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[2016] ZAFSHC 101
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W v S (A124/2011) [2016] ZAFSHC 101 (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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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A124/2011
In
the matter between:-
W.
D.
H.
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
DER MERWE, J
et
MBHELE, J
JUDGMENT
BY:
VAN
DER MERWE, J
HEARD
ON:
18
APRIL 2016
DELIVERED
ON:
12
May 2016
[1]
The appellant was convicted in the regional court on 4 counts of
rape. The complainant in respect of each count was a
young
child. They were the appellant’s own elder daughter
(count 1), a friend and classmate of the elder daughter (count
2), a
daughter of the neighbours of the appellant (count 3) and the
appellant’s younger daughter (count 4). Counts
1 and 4
were taken together for purposes of sentence as were counts 2 and 3.
In respect of each group of counts, the appellant
was sentenced to
life imprisonment. The appellant appealed against the
convictions and sentences. Counsel were agreed
that the
appellant has a right of appeal in terms of
section 309(1)
of the
Criminal Procedure Act, 51 of 1977
.
[2]
The elder daughter was born on [......] 1997. During February
2009 she testified that on several occasions during 2005
and 2006,
when her mother was away from home to shop, the appellant had raped
her at home. She was then 8 to 9 years of age.
She said
that on each occasion the appellant took off her underpants.
Sometimes he undressed completely and sometimes only
took off his
underwear and pants. On these occasions he lay on top of her,
penetrated her vagina with his penis and made
movements. The
appellant told her not to tell anyone about this and, because she was
afraid that her parents would fight,
she did not tell her mother.
[3]
The classmate was born on [......] 1996. During February 2009
she testified that the appellant had raped her on the elder
daughter’s birthday on [......] 2006. On that day the
classmate and her parents and other people attended a party at
the
house of the appellant and his wife. The girl was then 9 years
and approximately 10 months of age. She said that
during the
evening the appellant called her into a room. He locked the
door and told her to pull down her underpants.
She refused,
whereafter the appellant did so himself. He pulled off his
trousers and climbed on top of her. His penis
touched her
vagina. She told him to get off her but he refused. She
hit him and only then he desisted.
[4]
The neighbour’s daughter was born on [......] 1997. She
also testified during February 2009. Her parents and
the
appellant and his wife were neighbours and friends. She
therefore often visited the appellant and his family. During
2006, when she was approximately 9 years of age, she slept over at
the appellant’s house. She slept in the same bed
with the
appellant, his wife and their two daughters. She testified that
during the night the appellant pulled her from the
bed onto a
mattress on the floor. He turned her onto her back and pulled
down her clothes. The appellant was naked.
He inserted
his fingers into her vagina. He then penetrated her with his
penis and made up and down movements. The
girl called out to
the appellant’s wife. The latter woke up and asked what
was going on. The girl responded by
saying that nothing was
wrong, as she was afraid of the appellant. The appellant
quickly got up. Both dressed and went
back to bed. It
appears from the evidence that this little girl reported the incident
first to her elder sister and then
to her teacher and that this led
to reports by the appellant’s elder daughter and her classmate.
[5]
The appellant’s younger daughter was born on [......] 1999.
During 2006 she was but 6 to 7 years of age. She
did not
testify. According to the evidence of three social workers she
was severely traumatised and unable to testify.
[6]
In his evidence, the appellant denied any wrongdoing. His wife
supported him. She denied any knowledge of the incident
concerning
the neighbour’s daughter. She said that she did not
believe the children and that her husband would do no
such thing.
[7]
The regional court evaluated the evidence thoroughly and carefully.
It came to the conclusion that the evidence of the
children was true
and rejected the evidence of the appellant and his wife as false
beyond a reasonable doubt. It is trite
that this court is bound
by these findings, unless they were affected by a material
misdirection or we are convinced that they
were wrong. No
misdirection was relied upon in this regard and we are not convinced
that the findings were wrong. Upon
these findings the appellant
was correctly convicted on count 1, 2 and 3. It is trite that
the slightest penetration suffices
for a conviction of rape.
And the appellant cannot have the benefit of speculative
possibilities not raised by him.
[8]
In the absence of evidence by the younger daughter, the conviction on
count 4 was based on the evidence of the elder daughter
and on what
the younger daughter told Ms Buys, a forensic social worker employed
by the South African Police Services. The
younger daughter told
Ms Buys the following:
“
And
she didn’t want to talk anything? --- Sy het wel beperkte
inligting gegee.
Such
as? --- Sy het gesê dat sy seksueel misbruik is deur twee
persone. Sy het erken dat een ‘n familielid is
wat in
Hartswater woon. Sy het gesê dat die ander misbruik in ‘n
groen huis in Bloemfontein plaasgevind het.
Sy het gesê
dat beide haar ma en haar suster was teenwoordig in
die
huis terwyl die misbruik plaasgevind het en sy het gesê haar
suster Cindy weet wat gebeur met haar, maar verder wou sy geen
inligting verskaf nie. Ekskuus, behalwe dat sy nie omgekoop of
misbruik was om stil te bly nie of gedreig.”
[9]
Counsel for the appellant argued that the younger daughter’s
statement to Ms Buys should not have been admitted in terms
of
section 3(1)(c)
of Act 45 of 1988. In my view the argument is
sound. The appellant was not given any warning that the
statement would
be admitted in terms of this provision and it was
only admitted during the judgment of the trial court. The
statement was
very vague and must be seen in the light of the
evidence that the younger daughter was too traumatised to relate what
had happened
to her. But despite initial concerns, I am not
convinced that the trial court erred in convicting the appellant of
raping
the younger daughter. It is clear that something very
traumatic happened to her and the elder daughter gave sufficient
particularity
as to what it was. She said that on more than one
occasion the appellant did the same to the younger daughter than he
did
to her. She said that she watched him undress the younger
daughter and himself. In context her evidence that the
appellant
then did the same to the younger daughter, means that he
lay on top of her and made movements with at least some penetration.
She said that her sister cried, but that the appellant told her to be
quiet.
[10]
It follows that appeal against the convictions must be dismissed.
I now turn to the sentences. In terms of Act
105 of 1997 a
sentence of life imprisonment was prescribed for each of the crimes
in question, unless substantial and compelling
circumstances
justified a lighter sentence. The regional count found no such
substantial and compelling circumstances.
I agree. The
appellant was regarded as a first offender. But this is heavily
outweighed by the other relevant factors.
He was gainfully
employed but lost his job as a result of this case. He is
married but as a result of these crimes his two
daughters were
removed from the care of the appellant and his wife and placed in a
child care centre. The appellant committed
very serious
crimes. Whilst he was supposed to nurture them, he raped his
own children, as well as the children of family
friends. As the
regional court pointed out, the offences eroded the fundamental
values of human dignity, equality and freedom.
Although there
are signs of improvement, all the girls were severely traumatised and
mentally scarred. Most importantly,
the appellant takes no
responsibility for his crimes.
[11]
The appeal is dismissed and the convictions and sentences are
confirmed.
_________________________
C.
H. G. VAN DER MERWE, J
I
concur.
________________
N.
M. MBHELE, J
On
behalf of the appellant: Mr S.S. Kambi
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Giorgi
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
/eb