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[2017] ZAGPPHC 91
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Khoza v S (A872/2015) [2017] ZAGPPHC 91 (17 February 2017)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: A872/2015
17/2/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
KENNETH
KHOZA
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
The appellant was arraigned for trial in the Regional Court sitting
at Pretoria on two counts of rape. The allegations against
him were
that on 25 February 2013 he sexually penetrated the victim's private
parts, the victim being a girl 12 years old, using
his finger, (count
1) and also using his penis (count 2). The provisions of section
51(1) of the Criminal Law Amendment Act105
of 1997 were applicable to
the charges and were explained to the appellant at the commencement
of the trial.
[2]
The appellant enjoyed legal representation at the trial. He pleaded
not guilty to both counts but was found guilty on one, (sexual
penetration with his penis) and acquitted of the other count. He was
thereafter sentenced to life imprisonment.
[3]
This appeal, brought automatically in terms of section 10 of the
Judicial Amendment Act 43 of 2013, is directed at both conviction
and
sentence.
[4]
Conviction of the appellant follows events that took place on 25
February 2013. F. T., the victim's grandmother, testified that
on
that day the victim came to her after school in tears. The victim
informed her that the appellant, who was her step-father,
while
preparing for school that morning and while K. (the half-brother) was
asleep, called her to the kitchen, undressed her and
raped her. He
thereafter gave her R10-00 and warned her not to tell anyone
otherwise she would be killed. Ms T. informed the victim's
mother and
the matter was reported to the police. The victim was taken to
Mamelodi Day Hospital for medical examination. She, Ms
T., conceded
that she did not enjoy a good relationship with the appellant.
[5]
Cuhuni Thantsha, the arresting officer, testified that he was on duty
together with his colleague and that they approached the
appellant's
place of residence in the process of investigating the matter. They
were not in their police uniform and were travelling
in an unmarked
police vehicle. As soon as the appellant saw them he ran away,
tripped and fell. He was arrested and transported
to the police
station. During cross examination it was put to him that on the day
of the appellant's arrest he, appellant, did
not known that they were
police officers that was why he had a fight with them.
[6]
The mother of the victim, C. T. confirmed that she was in a
relationship with appellant and that the victim was raised by the
appellant. On the day of the incident she left early for work, as she
usually did. Before she left she prepared one of her children
for
school. Later she received a call informing her about the incident.
She came home and they eventually went to the clinic for
the child's
examination.
[7]
The victim testified through an intermediary that on the day of the
incident at about 5:45 in the morning she was at her home
with her
two half siblings as well as the appellant. The appellant instructed
one of her siblings to go to the bedroom and was
left with her in the
kitchen. He thereafter instructed her to undress or else he would
beat her up. He then placed a towel on the
floor of the kitchen and
inserted his penis into her vagina. When she started to scream he
covered her mouth with his hand. When
he was done, the vehicle that
transports them to school came. She was thereafter given lunch money
together with her sibling. On
returning from school she went to her
grandmother's place and related the events of earlier that morning to
her. They later went
to the police and to the clinic.
[8]
During cross examination she was asked about the statement she made
to the· police. She however stated that it was not
read back
to her. It was further put to her that she was never sexually
assaulted. If she had been, so the postulation went, then
neighbors
and her two siblings would have been able to hear her scream. She
stood by her statement that she had been raped.
[9]
The J88 Medico-Legal Report completed by Dr. Ken Mimbulu was admitted
into evidence in terms of
section 212
(4) of the
Criminal Procedure
Act 51 of 1977
.
[10]
Appellant testified in his own defense. He testified that on the day
of the incident he was awoken by his youngest son who
asked for
pocket money for school. He later left the common home and only
returned when it was time for the children to return
from school. On
returning home he heard that the police were looking for him. Later
while standing outside next to the gate, police
emerged and there was
a scuffle with them. He threw a can of beer away which injured one of
the policemen. He was then arrested.
He denied sexually assaulting
the child and stated that he suspected his mother-in-law
(Ms
T.) of having influenced the child to falsely implicate him because
they were not on good terms.
[11]
Rosina Ledwaba, the police officer who took down the statement of the
victim, confirmed that she recorded in the statement
what she was
told. She also confirmed that what was related to her is that the
appellant after closing the gate and the kitchen
door, placed the
victim on the table and pushed his finger inside her vagina. He left
momentarily to the bedroom and on his return,
while the child was
still on the table, he inserted his penis into her vagina and raped
her. She confirmed further that she read
the statement back to the;
victim after reducing it to writing.
