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[2016] ZAFSHC 100
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B v S (A90/2013) [2016] ZAFSHC 100 (12 May 2016)
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 HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: A90/2013
In
matter between:
S.
B. B.
Appellant
and
THE
STATE
Respondent
CORAM:
JORDAAN,
J
et
PIENAAR,
AJ
JUDGMENT
BY:
PIENAAR,
AJ
HEARD
ON:
7
MARCH 2016
DELIVERED
ON:
12 MAY
2016
INTRODUCTION
[1]
The appellant was convicted on the 1
st
of September 2011 in the Regional Court, Bloemfontein on a count of
rape and two counts of indecent assault of his 10-year old
cousin.
The offences were taken together for the purpose of sentencing, for
which the appellant was sentenced on the 19
th
of December 2011 to 12 (twelve) years imprisonment in terms of
section 276(1)(b) of the Criminal Procedure Act, 51 of 1977 (“
the
CPA
”).
[2]
The court
a
quo
also declared the appellant unfit to possess a firearm in terms of
the
Firearms Control Act, 60 of 2000
and further ordered that the
appellant’s name be included in the register for sex offenders
in terms of
section 50(2)(a)
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007
.
[3]
The appellant appeals against his convictions and sentence pursuant
to leave being granted to the appellant by this Division
in terms of
section 309C
of the CPA.
[4]
The essence of the appellant’s attack against his convictions
is threefold. Firstly, that the court
a
quo
erred in finding that the complainant was a reliable and credible
witness despite certain contradictions in her evidence, the fact
she
could not recall certain matters during cross-examination and due to
certain contradictions between her evidence and her first
report.
Secondly, that the court
a
quo
erred
in finding that the complainant was raped despite the fact that the
medical evidence was unreliable and, thirdly, that the
court
a
quo
erred in rejecting the appellant’s version.
[5]
The appellant furthermore seeks the reconsideration of his sentence
because it is shockingly inappropriate.
[6]
The State opposed the appellant’s appeal against his
convictions, but conceded that the sentence is shockingly
inappropriate
and should be considered afresh as the court
a
quo
did not give sufficient weight to the appellant’s age at the
time when he was convicted.
[7]
In terms of the annexures to the charge sheet, the appellant
committed the offence of rape (“
the
rape offence
”)
during the year 2000 and one of the indecent assault offences on or
about the 14
th
of May 2005 (“
the
indecent assault offence
”).
It is however evident from the record of the proceedings that the
incident in respect of the rape charge took place
during 2004 and not
2000 as stated in the charge sheet. The record of the proceedings is
furthermore incomplete as it does not
contain a copy of the annexure
to the charge sheet in respect of the third count, being that of
indecent assault which was allegedly
committed during the period 2000
to 2005 (“
the
other indecent assault offences
”).
[8]
The appellant was born on the [.....] 1986 and was between 17 and 18
years old at the time when the incidents occurred for which
he was
convicted. As stated above, the complainant is a cousin of the
appellant. She was born on the [.....] 1994 and was
only 10 years old
when the incidents occurred.
[9]
The fathers of the complainant and the appellant are brothers.
The appellant therefore knew the complainant since her
birth.
When the incidents occurred, the appellant resided with his father,
stepmother and some of his stepbrothers and sisters.
The two families
had a good relationship and were also staying near each other.
COURT
A
QUO’S
FINDINGS
[10]
The complainant was the only State witness that testified about the
unlawful and indecent conduct towards her because it was
not
witnessed by any other person.
[11]
The appellant pleaded not guilty to the counts and in evidence denied
that he made himself guilty of any unlawful or indecent
conduct of a
sexual nature towards the complainant.
[12]
The court
a
quo
was therefore faced with two irreconcilable versions.
[13]
After having had the advantage of seeing and hearing the witnesses,
the court
a
quo
found the State’s witnesses, save for the evidence of Ms A
Coetzee, to be reliable and particularly held that the complainant
was a credible and reliable witness, that her version was
corroborated by her reports and that her version was highly probable.
To the contrary, the appellant’s version was found to be
improbable and inherently false and was therefore rejected by the
court
a
quo
.
[14]
The appellant’s appeal in respect of his convictions can
therefore only succeed if the court
a
quo
’s
findings were vitiated by material misdirections or if it is shown
from the record to be clearly wrong. (See
Rex
v Dhlumayo and Another
1948 (2) SA 677
(A) at 698.)
THE
SAILENT FACTS
The
State’s case
[15]
The complainant was 11 years old when the trial commenced on the 23
rd
of January 2006 and therefore testified through an intermediary.
[16]
The complainant testified that, during her grade 1 school year, the
appellant asked her to accompany him to Tokkie Park. She
could,
however, not recall the exact date or day of the week on which the
incident occurred. After having asked permission from
her mother,
she, her cousin Daryl and her sister Theresa accompanied the
appellant to Tokkie Park where the appellant was, as she
put it,
‘jumping’. It is apparent from the evidence that
Tokkie Park is a sports field where the appellant practised
his
athletics.
