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[2016] ZAGPPHC 330
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Nkosi v S (A574/15) [2016] ZAGPPHC 330 (29 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Reportable: No
Of interest to other
judges: No
Revised
CASE NUMBER:
A574/15
DATE: 29 April 2016
ERIC MOSES
NKOSI Appellant
v
THE STATE
Respondent
JUDGMENT
MABUSE J:
[1] This is an appeal
against both conviction and sentence.
[2] The appellant, Mr.
Eric Moses Nkosi, appeared before a regional court magistrate in
Benoni where he was charged with, and convicted
of, rape in
contravention of s 3 of Act 32 of 2007. Despite his plea of not
guilty, he was convicted accordingly and upon conviction,
sentenced
to life imprisonment. He now appeals, in terms of s 309 of the
Criminal Procedure Act 51 of 1977 ("the CPA"),
against the
aforementioned conviction and sentence.
[3] As the charge sheet
indicated, the complainant was a 10 year old girl who testified
through an intermediary. At the time of
this incident, she was
staying with her mother, her sibling, her cousin and the appellant at
Barcelona in Benoni. The appellant
had an affair with the
complainant's mother, one J. M. He was the complainant's
stepfather.
[4] The charge against
the appellant arose from the following set of facts. D., the
complainant, had some health problems in the
stomach. Every evening
she got sick in the stomach. So the appellant and her mother J.M.
took her to a ZCC pastor for assistance.
The pastor gave them a
prescription for the ailment to use or to drink to solve her problem.
It was a concoction of herbs called
"ndayelo" which she was
supposed to drink. She took the concoction for a time but the problem
persisted. It did not go
away because either the complainant did not
drink the concoction or if she did it was not effective.
[5] The appellant then
took vaseline, applied it to his finger and inserted the finger into
her vagina. At first the appellant inserted
only his vaseline smeared
finger into her vagina but with the passage of time, in the place of
his finger, the appellant inserted
his penis after he had covered it
with some layer of vaseline. This the appellant did four times during
April 2013 and ending on
23 July 2013. She did not tell her mother
because the pastor had told her not to.
[6] One day her mother
came back from where she was selling some goods. She had been left
behind with the appellant. The house was
dark because there was no
electricity. She called her name out but there was no response. She
then got into the house and as she
stood by the doorway the appellant
emerged from the childrens' bedroom. This surprised J.M..
[7] Her mother sent the
appellant to go and buy electricity units and while he was away she
lit a candle and checked her private
parts. After examining her, J.M.
asked her what had happened. She told her mother what had happened
and told her that the appellant
had told her not to tell her. She
further told her that it was in fact the pastor who had told her not
to tell her about what the
appellant did to her.
[8] Her mother then
called C.'s daughter to examine and compare their private parts.
While she did that she noticed a vast difference
between C.'s
daughter's private parts and the complainant's private parts. C. was
the complainant's elder sister. C. advised them
to go to the police
station to lay charges.
[9] First they went to
the police station to lay charges against the appellant and the
following day they went to the Daveyton Clinic
where the complainant
was medically examined by a professional nurse, one Thandeka
Njikelana.
[10] J.M.'s evidence
supported the relevant portions of the complainant's evidence. At the
police station the police told them that
the complainant should not
wash herself until she had been to the clinic. The panty that she was
wearing before and after the incident
of 23 July 2013 was taken by
the police for investigation purposes. The appellant was arrested on
the same evening they had laid
the charges against him at the police
station.
[11] Thandeka Njikelana
was the State's third witness. As already indicated earlier she
was a professional nurse who on 24
July 2013 medically examined the
complainant's vagina and who, having done so, completed her report in
a document called J88. This
J88 was handed in as an exhibit during
the trial. Her conclusions or gynaecological findings were that her
genital findings were
consistent with a history of vaginal
penetration by a blunt object. During her examination of the
complainant she had noted certain
vaginal injuries at 3 o'clock; 4
o'clock, and 7 o'clock and a red and tender fossa naviscularis.
[12] Certain exhibits
were handed in during the course of the trial. Exhibit 'A' was an
affidavit in terms of s 212 of the CPA by
Mothathe Esther
Maswanganyi, an administration clerk in the South African Police
Service and attached to the Biology Section of
the Forensic Science
Laboratory. In Exhibit 'A', the said Maswanganyi had declared, among
others, that during the course of her
official duties and in
particular on 25 July 2013 she received one sealed evidence sealing
with reference number 1OD7AB9904EB marked
Etwatwa 398/07/2013 from
constable Masondo MG. The said bag was in her safekeeping since she
received it until she handed it to
the administration component of
the Biology Section of the Forensic Science Laboratory.
