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South Africa: North Gauteng High Court, Pretoria
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[2016] ZAGPPHC 253
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Mkhwanazi v S (A432/15) [2016] ZAGPPHC 253 (29 March 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
[GAUTENG DIVISION,
PRETORIA]
A432/15
Not reportable
Not of interest to other
judges
Revised.
29/03/2016
PHINEAS MADALA
MKHWANAZI
Appellant
and
THE
STATE
Respondent
JUDGMENT
SKOSANA AJ
[1] This is an appeal
against the judgment of the learned Magistrate, Mr Wilken wherein he
convicted the appellant of rape and sentenced
him to life
imprisonment and ordered that his name be entered into the Register
of sexual offenders in terms of section 50(2)(a)
of Act 32 of 2007.
The appeal is against both conviction and the sentence.
(2) The accused was
convicted of rape of one S. M., an 11 year old girl during April
2010. The appellant was 43 years of age at
that time.
(3) The testimony of the
principal of T. Primary School was adduced to the effect that the
complainant had on 13 April 2010 reported
to him that her step
father, the appellant, had sexually abused her more than once. The
principal met the mother of the complainant
who appeared to him to be
not in a good mental condition and did not take the matter serious
enough.
(4) The principal
assisted the complainant to open a case at the police station after
she had been taken to the clinic.
(5) The testimony of the
complainant was to the effect that the appellant was her step father
by virtue of him being in a love relationship
with her mother. Her
mother was not in a good mental condition as she could not even
recognize the difference between monetary
notes and coins.
(6) During the April
school holidays, she was visiting her mother as she was staying with
her aunt. Her mother was staying in a
one room house in the village
of Daantjie in Mpumalanga. When she got into that house, she found
the appellant bathing and as she
was turning around to leave the room
the accused pulled her, threw her on the bed, took off her clothes
and penetrated her. Her
mother was outside the room sweeping the yard
and the appellant kept on peeping through the window during the rape.
(7) The appellant
inserted a toilet paper into her mouth in order to avoid her
screaming. The appellant was already naked when the
complainant
entered that room.
(8) After the rape she
left the place without telling her mother and did not tell her aunt,
the reasons being that her mother was
mentally unstable and her aunty
was a cheeky person.
(9) The second occasion
happened when her mother sent her over to the homestead of the
appellant to fetch mangoes and soup. She
found the appellant at his
house who asked her to help him clean the house. Later the accused
pushed her into his bedroom and,
after inserting R10 into her
trouser's pocket, threw her onto the bed, undressed her and
penetrated her. She testified that the
first person she told of the
incident of rape was her principal after realizing that her teacher,
Ms Twala had noticed her changed
behaviour. She was also suffering
from a painful bladder.
(10) The short testimony
of the complainant's aunt, Ms Thandi Khambule merely confirmed that
the appellant had a love relationship
with the complainant's mother
which had started about 6 months before the incident. The
relationship was not an official one. She
also confirmed that the
complainant's mom later moved on to live in a room. The complainant
only told her of the incidents of rape
at the police station and
apparently only of the second incident which took place at the
appellant's home stead.
(11) The accused
testified that he knew the complainant only by sight as he saw her
only when she was passing by their homestead.
He also denied that he
had a love relationship with the complainant's mother, but merely
tried to assist them by providing them
with soup and potatoes. In
cross examination, the appellant could not explain why he had stated
that he had never met the complainant
when it was clear that he knew
her. He also could not explain why the complainant decided to
implicate him with such a serious
offence if all he had done was to
try and alleviate her family's poverty. It was even not pertinently
put to the complainant's
aunt that the appellant never had a love
relationship with the complainant's mother.
(12) When one takes into
account the above summary of facts, it is clear that the appellant
knew the complainant's mother and had
a relationship with her. The
mention of the soup and potatoes that the accused gave to the
complainant also coincide with the evidence
of the complainant that
she had gone to fetch some soup and mangoes from the appellant's
homestead when the second incident of
rape occurred. The only thing
that the appellant denies is the aspect of the rape and not the
meeting with the complainant on that
day at his homestead.
(13) The complainant gave
details of the two incidents of rape including the circumstances at
the two different places where they
occurred. As the magistrate
commented, it was beyond her age to be able to plan such details.
Moreover, very little was done to
challenge the detailed version of
the complainant.
(14) In the
circumstances, it is my view that the appellant was correctly found
guilty. There are also no substantial and compelling
reasons for
having imposed a lesser sentence than the compulsory one, being life
imprisonment. The learned magistrate was also
obliged to order that
the appellant's name be entered into the Register of sexual offenders
as he did.
(15) In the premises, I
suggest that the appeal be dismissed.
_____________________
DT SKOSANA
Acting Judge of the High
Court
I concur and it is so
ordered
______________________
N JANSE VAN NIEWENHUIZEN
Judge of the High Court