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[2016] ZAFSHC 125
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Manzini v S (A45/2016) [2016] ZAFSHC 125 (28 July 2016)
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
No.: A45/2016
In
the appeal between:
NOHA
ELVIS MANZINI
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE,
J
et
REINDERS, J
JUDGEMENT:
LEKALE,
J
HEARD
ON:
25
JULY 2016
DELIVERED
ON:
28
JULY 2016
[1]
On the 5
th
May 2011 the appellant, who was legally represented, appeared before
the regional court at Sasolburg on a charge of rape, it being
alleged
that on or about 11 June 2010 he unlawfully and intentionally
committed an act of sexual penetration with an 11 year old
girl by
penetrating her vagina with his penis without her consent. He
pleaded not guilty but was convicted and sentenced
to imprisonment
for life. He feels aggrieved by both the conviction and the
sentence. He now exercises his automatic
right of appeal
against the same before us.
[2]
On returning the guilty verdict the trial court effectively rejected,
as not reasonably possibly true, the appellant’s
version to the
effect that, although he had contact with the complainant and her
three friends on the day in question, he did not
rape her but simply
used his belt to scare them and chase them away. The court
below, further, accepted the complainant‘s
version as
corroborated, to a certain extent, by the medical practitioner who
examined her some four months after the incident
and her two friends
one of whom called by the appellant as his witness.
[3]
In argument on the papers and before us it is contented for the
appellant that the trial court erred in rejecting the appellant’s
version and accepting that of the complainant as true regard being
had to,
inter
alia,
contradictions in the same. It is further contended for the
appellant that the trial court misdirected herself in finding
that
there existed no cause whatsoever to deviate from life imprisonment
as the prescribed minimum sentence regard being had to
the
appellant’s personal circumstances and the fact that there
existed no evidence that the complainant sustained any permanent
damage or injuries among others.
[4]
The State, on its part, supports both the conviction and the sentence
on the papers and contends that the trial court did not
misdirect
herself when she imposed the minimum sentence of life imprisonment in
the circumstances of the instant matter. In argument
before us Mr
Hoffman correctly concedes that the trial court erred in finalising
the matter without first ensuring that she has
all the necessary
information before her to enable her to properly determine an
appropriate sentence.
[5]
The State’s version, as accepted by the trial court, was to the
effect that on the 2 October 2010 the complainant’s
friends and
classmates reported to the class teacher an incident involving the
appellant which report was, in turn, conveyed by
the latter to the
head of remedial department at the complainant’s school.
The head of the department, thereupon, called
the complainant’s
classmates and asked them about such an incident, whereafter, she
called the complainant and had a one
on one discussion with her.
Although the complainant confirmed having been at the appellant’s
place with her friends
when the appellant allowed her to touch his
penis and to fondle it, she stated that nothing further happened in
the appellant’s
bedroom after the latter locked the door with
only the two of them inside. The departmental head in question
had suspicions
and eventually called the police who hit the
complainant when she persisted in her attitude of maintaining that
nothing happened
in the bedroom between her and the appellant.
The complainant, eventually, disclosed that the appellant inserted
his penis
into her vagina and made up and down movements on top of
her, whereafter, he gave her a R2,00 coin and
threatened her and her friend known as O., with death if they talked
about the incident.
[6]
The state’s version with regard to what transpired in the
presence of the complainant’s friends is that the complainant
told her friends that the appellant owed her some money and invited
them to accompany her to his residence where they found him
busy
painting the walls inside the house. The complainant thereupon
instructed him to stop painting and proceeded to unzip
his trousers
and to fondle his penis without any resistance from his side.
The complainant, thereafter, called her friends
to join in but two of
them refused and ran away only to wait for her and O. at the gate.
[7]
The medical practitioner, on his part, testified that he detected
some old scars in the complainant’s genitals and, further,
that
the complainant presented with obnoxious white discharge which is
common amongst sexually active women as opposed to children.
The practitioner, thus, did not exclude the possibility of sexual
assaults having taken place. The appellant’s own
witness,
O. also confirmed that the complainant fondled the appellant’s
penis without any resistance on the latter’s
part although she,
in effect, could not assist with regard to whether or not the rape
took place.
[8]
It is patent
ex
facie
the recorded evidence that the complainant was a single witness on
what transpired behind closed doors in the appellant’s
bedroom
and was also a child witness. Cautionary rule was, as such,
applicable to her evidence in that regard as correctly
submitted for
the appellant.
