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[2016] ZAGPPHC 832
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SPM v S (A198/2015) [2016] ZAGPPHC 832 (23 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A198/ 2015
DATE:
23/8/2016
In
the matter between:
S
P
M
….....................................................................
APPELLANT
And
THE
STATE
…..............................................................
RESPON
DENT
JUDG
E
MENT
Fabricius
J,
1.
This
appeal was previously before two colleagues of this Court on 15
September 2015. The order that was subsequently made was that
the
appeal be referred to a Full Court. When this order was made, my
colleagues had obviously lost sight of the provisions of section
14 (
3) of the
Supsrlor Courts Act 10 of 2013,
which reads
as follows: "Except where it is in terms of any law required or
permitted to be otherwise constituted, a Court
of a Division must be
constituted before two Judges for the hearing of any Civil or
Criminal Appeal: provided that the Judge President,
or, in the
absence of both the Judge President and the Deputy Judge President,
the senior available Judge, may in the event of
the Judges hearing
such appeal not being in agreement, at any time before a judgment is
handed down in such appeal, direct that
a third Judge be added to
hear that appeal". In the light of these provisions I asked
Counsel for the Appellant and for the
State for their comment.
Respondent's Counsel was of the view that the matter could proceed
before us and there was no jurisdictional.
issue in the context of
that section. Counsel for Appellant contended otherwise, but did not
provide us with a practical solution
to the ostensible problem. In my
view this section and its provisions have nothing to do with the
jurisdiction of a Court, but
simply provide for a practical approach
to save time and effort should two Judges on appeal not be in
agreement. In the present
case, because of the order of the two
Judges, three Judges had to read the record
de nova,
and this
could have
been
avoided if a third Judge had simply been added to hear the appeal.
There is therefore no merit in any suggestion that this
Full Court is
not properly constituted or
cannot
properly hear the appeal.
2.
The
role-players in this sad case are the following:
2.1
The
Appellant. He was born on 1 November 1961. He was previously married
and had four children from that marriage.
2.2
His
wife C, was born on 20 May 1962, and they were married in 2002.
2.3
The
stepson of the Appellant was 24 years old at the time of the
proceedings before the Regional Court. He suffers from a speech
defect and attended a special school.
It
cannot be said that he received even a proper basic education. He is
a victim of life and of the circumstances of this case,
inasmuch as
he spent most of his time begging in the streets under false
pretences that he was doing so on behalf of some or other
charity,
whilst it was also alleged by the Appellant (and this is a mere
allegation without any proof whatsoever) that he also
had regular
intercourse with his sister who is the main victim in this case.
2.4
The
complainan
t in this case, a
nd
also the Appellant's stepda
ughter
is N. Sh
e was born on 31 July 1997. The hearing before the
Regional Court took place during August 2014. She fell pregnant with
the child
of the Appellant in 2012 and gave birth to a daughter on 13
September 2012. It appears that she completed grade 9 in school and
then left because of her pregnancy.
2.5
Her
aunt E, was 53 years old at the time of the criminal trial. She had
completed her matric. She had known the Appellant for about
11 years.
In this judgment I will refer to the witnesses with reference to
their first name, so as to protect, as far as I am able,
the identity
of the witnesses, and more particularly, the identity of the victim.
3.
The
charges:
Charge
1 was that during 2007, the Appellant unlawfully and intentionally
committed an act of sexual penetration with the complainant
N, then
10 years old, by inserting his penis into her vagina without her
consent. Reference was made in this count, as well as
in the others,
to the provisions of section 51 ( 1) read with
Part 1 of
Schedule
2 of Act 105 of 1997,
and in particular to the fact that
imprisonment for life upon conviction could be imposed. Count 2 was
in similar vein, except that
it referred to 2010 when the complainant
was 13 years old. Count 3 similarly referred to 2011 in the same
context when the victim
was 14 years old. Count 4 referred to 2012
when the victim was 15 years old, in similar vein. Count 5 was a
charge of assault with
the intent to do grievous bodily harm and
referred to an incident in 2013 when the Appellant allegedly
assaulted the complainant
with open hands and/or fists and/or by
pushing her against a wall and furniture with the intent to cause her
grievous bodily harm.
4.
The
p
lea:
The
Appellant pleaded not guilty to Count 1. To Count 2, referring to the
charge relating to 2011, he pleaded not guilty, but at
the same time
said that it was "possible". To Count 3 he pleaded not
guilty, as also to Counts 4 and 5. He was represented
by a legal
practitioner from the Legal Aid Board. In the plea-explanation it was
said on his behalf by his legal representative
that as far as Count 1
was 7 concerned, the Appellant never had the opportunity to have had
intercourse with the complainant and
in fact also did not do so
during 2007. The complainant was simply lying in that context. The
same was said in respect of Count
2, and as far as Count 3 was
concerned, he admitted that he had had intercourse with the
complainant when she was 14 years old.
