About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 279
|
|
Ntshabele v S (A576/15) [2016] ZAGPPHC 279 (4 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
4/5/16
CASE
NUMBER A 576/15
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between
MOSES
RADINKO
NTSHABELE
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
THULARE
AJ
[1]
The appellant, a 37 year old male was convicted of rape of a six year
old girl child and sentenced to life imprisonment, declared
unfit to
possess a firearm and his particulars were ordered to be recorded in
the Register of Sexual Offences, in the Regional
Division of Gauteng
held in Benoni on 14 November 2014. He was legally represented at the
court
a quo.
[2]
The appeal against both his conviction and sentence is before us as
automatic appeal seen against the life imprisonment imposed
on the
appellant by the court
a quo.
[3]
The Public Prosecutor put the charge to the appellant framed in the
following terms:
"That the accused
is guilty of the crime of contravening the provisions of Section 3
read with Sections 1, 56(1), 57, 58, 59,
60 and 61 of the Criminal
Law Sexual Offences and Related Matters Amendment Act 32/2007- RAPE
(read with the
provisions of Section 51
*
and Schedule
2 of the
Criminal Law Amendment Act 105 of
1997
, as amended)
IN THAT on or about
the 4th and 5th November 2007 and at or near ETWATWA in the Regional
Division of GAUTENG the said accused did
unlawfully and intentionally
commit an act of sexual penetration with the complainant to wit, N[…]
by INSERTING HIS PENIS
INTO HER VAGINA.
Section 51
and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended
is applicable in that:
THE VICTIM WAS 6 (SIX)
YEARS OF AGE AT THE TIME OF THE INCIDENT."
[4]
The Criminal Law (Sexual Offences and Related Matters Amendment Act.
2007 (Act No. 32 of 2007)), (Sexual Offences Act) only
came into
operation on 16 December 2007, that is, after the commission of the
offence on 14 November 2007. The provisions of the
Sexual Offences
Act do not apply to the present case.
[5]
The appellant pleaded not guilty, denied that he had committed the
offence and put the State to the proof thereof. No objection
was
raised at the court
a quo
on the interpretation of the charge
sheet.
[6]
The test still remains whether the appellant was sufficiently
informed about the case he had to meet, (
S
v Badenhorst
1991 (1) SACR 623
(T) at 624 h-l). In that case, Esselen J said
that it must be kept in mind that criminal proceedings are not a game
of technicalities,
and that the information need not be totally
detailed, but that it must be reasonably sufficient. (My own
interpretation from Afrikaans).
In
S v Rautenbach
1991 (2) SACR 700
(T) at 702 e-f, Judge Van
Dijkhorst's view was that the problem must be approached from a
purposive angle, and that the criminal
law and the criminal procedure
must be as simple and understandable as can be, and that especially
on this area it must not be
allowed that legal literalism and subtle
ingeniousness create a haze of uncertainty. (My own interpretation
from Afrikaans).
[7]
The narration, in the allegations set out in the charge sheet in the
present case, that the appellant did unlawfully and intentionally
commit an act of sexual penetration with the complainant, N[...], by
inserting his penis in her vagina, in my view, amount to sufficient
particularity for the appellant to have known the case he had to
meet. I can express myself no better than Navsa JA in
S v Nedzamba
2013 (2) SACR 333
(SCA) at paragraphs 23 and 24:
"[23] In the
present case the appellant had legal representation and his case was
conducted on the basis that he had been full
y aware that he faced a
charge of rape. He was adamant in his defence that he had not
committed the offence.
[24] It was accepted
before us that allowing an amendment would not result in any
prejudice to the accused and that it was clear
that that his defence
would have remained the same. South Africans would rightly be aghast
if the view initially taken
by the state, referred to earlier
in this judgment, were to prevail. It would elevate
form above
substance, would have grave consequences for victims of sexual abuse
and would bring the administration of justice into
disrepute. "
[8]
Counsel for the appellant argued before us that the complainant was
simply sworn in, and that the court
a quo
did not enquire into
her capacity to understand the nature and import of the oath and to
distinguish between the truth and a lie.
