
appellant’s son was not at home as he had left with his mother.
[43]
Although their father did not initially believe that the complainant
had been raped by the appellant,
he subsequently changed his mind and
indicated that they should take the complainant to hospital to be
examined as he was afraid
that she had contracted HIV and needed to
be treated for this. The reason why her father did not believe the
complainant had been
raped was because he was on very good terms with
and was very good friends with the appellant. They would often borrow
items and
exchange items between their families when they did not
have and her father and the appellant would give each other tobacco.
[44]
The complainant’s mother, N[….] M[….] C[….]
confirmed the appellant
is a neighbour and does not live a far
distance away from their home. She indicated that on the day in
question she had gone to
purchase groceries which was the day of the
complainant’s birthday. She confirmed that she had sent the
complainant to M[….]’s
home to return a towel which she
had previously borrowed to carry her child. The children reported to
her on their return that
the appellant had raped the complainant when
she was passing by his home to go to M[….]’s. The
appellant had chased
her, carried her and thrown her through the open
window into his home because the bed is next to the window.
[45]
She confirmed that she was informed that earlier on that day the
children had gone to fetch firewood
and that when T[….]
returned, she realised that the complainant was not back yet and went
to look for her. She found the
complainant crying and they confronted
the appellant who was at the door of his home with his penis hanging
outside of his pants.
She confirmed that the children made a report
to her that the appellant indicated if they made a report to their
parents he would
slit their throats with a knife.
[46]
She confirmed having examined the complainant and because they did
not have money and the father
of the children was not working, she
borrowed money and took the complainant to the Montebello Hospital to
be examined. This was
the reason why there was an initial delay in
the complainant being examined. They were then fetched by the police
to attend at
the Ndwedwe Police Station to lay a complaint against
the appellant. On their way home, the bakkie they were travelling in
was
involved in an accident with a taxi and they were injured. It was
due to the accident and the injuries sustained that there was
a
further delay in the investigating officer fetching them to take the
complainant to be examined at the Mahatma Gandhi Hospital.
[47]
This witness confirmed that she had made two statements to the police
and the police did not
read the statements back to her. This was the
explanation for the differences in her evidence and what was recorded
in the statements.
She confirmed that the appellant’s wife and
child had left some time prior to the incident and no longer resided
with him
on the day of the incident.
[48]
In relation to the medical evidence, the J88 marked exhibit “D”
was handed in by
consent and no evidence was presented by the doctor
who conducted the examination at Mahatma Gandhi Hospital on 20
January 2015.
It was further recorded that the complainant had been
involved in a motor vehicle collision and had been treated for such
injuries
at the Montebello Hospital. A further note was handed in
from Montebello Hospital indicating that on the day the complainant
and
her family attended there, they were instructed to proceed to the
crisis care clinic at Mahatma Gandhi Hospital for the J88 to be
completed and no examination was conducted at the Montebello Hospital
in relation to the allegation of rape. Such note was signed
by Dr N
Gordon.
[49]
The J88 completed by Dr Raksha Ramjiawan on 20 January 2015
incorrectly reflects the complainant’s
age as being four years
old and records a report was made by the complainant that a known
male, her neighbour, pushed her into
his home and inserted his penis
into her vagina. The report reflects the hymen as being annular in
shape. The complainant was examined
on the evening of the alleged
rape by her mother who noticed that she had been interfered with. Her
aunt also examined her on the
same day. Dr Ramjiawan concluded that
the complainant had been raped as is evident from exhibit “D”
and that the complainant
made a report to her that she was raped by a
neighbour, it being undisputed that the appellant is the
complainant’s neighbour.
In addition, the J88 records the
injuries that the complainant sustained at the hands of her alleged
rapist.
[50]
The appellant testified in his defence and called his son, L[….]
M[….]as a witness.
