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 725
|
|
Cindi v S (A662/2014) [2016] ZAGPPHC 725 (18 August 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)
Case number: A662/2014
Date: 18/8/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
SIFISO TREVOR
CINDI APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1] The Appellant was
charged with 2 counts of raping a mentally and physically disabled
person and one count of housebreaking and
theft.
[2] He was convicted as
charged and sentenced to 15 years imprisonment on each of the rape
counts and 10 years imprisonment on the
housebreaking and theft
charge. All the sentences to run concurrently, which means that he
will serve an effective term of 15 years
imprisonment.
[3] The Appellant was
granted leave to appeal against the convictions only.
THE
RAPES
[4] The complainant a 22
years old woman whom the state indicated is mentally disabled
testified after the magistrate determined
whether she understood the
difference between the truth and a lie. His questions were simple but
in my view it was clear from her
answers and later on her evidence
that she did understand and that she was a competent witness.
[5] She testified that on
the day in question she was playing with her friends K. and M.. Her
younger sister S. was also present.
It would later transpire that
these friends and her sister were young girls who were approximately
8 or 9 years old at the time.
The testimony of other witnesses would
confirm that she would always spend time with children who were much
younger than herself.
She said that the Appellant approached her and
she tried to run away but he tripped her with a stick. The evidence
would later
show that the Appellant himself is physically disabled
and uses a walking stick. She said that she fell and he got hold of
her.
He then pulled her to his gate. He took her into his house where
he raped her twice, once vaginally and once anally. He also put
a
tape around her mouth to prevent her from screaming. She said that
she resisted but that she is cripple and her left arm and
leg does
not function properly. When he was done he left to join his friends
and she went home. She said she told her father what
had happened
when she got home, she also told the neighbours and her mother. The
neighbours that she said she told were not identified
but a little
later she mentioned that K. and M., the friends that she was playing
with, are her neighbours. Her mother phoned her
sister who is a
police official and her sister called the police. She was taken to
the police station and later to the hospital
where she was examined
by a doctor.
[6] S. T., a 10 years old
girl and the younger sister of the complainant testified that she was
playing with the complainant and
a certain T. on the day in question.
While they were playing T. became ill and went home. The complainant
went to the shop where
she met the Appellant. She saw complainant and
the Appellant entering his gate, and he was “slightly pushing”
her.
They were a long time in the Appellant’s home before
complainant came out. When she came out the complainant was holding
her hands over her face. She asked the complainant what was wrong and
the complainant told her the Appellant undressed her. They
went to
the complainant’s home where they found her grandmother who
asked complainant what was wrong. Initially complainant
did not want
to tell her but her grandmother threatened to fetch the belt,
implicating that she would get a hiding, and the
complainant
then told her that Appellant raped her.
[7] Ms D. T. testified
that she is the mother of the complainant. She described the
complainant as a slow learner who also suffers
from epileptic
seizures. She said complainant behaves like a child and plays with
children. On 24 June 2012 she noticed that Z.
appeared to be shy when
she returned home with S. . S. said that the complainant was at the
Appellant’s house.
[8] The complainant
initially didn’t want to tell Ms T. what was wrong. Ms T.
confirmed that she threatened to fetch the belt
if complainant
continued to refuse to tell her what happened. The complainant then
told her that Appellant took off her panty.
Ms T. inspected the
panty, which she noticed was wet. The complainant told her also that
Appellant made her stand on her knees
and penetrated her vagina. The
police was called and the complainant was taken to the hospital to be
examined. It would seem that
despite the fact that S. referred to
this witness as the complainant’s grandmother and not mother,
that Ms T. is the person
S. referred to in her evidence.
[9] The J88 indicates
that the complainant is mentally retarded. It also states that there
were positive signs of penetration with
laceration on the vaginal
vault. The anal examination states that tears were present.
[10] Constable Totetsi
testified that on 27 June 2014 he was instructed to trace the
Appellant regarding a rape matter. He visited
the house of the father
of Appellant who told him that Appellant had fled to Volksrust. He
then requested the police officers at
Volksrust to trace and arrest
the Appellant.
[11] Constable Maseko,
from the SAPS in Volksrust, testified that he was contacted by
Constable Totetsi to trace and arrest Appellant
which he did.
[12] The Appellant
testified that he had a long standing affair with the complainant. He
met her on that day at the shop and they
went to his house where he
prepared food and they watched a romantic video. Afterwards they had
consensual intercourse. When they
were done he walked her home. He
said her mother did not approve of their affair. The complainant’s
mother denied any knowledge
of a relationship between Appellant and
the complainant in her evidence. Appllant denied that complainant is
mentally retarded.
According to him she appeared normal and the only
disability that she had was the physical one. He said complainant
requested money
from him and he went to a so called “loan
shark” to get the money. On his way there his other girlfriend
called him
and told him that their child was ill and needed
medication. He then left for Volksrust, where he was arrested.
[13] Counsel for
Appellant argued that the state did not succeed in proving rape of a
mentally retarded person. Life imprisonment
is the minimum prescribed
sentence for such an offence in terms of s 51 of Act 105 of 1997. We
know however that the accused was
not sentenced to life imprisonment,
despite the conviction of a rape of a mentally disabled person.
