P v S (A766/2015) [2017] ZAGPPHC 116 (24 March 2017)

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[2017] ZAGPPHC 116
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S.K.P v S (A766/2015) [2017] ZAGPPHC 116 (24 March 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
DATE:
24/3/2017
CASE
NO: A766/2015
S
K
P.

APPELLANT
and
STATE
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
The Appellant, duly appeals against his conviction and sentence by
the Regional Court of Gauteng held in Pretoria for contravening
the
provision of s 3 read with Section 1, 51,56 (1) 57, 58, 59, 60 and 61
of the Criminal Law Amendment Act, (Sexual offences and
Related
Matters) 32 of 2007 read with s 256, 257 and s 281 of the Criminal
Procedure Act 51of 1977, ("the Act") together
with the
provisions of s 1and 5 and Schedule 2 of the Criminal Law Amendment
Act 105 of 1997 ("the Prescribed Minimum Sentence
Act"), as
amended. As well as
s 92
(2) and
94
of the
Criminal Procedure Act
read
with
s 5
3 of Act 105 1997 in that:
"On
or about October 2009 and at or near Mamelodi he unlawfully and
intentionally committed an act of sexual penetration of
a female
person to wit L. P., 10 years of age ("the Complainant") by
penetrating her genitals with his penis and/or fingers
without her
consent on more than one occasion"
[2]
The appeal is with leave of the court a quo. The Appellant was duly
represented during the trial and pleaded not guilty to the
charge. He
exercised his right to remain silent and chose not to tender an
explanation of his plea. At the end of the trial the
court returned a
guilty verdict reliant on the evidence of the complainant and her
mother who were found to be trustworthy as witnesses
and their
evidence reliable.
[3]
Appellant is the complainant's uncle, her mother's brother. They stay
together in the same premises. Appellant has a room outside
the main
house. The complainant, her mother and younger sibling stay with the
grandmother and her cousin in the main house.
[4]
According to the complainant, on the day of the incident Appellant
called her to his room and sent her to buy Simba chips. On
her return
he raped her, placing his private parts into her vagina. She couldn't
remember if Appellant moved up and down or did
not make any
movements. Her mother saw her leaving her uncle's room and asked her
what was happening. She did not say anything
because her uncle
promised to spank her if she told her mother. At the doctor she
explained what happened to her. First that the
Appellant started with
his finger and she felt pain when his penis was inside her vagina.
Her mother took her to the doctor but
not on the day she saw her
leaving the Appellant's room. She said the Appellant had done that to
her a lot of times. He always
started first with his finger then with
his private parts. He would rape her same way same fashion. He would
also fidget with his
finger inside her vagina. She could not remember
when it all started. She did not tell anybody what her uncle was
doing to her
because she was afraid he would spank her. He has never
done it but had promised to do so if she tells on him.
[5]
She confirmed that the doctor examined her and she told the Doctor
who told her mother that she was raped. The last rape took
place
during daytime on the day when she was wearing pink tights and a
t-shirt. The police told them to go to the doctor and they
went to 2
of them. She told both of them about the incident. One of them her
mother's boyfriend. She confirmed she had a discharge
going to the
doctor and it was sometimes itchy. She scratched herself sometimes
with a washing rag. For the first time she was
given a cream to smear
and it was never itchy. It was after her uncle had raped her. The
second doctor asked her what was wrong
with her. She told the doctor
that a penis and a hand were used to rape her. When the Appellant
called her to the room she was
sitting with Mpho watching TV and her
grandmother was sleeping.
[6]
The evidence of the complainant's mother was that her daughter was 10
years old when the incident happened sometimes in October
2009. It
was on a Wednesday at about 3 o' clock in the afternoon. She woke up
from an afternoon nap and started looking for the
complainant around
the house and yard, calling her name. Her sister's child Mpho who was
in the house did not know where the complainant
was. She continued
calling her name in the yard and when she turned around to go back
into the house, she heard a door being unlocked.
The kitchen door
that she was going into slightly faces her brother's bedroom door.