This was with her consent. It
was also
said
that there had
been one incident during 2011. In the context of Count 4, he admitted
that he had had intercourse in 2012 with the
complainant who was then
15 years
old
and it was similarly with her consent. It was then said that there
had in fact been two occasions during 2012 on which he had
intercourse with the complainant with consent. As far as Count 5 was
concerned, he admitted an incident where the complainant swore
at him
as a result of which he simply pushed her away. She did not suffer
any injuries as a result thereof.The Appellant confirmed
these
explanations given by his lawyer.
5.
The
evidence of the complainant N
:
She
gave evidence on 4 August 2014. Her date of birth was 31 July 1997.
The importance of the oath was explained to her, various
questions
were put to her in that context, as well as the importance of the
matter for the Appellant, and the possible sentence
upon conviction,
all of which she understood clearly. She then confirmed that she
would speak the whole truth and nothing but the
truth. I am satisfied
from her answers as a whole, in the given context, that she fully
understood the difference between right
and wrong, as well as truth
and lies, and that she accepted that the difference was of
importance. She described how their family,
if I can call it that,
moved to Nigel when she was about two years old. She remembered that
the Appellant touched her indecently
when she was about three. This
incident did not form part of any charge sheet and whether or not it
in fact occurred was not further
dealt with in the proceedings below.
The complainant then testified that during about 2007. The Appellant
approached her when she
was sleeping in her own room, pressed her
shoulders against the bed, pulled down her clothes and raped her by
inserting his penis
into her vagina. The mother had been at home at
the time and had been asleep. Although the assault had hurt her she
had said nothing
to anyone, nor had she received any treatment. She
was afraid of his threats, inasmuch as the Appellant told her that he
and her
mother would chase her away, and there would be no one to
look after her. The Appellant at the time worked for a certain garden
services company in Nigel.
Nothing
further occurred in this context until 2011 when she was 14 years old
and in grade 7. The Appellant then started to "manipulate"
her by threatening her that she would not be fed and looked after if
she did not sleep with him. At the time, her brother and her
mother,
she and the Appellant all stayed together in a small confined
lodging. They received social benefits and the Appellant
said that if
she was chased away she would have no lodging and no support. She was
also told to beg in the streets on the pretence
that she was
collecting money for a children's home. The same was told to her
brother. The Appellant also continuously swore at
them, insulted and
degraded them. Her duty was to beg every Saturday and to ensure that
she obtained at least R200 per day. With
this as brief background,
she testified that she was raped practically every weekend during
2010. This occurred always after the
lotto draw on a Saturday
evening. Her mother had been asleep at the time as well as her
brother. They slept in the same room. The
accused then told her to go
to the bathroom where he took off her clothes, told her to bend
forward and then raped her. This also
occurred regularly on
Wednesdays. She kept silent.
She
believed in his threats and feared that no one would look after them
if he was evicted from the house. Her mother could not
work because
of a physical disability, and she was too young. They received
financial benefits, as I have said, by way of a disability
pension.
It also occurred regularly that before getting her to go to the
bathroom, he indecently assaulted her in her bed.
6.
During
2012, she felt bilious from time to time, skipped her menstruation
a
nd as
a
result visited a
clinic who informed her that she was pregnant. This was during
February 2012. She did not have intercourse with
anyone else. She
showed the result of the pregnancy test to the Appellant who laughed,
told her that her version was a lot of nonsense
and said that the
test was unreliable. With the assistance of a friend at school she
did a further test which was also positive.
The Appellant then told
her that he was sterile and could not be the father. It then occurred
that on one Monday morning her mother
looked at her strangely and
told her that she knew that she was pregnant. She said to her that
the Appellant had told her and had
also told her that a young boy at
the school had been responsible and was the father. She was too
afraid to tell her mother the
truth and then left the topic in the
air. The Appellant had also advised her to have an abortion and
generally speaking she was
in a state of fear. She then left her
school as well. Although she was pregnant, the accused still raped
her regularly on Wednesdays
and Saturdays.
7.
In
2012 she finally had the courage to refuse to have intercourse. She
could not look her mother in the eyes anymore, felt that
the whole
scenario was wrong and decided to take a stand. The accused then
started to assault her.She was six months pregnant at
the time. She
was pulled and pushed around, thrown against a couch and hit in the
face. Her daughter was born on 13 September 2012.