[17]
Whilst being at Tokkie Park, the complainant and Theresa went to the
bathroom. The bathrooms were situated to the far end of
the sports
field. When they approached the bathrooms, Theresa went to search for
toilet paper. As the complainant entered
the bathroom, she
suddenly saw the appellant entering it with her. She initially
thought it was Theresa who returned after having
searched for toilet
paper.
[18]
The appellant got seated, closed the door and pulled down her
trousers. He lied on top of her and then, as the complainant
testified, “he put his wrong thing into my wrong place and then
stood down”. After the appellant penetrated her,
they
washed their hands and returned to where the other children were
playing. As Theresa already left Tokkie Park, the complainant
also returned home. The appellant stayed behind.
[19]
The complainant was wearing underpants, short pants and a short
sleeve shirt on the day in question. Before the appellant
penetrated her, he pulled down her trousers as well as her underwear.
[20]
She saw the appellant’s penis when he penetrated her vagina.
Whilst being penetrated, she felt pain in and around
her vagina but
did not say anything to the appellant. She further explained
that when the appellant penetrated her, he laid
on top of her and
made certain movements, which she described by moving sideways.
[21]
The complainant did not report the incident as she was afraid that
her mother will be annoyed with her about what happened.
She also did
not receive any medical treatment as a result of the incident.
[22]
According to the complainant, this was the only time that she was
penetrated by the appellant.
[23]
The complainant indeed reported the incident to her mother after the
indecent assault offence that occurred during May 2005.
[24]
With regard to the latter incident, the complainant testified that
she, the appellant, their uncle known as Gregory and the
complainant’s other siblings were spending time together at her
parental home while her parents were at work. The appellant
mentioned to her that he has a pair of athletic shoes that she can
have and therefore asked her to accompany him to his parental
home.
She initially insisted that they should be accompanied by Theresa,
but was persuaded by the appellant’s offer
to give her a packet
of chips if she accompanied him alone. It needs to be mentioned that
the complainant mentioned in her evidence
that she was also offered
some money by the appellant. Nonetheless, it is common cause
that she accompanied him alone to
his parental home.
[25]
On their arrival, the appellant went to the bathroom while she
(complainant) was watching television in the lounge.
[26]
After having been to the bathroom, the appellant approached the
complainant and requested her to rub his back as he had some
pain in
his back. She accompanied him to his bedroom, where the
appellant showed her how to rub his back. She had to
lay on her
stomach in order for him to demonstrate it to her, which she did. She
was thereafter asked to turn around and, as she
was then laying on
her back, the appellant got on top of her, pulled down her trousers
and placed his fingers on her vagina.
She felt some pain at her
vagina and told the appellant that it “was not nice”.
[27]
It needs to be mentioned that the complainant testified during
cross-examination that the appellant only laid on top of her
and did
not make mention of the fact that he placed his fingers on or in her
vagina.
[28]
At that stage, she heard someone calling for the appellant from
outside the house. She also heard the sound of stones
being
thrown on the roof of the house. He then stood up and left the
room. She pulled up her underwear and trousers,
followed him
and left the house through the front door.
[29]
As she left, she met her sister’s friend, Annika, in front of
the house, being the person that called for the appellant.
When the
appellant approached and spoke to Annika, the complainant left and
returned to her parental home.
[30]
Upon her arrival, she met her uncle. Her parents were not yet
at home. She did not report the incident to her uncle or
anybody else
at that stage.
[31]
Later that day, her father requested her to return to the appellant’s
house to fetch her uncle, which she refused.
When confronted
about her refusal, she informed her father that it is because of the
appellant’s indecent conduct towards
her. She then reported the
incident to both her father and mother. She also informed them
about the Tokkie Park incident
and the other indecent assault
incidents that formed the subject of count three.
[32]
It is common cause that the complainant’s mother thereafter
approached and confronted the appellant about the incidents
during
the afternoon of the said Saturday when the indecent assault incident
occurred. The appellant denied the allegations
and also
informed her that his parents are away for the weekend. She decided
to discuss the matter with them upon their return.
[33]
Apart from the aforementioned two incidents, the complainant also
testified that she was indecently assaulted by the appellant
on
numerous other occasions. According to her, the appellant used to
throw a blanket over them when they were watching television
together. He would then either insert his fingers into her vagina or
press his fingers between her legs or against her vagina.
According
to her, it happened more than once.
[34]
The complainant’s mother, her then teacher Ms L Prinsloo and Ms
A Coetzee, a social worker employed by the Free State
Child Welfare,
testified about the respective reports that the complainant made to
them during May 2005.
[35]
Although there were certain contradictions between what was reported
to them and the complainant’s evidence about the
incidents,
these contradictions were not material. In actual fact, it is clear
that certain detailed aspects of the complainant’s
evidence in
respect of the incidents were not conveyed to all of them, which does
not mean that the reports do not serve as corroboration
of the
complainant’s evidence.
[36]
The complainant reported the incidents to Ms Prinsloo on the 19
th
of May 2005, being after the indecent assault incident occurred.
She was, at that stage, the complainant’s class teacher
and
also knew her from athletics.
