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[2017] ZAFSHC 159
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M v S (A130/2017) [2017] ZAFSHC 159 (14 September 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
number: A130/2017
In
the Appeal between:
M.
R. M.
Appellant
and
THE
STATE
Respondent
CORAM:
JORDAAN, ADJP
et
LEKALE,
J
HEARD
ON:
11 SEPTEMBER 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
14 SEPTEMBER 2017
Summary:
Criminal law- Incestuous rape and sexual assault- Father taking
sexual advantage of his 14 year old girl by fondling her
breasts and
raping her- Rape committed no matter how careful father was not to
penetrate his daughter deep and how caring and loving
he was in the
process - Relationship between culprit and victim
aggravating factor - Crimes impacting negatively on
victim’s
mother who collapses and faints when husband admits evil deeds and
apologises - Father grooming daughter to become
secret second wife
for sex purposes – Decided cases on sentence providing
guidelines and not constituting rules of thumb
- Appeal dismissed.
[1]
On 24 August 2016 the appellant, who was legally represented, was
convicted of raping his 14 year old daughter more than once
and of
assaulting her sexually by the Regional Court at
Bloemfontein.
He was, thereafter, sentenced to life imprisonment for rape in
accordance with section 51(1) of Criminal Law
Amendment Act 105/1997
(the Minimum Sentences Act) and 5 years imprisonment for sexual
assault on 26 August 2016. He feels
aggrieved by both the
convictions and sentences imposed. He now exercises his automatic
right of appeal against the same in the
present proceedings.
[2]
On returning the guilty verdicts the trial court,
inter
alia
,
found that the complainant was an excellent witness and,
further, accepted the evidence of her mother and one
M. M. (M.) whom
the court below described as a strong, neutral and reliable witness.
The trial court, further, rejected the
appellant’s version as
not reasonably possibly true and found that he was neither a credible
nor reliable witness.
The court below, furthermore, accepted as
excellent the undisputed evidence of the medical expert he called as
a court’s
witness in terms of section 186 of the Criminal
Procedure Act (the CPA) with regard to how the hymen
accommodates a
penis in a polo neck-like manner by stretching and
retracting. The trial court, furthermore, found that there were
multiple
incidents of rape and breast fondling with due regard to,
inter
alia
,
the opinion of M.. The court
a
quo,
further,
found no cause, in the form of substantial and compelling
circumstances, to depart from life imprisonment as applicable
prescribed minimum sentence in the instant matter.
[3]
On the papers and in argument before us Mr Tshabalala, for the
appellant, submits to
inter
alia
,
the effect that the appellant’s version is reasonably possibly
true. He, further, submits that the utterances of the
complainant’s grandmother to the effect that the appellant’s
alleged conduct is what she came to Bloemfontein for,
the fact that
the complainant incriminated the appellant when she was confronted
with her involvement with boys as well as the
fact that the appellant
is the one who suggested that the complainant and her friend be
subjected to virginity testing all support
the reasonable possibility
that the complainant was incriminating the appellant falsely.
On sentence Mr Tshabalala submits
to,
inter
alia
,
the effect that life imprisonment is disturbingly inappropriate and
falls to be set aside regard being had to,
inter
alia
,
the appellant’s personal circumstances, inclusive of the fact
that he has been in custody since the date of his arrest,
as well as
the fact that the rape in the instant matter does not fall into the
category of serious rapes in the light of case law.
[4]
On its part the State supports both the convictions and the sentences
with Mr Simpson submitting to,
inter
alia,
the
effect that the trial court evaluated the evidence correctly regard
being had to case law and correctly rejected the appellant’s
version as not reasonably possibly true. As to the sentences imposed
he submits that they are not shockingly inappropriate.
[5]
The factual findings of the trial court, its acceptance of and
conclusions on oral evidence are presumed to be correct unless
and
until they are shown, on adequate grounds, to be wrong. (See
S
v Francis
1991
(1) SACR 198
(A)).
[6]
In approaching the evidence of single witness with caution, the court
seeks to satisfy itself that despite its shortcomings,
defects or
contradictions the truth has been told. (See
S
v Carolus
2008(2)
SACR 270 (SCA) at
par
[15]).
[7]
An admission is confirmation of a fact unfavourable to the declarant
or maker. Evidence of an admission made extra-judicially
by any
person in relation to the commission of an offence is admissible if
it does not constitute a confession and if it was made
freely and
voluntarily in the sense that it was not induced by any promise or
threat proceeding from a person in authority.
(See
Section
219A of Criminal Procedure Act 51/1977
and
R v
Barlin
1926
AD 459
at 462).
[8]
When confronted with two or more conflicting versions that cannot be
reconciled the court adopts a holistic approach to the
totality of
evidence before it and has regard to probabilities. (See
S
v Guess
1976
(4) SA 715
(A) at 718).
