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[2018] ZAGPJHC 612
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Mokhale v S (A71/2018) [2018] ZAGPJHC 612 (20 September 2018)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A71/2018
In
the matter between:
MUSIWA
JAFTA
MOKHAHLE APPELLANT
and
THE
STATE RESPONDENT
J
U D G M E N T
(IN
CORAM MABESELE J AND REYNEKE AJ)
REYNEKE
AJ
Introduction
[1]
The appellant, age 28 at the time, was charged in the
Germiston Regional Court with rape, read with the provisions
of
subsections 51 and 52 of the Criminal Law Amendment Act 105 of 1997
(the minimum sentencing legislation). It was alleged that
he had
raped the complainant who was ten years old, by inserting his penis
into her vagina.
[2]
The appellant had legal representation and pleaded not guilty. The
state called eight witnesses. The complainant and A testified
through
an intermediary due to their ages. The appellant testified and denied
the state’s version. The magistrate accepted
the evidence of
the state witnesses and rejected the appellant’s version. The
magistrate, having found that there were no
substantial and
compelling circumstances to deviate from the minimum prescribed
sentence in terms of the
Criminal Law Amendment Act, imposed
a
sentence of life imprisonment and declared the appellant unfit to
possess a firearm. It was ordered that his particulars be included
in
the National Register for Sex Offenders.
[1]
The appellant exercised his automatic right of appeal against both
conviction and sentence.
Facts
The
State’s version
[3]
The complainant testified that she was in grade five in 2016. In that
year, on a Friday afternoon, she and A, her friend, were
on their way
to Mashaba-shop in Dukathole to buy chips. The appellant was known to
them as ‘Socks’. As they passed
his shack, he called them
and sent A away to buy cigarettes. The complainant waited on the
stoep because the appellant said the
two of them together will walk
too slow. The appellant pulled the complainant inside the house and
closed the door. He threw her
on her back on top of the bed, lifted
her skirt and pulled down her panties. He unzipped his pants, took
his penis out and put
it into her vagina. He kept on putting it in
and pulling it out. She was unable to say how long the intercourse
lasted.
[4]
Thereafter the appellant dressed himself. He was wearing a blue
overall, with trousers and a torn vest underneath. She then
noticed
that A was peeping through a hole. This hole, as big as a 50 cent
piece, was in the wall, next to the door. A cigarette
came through
the hole. The appellant ordered her to dress and to go away.
[5]
It was already dark. She went into a passage and ran towards A, who
was standing in the street. The complainant started to cry.
A asked
her why she was crying and she told her that the appellant had raped
her and threatened to kill her if she should tell
anybody. Thereafter
the two girls played hopscotch in the street. This game
involved much jumping. A’s mother was home,
but the complainant
did not make a report as she was threatened not to speak.
[6]
The following day, a Saturday, the complainant went to her
grandmother’s place. There was a ritual during which girls
were
examined. When it was her turn, she ran away to avoid the
examination. She was caught and examined by Sister Nonhlanhla. The
former put a finger on her vagina. She was questioned, but was afraid
to speak.
[7]
On the Tuesday, she first told A’s mother and then her own
mother that she was raped. The police were called. She pointed
the
appellant’s shack to the police and she and A pointed out the
appellant to the police without entering the shack. The
appellant was
wearing shorts at the time. She described the shack as being rusty
and painted in red and pink. There was a fridge,
a sofa, a small
carpet and a bed with clothes at the foot end of the bed.
[8]
A was ten years old and in grade four when she gave her testimony.
She testified that they were on their way back from
Mashaba-shop. She
noticed that Socks, who was standing outside his shack, was peeping
in their direction. They both ran away, but
Socks caught the
complainant and took her inside his shack.
[9]
She did not see what happened in the shack. She was standing at
KMG-shop when the complainant came running to her. The complainant
told her that Socks had grabbed her and raped her and that he will
kill them if they tell their parents. They went and played a
game,
named ‘Mafrotane’, where they had to run around. They
also played with O, the landlord’s daughter.
