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[2016] ZAFSHC 174
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Gedu v S (A35/2016) [2016] ZAFSHC 174 (29 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
D
I
VISION,
BLOEMFONTEI
N
Case
No: A35/2016
In
the matter between:
TERENCE
GEDU
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI J
et
MHLAMBI, AJ
JUDGMENT
BY:
MHLAMBI, AJ
HEARD
ON:
1 AUGUST 2016
DELIVERED
ON:
29 SEPTEMBER 2016
[1]
The appellant appeals against both his conviction and sentence on a
count of rape to which he was sentenced to life imprisonment
on 1
September 2015 in the Regional Court held at Bethulie. The appellant
has a direct right of appeal to this court.
[2]
The main grounds of appeal as regards the conviction are that the
learned magistrate erred in finding that:
2.1.
The state had proven the appellant's guilt beyond a reasonable
doubt;
2.2.
The evidence of the appellant was not reasonably true;
2.3.
The complainant was a credible witness;
2.4.
The only inference to be drawn from the evidence of the forensic
nurse was that the complainant
was sexually penetrated by the
appellant;
2.5.
The complainant's failure to report the rape immediately
was excusable;
2.6.
There were material contradictions existed between the evidence of
the complainant and the state
witness, M. F..
2.7.
The appellant's conviction was based on circumstantial evidence.
[3]
Having pleaded not guilty, he chose not to give a
plea explanation. In support of its case the state
led the
evidence of four state witnesses. The appellant was the only witness
for the defense.
[4]
The complainant testified that she was raped by Terence, the
appellant, during January 2012. She and M. went to the appellant's
house to do house chores as requested by his wife who was not at the
house on that day. As she dried the dishes, the appellant
called M.
and gave her R20.00 to go buy milk from the shop. The appellant then
called the complainant to the bedroom and told her
that she should
not tell anyone about what he was about to do to her. She protested
and threatened to lay charges against him.
He apologized and told her
to finish her work.
[5]
He later told her to look for his shoes. As she could only find his
wife's shoes, he told her to look for his shoes in the whole
house
while he closed the doors and curtains. Having done so, he told her
to look for the shoes in the toilet. She found them and
gave them to
him. He wore them and told her to come to him. She protested, told
him that she was too young and would "open
a case against him".
As she tried to run out of the room, he grabbed her, covered her
mouth with his hand and dragged her
to the bedroom where he undressed
her. He did not take all of his clothes off. He unzipped his
trousers, took out his penis and
inserted it into her vagina as she
lay on the bed. The inside of her vagina was painful and she cried.
[6]
After he finished, she ran to the door while he opened the windows
and the curtains. He told her to wipe off her tears and threatened
to
kill her by throwing her over the bridge should she report the
incident to anyone. As she still threatened to go to the police,
he
reminded her where she was at that moment.
He threatened to kill her and lock her up in the bathroom
and
inform M. on her return that she had long left. He noticed that M.
had arrived. Before opening the door for her, he once again
forbade
her to tell M. of the incident. She ran out of the house towards
Church Cloetes Park. M. followed her and enquired whether
the
appellant had beaten or scolded her. She answered negatively. She
also did not explain why she was crying.
[7]
They returned to the house to fetch their shoes. She did not want to
go into the house and preferred to wait at the gate, but
M. insisted
that she should wait at the door while she looked for the shoes. She
could not find the shoes and she heard the appellant
inform M. to
look for the shoes in the bedroom. When asked by the appellant
whether she said anything to M., she denied having
said anything to
her about the incident. He encouraged her to continue doing so and
not to say a word to anybody. M. came with
the shoes and they left.
[8]
She kept quiet about the incident from January until March when she
disclosed the incident to one P., a friend with whom she
previously
did house chores at the appellant's house. The reason she informed
him was that each time she met with the appellant,
he would threaten
her.
[9]
M. confirmed that she and the complainant cleaned the appellant's
house in the absence of his wife. She was sent to the shop
and on her
return she found the complainant crying. She ran to the house to hand
over the milk and then ran after the complainant
who told her that
the appellant had raped her. The complainant had failed to report the
matter because the appellant had threatened
her and went about
telling people that he had promised the complainant R500.00. She
testified that when she ran back to the house,
the appellant had
asked her whether the complainant had told her anything. Her answer
was negative. She did not know whether the
complainant was raped or
not.
[10]
The complainant's grandmother, Ms C. M., an eighty one year old
lady testified that the complainant informed her that
she was raped
by the appellant. She could not identify him in court because she
could not see clearly any longer. She did not know
him well but she
knew his wife well as she grew up before her. The complainant
informed her that the appellant had threatened to
run her down with
his vehicle should she tell anyone.
[11]
Lebusho Elias Tjakata testified that he was a professional nurse and
employed as a facility manager at Phillipolis Clinic.