The
complainant was six years old at the time of the commission of the
offence and 13 years old and in Grade 8, when she testified
on 8
September 2014. The magistrate, in exercising the necessary care in
dealing with children, asked the complainant a few questions,
to
which intelligible answers were given by the complainant. The
magistrate also asked if the complainant knew what it is to take
the
oath, indicating that it is fine if the complainant did not know what
to take the oath is. The complainant indicated that she
knew what it
is to take the oath, and then the complainant was sworn in. In my
view, the magistrate questioned the complainant
to determine whether
the complainant understood what it meant to tell the truth. The
magistrate was satisfied that the complainant
understood what it
meant to be required to relate what happened and nothing else. There
is nothing to suggest that the complainant
did not understand the
nature and importance of the oath, taking into account her age at the
time she testified, her standard of
education, the way she gave
evidence in chief and cross- examination.
[9]
The complainant's testimony is that she was in Etwatwa playing alone
outside, during the day, when she was called by a young
man who asked
her to go with him to get some toys by the nearby veld. The
complainant pointed the appellant out, referring to him
as China, as
that young man who called her to go with him for toys in the veld.
She did not know the appellant before the day of
the rape. They
walked together to the veld, which she estimated at about 400m from
her home. There are no houses where the appellant
took her to. When
they reached the veld, the appellant forcefully undressed her. She
cried and the appellant threatened to kill
her and that she would
never see her family again. They were far away from any people so no
one came to her rescue. He undressed
her of her panties and pants,
lowering them to her knee high. He made her lie down on the ground,
facing upward. He unzipped his
pants and drew his penis and inserted
it into her vagina forcefully. She did not agree to what he was doing
to her. She urinated,
wetting herself and defecated as well because
of the pain. She felt pains in her stomach as well.
[10]
The appellant thereafter made her cross the street and left her all
by herself. She immediately went to her Sister Z[…]
who was
home. The complainant informed her sister that she wet herself and
soiled herself. Z[…] asked her why she was crying
and she said
this happened because she had left with a young man who wanted to
sleep with her. She did not tell Z[…] the
whole story. Z[…]
instructed her to take off her clothes and rinse them in the water.
[11]
The complainant did not do that, opting instead to go and report to
her other sister, B[...], who was playing in the street
nearby her
home with her friend at the SNs. She went there crying and told
B[...] that she needed to speak to her. B[...] listened
and the
complainant narrated what had happened to her. After she told B[...],
they both went to Z[...], the first sister the complainant
made a
report to. The complainant's mother was also called and she took the
complainant to the Police Station. She was later taken
to the clinic
where she was examined by a nurse. She does not recall what happened
to her clothing, all that she can recall is
that she never wore those
pants again.
[12]
The complainant knows SN. The complainant saw SN when the complainant
was walking with the appellant to the veld on the day
of the rape. SN
did not say anything when the complainant was in the company of the
appellant.
[13]
The complainant learned to know that the appellant's name was China
when she was about 12 years old, because her mother would
constantly
talk about him. The complainant was adamant that the appellant was
the person who raped her. When she was told in cross-examination
that
the appellant will say he did not know her, her response was that he
knew her as he raped her, and acknowledged that she he
did not know
him at the time of the rape.
[14]
The mother of the complainant, C[…], testified that the child
was born on […] 2001 and that on the 4th of November
2007 she
received a cellphone call from Z[...], her first born child, to come
home. Upon her arrival at home she found the complainant
wrapped
around her waist with a blanket. She was crying and looked
frightened. The complainant's other sister, B[...], then reported
to
her what had happened. C[...] then immediately went to the police
station. Z[...] went with her. C[...] took the complainant
to the
clinic the next day, on the 5th of November 2007. The complainant was
examined and it was reported to C[...] that the child
was raped. Her
child was six years old at the time.
[15]
C[...] did not know the appellant before the incident. She was
however aware that he was the person arrested for the rape of
her
daughter. She met SN when she was from the police station. SN gave
her a report about what she saw on the day of the rape.
