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[2019] ZAKZPHC 75
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Khoza v S (AR 278/18) [2019] ZAKZPHC 75 (22 November 2019)
SAFLII
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Certain
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO: AR
278/18
In
the matter between:
SANDILE
PETROS KHOZA
Appellant
and
THE
STATE
Respondent
ORDER
In
the result, the following order is made:
(a)
The appeal in respect of conviction and sentence by the court a quo
dated 14 September
2017 succeeds to the extent that:
‘
1.
The conviction and sentence imposed by the court a quo is hereby set
aside and is substituted
with the following order
2. (a) The
accused is found guilty of sexual assault.
(b)
The accused is sentenced to 10 years imprisonment.
3.
The sentence of 10 years imprisonment is ante-dated to 14 September
2017.’
APPEAL JUDGMENT
Delivered on: 22 November
2019
Masipa
J (Radebe J concurring):
Introduction
[1]
On 14 September 2017, the appellant was convicted by the Regional
Court, Ulundi on
one count of rape read with the provisions of the
s
51(1)
of the
Criminal Law Amendment Act 105 of 1997
read with
part 1
of schedule 2 (‘the 1997 Act’). He was sentenced to 15
years’ imprisonment. This appeal is in respect of conviction
only with leave of the court a quo.
[2]
It is unclear from a reading of the record which of the two charge
sheets set out
the charge, which was put to the appellant. While the
one charge sheet being written in manuscript, sets out the basis for
the
charge as being that the appellant unlawfully and intentionally
committed an act of sexual penetration with the six year-old girl
complainant A[….] M[….] by inserting his finger into
her vagina; the typed charge sheet sets out the particulars
of the
rape as being that the appellant unlawfully and intentionally
committed an act of sexual penetration with the complainant,
A[....]
M[....] a six year-old girl by inserting his erect penis into her
vagina without the consent of the said complainant
[3]
What the record indicates is simply a recordal that the prosecutor
put the charge
to the appellant. At the end of the trial, the court a
quo, when it convicted the appellant simply stated that the appellant
was
convicted as charged.
The
Facts
[4]
The evidence leading to the appellant’s conviction and sentence
is briefly set
out below. The complainant was six years of age
when she testified and was admonished. Her evidence was that on 26
November
2016, she and her older sibling S[....] went to the Khoza
homestead where they were playing soccer with other children. They
found
an elderly lady and the appellant. As they were playing, the
appellant who said he was going to put a handkerchief around her
called
her. The appellant who was sitting down in the veranda
drinking home brewed beer, lifted her up, and placed her on his
thighs.
The appellant allegedly inserted his finger into her vagina
and moved his finger around. According to the complainant, when the
appellant called her and placed her on his thighs, S[....] saw him.
[5]
The complainant felt pain and asked the appellant to let her go on
three occasions
and the appellant ignored her. She then told the
appellant that she wanted to drink water and he let her go. She asked
for water
from B[....], one of the children from the Khoza homestead.
They went to get the water from the house. She did not report
anything
to B[....] and was told that the adults were sleeping in the
bedroom. As she did not want to bother them, she did not report the
appellant’s conduct to them.
[6]
When she returned, she went to play and ran away from the appellant.
The appellant
called her again and allegedly inserted his finger into
her vagina for the second time. The appellant told the complainant
that
he was going to make her his wife and asked her when she would
cook and wash for him. While he was saying this, the appellant’s
finger allegedly remained inside the complainant’s vagina. He
then said that he was going to urinate, he let the complainant
go,
and she and S[....] went home. During cross-examination, the
complainant confused the day when the incident occurred, initially
saying it was a Friday and that they had returned from school and
then said it was a Saturday. The court a quo found that this
was
immaterial to the issues it had to determine.
[7]
S[....] M[....] testified and corroborated the complainant’s
evidence that they
went to play at the Khoza homestead. Further, that
the appellant was sitting on the veranda drinking homebrewed beer.
She also
confirmed that she witnessed the appellant calling the
complainant and placing her in-between his thighs. They continued to
play
and she did not see what happened thereafter. The complainant
would go to them to play and the appellant would call her back. Other
than the appellant, she did not see any other person sitting on the
veranda. When they finished playing, all the children dispersed
and
she and the complainant went home. She did not notice anything wrong
with the complainant.
