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[2018] ZAFSHC 174
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Tsoane and Another v S (A248/2013) [2018] ZAFSHC 174 (22 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:A248/2013
In
the matter between:
DIKETSO
PETRUS
TSAOANE
1
st
Appellant
JAN
FUSI
FORTUIN
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
LOUBSER, J et OPPERMAN, J
HEARD
ON:
05
NOVEMBER 2018
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
22
NOVEMBER 2018
[I]
INTRODUCTION
:
[1]
This is an appeal by the two Appellants against their conviction in
the Bloemfontein Regional Court on a charge of Rape and
their
sentence of 20 years imprisonment each. The complainant is a male
child, who was only 5 years old at the time of the commission
of the
crime. The first and second Appellants were respectively 21 years and
18 years old at the time. They were accused of the
act of sexual
intercourse with the child in that they penetrated his anus with
their penises after forcing him physically to lie
on his stomach in a
certain shack.
[2]
In her judgment, the Magistrate alluded to certain unsatisfactory
elements in the State case, but she found them not to be of
such a
nature as to vitiate the truthfulness of the State version in its
totality. On the other hand, the version of the Appellants
boiled
down to a bare denial of the allegations against them. It was found
by the court
a quo
that they did not fare well when they
testified in their defence.
[II]
THE
EVIDENCE AND FACTS:
[3]
A perusal of the record of evidence in the trial court shows that the
complainant and the two Appellants lived in the same street
and that
they knew each other well. The complainant testified that, on the day
of the incident, he was walking past the shack of
one Patrick when he
was called by the two Appellants. They took him into the shack where
they undressed him and pressed him onto
a bed where the second
Applicant penetrated him anally. After he finished, the first
Appellant followed suit. When they were both
finished, they let the
complainant go, threatening that they would kill him if he were to
tell his mother what happened.
[4]
A friend of the complainant, aged about 6 years on the day in
question, testified that he saw the two Appellants calling the
complainant when he was walking past the shack. When he later heard
the complainant cry inside the shack, he went closer and peeped
through a hole in the zink wall of the shack. He saw the two
Appellants pressing the complainant onto a bed in the shack. He ran
away when the mother of the first Appellant emerged from a house and
chased him away. The mother of this witness testified that
he related
this version to her and others that same evening.
[5]
The mother of the complainant also testified in the court
a
quo
.
When the complainant arrived home, he complained about discomfort in
the area of his anus, and when she checked, she found bruises
there
and blood coming from his buttocks. He did not tell her anything
although she became “harsh” towards him. She
then took
him to her sister who was already asleep in her bed. The sister told
the court in evidence that she was woken up by the
complainant’s
mother who told her that the complainant was raped. She took him with
her under the blankets and asked him
who had raped him, and he said
it was the two Appellants. They then went to the first Appellant’s
parental home, where these
allegations were denied by the first
Appellant. The same happened when they visited the parental home of
the second Appellants
thereafter. The second Appellants denied
everything. Thereafter the two Appellants and their parents met at
her parental home,
where the Appellants once again denied the
allegations when the complainant pointed them out. From there they
proceeded to the
police station to report the incident.
[6]
In addition, the complainant was taken to the National Hospital for a
medical examination of his anal area, and the forensic
examiner who
performed the examination, recorded her findings on a form J 88,
which was handed in by consent during the trial proceedings.
The
examination showed multiple abrasions of that area with redness, and
it is recorded that the injuries were consistent with
the version
offered by the complainant.
[7]
Lastly, it needs to be mentioned that, throughout the proceedings,
much was made by the defence of an allegation by the Appellants
that
the complainant had initially, and at the meeting of all the parents
and the Appellants referred to earlier herein, told them
that it was
one Simphiwe and one Bambi who had actually assaulted him sexually.
All the state witnesses who attended the said meeting,
denied this
allegation vehemently. The complainant himself said “yes”
when he was asked by the court whether he initially
said it was
Simphiwe and Bambi, but immediately thereafter he told the court that
he “eventually” said that it were
the two Appellants. In
her judgment, the Magistrate found that the complainant indeed
mentioned two others initially and not the
Appellants, but it was due
to the fact that he was facing the very two people at that moment who
had threatened to kill him if
he were to tell the truth. She found
the complainant to be an averagely intelligent child who constantly
maintained in his testimony
that it was the two Appellants who had
raped him.