[37]
During the morning of the 19
th
of May 2015, the complainant got involved in a fight with other
learners. The witness intervened. When she showed
interest in the complainant and enquired about her well-being, the
complainant told her about the incidents. She firstly made
mention of the indecent assault incident. The complainant told
her that the appellant requested her to go to his house and
offered
her chips. She wanted to take her sister with, which he
refused. At their arrival at his parental home, the
appellant
requested her to scratch his back. She also informed her that
when she and the appellant used to watch television
together while
sitting under a blanket on the sofa, the appellant places his fingers
on her vagina. She further told the witness
that the appellant at
some stage pulled down her underpants and trousers, that he touched
her and also ‘put his fingers on
her private part’.
[38]
Ms Prinsloo immediately reported the matter to Inspector van Lingen
of the Child Protection Unit. She accompanied the
complainant
to the inspector’s office. The complainant reported the
incidents to the inspector in the presence of Ms Prinsloo.
She
also reported the Tokkie Park incident to them. The complainant
confirmed that the appellant penetrated her during that incident.
[39]
Ms Prinsloo also accompanied the complainant to the National Hospital
where she was medically examined.
[40]
Ms Prinsloo further testified that the complainant’s behaviour
changed after she reported the incidents to her.
She became
aggressive, was crying a lot and fought with other learners.
She also neglected her homework.
[41]
Ms Coetzee, a qualified social worker, compiled an assessment report
pursuant to her evaluation and assessment of the complainant
in
respect of the incidents. Ms Coetzee repeated the contents of her
report during evidence and also gave her opinion in respect
of issues
relating to the complainant’s behaviour as well as the manner
in which the events were reported and experienced
by the complainant.
[42]
It is not necessary to deal comprehensively with the contents of her
report and evidence because it was rejected by the court
a
quo
on
the basis that it was not reliable as it was not supported by any of
the authorities which she relied on for the assumptions
that she made
or the opinions that she formed. The court
a
quo
also held that her evidence in respect of the charges is irrelevant.
Although I do not agree with the court
a
quo’s
findings in this regard, it needs to be mentioned that her evidence
has no bearing on the court
a
quo’s
evaluation
of the evidence against which the appeal lays.
[43]
The State also relied on the medical evidence of Ms M J Thlabang. She
conducted the medical examination of the complainant
and compiled a
J88 report in which her findings were recorded. Ms Thlabang
obtained a degree in nursing during 2002 from
the University of the
Free State. She also did a dissertation in forensics at the
University of the Free State during 2004.
During May 2005, she
was employed as a forensic nurse examiner by the Department of Health
at the Tshepong Victim Centre, National
Hospital, Bloemfontein.
[44]
She examined the complainant on the 25
th
of May 2005. The complainant reported to her that her cousin,
being the appellant, assaulted her sexually and indecently
from 2004
to May 2005. During the gynaecological examination she
established that the complainant had a cleft at the 6 o’clock
position. According to Ms Thlabang, the cleft indicates a
previous torn hymen. The complainant had no other visible
physical injuries.
[45]
According to Ms Thlabang, the cleft was caused as a result of a
previous penetration or indecent assault as there was no history
of
previous accidents, for example that the complainant fell from a tree
or had an accident when riding a bicycle that could have
caused the
cleft. She further explained that a cleft is formed by a
previously torn hymen that has healed. She testified
that a torn
hymen could be caused by the digital penetration of a 10 year old
female. However, the injuries to the hymen
will depend on the
nature of the finger, being whether the nails were sharp or long.
The
Appellant’s case
[46]
Although the accused denied that he ever raped or sexually assaulted
the complainant, his evidence corroborated that of the
complainant in
respect of certain essential circumstantial aspects.
[47]
During his grade 11 school year, being during 2004, he practised his
athletics at Tokkie Park. The complainant, her sister
and his brother
accompanied him from time to time to Tokkie Park. He does not
have knowledge of the fact that the complainant
attended to the
bathroom during one of these occasions and also denied that he had
any sexual intercourse with her at the bathrooms
at Tokkie Park.
[48]
With regard to the indecent assault incident of May 2005, the
appellant denied that he had any sexual interaction or conduct
of
such a nature towards the complainant. However, he did to a
large extent corroborate the complainant’s evidence
in respect
of the events of the day in question. He testified that he
accompanied his uncle, Gregory, on the said Saturday
morning to look
after the complainant and her siblings as their parents were at
work. He had homework to do and took it with.
As the
children were noisy, he informed Gregory that he is going to do his
homework at his parental home. When he left, he
met the
complainant outside the house. She asked him to give her R1 because
she wanted to buy matches. He offered to help
her, but informed
her that his money was at his house. On their way to his house,
they met the complainant’s sister
who also asked for some money
from him. He explained to them that he has to use his money to
buy food because his parents
were not at home and could therefore not
give any money to the complainant’s sister. The
complainant’s sister
stayed behind, whereafter he and the
complainant went to his house. At their arrival, he went to his
bedroom to put down
his bag and to fetch the money for the
complainant. The complainant remained in the lounge and watched
television. On his
way to the lounge, his father phoned.
Whilst talking on the phone, he heard someone shouting from outside.
When he
went outside, he met Annika, who was looking for Gregory.
Whilst talking to Annika, the complainant came from the house, passed
them and went to her house. Later that afternoon, the
complainant’s mother came to his house and accused him of doing
“things” to the complainant, which he denied.
[49]
He further denied that he indecently assaulted the complainant during
the period 2003 to 2004. He also denied that he
indecently
assaulted her on the 14
th
of May 2005, as she testified.
[50]
The appellant testified that he had a good relationship with the
complainant and therefore do not know why the complainant
will
falsely implicate him or why she will lie about the incidents.
Although the complainant’s mother had some issues
with the
Brooks family, their families had a good relationship.
[51]
The appellant further testified that when the families met after the
May 2005 incident, the complainant’s parents indicated
that
they wanted to resolve the matter. However, according him, the
complainant informed them during that meeting that nothing
has
happened.
[52]
The appellant’s case was concluded with the evidence of his
stepmother, Ms J G Brooks. She was present when the
families
met during May 2005. At this meeting, she informed the
complainant’s mother that the appellant already telephonically
informed her on the said Saturday that he is being accused of
indecent conduct towards the complainant. When the
complainant’s
mother asked her to tell them what happened, the
complainant told them that nothing happened and that her mother
insisted that
they must come over to the appellant’s house to
talk to the appellant’s parents. Ms Brooks requested the
complainant’s
mother to take the complainant to a doctor in
order to determine whether she was indeed injured or treated
indecently. The
complainant and her parents left and never
returned.
CONVICTIONS
[53]
On appeal, the appellant contended that the court
a
quo
erred
in not approaching the complainant’s evidence with caution and
that because of certain contradictions between her evidence
and the
reports that she made to her mother and Ms Prinsloo, the Court
a
quo
erred in finding that she was a credible, reliable and trustworthy
witness.
[54]
It is trite that a court of appeal is not at liberty to depart from a
trial court’s findings of fact and credibility
unless they are
vitiated by irregularity or if the findings are wrong. This
principle is equally applicable in cases involving
the application of
a cautionary rule. (See
S
v Leve
,
2011 (1) SACR 87
, para [8];
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645) Thus, if the trial court did not
misdirect itself on the facts or the law in relation to the
application of the cautionary
rule and indeed approached and
scrutinised the evidence with caution, this Court will not readily
depart from its conclusions.
[55]
In terms of the provisions of
section 208
of the CPA, an accused may
be convicted of any offence on the single evidence of any competent
witness. However, the evidence
of a single witness must be
approached with caution and his or her merits as witness must be
weighed against factors which militate
against his or her
credibility. (See
Stevens
v S
2005
(1) All SA 1
(SCA) at para [17].)
[56]
The correct approach to the application of the cautionary rule was
authoritatively stated in
S
v Sauls and Other
1981 (3) SA 172
(A) at 180 E-G as follows:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in S v Webber
1971 (3) SA 754
(A) at 758). 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 the testimony, he is
satisfied that the truth
has been told. The cautionary rule referred to by DE VILLIERS JP in
1932 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 were well
founded" (Per SCHREINER JA in R v
Nhlapo (AD 10 November 1952) quoted in R v Bellingham
1955 (2) SA 566
(A) at 569). It has been said more than once that the exercise of
caution must not be allowed to displace the exercise of common
sense.”
[57]
It is trite that a court should not easily convict upon the evidence
of a single witness unless it is substantially satisfactory
in all
material respects or unless it is corroborated. (See
S
v Ganie
1967 (4) SA 203
(N) at 206H;
S
v Artman
1968 (3) SA 339
(A) at 341 C.)
[58]
The evidence can be satisfactory even if it is open to a degree of
criticism. All the particular facts of the case must
be
considered in order to determine whether the single witness is
credible. (See
S
v Jones
2004 (1) SACR 420
(C) at 427.) It is ultimately required that the
State must proof the accused’s guilt beyond reasonable doubt.
(See
S
v Artman
supra
at
341 C.)
[59] The application of
the cautionary rule to the evidence of a complainant in proceedings
involving a sexual offence was abolished
by the Supreme Court of
Appeal in
S v Jackson
(1998 (1) SACR 470
(A)), which
has also been legislated in
section 60
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007
, which
provides that:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence”.
However,
it does not mean that a court is allowed to convict in an
indiscriminate and reckless manner where a charge is of a sexual
nature. (See
S
v Van der Ross
2002 (2) SACR 362
(C).)
[60]
The evidence of small children must also be treated with caution.
(See
Rex
v Manda
1951 (3) SA 158
(A) at 162E – 163E.) The need for
treating the evidence of a single child witness with caution was as
follows summarised
in
S
v Dyira
(2010 (1) SACR 78
(ECG) para [6]):
“
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.”
(Also
see
S
v MG
2010 (2) SACR 66
(SCA)).
[61]
However, it needs to be emphasised that there is not a statutory
requirement that a child’s evidence must be corroborated.