[13] Exhibit 'B' was a s
212 of the CPA affidavit by Tshepo Joseph Mmushi, a warrant officer
in the South African Police Service
and also attached to the Biology
Section of the Forensic Science Laboratory ("FSL"), as a
Forensic Analyst. He possesses
a Master of Science Degree in which he
specialised in micro-biology, which included molecular and cellular
biology relevant to
DNA. On 29 July 2013, during the
course of his official duties, he received from the administration
component of the
Biology Section of the FSL one sealed evidence
sealing bag with reference number 1007AB9904EB marked Etwatwa
398/07/2013. This
bag contained one sealed paediatric sexual assault
evidence collection kit with reference number 1007AB9904EB marked
Etwatwa 398/07/2013
containing one sealed internal Vaginal swab guard
box; one sealed Vestibule swab guard box and one Vulva swab guard
box.
It was given to Cicilia Janse van Rensburg, a lieutenant
in the SAPS attached to the Biology Section of FSL as a Senior
Forensic
Analyst who, after examining the complainant's panty and the
blood sample taken from the appellant, made a finding of the presence
of the appellant's DNA in both the panty and the blood sample. This
was Exhibit 'C'. These Exhibits were handed in to court by
consent
and without the need to lead the evidence of the people who made such
affidavits.
[14] The accused
testified in his defence and called no witnesses in support of his
case. In his evidence he denied that he had
inserted his penis into
the complainant's vagina in order for her to get better or for any
other purpose. He denied furthermore
that he applied vaseline to the
complainant's vagina and thereafter his finger. He denied that the
semen that was found on the
complainant's panty was his.
[15] At the close of the
appellant's case the court
a quo
was satisfied that the
respondent had proved its case beyond reasonable doubt, and that the
appellant was guilty of the offence
he had been charged with. In fact
it remarked that the evidence against the appellant was overwhelming.
It found that the appellant's
version was not reasonably possibly
true. It rejected it on that basis and convicted him as charged. Upon
conviction and after
the mitigating factors had been placed before
it, it found no substantial and compelling circumstances in favour of
the appellant
which justified a departure from the imposition of the
prescribed sentence. For that reason it sentenced the appellant to
life
imprisonment. It is accordingly the above conviction and
sentence that the appellant complains about and wishes to challenge.
He
has set forth the grounds of his dissatisfaction against the
conviction and the sentence in his notice of appeal. In the
application
for leave to appeal, which is part of the appeal papers
before us, the appellant had given an indication that his appeal was
only
against the sentence. We will ignore the application for leave
to appeal by reason of the fact that this appeal was brought under
the provisions of s 309 of the CPA in terms of which the appellant
had an automatic right of appeal.
[16] The application for
leave to appeal does not constitute a requirement of the said
section. Accordingly the application for
leave to appeal may be
safely ignored. It is accordingly the grounds as set out in the
notice of appeal which are of supreme importance
and this Appeal
Tribunal will, in dealing with this appeal, both in respect of
conviction and sentence, confine itself to such
grounds.
[17] In respect of the
applicant's appeal against conviction there are only three grounds on
the basis of which he challenges his
conviction. These grounds are
that:
17.1
"Thereis no
medical evidence linking the accused to the crime.
"
17.2
"The court
did not take the possibility into account that the children might
have been rape by the ZCCpastor';·
17.3
"There was
no DNA evidence linking the accused to the crime.
"
[18] This notice of
appeal was prepared by the appellant himself on 3 October 2014. It
was signed by him in Benoni. There has not
been an attempt to file a
better notice of appeal. It is clear that when the appellant, or
someone who assisted him, drafted the
notice of appeal, he had not
read the record of the proceedings in the court
a quo.
If he
had the benefit of reading such a record, he would have noticed that
the grounds of appeal set forth in the notice of appeal
lacked
merits. They lacked merits because there is an overwhelming evidence
or scientific evidence that linked him to the crime.
Secondly, there
is no iota of evidence that the ZCC pastor was involved in the
penetration of the complainant by any means whatsoever,
and thirdly
and lastly, there is DNA evidence of the appellant linking him to the
offences.
[19] In his heads of
argument Mr. Matlapeng, correctly referred the Court to R v Dhlumayu
1948(2) SA 4 677A. The approach that the
said authority established
was, and still is, that a Court of Appeal will not disturb the
factual findings of a trial court unless
the trial court committed a
misdirection or, where there has been no misdirection on the facts by
the trial judge, the presumption
is that the conclusion is correct.
The Appeal Court will only reverse the factual findings of the trial
court if it is convinced
that it is wrong. Mr. Matlapeng is satisfied
that there is no evidence that suggests that the ZCC pastor might
have raped the complainant;
the DNA evidence was presented at court
and that it pointed to the appellant as the donor of the
semen that was
found on the complainant's panty. Finally he is
satisfied, as the trial court did, that there was sufficient evidence
that showed
that the complainant had been sexually molested. For
these reasons he found himself unable to argue the appellant's
grounds of
appeal against conviction confidently. The respondent also
is of the view that the appeal against conviction lacks merit and
should
be dismissed.
[20] With regard to the
appeal against sentence, the appellant has raised 5 grounds, namely
that:
20.1.