[16]
SN knew the complainant and her family as they stayed in the same
neighbourhood and in the same street. On the 4th of November
2007,
round about 11 to 12:00 during the day she saw the appellant, China,
passing by with the complainant. SN was seated outside
a house with
two other ladies, D[…] and E[…]. She did not know where
the appellant and the complainant were coming
from or going to, but
the direction they were heading to, was towards the public phones. In
that same direction, behind the houses
if you go through, you find
the veld. It is a very big veld, you can go deeper into the veld. The
veld is behind the public phones.
It would be the public phones, then
the houses, a street and after the street further down is the veld.
The veld is about 30 metres,
from the public phones and from the
houses. There are two sets of public phones, Rastas and Cell C, in
the same street. She did
not see where they ultimately ended.
[17]
The appellant was known to SN before the day of the rape. She knew
him as China and also knew where he was staying. He was
staying three
streets away from where she was staying. She saw the appellant in the
company of the complainant, and did not see
the appellant rape the
child.
[18]
About an hour after she had seen the appellant and the complainat,
she was phoned by Z[...], the child's sister. Z[...] asked
her to
come to her house quickly. She went there. Z[...] enquired of her if
she had seen the young man who was walking with the
complainant. She
confirmed to Z[...] that she had seen the complainant and China,
heading towards the direction of the public phones.
Z[...] then
informed her that the complainant had been raped.
[19]
SN was the one who led the community to where the appellant stayed.
The community gathered around his house. They wanted to
go in the
house where the appellant was hiding. The appellant peeped through to
check what was going on outside, and the community
members saw him.
They wanted to go inside the house when the police arrived and
arrested the appellant.
[20]
B[...], the other sister to the complainant was 17 years of age when
she testified. She was playing in the street when the
complainant
came to her, crying, and it seemed as though she was trembling, and
something was not right about her. She asked the
complainant what was
wrong and the complainant said that it was better that they go and
speak outside. The complainant then reported
to her that there was a
young man that had taken her to the veld, took off her short pants
and her panties and had intercourse
with her. B[...] did not know the
veld the child was referring to. She then took the complainant to
their elder sister, Z[...],
who then took the matter further.
[21]
Sister G[…] examined the complainant on 5 November 2007 at
lthemba Rape and Trauma Support Centre in Benoni and recorded
her
findings. The examination was very painful for the young child and
the injuries are conclusive of rape taking place.
[22]
The appellant testified in his defence and did not call any
witnesses. He denied that he raped the child. His evidence was
that
he did not know the complainant and she did not know him. The first
time he saw the complainant was in court. He admitted
that SN knew
him and that he knew her. According to the appellant, SN was
motivated by jealousy against him, therefore she made
the allegations
against him. He referred to her as a witch. He accused her of
changing her version to suit the case against him.
The day of the
alleged rape, the appellant never left his yard and was with his
mother who left at about 13:00 to attend a society
meeting. He was
left alone in the yard and the main house was locked.
[23]
The appellant was in his room watching a soccer match when two young
men came and said they wanted to buy drugs. He told them
that they
were at the wrong place. After about seven minutes he saw, through
the window, the same two young men within a group
of members of the
community. He saw his neighbor talking to members of the community,
and the neighbor was pointing at his place.
SN and Z[...] led those
members of the community who were armed, to his place and came into
his yard. The community tried to force
his door open. He pushed a
couch in his room to the door, to close it, and he tried to call the
police. The police arrived as the
community were trying to force the
door open. SN and Z[...] were the first to enter his room, followed
by the police. The appellant
was handcuffed by a lady officer and
taken to the police vehicle and then transported to the police
station. It was at the police
station that he was informed of the
alleged rape of a six year old minor child, and came to know of the
victim's name while he
was at court.
[24]
The appellant testified that he was having a lot of nicknames,
amongst others China. He was called China when he was still
playing
soccer. He resides in the same neighbourhood as SN, around […]
streets from hers. He only learnt in court that the
complainant also
resides in Daveyton. He first heard the name of Z[...] at court,
although he noticed that she was with SN when
they came to his home
on the day of his arrest. He first saw her name in the docket and
then saw her in court and realized that
it was the Z[...] being
referred to. He noticed that Z[...] and the mother were talking about
him when they were with the complainant.
