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[2018] ZAGPPHC 330
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Klue v S (A160/2017) [2018] ZAGPPHC 330 (9 March 2018)
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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Appeal number:
A160/2017
In
the matter between:
DANIE
KLUE
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J
et
CHESIWE,
AJ
HEARD ON:
04 DECEMBER 2017
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
09 MARCH 2018
[1] The
appellant was convicted in Regional Court in Bloemfontein on one
count of contravening
the provisions of Section 5(1) read with
sections 1 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Sexual
Offences and Related
Matters amendment Act 32/2007, Sexual Assault,
and two counts of contravening the provisions of Section 3 read
with1, 56(1), 57,
58,59, 60 and 61 of the Criminal Law (Sexual
Offences and related matters)amendment Act 32/2007 and with Section
92(2); 94 and
256 of Act 51/1977 , Rape. The complainant was a 12
year old girl. The appellant was sentenced on count 1 to 5 (five)
years imprisonment,
count 2 - life imprisonment in terms of Section
51 (1) of At 105 of 1977, and count - 3 life imprisonment in terms of
Section 51
(1) of At 105 of 1977.
[2] The
state's version as accepted by the trial court was to the effect that
during
2008 the appellant, complainant's stepfather, while they were
staying at Trompsburg started telling her how babies are made . He
told her how male and female sexual organs are used to make a baby.
He went further to explain how sperms enter a woman's body
in a
process of making a baby. The appellant would sometimes touch the
complainant's breasts to test how far developed they were.
The
appellant's family moved to Bloemfontein where they stayed at Caravan
Park during 2008. During this period the complainant
shared a room
with her sibling sister adjacent to the caravan that was used as the
main dwelling by the family. The appellant and
complainant's mother
were sleeping in the caravan. Sometime during 2008 and 2009 the
appellant would come into her bedroom and
started touching her.
During one of these encounters the appellant inserted his finger in
the complainant's vagina and made her
touch his penis. Around 2009,
although she could not remember the date, the appellant after
watching some DVD's, got into her blankets.
He lowered her pyjama
pants and penetrated her with his penis. It was painful when the
appellant penetrated her in that manner.
The complainant testified
through an intermediary.
[3] The
appellant appeals to this court against the conviction and sentence
after
special leave was granted by the Supreme Court of Appeal. In
respect of count 2 and count 3 the appellant has an automatic right
of appeal.
[3] The
basis for the appeal is that the trial court did not comply with the
provisions
of section 162 read with
section 164
of the
Criminal
Procedure Act 51 of 1977
pertaining to the evidence of the
complainant as a child witness. According to the appellant
complainant was simply sworn in before
her capacity to understand the
nature and importance of the oath was established, and that there was
no enquiry and no finding
by the trial court before admonishing the
complainant. The appellant contended that the complainant was a
single witness and the
trial court failed to apply the cautionary
rule.
[4] Mr.
Pretorius, counsel for the appellant, in oral argument and in the
Heads of Argument
submitted that the complainant was a single witness
and that the complainant's evidence must have been approached with
caution
and that there are unusual features in the evidence of the
complainant that required application of the cautionary rule. In his
view the complainant failed to answer many questions and some of the
answers she gave were not befitting a 13 year old.
[5] Mr.
Pretorius submitted that the trial court erred in not finding that
there were substantial
and compelling circumstances. He contended
that the trial court failed to take into consideration that the
appellant was sick and
that he was a first offender. He submitted
that the trial court could have imposed a lesser sentence than life
imprisonment.
[6] Mr.
Simpson, on behalf of the respondent argued, that the State at the
trial court
proved its case beyond reasonable doubt. He contended
further that in the absence of any misdirection by the trial court,
the findings
of a trial court are presumed to be correct. With regard
to the issue of character of evidence of the complainant, Mr. Simpson
submitted that the trial court conducted an enquiry and clearly
admonished the complainant to tell the truth. He submitted that
the
trial court did not commit any irregularity or misdirection during
conviction and sentence, and there is no basis for an appeal
against
conviction and sentence.
[7]
Section
164
(1) of the
Criminal Procedure Act 51 of 1977
provides that:
"Any person
who, from ignorance arising from youth, defective education or other
cause, is found not to understand the nature
and import of the oath
or the affirmation, may be admitted to give evidence in criminal
proceedings without taking the oath or
making the affirmation;
Provided that such person shall, in lieu of the oath affirmation, be
admonished by the presiding judge
or judicial officer to speak the
truth, the whole truth and nothing but the truth."