During that time
the Appellant also regularly shouted and swore at her and her mother
over every possibl
e area
of critique, for instance, if the baby's nappies were not
properly packed away, or not hygienically. She could not tolerate the
circumstances any further and decided to phone her aunt E. She told
her everything what had occurred since she was very young. The
aunt
wanted to report this to the police, but she begged her not to as she
was still afraid that they would all be evicted and
would have no one
to look after them. After a few days of argument they laid a
complaint with the police, despite the fact that
the Appellant had
begged her not to do so. Her mother was easily manipulated and the
Appellant had told her that her mother would
not
believe her in any event. Also, DNA tests were done on the Appellant
and these were positive. The Appellant was the father of
her child.
He still denied it and, in the context of Count 5 of the charge
sheet, she described how he assaulted her. A photo of
her face was
taken which was swollen and blue and this she showed to her aunt. The
Appellant also regularly assaulted her brother.
Ultimately her
brother left the home and mainly spent his time begging in the
streets.
8.
Cross-examination
of the
complainant:
It
is noticeable from the typed record of the proceedings that her
cross-examination comprised some 12 pages only. One of the more
obvious reasons for that would be that the Appellant had admitted
having had intercourse with the complainant on two occasions
from
2011, if regard is had to what was put to her by Appellant's Counsel.
In any event, she denied that and said it was 2010 when
she was in
grade
7.
It was also put to her that in the context of Count 1
the Appellant would testify that he worked nightshift and therefore
could
not have raped her during the evenings as she had testified to.
After brief examination about Count 1, she was asked why she had
not
told her mother about these assaults. Complainant said repeatedly,
during the short cross-examination that she was afraid,
that she was
threatened and told that she would be chased out of the house and
left alone without maintenance or care, in the streets.
She also told
nobody at school. There was an interval between 2007 and 2010, for
reasons which were not explained by anyone, nor
dealt with, but she
said it then happened all over again. In 2010 she was in grade 5. It
was put to her that in 2011, while her
mother was asleep, she called
the Appellant to the bathroom. She then took a ballpoint pen and
inserted it into her vagina. It
is clear from the record that the
complainant regarded this notion as being totally absurd. She also
added that she had been previously
raped and there was therefore no
point, if that was the suggestion, that she would perform this "sick"
act (as she put
it), to facilitate an easier act of intercourse with
the Appellant.
In
any event, she said that in 2010 the accused called her to the
bathroom. She denied that on all of these occasions the Appellant
was
seated on the toilet and that she then sat on top of him. Further,
she said she always had to bend forward and intercourse
then took
place in that manner. It was also put to her that on a particular
Sunday morning, when her mother had gone to church,
she asked the
Appellant for Rl5 to buy airtime for her cell phone. When he was
hesitant to give her this money,she, by way of insinuation
promised
him sexual pleasure. It was also put to her in the same context that
she asked the Appellant for money to buy cigarettes
and had similarly
then offered sexual favours. It is clear that the complainant found
these notions absurd and denied them repeatedly.
She also added that
she had obtained cigarette money from her brother. According to her,
the Appellant knew that all these acts
of intercourse were against
her will. On most occasions she had to bend forward on other
occasions she was lying on her back. He
often shouted at her that he
would kill her and nothing would happen to him as a result, because
of the brain operation that he
had undergone which would result in
blameless conduct on his part. She believed that. She also testified
in some detail about the
occasions when she was forced to beg in the
streets together with her brother. In fact more time was spent on
this topic than the
various acts of intercourse she had described.
She was emphatic that she was assaulted on more than three occasions
and in fact
on a regular
basis.
She
denied that she had discussed the pregnancy with the Appellant and
who would inform her mother. She was simply told on a Monday
morning
that her mother knew about it and this was so, because the Appellant
had told her after he had been drinking. She was also
told by
Appellant that he had told her mother that a boy from the school was
the father. Appellant's Counsel put to her that Appellant's
version
was that she had consented
to
the acts of intercourse and had merely attempted to hide them from
her mother.
She
replied that she kept all of these occurrences to herself, because
she was afraid that her mother would not believe her in any
event.
She again repeated that she was often assaulted by the Appellant with
his hands and indeed with his fists. Her brother could
confirm that
and her mother as well, who kept quiet because she also feared the
Appellant. She denied that she had sworn at the
Appellant when on the
particular occasion, giving rise to Count 5, he had knocked her away
and had injured her.
She
confirmed that she had sent photos of her facial injuries to her
aunt.I will again refer to her evidence and the tone and the
detail
of her cross- examination when I deal with the judgment of the
learned Regional Magistrate hereunder. I do appreciate that
Appellant's defence as expounded through cross-examination of the
complainant was in the nature of things rather limited in that
he had
admitted intercourse on two occasions. Nevertheless, many questions
that ought to have been asked, both by the prosecutor,
Defence
Counsel and even the Court, were not asked. In this context, I have
particularly in mind the knowledge or the lack thereof,
of her
mother, of these repeated acts of forced intercourse over the years.
