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[2018] ZAGPJHC 488
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Masuku v S (A261/16) [2018] ZAGPJHC 488; 2019 (1) SACR 276 (GJ) (6 September 2018)
Links to summary
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
08
/36380
Case
No.: A261/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
6/9/2018
In
the matter between:
Masuku,
Thato
Appellant
and
The
State
Respondent
JUDGMENT
Vally J
Introduction
[1]
The
appellant was arraigned in the Regional Court, Johannesburg, on two
charges of rape in contravention of section 3 read with
the relevant
sections of the Criminal Law Amendment Act (Sexual Offences and
Related Matters) 32 of 2007, of the Criminal Procedure
Act 51 of 1977
(the CPA) with the provisions of section 51(1) and schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (the
CLAA), as amended, being
specifically applicable. On 31 October 2014, the appellant, who was
legally represented, pleaded not guilty
to both charges. On 28 August
2015 he was convicted on one count of rape and acquitted on the other
count. On 10 December 2015
he was sentenced to a period of fifteen
(15) years of imprisonment, his name was entered into the register of
sexual offenders
[1]
and he was
declared unfit to possess a firearm.
[2]
Subsequently, the appellant successfully applied for and was granted
leave to appeal against both conviction and sentence.
Facts
as established from the evidence in the court
a
quo
[2]
The
case against the appellant was that he raped two children on the
evening of 12 October 2013, one BK and one SK. At the time
of the
incidents BK was seven years old while SK was eight years old. The
State’s case was presented by five witnesses: one
Dr Sibongile
Nkobi (Dr Nkobi), BK, SK and their respective mothers. Both BK and SK
testified while sitting in a separate room adjacent
to the court and
both were assisted by an intermediary.
[3]
Their
testimonies elicited the following material facts:
[3.1]
SK and the appellant lived in one flat. The flat consists of three
rooms. SK lived in one room of the flat with her mother
and another
woman named Ms Thabisile Nzima (Ms Nzima). Ms Nzima testified at the
court
a
quo
but that was after the appellant was already convicted and sentenced.
The appellant lives
together with his father in another room in the same flat. He is the
owner of the flat which he inherited from
his late mother. He leased
the two other rooms; one to SK’s mother and the other to
another lady.
[3.2]
On 12 October 2013 at about 20h00 BK was with SK in the room where SK
resided with her mother. They were playing. The appellant
came to
room to borrow a kettle. SK lent him the kettle. A short while
thereafter he re-entered the room. This time, according
to BK, he
took SK, placed her on the bed, removed her panties and raped her by
placing his penis into her vagina. Thereafter, he
did the same with
BK. Both BK and SK desperately attempted to get him to stop harming
them. While he was raping BK, SK was hitting
him and both of them
were crying. Very soon after he had raped both of them BK’s
mother knocked on the door of the flat and
the appellant opened it to
let her in. She asked him whether BK was there with SK. He replied
that she was not. However, he let
her into the flat. She went to the
room where SK and SK’s mom lived. The appellant followed her.
She opened the door and
found that both BK and SK were only dressed
in their panties. She enquired as to why this was so. Both BK and SK
were crying. The
appellant tried to answer the question, saying that
they were playing. Before he could continue further BK’s mother
cut him
off and told him not to answer a question not directed at
him. The appellant left the room. BK told her that the appellant
placed
SK on the bed and undressed her and put his penis into to SK’s
vagina. After that he put BK on the bed, undressed her and
did the
same with BK. She enquired from SK if what BK had relayed was true.
SK confirmed that it was true. The appellant claimed
that what the
two children were saying was untrue. She told the appellant that she
would be taking BK to a doctor who would verify
whether she was
sexually assaulted or not. All this time both SK and BK continued to
cry. She asked BK to dress herself, but BK
could not find her
T-Shirt. She asked SK to lend BK a T-Shirt. SK obliged. She dressed
BK and together with BK left the flat. She
left SK behind unattended
by any adult. The appellant, who it will be recalled resided in the
flat, followed BK and her mother,
and staying within earshot of them
tried to pry into the conversation they were having at the stairs
while leaving the building.
BK’s mother told him to leave them
alone. Once outside the building and away from the appellant, she
asked BK again what
had occurred. BK once again told her mom that the
appellant had removed her and SK’s panties and had placed
something from
inside his pants into her vagina. BK’s mom took
her to the police station where she opened a case of rape against the
appellant.
Thereafter, she took BK to the hospital where a Dr Nkobi
examined BK and confirmed that BK had been raped. She was only able
to
examine BK at 03h45 the next morning, 13 October 2013.
[3.3]
While Dr Nkobi examined BK, BK refused to discuss her experience at
the hands of the appellant the previous evening. The doctor
found
that there was a white discharge on the
fossa
navicularis
of BK; the
fossa
navicularis
was also “
red
”
indicating that it was bruised; her hymen had swelled and that the
entire genital area was red and bruised. The hymen, however,
was not
broken. As a result, she came to the conclusion BK had been
penetrated, though she could not be certain of the instrument
used to
penetrate BK – she could not say whether it was a “
finger
”
or a “
penis
”
or any other instrument that was used. She took a sample of the
whitish substance found and sent it for forensic analysis.
[3.4]
BK and her mother left SK to fend for herself in the flat. The
appellant was also present. SK was in her room. Ms Nzima arrived.
SK
told her what had happened to her and to BK. SK then went to bed. The
next morning her mother who was working night shift arrived
home. She
found SK sleeping. She awoke SK, ordered SK to take a bath and
together with SK she went to church. They returned from
church at
about 13h00, when she met Ms Nzima in the flat. Ms Nzima informed her
as to what had happened. She went to BK’s
mother to confirm the
information given to her. BK’s mother confirmed it. SK’s
mother took SK for a medical examination.
[3.5]
The same doctor, Dr Nkobi, examined SK later that day (13 October
2013). However, as SK had bathed and urinated after she
was allegedly
penetrated there was no evidence of injuries in her vaginal area, but
this, in itself, did not allow her to conclude
that SK had not been
penetrated.