[9]
The two cardinal rules of logic applicable when reasoning by
inference in our criminal justice system are firstly, that the
inference sought to be drawn must be consistent with all the proven
facts and secondly, that the inference so sought to be drawn
must be
the only reasonable inference capable of drawing from such proven
facts. (See
R
v Blom
1939
AD 188).
[10]
The question as to whether or not cause, in the form of substantial
and compelling circumstances warranting a departure from
prescribed
minimum sentences, exists depends on the answer to the question
whether the cumulative impact of mitigating factors
on aggravating
circumstances, inclusive of the interests of the community, renders
the applicable prescribed minimum sentence unjust.
(See
S
v Malgas
2001
(1) SACR 469
(SCA)).
[11]
The period an accused person spent in custody awaiting finalization
of the trial does not
per
se
and
without further ado constitute legal cause to depart from prescribed
minimum sentences. It is a factor to be taken into
consideration when determining the appropriateness of the sentence to
be imposed. (See
Radebe
and Another v S
2013(2)
SACR 165 (SCA)).
[12]
A sentencing court has a discretion to consider sentence untrammelled
by sentences imposed by other courts in similar cases
insofar as such
other sentences are guidelines and not binding precedents. In fact
“…
decided
cases on sentence provide guidelines, not straitjackets.”
(See
S
v D
1995(1)
SACR 259 (A) and
Patrick
Clive Bailey v The State
[2012]
ZASCA 154
at
par
[17]).
[13]
The factual basis for the convictions, as accepted and found by the
trial court, is apparent from the evidence of the three
witnesses who
testified for the State as well as the medical expert who testified
in terms of section 186 of CPA at the instance
of the court below.
13.1
M. M. M.
testified under oath to
inter
alia
,
the effect that she is 15 years of age and the complainant in the
matter. The appellant is her father and as at 22 January
2015
she and her two siblings were staying alone with him in the absence
of their mother, who was working in Johannesburg. On that
particular
day she did not go to school while her siblings went.
She was playing outside in the morning when
the appellant called her
into the house. She got into the house with the appellant who
proceeded to brush her breasts with
his hands moving in a
circle-eight movement around and over her breasts. The
appellant pointed out that he wanted to feel
if she had slept with
boys. The appellant took her to the bedroom and threw her onto
the bed. The appellant undressed
her and himself.
He slept on top of her inserting his penis inside her vagina,
whereafter, he made up and down movements
on top of her. She
felt pain in her stomach in the process and cried.
The appellant wiped off her
tears and, thereafter,
removed his penis out of her vagina. He, thereafter, inserted his
finger into her vagina and
when he removed the finger she saw some
white substance on the finger. The appellant took a shower and
before he could leave
for work he told her not to tell anyone about
the incident because he would kill them. The appellant,
further, promised to
bring Danone yogurt and Ultra Mel home when he
returned from work. She did not cough a word about the incident
to anyone
as a result of the appellant’s threats. Later
in June the same year, on a date she could not remember, the
appellant
came home very late at night as she was sleeping with her
two siblings and wanted her to go to his bedroom to sleep but she
refused.
When she woke up in the morning she realised that she
was naked although she had her panty girdle on when she went to bed.
She,
thereafter, developed the practice of taking a pin with her to
bed every night so that she could pinch the appellant whenever he
interfered with her. At the dinner table on 30 August 2015 her
mother, who was home for the weekend, questioned her, in the
presence
of the appellant and her maternal grandmother who was visiting from
Lesotho, about the boyfriend she was earlier seen
with. Her friend,
one N., who was with her together with their boyfriends when she was
caught, was also summoned together with
her mother. She and N.
disputed the claims. N.’s aunt, one M., was called
and suggested that they be taken for
virginity testing. She got
scared that it was going to be discovered that she was no longer a
virgin and spilled the beans
against the appellant disclosing what he
did to her. Her mother fainted and M. took the appellant to the
outside and returned
to inform them that the appellant had admitted
the incidents and asked for forgiveness. The appellant
thereafter ran away
going to Lesotho.
13.2
M. M.
testified to
inter
alia
,
the effect that she was visiting her sister in Bloemfontein when she
was called to the appellant’s residence. The
issue on the
table was the alleged involvement of her niece N. and the
complainant with boys and she suggested that
the girls be taken for
virginity testing. The complainant, thereupon,
related what the appellant
used to do to her in her mother’s
absence including how he raped her, touched her breasts and how she
would sometimes go
to bed dressed in her panty girdle only to wake up
in the mornings naked with a jelly-like, sour and whitish substance
on her body.