My
main impression from the record as a whole in this context is that
there was most likely a conspiracy of silence and, that a
young girl
kept quiet due to insecurity,lack of care, obviously lack of any love
and warmth in their home and most importantly,
because of the
presence of fear that she would be left to her own devices in the
streets.
9.
Evidence
of the aunt
E
:
The
aunt had known the Appellant for 11 years. She confirmed that when
the complainant's baby was about six months old she was contacted
by
the complainant who initially told her about the baby, but at the
same time did not want to disclose who the father was. She
asked her
to tell the truth in this regard and after a few days of to-and-fro
in that context, she was ultimately informed of the
fact that the
Appellant was the father. She then went to fetch complainant who
stayed with her for a few days during the first
week of July 2013.
During that time she was phoned at least four times a day by the
Appellant, and the complainant repeatedly told
her that she was
afraid. She even went so far as to say to the complainant that she
ought to remember that her own child could
possibly be the next
victim. On 31 July 2013, which was the complainant's birthday, she
spoke to her the whole night over the phone.
She was told by the
complainant that the Appellant had promised her, as an alleged
birthday present, to have sex with her that
particular day. Nothing
much occurred thereafter until September of that year, and during
that period the complainant told her
about the various incidents of
indecent assault and rape.The complainant had also told her that when
she was very young she did
not know that it was wrong to be touched
in an indecent manner, because she had slept in the same room as her
parents and had apparently
observed them. The complainant also
told
her about the pregnancy tests and the allegation that a boy at school
was the alleged father. According to her point of view,
both the
complainant and her brother lived in terrible
fear.
She confirmed receiving a photo over the Blackberry cell phone which
clearly indicates that the complainant had a blue eye
after an
assault. She received a number of those photos. She also confirmed
that the complainant had told her that she was forced
to beg in the
streets. According to her, the complaina
nt
was a
"terrible wreck" (in translation from the
Afrikaans). She also mentioned that she noticed when the complainant
stayed
with her for a few days she had nightmares.
10.
Cross-examination
of the aunt:
During
cross-examination nothing of note emerged, except a new fact, namely
that the complainant had told her that the Appellant
had asked her to
imitate the sounds during intercourse that her mother had apparently
made during sexual acts. She was cross-examined
about the photos of
the assault that she had received, and confirmed that the marks on
the complainant's face were clearly visible.
11.
The
complainant's brother:
He
was 24 years old at the time of the hearing and confirmed that he had
a speech defect. The prosecutor at the time observed that
in his
opinion the brother had a low IQ and that he had apparently only
obtained grade 1o education at a special school. He knew
the
difference between right and wrong and truth and lies, and was
accordingly warned in that particular context by the learned
Magistrate. He testified that the Appellant had often shouted at his
sister and had assaulted her with his hands and his fists.
He had
also knocked her about. He testified that he had observed the marks
of such assaults on her face. According to him he was
a slave of the
Appellant and had been mentally and physically abused by him as well.
He had been forced out onto the streets to
beg.
During
cross-examination he confirmed that he had seen how the Appellant had
knocked the complainant about and this had happened
in his
presence.He was n
ot asked a
bout
any knowledge that he may or may not have had about the sexual
activities that form the basis of the charge sheet or of any
other
nature. It was never put to him that he had some sort of a sexual
relationship with his
sister.
12.
The
complainant's mother:
She
was 53 years old at the time of the hearing in August 2014. As far as
her education was concerned, she had obtained a grade
6 level only.
She confirmed that the Appellant had assaulted the complainant
regularly. She did not know the reason for such conduct.
This assault
included hitting her with his open hands and his fists. She was not
asked about any knowledge or the lack thereof
of any sexual
activities between the Appellant and the complainant, which on the
one hand may seem particularly strange, but on
the other hand may be
explained by the fact that her educational level was up to grade 6
only. There may be other reasons on which
I do not want to speculate
about, but the record clearly shows that the prosecutor did not
examine her at all about the various
incidents testified to by her
daughter. Cross-examination of her compiled less than one page of the
record. The Magistrate deemed
it proper, and rightly so, to ask her
about details of the family. She mentioned that she received a social
benefit and was afraid
of losing it. She could not work, because she
was sick inasmuch as she became dizzy from time-to-time. She
confirmed that her son
was not very intelligent. She did not know
what had happened to her daughter's father. Her daughter was eight
years old when
she
married the Appellant. She then corrected herself and said that if
her memor
y served
her
correctly,the complainant was seven. When it was put to her that the
complainant had said that she was indecently touched by
the Appellant
when she was three or four years old, she said that she could not
properly remember. It is clear that neither the
prosecutor, nor the
Appellant's Counsel nor the Court, deemed it either fit or proper or
necessary to ask her about her knowledge
of any sexual activities
between the complainant and the Appellant. Again, I do not want to
speculate in this context, but one
good reason could be her standard
of education, or rather the lack thereof, and another good reason
could be the fact that she
was actually ill in the context of her
fainting-fits that she had briefly referred to. There may of course
be other reasons, but
these do not appear from the record of the
proceedings.
14.
That
was the State's case.
15.
Appellant's
evidence:
Appellant
denied that he had had intercourse with the complainant in 2007,
because he worked on nightshift with a security company.
He did
however admit intercourse on three occasions from when she was 15
years old. She sat on top of him in the bathroom on the
first
occasion.
On
the second occasion, it was on a Sunday morning in his bed whilst her
mother
was
at church. He then added that in the context of the first occasion
she had penetrated herself with a ballpoint pen. She even
told him
that it did not hurt at all.
On
the second occasion she again sat on top of him because he was too
heavy.
She
in fact hurt him due to her vigorous movements.
On
the third occasion, also on a Sunday morning, she had asked him for
R15 for airtime for her cell phone. He was hesitant to provide
this
and she then offered him "something pleasant. They then had
intercourse again.
He
could not remember any other occasions.
When
she became pregnant she told him she had had sex with a boy at school
in a
toilet.
She had a pregnancy test done, first at a clinic and then again
through a
pharmacy
kit.
According
to a DNA test he was the father, although a gynaecologist had
previously advised him that he was sterile.
In
essence he denied that he had ever forced complainant to have
intercourse against her will.
He
admitted assaulting her once only because the baby's nappies were not
hygienic.
He knocked her against a wall which caused the blue discolouration in
her
face.
He
then added, out of the blue as it were, that complainant often had
intercourse with her brother. I must add here that this version
had
not previously been raised or put to anyone.
Complainant
also showed him erotic photos on her cell phone.
He
told no one of this whole affair, simply to protect her.
16.
Appellant's
cross-examination:
Appellant
was initially asked to describe the three incidents that he had
referred to in his evidence-in-chief during which intercourse
was
held with the complainant with her consent. He initially referred to
the first incident having occurred in 2012 in Heidelberg.
She was
then 15 years old. The second incident occurred when she was 15 in
2013 and the third incident in 2014. He then corrected
himself
and
said
that the first incident happened during 2012, the second
during 2013 or 2014. He then said that he was confused and in fact
the
last incident happened in 2013, as well as the second incident,
and the first one in fact in 2012. That was his version as to these
incidents.
The
first incident, according to him, therefore happened in 2012 while
the complainant's mother was sleeping. He went to the complainant
and
told her that her mother was asleep, and she then went to the
bathroom on her own accord. He again said in this context that
he was
confused when asked as to detail. He said (in translation from the
Afrikaans): "I cannot remember my brain is standing
still I
don't know". He was then given a chance by the Magistrate to
compose himself and he told the Court that he could not
concentrate.
The case then stood down until the next day, 6 August 2014. On that
day he told the Court that he was ready to proceed,
and the previous
day's incident was not taken further by his Counsel. He then added
that on the first occasion the complainant
in fact took his arm and
pulled him towards the bathroom. He then repeated the incident that I
have described, namely that she
inserted a ballpoint pen into her
vagina. He asked her whether it did not hurt, because he was under
the impression that she was
still a virgin. At that time she had
stood towards him with her back. He saw blood on the pen and was
quite amazed. She then told
him that she had still been a virgin. She
then told him to sit on the toilet, took off her underclothes and sat
on top of him with
her back towards him. At some stage they had a
conversation about all these topics and at a different stage he said
she made movements
with her hand to indicate what he should do
because her mother was next door. She then sat on top of him with her
back towards
him. She made movements for about five minutes in that
position. He was not asked by the prosecutor as to how this was
physically
possible, taken into account his weight ( 93kg) and her
tender build. The next day she told him, out of the blue, that she
had
seen him and her mother do this once when she inadvertently
walked into their room. This had never been put to the complainant
nor to anyone else.
The
second incident, according to the Appellant was then also in 2012,
but at the same time he said that he could not remember the
exact
year. It happened on a Sunday morning whilst her mother had gone to
church. On this occasion she asked him for Rl5 and he
accepted that
it was either for cigarettes or for air-time. She did however not
tell him what she wanted the money for. This was
also a new fact
never before put to anyone. There were tears in her eyes and she
begged him for this amount. He had a soft heart
he said and therefore
gave her the money. She then started removing her clothes. He
resisted the temptation and told her that he
loved her mother. He
also told her that it was not right what she intended to do. She then
removed all her clothes and lay next
to him on the bed and told him
to remove his own clothes. He then did so. She then told him not to
lie on top of her, because he
was too heavy and she then climbed on
top of him. Her front was towards him and she made the usual
movements whilst hurting him.