[9]
An application of cautionary rules to the evidence of a single or
child witness in essence requires the court to satisfy itself
that
despite the defects, shortcomings and contradictions in such evidence
the truth has been told and the child’s evidence
is
trustworthy. (see
S
v Sauls
1981 (3) SA 180
(A) and
Woji
v Santam Insurance Company Ltd
1981(1)
SA 1020 (A)).
[10]
When confronted with conflicting versions which cannot be reconciled
the court adopts a holistic approach to all the evidence
available
and has regard to probabilities. (See
S
v Guess
1976(4) SA 715 (A))
[11]
The legal position in our criminal justice system is that a complaint
is not admissible as evidence if it is made as a result
of
intimidation. In the case of an involuntary complaint the question on
appeal is whether the trial court hearing all the evidence
but
refusing to admit such complaint would inevitably have convicted the
appellant. (See
S
v T
1963(1) SA 484 (T) at 486H- 487D and
Vilakazi
v The State
[2016] ZASCA 103
at
para
[14]
)
[12]
In our law children under the age of 12 years are irrebuttably
presumed to be incapable of consenting to a sexual
act and, as
such, a sexual act with such children constitutes rape or sexual
assault. (See
section
57(1) read with sections 1(2) and 1(3) (d)(iv) of
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
(The
Sexual Offences and Related Matters Act))
[13]
Factual findings of the trial court and its acceptance of oral
evidence are presumed to be correct unless and until they are
demonstrably or, on adequate grounds, shown to be wrong. (See
S
v Francis and Others
1991(1) SACR 198 (A))
[14]
The powers of the court of appeal to interfere with the sentence
imposed are limited insofar as it can only interfere where
the
sentence is disproportionate, harsh or the sentencing court committed
a material misdirection or did not exercise its discretion
properly
or at all. (See
S
v Pieters
1987(3) SA 717 (A))
[15]
The trial court was satisfied from the totality of evidence before
her that the truth had been told and properly rejected the
appellant’s version as not reasonably possibly true regard
being had to the evidence of his own witness who contradicted
his
evidence on what happened at his place on the day in question before
he ended up in the bedroom with the complainant. The court
below,
further, in my view approached the evidence with caution despite her
somewhat terse judgment and effectively had regard
to probabilities
when she accepted the State’s version notwithstanding the
contradictions between its witnesses with regard
to,
inter
alia,
the purpose of their visit to the appellant’s residence insofar
as such contradictions were not material to the charge regard
being
had to the contradictions in the defence’s case and the fact
that the appellant’s own witness corroborated the
State’s
case to a large extent.
[16]The
problem with the trial court’s judgment is that all the
preceding conclusions which are consistent therewith and,
reasonably
possibly, constituted its
ratio
decidendi
are not expressly apparent
ex
facie
the same. The reason why the court below returned the impugned
verdict is simply not easily and fully identifiable from the
judgment.
[17]
In my judgment the trial court can, further, not be faulted for
accepting the complainant’s evidence on what transpired
behind
closed doors between her and the appellant in the latter’s
bedroom despite the fact that she did not freely and voluntarily
disclose the incident to those she could, reasonably, be expected to
confide and only told the head of the department at her school
about
the same after she was given a hiding by the police and some four
months after the incident. Her evidence before the
court below
was credible and explained, adequately and satisfactorily, her
failure to report the matter voluntarily and her earlier
reluctance
to tell the truth to the police and the head of the department
despite contentions to the contrary by the appellant
party when
regard is had to the fact that she is a child. The aforegoing
finding, however, in no way justifies the unlawful and
despicable
actions of the law enforcers in resorting to violence when confronted
with a situation calling for skill and competence
on their part. Such
conduct on the part of the police remains criminal and has no place
in our constitutional democracy.
[18]
The complainant’s conduct in relation to the appellant, as at
the date of the incident, suggests that she had a continuing
sexual
relationship with him, inclusive of grooming as correctly observed by
the trial court in her questions to prosecution during
the trial,
insofar as she was not scared to fondle his private parts, she did
not resist or scream when he led her to the bedroom,
undressed
himself, pulled off her dress and let her lie supine on the bed.
In my view if she was 12 years of age or older
but less than 16 years
at the relevant time, statutory rape in terms of section 15 of Sexual
Offences and Related Matters Act would,
most probably, be appropriate
as a competent verdict insofar as, save for her age, there existed no
evidence whatsoever to suggest
that the carnal intercourse in
question was unlawful for lack of consent.