He studied a
short course in forensic nursing for ten days during 2010. On 15
March 2012 he examined the complainant who was then
15 years old. He
completed the J88 form. On recording her clinical legal findings,
there were no marks to show that she was assaulted.
An examination of
her private parts showed healed tears at the hymen. Though she was
not physically assaulted, it did not mean
that she was not sexually
abused. The vaginal examination disclosed that the vaginal orifice
had old scars and a bumped tear of
the hymen, leading to the
conclusion that there was a possible vaginal penetration. A female
hymen is intact but after sexual intercourse
or a forced penetration,
it would tear and those tears would show after
some time. The
bumps would remain until
sexual activity was resumed.
[12]
The cross-examination of the witness brought to light that neither
special optical light nor dye was used during the examination
as the
clinic did not have them. The J88 form was not fully completed as
certain parts of the second page were left blank.
The witness
conceded that he did not know what a
synicae
was.
However, this point was not pursued to indicate its relevance and how
it impacted on the evidence. The state case was
then
closed.
[13]
The appellant testified that he last saw the complainant at
his house during the December holidays in 2011, accompanied
by
M. to ask for mealie meal from his wife. He gave it to them and food
to eat where after they left. He knew the complainant's
grandmother,
as she was his mother-in-law's neighbor. On 6 February 2012, a
Monday, he was summoned and went to the complainant's
house to answer
to allegations of having raped the complainant the previous Friday at
his house. He denied having raped the complainant
and stated that she
falsely accused him.
[14]
On evaluating the complainant's evidence, I find that she testified
clearly and truthfully. She spent more than a day in the
witness box
without deviating from the essence of her evidence. She firmly
denied allegations that she could be sleeping
around and was
consistent that she was at the appellant's house during January 2012
when he raped her. Her evidence is direct and
cannot be termed
circumstantial as submitted by the appellant's
representative. Furthermore, it is not disputed that
she was
intimidated by the appellant on a continuous basis from the date the
incident took place until the day she disclosed to
P. that she was
raped by the appellant. This part of the evidence was unlocked during
the complainant's cross-examination when
she was asked what went on
in her mind at the time she made the disclosure to P.. She testified
that P. was present when the appellant
stopped by and enquired
whether she had reported the incident. The appellant's uneasiness
about the events in the house on
that day is shown in M.'s
unchallenged evidence when, on delivering the milk from the shop in
order to follow the complainant,
the appellant asked her whether the
complainant told her anything. She denied having been told anything.
[15]
She contradicted the complainant's evidence when she said that the
complainant told her of the events that took place in the
house and
the rape. This contradiction is not material especially when viewed
against the backdrop of her testimony that she did
not know whether
the complainant was raped or not. Save for this contradiction, her
testimony is beyond reproach and corroborated
the complainant
materially. She denied that she had been to the appellant's house on
more than one occasion especially during the
December holidays in
2011.
[16]
Section 59
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
provides that in criminal proceedings
involving the alleged commission of a sexual offence,
the court may
not draw any
inference only from the length of any delay
between the alleged commission
of such offence and the reporting
thereof. The presence or absence of a report made within a reasonable
time after the incident
must be assessed in context; and a delay is
not necessarily fatal to the prosecution's case:
Principles
of Evidence,
Third Edition, Schwikkard and
Van Der Merwe on page 113. See
also
S v Cornick
2007
2 SACR 115
(SCA);
Holtzhauzen
v
Roodt
1997 4
SA
766
(W).
[17]
The evidence of the professional nurse was not nullified by the
cross-examination and corroborated the complainant's evidence
that
she was sexually penetrated.
[18]
The appellant's version is that the last time he saw the
complainant and M. was during the December holidays in
2011 when he gave them mealie meal and food to eat as they were
hungry. After washing the dishes they left. On 6 February 2012,
a
Monday, he went to the complainant's house after receiving a call
from his wife. The complainant's grandmother, who testified
as a
state witness, told him that the complainant had arrived home after
mid-night the previous Friday as she was at his house
where he had
raped her. I pause to mention that during cross-examination the state
enquired why the grandmother was not confronted
with this evidence
during her testimony and his response was that he did not know. In a
nutshell, his version is that the complainant
and the witnesses were
accusing him falsely. During cross-examination, it was put to the
complainant that she and her friend "are
making up this incident
and immediately after this incident you all tried to get money from
him, R500.00. He says your grandmother
even called his wife and tried
to arrange for the R500.00 to be paid". These allegations were
denied.
[19]
The defense chose not to call the appellant's spouse as a witness and
inferences may be drawn against the appellant for having
failed to do
so. "Our legal system is an adversarial one. Once the
prosecution has produced evidence sufficient to establish
a
prima
facie
case, an accused who fails to produce evidence to rebut
that case is at risk":
Osman
and
Another
v
Attorney-
General, Transvaal
1998 (4) SA 1224
(CC).