[8]
The complainant’s mother Z[….] C[….] M[....]
testified as a first
report. She was home recovering from an
epileptic fit. She had been sleeping and when she woke up, she saw
the children playing
next to the Khoza homestead. She called them to
return home but they did not return until later in the afternoon.
When the
children returned home, Ms M[....] was asleep and was
awoken by the complainant saying it was painful underneath, referring
to
her vagina. Ms M[....] did not take the complainant seriously and
told her to go and bath. This was because she was of the impression
that the pain was caused by the soil the children usually played
with. After repeating the instruction for the complainant to go
and
bath, the complainant refused and said that it was because of the
uncle. When Ms M[....] asked which uncle she was referring
to, the
complainant cried and said an uncle from the Khoza homestead who was
inserting his fingers into her vagina and turning
it inside. Further,
that the uncle said he wanted her to be his wife and cook for him.
[9]
When Ms M[....] enquired from S[....], she confirmed that she had
seen the uncle placing
the complainant on his thighs. Ms M[....]
reported this to the elders in her homestead and was advised to phone
the police, which
she did. She also went to the Khoza family to
report the incident. The police arrived and took her and the children
to the police
station but due to her epileptic attack, she was taken
home and returned in the morning to make a statement and they were
taken
to Enkonjeni Hospital for the child to be examined.
[10]
Sometime after the incident, the appellant arrived at her home with
Mndeni Khoza and other family
members from the Khoza family. She was
with her father, Mr Jiyane. She told them that the matter was out of
their hands and would
be dealt with in court. The ladies from the
Khoza homestead said that they were there to apologise on the
appellant’s behalf
and offered a goat. The appellant told Ms
M[....] that he was too drunk and was apologetic. She told him that
he would apologise
in court. Mndeni Khoza never told Ms M[....] that
the appellant could not have committed the act he was accused of, as
he was very
busy with gardening at the Khoza homestead on the day of
the incident. They just apologised and said that the appellant was
too
drunk. When it was put to her that the appellant denied that he
had gone to apologise and that he had in fact gone to her home to
enquire about the incident, she said that the complainant would not
have fabricated the report made to her. When it was put
to Ms
M[....] that the appellant would deny the incident, she stated that
the Doctor had told her that the child had abrasions
in her vaginal
area.
[11]
Moses Mkhontolo Jiyane testified for the State. He corroborated Ms
M[....]’s evidence that
the Khoza family went to his house.
This was on 28 November 2016. It was the appellant, his aunt and
Mndeni Khoza. He confirmed
further that they said that they were
there to apologise. They said they did not know what happened on the
day of the incident
but that the appellant confessed that he had
consumed too much alcohol. When the members of the Khoza family
arrived at his house,
they said that they were there to enquire as to
which child was said to have been sexually violated by the appellant
as they had
heard of the allegation. When asked further, he could not
recall if they said they were there to apologise or if they limited
their
visit to being there to enquire about the alleged incident.
[12]
Doctor Nontuthuko Zamantungwa Buthelezi examined the complainant on
28 November 2016 and completed
a J88 medical report form. Under the
gynaecological examination, she recorded that the vagina could only
admit a tip of a little
finger. This was normal for a child of the
complainant’s age who is
virgo intacta
(meaning never
had sexual intercourse before). The hymen was intact. As a result,
she could not advance her whole finger into the
vagina because the
complainant would have felt pain. She could not say there was no
penetration or there was any penetration. When
she examined the
complainant, she was informed that the complainant had bathed which
she said could have an effect on the examination
since if there had
been blood, it would be washed off. If the appellant had advanced the
finger to the cervix, it could have caused
injures. These were not
seen during the examination.
[13]
The appellant testified and denied that he ever touched the
complainant and that he was at the
Khoza homestead working in the
garden. There were many children playing on the other side. He did
not call any of the children.
While admitting that the Khoza family
went to the complainant’s home, he said that it was to enquire
as to who the alleged
victim was. He denied apologising and further
denied that they offered a goat. He accepted that he had consumed
beer on that day.
While this was never disputed during the State’s
case, the appellant said during his evidence that it was his brother
Mndeni
Khoza who was seated on the veranda.
