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[2016] ZAGPPHC 286
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Manzana v S (A441/2015) [2016] ZAGPPHC 286 (29 April 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
[GAUTENG DIVISION,
PRETORIA]
29/4/16
CASE NO: A441/2015
In the matter between:-
ANDRIES MBUISELO
MANZANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
SKOSANA AJ
[1] The appellant appeals
against the judgment of the learned magistrate, Mr Mkhwentla. The
appeal is against conviction and sentence.
The appellant was found
guilty of a rape of an 8 year old girl and sentenced to 20 years'
imprisonment.
[2] The relevant facts
are that on 12 July 2014, the complainant, an 8 year old girl,
together with her two female siblings were
at their home that night
at Alberton. Their mother was away to attend a tombstone unveiling
ceremony and did not return that night.
[3] The appellant arrived
that night and the eldest of the sibling, who was 10 years of age
opened for him. He came and slept with
the 3 girls. During the night
when it was dark and under the blanket, the complainant felt
something poking her vagina and felt
pain. Her elder sister screamed
at that point in time and the appellant offered R 10 to the
complainant so that the sister will
stop screaming.
[4] The following morning
the complainant and her siblings went to play with their peers at
their neighbour. The complainant told
her peers about the incident,
who in turn told their mother, one Ms M[…]. Ms M[…]
could not tell the complainant's
mother when she arrived later that
afternoon because the complainant's mother was inebriate.
[5] The appellant in his
testimony denied that he inserted any part of his body into the
private parts of the complainant. He also
testified that he had used
a different blanket from the one used by the girls. When asked why he
had slept with the girls on the
same bed, he stated that he did not
want to wake them up as it was late at night and for him to sleep on
the floor, he would have
to pull out a sponge under mattress on which
they were sleeping which required him waking them up.
[6] There are unclear
statements made by the complainant that the appellant had followed
them to the floor when they left the bed
he was sleeping on that
night. Although the complainant stated that the appellant had taken
off her trousers, she later stated
that she did not see the
complainant taking her trousers off.
[7] The complainant also
could not see what was poking her, whether a figure, a penis or
any other object as it was dark and
under the blanket. According to
the medical report, which was handed in by agreement, the complainant
suffered minor bruises on
the labia majora but there was no
indication of any penetration into her vagina.
[8] The complainant also
stated that she did not know why her sister was screaming that night
and did not see the appellant inserting
anything into her. It must be
noted that the appellant was facing the opposite direction to the
girls on the bed. It seems therefore
that if he had been trying to
insert his penis into the complainant's vagina, his attempts would
have been clear to the complainant
and her sister.
[9] In view of the facts
summarized above, it seems that there is no proof beyond reasonable
doubt of the following facts:
[9.1] That the appellant
inserted or tried to insert his penis into the complainant's vagina;
[9.2] That the finger or
any part of the body of the appellant penetrated the genital organs
of the complainant as contemplated
in Act 32 of 2007. This is
supported by the medical report which recorded an observation of
minor bruises on the outside of the
complainant's vagina. The
definition of
' sexual penetration',
contained in section 1 of
Act 32 of 2007 reads:
""sexual
penetration'
includes any act which causes penetration to
any extent whatsoever by-
(a)
the
genital organs of one person into or beyond the genital organs, anus,
or mouth of another person;
(b)
any
other part of the body of one person or, any object, including any
part of the body of an animal, into or beyond the genital
organs or
anus of another person; or
(c)
the
genital organs of an animal, into or beyond the mouth of
another person, or"
[10] Section 3 of that
Act requires sexual penetration without the consent of the
complainant for an offence of rape to be committed.
In my view, in
this case there was no proof beyond reasonable doubt of any
penetration to any extent by any part of the body of
the appellant
into or beyond the genital organs of the complainant.
[11] The appellant was
also charged, as an alternative charge with sexual assault in terms
of section 5 of the Act. This offence
requires sexual violation which
is defined in the Act as including any act which causes "a
direct
or indirect
contact
between the genital organs of one person and any part of body of
another person"
[1]
.
In
my view, there was indeed a contact between the genital organs of the
complainant and a part of the body of the appellant.
[12] As stated by the
learned Magistrate, the appellant exhibited sinister motives
and intentions by sleeping with 3 female
children, none of whom was
his biological child in the absence of their mother on one bed. That
combined with the allegations that
he had followed them to the floor
and back onto the bed as well as offering R 10 to the complainant's
sister strengthens the conclusion
that the appellant had bad
intentions. It has therefore been proved beyond reasonable doubt that
it could not have anyone else
but him who touched or poked the
genital organs of the complainant that day. His body therefore was in
contact with such organs
of the complainant. In other words, if
penetration had been established rape would have been proved. In my
view, regard being had
to the conspectus of evidence in this case,
only contact, and not penetration, by the appellant was proved beyond
reasonable doubt.
[13] In the
circumstances, the appellant is guilty of sexual assault.
[14] Sexual assault does
not fall under schedule I or II of the Criminal Law Amendment Act 105
of 1997 (Minimum Sentences Act).
There is therefore no minimum
sentence prescribed for such offence.
[15] In the
circumstances, I am of the view that a sentence of 5 years' direct
imprisonment is appropriate in these circumstances.
In the result,
the following order is made:
[15.1] The appeal is
upheld.
[15.2] The judgments on
conviction and sentence are set aside and replaced with the following
order:
"1. The appellant
is found guilty of sexual assault of P[…], a female under the
age of 16 years.
2.The appellant is
sentenced to
5
years imprisonment.
3.
The
aforesaid sentence is antedated to the date of their initial
sentence, being 26 February 2015. "
____________________
DT SKOSANA
Acting Judge of the High
Court
I concur.
_____________________
M JANSEN
Judge of the High Court
[1]
See section 1 para (a)(i) of the definition of 'Sexual violation '