(See
Viveiros
v S
2000
(2) All SA 86
(SCA) para [2].)
[62]
It is evident from the court
a
quo
’s
judgment that the court
a
quo
was mindful of the fact that the complainant was a single witness in
respect of the charges and that her evidence had to be treated
with
caution, which the court
a
quo
did.
[63]
The appellant however contends that the complainant was not a
reliable witness and that her evidence was not satisfactory in
all
material respects. In support of these contentions, the appellant
relied on certain contradictions between her evidence and
that of the
other witnesses.
[64]
The complainant testified that she was raped in one of the bathrooms
at Tokkie Park. However her mother testified that
she reported
to her that she, accompanied by the others, wanted to make use of the
ladies bathroom but that it was closed.
They approached the
caretaker who directed them to another toilet. After having been to
the toilet, the appellant sent the other
children away and then
pressed her down on the ground, whereafter he penetrated her.
The complainant indeed did not make
mention in her evidence about the
caretaker and also did not say whether the incident occurred within a
toilet cubicle or the bathrooms.
[65]
In the report to Ms Prinsloo, the complainant only informed her that
she was raped in the toilets but did not make mention
of the fact
that the other children accompanied them.
[66]
Although the court
a
quo
rejected Ms Coetzee evidence, the appellant contends that when the
matter was reported to Ms Coetzee, the complainant could not
recall
whether she was penetrated.
[67]
With regard to the May 2005 incident, the complainant testified that
she was offered athletic shoes and later on a packet of
chips to
accompany the appellant to his house. During cross-examination,
she however testified that he also offered her some
money. She
made mention of the fact that they had to collect her bag from his
house, but later testified that it was indeed
the appellant’s
bag. In her evidence in chief, she mentioned that the appellant
penetrated her vagina with his fingers
but during cross-examination
she only mentioned that the appellant laid on top of her.
[68]
According to the complainant’s mother, she only told her that
the appellant forced her to lie on her back whereafter
he pulled down
her pants. As they heard someone calling for him, he stood up
and left the house. She did not make mention
of any digital
penetration. In her report to Ms Prinsloo, the complainant made
mention of the packet of chips that was offered
to her and that, in
the house, the appellant pulled down her underwear and touched her.
The complainant indeed also informed Ms
Coetzee that she was
digitally penetrated during this incident.
[69]
Apart from the aforesaid contradictions, the appellant also contends
that the evidence of Ms Thlabang was not reliably as the
cleft to the
hymen could have been caused by other injuries, which she did not
exclude. During cross-examination, the witness
confirmed that
she did not obtain information in respect of any other injuries that
could have caused the cleft. Therefore,
according to her, it
could have been caused as a result of the penetration.
[70]
The State contends that although it must have been a traumatic
experience for the complainant, she provided clear and detailed
answers in response to simple questions put to her during
cross-examination. Once the cross-examination switched to compound
and
negative questions, she was unable to deal with it effectively,
which could be attributable to her age as she was only about 12
years
old when she testified.
[71]
The State further contends that the considerable lapse of time
between her evidence in chief and the cross-examination must
be taken
into consideration when her evidence is evaluated. It was
therefore contended that, having regard to the said time
lapse, the
mere fact that she could not remember some aspects of her evidence in
chief in detail during cross-examination does
not give an indication
that she fabricated her evidence.
[72]
Lastly, the State also contends that the manner in which the
complainant made the first report dispels any notion of conspiracy
to
falsely implicate the appellant and that the general probabilities
also favour the complainant’s version.
[73]
It is indeed correct that the complainant’s age at the time
when the offences were committed and that when she testified,
as well
as the lapse of time since the offences were committed, has to
be taking into account in order to properly assess
the reasonableness
of any contradictions or omissions in her evidence. (See
Mocumi
v The State
(2015) ZASCA 201
at para
[20]
.)
[74]
When the complainant gave evidence, she was only 11 years old.
Her evidence commenced on the 23
rd
of January 2006, approximately 8 months after she reported the
incidents to her mother and Ms Prinsloo and was only concluded on
the
27
th
of February 2007, more than a year after the trial commenced.
[75]
At the end of the first day of her evidence, the matter was postponed
to the 3[.....] 2006 when she continued with her evidence.
Yet again,
her evidence was not concluded and the matter was again postponed to
the 27
th
of February 2007 when she concluded her evidence in chief and was put
to cross-examination.
[76]
The complainant testified about the rape offence on the 23
rd
of January 2006 and the 31 of August 2006; about the indecent assault
offence on the 3[.....] 2006; and about the other indecent
assaults
on the 27 of February 2007. She was therefore only
cross-examined about the rape offence more than a year after
she gave
evidence about it and, in respect of the indecent assault offence,
six months after she testified about it. Of more importance
is the
fact that the complainant was only cross-examined about the incidents
approximately 2 to 3 years after the respective incidents
occurred.
[77]
These delays would undoubtedly have a negative impact on any witness’
memory, more so on a child that was only 10 years
old when the
incidents occurred.