She then saw Appellant pushing the child out
of the room. The
complainant came out trying to pull her panty and tights up that were
down to her knees. When she asked the complainant
what was happening
and why she was trying to pull up her pants she started crying. The
next day when she was going to work, she
asked her mother to ask her
brother what was happening with the child who came out of his room
trying to pull up her pants and
panties. Her mother refused to
acknowledge what has happened. She said it was tough for her seeing
that it is her brother she could
not ask him and when she asked the
complainant she just cried. She did not know what to do. The schools
were closed so on that
Friday she took the complainant to her
boyfriend who is a doctor, Dr Ogbenga, and asked him to ask the child
about it. The boyfriend
asked the complainant but she kept on crying.
He advised her to go to the police and told her that as the
stepfather he cannot
do anything about this and gave her a cream for
the itchiness. They went back home and her mother told her that she
has not asked
the brother what happened. Her brother was denying that
he did anything. So she took the complainant to the police station.
The
complainant told the police what happened to her. They then went
to Mamelodi Hospital where the complainant was examined by a doctor

whom she also told what has happened. The complainant said she was
afraid to tell them because the Appellant promised to spank
her if
she told anybody. Before the incident there was no animosity between
her and her brother. She confirmed that the complainant
said the rape
happened many times.
[7]
Under cross examination she indicated that it was after she had asked
her mother to talk to the brother and as her mother could
not believe
that her brother could do such a thing, she took the complainant to
her boyfriend. She was shocked when she saw what
Appellant had done.
It was put to her that the Complainant did not mention that she was
there in the yard when she counted the
people who were there. Her
reply was that the Complainant was aware that she is in the house she
did not go to work. She confirmed
that she works as an officer at the
funeral parlour and was also a sangoma. She went to the police
because she saw complainant
pulling up her pants.
[8]
She furthermore testified that Dr Ogbenga examined the complainant
and told her that he does not want to be involved in her
family
affairs she
must take the complainant
to
the
police who
will
send
the
child
to
their
own
doctor
for
examination.
She was worried when she saw the complainant coming out of the
appellant's room semi-naked and wanted to know what was going on.
She
suspected that Appellant might have raped her. When she eventually
went to the police the child had explained to her that she
was raped
by the Appellant. It bothered her very much as this was his brother
whom she loves dearly that is why she went to her
mother. It was put
to her that she called him a witch and tried to accuse him of
stealing her healing powers. So the Appellant
went to report her to
the tribal authority before the incident of the child. She confirmed
receiving summons. It was put to her
that she said she will get him
jailed. She said Appellant ran to the traditional court as soon as he
heard that she was going to
open a case.
[9]
Dr Ogbenga in his testimony confirmed that he examined the
complainant after the mother told him that complainant was
experiencing
vaginal pains. The complainant indeed complained of
pains when he touched her private parts, particularly the clitoris.
He therefore
could not continue with the examination. He gave the
complainant a cream and told the mother to take her to the police
station.
He admitted talking to the complainant but denied that she
told him anything. Complainant cried when he touched her clitoris.
She
felt other doctors might be able to examine her properly. He knew
the appellant very well who is the complainant's mother's brother.

The complainant complained about vaginal pains. She might have had
vaginal infection but he did not go further with the examination.

Appellant was sitting in his car when he was arrested. He does not
know if the complainant and the mother were at home at the time.
The
complainant complained of severe pains that is why he could not
continue with the examination.
[10]
The J88 report was accepted into evidence by agreement between the
parties, the accused having admitted the findings in the
report. As a
result the admitted findings were read into the record as follows:
Conclusion:
History is in keeping with the finding
3:
Negative gyaene findings,
negative findings
does not
exclude the allege assault­
examination
reveals signs of lufeition swab taken.
Gynaecological
Examination: Mons pubis: Normal
Posterior fourchette: Swollen and
bruised Hymen Configuration: Swelling Present
Bumps:
not present
Fresh
tears: Not present
Synechiae:
Not present
Clefts:
Not present
Bruising:
Not present
Vagina
number of fingers admitted: Not done
Cervix:
Not seen
Discharge:
Whitish discharge, foul smell.
Conclusion:
Negative
gynae findings,
negative
findings does
not
exclude the
alleged assault,
examinations reveals signs of swab taken. Then
it proceeds to clinical finding.
Client
visualises that the known man since Saturday 4 October 2009 using his
fingers, putting them in the vagina till Wednesday
7 October 2009, no
history of physical assault,
no
physical
injuries.