He told her not to be so rough with
him. He also could not remember whether he had received any
satisfaction from this incident,
but later admitted that most
probably he did. He could
do
nothing about the second incident, because he lay on his bed like a
victim. He in fact thought about slapping her because the
incident
was wrong. Before that in fact, and this is also a new version, she
had helped him to achieve an erection. At his age,
which was 54 at
the time, he was not really interested in sex any further. He
admitted that he was overweight at the time and that
the complainant
was slim and tender. The second incident happened, according to him,
because the complainant wanted to satisfy
herself. That is why she
took control of the whole incident as she was very manipulative. This
was so, although she was only 13
years old at the time. On the third
occasion, her mother had again gone to church on a Sunday morning. He
thought this had happened
at the beginning of 2013. Complainant
locked all the doors and walked around the house half-naked. She did
however have her underclothes
on, but nothing else. He added that it
must have been during 2013 when she was 15 years old. She again came
to sit on his bed and
told him that she was not interested in any
church stories and went to the toilet. At that time he told the Court
that he was very
confused and had to think. I was not surprised when
I read this, because it is clear from the record that he made up all
the detail
that was never put to the complainant as he went along. He
also went to the toilet, but she
was
not there and he had then noticed that she had climbed into his bed.
She was naked. He climbed into the bed next to her and
at that stage
she stimulated him sexually. He repeatedly took her hand away from
him, but ultimately she grabbed him and pressed
him against the bed.
He told her that this was not in order, because he was in love with
her mother. She replied that there was
nobody at home and that nobody
would know. He lay dead still in bed, and then she again climbed on
top of him and made up-and-down
movements, while she kissed him on
the cheek. On this occasion he ejaculated. After that she returned to
own bed. He then went
to cook and whilst doing that complainant came
to him and grabbed him between the legs.
17.
It
will be observed that many of these details had never been put to the
complainant for comment.
18.
The
next morning, and this is also another new version, she again came to
him and
grabbed
him between the legs. He then said that he would tell her mother
about this conduct and he did so. Her mother had paid no
attention
and told her simply to stop these activities. This was of course also
never put to the mother. An hour or so later complainant
came to him
and kicked him between the legs without any ostensible reason. This
is also a new version. A week or so later, whilst
he was sitting on
the bed she again grabbed him between the legs. He said to her that
her mother had already told her to stop this
conduct and because he
was disturbed by it he again went to tell his wife about this
incident.
19.
He
then admitted that he had assaulted the complainant on one occasion,
because
of
the lack of hygiene concerning the baby's nappies.
20.
He
never had intercourse with the complainant after the birth of the
child, although
he
was not certain about it. He repeated his version that a
gynaecologist in Pretoria had told him in the beginning of the 1990s
that he was sterile. He himself had four children, the eldest being
about 40 and the youngest about 32 at the time. He could not
give any
detail as to why and when he was told about this sterility, because
of the lapse of time.
21.
Complainant
underwent two pregnancy tests and when she told him about the result
he
said that he could not possibly be the father. After the child was
born he did not accept it as his own, because complainant
had told
him that she had had sex with a boy at the school. Ultimately a DNA
test was done.
2
2.
In
summary. he denied that he had ever forced her to have intercourse
against her will. She in fact, took the initiative on each
occasion.
He never assaulted her, except once. He could not see any blue marks
in her face after that incident. Her brother was
mentally retarded
according to him, because of some or other incident when he was
young. He denied that he sent them into the streets
to beg. He also
admitted that when they lived in Nigel, as complainant had testified,
he had worked for a garden service. He explained
the discrepancy by
saying he was not sure of the relevant dates. In 2007 he had in fact
worked for this garden service. He could
not explain why his legal
representative would then have put the wrong version. He said he
could also not remember what he had
said in his plea explanation.
2
3.
As
far as the assault was concerned, he explained later in more detail
that it was possible that she could have struck the couch
with her
face.
24.
That
was the case for the accused.
25.
The
Magistrate's judgment:
The
learned Magistrate analysed the evidence before him. He also noted
that the complainant appeared mature and self-assured before
him and
at no stage did he notice that she suffered from any stress when she
gave evidence in open Court. Her evidence was however
given in camera
and he noted that he had warned her to give truthful evidence in
accordance with the provisions of section 164
of the
Crimin
al
Procedure
Act.
He
mentioned that the Appellant's evidence was interrupted on a number
of occasions because he either became emotional or because
he
mentioned that he could "not think anymore•. His evidence
was also analysed by the Court.