[10]
P N testified that Nonhlanhla Sibisi was at her house on Saturday, 19
March 2016, to conduct a virginity test on a group of
children. When
the complainant was called to be examined, she ran away. She was
caught, but at first resisted the examination.
When she finally gave
her cooperation, they discovered that she was no longer a virgin. She
refused to relate what had happened.
[11]
In 2016 and at the time of the hearing, Nonhlanhla Sibisi was the
president of Mbabazani Cultural Group. This cultural group
issues
certificates to children who are still virgins. She examined the
complainant. She opened her vagina without putting her
fingers inside
and discovered that the white fat was damaged. From the deep red
colour she could see that it was a fresh incident,
between one and
three days old. In the event of an old incident the red colour would
be faded and there would be a white discharge.
She called P N
to witness the damage.
[12]
N H testified that the complainant, who is her daughter, was born on
[…] August 2005. P N is her aunt, but the complainant
regarded
her as her grandmother. On 19 March 2016 she received a phone call by
a person who identified himself as Jafta, also known
as Socks, from
Extension 9. He said he wanted to discuss something with her. She
indicated that there was nothing to discuss and
ended the call. She
thought he had romantic intentions with her.
[13]
Later the very same Saturday, P N made a report to her, causing her
to question the complainant, but the complainant, crying,
refused to
speak. She left it there. Eventually on Thursday, the complainant
told her that it was Socks and that A knew about the
incident. She
questioned A about the incident, who related a version. A said that
she had put the cigarette under a carpet because
the door was closed.
Then she questioned the complainant, who related the same version.
The complainant reported that she kicked
as Socks was raping her on
the bed, causing him to loose balance. He then made her lay on the
floor and raped her a second time.
[14]
She called the police and they went to the appellant’s place,
which had a faded pink colour. The door of the shack was
painted
blue. The two children pointed him out to the police. On Thursday,
after the pointing out, the complainant was taken to
a doctor.
[15]
Shortly after the incident, but before the complainant made her
report, she complained that it was painful to urinate. The
complainant had to wash her underwear herself. If it was not clean,
she would assist. There was a burned colour on her panties.
[16]
A medico-legal-examination report (J88), completed by Dr Masango
after examination of the complainant, was admitted into evidence.
He
testified that a circular cleft or old scar was found on the hymen,
indicating that there was a laceration which has healed.
Penetration was not excluded. The cleft indicated that
penetration with a blunt object caused damage to the hymen and left
the scar. There was no bleeding or fresh lacerations, thus the time
of the penetration could not be established. Any wound takes
four to
seven days to heal.
[17]
Lindiwe Kenke testified that A, her daughter, was born on […]
July 2007. On 24 March 2018 at 19h30 N H, who is her neighbour,
called. She went to the house and tried for over an hour to probe the
complainant about the incident. Eventually the complainant
agreed to
tell her mother what had happened to her. The complainant then
whispered into her mother’s ear. Kenke could not
overhear the
whispering. Kenke proceeded to question the complainant in the
presence of her mother, who explained that Socks raped
her on the
bed. She did not ask how many times the girl was raped. The
complainant described that there was a blanket on the sofa.
Kenke
knew the appellant for many years by the name “Socks”,
but was not familiar to the name “Jafta”.
She was present
when the two girls pointed Socks out to the police.
[18]
Lawrence Madimetja Mabusela is a Sergeant with 12 years’
service in the Police Service. On 24 March 2016 at 22h15 he
attended
to a complaint. The complainant told him in Xhosa that she was raped
by Jafta. She pointed a shack out. The appellant
opened the door and
he eventually arrested him. He did not enter the shack.
[19]
An affidavit in terms of
section 212(8)
of the
Criminal Procedure Act
51 of 1977
was accepted, showing that swabs were taken from the
complainant and buccal samples were taken from the appellant. A
further document
was handed in by consent, indicating that no semen
or blood was detected on two panties.