Mental
health and emotional status: Calm
Clinical
evidence of drugs and alcohol: Nil
Conclusion:
History is in keeping of finding
[11]
The Appellant's testimony was a bare denial to the incident. His
evidence had little to do with the allegations levelled against
him.
He alleged that he introduced the complainant's mother to Kobela, the
lady who trained her to be a traditional healer. At
the end of the
training the complainant's mother was supposed to buy Kobela a
blanket. She did not buy it. As a result Kobela did
not complete
certain rituals.
She then had problems with Kobela and expected
him to be also funny towards
Kobela.
The
complainant's mother, their elder sister and their sister in law once
went to where their brother in law and cousin Salome stay
and took
Salome away, claiming that the brother in law poses an immediate
danger to her. They brought her to stay with them and
again took off
to Nelspruit to see an inyanga that specialises in witchcraft. They
were told at a Lekgetla that he is the one that
is obstructing the
process of seeing their brother in law dead. Thereafter complainant's
mother started accusing him of being a
witch.
[12]
He went to Zionist Christian Church to look for the traditional court
and lay a charge against the complainant's mother for
accusing him of
being witch. On Sunday he asked the other sisters except the
complainant's mother if they knew who was alleged
to be the witch. He
was avoiding a confrontation with the complainant's mother who jumped
in anyway and said she was the one who
caught a witch and he was the
witch. He then handed her the summons it was about 14h00 - 15h30. She
grabbed the summons and the
complainant and took off. He was arrested
the same day. Later he was in his room when the complainant and one
of her elder sister's
son came to call him telling him Dr Ogbenga was
at the gate. He went and sat in the Dr Ogbenga's car that is when the
police car
with Inspector Mafa arrived and he was arrested. The
complainant and her mother were in the house.
[13]
As regards the complainant he said her chores were to look after her
half- sister every day when she comes back from school.
She does not
go and play with the other kids. He, (the Appellant) always has
access to the house except for the security gate that
is locked he
has to ask someone to open the security gate to go outside the yard.
He sees the complainant daily since they live
in the same home.
Complainant did not come to his room because she is always locked up
in the house. Her mother is afraid of a
witch within the yard. He
denied sending the complainant to buy chips and insisting that she
sits down and eat the chips. At that
time he was collecting data
forms from different government organs, he was going to complete the
information for a job or tender.
He does not know anything about
inserting his fingers or penis in the complainant's vagina. The time
that he is being accused of
having pushed out the complainant from
his room is the time when the mother was going hysterical about the
witch putting burglars
and security doors everywhere where she felt
it is necessary to guard her kids and herself against the witch. That
was the end
of the Appellant's case.
[14]
Due to the J88 not being lucid, the court could not make sense of the
information therein. As a result instead of just making
negative
innuendos about the quality of the report and the state's failure to
call the medical expert, the court a quo caused the
state to subpoena
the medical expert who conducted the examination and completed the
incomprehensive form; (see s 18G of the Act.)
seeing that it might be
decisive of the material aspect of the offence, being essential to
the just decision of the case, even
though the parties had agreed
that the J88 can be admitted into evidence,
[15]
Dr Shibopha qualified as a medical practitioner at Medunsa in 2003
and was employed at Sinaxas Clinically Research Centre since
2011
where she does research work. On 12 October 2009 she was a district
surgeon at Mamelodi Crisis Centre when she encountered
the
complainant.  She confirmed the history she  recorded  on
the J88, specifically  that  "the complainant

verbalised a known man since Saturday 4 October 2009
using his
fingers putting it the
finger
into
the
vagina
till Wednesday of 7 October
2009." There was
no
history
or sy
m
ptoms
of
physical assault.
The
history on sexual assault was not done because the complainant was a
minor. On examination everything was normal except that
the hymen was
bruised and swollen and she had a foul smelling discharge.
A
pregnancy
test
done
was
negative so drawing a conclusion of negative findings that does not
exclude alleged assault. The swelling and the discharge
was due to an
infection
and swap was taken.
[16]
Upon being asked by the court to explain the bruising, swelling and
the discharge, Dr Shibopha said it was normal for girls
of the
complainant's age as they play on the sand which gets into their
vaginas and cause the irritation which will give such an
infection,
but it is easily treated. She confirmed that a swab was sent to the
laboratory and they would have excluded whatever
they suspect to be
the actual cause. The result would actually tell them that, if that
was a sexual assault. She had not seen the
results and without the
results she would exclude sexual assault. On further explanation she
spoke about gonorrhoea which she said
is a sexually infected disease,
she could not explain what the relevance of gonorrhoea was.