[3.6]
BK was able to identify the appellant as the perpetrator of the rape
while he sat in the dock. Similarly with SK: she, too,
identified him
as the perpetrator while he sat in the dock.
[4]
The
appellant testified in response to the evidence of the aforementioned
witnesses called by the State. His testimony was that
he was being
falsely accused. However, he could not proffer any reason why the two
children would falsely incriminate him. His
version was that on 12
October 2013 he was in his room in the flat when, at about 13h00, his
cousin visited him. Together with
his cousin he left and went to
Rosebank. He returned at 22h00. Upon his return he was falsely
accused of raping the two children.
He was adamant that he was
not present in the flat when the rapes occurred.
[5]
After
being convicted and sentenced the appellant successfully applied,
in terms of s
309B(5)(b) of the CPA, to lead new evidence in support of his version
that he was not present at the flat at the time
that BK was being
raped.
The
evidence came in the form of oral testimony from Ms Nzima.
At this stage the appellant had changed his attorney. His previous
attorney was Mr Mabunda, who appeared together with a Mr Mabuza.
Mr
du Plessis, his new attorney, commenced representing the appellant
from the moment the court
a
quo
considered the question of appropriate sentence.
[6]
Ms
Nzima testimony, which came after conviction and sentence was passed,
was that on the day
of the incident, 12 October 2013, she arrived at the flat from work
at about 18h20. She met the children BK
and SK and asked SK where her
mother was. SK informed her that her mother would only be back the
next day as she was on night shift
duty that evening. She left the
flat at around 19h00 to purchase food. She returned at or about
19h30. The children were in the
room rented by her and SK’s
mother. The children were with her in the room until BK’s
mother arrived, which was around
23h00. BK’s mother found that
BK and SK were naked. On seeing that the children were naked BK’s
mother became upset
and began shouting at BK. The appellant came out
of his room and told her to tell BK’s mother that she (BK’s
mother)
was disturbing the peace. BK’s mother left with BK.
About twenty minutes later BK’s mother returned with BK and
accused
the appellant of raping BK. Upon hearing the accusation, the
appellant began sobbing. She told the appellant to go and wake his
father who was sleeping. BK’s mother left with BK. Ms Nzima did
not witness the rapes of the two children nor did she hear
BK or SK
make an accusation of being raped when BK’s mother first
arrived to collect BK.
The
proceedings in the court
a
quo
[7]
There
are two aspects of the way that the court
a
quo
dealt with the matter that require comment. They concern firstly the
naming of the two children who were the complainants, i.e.
BK and SK,
and their respective mothers, and secondly, allowing the appellant’s
attorney to ask certain questions of the
two children during
cross-examination.
The first matter of
concern
[8]
The
decision of the court
a
quo
to allow for the naming of BK, SK and their respective mothers
resulted in a failure on the part of the court
a
quo
to protect their wellbeing and dignity. It is a central tenet
of our law that in everything that affects a child, the best
interests of the child are paramount. This has always been a
principle of our common law. The principle is now affirmed by s 28(2)
of the Constitution of the Republic of South Africa Act 108 of 1996
(the Constitution).
[3]
The
principle applies to any litigation concerning the child.
[4]
[9]
The
principle is extended to civil proceedings: section 5 of the General
Amendment Act, 68 of 1957 criminalises the publication
of the child’s
identity in any civil proceedings where the child testifies or where
the child is a party to the proceedings:
It provides:
5
Information concerning identity of children involved in legal
proceedings not to be published
(1) No
person shall publish or make known in any manner the name, address,
school, place of employment or any other information
likely to reveal
the identity of any person under the age of eighteen years who is or
has been a party to any civil proceedings
or a witness in any legal
proceedings of whatever nature, unless the judge, magistrate or other
officer who presides or presided
at such proceedings, after having
consulted any parent or guardian, if any, of such person, consents in
writing to such publication
or making known.
(2)
Any person who contravenes subsection (1) shall be guilty of an
offence and liable on conviction to a fine not exceeding fifty
pounds
or to imprisonment for a period not exceeding three months or to both
such fine and such imprisonment.
[10]
In
criminal proceedings dealing with a sexual offence against a child
the court is obliged to protect the child complainant in every
possible way without, of course, undermining the rights of an accused
person to a fair trial.
[5]
This
protection must surely mean that the identity of the child should be
protected, for that would serve the best interests of
the child.
Identifying the child compromises the future of the child and places
him/her at risk of being ridiculed or pitied and
this diminishes the
dignity of the child as well as that of his/her parents. The harm
suffered by the child is unnecessary and
avoidable by simply
protecting the identity of the child. Thus, to avoid this unnecessary
harm from ensuing it is incumbent on
courts to never reveal the
identity of the child.
The second matter of
concern
[11]
The
focus here is on the cross-examination of the two children. The
appellant’s case was that he was not there when the two
children were raped. Accordingly, he did not and could not have
perpetrated the offences he stood accused of. The appellant did
not,
and given his stance could not, dispute that they were raped. He did
not challenge the state’s version that the two
children were
penetrated on the evening of 12 October 2013. Despite this his
attorney, Mr Mabunda, was allowed to put the following
question to
BK:
“
Mr
Mabunda (appellant’s attorney)
:
Did this man who allegedly raped you use a penis by any chance to
rape you.
The prosecutor objected
to this question:
“
Prosecutor
:
Your worship the state will object that this is an unfair question if
she has never seen one and does not know one, and she clearly
said in
her evidence-in-chief that he took something out of his pants she did
not look.”
The magistrate ruled that
Mr Mabunda should rephrase his question, which he did as follows:
Mr
Mabunda
:
You said that now the person who allegedly raped you removed
something from his pants, whatever he removed from his pants was
it
part of his body?
BK
:
Yes
At
which point, the magistrate intervened:
Court
:
Do we have anatomically correct dolls in the TV room? Ms Boikanyo are
there any anatomically correct dolls there?