[14]
Mndeni Contract Khoza testified for the appellant and confirmed that
they had gone to the complainant’s
homestead. The reason was
that there were rumours that the appellant had committed an offence
to one of the children in that family.
The appellant indicated during
the meeting that he knew nothing about the alleged offence. He denied
that the appellant had apologised
and said that it would not have
been easy for him, (Mndeni Khoza) to apologise on behalf of the
appellant as the matter had been
reported to the police. In addition
to this, the appellant kept denying that he had committed the
offence.
[15]
According to Mndeni Khoza, on the day of the alleged incident, he sat
with the appellant on the
veranda. He said that if the appellant
denied that he had sat on the veranda, that would not be true. Mndeni
Khoza denied that
the appellant was working in the garden while he
was seated on the veranda. He also denied that there was homebrewed
beer. He however
could not deny that the appellant drank beer and
said he was tipsy but was not drunk. He then said the appellant was
in his sober
senses.
The
argument on merits and the analysis
[16]
As regards the issue of the two charge sheets, necessary averments
should be recorded in the
charge sheet. Section 84(1) of the Criminal
Procedure Act 51 of 1977 (‘the CPA’), provides that ‘a
charge shall
set forth the relevant offence in such manner and with
such particulars as to the time and place at which the offence is
alleged
to have been committed and the person, if any, against whom
and the property, if any, in respect of which the offence is alleged
to have been committed, as may be reasonably sufficient to inform the
accused of the nature of the charge’.
[17]
It is instructive that sufficient particulars are provided. In the
present case, the two charge
sheets comply with the requirements set
out in s 84(1). It is however unclear from the record as to which
charge sheet was read
when the charges were put to the appellant
since all that the record says is that charges were put to the
appellant. The court
a quo, in its judgment, simply convicted the
appellant as charged.
[18]
While it is unclear from the charge sheet as to which charges were
put to the appellant, it is
apparent that he was charged with rape.
What differs are the particulars of the rape. Section 88 of the CPA
provides for the curing
of a charge sheet through evidence. If the
handwritten charge sheet was used, this would be consistent with the
evidence led. There
is therefore no need for this court to deal with
the issue. If, however, the typed charge sheet was used, then it can
be said that
any defect in that charge sheet making reference to
inserting his erect penis would have been cured by the evidence led
since it
was clear from the evidence that the offence was committed
through the use of a finger.
[19]
It is common cause that the complainant was a single witness in
respect of the actual inserting
and twisting of the finger in her
vagina. This, coupled with the fact that the complainant was six
years old and therefore a child
witness when the incident occurred,
gives credence to the argument by the appellant’s counsel that
greater caution is required.
In
S v Artman
& another
1968 (3) SA 339
(A) at 314B-C, the court had the following to say
about the application of the cautionary rule:
‘
I would add that, while there
is always need for caution in such cases, the ultimate requirement is
proof beyond reasonable doubt;
and courts must guard against their
reasoning tending to become stifled by formalism. In other words, the
exercise of caution must
not be allowed to displace the exercise of
common sense;…’.
[20]
In
S v Letsedi
1963 (2) SA 471 (A) at 473 and
S
v Snyman
1968 (2) SA 582 (A) at 586-587 it was
held that when there is a measure of corroboration, even if it is
small, one
is no longer dealing with a single witness. It was
conceded that the evidence of S[....] was to the effect that the
appellant had
placed the complainant on his thighs. This partly
corroborates the complainant’s evidence as against a complete
denial by
the appellant, whose version was that he never sat on the
veranda and who attempted to shift the blame to Mndeni Khoza.
[21]
The court a quo had before it the evidence of Ms M[....], as the
first report. Her evidence was
consistent to that given by the
complainant in respect of the incident. In
S
v MG
2010
(2) SACR 66
(ECG)
at
73I-74B, the court stated that for this evidence to be admissible,
the report must have been made freely and voluntarily. I add
that the
report must have been made at the earliest most reasonable time.
While the complainant did not report the incident when
she first
returned to her home, I am of the view that it was made within a
reasonable time. She was not prompted to tell her mother
about the
incident.