[17]
She further testified under cross examination that a child raped with
a penis inserted in her vagina was not what she is testifying
about,
if so they will see the injuries as minors are still sensitive. They
would usually look for the hymen which would confirm
the sexual
bleeding that actually happens. He said in this instance there were
no bumps nothing to suggest that a penis, that is
a bigger object,
especially the Accused being big as well. She could not explain her
clinical finding she recorded that no physical
injuries when the
hymen as shown in the schematic drawing of findings was bruised and
swollen.
[18]
The evidence of the medical expert was shockingly unprofessional, and
evokes a sense of incompetency and lack of appreciation
of the role
that the medical expert plays in making sure that justice prevails.
She could not offer an understandable rational
for the exclusion of
sexual assault or physical injuries and to eloquently explain her
findings.
[19]
The fundamental principle of our law is that the state or prosecution
has a duty to prove the guilt of the accused beyond reasonable
doubt
for the court to return a guilty verdict.
[20]
The Appellant argues that the court
a quo
in accepting
the evidence of the state as proof beyond reasonable doubt and
rejecting that of the Appellant as being not reasonably
possible true
erred, having failed to consider the following contradictions by the
state witnesses:
[20.1]
the complainant testified that the Appellant called her to his room,
inserted a finger and later raped her. Whereas according
to the
general history as completed by the doctor the Appellant inserted
only his fingers on the private parts of the complainant.
[20.2]
the complainant testified that the reason she was taken to the doctor
is because she was feeling itchy in her private parts
and did not
tell her mother, whereas according to her mother she saw the child
exiting the Appellant's room and she wanted to find
out what happened
to the child as the child was half naked.
[20.3]
the complainant testified that she was seen by her mother exiting the
Appellant's room, but she did not testify about her
being half naked.
That we saying it is in contrast to the testimony of the mother on
that aspect.
[20.4]
the complainant said she was wearing a pink panty on the day of the
incident of rape, whereas her mother said she was wearing
a red
panty. It was only during the court clarifying questions that the
mother changed to say that she was wearing a pink panty
with mix
colours, including red. The mother changes her testimony to suit her
needs
[20.5]
the mother testified that the first doctor they saw suggested that
they go to the police whereas the doctor denies that,
but she
suggested that the child be taken to another doctor as he was in a
love relationship with the mother.
[21]
In deciding the issues raised by the Appellant, we were consciously
guided by the established principles governing the hearing
of appeals
against finding of fact. In brief, that in the absence of
demonstrable
and material misdirection
by
the trial court, its findings of fact are presumed to be correct and
will only be disregarded if the recorded evidence shows
them to be
clearly wrong.; see
S
v Hadebe
and
Others
1997 (2) SACR 641
(SCA). The Appellate
Division went further in
S
v Dhlumayo
1948
(2) SA 677
(A) to indicate that a court of appeal will only reject
the trial court's assessment of evidence if it is convinced that the
assessment
is wrong. Even if the court is in doubt, the trial court's
judgment must remain in place.
[22]
The
court
a
quo
recognised
that
the
state
relied
solely
upon
the
evidence
of
the complainant
as to the incident itself, therefore
her
evidence, as a single witness was to be viewed
with
caution.
It would
therefore
have to
be
clear
and
satisfactory
on
all
material aspects; see s 208 of the Act". Evidence can be
rendered satisfactory
in all material aspects due to
different
factors.
What
is
important
is that
the trier of fact determines if
the proven facts supports the conclusion that the Accused committed
the offence he has been charged
with.
On the complainant's
instance the caution was a double jeopardy
since she
was also young.
[23]
However, the evidence of the complainant was found by the court to
have been direct and satisfactory on what actually happened.
