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[2017] ZAGPPHC 111
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Ndubane v S (A238/2016) [2017] ZAGPPHC 111 (8 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVSION, PRETORIA)
CASE
NO: A238/2016
DATE
OF APPEAL: 6 FEBRUARY 2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
LUCKY
MDUDUZI NDUBANE
Appellant
Versus
THE
STATE
Respondent
JUDGMENT
MADIMA.
AJ
[1]
The appeal before us relates to both conviction and sentence. The
appellant, duly represented by a lawyer was, on 23 May 2013
tried in
the Nelspruit Regional Court on one count of rape. The victim is an
underage [...], who I shall, for her protection, call
her O, then 12
years of age. The appellant pleaded not guilty, but was convicted and
on 30 May 2013, sentenced to life imprisonment.
He is before us in
terms of s10 of the Judicial Amendment Act 42 of 2013.
[2]
I deal briefly with the background to this matter. The complainant,
her grandmother, (maternal) her grandfather (maternal),
her uncle
Sam, [...] Lucky Mduduzi (the appellant) and younger brother M, all
live in the grandparent's house in Mangweni, Mpumalanga
Province.
[3]
O testified, via an intermediary that one fateful day in November
2011 she arrived home from school, changed from her school
uniform
into casual clothing, went to the kitchen and prepared a meal. She
then sat before the television and had her meal. There
was no one
else at home. Her grandmother had gone to one Ngobeni's place.
[4]
The appellant arrived, closed the door and then dragged (O used the
word "pulled") her from the dining room to his
bedroom.
Inside the bedroom he undressed her. He undressed as well. He made
her lie on the bed and then inserted his penis inside
her vagina. O
tried to scream and the appellant closed her mouth. O did not tell
anyone about the incident because the appellant
threatened her that
if she told her grandparents, she would never see them again.
[5]
The second incident involving the appellant and O, occurred,
according to her evidence, when her grandparents had gone to collect
their pension at a pension collection point. She and the appellant
were home. So was her younger brother M.
The
appellant gave M some money and sent him on some errand. As soon as M
left, the appellant dragged O into Uncle Sam's bedroom
whereupon he
undressed her and himself and then proceeded to have sexual
intercourse with her. This time around she reported the
assault after
noticing "white water" coming from her breast.
[6]
Grandmother refused O a call to her mother. She told her that she
would tell O's mother on her next visit to Mangweni. O's mother
visited in the first week of December· and was then told what
the appellant did to O. Mother accompanied daughter to the
hospital
where she was examined and then reported the matter to the police.
The examination revealed that O's hymen was not intact
and she also
had a cleft and scar in her vagina.
[7]
The grandmother in her evidence corroborated O's evidence in so far
as it related to the report O made to her. O's evidence
was steadfast
despite insignificant lapses of memory here and there.
[8]
The appellant in his evidence denied the allegations against him. He
stated that O falsely accuses him of rape because he had
on one
occasion hit her after she had walked in on him having sex with his
girlfriend in his room. That was the sum total of the
appellant's
evidence in rebuttal of the evidence against him.
[9]
The appellant also raised a technical point regarding the oath taken
by O before she testified. It is claimed in this regard
that the
Court a
quo
did not establish with O whether she understood
what an oath was. The appellant submitted further that O's evidence
was thus supposed
to have been treated with caution, not only because
she was a minor, but also that she was a single witness.
[10]
An examination of the record [on pages 56 to 57] disabuses the
appellant's
assertions
regarding the Court's treatment of the oath administered to O. The
following is instructive.
Court:
How old is she?
Witness:
I am 14 years of age
Court:
Does she understand what it means to take the oath?
Witness:
Yes
Court:
What does it mean?
Witness:
That I am going to tell the truth.
Court:
I am going to test her if she indeed understands what it means. I am
going to ask her a few questions to determine if she
know (sic) what
it means to take the oath, does she understand that? How old is she
now, 14?