Evidence
for the appellant
[20]
Mosiwa Jafta Mokhahle, the appellant, testified that he is known as
‘Socks’. He knew the complainant and
A by sight.
They are neighbours. He knew the complainant’s mother very
well, since 2002. KG Spaza shop is next to the complainant’s
house. Right in front of his shack is another spaza shop, facing his
house. Mashaba-shop is across the street, also facing his
shack.
[21]
He worked during the day in Wadeville and knocked off at 14h30. He
was wearing a green overall to work, which he did not usually
take
off when he arrived home. He denied that the complainant had ever
entered his shack, except for the day when he was pointed
out.
Common
facts
[22]
Socks is the appellant’s nick name. He and the two children
knew each other for quite some time. Their houses are situated
in
close proximity and they used to visit the same spaza shops. The
pointing out is admitted. There is no doubt about identity.
[23]
The medical evidence by Dr Masango, albeit six days after the
incident, corroborates penetration, while the evidence by P N,
who
examined the complainant the day after the incident, clearly
shows that the child was sexually tampered with.
Issues
[24]
The court a quo correctly found that the only issue is whether it was
indeed the appellant who was the perpetrator and that
this issue
revolves around the credibility of the witnesses.
Evaluation
of the evidence
[25]
The magistrate applied her mind to whether the evidence was
sufficient to show beyond reasonable doubt that penetration had
occurred. The doctor testified that the cleft that he had found was
consistent with penetration by a blunt object. Therefore I
cannot
fault the finding that rape was committed.
[26]
Treating the complainant as a single witness, the court a quo was
mindful of the cautionary rules as set out in
S
v Mokoena.
[2]
It is trite that a court should approach the evidence holistically.
[27]
The same version which the complainant related in the court a quo,
was also related to her mother. In court, the two girls
related the
same version in essence, but there were indeed contradictions. The
first ground of appeal is based on the contention
that the court a
quo erred in finding that the state had proved its case beyond
reasonable doubt, as there were material contradictions
between the
testimony of the girls as to what the appellant did on the day of the
incident.
The
contradictions
[28]
A. testified that they were on their way back from the shop, while
the complainant testified that they were going to the shop
to buy
chips. It was not canvassed what happened to the chips, if it was
indeed bought. The fact is, however, that the girls were
in close
proximity to the appellant’s shack, in order to visit Mashaba
shop.
[29]
Counsel for the appellant submitted that there is a contradiction in
that A. informed the court that the appellant caught the
complainant
in the street and pulled her into his shack. On the other hand, the
complainant said that they were called by the appellant
and both of
them proceeded into appellant’s yard.
[30]
The record shows that there was some confusion about what the
complainant had said: whether it was cold, or whether she was
being
scold for sitting on a stoep, or whether she was getting soiled as
she was seated on a stoep, and therefore being scolded.
Further
evidence is that there are streets and shacks with passages in
between, where people freely moved. The complainant
testified
that she was seated on the stoep of a shack; not that of the
appellant. He told her that it was cold and took her into
his shack.
A. testified that she told the complainant that they should run away,
but that the appellant had grabbed the complainant.
[31]
Although A. did not testify that she was sent to buy a cigarette and
what she did with it, she indicated to the complainant’s
mother
that she had put the cigarette under a carpet at the door.
[32]
The appellant suggested that the reason why the complainant is able
to describe the inside of his shack, is because she had
entered the
shack during the pointing out. The complainant contradicted herself
on this point during cross-examination. All the
people present at the
shack, including Sargent Mabusela, denied that they have entered the
shack during the pointing out. Therefore
I do not regard this
contradiction as inherent. The complainant was able to describe the
inside of the shack with clarity, even
referring to clothes stacked
at the foot-end of the bed, because she was inside and had the
opportunity to make her observations.
[33]
I agree with the conclusion of the court a quo that the discrepancies
are not material as they were a matter of detail and
as such do not
impact on the credibility of the witnesses. The contradictions are
not essential. Nothing turns on it.