The complainant, thereafter, cried and so did the
people in the room save for the appellant who wanted to beat the
complainant
up. She intervened pointing out that he rather
beat her and not the complainant. She asked to have
a word with
the appellant alone outside and they proceeded accordingly. The
appellant first refuted the complainant’s
accusations but when she pointed out that they are going to call the
police, he conceded saying that they should rather call his
relatives
and his wife’s relatives so that the issue could be discussed
in private. The appellant, further, stated
that the complainant
was telling the truth but the issue should be kept within the
family. When they got back into the house
the appellant told
the people inside that he had raped the complainant by inserting his
penis inside her vagina but it was not
a deep penetration. The
appellant, further, confirmed that he also touched the complainant’s
breasts when the latter
was taking a bath. The complainant’s
mother, thereupon, collapsed and fainted. She went out crying
to fetch a
social worker but when she returned the appellant was
gone.
13.3
M. R.
testified to
inter
alia
,
the effect that she is the complainant’s mother. On the
fateful day she noticed the complainant with a boy and the
former ran
away when she saw her. At dinner time that evening she told the
appellant and her mother about the incident.
As she had also
spotted the complainant’s friend, N., with a boy she called for
her. N. came with her mother but the
issue could not be
resolved and M.’s counsel was solicited. M. suggested
virginity testing, whereupon, the complainant
got scared and
disclosed what the appellant used to do to her. The appellant
wanted to give the complainant a hiding but.
M. intervened
saying that the complainant could not lie about such a thing.
M. and the appellant went outside to talk in
private and when they
came back the appellant starred at her and exclaimed that she must
please forgive him because he, in fact,
did what was attributed to
him. M. asked him what he did and the appellant said that he
did insert his penis inside the complainant’s
vagina but it was
not a deep penetration. The appellant, thereafter, said that
both their relatives be called to discuss
the matter as a family so
as to keep it within the family. She told the appellant that
she was done with him and that she
would not be able to forgive him.
She, thereafter, passed out and when she regained consciousness the
appellant was not home.
13.4
Johanna
Maria Kotze t
estified
as the court’s witness after the defence had closed its case
to,
inter
alia
,
the effect that she is a medical practitioner with vast experience in
rape cases having seen some 2700 such cases inclusive of
child sexual
abuse cases. She holds an MBChB Degree which she acquired in
1977 among others. She also trains nurses
in clinical forensic
medicine. She appears on at least a monthly basis in the court
below to testify in rape cases.
In medical terms rape is
penetration. The female genitalia consist of external genitalia
and internal genitalia. The
external genitalia, on its part,
consist of the labia and the vestibule while the internal genitalia
consist of the hymen, the
vagina and the uterus with its tubes.
Penetration by definition takes place when there is penetration
between labia and not
through the hymen. The hymen in
adolescents behaves like a polo neck in that it is elastic and
stretches to accommodate the
penis or any object inserted and
contracts back into shape thereafter. It is, therefore, totally
wrong to conclude that there
was no penetration if there is no broken
hymen. It is possible that the genital area may not feel any
pain but internally,
in the area of the pelvis or abdomen, there
might be pain. It is, however, a very difficult question to
answer because there
is no research done to date on pain
specifically. There is, thus, no black and white answer on
pain.
[14]
The appellant testified as the sole witness in his defence and
disputed all the allegations levelled against him. He,
further,
testified that he was the one who suggested virginity testing.
[15]
There is nothing before us to demonstrate or suggest that the trial
court’s factual findings are wrong regard being had
to the
trial court’s analysis of the evidence as guided by
unchallenged expert opinion on the behaviour of the hymen in
adolescents and pain. It can, further, not be said that the
court below erred in his acceptance of the oral evidence tendered
by
the State and his conclusions thereon.
[16]
On available evidence it is clear that the trial court had cause to
reject the appellant’s version as not reasonably
possibly true
regard being had to
inter
alia,
the
fact that some important aspects thereof were never put to relevant
witnesses who testified for the State such as the allegation
that he,
and not M., proposed virginity testing.
[17]
The trial court, further, applied cautionary rule when dealing with
the evidence of the complainant and correctly found that
the truth
had been told. In this regard it is clear that the complainant was
corroborated, in her evidence, by the appellant’s
extra-curial
statement as accepted by the court below.
[18]
In my view the only fault apparent in the impugned judgment is the
finding that the appellant raped the complainant more than
once.
There existed no evidence whatsoever of penetration after January
2015 insofar as the complainant’s evidence
was to the effect
that she would go to bed in her panty girdle only to wake up naked in
the morning. Even if she would find
a jelly-like, sour and
whitish substance on her body as testified by M., that, in my
judgment, does not constitute proof of penetration.
The
inference that the appellant raped the complainant more than once is,
in my view, not the only reasonable inference that can
be drawn from
the proven facts.