He testified that he also
noticed that after the complainant was asked by the Prosecutor
whether she can point out the person who
raped, Z[...] was seated
next to the Prosecutor. The complainant first looked at Z[...], and
Z[...] indicated to the complainant
using her head, and that was the
reason why the complainant took so long to point him out in court. He
did not raise this as an
issue with his attorney because he heard the
Court warning his attorney not to ask questions and that was why
during cross-examination
the attorney only asked a few questions. The
attorney asked a few questions because of what the court had said to
the attorney.
He also heard the complainant tell the court that when
she was growing up, the mother kept telling her about him and that
was when
he realized that the complainant did not know him. When
Z[...] pointed at the appellant using her head, he thought it would
be
pointless for him to bring that to the attention of his attorney
because of the restrictions by the court to his attorney.
[25]
The issue is identity.
[26]
In
S v V
2000 (1) SACR 453
(SCA} at 454 paragraph [2] Zulman
JA said:
"[2] In view of
the nature of the charges and the ages of the complainants it is well
to remind oneself at the outset that,
whilst there is no statutory
requirement that a child's evidence must be corroborated, it has long
been accepted that the evidence
of young children should be treated
with caution (R v Manda
1951 (3) SA 158
(A) at 163 C, Woji v Santam
Insurance Co Limited
1981 (1) SA 1020
(A) at 1028 B-D); and that the
evidence in a particular case involving sexual misconduct may call
for a cautionary approach ( S
v J)
1998 (2) SA 984
(SCA) at 10098)."
[27]
The disturbing feature of this case is that the complainant testified
seven years after the incident. Commenting on the question
whether
the capacity of recollection of children may not be wholly unreliable
as a result of a lapse of time, Diemont J answered
as follows in
Woji
v Santam Insurance Co Ltd
1981 (1) SA 1020
(A) at 1029 (a):
"I think not. It
is well known that children often have vivid memory of an unusual or
exciting incident."
However,
I feel constrained to also repeat what Mhantla AJA said in S v
Carolus 2008 (2) SACR 207 (SCA) at 214 h paragraph [33]
and [34]:
"[33] The most
disconcerting aspect relates to the delays in the commencement and
finalization of this matter indicated above.
Counsel for the State
was unable to furnish any explanation. She invited comment by the
court in this regard to ensure that law
enforcement agencies and
persons involved in the administration of justice act appropriately,
As I have indicated earlier, the
trial commenced some four years and
three months after the commission of the offence. A was then 13 years
old and was called upon
to recall events that had occurred in 1997.
...
[34]
...
In my
view an investigation must be conducted by the relevant authorities
to establish the root cause of these delays and to determine
how a
situation of this nature can be avoided in future. It is hoped that
these shortcomings will receive their prompt and proper
attention."
[28]
At the time, the complainant was only six years old. She decided to
go straight home immediately after her experience, making
an election
amongst two of her elder sisters as the first point of reporting.
Z[...] did not allow the complainant to fully explain
what happened
to her and simply instructed her to go clean herself up. She had
sufficient intelligence to know that someone who
is prepared to
listen to her, who is caring and to whom she would look for
protection, should know what happened to her. Instead
of following
the instruction to clean herself, she elected to pursue the report
further and approached her other sister, B[...],
following B[...] to
where she had gone to play. B[...] allowed the complainant to fully
explain what happened to her and what she
had experienced. B[...]
then took the complainant back to Z[...] where a report was made to
her of the child's experience, which
led to Z[...] making a few
calls, including to their mother and to SN.
[29]
The complainant testified that the person who took her to the veld
and raped her was the appellant. She identified the appellant
in the
dock. This identification was against the background that the
appellant called her from the outside of her home where she
was
playing alone; the two of them walked together for about 400m, from
her house to the veld; it was in broad daylight; the appellant
threatened and undressed her in the bush; the appellant raped and
hurt her, such that she urinated and soiled herself and the appellant
walked her back until she crossed the street and walked back home. In
my view, the complainant, in broad daylight, had sufficient
time to
observe the appellant. She was face to face with him at close
quarters. Light, proximity and duration were all favourable
to a
conclusion that the complainant had the opportunity to take note of
the appellant.