Witness:
Yes
Court:
When was she born?
Witness:
[...] 1999.
Court:
In what grade is she in school now?
Witness:
Grade 8.
Court:
What would you say if I say to you that you are 16 years do I tell
the truth or am I lying to you?
Witness:
That will be lies.
Court:
If I say today is Friday will I be lying or telling the truth?
Witness:
That will be lies.
Court:
Who taught you what is the difference between truths and lies?
Witness:
It is my mother.
Court:
And who else?
Witness:
My granny
Court:
And at school?
Witness:
I was also told so at school
Court:
And pre--schooling, Were you also taught in pre-schooling what is the
difference is between lies and truth?
Witness:
Yes they did
Court:
Does she understand that all we want is for you to tell the truth and
nothing but the truth that happened on that day, that
specific day.
That means the time from 2011, November what happened during that
time ... Yes?
Do
you agree that she understands the oath?
Prosecutor:
Yes the state agrees, Your Worship.
Court:
Mr Malumane, do you agree?
Mr
Malumane: Yes, I do agree, Your Worship.
Court:
She must swear that everything she testifies will be the truth,
nothing but the truth, she must say so help me God
Witness:
I do swear
,
Your
Worship.
[11]
It is clear from the record that the Court was alive to the fact that
O is a minor and thus went out of its way to ensure that
O understood
what taking an oath entailed. There is nothing to criticise the Court
in that regard. Importantly both the prosecution
and the defence were
satisfied that O understood what taking an oath meant. I therefore
find the submission with little merit and
not worthy of further
attention.
[12]
I now deal with the merits of the appellant's version in his defence.
The appellant's version that was put to O by the appellant's
lawyer
during cross examination was that the appellant denies raping O. She
insisted that he did. The further version was that
the appellant
denies that he pulled O into a room and took off her Skirt and panty
and inserted his penis in her vagina. O insisted
he did. Another of
the version put to O was a denial that the appellant threatened to
kill O. She again insisted that he did.
[13]
In his evidence in chief the appellant testified that he did not rape
O. He knows nothing about the incidents of rape that
O testified
about. He did not threaten her with a knife as he does not carry one
at all. Asked why would O make false claims against
him, the
appellant responded that O saw him having sex with his girlfriend and
reported him to their grandmother.
[14]
It was only during cross examination that the appellant stated that
he had beaten O after she reported him to their grandmother
about the
incident in his bedroom with his girlfriend. He testified that was
when the hatred between them developed.
[15]
In her evidence the grandmother testified that she knows nothing
about the rape but was informed by O about it some two weeks
after
the incident allegedly happened. Grandmother's evidence was that O
told her that the appellant pulled her into the bedroom
and wanted
her to lie (sic) but she managed to push him away.
[16]
During cross examination grandmother stated that she did confront the
appellant about the allegations. She did not call the
mother of the
child because she works at a school and is busy. Importantly
grandmother said that she did not take the matter seriously
because
"… we know all of them to be kids of the same family.”
[17]
When asked if she was aware of the incident in the bedroom between
the appellant and his girlfriend, grandmother stated that
she did,
and knows the appellant's girlfriend. She reprimanded the appellant's
girlfriend. Grandmother denied that O was ever punished
or hit by
anyone for reporting the incident to her.
[18]
I deal here with the appellant's evidence that is of concern to me.
He states only during his evidence in chief that the reason
O falsely
accused him of rape was because he had beaten her up after she had
reported him to their grandmother for having sex with
his girlfriend
in his bedroom. This is an important issue regarding motive .Which
was never raised by the appellant's lawyer during
the cross
examination of O. It is raised for the first time in the appellant's
evidence in chief. No one knows how O would how
have responded.
[19]
The grandmother was cross-examined on the incident. She testified
that she knew of the episode in the bedroom between the appellant
and
his girlfriend. She however disputed the evidence by the appellant
that O was punished or hit by anyone for reporting him to
her.