[19]
The conviction can, in my opinion, not be faulted insofar as the
trial court undertook a holistic consideration of the evidence
without any reliance on the involuntary report and was, correctly,
satisfied that the appellant’s guilt had been
established beyond reasonable doubt. The next enquiry is
whether or not the sentence imposed is just regard being had to
the
cumulative impact of mitigating factors on aggravating factors
inclusive of the interests of society. (See
S
v Malgas
2001 (1) SACR 469
(A))
[20]
The trial court had regard to the appellant’s personal
circumstances as well as the victim impact assessment report and
the
gravity of the offence before she found that there existed no cause
to deviate from life imprisonment as the prescribed minimum
sentence.
[21]
It is clear from such impact assessment report that the rape affected
the complainant in her school performance and this was
also confirmed
by the head of remedial department at her school. The report,
however, contains very scant information to
assist the sentencing
court in assessing an appropriate sentence if regard is had to the
fact that it is silent on whether or not
the crime had any emotional,
psychological or social impact on the complainant as a
girl child. It simply does not
indicate presence or absence of any
severe or permanent detrimental consequences on her part. The
medical report, on its
part, does not reflect any serious physical
injuries on the victim’s part.
[22]
The importance of placing as much information before the sentencing
court as possible in respect of the perpetrator, the victim
and the
circumstances surrounding the commission of the offence has been
stressed by the Supreme Court of Appeal. If the defence
and the
prosecution fail to adduce such relevant evidence the trial court is
obliged to take steps to receive such evidence in
order to determine
whether there exists cause to deviate from the prescribed minimum
sentence. In my opinion such a duty on the
part of the sentencing
court is more pronounced where the accused stares life imprisonment
in the eye as a prescribed minimum sentence.
(See
S
v Olivier
2010(2) SACR 178 (SCA)
para
[8]
and
Calvin
v The State
[2014] ZASCA 145)
[23]
To the extent that the trial court failed to ensure that all the
relevant information was before her before she could consider
the
sentence in the instant matter, the court misdirected
herself materially by effectively depriving herself of the
opportunity to assess the sentence properly and, thus, did not
exercise her discretion properly. We are, as such, at large to
interfere and consider the sentence afresh regard being had to the
fact that the appellant was sentenced in 2011 and to remit the
matter
to the trial court would only serve to delay finalisation further.
[24]
In my judgment the appellant took advantage of the victim’s
pubertal naivety and polluted her mind with sexual immoralities
to
the extent of depriving her of the ability to distinguish morally
reprehensible conduct from acceptable behaviour by recognising
that
it is both a crime and taboo, in society, for a child of her age to
fondle an elderly man’s private parts and to engage
in carnal
intercourse with him. Even after the unpalatable experience in
question the complainant did not rush home to the safe
and
comfortable arms of her guardian to report the incident but proceeded
to spend the money the appellant gave her on light snacks
and to
join her friends in playing. Such conduct cannot, in my view,
reasonably be expected from a rape victim immediately
after the
incident, let alone from a victim of her age. The appellant
effectively robbed her of her innocence as a child
insofar as she
even presented with a sexually transmitted condition at the time of
examination by the medical practitioner.
[25]
On available evidence I am, however, persuaded that cause exists to
depart from life imprisonment as the prescribed minimum
sentence
regard being had to,
inter
alia,
the physical condition of the victim immediately after the rape, the
fact that the complainant did not sustain any serious physical
injuries, the appellant is a family man and a first offender who is
on medical pension. (See
S
v Mahomotsa
[2002] 3 All SA 534
(A))
[26]
In my opinion the instant matter presents a clear illustration of the
reason why children under 12 years of age require the
protection
afforded them by law insofar as they are conclusively regarded as
incapable of consenting to sexual activities. It is,
thus, legally
accepted that a girl of the complainant’s age, as at the date
of the crime, is, in general, fragile, not sufficiently
informed and
intellectually matured to make sound decisions on sexual matters.
That the complainant fondled the appellant’s
genitals, in the
presence of her friends who were not part of that immoral exercise
for that matter, and did not, at any stage,
resist when she was led
to the appellant’s bedroom where the act of sexual penetration
took place against her without any
protestations from her side and
force from the appellant all serve to give credence to the legal
position in question. The matter,
therefore, cries out for a long
period of imprisonment as a sentence.
ORDER
[27]
In the result the appeal against sentence succeeds.
[28]
The conviction is confirmed but the sentence is set aside and, in its
place and stead, it is substituted the following:
“
The
accused is sentenced to imprisonment for 20 years.”
[29]
The sentence is antedated to 5 May 2011.
______________
L.
J. LEKALE, J
I
concur.
______________
C.
REINDERS, J
On
behalf of the appellant: Adv. J.S. Makhene
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. Hoffman
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb