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[2018] ZAGPPHC 721
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Mabena v S (A371/2016) [2018] ZAGPPHC 721 (2 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG HIGH COURT DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
Appeal Case No.: A371/2016
2/3/2018
In
the matter between:
SIPHO PETROS
MABENA
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
CHESIWE AJ:
[1]
The
appellant was convicted on a charge of rape of a seven year old girl,
the complainant. The appellant pleaded not guilty. He
was however
found guilty and sentenced to 20 years imprisonment.
[2]
Leave
to appeal against conviction and sentence was refused on 14 March
2012 by the trial court.
[3]
The
appellant subsequently petition the Judge President of this
Honourable Division on 25 February 2016. The petition was successful
and now the appellant appeals to this Court against both conviction
and sentence.
[4]
The
complainant testified via an intermediary although incoherent
according to the record, she said that she was visiting her friend
Mpumi on the day of the incident and they were jumping on Mpumi's
mother's bed, the appellant heard them and came in the bedroom,
Mpumi
ran away. She said the appellant grabbed her, undressed her and
inserted his penis into her. The complainant testified that
the
appellant after "hurting" her wiped himself and gave her a
RS, 00 and told her to go home and not to tell anyone.
The
complainant testified that the appellant put polish on his face after
hurting her. On her way out of the house she saw the
parents of the
appellant and told them what happened, but they did not respond or
react except to ask her “
Where
is Sipho”'
(page 54 line 15).
When she got home she first told her mother that she was hurt by a
stick. But later on more questioning she confirmed
that she was hurt
by Sipho (the appellant).
[5]
Ms
Koos-Monyakane on behalf of the appellant, in her Heads of Argument
and in oral submission said the complainant (minor child)
told lies
and contradicted herself. She mentioned that the J88 is not clear on
the injuries sustained by the complainant. The complainant
first said
she was injured by a stick and after being pressured she said it was
the appellant. She submitted that the trial court
convicted the
appellant on insufficient evidence and that the child is a single
witness. She argued that the complainant was unable
to identify the
appellant and rather gave vague description of the appellant. The
appellant's younger sister was neither helpful
as a witness, even
though she testified that the appellant and complainant were together
in the house.
[6]
Counsel
on behalf of the respondent , submitted in oral argument that the
complainant spoke about the stick injury as she was afraid
of the
appellant. Counsel submitted that the J88 is clear on the injuries
and that the complainant's hymen was swollen; there was
a deep
vaginal tear at 6 o'clock with an offensive yellowish discharge, and
thus fits in with the complainant's version of vaginal
penetration.
She said if it was a stick injury the medical officer examining the
complainant would have seen that the injuries
sustained by the
complainant are due to a stick injury.
[7]
When
evaluating the evidence of the State at the trial court, though as
submitted by Counsel for the appellant that there was discrepancies
and contradictions in the State's case, the complainant and the state
witness are both minors but the complainant was able to give
a clear
and formalistic account of the incident although not in perfect
logic. The complainant and the witness (appellant's sister)
place the
appellant on the scene and in the house with the complainant. The
appellant's version is also that he was in the house
watching TV. He
places himself on the scene. The Prosecutor on questioning Mpumi
about the appellant's where about she answered
as follows: (page 66
line 17 - 25 of the records).
"Was Sipho there that day?"
"Yes"
"Where was Sipho?"
''In the bedroom.
"
"So he was also in the house"
"Yes"
''How long was Letswalo in the house?"
"For a short period of time"
[8]
The
Appellant's defence was a bare denial, but under cross-examination,
appellant confirmed that he knew the complainant as she
used to come
to their house after school with the younger sister. The appellant
had different versions that on the day of the incident
he was not
home, and then he was in his room watching television. He said the
complainant must have been coached to identify him
and he is
therefore falsely implicated, whereas he testified that he does- not
have any problems with the family of the complainant.
On being
questioned by the Prosecutor in respect of him knowing the
complainant he said: (Line 12 - 13 page 70 of the record).
"You say you only saw the complainant in
the street?"
"Yes, I normally saw her on the street. At
times she will come back home after school with my younger sister,
she will come
to my home and they would drink water and afterwards
left."