[12]
The magistrate was of the view, after the defense had closed its
case, that the evidence of the doctor, whose J88 Medico-Legal
Report
was entered into evidence in terms of
section 212(4)
, was a necessary
witness and that he should be called to give evidence. None of the
parties objected. Dr. Mimbulu testified that
he had been practicing
for 15 years as a medical practitioner, seven of which were spent
examining rape victims. He confirmed that
some of the victim's
injuries were as noted in the J88 Medico-Legal Report, swelling of
the clitoris and bruises and swelling
on various areas of the vagina.
He stated that this was consistent with penetration by a finger as
borne out by the bruising possibly
from the perpetrator's
fingernails. He confirmed that the injuries were abnormal for a
female who was not sexually active. He concluded
that the injuries
did not exclude sexual assault.
[13]
The appellant appeals against the conviction on the following
grounds;
- that the court a
quo
failed to treat the evidence of the complainant, who was both a
minor and a single witness, with the necessary caution;
- that the magistrate
failed to accord due weight to numerous contradictions which are
material;
- that the magistrate
failed to put sufficient weight to the evidence of the Doctor who
testified that the injuries could have been
caused by insertion of a
finger into the victim's vagina as opposed to insertion of a penis.
It
is thus contended that the court a
quo
failed
to properly evaluate the evidence placed before it and that the
contradictions are such that the appellant ought to have
been found
not guilty.
[14]
It is a trite principle of our law that the guilt of the accused must
be proved beyond a reasonable doubt. The onus to do so
rests on the
State. In the matter of
S v
T
2005 (2)
SACR 318
(E),
at paragraph 37, Plasket J said the following;
'The State is
required, when it tries
a
person
for allegedly committing an offence, to prove the guilt of the
accused beyond
a
reasonable
doubt. This high standard of proof
-
universally required in civilized systems of
criminal justice
-
is
a
core component of
the fundamental right that every person enjoys under the
Constitution, and under the common law prior to 1994,
to
a
fair trial. It is not part of
a
charter for criminals and neither is it
a
mere technicality. When
a
court finds that the guilt of an accused has
not been proved beyond reasonable doubt, that accused is entitled to
an acquittal,
even if there may be suspicions that he or she was,
indeed, the perpetrator of the crime in question. That is an
inevitable consequence
of living in
a
society
in which the freedom and the dignity of the individual are properly
protected and are respected. The inverse
-
convictions based on suspicion or speculation
-
is the hallmark of
tyrannical systems of law. South Africans have bitter experience of
such a system and where it leads to.'
[15]
Sitting as the court of appeal we are called upon to be hesitant to
interfere with the factual findings and evaluation of the
evidence by
a trial court (see
R v Dhlumayo and another
1948 (2) SA 677
(A)).
We can only do so
where the trial court materially misdirected itself insofar as its
factual and credibility findings are concerned.
In
S
v Francis
1991 (1) SACR 198
(A) at
198j
-
199(9)
the approach of an appeal court to
findings of fact by a trial court was summarized as follows
"The powers of
a
Court of appeal to interfere with the findings
of fact of
a
trial
Court are limited. In the absence of any misdirection the trial
Court's conclusion including its acceptance of
a
witness' evidence, is presumed to be correct.
In order to succeed on appeal, the appellant must therefore convince
the Court of
appeal on adequate grounds that
the
trial Court was wrong in accepting the witness' evidence
a
reasonable doubt will not suffice to justify
interference with its findings. Bearing in mind the advantage which
a
trial Court has of seeing, hearing and
appraising
a
witness,
it is only in exceptional cases that the court of appeal will be
entitled to interfere with
a
trial
Court's evaluation of oral testimony".
[16]
Lastly, the court's approach when evaluating evidence of a single
witness who is also a minor was articulated in
S
v Dyira
2010 (1) SACR 78
(E):
"In our law it is
possible for an accused person to be convicted on the single evidence
of
a
competent witness
(section 208
of the
Criminal Procedure
Act No 51 of 1977
).
The requirement in
such
a
case is,
as
always, proof of guilt beyond reasonable
doubt, and to assist the courts in determining whether the onus is
discharged they have
developed
a
rule
of practice that requires the evidence of
a
single witness to be approached with special
caution
(Rex v Mokoena,
1956 (3) SA 81
(AD) 85, 86).
This means that the
courts must be alive to the danger of relying on the evidence of only
one witness because it cannot be checked
against other evidence.