[34]
It was further submitted on behalf of the appellant, that his version
was reasonably possibly true and that the trial court
erred in
rejecting it. The magistrate found that the appellant ‘demonstrated
an ability to tailor his evidence to his advantage’,
that there
is overwhelming evidence against the accused and that the appellant’s
version is highly improbable. She based
this finding on the
inexplicable situation, (where the complainant was undoubtedly
sexually assaulted), as to why these two children
would accuse the
appellant as the perpetrator in circumstances where they knew him
well. They had no motive to falsely incriminate
him. If the
perpetrator was somebody else, they could say so.
[35]
Contradiction per se does not necessarily lead to the rejection of a
witness’ evidence. Contradictions may simply be
indicative of
an error, not every error made by a witness affects his credibility.
The trier of facts has to make an evaluation,
taking into account
such matters as the nature of the contradictions, their number and
importance.
[36]
Nestadt JA in
S
v Mkohle
[3]
expressed as follows: ‘It need hardly be stressed that where a
trial court’s findings on credibility are in issue on
appeal,
as in this matter, then, unless there has been a misdirection on
fact, the presumption is that the conclusion is correct,
the
appellate court will only reverse it if convinced that it is wrong.’
[37]
In my opinion the magistrate correctly concluded that the
inconsistencies and differences there were of a relatively minor
nature and “the sort of thing to be expected from honest but
imperfect recollection, observation and reconstruction.”
In my
opinion the court a quo did not misdirect itself.
[38]
In
S v
Chabalala
[4]
,
Heher J enunciated that a court has to weigh up all the elements
which point towards the guilt of the accused, against all those
which
are indicative of his innocence, taking proper account of inherent
strength and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the state as to exclude any reasonable
doubt
about the accused’s guilt.
[39]
I therefore come to the conclusion that the state has proven beyond
reasonable doubt that the appellant had sexual intercourse
with the
complainant. The court a quo, rejecting the appellant’s bare
denial as not reasonably possible true, did not misdirect
itself.
The
appeal against the sentence
[40]
An appeal court should be mindful that the power to interfere with
the trial court’s discretion in imposing a sentence
is limited
unless the trial court’s discretion was exercised wrongly. The
essential enquiry is whether the trial court exercised
its discretion
properly and judicially. Only if the answer is no, this court will
interfere with the sentence imposed. If the sentence
imposed is
disturbingly inappropriate and/or where there is a gross disparity
between the sentences which the appeal court would
have imposed, had
it been the trial court, this court can interfere.
[5]
[41]
In
S v
Sadler
[6]
,
it is emphasised that, for interference to be justified, it is not
enough to conclude that one's own choice of penalty would have
been
an
appropriate
penalty. Something more is required; one must conclude that one's own
choice of penalty is the appropriate penalty and
that the penalty
chosen by the trial court is not. Sentencing appropriately is one of
the more difficult tasks which face courts
and it is not surprising
that honest differences of opinion will frequently exist. However,
the hierarchical structure of our courts
is such that where such
differences exist it is the view of the Appellate Court which must
prevail.
[42]
In
S v
Pieters
[7]
,
the decisive question facing a court of appeal on sentence was
formulated as: ‘(W)hether it was convinced that the court,
which had imposed the sentence being adjudicated upon, had exercised
its discretion to do so unreasonably. If so, the court of
appeal was
entitled to interfere, and, if no, not.… (E)ven if the court
of appeal is of the view that it would have imposed
a much lighter
sentence, it would not be free to interfere if it were not convinced
that the court below could not reasonably have
imposed the sentence
which it determined.’
[43]
The magistrate was mindful that the seriousness of the offence is
compounded by the age of the complainant. The complainant
was still
in her formative years. She expressed that child sexual abuse exposes
a child to sexual activities that they do not fully
comprehend. The
event was a life changing experience and will probably continue to
impact negatively on her. The appellant was
her senior in age and
social standing as a neighbour.