[20]
This makes the appellant's evidence in this regard not believable.
This I find to be an afterthought on his part. This then
makes me
wonder why the appellant ·would lie about the reason for the
rape accusation. This is such an important point that
he was supposed
to have put upfront when O was on the stand. He never did. The
further question is why the appellant never called
his girlfriend to
corroborate his version regarding the beating he meted out to O.
[21]
A further issue of concern to me is the fact that the appellant after
being notified by the grandmother that O's mother had
arrived, ran
away and never came back home. When O's mother arrived at home with
the police, the appellant took off. The question
is why would the
appellant run away from his aunt? Are the guilty afraid? Another of
my concern is that the appellant in denying
the rape allegation also
claimed that no one ever confronted him about O's claim. This was
contradicted by the grandmother who
testified that she did. Again why
would the appellant deny the confrontation? Is he hiding something?
[22]
Of some significance is the fact that the Nurse called by the Court
to explain the J88 report stated that O's hymen was not
intact. The
Nurse added that there is a tear. The cleft noted is a healed scar of
a tear caused to the hymen during penetration.
She explained that the
hymen could have been ruptured by penetration with a penis or any
other object, but the fact remains that
the uncontested clinical
findings described in the J88 serve as clear corroboration of O's
evidence that her vagina had been penetrated.
Despite
recent developments in our law that the cautionary rule in sexual
cases is based on outdated and irrational considerations
- see
S
v Jackson 1998(1) SACR 470 SCA and Za'ffert
+
Paizes The South African Law of Evidence,·
2
nd
edition
p969- 972,
courts still find it necessary,
and convenient,
in seeking corroboration for
the evidence of a single witness in a sexual case. See for example
S
v Van der Ross 2002(2) SACR 362 CPD.
In
this case, despite the strong evidence of O, and the questionable
evidence of the Appellant, as described, I see no harm in recognizing
the corroboration found in the J88 as an added factor serving to
support the case of the state.
[23]
It is trite that the state must prove its case against an accused
beyond reasonable doubt. The evidence adduced must not be
looked at
in isolation by the trial court. All evidence must be examined in its
totality, by failing to do so the court may fail
to see the wood for
the trees. It may well be that O's testimony was at times
contradictory with relation to the times she was
sexually assaulted
by the appellant. She however was steadfast in her evidence of the
sexual assault.
[24]
The evidence of O and that of her mother was truthful and honest. O's
evidence was corroborated by that of her mother. The
obverse is not
true with regard to the evidence of the appellant. I find his
evidence regarding the alleged reason behind the chasm
between
himself and O incredible and unlikely. This because he did not beat
her up as he claimed. The evidence by the grandmother
was not
entirely helpful to the Court and especially to the appellant. She
wished to protect the appellant at the expense of her
much younger
granddaughter. She insinuated that all belonged to the same family.
That was the main reason she did not immediately
call O's mother and
tell her what she had just heard from O regarding the allegations of
the sexual assault.
[25]
Much has also been made about the fact that O was the sole witness
regarding the rape. Our courts have dealt with the issue
regarding
the evidence of a single witness for decades. In S
v
Sauls and Others
1981 (3) SA 172
(A} at 180 E-G
it
was held that "There is no rule of thumb test or formula to
apply when it comes to a consideration of the credibility of
the
single witness. The trial judge will weigh his evidence, will
consider its merits and demerits and, having done so will decide
whether it is trustworthy and whether despite the fact that there are
shortcomings or defects or contradictions in his testimony,
he ls
satisfied that the truth has been told. The cautionary rule may be a
guide to a right decision but it does not mean that
the appeal must
succeed if any criticism, however slender, of the witnesses’
evidence was well founded. It has been said
more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense."