…
Court
:
Let us use those dolls please place them next to the child so
that we can then. …
Following
this direction from the court, Mr Mabunda continued:
Mr
Mabunda
:
Thank you. So this thing that he removed from his pants do you know
where about in his body was this particular item?
BK: Yes
Mr
Mabunda
:
Can you please tell us or show us where in his body that is?
Before
BK could answer the magistrate instructed the intermediary to utilise
the dolls:
Court
:
Wait, Ms Boikanyo just take off the clothes of the male doll so
that she can show us
.
…
Court
:
The top and the bottom thanks, everything from there. Right
show us then which part of the body? Where [indistinct] okay
the doll
that is placed in front of the child and this doll is anatomically
correct it is organs of a male, as well as the child
has pointed out
on the doll an organ that depicts a penis of a male.
…
Mr
Mabunda
:
Thank you. The very same part that you have just shown now is it the
same part of his body that he put or inserted into your vagina?
Court
:
Are you using, okay Ms Boikanyo can you use a child appropriate
language remember the child’s description of a vagina
is
koekoe.
Ms
Boikanyo
:
Okay your worship.
Court
:
Please use that language please. Are you embarrassed to tell us?
At
this point there is silence as BK does not answer:
Court
:
Yes or no.
What
was the answer?
BK
:
I do not know
Court
:
What is the answer?
BK
:
I do not know
Ms
Boikanyo
:
Though according to the one seeing her it seems like it is hard for
her to answer because she is…
Court
:
We will determine that okay.
Ms
Boikanyo
Yes
your worship.
Court
:
Proceed Mr Mabunda. Are you still well [BK] do you want to
continue?
Ms
Boikanyo
:
She is crying Your Worship.
Court
:
She is crying?
MS
Boikanyo
:
Yes your worship
Court
:
Okay we will stand the matter down and see, let us do some
other postponements let us see whether she can continue or not.
[12]
It is
clear from this exchange that BK found the cross-examination as well
as the intervention from the magistrate very distressing.
She
continued to cry during the adjournment and informed her parents that
she did not want to continue any longer. This was conveyed
to the
court and the matter had to be adjourned for about two months.
[13]
On
resumption of the proceedings, the cross-examination of BK
continued. Once again, the theme of how she was raped was
pursued.
It seems none of the main role players – Mr Mabunda
for the appellant, the prosecutor or the magistrate – had
reflected
on the experience of the child at the previous sitting.
They merely continued as if nothing significant had occurred. And so
the
cross-examination went along the following lines:
Mr
Mabunda
:
Tell me when this alleged rape took place did the person who raped
you use a condom?
Prosecutor
:
Your worship the state is going to object maybe the defence should
first determine whether this child knows what a condom actually
is. I
am just worried about the language and the use of that.
At which point the Court
intervened:
Court:
Let us find out first from the child whether the child knows because
if she does not, let her answer she will tell us if she knows
or not.
Mr
Mabunda
:
As the court pleases. Do you have an answer to that?
Court
:
Can you repeat that question again?
BK
:
No
Court
:
Do you know what a condom is?
BK
:
No
Court
:
Did he use an object that is formed in a plastic like it is a balloon
but it is a plastic like on his penis?
BK
:
No
Then Mr Mabunda takes
over:
Mr
Mabunda
:
So no object was used during the alleged rape like in a form of
plastic?
But before BK could
answer the Court asked:
Court
:
It may be like it is a rubber like substance, rubber like object?
BK
:
I did not see that.
Mr Mabunda resumed his
questioning:
“
Mr
Mabunda
:
So he inserted his penis on your vagina the way it is?
BK
:
No
Mr
Mabunda
:
What did he do then?”
At which point the
magistrate realises that the question could be confusing and sought
clarity from Mr Mabunda:
Court
:
What is the question, what is your question Mr Mabunda? What did he
do what is the question?
Mr
Mabunda
:
What did he do yes?
Court
:
He do?
Mr
Mabunda
:
Yes, he undressed his trousers the first time and his penis.
Court
:
Demonstrate to us. … All right show us what he did what did he
do with those dolls? There are now two dolls which are anatomically
correct placed in front of the witness. …
The one is dressed in a
female doll [indistinct] the witness now demonstrating first by
removing the pants of the male doll. Then
she takes, she took then
the female doll, wait, wait, wait and the witness….
BK
:
Firstly, he undressed, he undressed his trousers and then he took me
and he undressed me.
Court
:
The witness firstly now they are taking the male doll removing the
pants of the male doll, take the female doll remove the panty
of the
female doll, on the female doll proceed. And the witness now takes
the male doll place it on top of the female doll and
the female doll
is facing up lying on its back, the male doll is facing down on top
of the female doll and then the witness demonstrate
with her hands on
top of the buttocks of the male doll making a jerking movement moving
up and down up and down.
Mr
Mabunda
:
As he was busy making those up and down movements had he penetrated
you by then?
BK
:
Yes.
Mr
Mabunda
Do
you know how big was his penis?
BK
:
Yes
Mr
Mabunda
Can
you depict or show us how big it was?
Court
:
… the witness is now demonstrating she is taking two, her
hands both hands and she is taking the index finger of both hands
and
showing how big it is, in other words she is making a circle like on
both her fingers showing how big that is the size of both
her hands
touching together the left and the right hand, the right finger or
the left finger and the right index finger as well
as the thumb, both
thumb left hand and the right hand and the index finger of the left
hand and right hand touching together in
a form of a circle.
Mr
Mabunda
:
Thank you Your Worship.
Are
you sure it was that big?
BK
:
Yes
Mr
Mabunda
At
that stage your vagina was it dry was it wet or not?
Prosecutor
:
Your worship the state is going to object.
Court
:
Why do you ask this question how will a child know about that?
Mr
Mabunda
:
Thank you Your Worship I will rephrase my question I withdraw that
question. …
Did
you feel or suffer any injuries when he penetrated you?
BK
:
Yes.
Mr
Mabunda
What
kind of pains did you feel?
Court
:
How would let me just find out wait, wait, wait. I do not understand
your question pain is pain the difference between pains,
are you
talking about the severity of the pain or was just not that severe is
that what you want to find out.