[44]
The age of the complainant brings this offence within the purview of
section 51
(1) of the Criminal Law amendment act, which calls for a
minimum sentence of life imprisonment unless the court found that
substantial
and compelling circumstances existed which justified a
lesser sentence in terms of
section 51(3).
[45]
Marais JA in
S
v Malgas
[8]
described the substantial and compelling circumstances as those that
reduce the moral guilt of the offender which, when taken
cumulatively, justify the imposition of a less severe sentence than
the one prescribed. The Court of Appeal warned that those prescribed
sentences should not be deviated from for flimsy reasons.
[46]
In
S v
Mofokeng and Another
[9]
Stegmann J said that ‘for substantial and compelling
circumstances to be found, the facts of the particular case must
present
some circumstance that is so exceptional in its nature, and
that so obviously exposes the injustice of the statutorily prescribed
sentence in the particular case, that it can rightly be described as
''compelling'' the conclusion that the imposition of a lesser
sentence than that prescribed by Parliament is justified'. However,
the Court of Appeal in
Malgas
disavowed the suggestion that for circumstances to qualify as
substantial and compelling they must be 'exceptional'. Such
requirement
does not appear from the legislation.
[47]
The personal circumstances of the appellant were related to the court
by mouth of his legal representative. He has one previous
conviction
of housebreaking with intend to commit an offence unknown to the
state, committed in 2010. The appellant was born on
[…] July
1986. He was 28 when the offence was committed and 29 at time of
sentence. He is single and has no children or
dependants. He attended
school up to grade six. At the time of his arrest he had been working
as a welder for a period of four
months and earned R1 000
per fortnight. He was in custody since his arrest on 24 March 2016.
He rented his shack at
[…] S Street, Extension 9, Germiston.
[48]
The state again called N H, to testify in aggravation of the
sentence. The complainant was born on 19 August 2005. From age
four
to seven she was raised by her fraternal grandmother in Matatiele.
After her fraternal grandmother passed away she stayed
with her
mother.
[49]
The complainant was teased by other children for being raped, which
continuously brought her to tears. She often complained
about the
teasing. She would still go out to play and she willingly went to the
shops when ordered to do so. Her mother sent her
to her aunt in
Kokstad, where she attends school. Her younger brother still stays
with her mother. He misses her, although the
three have daily
telephonic contact. Her behaviour towards male persons familiar to
her, did not change.
[50]
After this incident the complainant was having difficulty to fall
asleep. Once asleep she had nightmares, often waking up in
tears. Her
scholastic performance is satisfactory.
[51]
There is no doubt about the seriousness of this offence and that it
warranted a long term of imprisonment. In
S
v Tshoga
[10]
,
the court expressed as follows: ‘Rape is generally degrading,
humiliating and a brutal invasion which is a violent infringement
of
a person’s fundamental right to be free from all forms of
violence, and not to be treated in a cruel, inhumane or degrading
way. Furthermore, it infringed the complainant’s fundamental
right, as a child, to be protected from maltreatment, degradation
and
abuse.’
[52]
The complainant and A, within minutes after the rape, played
hopscotch, which involves jumping. The complainant testified that
she
felt pain in her stomach and in her vagina which complaints were
confirmed by her mother. When the doctor examined her, six
days
later, no injuries were recorded. Importantly, the fact that
she went to play after she was raped, demonstrates that
she did not
sustain severe injuries.
[53]
I am mindful of the provisions of
section 51
(3)(aA)(ii) of the
Criminal Law Amendment Act, stating
that when imposing a sentence in
respect of the offence of rape, an apparent lack of physical injury
to the complainant shall not
constitute substantial and compelling
circumstances justifying the imposition of a lesser sentence. In
cases such as
Rammoko v The
Director of Public Prosecutions
[11]
,
S v Mahomotsa
[12]
and
S v Abrahams
[13]
,
it was held that the objective gravity of the offence plays an
important role in sentencing.
[54]
The degrees of seriousness were explained in
S
v Mahomotsa
[14]
.