[78]
Having regard to the complainant’s age, both when the incidents
occurred and when she testified about it, as well as
the lapse of
time before she was cross-examined about it at the time she
testified, it definitely affords some excuse for the discrepancies
in
her evidence during cross-examination as well as the fact that she
seemed to be confused about some of the events during
cross-examination.
(See
S
v V
2000 (1) SACR 453
(SCA) at 455
j
;
Mocumi
v The State
,
supra
,
para [20].)
[79]
Nevertheless, it must be determined from the evidence as a whole,
having regard to the circumstances and any contradictions,
whether
the court
a
quo
correctly found that the evidence has been clear and satisfactory in
every material respect.
[80]
Having considered all the aforesaid circumstances, I am of the view
that the complainant’s evidence in respect of the
rape offence
was clear and satisfactory. Although there are certain
differences between her evidence and that of her mother
in respect of
the report to her, I am of the view that it does not justify the
rejection of the complainant’s version.
During the
complainant’s first report to her parents, as well as the
report to Ms Prinsloo a couple of days later, she persisted
that the
appellant penetrated her with his penis at the bathroom at Tokkie
Park. Although she was not clear about whether
it occurred in
the toilet cubicle or the bathroom, she was clear about the fact that
the appellant raped her during that incident.
[81]
The identity of the appellant was also not doubted or disputed.
It is also common cause that the complainant and the
other children
accompanied the appellant from time to time to Tokkie Park.
[82]
The fact that she was penetrated or indecently assaulted was also
corroborated by Ms Thlabang’s evidence as well as her
findings
based on the medical examination of the complainant. The appellant’s
attack against her evidence and conclusion
is without merit.
There is no evidence that shows that the cleft could have been caused
by any other incident or injury.
[83]
With regard to the indecent assault offence, there are indeed certain
discrepancies between her evidence and the reports that
she made to
her mother and Ms Prinsloo, in particular whether she was offered
money or a packet of chips and whether the appellant
penetrated her
with his fingers or only laid on top of her.
[84]
It is common cause that the appellant and the complainant went to his
parental home on the said Saturday, that she watched
television while
being there and that, at some stage while they were still inside the
house, Annika called the appellant from outside
the house.
[85]
The complainant was persistent during her evidence that the appellant
pulled down her trousers, laid on top of her and placed
his fingers
on her vagina. She told him that it was not nice. Her evidence
materially corresponded with what she has reported to
her mother and
Ms Prinsloo. Whether digital penetration occurred or whether the
appellant only lied on top of the complainant after
having pulled
down her trousers does not detract from the fact that both
constitutes indecent assault, for which the appellant
was convicted.
[86]
According to the appellant, he does not know of any reason why the
complainant would falsely implicate him or fabricate her
version. It
is therefore highly improbable that the complainant would have
fabricated her version for no apparent reason.
The manner in
which she reported the incidents to her parents also clearly shows
that she did not to do so to falsely implicate
the appellant. She did
not spontaneously report it to her parents at the first available
opportunity, but only after her father
confronted her. If her
version was indeed fabricated and if she intended to falsely
implicate the appellant, she would have
done so immediately upon her
parents’ return.
[87]
I therefore find it improbable that, as the complainant’s
evidence about their visit to Tokkie Park and the events leading
up
to the May 2005 incident are corroborated to a large extent by the
appellant and as she had no reason to false implicate him,
she would
have fabricated her version in respect of the indecent conduct
towards her.
[88]
I can also find no reason to interfere with the court
a
quo
’s
findings in respect of the complainant’s credibility. The
court
a
quo
had the benefit of observing the complainant and the other witnesses
during their testimony.
[89]
I am therefore of the view that the court
a
quo
’s
findings and decision in respect of these counts were not vitiated by
any misdirection nor has it been showed to be wrong.
I therefore
agree that, if all the evidence is considered, there is no reasonable
doubt that the appellant raped and indecently
assaulted the
complainant and that the court
a
quo
therefore
correctly convicted him of the aforesaid counts.
[90]
The same can however not be said about the court
a
quo
’s
finding in respect of the other indecent assault offences, being
count 3. The complainant’s evidence in respect
of this
count was vague and not clear and satisfactory. No evidence was led
about the time when the incidents occurred, save for
mentioning that
it was before and after the Tokkie Park incident. She also did
not give any particular detail of the incidents
to Ms Prinsloo and Ms
Coetzee.
[91]
It is trite that it is not necessary to reject the State’s
evidence before an accused can be acquitted. The test
to be
applied is whether the accused’s version is reasonably possibly
true. As the evidence in respect of count 3 was
unsatisfactory,
the court
a
quo
ought to have found that the State did not proof the appellant’s
guilt beyond reasonable doubt and had to acquit the appellant
on this
count.
[92]
I am accordingly of the view that the appellant’s appeal in
respect of his convictions on count 1 and 2 must fail, but
should be
upheld in respect of count 3.
SENTENCE
[93]
The court
a
quo
took the counts together for purposes of sentencing and sentenced the
appellant to 12 years imprisonment.
[94]
During argument, the State conceded that the sentence is shockingly
inappropriate. I agree.
[95]
The State did not proof any previous convictions against the
appellant.