"the
accused is a first offender';
20.2.
"the
accused age is 48years old';·
20.3.
"the
accused has more than ayear awaiting trial';·
20.4.
"the
accused contributed to society before his arrest;·
20.5.
"the
accused have aprospect of rehabilitation."
[21] In his heads of
argument Mr. Matlapeng submitted that the sentence of life
imprisonment imposed on the accussed by the trial
court induces a
sense of shock and that this Court should interfere. It must be
recalled firstly, that imposition of sentence is
pre-eminently a
matter for the discretion of the trial court. See in this regard
R
v Mapumulo and Others 1920 AD p. 56 at p. 57
where the Court had
the following to say:
'The infliction of
punishment is pre-eminently a matter for the discretion of the trial
court. It can better appreciate the atmosphere
of the case and can
better estimate the circumstances of the locality and the need for a
heavy or light sentence than appellate
tribunal. And we should be
slow to interfere with its discretion.
"
''A Court of Appeal's
powers to interfere with the sentence imposed by the trial court are
limited. The Court's powers to
interfere with the sentence on
appeal are circumscribed. It may only do so if the sentence is
vitiated by: (1) irregularity;
(2) misdirection; or (3)
is one which no reasonable court could have come to, in other words
one where there is a striking
disparity between the sentence and that
which this court considers appropriate.
" See in this regard
S v Petkar 1998(3) SA 571(A).
[22] Mr. Matlapeng
conceded that the appellant has been convicted of an offence that
attracted the prescribed sentence of life imprisonment.
The Court may
not, for flimsy reasons, deviate from imposing the ordained sentence.
It can only deviate from imposing the sentence
of life imprisonment
on the convicted person if it finds substantial and compelling
circumstances.
[23] Ms. Makgwatha
submits that, for the following reasons, the sentence imposed by the
trial court on the appellant cannot be seen
to be shockingly
inappropriate:
23.1. the appellant raped
a defenceless 10 year old child who had accepted him as her father;
23.2. the complainant was
of ill health and thus vulnerable and the appellant used this
vulnerability to rape her under the false
pretences of healing her.
That was cruel and inhuman.
23.3. the appellant was
in a position of trust this vis-a-vis the complainant and he
abused this trust in the worst possible
way;
23.4. the appellant
showed no remorse for his action. He still persisted with his motion
of innocence even in the light of overwhelming
evidence against him
and sought to make the complainant a liar.
23.5. the complainant was
raped in the sanctity of her own home where she ought to feel safe
and secure and by a person whom she
trusted with her life.
On the above factors Ms.
Makgwatha submitted that the trial court correctly found that there
were no substantial and compelling
circumstances justifying the
imposition of a lesser sentence than the prescribed minimum sentence
of life imprisonment.
[24] According to a
victim impact report by Ms. Bulawana-Kama prepared for the trial
court, the rape incident traumatised the complainant.
She had trusted
and accepted the appellant as her father. The complainant developed
sleepless nights and was scared as if the appellant
would return to
the house. She no longer felt safe in her own home. The Court should
therefore find that the conduct of the appellant
was, within the
context that this rape occurred within the context of family
circumstances, reprehensible.
[25]
"Rape is a
very serious offence constituting as it does a humiliating, degrading
and brutal invasion of the privacy, dignity
and the person of
victim."
See in this regard S v Chapman 1997(2) SACR 3 SCA
at 58 and see also S v Swartz and Another 1999(2)
SACR 380 (C) at 385 where
the court described the rape as a cancer within the society. Rape is
a crime that threatens every woman
and particularly the poor and
vulnerable. In this country it occurs far too frequently and is
currently aggravating by the grave
risk of the spread of AIDS. A
woman's body is sacrosanct and anyone who violates it does so at his
own risk. Our legislature
and community at large correctly
expects our Courts to
punish rapist very
severely. See in this regard S v Nchenche 2005(2) SACR 386W.
[26] The court
a quo,
in our view, considered the triad, weighed all the relevant
factors, including the personal circumstances of the appellant and
concluded
that the gravity of the offence and the interests of the
society far outweighed the personal circumstances of the appellant.
The
court found no space for substantial and compelling
circumstances. In the circumstances we are unanimous in our view that
the court
a quo
committed no misdirection whatsoever and that
no valid reason exists for this Court to interfere with the sentence
imposed on the
appellant by the court
a quo.
[27] Accordingly the
appeal against both conviction and sentence is hereby dismissed.
________________________
P.M. MABUSE
JUDGE OF THE HIGH COURT
I agree
________________________
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearances:
Counsel for the
Appellant: Adv. Matlapeng
Instructed by:
Pretoria Justice Centre (Legal Aid Board)
Counsel for the
Respondent: Adv. MJ Makgwatha
Instructed by:
Director of Public Prosecutions
Date Heard: 25 April
2016
Date of Judgment:
29 April 2016