Similarly, the courts have developed
a
cautionary rule which is to be applied to the
evidence of
s
mall children
(R
v Manda,
1951 (3) SA 158
(AD) at 162E to 163E).
The
courts should be aware of the danger of accepting the evidence of
a
little child because of potential
unreliability or untrustworthiness as
a
result of lack of judgment, immaturity,
inexperience, imaginativeness, susceptibility to influence and
suggestion, and the beguiling
capacity of a child to convince itself
of the truth of
a
statement
which may not be true or entirely true, particularly where the
allegation is of sexual misconduct, which is normally beyond
the
experience of small children who cannot be expected to have an
understanding of the physical, social and moral implications
of
sexual activity
(Viveiros. v
S
[2000] 2 All SA 86
(SCA) para 2).
Here,
more than one cautionary rule applies to the complainant as
a
witness. She is both
a
single witness and
a
child witness. In such
a
case the court must have proper regard to the
danger of an uncritical acceptance of the evidence of both
a
single witness and a child witness
...."
[17]
Counsel for the appellant Mr Kgagara, argued that the court a
quo
did not treat the evidence of the victim, who was both a minor
and a single witness with “sufficient" caution. During
engagement he stated that although there was caution, it was in his
view just not sufficient. The magistrate's judgment however
does not
support counsel's contention. The magistrate was alive to the fact
that he ought to approach the minor's evidence with
caution. Hence he
opined, in his judgment, that the victim was able to open up and tell
her grandmother about the incident because
she felt comfortable round
her (Record page 157 line 6-7). In light of this, it can not be said
that there was no caution in the
court a
quo's
approach to
evidence evaluation.
[18]
It was further argued before us, that the magistrate failed to accord
sufficient weight to the contradictions by the victim. These
contradictions can be summarized as follows:
18.1 Contradictions
contained in the victim's written statement to the police and her
evidence in court with regard to how much
money she was given by the
appellant after the rape incident.
18.2 Contradicting accounts of whether
the rape occurred on the floor or on the table in the kitchen.
18.3 Lastly, whether the victim was
sexually penetrated by both a finger and a penis, by the appellant.
The
evidence of the appellant before the court a
quo
was to the
effect that he did not see the victim on the morning of the incident
and therefore did not give her money. The only person
he gave money
to was his other child. The question that inadvertently arises is
whether the contradiction is material. The victim's
grandmother
testified that she was told by her that after she was sexually
assaulted by appellant he gave her R10-00. No issue
was taken with
her testimony in this regard. When the victim's mother testified it
was put to her that the version of the appellant
was to the effect
that the
victim
(my emphasis), was given R10-00 by the
appellant to share with her younger sibling. The following was put to
her during cross examination,
Mr Sibea:
"....................
…………………
..
Ja. I am saying this,
because my client says on 25 February 2013, he gave your daughter
R10-00 for them to share with the younger
one, K..........
…………………
.
…………………
..
and then my
instructions
are
saying
that they
were
given
R5, sorry R10 for them to share, R5 and R5."
(Record
page 33 line 19-24).
[19]
When the victim testified, she stated that she was given R20-00 and
her sibling R10-00. When it was put to her that the version
of the
appellant was to the effect that she was given R10-00 on the day, she
disputed it, insisting that it was R20-00. When the
police officer
who took down the statement was called to testify, she made reference
to the statement and indicated that according
to it, the victim was
given R10-00. The magistrate alive to the contradiction, referred in
his judgment to the decision of
S
v Oosthuizen 1982 (4)
SA ALLSA 245 (T).
The thrust of his reference to case law
being that mere contradictions do not necessarily lead to rejection
of evidence. One of
the most critical issues being whether the truth
has been told. I find the following remarks in the case of
S
v
Mafaladiso
en
Andere
2003 (1) SACR
583
(A)
593e - 594h apposite in this matter when evaluating the
evidence in situations where there are contradictions:-
"The juridical
approach to contradictions between two witnesses and contradictions
between the versions of the same witness
(such
as,
inter alia, between her or his viva voce
evidence and
a
previous
statement) is, in principle (even if not in degree), identical.
Indeed, in neither case is the aim to prove which of the
versions is
correct, but to satisfy oneself that the witness could err, either
because of
a
defective
recollection or because of dishonesty. The mere fact that it is
evident that there are self-contradictions must be approached
with
caution by
a
court.