…
Mr
Mabunda:
Thank
you Your Worship I will rephrase my question. What kind of injuries
you said that you suffered injuries am I correct?
BK
:
Yes
Mr
Mabunda:
What
kind of injuries did you suffer?
BK
:
I was injured severely.
Mr
Mabunda:
Did
you bleed in the process?
BK
:
No.
Mr
Mabunda:
Do
you know if ever the person who raped you ejaculated on you?
BK
:
No
Mr
Mabunda:
Did
you see the doctor about this?
BK
:
No
Mr
Mabunda:
Do
you know why you did not go to see the doctor?
BK
:
No
”
(Emphasis
added)
[14]
SK
was subjected to the same intense and crude questioning, though it
was not for as long as BK was forced to endure. Her reactions,
too,
demonstrated that she was, like BK, extremely traumatised by the
cross-examination.
[15]
Bearing
in mind that BK was a nine year old child (who was seven years old at
the time of the rape) that the attorney Mr Mabunda
was questioning,
it has to be said that he certainly crossed the line of common
decency and conducted himself in a manner contrary
to his ethical
duty as an officer of the court. To ask a child questions about the
details of a man’s anatomy, or to query
her knowledge about
intricate sexual matters is to show grave disrespect to the child. In
my judgment it is generally wrong for
a child to be subjected to such
crude cross-examination. There was nothing to be gained by asking the
child questions which only
made the child re-live her ordeal: there
was no probative value to the questions as none of them addressed any
matter that was
in issue: the size of the appellant’s penis or
whether BK’s vagina was wet or not were not in issue. As a
result, the
questions elicited nothing of substance. They only served
to embarrass BK and her parents. They were prejudicial to the dignity
of BK and BK’s parents who had to silently and helplessly
endure watching their child being forced to suffer the attack on
her
dignity and the pain she was experiencing while testifying. Apart
from damaging BK’s dignity they caused BK significant
mental
stress, anguish and long-term psychological harm.
[16]
The
questions as well as the tone used by Mr Mabunda demeaned the court
and its processes. It is important that legal representatives
avoid
becoming overzealous in the pursuit of their client’s case and
lose all sense of proportion. The court is not a venue
for the kind
of gratuitous conduct that Mr Mabunda engaged in, nor is the process
of cross-examination availed for such conduct.
The questions quoted
above should never have been allowed or asked. It is this kind of
questioning that deters many rape victims
from reporting their ordeal
to the authorities and from seeking justice. The result is an
undermining of the public interest in
seeing all sexual assaults
reported and prosecuted. The magistrate should not have allowed them:
it is the duty of presiding officers
to vigilantly guard against
allowing such pointless questions being raised whose only effect is
to cause embarrassment and psychological
harm to the victims of these
brutal assaults. Presiding officers should remind legal
representatives of their duty not to disrespect
the child (and even
an adult for that matter) they are cross-examining and not to demean
the court and its processes.
[17]
Immediately
after focussing on the anatomy of a male and the nature and details
of sexual activities, Mr Mabunda proceeded to accuse
BK of being
deliberately untruthful to the court. The fact that he had no real
basis for this did not deter him at all. His
cross-examination
proceeded as follows:
“
Mr
Mabunda:
Thank
you. Thank you Your Worship. It is my instructions that you are
misleading this court the accused did not rape you
BK
:
He raped me
Mr
Mabunda:
It
is further my instructions that he does not dispute having been at
the same flat where you were on that particular evening. Do
you have
anything to say about that?
BK
:
He was there.
Mr
Mabunda:
Thank
you Your Worship. It is further my instructions that when he got to
the flat there was a lady by the name of Thabisile. That
lady went
out. And then now he went to his room and he went on about his
business until there was a knock at the door. There was
a person that
was busy knocking at the door. I omitted something to say that now on
that night it was not long actually before
he got in to the house
because he was somewhere else, he walked into the house that
particular evening and then went straight to
the house and then there
was that particular knock.
BK
:
He was there.
Mr
Mabunda:
And
then as he went to the door a woman was at the door who actually
started making accusations that he raped you.
BK
:
Yes he did rape me.
Mr
Mabunda:
It
was the first time that he saw this particular woman as he did not
know her.
BK
:
Yes she did not know her because my mother never used to go to
Sheila’s place.
Mr
Mabunda:
He
explained himself to this woman that he does not know anything about
these allegations and that he is denying them he did not
rape you.
BK
:
It was him.
Mr
Mabunda:
He
was shocked a few days when he was approached by the police and
arrested for this offence.
BK
:
It was my mother who called the police on him.
Mr
Mabunda:
And
that in the process of their investigations samples were drawn from
him for testing and they came out negative.
Prosecutor
:
Your Worship the state is going to object that is without going into
other evidence that is misleading to put to this witness,
they did
not come out negative they came out inconclusive which is two
different aspects.
Court
:
It is a matter for argument you cannot put to child she cannot
respond to that she has no idea how.
Mr
Mabunda:
Indeed
Court
:
Samples are analysed at the forensic laboratory.
Mr
Mabunda:
In
a nutshell this confirms his denials that he never raped you and
therefore even before this court today he is confirming same
that he
did not rape you.
Ms
Boikanyo
:
Your
Worship she is crying let me reach for toilet paper.
Court
:
Crying oh just get, we are about to finish now [BK] okay.
Mr
Mabunda:
:
I have no longer questions for her safe to say waiting for the
answer.
Court
:
Okay this the last question okay Mr Mabunda is saying it is the last
question okay.
BK
:
Why are the doctor’s saying that I have been raped?
Mr
Mabunda:
No
we know what the doctor’s told us what do you say were there?
Are you upset?