"So you do not see her only in the street,
you also see her at your house."
"Yes."
AD CONVICTION
[9]
Counsel
for the appellant submitted that there is no sufficient evidence that
the appellant raped the complainant, that the complainant's
evidence
is full of discrepancies and contradictions. She indicated that the
child might have been coached to implicate the appellant.
She
submitted that the complainant was unable to properly identify the
appellant and the medical doctor who examined the child
and completed
the J88 was not called to testify at the trial court. Nor was there
any DNA testing to check for the appellant' semen
or testing of the
offensive vaginal discharge that was coming from the complainant.
[10] Counsel for
the respondent submitted that the complainant was not coached and
that her evidence
was not fabricated. She submitted that the trial
court came to the correct decision to convict the appellant and that
it is highly
improbable that the appellant was falsely incriminated.
[11]
The complainant despite her young age,
was truthful and a reliable witness. She was cross-examined at length
though the intermediary
had to constantly repeat the questions put to
the complainant. The appellant could not refute the complainant's
version except
through a bare denial. There is no evidence that the
complainant met another person who could have had sexual intercourse
with
her. The complainant was in the appellant's company. He gave her
a RS, 00 and complainant went home. The appellant sister, Mpumi,
confirmed that the appellant was in the house with the complainant.
The complainant's mother also testified that she notice blood
flowing
from the complainants private part and that she experienced pains.
The J88 confirmed the injuries as sustained by the complainant.
[12]
The
appellant disputed that the complainant knew him before the incident
page
49 lines 20 to 25
of
record shows as follows:
"Where does Sipho Stay?"
"He stays at Mabena's place."
"Do you know him from before the
incident?"
"Yes I know him before."
"Okay will you be able to show us who this
Sipho is."
"Yes"
A demonstration was conducted in court with six
people including the appellant and was put together in court; the
complainant was
requested to identify the appellant touching him. The
complainant pointed out the appellant in court. (Page 50 lines 5 to
25 of
the record).
[13]
It is trite that evidence on
identification must be approached with caution. The dangers of an
incorrect identification are well-known.
The pointing out of a wrong
person by witnesses who act in good faith has led to notorious cases
of injustice. The evidence of
identifying the accused because of the
ever present possibility of a honest mistake being made by witnesses,
evidence of identification
has to be treated with caution. In the
S
v Mthetwa
[1]
,
Holmes JA stated that:
"Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest; reliability of his observation
must also be tested. This depends on
various factors: such as
lighting ; visibility; and eyesight; the proximity of the witness;
his opportunity for observation; both
as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused's face, voice,
build, gait, and dress; the result of identification parades, if any;
and, of course, the evidence by
or on behalf of the accused. The list
is not exhaustive. These factors, or such of them as are applicable
in a particular case,
are not individually decisive, but must be
weighed one against the other, in
the light of the totality of the evidence, and the probabilities
[2]
."
[14] The complainant
throughout her testimony answered the questions consistently and
frank. She explained
in detail what happened in the room up to the
point where the appellant wiped himself after the rape and put on
black polish on
his face, bearing in mind that the complaint was only
seven years old at the time of the offence. In S v Oosthuizen
[3]
,
the court said: "There is no reason in logic why the mere fact
of contradiction, or of several contradictions , necessarily
leads to
the rejection of the whole evidence of a witness.
[15]
In
R v Dhlumayo
and Another
1948 (2) SA 677
the majority, per Greenberg JA and Davis
AJA (Schreiner dissenting) said: "The trial court has the
advantages, which the appeal
judges do not have, in seeing and
hearing the witness and being steeped in the atmosphere of the trial.
Not only has the trial
court the opportunity of observing their
demeanour, but also their appearances and whole personality. This
should not be overlooked."
[16]
The
trial court with the evidence before it was satisfied in that the
State proved the appellant's identify beyond reasonable doubt.
And
correctly so, the trial court came to the inescapable conclusion that
the appellant was the person who raped the complainant
and correctly
convicted the appellant. From the judgment of the trial court that
the learned Magistrate was acutely aware of the
conflicts and
discrepancies in the evidence, having regard to the fact that the
complainant and the one witness Mpumi are children
and both were
seven years old at the time of the offence. Ultimately the evidence
must be assessed as a whole.