[26]
I have little to critisise the court a
quo
in finding the
appellant guilty for the rape of O. The appellant's version of events
is fraught with improbabilities and inexplicable
doings such as lying
about hitting O for walking in on him and his girlfriend as well as
running away from home when he heard that
his aunt was home on a
visit. He knew that O would tell her mother about what happened. The
appellant's version I find not reasonably
possibly true. S
v Mbuli
2003 (1) SACR 97
(SCA).
I have further not found the findings of
the court
a quo
patently wrong or vitiated by irregularity. I
thus am not in a position to justify interfering with the Court's
findings.
Sentence
[27]
I now turn to sentence. Is life in prison an appropriate sentence in
this instance? I am mindful of the principle that punishment
is a
matter for the discretion of the trial court. This court ought not
erode that discretion unless justified.
[28]
Rape is a serious offence. The rape of an underage and defenceless
child is in itself an aggravating factor. The rape of an
underage
relative who looked up to the perpetrator for protection, love and
comfort is beyond devastation for the victim.
[29]
I am further mindful of the fact that this court can only alter the
trial court's sentence if, for example, there was an irregularity
that occurred during the trial, or if the trial court misdirected
itself in the imposition of the sentence, or the sentence imposed
by
the trial court is disturbingly or shockingly inappropriate. S
v De Jager and Another
1965 (2)
SA
616
(A), S V Rabie
1975
(4)
SA 855
(A) and
S
V
Petkar
1988
(3)
SA 571.
[30] Even in the event
this court were the court of first instance and it were minded to
impose a lesser sentence, this in itself
is not sufficient to
interfere if this court is not convinced that the trial court could
not have reasonably passed that sentence.
S
v
Ncheche 2005 (2) SACR 386 (W).
[31]
I have already stated above that rape is a serious crime.
In s v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b-c,
the crime was described
thus: “ 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
defensive civilisation. Women In this country are entitled to
the
protection of these rights. They have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and
tranquility of their homes without the fear, the apprehension
and the
insecurity which constantly diminishes the quality and enjoyment of
their lives." In Ncheche supra it was
described
as "...an appalling and utterly outrageous crime, gaining
nothing of any worth for the perpetrator and Inflicting
terrible and
horrific suffering and outrage on the victim and her family. It
threatens every woman, and particularly the poor and
vulnerable... A
woman's body is sacrosanct and anyone who violates it does so at his
peril and our legislature, and the community
at large, correctly
expects our courts to punish rapists very severely."
[32] O was twelve years
old at the time she was raped by her [...], the appellant. She
testified that prior to the rape she was
not scared of him. She
referred to him as her brother. Indeed in certain African cultures,
one's mother's siblings’ children
are referred to as one's
siblings, that is, brothers and sisters. The same applies to one's
fathers' siblings' children. It is
not easy to describe the pain, the
humiliation and shame O feels after being violated by her brother. To
add salt to the wound,
the appellant showed little or no remorse. He
was smiling during the proceedings and when confronted about that, he
stated that
it was his nature.
[33]
Because O was twelve at the time of the rape, the offence falls
squarely within the purview of
s51
of the
Criminal Law Amendment Act
105 of 1997
. This section prescribes a minimum sentence of life
imprisonment unless substantial and compelling circumstances exist.
Our courts
are emphatic on the imposition of a minimum sentence in
this regard. In S
v Matyityi
2011 (1) SACR 40
(SCA) at para 23
the
court held that "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 is still 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 sentence 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 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."
[34]
In mitigation of sentence the appellant submitted a pre-sentence
report which listed the appellant's personal circumstances
as (a)
born on 7 July 1985, then 28 years of age, (b) unmarried with a
girlfriend, (c) both parents deceased, (d) raised by his
grandmother,
also deceased, (e) raised by his other grandmother who testified in
his defence, (f) he has no children, (g) left
school in Standard 8
and (h) he was a first offender.
[35]
A sentencing court must take into account all of the personal
circumstances of the accused and blend that with elements of
mercy.
S
v Khumalo
1973 (3) SA 697.