She was
undeniably clear as to the details and explained sufficiently her
failure to inform her mother when she was coming out
of Appellant's
room. She has been warned that if she tells her mother what happened,
she was going to be spanked. At her age, it
is understandable under
those circumstances that she would be reluctant to tell. It was also
correct for the court to find the
evidence of her mother
corroborative of what complainant alleged to have happened. Her
mother saw her being pushed out of Appellant's
room half naked with
her panties and tights on her knees. Both testify to the mother
asking complainant what was happening and
that she did not tell her
anything but she was crying. The only inference to be drawn from
those circumstances is that Appellant
did rape the complainant.
[24]
The complainant's mother was troubled by what she saw as she says
this was her brother that she loves so very much, how does
she
process such an observation. She reasonably asked the assistance of
their mother and also took the child to her doctor friend
to
ascertain as to what exactly was happening to the child and to
address the child's complain about itchiness. On the advise of
her
doctor friend she took the child to the police station, acting like
any reasonable, concerned and responsible person would
do. I fail to
see any mala fides from her conduct. The complainant similarly
confirmed that she was not aware of any bad blood
between Appellant
and her mother. The court was therefore correct to find her evidence
to be satisfactory as well. The fact that
the complainant omitted to
mention that when her mother saw her coming out of Appellant's room
she had her panties and pants on
her knees does not mean there is a
contradiction. Unless the allegation is that the complainant denied
that she came out of the
Appellant's room semi naked. Similarly, the
allegation of a contradiction on the evidence about the colour of her
panties and tights
whether they were red or pink is insignificant as
it is not a material aspect of the evidence. The allegation of a
contradiction
in that regard is unmerited.
[25]
On the other hand the fact that there was something happening with
the child was established from her complains of pain every
time Dr
Ogbenga tried to touch her. It is not surprising that he suggested an
independent doctor saying he does not want to be
involved in their
family matter. It does say a lot about what he regards as a family
matter and his suggestion that the matter
be reported to the police.
Why would he regard the complainant's itchiness and pain on her
private parts to be a family matter
in which he would not want to be
involved? The complainant said she told the doctor about her uncle.
[26]
With regard to the evidence of the second doctor. A message that was
conveyed by Kotze J (as he then was) in
S v Gouws
1967 (4) SA
527
(EC) at 5280, was that:
"the
prime function of an expert seems to me to be to guide the court to a
correct decision on questions found within his specialised
field. His
own decision should not, however displace that of the tribunal which
has to determine the issue of the trial."
[27]
Erasmus J in
S v Armstrong
e n Ander
1998
(10 SACR 698(SEC)
said we cannot allow the expert to become the eyes
of the court. The court must be satisfied from its own observation
that the
conclusions are correct with the aid and guidance, as may be
appropriate of the expert.
[28]
The
court
a
quo
in dealing
with the
expert's
evidence
which
is the
main
evidence that
the
state
is
also
relying
upon
to
prove
their
allegation
of
rape,
has
to
differentiate
between the
evidence
of the
expert
on the
results of the
examination
it conducted
that
is admissible as
real evidence
and their
opinion.
The
results of the examination admissible as real evidence are that the
Posterior
fourchette
was
swollen
and
bruised
and
the hymen swollen.
Hymen Configuration:
Swelling
Present
and a Discharge:
Whitish
discharge, foul smell.
The
assessment of the probative value of the real evidence is done by
taking into account the evidence of the witnesses that is
relevant to
the material aspects of that evidence. From the proven facts, whether
there is a likelihood of the complainant having
sustained the
injuries found to be existent at the time of examination. The
evidence of the complainant and her mother indicate
such possibility.
The trial court was right this was not scientific evidence per se.
[29]
The court correctly
came to a conclusion
that
the only inference that
is logical that can be drawn
from
the
proven facts
is
that
the bruises and the swelling of the hymen were caused
by the fingers and the penetration of the complainant's vagina by the
penis.
Having taken into consideration what have been established,
that is, the complainant's direct evidence of penetration by the
Appellant.
The complainant was with the Appellant in his room. She
was seen pushed out of the room by the Appellant with her panties and
tights
on her knees and was emotional and crying when her mother
wanted to know what was happening. Her reaction to her mother's
boyfriend
when he tried to examine her private parts. The stance
taken by her mother's boyfriend after seeing her reaction to his
examination,
that he does not want to be involved in their family
affair and suggesting an independent Dr. The probative value of the
corroboration
considered in the light of evidence which has been
presented as a whole is remarkable. Whilst there is no evidence
before the court
that might indicate the possibility of sand or any
other thing having caused an infection which would have in turn
caused bruises
or the swelling of the hymen. It defies logic that an
infection can cause bruises.