[8] Mr. Tshabalala,
appearing for the Appellants before us, chose not to address the
Court on the merits of the conviction.
He merely referred the
Court to his Heads of Argument, in which he argued that it was not
proven beyond a reasonable doubt that
it were the two Appellants who
had raped the complainant.
[9] In her judgment on
sentence, the Magistrate found substantial and compelling
circumstances in respect of both the Appellants,
and therefore she
deviated from the prescribed minimum sentence in cases of the rape of
a child under the age of 16 years. As mentioned
earlier, she
sentenced them to 20 years imprisonment each. She found that
their age, the fact that they are first offenders
and the fact that
they have spent more than two years in custody awaiting trial, amount
to substantial and compelling circumstances.
[III]
DETERMINATION
[10]
It is clear from the record of proceedings in the court below that
the complainant was indeed anally penetrated on the day
in question.
The only question was whether it was the Appellants who had raped
him. The Magistrate was satisfied, on
the totality of the
evidence, that they were the guilty ones. I have studied the
record carefully to establish whether the
Magistrate had perhaps
overlooked something when she came to that conclusion, and I could
find no such indication. The two
others initially mentioned by
the complainant at the meeting of parents, were children of about his
own age, and it is highly improbable,
therefore, that they could have
been the ones. Moreover, there is a reasonable explanation why
the complainant had mentioned
their names at the meeting, since the
Appellants were also present, and they were the ones who had
threatened to kill him.
As a child of tender age, he had every
reason to be scared of them. In my view, the Magistrate was
quite correct in holding
that in his evidence, the child has
maintained throughout that it was the two Appellants who had raped
him, and nobody else.
The Magistrate was correct in finding the
Appellants guilty.
[11]
I find support for this view in the following statement by the
highest Court of Appeal in the case of
S
v FRANCIS 1991(1) SACR 198 (A)
at
p.
204
c-e:
“
This
Court’s power to interfere on appeal with the finding of the
trail court are limited…….bearing in mind
the advantage
which a trial court has seeing, hearing and appraising a witness, it
is only in exceptional cases that this court
will be entitled to
interfere with the trial court’s evaluation of oral
testimony”.
It
was also stated in
S
v SAULS AND OTHERS 1981(3) SA 172 (A) at 180 E-G
that the exercise of caution in the case of a single witness must not
be allowed to displace the exercise of common sense.
[12]
As for the sentence imposed by the Magistrate, it has already become
trite law that a court of appeal will only interfere with
a sentence
where there was a misdirection on the part of the Magistrate, which
is of such a nature, degree or seriousness that
it shows, directly or
inferentially, that the court did not exercise its discretion at all,
or exercised it improperly or unreasonably.
Here the Magistrate
has deviated from the prescribed minimum sentence of life
imprisonment for the reasons already mentioned.
In deciding
whether the sentence of 20 years imprisonment each is not tainted by
any misdirection, I am mindful of what the Court
of Appeal has stated
in
S
v D 1995(1) SACR 259 (A)
at
259g
and
further:
“
The
majority of the Court held that the Appellant’s conduct was
sufficiently reprehensible to fall within the category of
offences
calling for a sentence which would reflect the Court’s strong
disapproval and act as a deterrent to others minded
to satisfy their
carnal desires with helpless children
”
.
This
statement is fully apposite to the present case, and therefore I can
find no reason why we should interfere with the trial
court’s
sentence.
[13]
The
following order is therefore made:
1.
The
appeal against the conviction and sentence of both Appellants is
dismissed.
_______________
P.
J. LOUBSER, J
I
concur:
________________
M.L
OPPERMAN, J
On
behalf of the Appellant
:
Mr. L.M Tshabalala
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of Respondents
:
Adv. L.M Lencoe
Office
of the DPP
Bloemfontein