Mr
Mabunda:
I
see she is [indistinct]
Court
:
Hey man you may please shut up
BK
:
He raped me
Mr
Mabunda:
No
further questions thank you Your Worship.” (Emphasis added)
[18]
This
line of questioning, too, was inappropriate. Incidentally, the same
line of questioning was directed at SK who, too, was distressed
by
it. As with the previous line of questioning, these questions should
never have been allowed to do this. In this context
the
following instructive pronouncements of Ngcobo J bear reminding:
“
[1]
Until recently, the law did not pay much attention to the stress that
child complainants in sexual offence cases suffer when
they testify
in courts. Child complainants in sexual offence cases were required
to relive the horror of the crime in open court.
The circumstances
under which they gave evidence and the mental stress or suffering
they went through while giving evidence did
not appear to be the
concern of the law. And, at times, they were subjected to the most
brutal and humiliating treatment by being
asked to relate the sordid
details of the traumatic experiences that they had gone through.
Regrettably, although there were welcome
exceptions, the plight of
child complainants was seldom the concern of those who required them
to testify or those before whom
they testified.
[2]
The advent of our constitutional democracy must change all of that.
Our constitutional democracy seeks to transform our legal
system. Its
foundational values of human dignity, the achievement of equality and
the advancement of human rights and freedoms,
introduce a new ethos
that should permeate our legal system. Consistent with these values,
s 28(2) of the Constitution requires
that in all matters concerning a
child, the child's best interests must be of paramount
importance.
”
[6]
[19]
It
certainly does not serve the best interests of the child to subject
her to gratuitous cross-examination or to allow cross-examination
that accuses her of being untruthful. The duty of the court to
vigilantly guard the best interest of the child in cases such as
these was emphasised by the Constitutional Court:
“…
s
28(2) [of the Constitution] is an injunction to courts to apply the
principle that the best interests of the child are of paramount
importance in all matters concerning the child. It is incumbent upon
all those who are responsible for the administration of justice
to
apply the principles of our criminal law and criminal procedure so as
to protect child complainants in sexual offence cases
from secondary
trauma that may arise from testifying in court. Judicial officers are
therefore obliged to apply the best-interests
principle by
considering how the child's rights and interests are, or will be,
affected by allowing the child complainant in a
sexual offence case
to testify without the aid of the intermediary.
”
[7]
Analysis of the merits
of the appeal
[20]
The
first question for this appeal is whether the state had proven beyond
reasonable doubt that the appellant had raped BK. As the
appellant
was acquitted by the court
a
quo
of raping SK, and as the state had failed to appeal this finding, no
further attention need be paid to that part of the court
a
quo’s
verdict.
[21]
The
evidence of BK, SK and the doctor clearly reveal that BK was raped
and that the appellant was the perpetrator of the rape. None
of the
testimonies were contradicted in any material way, nor were any
internal inconsistencies identified in their testimonies.
In fact,
all their testimonies were carefully, coherently and lucidly
presented. Both SK and BK withstood brutal and bruising
cross-examination. The magistrate in my view correctly accepted their
testimonies without more.
[22]
At
the same time, the appellant’s account of why he was blamed for
raping BK is, in my view, not reasonably possibly true.
His account
was nothing short of a manufactured falsehood. He was unable to deal
with the crucial question as to why two young
children would falsely
incriminate him. Similarly with BK’s mother who had no previous
encounter with him: she had no reason
to falsely accuse him of raping
BK. He was vague in his account of his absence at the time the two
children were raped and was
not able to present any confirmatory
evidence supporting his alibi that he was elsewhere at the time. His
attempt to produce some
confirmatory evidence, which evidence was
allowed after he was already convicted, did not succeed in creating
any doubt about the
conclusion (arrived at by having regard to all
the evidence prior to this new testimony being provided) that he was
the perpetrator
of the rape endured by BK. The evidence of Ms
Nzima was not helpful for she was out of the flat for a time and the
question
of whether that was the time when the rape took place was
never explored.
[23]
The
appellant attacked the finding of the court
a
quo,
which was that the evidence against him was reliable and trustworthy.
His counsel, Mr du Plessis, contended that the evidence of
BK and SK
could and should not be believed because they were children who were
not only prone to being influenced by BK’s
mother but were
actually so influenced. There is absolutely no merit in this
submission. Mr du Plessis was asked on numerous occasions
to proffer
an explanation as to how his submission could be reconciled with the
uncontradicted objective evidence that there was
a white discharge on
the
fossa
navicularis
of BK, the
fossa
navicularis
was bruised, her hymen had swelled and that the entire genital area
was bruised, all of which were indicative of her being penetrated.
His answer was she probably suffered “
self-inflicted
harm
”.
The answer bore no relation to the facts as established by the
uncontradicted evidence. What is worse is that the appellant
made no
effort to present any evidence in the court
a
quo
that could even remotely support such a submission. Yet Mr du Plessis
saw no problem in making this submission on appeal. This
is
unfortunate for it presented BK and SK as liars and vindictive
children who had no qualms in implicating an innocent man in
a
heinous crime, and who had the capacity for being particularly
scheming and clever enough to fool BK’s mother, SK’s
mother and the doctor. The irrationality and unreasonableness of this
submission escaped Mr du Plessis. For Mr du Plessis to make
such a
careless submission on appeal is simply wrong. It is, as he was wont
to admit, simply speculative with no basis in fact
or in logic.
[24]
Further,
he contended that the fact that the doctor had failed to find any
corroborating scientific evidence giving credence to
the evidence of
the two children (such as the appellant’s DNA on any of the
children) was an indication that the children
were not honest in
their testimonies. The logic propounded by Mr du Plessis is
inherently unsound. The non-existence of corroborating
scientific
evidence is no proof that the
viva
voce
evidence of the two children was false. The veracity of their
evidences can and should be tested by its internal consistency and
by
their individual credibility, which is decided upon after having
regard to the scrutiny it was subjected to during cross-examination.
On these scores, there can be no intelligent criticism against their
testimonies. The evidence of both BK and SK was trustworthy.