[22]
The medical evidence was neutral and corroboration in the form of
other evidence
implicating
the appellant in the commission of the offence
was
lacking (see
S
v Gentle
2005
(1) SACR 420
(SCA) at 430I-431A
).
[23]
Section 208 of the CPA provides that an accused may be convicted of
any offence on the evidence
of a single and competent witness. (See
R
v Abdoorham
1954
(3) SA 163
(N) ). As has been argued by the State, such evidence must
be satisfactory in all material respects. The court a quo considered
the issue of caution and relied on the provisions of s 208 of the
CPA. The submission by the State that it is improbable for the
appellant to have conducted himself as stated in full view of other
children and during the day as anyone could have seen this
does not
make sense. Also, the issue that the complainant had returned to the
appellant after going to drink water is not supported
by the
evidence. Her evidence was that he called her back and not that she
willingly returned to him. The evidence of S[....] corroborates
this.
[24]
Having considered applicable principles regarding a single child
witnesses, I am of the view
that the evidence of the complainant was
clear and satisfactory in all material respects and was flawless.
Further, that there
was corroboration of her evidence from the
evidence of S[....].
[25]
As regards the issue of whether the incident occurred on a school day
or a Saturday, I am of
the view that this is immaterial. It was never
in dispute that the children went to the Khoza homestead and were
playing there.
This is confirmed by the appellant and Mndeni Khoza.
The appellant only denied committing the offence.
[26]
While the statement of S[....] did not mention that the appellant had
placed the complainant
on his thighs, her evidence was that she had
informed the police of this. She did not know why this was not
included in her statement.
In
S v Govender & others
2006
(1) SACR 322
(E) in dealing with the deviation from a written
statement by a State witness, the court held that the purpose of such
statement
was to decide whether to prosecute or not and was not
intended to be a precursor to witness’ testimony. The court
noted that
often written language was not that spoken by the witness
and that there was a tendency of the contents being a written summary
of what the witness would have said to the police officer. It was
therefore not unusual or surprising that discrepancies would
occur.
[27]
In respect of the issue whether the appellant had gone to apologise,
while it is noted that the
court a quo did not sufficiently deal with
this matter and reached an incorrect conclusion, this can be
explained by the fact that
Mr Jiyane had indeed testified that the
Khoza family had said that they were there to apologise. However,
under cross-examination,
he did not corroborate the evidence of Ms
M[....]. This however does not vitiate the proceedings. It was
something that occurred
after the event. What is crucial however from
the visit was that Mndeni Khoza had said that the appellant could not
recall what
transpired as he was under the influence of alcohol.
[28]
It cannot be correct that the court a quo erred in rejecting the
evidence of the appellant on
the basis that it was not reasonably
posy true. The appellant called his uncle Mndeni Khoza who labelled
the material parts of
the appellant’s evidence as untrue. This
was the version that the appellant was not sitting on the veranda and
that it was
Mndeni Khoza who was sitting there. The complainant
testified that the appellant had been consuming alcohol and S[....]
corroborated
this. The evidence of Mndeni Khoza in this regard was
contradictory. While it can be accepted that the appellant had
consumed alcohol,
this has not been used to suggest that his
capacities were impaired.
[29]
It is for the State to prove the guilt of the accused while the
accused is merely required to
provide a version, which is reasonably
possibly true. The version of the appellant is improbable and cannot
be reasonable possibly
true. Accordingly, the court a quo was correct
in rejecting it. However, one must consider whether the evidence led
proved the
offence of rape or something else. In order to determine
this, it is necessary to consider the definition of rape as set out
in
the Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007 (‘the Sexual Offences Act’), s 3 thereof
which defines rape as follows:
‘
Any person (“A”)
who unlawfully and intentionally commits an act of sexual penetration
with a complainant (“B”),
without the consent of B, is
guilty of the offence of rape.’
It
is accepted from the evidence that there was no consent by the
complainant. In any event, given the age of the complainant, she
was
incapable of providing any consent.
