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[2016] ZAGPPHC 296
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Maseko v S (A759/2014) [2016] ZAGPPHC 296 (31 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA
CASE
NO: A759/2014
DATE:
31 MARCH 2016
In
the matter between:
MASEKO PAULOS
MFANIMPELA
..............................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI,
J
Date
of Hearing: 12 OCTOBER 2015
Date
of Judgment: 31 MARCH 2016
[1]
The appellant in this matter was charged
and convicted of one count of the rape of a fourteen year old girl.
The appellant was legally
represented at the trial. He was released
on bail pending the finalization of the matter. Pursuant to the said
conviction the appellant
was sentenced to life imprisonment. He was
also declared unfit to possess a firearm. He is before us appealing
the conviction and
sentence having been granted leave on petition to
do so.
[2]
It is common cause that on the day the
alleged rape was committed the appellant was at the complainant’s
home. The evidence
of the complainant is that the appellant arrived
at her house whilst she was busy cleaning. The appellant locked the
door and proceeded
to rape her. The appellant is obviously denying
the rape. His evidence is that he went to the complainant’s
home to give
her money for cold drink which the complainant had
earlier asked for. According to the appellant the door was not locked
but was
only closed because the complainant said she did not want her
boyfriend to see the appellant there or that the children who were
playing outside will tell her grandmother that he came to the house.
His further evidence is that he stayed in the house chatting
to the
complainant for about four minutes and left when Cindy arrived.
[3]
The evidence of the complainant in
regard to the fact that the appellant locked the door is corroborated
by the evidence of the
complainant’s thirteen year old cousin
Cindy, who arrived at the house whilst the appellant and the
complainant were in the
house. Her evidence is that she knocked twice
at the door and found it to be locked. The door was opened by the
appellant when
he left.
[4]
In his heads of argument the appellant
raised a number of grounds on which he relied in trying to persuade
this court that the conviction
of the appellant by the trial court
was inappropriate. However, before us only the ground of penetration
- or the lack thereof,
was argued by the appellant’s counsel.
[5]
The nub of the appeal is whether the
trial court was correct to have accepted the evidence of the
complainant as corroborated by
that of her witness, Cindy, in
convicting the appellant for rape and rejecting the evidence of the
appellant. Underlying this main
issue is the question of whether the
appellant penetrated the complainant.
[6]
Much as there is no
onus
on the appellant to prove his innocence, however, his version must be
reasonably possibly true. The trial court found the version
of the
appellant not to be reasonably possibly true and rejected it. It
accepted that of the respondent’s witnesses as the
truth.
[7]
It is established
law that a court of appeal rarely interferes with the credibility
findings of a trial court. The powers of a court
of appeal to
interfere with the credibility findings of a trial court are limited.
In the absence of any misdirection the trial
court’s
conclusion, including the acceptance of a witness’ evidence, is
presumed to be correct on the basis that the
trial court had the
advantage of seeing, hearing and appraising a witness.
[1]
[8]
When analysing the evidence, the trial
court, correctly approached the evidence of the respondent’s
witnesses with the necessary
caution required in law. It did so on
the basis that it accepted that the complainant was a single witness
in regard to the commission
of the offence and because of the age of
the respondent’s witnesses.
[9]
The trial court was correct in
concluding that the two witnesses, despite their tender age, were
telling the truth. From the record
it appears that the trial court
was very impressed with their evidence. The trial court stated as
follows:
'Die
feit van die saak is toe die klaagster getuig het toe is die hof
beindruk met haar getuienis. Sy maak ‘n goeie indruk
op die hof
as getuie. Sy antwoord vrae maklik. Sy is intelligent, dit is
diudelik. Maar toe die tweede dogtertjie klaar getuig
het toe is die
hof nie net meer beindruk nie, toe is ek hoogs beindruk, sy is ‘n
puik getuie.
Sy
vertel vir die hof presies wat sy gehoor het, wat gebeur het, haar
verduidelikings is 100% aanvaarbaar. As die hof hierdie twee
dogtertjies se getuienis verwerp dan moet die hof bevind dat hulle
vir een of ander duistere rede saam gaan sweer het met die ouma
en
met die, hulle twee saam en vir iemand wat vir beskuldigde vir een of
ander rede wil valslik inkrimineer en dat hulle hierdie
weergawe tot
op ‘n, amper woordeliks uitgewerk het, en dit aan die hof kom
oordra het. Dit is onmoontlik.’
[10]
It is common cause that when the offence
was committed only the appellant and the complainant were in the
house. It is also common
cause that the respondent’s witness,
Cindy, saw the appellant and the respondent together after the
alleged commission of
the offence when the appellant opened the door
at the time that Cindy had already knocked twice at the door.
[11]
Although the evidence of Cindy did not
corroborate that of the complainant as to implicate the appellant in
the commission of the
offence, however, the objective correctness of
Cindy’s evidence in corroborating that of the complainant on
other material
aspects supports the truthfulness of their evidence.