Given
the testimonies of BK and SK and the findings of the doctor, the
probability that BK was raped on 12 October 2013 is so strong
that a
factual finding to this effect is not just appropriate but
unavoidable. It is also an established fact that on this day
at the
time that the rape occurred she, together with SK, was in the flat
belonging to the appellant. It is also an established
fact that he
was there at some point during that time. There is also no evidence
of any other male person ever being in the flat
at that time on that
day. Unsurprisingly then, when invited by the Court to make
submissions on what the Court should do if it
comes to the conclusion
that BK was raped, Mr du Plessis answered: “
in
that case, the appellant must be convicted
.”
The concession was correct.
[25]
Hence,
I come to the conclusion that the state had proven beyond reasonable
doubt that the appellant had raped BK on 12 October
2013 and that his
conviction by the court
a
quo
is safe.
Sentence
imposed by the court
a
quo
[26]
Sub-sections
51(1) and (3) of the CLAA, read with Schedule 2 of the same Act, make
it plain that the court can depart from the minimum
sentence of life
imprisonment only if the court is satisfied that substantial and
compelling circumstances exist which justify
the imposition of a
sentence lesser than life imprisonment. The import of ss 51(1)
and (3) of the CLAA was best summarised
in
S
v Malgas.
[8]
The fundamental lesson procured from
Malgas
is that courts are to take note of the fact that the Legislature in
all its wisdom has seen fit to ordain specified minimum sentences
in
certain specified crimes; that they are not to deviate from these
minimum sentences for “
flimsy
reasons
”,
and that a departure from the minimum sentence can only occur where
there are “
substantial
and compelling grounds
”
for doing so. Courts have to provide sound reasons for departing from
the minimum sentence prescribed in ss 51(1) and (3)
of the CLAA.
Sentencing courts have been reminded of this many times by the
Supreme Court of Appeal. One such unambiguous reminder
is to be found
in the
Matyityi
where Ponnan JA said:
“
Despite
certain limited successes there has been no real let-up in the crime
pandemic that engulfs our country. The situation continues
to be
alarming. It follows that, to borrow from
Malgas
,
it still is 'no longer business as usual'. And yet one notices all
too frequently a willingness on the part of sentencing courts
to
deviate from the minimum sentences prescribed by the legislature for
the flimsiest of reasons - reasons, as here, that do not
survive
scrutiny. As
Malgas
makes plain, courts have a duty, despite any personal doubts about
the efficacy of the policy or personal aversion to it, to implement
those sentences. Our courts derive their power from the Constitution
and, like other arms of State, owe their fealty to it.
Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing due deference
to
the legitimate domains of power of the other arms of State. Here
Parliament has spoken. It has ordained minimum sentences for
certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing
from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as 'relative
youthfulness' or
other equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's personal
notion of fairness
.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational to the rule of law which
lies at
the heart of our constitutional order.”
[9]
(Emphasis added)
[27]
After
pronouncing on the guilt of the appellant, a pre-sentence report from
a qualified social worker was commissioned and provided.
The social
worker explored some of the facts relating to the appellant’s
circumstances. The two most important ones were
that he had been
affected by the untimely death of his mother, which occurred on 5
April 2013, and that he had become severely
depressed since being
imprisoned. There was no mention in the report that he was remorseful
for his actions. The social worker
was not able to make contact with
either BK or her mother and was therefore unable to enlighten the
court as to how they were coping
with the trauma they endured. She
discussed various sentencing options but her report on this score was
academically oriented and
therefore of little practical value.
[28]
The
appellant did not testify in mitigation of sentence. Nor did he call
any of his family members or anyone else to do so.
[29]
The
appellant was sentenced to a period of 15 years imprisonment. The
magistrate was cognisant of the fact that he was enjoined
by the
Legislature to impose a sentence of life imprisonment on the
appellant but found that a departure from this prescribed minimum
sentence was justified as there were compelling and substantial
circumstance that redounded to the benefit of the appellant. The
magistrate reasoned this as follows:
“
The
[appellant] was 19 years of age at the time the offence was
committed. He was a first offender and has been in custody now for
26
months awaiting finalisation of the matter.
The
time he spent in prison, awaiting trial, being two years and two
months certainly does not qualify as flimsy grounds
.
…
The
minimum sentencing regime stipulates the age of the victim as needing
to be younger than 16 years for life imprisonment to kick
in. Accused
is still a young man.
The
doctor that examined [BK] only found redness on the
fossa
navicularis
and bruises and swelling on the hymen and the hymen was irregular
.
When
Court decide [sic] on imposing sentence it has to take into account
all factors that have been placed before it. This particular
crime
has undeniable [sic] escalated. But however, while retribution
remains a sentencing objective this does not mean that
disproportionate
sentences may be imposed on offenders.
…
Whether
life imprisonment is an appropriate sentence, particular [sic] in
respect of its proportionality to the particular circumstances
of the
case requires careful consideration.
The
minimum sentence prescribed by law which in the circumstances of a
particular case would be unjustly disproportionately [sic]
to the
offender and to society would [sic] justify the imposition of a
lesser sentence that the one prescribed by law
.
In
respect of the severity of the rape, it was explained in the medical
report that the doctor found redness on the
fossa
navicularis
and swelling and bruises on the hymen and that is all that he [sic]
found. There was no further violence in addition to the rape
.
Having
weighed the mitigating factors against the gravity of the offence,
taking into account the age of the accused at the time
the offence
was committed, the period he was in custody awaiting finalisation of
the matter, him being a first offender, all these
factors constitute
substantial and compelling circumstances.
”
(Emphasis added)
[30]
The
crux of the magistrate’s reasoning for departing from the
prescribed minimum sentence is that (i) the appellant was young;
(ii)
he was a first offender; (iii) the rape was not serious because it
did not result in serious physical harm to the anatomy
of BK; and
(iv) the appellant spent twenty-six months in prison awaiting
finalisation of his case. The magistrate was simply wrong
on the
third factor (the rape was not serious). This erroneous conclusion on
his part resulted in him actually trivialising the
experience of BK
and the harm (physical and psychological) that she suffered. Whilst
he was allegedly (I say allegedly because
he was acquitted of this
crime) raping SK they were both crying. In the case of BK the trauma
manifested itself during her testimony
when she was forced to relive
her ordeal. Rape in general is no minor offence. It is a brutal
violation of the humanity of the
victim. It causes significant
permanent harm to the victim. In the case of a child who is incapable
of fully grasping the import
of sexual activity the wound caused by
rape hardly ever heals. Once grown-up and entitled to engage in
consensual sexual activity
the danger of the wound opening during her
most intimate moments and thereby depriving her of engaging in and
enjoying what is
simply a natural activity for most human beings is
real and cannot be underestimated.