The
Magistrate
took into account
that the evidence of children had to be analysed carefully, and he
noted that the complainant had been an excellent
witness with an
amazing memory. She was at no stage intimidated by the Appellant in
open Court. He also noted that she clearly
showed her obvious disgust
when certain alleged facts were put to her for comment. He also noted
that material parts of her evidence
were supported by her aunt. He
noted on the record that when the Appellant's wife gave evidence, the
Appellant clearly tried to
intimidate her. The same happened when his
stepson testified. This was in contrast to his conduct when the
complainant and her
aunt testified. During those occasions,the
Appellant tried to avoid eye contact with them. He noted, as should
be seen from my
summary of the evidence, that the Appellant's
evidence was riddled with contradictions. He spun a web of lies and
repeatedly tried
to recover from that situation by requesting time to
think. The Court found that he was clearly a manipulating witness,
and justifiably
so.
2
6.
As
far as the alleged consent of the complainant was concerned, the
Court a quo dealt in some detail with the decision of the Supreme
Court of Appeal in
S v SM
2013
(2)
SACR
111.
It is not necessary to refer to this decision again in
any great detail, except to say the following: "Consent, must be
a
real consent and it must be given by a person capable of doing so.
Consent must be active and mere submission is not sufficienr.
In this
context the following quote from
R v
Swlegelaar
1950
(1) PH
H
61 (A)
is
apposite: "The authorities are clear upon the
point that though the consent of a woman may be gathered from her
conduct, apart
from her words, it is fallacious to take the absence
of resistance as per se proof of consent.Submission by itself is no
grant
of consent, and if a man so intimidates a woman as to induce
her to abandon resistance and submit to intercourse to which she is
unwilling,
he commits the crime of rape. All the circumstances must be taken
into account to determine whether passivity is proof
of implied
consent or whether it is really the abandonment of outward resistance
which the woman, while persisting in her objection
to intercourse, is
afraid to display or realises is useless".
It
is obvious that one has to have regard to the totality of facts in
order to determine whether acquiescence to certain sexual
conduct
also constitute consent. Various factors may operate to nullify
consent, such as age, considerations of public policy and
the failure
to appreciate the nature of the concept being consented to. The
inequalities in the nature of the relationship between
a child victim
and an adult perpetrator are also of great importance in
understanding the construction, nature and scope of the
child's
apparent consent to any sexual relations. It is also clear that a
child's vulnerability can result in openness to manipulation,
must be
carefully scrutinized. Where relevant, a web of rewards and
punishments must be carefully considered as well.
27.
It
is in my view clear from the evidence as a whole that the Appellant
was a blatantly untruthful witness. Some of his descriptions
of the
acts of intercourse are preposterous and of such a nature that they
could not reasonably possibly be true.
Many
of the details that he presented to the Court a quo were never put to
the complainant for comment. In my view the learned Magistrate
was
quite clear in stating that the main intention of the Appellant had
been to mislead the Court.
28.
There
is another consideration of importance in cases on appeal: the
fundamental rule to be applied by a Court of appeal is that,
while
the Appellant is entitled to a re-hearing, because otherwise the
right of appeal becomes illusory, a Court of Appeal is not
at liberty
to depart from the trial Court's finding of fact and credibility,
unless they are vitiated by irregularity, or unless
an examination of
the record of evidence reveals those findings are patently wrong.The
trial Court's findings of fact and credibility
are presumed to be
correct, because the trial Court, and not the Court of Appeal, has
had the advantage of seeing and hearing the
witnesses, and is in the
best position to determine where the truth lies.
See:
S v Hadaba and Others 1997 (SACR) 641 (SCA) at 645 E to F.
I
have analysed the evidence of all the witnesses carefully and the
Magistrate did the same. No material errors of fact or law could
be
discovered by me after this exercise. The Appellant's version was
rife with contradictions and it is clear from the record that
he was
evasive, manipulating and untruthful.
In
my view the Appellant was correctly convicted. It is also clear from
the evidence of the complainant that the State could have
preferred
many more charges against the Appellant, but obviously did not do so.
2
9.
After
the Appellant was convicted, certain previous convictions were put to
him which he admitted. Some of these occurred more than
20 years
before the present events and one included an indecent deed with a
minor under the age of 16, during 1986.
30.
Prior
to sentencing, a pre-sentence report from the Social Development
Department of the Gauteng Province was handed in by consent.
This
report sets out all the relevant facts after the Appellant was
interviewed, his wife, the complainant, her brother and the
aunt. As
far as the Appellant's family background was concerned, certain facts
were reported which were however not dealt with
during the evidence
in these proceedings. One of these was that the Appellant allegedly
suffered brain damage during 1996 and was
unconscious "for three
months and later underwent an operation to his brain". No
details
were
given
and neither the Appellant nor the prosecution took this matter
further, if indeed it is relevant. The learned Magistrate in
his
judgment noted that although the Appellant was not particularly
intelligent, his evidence certainly did not indicate that he
was
physically or mentally disabled, so as to not have had a fair trial
or fair opportunity to defend himself to the relevant charges.