Firstly, it must be carefully determined what the witnesses actually
meant to say on each occasion, in order to determine
whether there is
an actual contradiction and what is the precise nature thereof. In
this regard the adjudicator of fact must keep
in mind that
a
previous statement is not taken down by means
of cross-examination, that there may be language and cultural
differences between
the witness and the person taking down the
statement which can stand in the way of what precisely was meant, and
that the person
giving the statement is seldom, if ever, asked by the
police officer to explain their statement in detail. Secondly, it
must be
kept in mind that not every error by
a
witness and not every contradiction or
deviation affects the credibility of
a
witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory versions must be
considered and evaluated
on
a
holistic
basis. The circumstances under which the versions were made, the
proven reasons for the contradictions, the actual effect
of the
contradictions with regard to the reliability and credibility of the
witness, the question whether the witness was given
a
sufficient opportunity to explain the
contradictions
-
and
the quality of the explanations
-
and
the connection between the contradictions and the rest of the
witness' evidence, amongst other factors, to be taken into
consideration
and weighed up. Lastly, there is the final task of the
trial Judge, namely to weigh up the previous statement against the
viva
voce evidence, to consider all the evidence and to decide
whether it is reliable or not and to decide whether the truth has
been
told, despite any shortcomings."
In
light of the above, I am of the view that whether the complainant was
given R20-00 or R10-00, was not material to the issues
that the court
a
quo
was to
adjudicate upon. I am further of the view that when one considers the
entire evidence, the truth has been told. The finding
by the trial
court, that the contradictions do not vitiate the State case (Record
page 157 line 24), was a correct finding.
[20]
Counsel for the appellant further argued that the Doctor's evidence
as to what could have caused the vaginal injuries of the
victim, was
not given due weight. The Doctor's evidence, so it was argued, was to
the effect that the vaginal injuries could not
have been caused by
penile penetration but by finger penetration. The judgment of the
magistrate shows that he did not approach
· the evidence in
piecemeal fashion but accounted for all the evidence including the
evidence of the appellant which included
allegations of a conspiracy
against him. Such conspiracy was, correctly in my view, found to be
improbable as it would have involved
collusion of the victim's
grandmother, the police and the Doctor. On the other hand the
magistrate found corroboration of the victim's
evidence in the
testimony of the Doctor. He found that when evidence is viewed in its
entirety, the version of the appellant stood
to be rejected as false.
Although not specifically referred to in his judgment, the contention
by the appellant that there was
fabrication of the allegations
against him so as to falsely implicate him in view of payments that
were due from the Road Accident
Fund, or because the victim's
grandmother hated
him, is not borne out
by recorded evidence. The approach by the court a quo was in line
with what was said in
S v Van Der Meyden
1999 (1) SACR 447
,
by
Nugent J, as he then was;
“
ln whatever
form the test is expressed, it must be satisfied upon
a
consideration of all the evidence. A court
does not look at the evidence implicating the accused in isolation in
order to determine
whether there is proof beyond reasonable doubt,
and so too does it not look at the exculpatory evidence in isolation
in order to
determine whether it is reasonably possible that it might
be true."
[21]
The basic approach in every appeal against sentence was set out in
S
v Rabie
1975 (4) SA 855
(A)
at 857D-F to be the
following:
"the
court hearing the appeal
-
(a)
should be guided by the principle that punishment is 'pre
eminently
a
matter for the discretion of the trial court', and
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence should only be altered if the discretion
has not been ‘judicially and properly' exercised. The test
under (b) is whether the sentence is vitiated by any irregularity
or
misdirection or is disturbingly inappropriate"
(see also
S
v Giannoulis
1975 (4) SA 869
(A),
S
v
Barnard
2004 (1) SACR 191
(SCA)
at
194C-D,
S
v Mayisela
2013 (2) SACR 129
(GNP) at[13].)
[22]
The court in
S
v Malgas
2001 (1) SACR 469
(SCA)
at
478E-H said the appeal court can only interfere with the sentence
imposed by the trial court where it is vitiated by a material
misdirection or where the disparity between the sentence of the trial
court and the sentence that the appellate court would .have
imposed
had it been the trial court, is so marked that it be described as
'shocking', 'startling'
or
'disturbingly'
inappropriate
(see also
Madiba v
S (2015] JOL 33686 (SCA)).
[23]
The appellants' personal circumstances were placed before the
sentencing court as follows:
·
That he was 38 years of age at the time of the rape;
·
That he has previous convictions which relate theft and two of
which relate to drugs or dependence inducing substance;
·
That he was not married but was in a stable relationship;
·
He has two minor children;
·
He attended formal schooling upon grade 9;
·
That he suffers from HIV;
·
T
hat he is self employed.