[20]
Having taken proper account of the inherent strengths and weaknesses,
probabilities and improbabilities in both the state
and defense
cases, I am persuaded that the state succeeded in proving its case
beyond reasonable doubt and that the appellant's
version is not
reasonably true. I am therefore satisfied that the conviction should
stand.
[21]
The grounds of appeal as against sentence are succinctly set out as
follows:
21.1
the court found that there were no substantial and compelling
circumstances for the
imposition of a lesser sentence;
21.2
the learned Regional Magistrate overemphasized the effect
of the crime on the
complainant and failed to appreciate the impact
that his imprisonment would have on his employees and his minor
children;
21.3
the appellant had a clean record since 2007;
21.4
appellant's lack of remorse was due to his belief in his innocence
and not to his disregard
for the victims of rape and sexual abuse;
21.5
the learned magistrate erred in finding that the appellant offered
the complainant the
amount of R500.00 in the absence of testimony to
that effect;
21.6
too much weight was attached to the severity of the crime and less
weight to the appellant's
personal circumstances.
[22]
In sentencing, the aim is to impose a balanced sentence and, as
stated in
S
v
Zinn
1969 (2) SA 537
(A) 540 G-H, the court must consider "the
triad consisting of the crime, the offender and the interests of
society".
The question that crops up is whether the trial court
did an injustice in imposing the sentence it did on the consideration
of
the circumstances in
c
a
su.
In passing
sentence in terms of section 276(1) (B) of the Criminal Procedure Act
read with section 51 Act No 105 of 1997, the magistrate
found that
there were no substantial and compelling circumstances which could
make the court to deviate from the imposition of
the minimum
sentence. She referred and read from a pre-sentence report which was
handed in by the defense attorney
stating in
detail
the appellant's personal circumstances, his family, income, education
and that his business gave employment opportunity to
forty-five
workers. Even though he had a previous conviction in respect of which
he was sentenced to four years' imprisonment of
which one year was
suspended for a period of four years for sexual and indecent
assault; it was an old conviction and
the court found that to
be a mitigating factor as he had kept a clean record for a long time.
[23]
On 20 January 2000 the appellant was convicted of the crime of rape
and sentenced to a term of twelve years imprisonment. He
was released
on parole supervision until 10 November 2013. At the time of the
commission of the instant offence he was still on
parole. In the pre-
sentence report, it was advised that imprisonment was the suitable
option as the appellant was not a first
offender, committed a crime
against a minor and was a danger to the community and himself. The
rape had a severe emotional impact
on the complainant as she became
withdrawn and stayed indoors. The fear of the appellant and seeing
his car made her a truant and
her school grades suffered as a
consequence.
[24]
It is evident that the appellant lacked remorse as indicated from the
notice of appeal. "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":
S
v
Matyityi
2011 (1) SACR 40
(SCA) at par 13. In
S
v
Rabie
1975 (1) SA 855
(A) 857 D-F it was stated
that the court hearing the appeal should be guided
by the principle
that punishment is
"pre-eminently a matter for the discretion of the trial Court"
and that the court hearing the
appeal should be careful not to erode
such discretion. The test is whether
the
sentence is vitiated by irregularity or
misdirection or is disturbingly
inappropriate.
In
S
v
Pillay
1977 (4) SA 531(A)
at 535F-G it was said that the
enquiry is not whether the sentence was right or wrong
but whether the court
in imposing it, exercised its discretion
properly or unreasonably. A mere misdirection is not
by itself
sufficient to entitle interference with the sentence;
it should be of such a nature, degree or seriousness that it shows,
directly
or inferentially, that the court did not exercise its
discretion at all or exercised it improperly or unreasonably.
[25]
The correct approach to applying the prescribed
minimum sentence was set out in
S
v
Malgas
2001
(1) SACR 469
(SCA). Courts must be conscious that the
Legislature has ordained life imprisonment as the sentence that
should ordinarily
be imposed for the listed crimes in the
specified circumstances. This would happen in the absence of
weighty justification
which should be determined upon the
consideration of the circumstances of the particular case. It
is incumbent
upon a court in every case to assess whether
the prescribed sentence is indeed proportionate to the
particular
offence before it imposes a prescribed sentence. In my
view the court a quo correctly concluded that there was no weighty
justification
to warrant a departure from the sentence that should
ordinarily be imposed. In the circumstances, there
is no
basis upon which the imposed sentence can be interfered with.
[26]
Consequently, the appeal against the conviction and sentence is
dismissed.
____________________
J.J.
MHLAMBI, AJ
I
concur
____________________
M.
H. RAMPAI, J
On
behalf of the appellant:
Adv. A. Sander
Instructed by:
Van Wyk & Preller
Attorney's
BLOEMFONTEIN
On
behalf of the respondent: Adv. C. Steyn
Instructed by:
Director: Public
Prosecutor
BLOEMFONTEIN