[30]
In such a case the opinion of the experts cannot be a decisive factor
when considering a conviction. It also indicates how
dangerous it can
be to depend on the opinion evidence of the experts without
scrutinizing the tests conducted and the results of
their examination
to see if their opinion stands up to logic. The court a quo was
regrettably right to reject the opinion of Dr
Shibopha which weirdly
ruled out any physical assault or injuries; see Du Tait
et
al's
Commentary on the
Criminal Procedure Act " on
p24 - 30 making
reference to an excerpt from
Prinsloo
v Road Accident Fund
2009 (5) SA 406
(SE) that:
"In
assessing expert evidence, the court has to be satisfied that the
conclusion has a proper factual foundation."
[31]
Even though it is accepted that an Accused person need not put up a
version that is more than reasonably possibly true and
the version
need not even be believed. However where there is a prima facie case,
the question that is asked is whether there is
a likelihood that the
Appellant could be telling the truth, there being a likelihood of his
explanation happening. An explanation
that is above suspicion is
required. So the Appellant's inference that it needed the court to
draw, was to be consistent with all
the proven facts. In other words
was the Appellant's explanation a possibility since if the
explanation cannot be ruled out as
a possibility, when it  is
judged against the principles of logic of the well-known dicta of
Watermeyer JA in R
v Blom
1939
AD 188
,
the
Appellant must be given the benefit of doubt.
[32]
The court measured the proven facts against Appellant's improbable
allegation that there was such bad blood between him and
the
complainant's mother that the mother would use the child in such a
way to get back at him, an allegation refuted by the complainant
and
her mother. Moreover that the mother did not send the complainant to
his room, but he is the one who called the complainant
to his room.
Had she had the motive to get him arrested she could have just ran to
the police station and reported him when the
complainant came out of
his room half naked. She would have known by then that the
examination is going to show that her hymen
is bruised and swollen.
However due to the shock, and not wanting to register what the mind
might have realised was happening,
she sought help first from her
mother then her boyfriend. Accordingly, the Appellant's evidence that
was intended to disturb the
only inference that was to be drawn from
the proven facts, was not only unconvincing but also far-fetched. The
court a quo was
right to reject his version.
[33]
In consideration of all the proven facts the state indeed proved
beyond reasonable doubt that the only inference that can be
drawn
from all the proven facts was that the Appellants raped the
complainant as she alleges, on the day that she was seen coming
out
of his room with her pants and panties on her knees, having
penetrated her with his penis and finger as well.
[34]
The Appellant has therefore failed to show that the learned
magistrate erred in convicting them.
AD
SENTENCE
[35]
The trial court sentenced the Appellant to 15 years imprisonment
having found substantial and compelling circumstances that
justifies
a deviation from the Prescribed Minimum Sentence of life
imprisonment; see
s 51
(1) of the
Criminal Law Amendment Act 105 of
1997
. The Appellant was not represented during sentencing but the
court considered it to be in the interest of justice to proceed with

the Appellant representing himself in the proceedings.
[36]
The Appellant challenges his sentence on the basis that the court a
quo erred by not taking other sentencing options into account
and or
adequately into account. It was argued on his behalf that the court a
quo only took into consideration the seriousness of
the offence, its
degrading nature to women and the interest of society that was
overemphasised to the detriment of Appellant's
personal
circumstances. As a result it erred by imposing a sentence that is
shockingly harsh and induces a sense of shock. It was
further argued
that the sentence is too severe and not in the interest of society or
the Appellant.
[37]
It is trite that sentencing is within the trial court's province and
the appeal court can only interfere with such discretion
if it is not
exercised properly and judiciously. The trial court would have failed
to exercise its discretion as prescribed if
it committed an
irregularity or misdirected itself, or has imposed a sentence that is
shockingly inappropriate or out of proportion
to the magnitude of the
offence (see
S v De
Jager and Another
1965
(2) SA 616
(A) at 628H-629B) .
[38]
In order to ascertain that an appropriate sentence is imposed the
courts are guided by the Zinn triad that refers to the relevant

factors that are to be considered in determining a proper sentence,
which is the offender, the offence committed and the interest
of
society. The court looks at the nature, circumstances and extent or
degree of each of the three factors. The sentence would
as a result
have to be in proportion to the nature, circumstances under which the
crime was committed and the interest of society.
[39]
In respect of the offence committed by the Appellant the legislature
has already ordained a minimum sentence of life imprisonment
to be
imposed on a first offender. There are therefore no sentencing
options for the trial court to choose from nor does it start
on a
clean slate. Its starting point is the legislated sentence. The court
could deviate from the prescribed minimum sentence only
if it finds
that there are substantial and compelling circumstances that
justifies a lesser sentence.
[40]
In determining whether such circumstances exist the court a quo took
into account that the Appellant has been in custody for
more than a
year, nineteen (19) months to be precise, when he was sentenced.
Although the delay was caused by the Appellant changing
attorneys
three times, some of it was caused by their withdrawing as a result
of conflict of interest. Two witnesses that he intended
to call
passed away and the remaining two were reluctant to come and testify
due to intimidation.
[41]
The court a quo also had the benefit of pre-sentencing reports that
were compiled for the court on the personal circumstances
of the
Appellant and the victim impact report. In respect of the Appellant
it was indicated that at the time of the commission
of the crime he
was 37 years old, married with one child and a first offender. He
worked as a computer tutor in a private business
whilst his wife is
unemployed. He lost his mother when he was in custody.
[42]
The court also took into account that he has been convicted of a very
serious crime that is prevalent in our communities and
which the
legislature intended to curb/deter with the prescribed minimum
sentence. The crime was committed against a defenceless
and
vulnerable young child, 9 years of age, by a person who was supposed
to protect her as an uncle and at home where she was supposed
to be
safe and protected. Such serious crimes committed within the sanctity
of a home attract a harsher sentence to deter and discourage
like-
minded persons who might be contemplating committing the same offence
against their own families.
[43]
The impact of this offence was also documented in the victim impact
report. According to the report the complainant was badly
affected by
the rape. She could not concentrate at school and exhibits withdrawal
syndrome, anxiety and lack of trust towards males.
The relationship
between Appellant and complainant's mother has been completely ruined
by the incident. Also between the complainant's
mother and other
members of the family. Unfortunately the crime statics on rape are
rapidly on the rise even though there are measures
embarked on by the
government to educate communities. It is worrisome that
notwithstanding this the Appellant has not shown any
remorse and
persisted to deny that he raped the complainant. All this factors
together militates against the granting of a lesser
sentence and
calls for the imposition of a severe sentence.
[44]
Notwithstanding all of the above the court still saw it fit to
consider that the Appellant did not cause
any other
physical harm to the complainant. It regarded the offence not to
be the worst of its kind. Also that the child seem not to be
suffering
an on-going trauma. It acknowledged that the offence is not
so severe to warrant the harshest sentence and took into
consideration
the time the Appellant has already spent in custody. It
regarded all of that cumulatively to amount to substantial and
compelling
circumstances.
[45]
I do not agree with the court a quo on its conclusion that the trauma
suffered by the child is not ongoing when that has not
been alluded
to by the social worker who interviewed the child. The courts are
also warned against the grading or considering the
lack of physical
injuries to be a mitigating circumstance and downplaying emotional
trauma especially on the rape of a child. I
consider these to be one
of the flimsy reasons that were referred to in
S
v
M
algas
2001 (1) SACR 469
(SCA)
(2001 (2) ZASCA 30).
[46]
Notwithstanding the reservations I have against the trial court's
consideration of the absence of physical injuries to be a
mitigating
factor, I am not persuaded that when the evidence is holistically
considered, the sentence is shockingly inappropriate
and or
disproportionate to the nature of the offence or such that it can be
concluded that the court a quo misdirected itself or
there was an
irregularity.
As
a result, it is ordered:
[1]
The appeal against conviction and sentence is dismissed.
For
the Appellant:
MOENG
Instructed
by:
Legal Aid South Africa
Pretoria
For
the Respondent:       M M MASHUGA
North Gauteng: Pretoria
___________________
N
V KHUMALO J
JUDGE
OF  THE  HIGH  COURT
I
concur
___________________
N
P MALI
JUDGE
OF  THE  HIGH  COURT
GAUTENG
DIVISION: PRETORIA