[8]
In
Director of Public Prosecution, Transvaal v Minister of Justice
and Constitutional Development, and Others
2009 (4) SA 222
9 CC )
para 165 the court said:
"The practice
followed in the courts is for the judicial officer to question the
child in order to determine whether the child
understands what it
means to speak the truth. As pointed out above, some of these
questions are very theoretical and seek to determine
the child's
understands of the abstract concepts of truth and falsehood. The
questioning may at times be very confusing and even
terrifying for a
child. The result is that the judicial officer may be left with the
impression that the child does not understand
what it means to speak
the truth and then disqualify the child from giving evidence. Yet
with skilful questioning, that child may
be able to convey in his or
her own child language, to the presiding officer that he or she
understands what it means to speak
the truth. What the section
requires is not the knowledge of abstract concepts of truth and
falsehood. What the proviso requires
is that the child will speak the
truth. As the High Court observed, the child may not know the
intellectual concepts of truth or
falsehood, but will understand what
it means to be required to relate what happened and nothing else."
At paragraph 166 the
Constitutional Court set out the rationale for the procedure required
by section 164:
"The reason for
evidence to be given under oath or affirmation or for a person to be
admonished to speak the truth is to ensure
that the evidence is
reliable. Knowledge that a child knows and understands what it means
to tell the truth gives the assurance
that the evidence can be relied
upon. It is in fact a pre-condition for admonishing a child to tell
the truth. The evidence of
a child who does not understand what it
means to tell the truth is not reliable. It would undermine the
accused's rights to a fair
trial were such evidence to be admitted.
To my mind, it does not amount to a violation of
sections 28
(2) to
exclude the evidence of such a child. The risk of a conviction based
on unreliable evidence is too great to permit a child
who does not
understand what it means to speak the truth to testify. This would
indeed have serious consequences for administration
of justice."
[9] The
questioning of the complainant by the presiding officer in terms of
section 164
proceeded as follows:
(page 24 to 26 of
the record)
"COURT:
Do you know where you are right now
GETUIE:
Ja
COURT:
Where are you? GETUIE: In die hof.
COURT: And
you know why you are here?
GETUIE:
Ja.
COURT:
Do you attend school
GETUIE:
Ja.
COURT:
Where?
GETUIE:
[….].
COURT:
Where is it?
GETUIE:
In Bloemfontein.
COURT:
In which Province:
GETUIE:
Suid - Afrika
.
COURT: In
which Grade are you there?
GETUIE: Graad
7.
COURT: Who is your
friend at school?
GETUIE: M F
COURT: Is she
here today?
GETUIE:
Nee.
COURT: If M were to
tell your friends at school tomorrow that she was here at court with
you today, would she be telling the truth?
GETUIE:
Nee.
COURT:
Why do you say so?
GETUIE:
Want sy lieg dan vir die ander kinders.
COURT:
Is it okay to lie?
GETUIE:
Nee.
COURT:
Will you be happy with her if she lies about you?
GETUIE:
Nee.
COURT:
So you know the difference between truth and lies.
GETUIE:
Ja.
COURT: which
between the two have you come to tell us today?
GETUIE:
Die waarheid.
COURT: Okay,
I am admonishing you to tell only the truth and nothing else but the
truth herein, do you understand?
GETUIE:
Ja."
[10] In
my view, the court a quo correctly applied
section 164
of the CPA and
warned the witness to speak the truth. I am not persuaded by the
appellant's argument that the complainant was unable
to distinguish
between wrong and right and the enquiry held by the presiding officer
was insufficient.
[11] The
issue relating to single witness is well known and having regard to
Section 208
of Act 51 of 1977, an accused may be convicted of any
offence on the single evidence of any competent witness. The question
whether
the complainant is a competent single witness and whether her
evidence should be accepted. Of course the trial court took into
consideration certain factors that may be important; that is the
child's age; she was a credible and reliable witness. The cautionary
rule applied in sexual cases has been dealt with comprehensively. In
R v Mokoena
1932 OPD 79
at 80, the rule was put in perspective
in several judgements and there is no doubt that the exercise of
caution should not be allowed
to displace common sense. See
S v
Artman and Another
1968 (3) SA 339
(A)
at 341. The trial court
found that the evidence of the complainant had to be approached with
caution and made a finding that the
complainant as a single witness
was credible. This finding cannot be faulted.