[14] The definition of a
person who is mentally disabled in s 1 of the Act 32 of 2007 reads as
follows —
'a
person affected by any mental disability, including any disorder or
disability of the mind, to the extent that he or she, at
the time of
the alleged commission of the offence in question, was —
(a)
unable
to appreciate the nature and reasonably foreseeable consequences of a
sexual act;
(b)
able
to appreciate the nature and reasonably foreseeable consequences of
such an act, but unable to act in accordance with that
appreciation;
(c)
unable
to resist the commission of any such act; or
(d)
unable
to communicate his or her unwillingness to participate in any such
act; . . . .'
[15] In
S v Mnguni
2014 (2) SACR (GP) P598 par [4] the following was said:
“
The onus was
therefore on the state to prove that the victim was mentally disabled
as contemplated in one of the four categories
mentioned in the
definition. The nature of the mental disability required to be proved
is therefore specific. It is not sufficient
for the state to merely
prove that the victim is mentally disabled or retarded or challenged.
The evidence presented by the state
in this regard in my view fell
short of what was required.”
[16] No expert evidence
was led by the State in order to prove that the complainant was
indeed mentally disabled. Her mother testified
that she was a “slow
learner” and acted like a child. The evidence of Mrs T. does
not prove beyond reasonable doubt
that complainant’s mental
state met the requirements of section 1 of Act 32 of 2007 or the
requirement set out in S v Mnguni,
supra
. However, there was
sufficient evidence to indicate that the complainant was mentally
challenged and as such I find the version
of the Appellant that they
had a long standing relationship and that she was “normal”
not reasonably possibly true.
Although the complainant’s
evidence appeared to be immature she was consistent about the fact
that she did not agree to have
intercourse with the Appellant or that
they had a relationship. To a certain extent she is corroborated by
S. who testified that
she was pushed by Appellant to his house. S.
also testified that the complainant covered her face with her hands
when she came
out of Appellant’s house which is indicative of
the fact that something traumatic happened to her while she was in
the house.
Her mother also said she appeared “shy” when
she arrived home and her panty was wet. The J88 indicates certain
injuries
which seem rather improbable if she had a long standing
sexual relationship with the Appellant.
[17] I am satisfied that
the state proved that the Appellant raped the complainant. I am
however not satisfied that it was proven
that she met the legal
definition of mental disability. Consequently the conviction should
be amended accordingly.
[18] Leave to appeal was
granted against the conviction only, but as far as it may be relevant
I am of the view that the amendment
of the conviction should not
impact on the sentence. There is no indication that the accused did
not have a fair trial or that
its rights were prejudiced in any way.
The Court
a quo
did consider all the relevant extenuating and
mitigating circumstances and exercised its discretion accordingly. I
am of the view
that there is no indication that the presiding officer
in the Court
a quo
misdirected himself nor is the sentence
shockingly inappropriate.
THE
HOUSEBREAKING AND THEFT CHARGES
[19] Ms S. X. testified
that on 24 June 2012 she left her residence at approximately 18:30 at
night. The doors were locked and the
windows closed. When she
returned at 19:00 she found that the house has been broken into. She
phoned a neighbour as she was too
scared to enter the house. When
they entered they found that the house was burgled. In front of the
door they found a plastic bag
with a kettle and iron inside it. These
items did not belong to her. The neighbours’ son, M. Dh. said
he would make enquiries.
He later told her that two boys saw
Appellant with these items which he was trying to sell. Ms X. and the
police went to Appellant’s
house where his father pointed out
his room. In this room they found some of Ms X.’s belongings.
The Appellant was not home
when they found the items. Mr M. D.
confirmed Ms X.’s evidence. A police officer Mr Tsotetsi
attended to the housebreaking
complaint. He confirmed Ms X.’s
evidence that her property was found in Appellant’s room.
[20] Mr M. R. testified
that he was approached by Mr M. D. who was looking for information
regarding a break in. He identified the
items that he saw in
possession of the Appellant. Mr R. directed the police to the house
of the Appellant. The Appellant denied
any involvement in the break
in.
[21] The evidence
although circumstantial, is overwhelming. The stolen items were found
in the Appellant’s room and items
that he tried to sell earlier
in the day were found on the premises where the break in and theft
occurred. There is no doubt that
his guilt was proven beyond a
reasonable doubt.
[22] I make the following
order:
22.1 The convictions
on the rape charges are confirmed but the order is amended by
deleting the words “a mentally disabled
person” and
consequently the conviction is amended to read as follows:
22.1.2 The accused is
found guilty of two charges of rape of Z. T.; and
22.1.3 The conviction
of breaking in and theft is confirmed.
____________________
R G TOLMAY
JUDGE OF THE HIGH
COURT
I AGREE:
____________________
N KOLLAPEN
JUDGE OF THE HIGH
COURT
I AGREE:
___________________
D MAKHOBA
ACTING JUDGE OF THE
HIGH COURT
DATE OF
HEARING:
10 JUNE 2016
DATE OF
JUDGMENT:
18
AUGUST 2016
FOR
APPELLANT:
ADV L AUGUSTYN
LEGAL AID
FOR
RESPONDENT:
ADV T MOETAESI
DPP