[31]
To
conclude that the rape of BK was not serious because there was no
significant physical harm detected on the anatomy of BK was
a
significant misdirection. The court
a
quo
did not, in my view, accord sufficient weight to the fact that the
rape of BK was brutal. The court
a
quo
also did not give any credence to the fact that he remained
unremorseful about his actions. In these circumstances, I hold that
the interests of justice require that a misdirection of this
proportion has to be rectified by this Court.
[32]
The
state, however, did not appeal against the sentence imposed by the
court
a
quo
although at the commencement of the hearing it submitted that the
sentence was too lenient and that this Court should set it aside
and
impose the one prescribed by the Legislature in ss 51(1) and (3) of
the CLAA. The state’s conduct is disturbing. If it
believed
that this Court should amend the sentence it is duty-bound to bring a
cross-appeal. Instead it remained silent up until
the date of the
hearing. This is not the first time this Court sitting in appeal has
encountered the state adopting this approach.
Fortunately, this was
raised at the commencement of the hearing, allowing for it to be
postponed so that the appellant could be
given an opportunity to
present further submissions on this issue. The appellant was
specifically put on notice of the possibility
that the sentence may
be increased should this Court confirm the conviction.
[10]
He was invited to make submissions on whether the Court is empowered
to increase the sentence and if so whether it would be appropriate
to
do so in the circumstances of this case. Further submissions were
received from both parties. There was no debate between them
that
this Court is empowered to increase the sentence. On the second issue
they disagreed: the appellant took the view that the
court
a
quo
was correct in finding that there were substantial and compelling
circumstances to depart from the prescribed minimum sentence
and the
state took the view that there were none.
[33]
The
appellant had committed a heinous crime. He raped a minor child.
Rape
in general, we know, ranks as a very serious offence
.
Our courts have repeatedly said this and so has our Legislature by
enacting s 51 of the CLAA. Courts have a duty to ensure that
the
offence is dealt with in a manner that respects the rights of rape
victims. During the early years of our constitutional order
Mahomed
CJ reminded courts of this duty:
“
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. Women in this country are
entitled to the protection of these rights….
The Courts are
under a duty to send a clear message to the appellant, to other
potential rapists and to the community:
We
are determined to protect the equality, dignity and freedom of all
women, and we shall show no mercy to those who seek to invade
those
rights.
We communicate that message in this case by an order that the appeal
of the appellant against his convictions and sentences is
dismissed.”
[11]
(Emphasis added)
[34]
Noting
the afore-quoted
dicta
found in
Chapman
,
Bosielo JA observed:
“
[17]
What is even more disturbing is the emergence of a trend of rapes
involving young children which is becoming endemic. A day
hardly
passes without a report of such egregious incidents. Public
demonstrations by concerned members of society condemning such
acts
have become a common feature of our everyday news through the media.
…
[22] …
Rape of women and young children has become cancerous in our society.
It is a crime which threatens the very foundation
of our nascent
democracy, which is founded on protection and promotion of the values
of human dignity, equality and the advancement
of human rights and
freedoms. It is such a serious crime that it evokes strong feelings
of revulsion and outrage amongst all right-thinking
and
self-respecting members of society. Our courts have an obligation to
impose sentences for such a crime — particularly
where it
involves young, innocent, defenceless and vulnerable girls — of
the kind which reflects the natural outrage and
revulsion felt by
law-abiding members of society. A failure to do so would regrettably
have the effect of eroding the public confidence
in the criminal
justice system.
”
[12]
[35]
Doubtlessly,
the question of an appropriated sentence is always an individualised
matter. However, in my view the dicta of Ponnan
JA quoted in [26]
above is fundamental.
[36]
Mr du
Plessis urged us not to impose the prescribe minimum sentence
because, he said, it would be a disproportionate one. The
disproportionality
he had in mind is one that focussed on the
interests of the appellant. It is disproportionate to his interests
as a first offender
and as one who was very young at the time he
perpetrated the offence. But proportionality has to take into account
the interests
of society as well as the gravity of the offence. In
this sense proportionality and balance are not different: a
proportionate
sentence and a balanced one are one and the same.
[37]
Whilst
it is true that there have been some cases in our courts where it has
been held that there are degrees of seriousness of
rape
[13]
,
as Satchwell J points out, an attempt to draw out the degree of
seriousness of rapes in general is not without problems. In her
words:
“…
Furthermore,
the responses of rape survivors are surely as complex and
multi-layered as are the individuals who experience rape.
We must
therefore expect the manifestation of the impact of rape to be varied
in every respect. Some responses will be publicly
displayed and
others privately endured. Some rape survivors will collapse while
other will bravely soldier on.
…
It
would seem that sentencing courts are expected to view rape as ‘more
serious’ where a rape survivor cannot sleep,
fears men and sex,
is unable to concentrate and cannot complete school, or has a career
or relationship destroyed. If this is so,
then other rape survivors
may question why their rapes are viewed as ‘less serious’
because they may have been fortunate
or privileged enough to receive
professional assistance, be endowed with different personalities and
psyches, exhibit fewer post-traumatic
effects and so on. The
Legislature does not seem to have intended the rapist to be less
morally and legally blameworthy because
the rape survivor appears to
or actually does survive, or continues life with less apparent
trauma.
”
[14]
[38]
In my
view the harm caused to the two children in this case is very
serious. They were only seven and eight years old at the time
of the
incident. To have to undergo the trauma they did at that tender age
is no small harm.