It was held that
‘
If
substantial and compelling circumstances are found to exist, life
imprisonment is not mandatory nor is any other mandatory sentence
applicable. What sentence should be imposed in such circumstances is
within the sentencing discretion of the trial court, subject
of
course to the obligation cast upon it by the Act to take due
cognisance of the Legislature's desire for firmer punishment than
that which may have been thought to be appropriate in the past. Even
in cases falling within the categories delineated in the Act,
there
are bound to be differences in the degree of their seriousness. There
should be no misunderstanding about this: they will
all be serious
but some will be more serious than others and, subject to the
caveat
that
follows, it is only right that the differences in seriousness should
receive recognition when it comes to the meting out of
punishment.
Some rapes are worse than others and the life sentence ordained by
the Legislature should be reserved for cases devoid
of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust. Of course, one must guard against
the
notion that because still more serious cases than the one under
consideration are imaginable, it must follow inexorably that
something should be kept in reserve for such cases and therefore that
the sentence imposed in the case at hand should be correspondingly
lighter than the severer sentences that such hypothetical cases would
merit.’
[55]
It is important to bear in mind the chief objectives of criminal
punishment, namely retribution, the deterrence of criminals,
the
prevention of the crime and the reformation of the offender.
Theron
JA, in
S
v Moswathupa
[15]
reminded that: 'It is trite that punishment should fit the criminal
as well as the crime, be fair to the accused and to society,
and be
blended with a measure of mercy. In
S
v V
1972
(3) SA 611
(A) at 614D – E Holmes JA emphasised that '(t) he
element of mercy, a hallmark of civilised and enlightened
administration,
should not be overlooked'. Holmes JA added that
mercy was an element of justice, and referred with approval to
S
v Harrison
1970
(3) SA 684
(A) at 686A, where the learned judge had said that
'(j)ustice must be done; but mercy, not a sledge-hammer, is its
concomitant'.
[56]
The appellant is a first offender. The seriousness of the rape is to
be distinguishable for the reasons mentioned above. I
propose to set
the sentence of life imprisonment aside and to substitute it with a
sentence of 20 years’ imprisonment.
[57]
I therefore make the following order:
1.
The
appeal against the conviction is dismissed.
2.
The
appeal against the sentence is upheld.
3.
The
life sentence imposed by the Regional Court is set aside and is
substituted with the following:
‘
The
accused is sentenced to 20 years’ imprisonment.’
4.
The
sentence is antedated to 15 March 2018.
_____________________________
C REYNEKE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
I Agree.
__________________________
J MABESELE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Appellant: Adv A Mavatha
Instructed
by: Legal Aid SA
Counsel
for the Respondent: Adv V H Mongwana
Date
of Hearing: 3 September 2018
Date
of Judgment: 20 September 2018
[1]
In terms of Section 50 (2) of Act 32
of 2007.
[2]
1932 OPD 79.
[3]
1990 (1) SACR 95
(A) at 100 E.
[4]
2003 (1) SACR 134 (SCA).
[5]
S v Nyaki
2014 JDR 0461 (GSJ), S v Salzwedel and others
1999 (2) SACR 5
; 86 at
588A-B).
[6]
2000 (1) SACR 331
(SCA), para [10]
[7]
1987 (3) SA 717
(A), at 734 D-F.
[8]
2001 (1) SACR 469
Z (SCA)
(2001 (2)
SA 1222
[2001] 3 ALL SA 220
;
[2001] ZASCA 30)
para 24.
[9]
1999 (1) SACR 502
(W), at 523
c
–
d
.
[10]
2017 (1) SACR 420
para [32].
[11]
2003 (1) SACR 200 (SCA) [2002] 4 ALL
SA 731.
[12]
2002 (2) SACR 435
(SCA) ([2002]
3 All
SA 534
; [2002] SASCA 61
[13]
2002 (1) SACR 116
(SCA) para [29].
[14]
2002 (2) SACR
435
(SCA) paras [18] and [19].
[15]
2012 (1) SACR 259
SCA at para [8] –
[10].