This witness unfortunately did not
corroborate his alibi that he was at work at the time of the alleged
incident or that they were
living with the appellant at his home. In
fact, his son testified that at the time of the commission of the
rape the appellant
was staying alone at home as he and his mother had
gone visiting during that period. In addition, the appellant did not
call any
witness from his employer to confirm that he was at work at
the time the offence occurred even though he testified about this.
The fact that the appellant was residing with his family could also
not be confirmed by the investigating officer.
[51]
The appellant testified that on the day of the incident he was not at
home. His wife and son
were living with him at the time and he was
employed at Z[....] Construction four days a week from Monday to
Thursday, and on Friday
and weekends he was employed at C[….]’s
home where he worked in the yard and tavern.
[52]
He confirmed that the complainant’s home was very close to his
and that he knows the complainant
and her family. He did not have a
good relationship with the children’s parents, but there were
no problems between him and
the children prior to this criminal case.
During cross-examination of the State witnesses his legal
representative put to the witnesses
that the reason for the bad
relationship between the complainant’s parents and himself
arose as a consequence of them deliberately
letting their chickens
into his yard to eat his crops. An altercation had arisen as his cat
had then killed some of their chickens.
[53]
This version changed when he was cross-examined by the prosecutor. He
mentioned for the first
time that the complainant’s mother had
put her up to falsely implicating him in the offences. The reason
given for this by
the appellant was as the complainant’s father
had accused him of having a relationship with the complainant’s
mother.
The appellant indicated was the source of the animosity
between the two families and resulted in them not being on good terms
at
the time of the incident. He denied the allegation of rape and
testified that he first heard of the allegation on the day of his
arrest when the complainant and her mother pointed him out to the
police in a police van. He knew all the children and was told
of the
alleged incident but was never told at the time of his arrest when
the incident is alleged to have occurred.
[54]
The appellant’s son confirmed that for a period of five days
before his arrest they were
not at home and the appellant was
residing at home alone. He also indicated that he was aware that his
father worked at C[….]’s
but did not know anything about
his father being employed at Z[....] Construction.
Analysis
[55]
Having regard to the totality of the evidence, the court a quo in my
view correctly rejected
the appellant’s version and most
notably even his own alibi witness did not corroborate his version.
Although the complainant
was a single witness in relation to the
actual incident, in my view, she testified in a satisfactory fashion
in material respects.
The differences in her evidence in court and
what was recorded in her statement and / or not recorded was
adequately explained
by her. Although there are differences between
her evidence and that of her sisters, these are not material to her
identification
of the appellant and what transpired when he raped
her. It is also consistent with the court a quo’s view that the
evidence
of these witnesses was not ‘
rehearsed
’.
[56]
In addition, the complainant made a report to her sister shortly
after the incident occurred.
When they confronted the appellant later
that day at his home, his wife and son were not there and he
threatened them using vulgarities.
[57]
The medical evidence presented corroborates the complainant’s
version that she was raped.
The delay in reporting the incident and
in the complainant being examined by a doctor was also explained.
Significantly, despite
the delay, the medical examination of the
complainant showed signs consistent with rape. This finding was not
challenged. In addition,
it was never disputed that the complainant
was examined by her mother on the day of the alleged incident and
that her mother found
‘
some
interference
’.
[58]
As regards the complaint that the complainant and her family lied and
fabricated the evidence
to falsely implicate the appellant, this too
must be rejected. It is common cause and not disputed that the
appellant was known
to the complainant and her family, and apart from
being their neighbour, enjoyed a close relationship with the family
and had a
good relationship with the complainant’s parents. He
would often attend at their home for traditional beer and they would
do likewise. In addition, as with all good neighbours they often
borrowed items they needed from each other.
[59]
The appellant’s home was a few doors away from the
complainant’s family home and
he knew the complainant’s
family. Although it was common cause that there was an argument in
relation to the chickens,
the complainant’s mother testified
that they were on good terms as when the appellant spoke to her
family about this, he
spoke to her in what she termed ‘
a
good manner’
. In addition, the appellant was seen and
heard greeting the complainant’s father on the morning of the
incident. This is
inconsistent with the appellant’s version
that there was bad blood between them.