[96]
The appellant was respectively 17 and 18 years old when the offences
were committed and when sentenced, 25 years old.
When
sentenced, he was employed as a security guard for a period of 4
years and earned a salary of R7 200,00 per month.
He was
further engaged for about 6 years and has a child with his fiancé.
He resided with his grandparents.
[97]
The Court
a
quo
was provided with a pre-sentence report for correctional supervision
compiled by S M Mew in which it was recommended that correctional
supervision could be a suitable sentence based on the following
reasons:
“
This
office has found that the accused stability factor’s in the
community does abide by the conditions and that a sentence
of
Correctional Supervision can be considered as a sentence.
It
is possible to administer a sentence of correctional supervision in
terms of section 276(1)(h) of the Criminal Procedures Act,
1977 (Act
51 of 1977) upon the accused and this does not mean that a sentence
of correctional supervision is the best sentence.
It just means
that such a sentence can be considered if the court is of the opinion
that it can be a suitable sentence.
The
maximum sentence for Correctional supervision was 36 months, but has
been changed to 60 months for sexual offenders. If
the court
considers correctional supervision it would be positive if the
accused can be sentenced to 60 months Correctional Supervision”.
[98]
However, in the report that was submitted to the court
a
quo
by the Department of Social Development, the probation officer
recommended direct imprisonment based on the following:
“
Offences
of these nature are serious in that they have an everlasting
traumatic impact on the victims and create generally a bad
image to
men in general. It can be argued that the victim was very young
and vulnerable. It could be that the victim
was, manipulated
and may be lured at some point. A cause of concern is that the
accused maintain his innocence and vehemently
denial he ever omitted
this offence. Therefore, it would be difficult for a worker to
provide a compressive assessment about
this offence.
The accused is working and earns a
good salary. In addition to this he has support from his
parents. The worker remains
uninformed about the contributing
factors of this offence.
Among other serious aggravating
factors are that the victim was very young and vulnerable. The
victim is a closed family member.
This offence, if not, has
created animosity in the family and a lever of trust has been broken.
The
court will be aware that offences of this nature warrant an
imprisonment”.
[99]
The purpose of imprisonment are mainly threefold, namely to punish
the offender, to prevent further crime and to rehabilitate
the
offender. It is trite that imprisonment should only be employed
if the need for removing the offender from society justifies
the
price.
[100]
Correctional supervision is not necessarily inappropriate because the
case is one which excites the moral indignation of the
community.
The question to be answered is a wider one – whether the
particular offender should, having regard to his
personal
circumstances, the nature of the crime and the interest of society,
be removed from the community. (
S
v Romer
2011 (2) SACR 153
(SCA) paras [27] – [30].)
[101]
The offences of rape and indecent assault are indeed regarded as
serious offences, even more so where the victims are young
children.
(See
Carmichele
v Minister of Safety and Security
2001 (1) BCLR 995
(CC);
S
v Swarts and Another
1999 (2) SACR 380
(C)).
[102]
The complainant was very young when the offences were committed.
It is evident from the victim impact report compiled
during September
2011 that, shortly after the incidents, her school work deteriorated
and she became withdrawn from her peers.
However, it is further
reported that she attended counselling and that she ‘perceive
life with a positive light and does
not believe that this incident
will stop her from pursuing her dreams’. Although she has dealt
and coped well with her situation,
it remains a traumatic experience
which impacted negatively on her life as well as her family.
[103]
There is increasing pressure on the courts to impose harsher
sentences in respect of rape offenders to exact retribution and
to
deter further criminal conduct. However, any sentence must
still be a balanced and effective sentence which needs all
the
sentencing objectives. In
S
v SMM
(2013 (2) SACR 292
(SCA) para [14]) the court held that:
“
It
is trite that retribution is but one of the objectives of sentencing.
It is also trite that in certain cases retribution will
play a more
prominent role than the other sentencing objectives. But one cannot
only sentence to satisfy public demand for revenge
— the other
sentencing objectives, including rehabilitation, can never be
discarded altogether, in order to attain a balanced,
effective
sentence.”
And
at para [26]:
“
In
respect of the severity of the rape, referred to in the preceding
paragraph, it is plain from the medical report that the doctor
did
not find any serious physical injuries. And there was no further
violence in addition to the rape. Similarly in S v Nkawu the
complainant had not suffered any serious injuries as a consequence of
being raped. In considering whether substantial and compelling
circumstances existed justifying departure from the prescribed
sentence, Plasket J was called upon to consider the provisions
contained in
s 51(3)(aA)(ii)
of the
Criminal Law Amendment Act 105 of
1997
, as far as the absence of serious physical injuries to the
complainant was concerned. That subsection provides that when a court
sentences for rape 'an apparent lack of physical injury to the
complainant' shall not be regarded as a substantial and compelling
circumstance. Plasket J expressed the view, correctly as I see the
matter, that a literal interpretation of that provision would
render
it unconstitutional, since it would require judges to ignore factors
relevant to sentence in crimes of rape, which could
lead to the
imposition of unjust sentences. I agree with the learned judge that
'to the extent that the provision restricts the
discretion to deviate
from a prescribed sentence in order to ensure a proportional and just
sentence it would infringe the fair
trial right of accused persons
against whom the provision was applied'. He correctly in my
view concluded that the proper
interpretation of the provision does
not preclude a court sentencing for rape to take into consideration
the fact that a rape victim
has not suffered serious or permanent
physical injuries, along with other relevant factors, to arrive at a
just and proportionate
sentence. To this one must add that it is
settled law that such factors need to be considered cumulatively, and
not individually.”