[30]
What was however raised as an issue was whether it can be said on the
facts of this case that
there was penetration. As stated earlier in
this judgment, the medical evidence is to the effect that the hymen
was intact and
Dr Buthelezi’s evidence was that she could only
fit in the tip of her finger. Ms
Hulley
for the appellant,
argued that the complainant’s evidence was that the appellant
had inserted half of his finger into her
vagina. She argued that this
version was improbable since it was not supported by the medical
evidence. Ms
Jacobs
for the state submitted that it could
still be argued on the evidence that there was penetration since the
conclusion by Dr Buthelezi
recorded on the medical report (J88) was
that there were no signs of heavy penetration. When Dr Buthelezi was
asked to explain
this, she clarified that there could not have been
any penetration since according to the description of the
complainant, the appellant
had moved his finger around. Had there
been any penetration, it would have caused injuries. Both counsel
conceded ultimately that
the appellant should at best have been
convicted of sexual assault.
[31]
In terms of s 5(1) of the Sexual Offences Act, sexual assault is
defined as follows:
‘
A person (“A”) who
unlawfully and intentionally sexually violates a complainant (“B”),
without the consent
of B, is guilty of the offence of sexual
assault.’
[32]
Arising from this, it is necessary to also refer to the definition of
sexual violation, which
includes the following:
‘
(
a
)
direct or indirect contact between the—
(i)
genital organs or anus of one person or, in the case of a female, her
breasts,
and any part of the body of another person or an animal, or
any object, including any object resembling or representing the
genital
organs or anus of a person or an animal;’
[33]
On a proper consideration of the evidence and arguments by counsel,
this court finds that the
conviction by the court a quo cannot be
supported by the evidence led before it and can therefore not be
sustained. There was a
clear misdirection by the court a quo in
convicting the appellant of rape. The evidence, however, is
sufficient to sustain a conviction
on the competent verdict of sexual
assault.
[34]
It is this court’s finding that the appellant was guilty of a
lesser charge and it is necessary
that we consider whether the
sentence imposed by the court a quo is suitable. In doing so, we are
guided by the triad as set out
in
S
v Zinn
1969
(2) 537 (A) and
S
v Mahomotsa
2002
(2) SACR 435
(SCA), to consider the crime, the criminal and the
interests of society. When the appellant was convicted of rape by the
court
a quo, it was rape of a minor and therefore the provisions of
the 1997 Act applied, setting the minimum sentence applicable as life
imprisonment. The court a quo found that there were substantial and
compelling circumstances and consequently deviated from the
prescribed minimum sentence. See S
v
Malgas
2001 (2) SA 1222
SCA.
[35]
Since the sentence imposed was based on an erroneous conviction, it
is instructive therefore
that we consider an appropriate sentence in
respect of the corrected conviction. Ms
Jacobs
submitted that
a sentence of between eight and ten years was appropriate. The
offence, which the appellant is guilty off, is prevalent.
Often we
hear of young children being interfered with by old people around the
age of the appellant’s. These children must
be protected by the
courts. There is an outcry by society for perpetrators of such crimes
to be dealt with harshly. The crime was
committed on a six-year-old
child who could not defend herself. The appellant was 46 years of age
when the offence was committed,
a first offender and was said to be
taking care of his mother. This was what was before the court a quo
when it decided to deviate
from the minimum sentence.
[36]
In
S v Hewitt
2017 (1) SACR 309
(SCA), which involved the
indecent assault of a 17-year-old girl, the court noted at para 15
that the appellant’s personal
circumstances being the advanced
age of the appellant who was 75 years old when he was convicted and
was of poor health were insufficient
to interfere with a sentence of
two years’ imprisonment. We are of the view that on the facts
of this case, a sentence of
ten years imprisonment is reasonable to
deter the-would-be offenders.
Order
[37]
In the result, the following order is made:
(a)
The appeal in respect of conviction and sentence by the court a quo
dated 14 September
2017 succeeds to the extent that:
‘
1.
The conviction and sentence imposed by the court a quo is hereby set
aside and is substituted
with the following order
2. (a) The
accused is found guilty of sexual assault.
(b)
The accused is sentenced to 10 years imprisonment.
3.
The sentence of 10 years imprisonment is ante-dated to 14 September
2017.’
Masipa J
I agree
Radebe J
Appearances:
For
the Appellant:
Ms
A Hulley
Instructed
by:
Legal Aid South Africa
For
the Respondent:
Ms
Jacobs
Instructed
by:
Director of
Public Prosecution
Matter
heard:
15 November
2019
Judgment
delivered:
22 November 2019