[30]
The complainant's direct evidence that she was raped is fully
corroborated by the medical evidence. The State proved beyond
reasonable doubt that the complainant was raped. Her evidence, that
she was raped by the appellant, does not stand alone. The evidence
of
SN provides some measure of support for the appellant's involvement.
The court
a quo,
correctly so in my view, did not look at the
evidence of the complainant implicating the appellant in isolation in
order to determine
whether there is proof beyond reasonable doubt.
The complainant's identification of the appellant as being the person
who raped
her, taken together with the evidence of SN, establishes
the identification of the appellant as the rapist.
[31]
On page 18 of the transcribed record the following is the examination
of SN by the Prosecutor:
"On the day of 04
November 2007, there is an incident that you witnessed, that you want
to tell us about. Am I right?
---
Yes.
What did you see? -- I
saw China passing by with the child. China, I see you are pointing at
the accused?
---
Yes.
And the child, are you
referring to N[...]? --- Yes."
Counsel
argued that the prosecutor asked a leading question, and as such the
evidence of SN relating to identity is inadmissible.
[32]
Firstly, there was no objection to the leading question. Secondly, I
do not think that it could be said that the appellant
had been
prejudiced thereby particularly in the light of the fact that SN had
already made a report on the date of the commission
of the offence
that she had seen the appellant in the company of the complainant. SN
is the witness who, at the time of the incident,
led the family and
the community to the house of the appellant, after identifying the
appellant as the person that she had seen
walking with the complaint
earlier that day. In my view, the magistrate correctly exercised his
discretion, after careful attention
to all the circumstances, and
allowed the evidence to be admitted.
[33]
In my view, there is no possibility of SN having been mistaken as to
the identity of the appellant. She and appellant stayed
in the same
neighbourhood. They were known to each other. She knew his nickname.
She is corroborated by the appellant that they
were known to each
other. There is no doubt that they knew each other well. The incident
happened in broad daylight. SN was seated
at a house in the street
where the appellant and the complainant walked past. Her view of the
persons walking in the street was
not impeded. If she could observe
and identify the complainant, there is no logical reason as to why
she could not identify the
face of somebody who was well known
to her, who was walking with the complainant in the street. SN
immediately reported to
Z[...], when asked if she had seen who was
walking with the child, that it was the appellant that she saw
walking with the child.
She pointed out to the community and the
relatives of the child where the appellant lived.
[34]
There is no evidential basis for the possibility of a deliberately
fabricated conspiracy against the appellant by the complainant
and
SN. There is no basis for concluding that the complainant or SN had a
motive to implicate the appellant falsely. The evidence
leaves no
room for either a mistake or a false implication. The trial court was
correct, in my view, to find that the evidence
of SN was reliable.
[35]
The appellant on the other hand was, correctly so in my view, found
to be an unreliable witness. In my view, the attempt by
the appellant
to suggest that the magistrate limited his attorney in the
cross-examination of the witnesses is not. The appellant's
version,
that Z[...] using her head, made a gesture to the complainant to
assist her identify him as the perpetrator, must be seen
against the
background of a man who was prepared to clutch at straws to avoid the
responsibility for his actions. Making a sensible
use of all the
evidential material placed before the court by the parties to the
court, the magistrate was able to make use of
the false evidence of
the appellant in his overall assessment of where the truth lies. I am
not able to conclude that the magistrate
was wrong in the conclusion
that the appellant's version was false beyond reasonable doubt.
[36]
In my view, the magistrate considered the conspectus of the evidence
and weighed the pros and cons, and made a judiciously
considered
judgment. The magistrate was satisfied, correctly so, that the State
witnesses corroborated each other in all material
respects. The
indisputable evidence shows that the appellant was with the
complainant at about the time she said she was raped.
The criticism
that the magistrate did not apply the cautionary rule properly and
adequately, in my view, is misplaced. Considering
the evidence as a
whole, there is no reasonable possibility that the version of the
appellant may be true. The verdict of the trial
court has not been
shown to be wrong.