[24]
A pre-sentence report was procured and tendered into evidence. The
Probation Officer notes in the report that the appellant
does not
admit the incident and does not exhibit any remorse. It is further
noted that the appellant was brought up by his stepfather
and that he
never knew his father. His childhood was punctuated by poverty and
financial strain. As a teenager he became rebellious
and mixed with
wrong friends. He ended up using alcohol and dagga. He also started
committing crime. At the time of his arrest
he had been cohabiting
with the victim's mother for 13 years. Two children were born of this
relationship. He was a good father
to his children. It is further
recorded that he has joined the ZCC church, made peace about his
situation and is now closer to
God. In evaluating the circumstances
of the appellant, the Probation Officer stated that the rape was an
isolated event and that
the appellant was not predisposed to being
attracted to children and therefore was unlikely to reoffend.
[25]
In the victim impact report the Probation Officer states that the
victim experienced pain as a result of the rape. The rape
has further
caused the victim to feel unloved and has been exhibiting signs of
short temperedness. Her mother reported that she
makes demands which
when not met are followed by threats that the victim will kill
herself. The incident has also impacted severely
on her mother and
grandmother too. Following the rape, the behavior of the victim has
changed significantly to a point where her
mother feels like the
victim no longer feels the need to confide in her. She is also not
responding positively when attempts are
made to reach out to her. The
Probation Officer noted that during the interview the victim was
crying continuously. She concludes
that the rape has impacted the
victim significantly.
[26]
The magistrate, in the end, found that there were no substantial and
'compelling circumstances present and concluded that there
was no
reason to depart from the minimum sentence of life imprisonment. This
finding by the magistrate can be assailed for there
were, in my view,
substantial and compelling circumstances, namely;
·
The appellant was a first offender. Although the
magistrate correctly found that on a sexual assault case the
appellant was a first
offender (Record page 170 line 15-16), he
failed to give due weight to this factor,
·
The appellant spent 26 months (2 years and 2 months) awaiting trial.
The magistrate makes a passing reference to time spent
(Record page
171 line3-5). He however does not account for such a time. He
therefore simply paid lip service to it. The failure
to account for
the 26 months served while awaiting trial, which period is
substantial, is in my view a misdirection. An injustice
is
perpetuated when time served is not brought in to bear. (See
S
v
Vilakazi
2009 (1) SACR 525
(SCA)).
·
The appellant was said to be HIV positive. It is usually an
aggravating factor whenever a perpetrator knowing his HIV status,
sexually assaults another person. In this instance it should count in
favor of the appellant that the victim, somehow, was not
infected
with the virus (Record page 171 line 21),
·
In the pre-sentence report, the Probation Officer correctly points
out that this incident of rape was an isolated one and
that the
appellant is not a person predisposed to committing sexual assault.
It follows therefore that he is capable for being
rehabilitated,
·
The magistrate correctly found that the appellant was not "an
inherently evil person (page 172 line 5-7). He further
went to say
that such a finding counts in favor of the appellant. From the
sentence imposed however the magistrate seems not to
have given the
benefit of such a finding to the appellant,
·
Lastly, rape is a serious crime that leaves lasting scars on its
victims.
That
however is not to say each crime committed is not to be
individualized. On the facts of this case while the victim did
sustain
injuries on her private parts and as per the victim impact
report exhibits signs of trauma emanating from her ordeal, the rape
itself was not accompanied by extreme violence.
[27]
In light of the above, I am accordingly of the view that the court a
quo erred in not finding that there are substantial and
compelling
circumstances present in this case that warrant a deviation from
imposing life imprisonment as a sentence. This misdirection
by the
court a
quo
places this Court at liberty to consider the
sentence afresh.
[28]
I therefore propose the following order;
1.
The appeal against conviction is dismissed;
2.
The appeal against sentence succeeds;
2.1 The sentence of life imprisonment
imposed by the court a
quo
is set aside and is replaced by the
following:
"Eighteen (18) years
imprisonment";
3.
The sentence in paragraph 2.1. supra, is ante dated to 20 August
2015.
-------------------------------
T
THOBANE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
-----------------------------
D
MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES
Heard:
30 January 2017
Delivered:
17 February 2017
Counsel
for Appellant: Mr. M. B. Kgagara
Counsel
for Defendant: Ms. J.P. van der Westhuysen