[12]
The evidence of the complainant is that
the appellant came into the house, locked the door and put the key in
his pocket. The appellant
switched the volume of the TV to high and
proceeded to rape the complainant. The complainant testified further
that she screamed
out the name of sis Nomvula, a neighbour. After the
appellant had raped her he asked the complainant why she was afraid
of his
penis when she was already a grown woman. The appellant
further informed the complainant that she should call on him whenever
she
wants to have sex and he will also do likewise, that is, call on
the complainant when he wanted to have sex. He also threatened
her
with death not to tell her father and/or grandmother.
[13]
Cindy’s evidence corroborates this
evidence in all respects. It is Cindy’s evidence that when she
arrived at the house
she found the door locked. On two occasions she
knocked and nobody opened the door. The door was only opened by the
appellant when
he left much later and by that time Cindy had already
knocked twice after going around the house to check if there was
anybody.
Her evidence also confirms that the TV volume was very loud,
she could hear it as she was coming through the gate; she heard the
complainant shouting for sis Nomvula; she also heard when the
appellant told the complainant about his penis and that they should
call on each other when they feel like having sex. Cindy heard the
appellant warn the complainant not to tell her grandmother about
what
happened. On that basis the evidence of the appellant that he entered
the house and did not lock the door cannot be reasonably
possibly
true.
[14]
The complainant must have been telling
the truth. When Cindy went into the house she found the complainant
crying with her hands
covering her face. The complainant reported the
rape to Cindy immediately when Cindy asked her what happened. Cindy
went into the
bedroom and found the bedding on the floor and she saw
blood-clods on the linen. The complainant phoned her grandmother
immediately
after the incident. Cindy gave her R5 to phone. After
phoning her grandmother she went straight to the appellant’s
home to
report the rape to the appellant’s three sisters. The
fact that the appellants’ sisters were not
ad idem
as to whether or not the complainant was raped does not have any
bearing on the complainant’s evidence. From the appellant’s
place the complainant went together with her grandmother to report
the incident to the police.
[15]
It is my view that when the evidence is
weighed in its totality it amply supports the trial court’s
finding that the appellant’s
version could not reasonably
possibly be true and that the evidence of the respondent’s
witnesses, when viewed with the appropriate
caution called for
because of their age and the fact that the complainant was in fact a
single witness as to the commission of
the offence, could be
accepted. As such the trial court was correct to have convicted the
appellant. The only issue is whether
that conviction of rape is
appropriate. That depends on whether the evidence was sufficient to
show beyond reasonable doubt that
penetration occurred.
[16]
The appellant was charged with the
offence of rape in terms of s 3 read with sections 1, 56 (1), 57, 58,
59, 60 and 61 of
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, as amended.
Section
3
thereof provides that:
“
Any
person (‘A’) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (‘B’),
without the consent of B, is guilty of the offence of rape.”
[17]
In terms of the Act
‘sexual penetration’ includes, amongst others, any act
which causes penetration to any extent whatsoever
by the genital
organs of one person into or beyond the genital organs, anus or mouth
of another person. Whether penetration occurred
is fundamental to the
conviction of rape.
[2]
[18]
When proving that the complainant was
raped, the respondent relied on the evidence of the medical report
(J88 form) handed in court
with the consent of the appellant. It is
common cause that the J88 form does not indicate whether there was
penetration or not.
It does not even indicate any injuries that were
suffered by the complainant.
[19]
The contention by the appellant’s
counsel is that without prove of penetration it cannot be said that
the complainant was
raped. According to counsel, since the doctor who
examined the complainant and completed the J88 form was not called to
give evidence
and explain the nuances appearing on the J88 form, the
trial court could not on its own conclude that penetration did occur.
[20]
The submission by the respondent’s
counsel, on the other hand is that in the circumstances of this case
the J88 form is neutral
since it does not state whether there was
penetration or not. According to counsel the J88 form as it stands
does not negate the
respondent’s case. I agree.
[21]
It is clear from the record that the
trial court did not rely on the evidence contained in the J88 form
when convicting the appellant.
In rejecting that evidence the trial
court stated the following:
‘
Dit
is maar baie kripties voltooi..
[22]
Without the medical evidence to prove
penetration the trial court relied on the other evidence presented by
the complainant as corroborated
by Cindy. The trial court as such
accepted the evidence of the complainant as the truth of what
happened and rejected that of the
appellant. The trial court also
made a finding that the fact that there were no injuries noted in the
medical report does not mean
that the complainant was not raped. It
based this finding on its observation of the complainant. In this
case it remarked that
the complainant was, at the time of the rape,
not a small child but, a reasonable adult lady. It also took into
account the fact
that at times a woman would be raped and there would
be no signs of the rape. I agree.
[23]
The evidence of the complainant as to
the rape is very lucid. She testified that the appellant caught her,
threw her on the bed
and hit her on the stomach; he put his knee
between her legs and ordered her to open. When she refused to do so
he hit and scratched
her on her thighs; he pulled her trousers; he
then put his penis in her vagina and when raping her made some
movements on top of
her. She testified that when the penis went in it
was painful because it was the first time she was ever penetrated.
She said it
was burning and very painful. After he raped her biood
came out of her vagina. Cindy saw blood-clods on the linen. It can be
safely
inferred that the blood on the linen is from the complainant’s
vagina.