[12] The
complainant's evidence was logical and clear. She described in detail
how the appellant
used to touch her breasts and how he used to get in
her bed. The complainant testified how the appellant used to show her
his private
part and that the appellant would forcefully grab her
hand, put it on his penis so that she could touch it. The appellant
explained
what sex is and how kids are made. She gave her testimony
with consistency under tremendous pressure.
[13] The
court is an intimidating place for most witnesses and doubtless even
more for child
witnesses. In the face of such scrutiny and questioned
and cross-examined; I am convinced that had she indeed not been
telling
the truth, this would have been patent to the court by virtue
of her demeanour. In court the content of her evidence also speaks
volumes. She was straight forward, a simple story she was called upon
to tell the court and she was consistent even though she
could not
remember dates here and there, but her testimony cannot be faulted.
[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 she was able to differentiate that the touching
of her breast,
the putting in of the fingers, touching of penis and
rape happened on different days, bearing in mind that the complainant
was
only 12 years old at the time of the offence. In
S v
Oosthuizen
1982 (3) SA 571
(TPD) at 576 A - 8), 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] As
far as the complainant herself is concerned it is clear to me that
the learned Magistrate
did, in fact, satisfy herself as to this
witness's ability to give a full, proper and truthful account of the
relevant incidents
as they happened. This is noted in the line of
questions that were put through the medium of intermediary to the
complainant. Therefore
the content of the complainant's evidence
bears out the correctness of the learned magistrate's ruling that the
complainant was
a competent witness.
[17] Mr
Pretorius challenged the conviction on the basis of the state's
failure to present sufficient
DNA evidence, and that the complainant
had no injuries to her private parts, her hymen was intact. He
submitted that the evidence
of Sister Mokoena, the Forensic nurse
confirmed that there was
'"no visible injuries noted and this
does not exclude sexual assault.11
(Page 153 of the record). Mr
Pretorius submitted that the evidence of Dr. Wagner shows that during
medical examination on the complainant
she laughed and this creates
the suspicion regarding her version of the truth. He concludes that
this corroborative medical evidence
of the two state witnesses simply
concludes that the complainant was not raped as alleged.
[18] The
complainant's case was corroborated and bolstered by the state
witness, Veronica Venter,
who was the first person the complainant,
told about the sexual assault and the rape. She told the court that
the complainant informed
her about the appellant touching her body
all over. The complainant on her part during her testimony was not
fumbling or hesitant,
she was able to give evidence in a logic and
clear manner and testified in court as to the different times and
places the incidents
occurred.
[19] In
my view the complainant was a truthful and reliable witness. The
appellant could not
refute her version except through his bare
denial. The appellant's version was brief and his evidence was so
unconvincing that
it could be safely rejected as not being reasonably
or possibly true. He averred, for instance that he only assisted the
complainant
with homework she had from school. This homework was
about sex education and he used a CD that had information on male and
female
reproductive parts to show the complainant how both sex organs
function.
[20]
It is apparent 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 was only
12 years at the time of
the offences. Ultimately the evidence must be
assessed as a whole. (See
Mosephu an Others v R
1980-1984
LAC
57
at 59F-H) It follows that there is no room for interference with
the conviction on all the counts.
AD SENTENCE
[21]
As
I pointed out the fact that the complainant was 12 years and was
sexually assaulted and raped by her stepfather, this brought
the
application of the Criminal Law Amendment Act into operation. The
authoritative case in this application is
S
v Malgas
[1]
In line with this
decision the sentencing court should not depart from the prescribed
minimum sentence simply because of flimsy
reasons”
[2]
.
On the other hand the prescribed minimum sentence should not be
"shocking'', "startling" or "disturbing
inappropriate”
[3]
.
[22]
It
is trite that the notion "compelling and substantial
circumstances" differs from one case to another
[4]
,
as evidenced from the decision of
S
v Malgas
[5]
When
a trial court is faced with a case in which a minimum sentence
is prescribed, the sentencing court must still have regard
to all the
traditional factors taken into account when considering sentence
[6]
.
[23] The
crime which the appellant was convicted of falls within the purview
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.
[24]
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,
[7]
and consider the well
know traditional triad of factors relevant to sentence, the crime,
the criminal and the needs of the society.