[104]
Without over emphasising the fact that the complainant was only 10
years old when the offences were committed, it remains
a factor to be
taken into consideration in arriving at a just and appropriate
sentence. Young children are vulnerable to abuse.
As stated in
S
v D
(1995 (1) SACR 259
(SCA) at 260
g
),
‘They are usually abused by those who think they can get away
with it, and all too often do’.
[105]
The appellant did not show any remorse but protested to the end that
he did not commit the offences. As emphasised in
S
v Matyityi
(
2011
(1) SACR 40
(SCA)
para
[13]) –
‘
Remorse
is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and
acknowledgement of the extent of one’s error’.
The
fact that the appellant shows no remorse and does not accept
responsibility for his actions is certainly aggravating.
[106]
There is also nothing from the record that shows that the appellant
was immature when the offences were committed or that
his age reduced
his moral blameworthiness. (See
S
v Matyityi
2011
(1) SACR 40
(SCA)
para
[14].)
[107]
I
am of the view that the aggravating factors therefore outweighs the
mitigating factors
.
[108]
Courts have often been cautioned that the imposition of correctional
supervision should be exercised with care and certainly
not were the
crime is too serious. (See
S
v N
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) para [23] – [29] and [40].)
[109]
Having regard to all the aforesaid factors and circumstances, I am of
the view that the
ratio
of Cameron, JA in
S
v N,
supra,
para
[40], is equally applicable here:
“
[40]
… I do not think that prison can be avoided. We were urged to
send the matter back for the regional court to impose
correctional
supervision under s 276(1)(h) of the Criminal Procedure Act 51 of
1977 (the Act). That would avoid prison altogether,
and place the
appellant (on good behaviour and under the threat of a suspended
sentence) on a supervised community-related work
scheme. I do not
think we can. Every rape sentence sends a public message. This
option would be so soft that its message
would be misunderstood. It
would enable the court’s seriousness seeking to punish and
deter rapes to be called into question.’
(Also
see
S
v D
,
supra,
at
260
f
– 261
d
)
[110]
It
is trite that, in determining a balanced and appropriate sentence,
the court is required to have regard to the main purposes
of
punishment, namely the deterrent, preventive, reformative and the
retributive aspects thereof. (See
S
v Khumalo and Others
1994 (3) SA 327
A) at 330D.) By doing so, the court must have regard
to the nature of the crime, the circumstances of the offender and the
interests
of society.
(See
S
v Zinn
1969 (2) SA 537
(A);
Director
Of Public Prosecutions, Kwazulu-Natal v P
2006
(3) SA 515
(SCA) para [13].)
[111]
Having done that, I am of the view that direct imprisonment will be
the only appropriate sentence whereby the appellant could
be
appropriately punished, be prevented from committing further crimes
and by which he could be rehabilitated. Having regard to
the nature
of the crime, such a sentence will simultaneously serve the interests
of society. However, a sentence of 12 years as
imposed by the court
a
quo
does
not constitute an appropriate balance between the crime, the offender
and the society. In my view, a sentence of six years
imprisonment
imposed in terms of section 276(1)(b) of the CPA will be a just,
balanced and appropriate sentence.
[112]
There is no reason to interfere with the additional declaratory
orders that were issued by the court
a
quo.
[113] Accordingly, I
would make the following order:
ORDER:
1.
The
appellant’s appeal against his convictions on counts 1 and 2 is
dismissed and the convictions are confirmed.
2.
The
appellant’s appeal against his conviction on count 3 is upheld
and the conviction is set aside.
3.
The
appellant’s appeal against his sentence is upheld and the court
a
quo
’s
sentence of 12 years imprisonment imposed in terms of
section
276(1)(d)
of the
Criminal Procedure Act, Act
51 of 1977, imposed on
the 19
th
of December 2011, is hereby set aside and replaced with the
following:
“
Counts
1 and 2 are taken together for purposes of sentence, for which the
accused is sentenced to 6 years imprisonment in terms
of
section
276(1)(b)
of the
Criminal Procedure Act, Act
51 of 1977.”
4.
The
sentence in paragraph 3 is to be regarded as being imposed on the
19
th
of December 2011.
5.
The
declaratory orders issued on the 19
th
of December 2011 in terms of the
Firearms Control Act, 60 of 2000
and
section 50(2)(a)
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 32 of 2007
are confirmed.
__________________
C.
D. PIENAAR, AJ
I
concur.
________________
A.
F.
JORDAAN, J
On
behalf of the appellant:
Mr. Kambi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Lencoe
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
/eb