[24]
I also have to accept the complainant’s
uncontroverted evidence that after the incident the appellant tried
to run away but
could not because he did not have money. This is a
sign of guilt.
[25]
The appeal against the conviction stands
therefore to be refused.
[26]
As regards the appeal on sentence, the
appellant’s counsel in argument in court attacked the sentence
imposed by the trial
court on the basis that the imposed sentence was
too harsh and that a shorter period of imprisonment would have been
justified
given the circumstances of the case. The submission by the
appellant’s counsel being that an effective sentence of 20
years
would have been an appropriate sentence.
[27]
The charge of rape against the appellant
was read with the provisions of
s 51
(1)
(a)
and
Part 1
of Schedule 2 of the Criminal Law Amendment Act, 105 of
1997 (“the Act”). In terms of the provisions of the Act
the
trial court was obliged to sentence the appellant to life
imprisonment in respect of the conviction of rape of a person under
the
age of sixteen years, in this instance the complainant was 14
years old, unless it found that substantial and compelling
circumstances
which justified the imposition of a lesser sentence
exist. The trial court found such circumstances not to exist and
imposed the
prescribed sentence of life imprisonment. As stated
earlier in this judgment, the appellant was duly represented during
the trial
and ought, therefore, to have been aware of the
consequences of the provisions of the relevant sections of the Act.
[28]
It is trite that a
court exercising appellate jurisdiction cannot approach the question
of sentence as if it were the trial court
and then substitute the
sentence arrived at simply because it prefers it. To do so would be
to usurp the sentencing discretion
of the trial court. An appellate
court may interfere with the sentence imposed by the trial court when
there is a material misdirection,
irregularity or the sentence
imposed by the trial court is shockingly inappropriate.
[3]
[29]
At the hearing of the appeal the
appellant’s counsel made submissions in relation to the
appropriateness of the sentence.
According to counsel the sentence
imposed by the trial court is shockingly inappropriate in that
firstly, the sentence is not proportionate
to the offence committed.
This is so according to counsel, because this is not the worst case
since the complainant did not suffer
any injuries. Secondly, by
imposing the sentence of life imprisonment it means that the
appellant, at 22 years of age, will have
to spend the rest of his
life in prison.
[30]
The submission by the respondent’s
counsel on the other hand is that technically speaking this case is
not the worst case,
but for the complainant it was the worst. Someone
who went through the ordeal, the rape is the worst, so counsel
argued. According
to counsel the lack of injuries does not also say
that there should be deviation from life sentence.
[31]
The Supreme Court of
Appeal has expressed a view that a proper interpretation of the
provisions of section 51 (3) (a) (A) (ii) of
the Act 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.
[4]
[32]
I agree with the trial court that the
personal circumstances of the appellant do not constitute substantial
and compelling circumstances.
Having found that there are no
substantia! and compelling circumstances justifying deviation from
the prescribed sentence, the
trial court was correct to impose the
sentence of life imprisonment. But, I tend to agree with the
submission by the appellant’s
counsel that the sentence of life
imprisonment in the circumstances of this case is shockingly
inappropriate. It is not proportionate
to the offence the appellant
has committed. Although I do not align with the view that there are
degrees of rape, I, however, take
note of the
Mudau
-judgment
and the fact that the appellant sustained no physical injuries during
the rape should be considered in the appellant’s
favour when
imposing sentence.
[33]
It is common cause that the complainant
suffered no physical injuries, and when considered together with the
fact that the appellant
is a first offender and that he is only 22
years old, it is justified to hold that the sentence of life
imprisonment is not proportionate
to the offence in this instance.
The sentence of 20 years imprisonment as suggested by the appellant’s
counsel is, in my
view, appropriate and just in the circumstances of
this case.
[34]
In the premises I make the following
order:
1.
The appeal on conviction is refused.
2.
The appeal on sentence is upheld. The
sentence ordered by the trial court is set aside and replaced with
the following:
“
(i) The accused is sentenced to 20 years
imprisonment.
(ii) In terms of section 103 of the Firearms Act the
accused is declared unfit to possess a firearm”.
3.
The sentence is in terms of section 282
of the Criminal Procedure Act ante-dated to 4 September 2009.
E.
M. KUBUSHI,
JUDGE
OF THE HIGH COURT
I
concur
R.
NONYANE,
ACTING
JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Adv. S. MOENG
Instructed
by: Legal Aid South Africa Pretoria Justice Centre 2
nd
Floor, FNB Building Church Square
On
behalf of the respondent: Adv C. SMIT
Instructed
by: Director of Public Prosecutions
Presidential
Building
28
Church Square
PRETORIA
0001
[1]
See S v Francis 1991 (1) SACR 198 (A).
[2]
See MM v S (542/11) [2012) ZASCA 5 (8 March 2012) para 16.
[3]
See S v Kibido
1998 (2) SACR 214
(SACR) 214 (SCA) at 216G-H and S v
Malgas
2001 (1) SACR 469
(SCA) 478 para 12 d-g.
[4]
See Mudau v S [26] (764/12)
[2013] ZASCA 56
(9 May 2013) at para
[14].