[25] The
complainant was 12 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. In
S v SMM
2013 (2) SACR 292
(SCA),
the court stated that:
"Rape is
undeniably a degrading, humiliating and brutal invasion of a person's
most intimate, private space, the very act itself.
even absent of any
accompanying violent assault inflicted by the perpetrator, is a
violent and traumatic infringement…
[8]
”
[26]
The
invasive and humiliating nature of rape, the discrimination inherent
therein and the unfortunate prevalence thereof in society
demands
protection against this kind of conduct, especially if the
complainant is a minor child, this makes it the worst kind
of brutality against any human being
[9]
In
F v Minister of
Safety and Security
2012
(1) SA 536
(CC), the Constitutional Court stated that: "It is
deeply sad that a few of our women and girls dare to venture into
public
spaces alone, especially when it is dark and deserted. If
official statistics are anything to go by, incidents of sexual
violence
against women occur with an alarming regularity.
[10]
”
[27] Mr.
Simpson on behalf of the respondent argued that the trial court did
not misdirect itself
and that the appeal court should not tamper with
the sentence, as the sentence is appropriate for the crime committed.
[28]
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.
[29] The
trial court evaluated the evidence and came to the conclusion that
the state witnesses
were truthful and rejected the version of the
appellant as improbable. It is trite that factual and credibility
findings of the
trial court are presumed to be correct unless they
are shown to be wrong with reference to recorded evidence. The
acceptance by
trial court of oral evidence and conclusion thereon are
presumed to be correct, absent misdirection . (See
S v Francis
1991 (1) SACR 198
SCA at 204 e-d.) A court of appeal may only
interfere where it is satisfied that the trial court misdirected
itself or where it
is convinced that the trial court was wrong. ( See
R v
Dhlumayo
&
another
1948 (2) SA
677
(A} at 705-706 }.
[30]
In
my view the trial court did accord due weight to the personal
circumstances of the appellant. The appellant did not present to
the
trial court exceptional substantial and compelling circumstances for
the trial court to deviate from the prescribed sentence,
therefore it
imposed life sentence to the appellant. The legislature has
deliberately left it to the courts to decide whether circumstances
of
any particular case call for a departure from the prescribed
sentence
[11]
.
I am of the view that taking into consideration the principles set
out in Malgas
[12]
, the sentence imposed for the offence committed is reasonable and is
not harsh and inappropriate nor did the trial court misdirect
itself
in any manner.
[31]
This
Court will therefore not tamper with the imposed sentence by the
trial court. There is nothing that persuades me to impose
a sentence
different from that imposed by the trial court. It is trite that a
court of appeal should not replace the sentence imposed
by the trial
court with its own, unless it is justified to do so
[13]
.
As indicated above, I see no reason to interfere and replace the
sentence imposed.
[32] The
sentence imposed is just and appropriate in the circumstances of this
case therefore there
is no justification to tamper with it.
[33] Consequently
the following order is made:
1.
The appeal on conviction and sentence is dismissed.
2.
The conviction and sentence are confirmed.
S. CHESIWE, AJ
I
concur
M.
MBHELE, J
On behalf of Appellant:
Adv. Pretorius
Instructed by:
Kriek & Cloete Attorneys
Bloemfontein
On behalf
of Respondent:
Adv. Simpson
Instructed by:
Office of the Director: Public Prosecutions
Bloemfontein
[1]
S v Malgas
2001 (1) SACR -1-69 (SCA).
[2]
lbid at 481j-482c. See also
S v Price mid Another
2003 (2)
SACR 551 (SCA).
[3]
S
v
GN
2010 (1) SACR 93
(T) al 95j - 96a.
[4]
Mofokeng v S
[2015] JOL 34851
(FB). Sec also
S
v
Abrahams
2002 (1) SACR 116 (SCA).
[5]
S v Malgas
above
[6]
S v Abrahams above and S v Nkomo
2007 (2) SACR 198 (SCA).
[7]
2001(1) SACR 489 (SCA) at 482C
[8]
S v
SMM
2013 (2) SACR 292
(SCA) para [17] and S
v Uithaler
2015 ( 1 ) SACR 174 (WCC) para [10]- [12]
[9]
S v Mabaso
2014 ( I) SACR 299(KZP) para [87]
[10]
F v
Minister of Safety and Security)'
2012 (1) SA 536
(CC) para [56]
[11]
S v Dodo 2001(3) SA 382 (CC) para [11]. Sec also S v Malgas. 2001
(2) SA 1222 (SCA).
[12]
S v Malgas
above.
[13]
S
v
Obisi
2005 (2) SACR 350
(W) para [7]