The
social worker noted that the lack of privacy in the family's home
"seems
to have contributed to the commitment of a crime concerned as the
children seem to have been exposed to sexual activities
from an early
age and the family seems to not have placed priority on privacy".
As I have said, as sad as this comment is,
there is no evidence of
these alleged activities apart from what the complainant testified
about. The social worker noted that
the Appellant seemed healthy at
the time of the interview, although he complained of a number of
conditions. As I have said, neither
the Appellant, nor his legal
representative, deemed these health issues, if they are indeed true,
of such importance as to mention
them to the Court, or to give
evidence in that regard. The social worker also noted that the
accused ... "is very manipulative
but not in need of additional
psychological intervention". The following comment is also
noteworthy: "The injuries suffered
to the brain of the accused
do also not seem to have played a contributing role in his sexual
deviant behaviour as he was already
convicted of a sexual offence
involving a minor child in 1986 before he sustained the head injury
in question. The accused seems
to be average when compared
cognitively to his peers and can express himself well in Afrikaans
and English. The accused thus appears
to be mentally and physically
healthy enough to take part in Court proceedings and knows the
difference between wrong and right''.
31.
As
far as the victim is concerned, the following appears from the
report: "The child suffered emotional trauma as a result
of the
incident and was also teased at school for being pregnant as well as
ostracized by the M family who also reside on the plot...
She has
never undergone counselling but however seems to be resilient and
indicated that she is not in need of psychological intervention
currently. The minor victim could not concentrate on her school work
due to the sexual abuse which caused her to struggle academically
and
later she could not cope physically with the demands of pregnancy
while at school and dropped out of ... high school. She returned
to
school in 2014 but the family could no longer afford to pay her
transport... every day and she again dropped out of school and
started working on a temporary
basis
.
The victim was encouraged to complete her schooling career
through adult based education".
32.
In
the light of the conviction, the Appellant's admission that he had
intercourse with a minor incapable of giving lawful consent,
the
learned Magistrate analysed all relevant considerations. He mentioned
that the rights to dignity and bodily integrity are fundamental
to
our humanity. He referred to the interests of the community in the
present context. He took all personal circumstances of the
Appellant
into account. He analysed the rights of the minor child and the fact
that she was regularly raped over a number of years.
He took into
account that her youth had been forcefully taken away from her and
that she was forced to act as a struggling adult
at an early age. The
relationship of trust had been grossly abused. As a result he could
not find any substantial mitigating circumstances
in the context of
what was said in
S v Malgas 2001 (
1)
SACR
464
(SCA)
and
S v Vi/akazi 2009 (
1)
SACR
552
(SCA).
33.
As
a result the Court imposed the sentence required by law and sentenced
the Appellant to imprisonment for life. On Charge 5 he
was sentenced
to six months imprisonment. It was ordered that all the sentences run
concurrently.
34.
A
trial Court enjoys an unfettered discretion to impose a proper and
proportionate sentence depending on the context. A Court on
Appeal is
not free to interfere with such a sentence, unless it is convinced
that the trial Court could not reasonably have imposed
the sentence
it did. The fact that the Court of Appeal, as a Court of first
instance, might for instance have imposed a different
sentence is not
regarded as sufficient to interfere with the sentence imposed by the
trial Court.
See:
S
v
Holdar
1979
(2)
SA
70
(A)
at
75
C
to
D.
In
this context I may just mention that I would not have imposed a
different sentence than the learned Magistrate. It is again necessary
to refer to
S v Chapman
[1997] ZASCA 45
;
1997
(2)
SACR
3
SCA,
where the following was said at 5 b and further: "Rape
is a very serious offence, constituting as it does a humiliating,
degrading
and brutal invasion of the privacy, the dignity and the
person of the victim".
There
is nothing to be said in the favour of the Appellant. The relevant
circumstances are rather aggravating than mitigating. The
Appellant
showed no remorse during the trial, although prior to sentencing he
handed up a letter which he read to the Court in
which he suddenly
expressed regret, and also suddenly relied on the possible
intervention of a Higher Being. It is in this instance
ironic, if I
can use that phrase, that he committed many rapes on a Sunday morning
whilst other people attended church. Clearly,
at that time the
intervention of a Higher Being was not of importance to him.
In
the context of all of the above, there is no merit whatsoever in the
appeal against the convictions or the sentences imposed,
and the
appeal is accordingly dismissed.
_________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION PRETORIA
And
I
Agree
JUDGE
S. S. MPHAHLELE
JUDGE
OF THE HIGH COURT GAUTENG DIVISION
PRETORIA
And
I
Agree
ACTING
JUDGE E. MOLAHLEHI
ACTING
JUDGE OF THE HIGH COURT GAUTENG DIVISION PRETORIA
Date
of Judgment: 23 /08/ 2016