[39]
I
am mindful of the fact that s 51 of the CLAA has not removed the
discretion of the court to impose a sentence it deems fair and
appropriate,
[15]
and that
there has been a fair number of judgments where it has been held that
the minimum sentence preferred by the Legislature
ought to be
departed from in certain cases where the rape had not resulted in
significant physical harm of the victim. Some of
those judgments are
referred to in the judgment of my colleague van der Linde J, but
those cases, in my view, do not set a benchmark
of what an
appropriate sentence for the rape of a child should be. In fact,
there is a cogent argument to be made that in many
of those cases the
courts “
trivialised
the experience of the victims
”
or “
subverted
the will of the Legislature
”
(something that, as Ponnan JA
[16]
reminds us, has to be avoided). Also, at the same time there are
numerous cases where the courts have not deviated from the prescribed
minimum sentences.
[17]
In any
event, what is most common in almost all of the cases cited by my
colleague where there was a deviation from the minimum
sentence and
where the appeal court upheld that sentence is that the appeal court
placed great emphasis on the principle that the
discretion of the
trial court to impose a sentence must not be lightly interfered with.
That principle I accept, but in my understanding
the principle is not
that the discretion should never be interfered with. In a case where
the discretion has not been appropriately
exercised by a court
a
quo
,
the appeal court should interfere whether it be to increase or
decrease the sentence. The question of whether the court
a
quo
has appropriately exercised its discretion will depend on the
reasoning that supports the outcome. In this case the court
a
quo
imposed a sentence of 15 years imprisonment. This I must say is a
significant departure from the suggested mandatory one. In my
view
this is much too lenient a sentence.
[40]
In my
judgment, the fundamental approach in a case such as this has to be
one that accepts that the mandatory sentence of life imprisonment
should only be departed from where there is a weighty justification
for doing so. And the extent of the departure must be proportionate.
It cannot be so lenient that it loses altogether the importance of
giving effect to the legislature’s concern about the severity
of the crime, and the interests of society to put an end to it by at
the very least making it clear to all perpetrators and would
be
perpetrators that “
it
is no longer business as usual
”.
[41]
I
accept that the court
a
quo
was correct to find that the appellant was very young when he
committed the heinous deed, that it was a once-off event and not
a
protracted one (as is often found in the case of rapes of children),
he had already served two years awaiting trial, and that
he was a
first offender who should be given a second chance. A sentence of
life imprisonment may deny him that second chance. But,
as stated
above, 15 years imprisonment is too lenient. I would impose a
sentence of 20 years imprisonment but would reduce it to
18 years
because of the fact that he already served 26 months awaiting the
finalisation of his case. Given the substantial
difference
between the one I would impose and the one imposed by the court
a
quo
it is only appropriate that I propose an alteration in the sentence.
Order
[42]
I
propose the following order:
1.
The
appeal against conviction is dismissed.
2.
The
sentence imposed by the court
a
quo
is set aside and replaced with the following one.
1
The
appellant is sentenced to 18 years imprisonment.
2
The
appellant’s name shall be reflected in the sexual offender’s
register.
_____________________
VALLY
J
I agree:
_____________________
Van der Linde J
I agree:
_____________________
Keightley
J
[1]
This
portion of the sentence resulted by virtue of the operation of s
50(2) of Act 32 of 2007
[2]
This
portion of the sentence resulted by virtue of the operation of s
103(1) of Act 60 of 2000
[3]
It
provides: “A child’s best interests are of paramount
importance in every matter concerning the child.”
[4]
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC) at
[14]
– [26];
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development, and Others
2009
(4) SA 222
(CC) at [72] and following;
Centre
for Child Law v Hoẽrskool Fochville and Another
2016
(2) SA 121
(SCA) at [24]
[5]
See,
Director
of Public Prosecutions, Transvaal
,
n4
[6]
Director
of Public Prosecutions, Transvaal,
n4, at [1] – [2]
[7]
Director
of Public Prosecutions, Transvaal,
n4, at [113]
[8]
2001
(2) SA 1222
(SCA) at [25]
[9]
S
v Matyityi
2011 (1) SACR 40
(SCA) at [23] See also,
S
v Nkunkuma and others
2014 (2) SACR 168 (SCA)
[10]
S
v Bogaards
2013 (1) SACR 1
(CC) at [58] – [72]
[11]
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
at
5b-e
[12]
Director
of Public Prosecutions, North Gauteng v Thabethe
2011 (2) SACR 567
(SCA) at [22]. See also:
S
v GK
2013 JDR 1607 (WCC)
[13]
See:
Rammoko
v Director of Public Prosecutions
2003
(1) SACR 200
(SCA) at [12];
S
v Abrahams
2002
(1) SACR 116
(SCA) at [29] and
S
v Mahomotsa
2002
(2) SACR 435
(SCA) at [17].
[14]
S
v M
2007 (2) SACR 60
(WLD) at [99] and [101] In the same vein, the
learned author, Pumla Dineo Gqola correctly warns us of the dangers
inherent
in this approach:
“…
we
often pretend that there are ‘mild’ rapes and ‘brutal’
rapes, terrible but ‘understandable’
rapes versus
inexplicable and inexcusable rapes. When we do so, we often speak of
the rapes of children and old women as the
‘worst’ kinds
of rapes. Yet, they form part of the very fabric of rape in the
country – they are neither rare
nor different in their
brutality. All rape is brutal. It is not possible to speak of some
rapes as the worst without suggesting
at the very least that some
rapes are ‘understandable’. But this system of gradation
goes to the very heart of the
problem. It will never be possible to
eliminate the rapes considered most brutal without dismantling what
makes rape not just
possible but also so permissible in our
society.” (Pumla Dineo Gqola, Rape –
A
South African Nightmare
MF Books (2015) at 8
[15]
S
v
Malgas
,
2001 (1) SACR 469
(SCA) at [25]
[16]
See
quote in [26] above
[17]
A
very recent one is
Director
of Public Prosecutions v Peli
2018
(2) SACR 1
(SCA) where the SCA increased the sentence of 10
years imprisonment of which 4 years was suspended for the rape of a
6
year old boy to life imprisonment