[60]
All the State’s witnesses testified that it was this incident
which soured the relationship.
Most notably, the version which arose
during cross-examination of the appellant, was never put to the
witnesses nor did he inform
his legal representative that the reason
for the relationship souring was as the complainant’s father
had assaulted him as
he accused him of having an affair with the
complainant’s mother.
[61]
On a conspectus of all the evidence the appellant was correctly
convicted of raping the complainant
by the court a quo.
The
appeal against sentence and the State’s cross-appeal to
increase the sentence
[62]
The appellant submits that there is a disparity between the sentence
imposed and his personal
circumstances, although the court a quo
properly considered the existence of substantial and compelling
factors and applied the
proportionality test. Mr
Mkumbuzi
in
his heads of argument submitted that lesser sentences have been
‘meted out by the courts’ to persons like the appellant
who have been convicted of raping minor children. In this regard he
relied on the decisions in
S v Abrahams
;
[5]
Monageng v S
[6]
and
Cele v S.
[7]
[63]
Whilst there are decisions in which lesser sentences have been
imposed for the rape of a minor,
each case is decided on its own
particular set of facts. Decisions in other cases are not meant to be
‘straight jackets’
for a sentencing court. Ultimately
each matter must be decided on its own peculiar set of facts.
[64]
The grounds on which the State appeals the sentence and submits the
court
a quo
committed misdirections of law are the following:-
‘
25.
. .
a. The trial court did not pronounce expressly or
tacitly on the existence of substantial and compelling circumstances,
in order to justify a deviation from the prescribed minimum sentence
of life imprisonment.
b. The rape of the complainant fell squarely within
the realm of Part 1 of Act 105 of 1997. The applicable sentence
was
life imprisonment.
c. The court made, with respect a shocking
and insensitive statement that since there was no hymenal penetration
but vulval penetration instead, that it counts in favour of the
appellant as a mitigating factor.
d. The court found as a mitigating factor that the
appellant stood trial and did not abscond.
e. The
court a quo
ignored completely the
gravity of the offence, thus not taking into account all factors
relevant for sentencing. The triad of factors
was ignored
completely.’
[8]
(Footnotes omitted)
[65]
Mr
Singh
submitted that the court failed to consider the
aggravating circumstances of the offence being the fact that the
complainant was
raped and humiliated on her birthday, the trauma of
the incident and the resultant effect of the rape. The appellant also
pleaded
not guilty and put the complainant and her family through
further trauma by forcing them to testify and relive details of the
rape.
The appellant did not display any remorse.
[66]
In respect of the appellant, Mr
Singh
submitted that his
personal circumstances namely that he was 57 years old at the time of
sentencing, had three children, was gainfully
employed earning R500
per fortnight and was a first offender were neutral factors given the
aggravating factors. He submitted further
that the appellant never
expressed any remorse and was therefore not a candidate for
rehabilitation. Given the serious nature of
this offence, being rape,
two of the four pillars of sentencing must come to the fore being
retribution and deterrence. In matters
of this nature he submitted
that the emphasis is placed on deterrence and retribution and
rehabilitation plays a smaller role.
[9]
[67]
Given the aggravating features referred to above, the appellant’s
circumstances and any
mitigating factors which the court may find do
not on their own or cumulatively constitute substantial and
compelling circumstances
justifying the court from deviating from a
prescribed minimum sentence of life imprisonment.
[10]
In light of these misdirections this court is at liberty to consider
sentencing afresh and to also consider the application to
increase
sentence.
[68]
If one considers the proceedings in the court a quo, the charge sheet
made specific reference
to the provisions of the minimum sentencing
legislation. These provisions were explained to the appellant prior
to the proceedings
commencing in the court a quo
,
and the
appellant who was legally represented at the time was fully aware
that if convicted, he faced a possible sentence of life
imprisonment.