I agree. However
for mercy to be shown on the appellant, he needed to show remorse. I
have not seen any indication in the record
that the appellant is
sorry for what he has done and that he had asked O for her
forgiveness. He could easily have done the necessary
mea
culpa
soon after being found guilty and then
testified to that effect in mitigation of sentence.
[36]
It is no surprise that the court a
quo
found
that the crime that the appellant committed is of a serious nature.
Rape always is. There is no indication in the record that
the court
in sentencing the appellant did not take into consideration the
appellant's personal circumstances, such as his young
age and other
relevant criteria. Is age a factor to be taken into account when
determining a sentence?.
[37]
This court does not take lightly the offence of rape. It is a very
serious invasion of personal space. The law should look
dimly at
anyone who rapes another. O must have been very scared when she
realised that her brother sought to force himself on her.
O shall for
the rest of her life carry with her the burden of the assault by her
brother.
[38]
The courts have on numerous occasions held that the imposition of a
sentence on accused persons is always in the discretion
of the trial
court. A court of appeal may only interfere if it finds that the
sentence has not been judicially and properly exercised.
See S v
Rabie supra; S v Salzwedel and Others
1999 (2) SACR 586
(SCA).
[39]
Does the life sentence imposed on the appellant by the trial court
induce a sense of shock? The appellant submitted that there
were
several other cases of rape worse than his, where a life sentence was
drastically reduced. The court held in
S v Khumalo 1989 (3) CPD at
31
that "The public interest is not necessarily served by
the imposition of very long sentences of imprisonment. As far as
deterrence
is concerned, there is no reason to believe that the
deterrence effect of prison sentence is always proportionate to its
length.”
[40]
It was submitted further that in
S v MN
2011
(1) SACR 286
(ECG)
a sentence of life for the
rape of a girl of 10 years was reduced on appeal to 15 years. The
mitigating factors were that there
was no serious physical injury
other than that produced by the act of rape. There was no evidence of
emotional trauma. The perpetrator,
a man of 47 years could still be
rehabilitated.
[41]
In
S v MM
2011 (1) SACR 510
(GNP)
a
life sentence for the rape of his 12 years old stepdaughter in the
family home was reduced to 12 years on appeal. In S
v
JS
2011 (1) SACR 510
(GNP)
the appellant was
sentenced to life imprisonment for the rape of a 4 year old girl the
court stated that this was not the category
of the worst rapes. There
also was no evidence of what psychological effects there will be as
this was not canvassed at the trial.
In
S v JV
2011 (1) SACR 510
(GNP)
a father was
convicted of two counts of the rape of his own daughters. The court
again held that after taking into account all of
the relevant factors
it could not be said that this was one of the most serious cases of
rape. The father's two sentences of life
imprisonment were set aside
and replaced with two sentences of 15 years' imprisonment which
were
ordered to run concurrently.
[42]
There is no doubt that each case must be evaluated according to its
own merits. The appellant in this case has shown no remorse.
He has
not apologized for his actions. He has not demonstrated any
substantial and compelling circumstances that would merit a
deviation
from the prescribed minimum sentence. I hold the view that even in
the absence of the prescribed minimum sentence the
appellant is a
textbook example of someone deserving of a long period of
incarceration.
[43]
It is for the above reasons that I find that there was no
misdirection by the court
a quo
regarding sentence.
1.
I accordingly make the following order.
1.1 The appeal against conviction and
sentence is refused.
-----------------------------
TS
MADIMA: AJ
------------------------------
PRINSLOO,
J
I
Concur
So
it is ordered
On
behalf of the Appellant: MB Moloi
Instructed
by: Pretoria Justice Centre
012
401 9200/ 072 443 0328
On
behalf of the Respondent: Adv S Scheepers
Instructed
by: Office of the DPP
Pretoria
012
351 6773 / 084 520 0593
Dates
of Hearing: 6 February 2017
Date
of Judgment: 8 February 2017