[19]
As to sentence what renders life imprisonment applicable as the
prescribed minimum sentence in the instant matter is the
complainant’s
age at the time of the crime. The question
is whether or not there existed cause for the trial court to deviate
from life
imprisonment as the applicable prescribed minimum
sentence. In my view the fact that the appellant is the
complainant’s
father and her natural guardian in whose care she
was at the relevant time is aggravating. It is correct, as
found by the
trial court, that the appellant showed some love and
care when he wiped off the complainant’s tears with a face
cloth after
raping her. But it was all after the fact of the
rape which he, in fact, denied in court. The trial court was,
further,
correct in his view that the appellant was grooming the
complainant with the apparent view of making her his second wife for
sex
purposes.
[20]
The trial court rejected the appellant’s version and accepted
the State’s version to,
inter
alia,
the
effect that the appellant admitted having penetrated the complainant
carnally and asked for forgiveness from his wife as the
complainant’s
mother shortly after the truth came to light. The question is,
in my view, whether or not such conduct
is indicative of genuine
contrition on the appellant’s part. As the Supreme Court
of Appeal pointed out in
S
v Matyityi
2011
(1) SACR 40
(SCA) at
par
[13]:
“
It
is to the surrounding actions of the accused, rather than what he
says in court, that one should rather look. In order
for the
remorse to be a valid consideration, the penitence must be sincere
and the accused must take the court fully into his or
her
confidence. Until and unless that happens, the genuineness of
the contrition alleged to exist cannot be determined....”
[21]
The appellant was clearly not remorseful and did not take the trial
court into his confidence. It is, therefore, not
possible to
determine if he in fact, has “
true
appreciation of the consequences of [his] actions”
so
as to render rehabilitation possible. (See
S
v Matyityi
(
supra
)
par
[13])
[22]
Mr Tshabalala effectively contends that the rape in the instant
matter is not the worst kind of rape and that life imprisonment
as a
sentence is, as such, out of kilter with sentences imposed by the
Supreme Court of Appeal in similar cases regard being had
to
S
v Mahomotsa
2002
(2) SACR 435
(SCA) and
S
v Abrahams
2002(1)
SACR 116 (SCA) among others.
[23]
It is true that the complainant
in
casu
did
not suffer any physical injuries and the rape was, in fact, not
accompanied by any physical violence from the part of the appellant.
It is, further, clear from her Victim Impact Statement that
counselling has had a positive effect on her insofar as she is now
performing well at school after failing her grates immediately after
the incidents. I am, however, mindful of the caveat
in
S
v Mahomotsa
(
supra)
at
par
[19]
that one should guard against the notion that the fact that still
more serious cases than the present are imaginable, life
imprisonment, as the ultimate sentence, should be reserved for such
cases. It is possible that the circumstances of particular
cases may be such that, even if they differ in their respective
degrees of seriousness, they call for the ultimate sentence
imposable.
[24]
The instant matter is, in my judgment, distinguishable from the facts
in
S
v Mahomotsa
(
supra
)
in that the appellant is the complainant’s father and was
trusted by the complainant who expected him to protect her as
his
daughter. The appellant in the present matter is 33 years of
age while the age of the appellant, who was 54 years old
in
S
v Abrahams
(
supra
),
was, together with the fact that he was a first offender, found to
constitute sufficient cause to deviate from life imprisonment
as the
prescribed minimum sentence. The appellant
in
casu
was
sneaky in his dealings
vis-á-vis
the complainant. He
even provided her with niceties such as Ultra-Mel and yogurt.
He would give her cash when she went
to school pointing out that he
was helping her but she did not want to reciprocate by assisting
him. He was in a way blackmailing
her to give him sexual
favours. The appellant’s conduct was really dangerous in
that he was bent on grooming the complainant
into becoming his secret
second wife for sex purposes. He was determined to keep his
acts secret between the complainant
and himself to the extent that
when the complainant pinched him with a pin at night he would
effectively retreat to his bedroom
quietly like a naughty school boy
caught in his silly tracks. He was calculating, cunning and
conniving in his actions.
He wanted the complainant for himself
and kept her home not allowing her to visit even her uncle whom she
used to visit before.
He simply took advantage of his daughter.
Aggravating circumstances outweigh by far the appellant’s
personal circumstances
in the instant matter. The crimes
affected the complainant negatively in her school performance and her
mother who fainted
when the appellant admitted his evil deeds. The
situation would, most probably, be different had the appellant shown
remorse for
there would be hope that he would rehabilitate with
proper corrective measures.
ORDER
[25]
In consequence the appeal is dismissed.
[26]
The convictions and sentences are confirmed.
_____________
LJ
LEKALE, J
I
concur
__________________
AF
JORDAAN, ADJP
On
behalf of appellant:
Mr LM Tshabalala
Instructed
by:
Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv A Simpson
Instructed
by:
Director of Public Prosecutions
Bloemfontein