[37]
Turning to sentence, in terms of section 51(1) of the Criminal Law
Amendment Act, 1997 (Act No. 105 of 1997), it was peremptory
for the
magistrate, after the conviction of the appellant for an offence
referred to in Part I of Schedule 2, to sentence the appellant
to
life imprisonment. The question is whether substantial and compelling
circumstances exist which justified the imposition of
a lesser
sentence than the sentence prescribed.
[38]
On appeal against the sentence, the function of the court of appeal
was set out by Holmes JA as follows in
S v De Jager and Another
1965 (2) SA 616
(A) at 628fin to 629B:
"It
would not appear to be sufficiently recognized that a Court of appeal
does not have a general discretion to ameliorate
the sentences of
trial courts. The matter is governed by principle. It is the trial
court which has the discretion, and a court
of appeal cannot
interfere unless the discretion was not judicially exercised, that is
to say unless the sentence is vitiated by
irregularity or
misdirection or is so severe that no reasonable court could have
imposed it. In this latter regard an accepted
test is whether the
sentence induces a sense of shock, that is to say if there is a
striking disparity between the sentence passed
and that which the
court of appeal would have imposed. It should therefore be recognized
that appellate jurisdiction to interfere
with punishment is not
discretionary but, on the contrary, is very limited."
[39]
The appellant was 37 years of age at the time of his sentencing, and
was 30 years of age when he committed the offence. He
and his brother
were raised by his mother. He does not have a relationship with his
father. He is unmarried but has a 13 year old
daughter who resides
with her maternal grandparents. His mother passed away in 2002. He
attended school until standard 9. He was
employed in 2007 and his
contract of employment as a merchandiser was terminated. He was
awaiting trial for 7 years. He has a previous
conviction of rape
committed on 14 February 1997, for which he was convicted and
sentenced on 9 December 1997 to eight (8) years
imprisonment of which
3 years was suspended for five years on certain conditions. He also
has a previous conviction of theft.
The
appellant showed a remarkable lack of insight into the gravity of his
conduct. There is no trace of remorse. I agree with the
magistrate
that the personal circumstances of the appellant are not such that by
themselves, they compel a departure from the prescribed
minimum
sentence (5
v Brown
2015 (1) SACR 211
(SCA) paragraph [120]).
[40]
The complainant was playing alone when the appellant saw the
opportunity to strike at her innocence. The choice of the scene
of
crime, walking the child out of its neighbourhood to an open veld,
and the promise of toys to the child, sustains a conclusion
that the
execution was premeditated. The conduct of the appellant was cool,
calm and calculated. In the walk of about 400m, and
the cries of the
child in the veld, the appellant had an opportunity to reconsider.
[41]
I have no doubt that the community expected that conduct such as that
of the appellant must be seriously sanctioned. In my
view, the
element of retribution and deterrence must play a decisive role and
even be allowed to overshadow rehabilitation in punishment
in the
eyes of informed, reasonable, law-abiding and balanced members of
society who are looking up to the courts and expect of
the courts to
view serious offences as such and punish offenders appropriately.
Rape of a minor child is a serious offence. It
is one of the most
invasive offences. It was a degrading, humiliating, painful and
traumatic experience for the complainant. The
community expects each
and every adult to protect the children, and not to harm them. The
courts must be equal to the task of standing
in the path of travel of
those who flow against the tide of the national agenda, as regards
child protection.
[42]
The personal circumstances of the appellant, which were placed before
the trial court, including through the pre-sentence report
by the
probation officer, under these circumstances, cannot outweigh the
seriousness of the offence and the interests of the community.
Having
regard to all the aggravating factors, I am unable to conclude that
there are substantial and compelling circumstances present
that would
justify a departure from the prescribed minimum sentence.
[43]
In my view there is no basis for this court to interfere with the
sentence. I would make the following order:
The appeal against both
sentence and conviction is dismissed.
____________________
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree
____________________
MF
LEGODI
JUDGE
OF THE HIGH COURT