[4]
. It follows that there is no room for interference with the
conviction.
AD
SENTENCE
[17]
Counsel
for the appellant acknowledged that the Court considered youthfulness
as a mitigating factor and thus deviated from imposing
life sentence
as per the Prescribed Minimum Sentence Act. However, she is of the
view that the 20 years sentence imposed is still
too harsh, because
the trial court has correctly indicated that the appellant can be
rehabilitated. The appellant is a first offender
and he spent time in
custody awaiting trial. Counsel further submitted that the
appellant's name has been added to the Sexual Offender's
Register and
this is an added punishment.
[18]
Counsel
for respondent, submitted that the 20 years sentence imposed on the
appellant is appropriate. She said the trial court took
into
consideration the aggravating factors: The seriousness of the
offence, the complainant was seven years and defenceless, the
appellant pulled and grabbed the complainant and that the offence was
planned. She also conceded that the court found youthfulness
and the
possibility of rehabilitation to be substantial and compelling
circumstances therefore the trial court deviated from the
Prescribed
Minimum Sentence of life imprisonment, and imposed 20 years
imprisonment sentence.
[19]
The
crime which the appellant was convicted of falls within the
provisions of the
Criminal Law Amendment Act 105 of 1997
as amended
(the Act). In terms of
Section 51
(1) read with
part 1
of Schedule
ii, where a person is convicted of an offence of rape and the victim
is a person under the age of 16 years the sentence
of life
imprisonment must be imposed, unless there are substantial and
compelling circumstances which will justify the imposition
of a
lesser sentence.
[20]
In
determining whether in a particular case substantial and compelling
circumstances exist a court has to follow the guidelines
as set out
in State v Malgas,
[5]
and consider the well know traditional triad of factors relevant to
sentence, the crime, the criminal and the needs of the society.
[21] The
complainant was seven years at the time of the offence, that in
itself is very serious to
have a young child being exposed to such a
heinous crime. It is for these types of offences the legislation
prescribed a minimum
sentence of life for raping of children under
the age of 16 years. Rape of a child violates the child's dignity,
though the record
in this instance does not show the impact of the
crime on the complainant.
[22] It is trite that
the appeal court may interfere with the sentence imposed by the trial
court if it
is so disproportionate to the crime committed that it is
unjust or where the trial court in sentencing the offender failed to
exercise
its discretion properly or exercised it unreasonably.
[23]
In
my view the trial court did accord due weight to the personal
circumstances of the appellant that he was a first offender, there
are good prospects of rehabilitation and that the appellant spent
time in custody, and therefore deviated from imposing life sentence
to the appellant.
[24]
The
trial court did not misdirect itself and it exercised its judicial
discretion properly. This Court will therefore not temper
with the
imposed sentence of 20 years imprisonment. There is nothing that
persuades me to impose a sentence different from that
imposed by the
trial court.
[25]
The
sentence imposed is just and appropriate to this particular offence
and therefore there is no justification to temper with it.
[26] Consequently
the following order is made:
1.
The appeal on conviction and sentence is
dismissed.
2.
The sentence imposed by the trial court is confirmed.
S
CHESIWE
Acting
Judge of the Gauteng High Court, Pretoria
I
agree
N
P MNGQIBISA THUSI
Judge of the Gauteng High
Court, Pretoria
Appearances
For Appellant:
Adv Koos-Monyekane
Instructed
b y: Justice Centre
Pretoria
For
Respondent : Adv MJ Van Vuuren
Instructed
by: Director of
Public Prosecutions, Pretoria
[1]
S v Mthetwa
1972 (3) SA 766
(A).
[2]
S v Mthetwa above
at 768 A-E. See also
S v Khumalo en
Andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at 328E - G.and
S v Mlati
1984(4)
SA 629 (A) at 632F - 633C.
[3]
1982 (3) SA 571
(TPD) at 576 A - B).
[4]
Mosephu and Others v R (1980 -
1984) LAC 57
at 59F- H.
[5]
2001(1) SACR 489 (SCA) at 482C