[69]
The only substantial and compelling factor which the court a quo
alluded to was the fact that
there was ‘
vulval
penetration and not hymenal penetration’
. It is trite
that the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
defines sexual penetration as:
‘
.
. .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;.
. .’
[70]
This was not a factor which on the facts of this matter constituted a
substantial and compelling
factor.
Section 1
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act defines
this as
rape and the absence of hymenal penetration was a clear misdirection
of the court
a quo
.
[71]
This finding of the court a quo and the comments made on record does
not detract from the fact
that the complainant, a seven year old girl
was raped. If the court a quo was unclear regarding the medical
evidence presented,
then the doctor who examined the complainant
could have been called to testify.
[72]
The aggravating features of this matter cannot be ignored and
consequently the starting point
when sentencing the appellant would
have been the prescribed minimum sentence of life imprisonment. The
Supreme Court of Appeal
(the SCA) has repeatedly endorsed the views
expressed in
S v Malgas
[11]
that the starting point is the minimum sentencing legislation and
that a court must not depart from such sentence lightly or for
‘
flimsy reasons’
.
[73]
The respondent submits that a sentence of 12 years’
imprisonment is shockingly and
disturbingly inappropriate given the
circumstances. The court a quo committed several misdirections which
are evident on the judgment
on sentence, namely, the finding that
this was an isolated offence and the finding that the appellant was
not a paedophile. Further,
the fact that the appellant attended all
his court appearances was a mitigating factor and he was a candidate
for rehabilitation
and reformation. In addition, the court found that
as there was no hymenal penetration but vulval penetration this
constituted
a substantial and compelling circumstance.
[74]
The personal circumstances of the appellant, he being 57 years old,
with three adult children
and him being employed was not out of the
ordinary and did not constitute substantial and compelling
circumstances as envisaged
in
Malgas
.
[12]
Having regard to these it is clear that the court a quo committed a
misdirection warranting this court to allow the cross-appeal
and also
allowing the appeal court to apply its mind to sentencing afresh.
[75]
Whilst I acknowledge the circumstances of the offence, what I cannot
lose sight of is the fact
that the appellant was a first offender and
was 57 years old at the time of conviction and sentence. I agree with
the submission
by Mr
Singh
that the appellant did not display
any remorse, and the court a quo’s findings in relation to his
demeanour that this was
a display of remorse, I do not agree with.
Similarly the SCA has expressed its sentiments that this is not a
true sign of remorse.
The court a quo speculated and appeared to be
sympathetic toward the appellant as it found the appellant’s
demeanour demonstrated
remorse.
[76]
I have had regard to a number of decisions in relation to the rape of
a minor under these circumstances.
In
Director of Public
Prosecutions, Grahamstown v Peli
[13]
the SCA alluded in its judgment to the fact that if a trial court
evaluates neutral factors advanced during mitigation of sentence
as
constituting substantial and compelling circumstances, this
constitutes a misdirection which justifies interference on appeal
in
respect of sentence. The SCA increased the sentence of the appellant
in that matter from six years to life imprisonment.
[77]
It must also be borne in mind in terms of Section 28 of the
Constitution of the Republic of South
Africa Act 108 of 1996 in
addition to basic nutrition, shelter and care:
“
Every
child has the right to be protected from maltreatment, neglect, abuse
or degradation.”
[78]
It is regrettable that despite the provisions of Section 28 of the
Constitution, children continue
to be physically and sexually
exploited and there is an increase in such offences. This court
as upper guardian of minors
has a duty to act in the best interest of
minors and impose appropriate sentences to those convicted to
sexually abusing minors.
[79]
In
S v Chapman
[14]
the late Mohamed CJ held as follows:
“
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. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos
of the constitution
and to any defensible civilisation
.”
[80]
However given the personal circumstances of the appellant
specifically his age a sentence other
than one of life imprisonment
is appropriate. The appellant is 58 years old and approaching
the twilight years of his life
and to impose a term of life
imprisonment would be unduly, harsh and severe in the
circumstances.
[15]
[81]
In addition, to increase the sentence and impose a
sentence of life imprisonment
would be disproportionate in the
circumstances having regard to the decision of
S v Malgas.
Given
the personal circumstances of the appellant, specifically his age, a
sentence other than one of life imprisonment is appropriate.
[16]
Consequently, in my view, taking into consideration all the relevant
facts and circumstances when considered holistically, and
having
regard to the advanced age of the appellant, a sentence of 20 years’
imprisonment appears to be appropriate.
[82]
In the result the following orders will issue:
1. The application by
the State in terms of
s 310A
of the
Criminal Procedure Act 51 of 1977
as well as the application for condonation are hereby granted.
2. The respondent is
granted leave to appeal the sentence of 12 years’ imprisonment
imposed.
3. The appellant’s
appeal against his conviction is dismissed.
4.
In
respect of the appeal against sentence, the appellant’s appeal
against sentence is dismissed. The respondent’s cross-appeal
to
increase the sentence imposed by the court a quo is upheld. The
sentence imposed by the court a quo is set aside and substituted
with
a sentence of 20 years’ imprisonment.
HENRIQUES J
I agree
MASIPA J
CASE
INFORMATION
APPEARANCES
Counsel for
the Appellant
: Mr P
Mkumbuzi
Instructed
by
: Legal
Aid South Africa
Durban Office
The Marine Building
22 Dorothy Nyembe Street
Durban
Ref: P Mkumbuzi / HCU
Tel: 031 304 0100
Email:
mbalim@legal-aid.co.za
Counsel for
the Respondent
:
Mr K L
Singh
Instructed
by
:
Director of Public Prosecutions
88 Joe Slovo Street
Durban
Tel: 031 334 5181 / 083 265 0981
Ref: Kelvin Singh
Email:
kesingh@npa.gov.za
Date of Hearing
:
8 February 2019
25 February 2019
Date
of Judgment
:
19 July 2019
[1]
Gumede v Road Accident Fund
2007 (4) SA 304
at 307D-G,
Harris
v Absa Bank t/a Volkskas
2006(4) SA 527 (T) at 528 I-J,
Silber
v Ozen Wholesalers (Pty) Ltd
1954 (2)
SA 354
(A)
at 352
H-353 A
[2]
S v B
2003 (1) SACR 52
(SCA) para 15.
[3]
S v Swartz
2009 (1) SACR 452
(C) paras 7-14.
[4]
Director of Public Prosecutions, Transvaal v Minister of Justice
and Constitutional Development, & others
2009 (4) SA 222
(CC) para 165.
[5]
S v Abrahams
2002 (1) SACR 116 (SCA).
[6]
Monageng v S
[2009] 1 All SA 237 (SCA).
[7]
Cele v S
[2012] 4 All SA 182 (KZP).
[8]
Respondent’s Heads of Argument para 25.
[9]
See
Director of Public Prosecutions, Pretoria v Mtshali
2016
(2) SACR 463
(GP) para 11.
[10]
See
S v AM
2014 (1) SACR 48
(SCA) para 17;
S v PB
2013
(2) SACR 533
(SCA) para 20.
[11]
S v Malgas
2001 (2) SA 1222 (SCA).
[12]
S v Malgas
2001 (2) SA 1222
(SCA) para 25.
[13]
Director of Public Prosecutions, Grahamstown v Peli
2018 (2)
SACR 1
(SCA) para 12.
[14]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 344 J to 344 A
[15]
S v Hewitt
2016 JDR 1079
(SCA) at paragraph 15,
S v Seedat
2017 (1) SACR 141
SCA at paragraph 41
[16]
See
S v Hewitt
2017 (1) SACR 309
(SCA) para 15;
S v Seedat
2017 (1) SACR 141
(SCA) para 41.