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[2016] ZAGPPHC 751
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Mazantsana v S (A593/2015) [2016] ZAGPPHC 751 (25 August 2016)
THE
REPUBLIC OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no:A593/2015
25/8/2016
Not
reportable: Not of interest to other judges
Revised.
In
the matter between:
SIPHO
MAZANTSANA APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
MOLAHLEHI
AJ
lntroduction
[1]
The
appellant, Mr Manzantsana, an adult male, was charged, convicted and
sentenced to 3 years imprisonment by the regional court
in
Klerksdorp. He was charged with contravention of the provisions of
the Criminal Law (Sexual Offences and Related Matters) Amendment
Act,
[1]
in that he unlawfully
and intentionally sexually violated the complainant who at the time
was 11 years old.
[2]
The charges against the appellant related to the accusation that he
unlawfully and intentionally kissed and touched the complainant
on
her private parts. The appellant pleaded not guilty to the charge. He
was throughout the proceedings legally represented.
Background
facts
[3]
It is common cause that on the day the incident is alleged to have
happened the appellant visited the complainant's father.
They
together with Mr Speek went to buy drinks and on their return they
sat in front of the house and consumed the alcohol. After
some time
the appellant left the complainant's father with Mr Speek and went to
another house in the neighbourhood where there
was a party. Whilst at
the party the appellant was confronted by the complainant's father
who was in the company of Mr Speek. Thereafter
the appellant was
arrested by the police.
The
state's case
[4]
The state in support of its case presented the testimony of four
witnesses. The first witness was the mother of the complainant,
who
in brief testified that; on 25 January 2014, the complainant
approached her and told her that the appellant called her and
enquired as to what Grade she was doing at school. After informing
him that she was in Grade 6, the appellant kissed her, inserted
his
tongue into her mouth and thereafter touched her buttocks and private
parts.
[5]
At the time the complainant reported the incident, her husband and Mr
Speek were seated in the veranda. She also testified that
she saw the
appellant seated with her husband on the veranda as she came back
from a visit to their neighbours with her daughter,
who was walking
behind her. Few minutes later the complainant made the report about
the sexual offence by the appellant.
[6]
The second state witness was the complainant's father, who testified
that the appellant is a former work colleague and had visited
him at
his house on the day of the incident. The appellant arrived at the
complainant's home at about 07H00.
[7]
It would appear that after the arrival of the appellant, the
complainant's father together with the other friend went and
purchased
alcohol which they consumed on their return. The three of
them sat at the veranda of the house.
[8]
According to the complainant's father at some point the appellant
left. After the departure of the appellant his wife called
him into
the house where she reported the incident of the sexual assault on
the complainant.
[9]
The complainant's father together with his friend, Mr Speek, then
went out to look for the appellant, who they found at a house
nearby
where there was a party. According to the appellant on arrival at the
neighbour's house, before he could say anything, the
appellant said
to him that it was not him.
[10]
The
complainant was the third witness of the state. Her testimony was
presented in terms of Section 170 A of CPA,
[2]
through the intermediary, Ms Joa.
[11]
The complainant testified that on the day of the incident the
appellant stopped her at the gate and then asked her what Grade
she
was doing at school. After responding to the question the appellant
asked her to kiss him. In that process of kissing him,
he inserted
his tongue into her mouth. Thereafter he touched her once on her
buttocks and twice on her private part. At the time
of the incident
the complainant was wearing jeans and a T-shirt, which means the
touching was done on top of her cloths. The appellant
said nothing as
he was touching the complainant and when she asked him what he was
doing he apologised.
[12]
The complainant further testified that she was hurt when the
appellant touched her and that she did not approve of what he
was
doing. She reported the incident to her mother who then informed her
father.
[13]
The complainant then accompanied her father with Mr Speek to report
the incident to the police. The complainant testified also
that the
appellant had previously picked her up whenever he visited his father
but in those instances he never touched her private
parts. During
cross examination she testified that although she came to know the
name of the appellant, at the police station she
had seen him before.
She stated that on the day of the incident she saw the appellant
seated at the veranda whilst she was playing.
[14]
The complainant confirmed her mother's version, that before the
incident they had gone to visit a neighbour. According to her
as they
were walking back from the neighbour when the appellant stopped her
at the gate.
[15]
During cross examination and at the request of the prosecutor the
complainant was called into the court where she pointed the
appellant
and thereafter broke into tears.
[16]
Mr Speek was the last witness for the state. He essentially confirmed
the testimony of all the other witnesses in relation
to the visit of
the appellant and the report of the incident and them going to look
for the appellant after the report of the incident
and that they
found him at the party in the neighbourhood.
[17]
The appellant in his defence testified that he knew the complainant
from the time when heworked with her father at Affox. He
confirmed
that he visited the complainant's home on the day of the incident. He
arrived there at 19h15 and left after about 15
minutes. The appellant
further testified that he did not see the complainant on that day.
The
grounds for appeal
[18]
The essence of the appellant's case is that the learned Magistrate in
arriving at the decision as she erred because:
(a) The state witnesses
were not credible.
(b) The other witnesses
did not corroborate the testimony of the complainant.
(c) The complainant
mistaken the appellant for the person who was seating with her father
at the veranda in the afternoon of the
incident of the sexual
assault.
(d) There were material
contradiction in the state's case.
(e) The probabilities
favoured the case of the appellant.
(f) The evidence of the
appellant was reasonably true and was corroborated by Mr Speek.
The
magistrate's judgment
[19]
The Court a
quo
(the Court) in arriving at the conclusion that
the state had proved beyond reasonable doubt that the appellant was
guilty as charged,
summarised the evidence of each of the witnesses
and thereafter analysed, it in its totality. In this respect it found
that the
testimony of all the state witnesses to be credible and
truthful in relation to what happened on the day in question.
[20]
The Court correctly notes that none of the state witnesses except for
the appellant, could give evidence as to how the sexual
assault
happened. The only person who could testify about the assault was the
complainant.
[21]
In relation to the testimony of the complainant the court accepted
the discrepancies between her testimony and that of her
mother
regarding how the mother presented the first report and what the
appellant herself said. The Court found in this respect
that there
was no basis for finding that the complainant was lying or fabricated
her testimony.
[22]
The testimony of the complainant was accepted as consistent both in
evidence in chief and during cross examination, in particular
relating to how the appellant carried out the sexual assault. In
dealing with the cautionary rule in sexual offences the Court
relied
on the provisions of Section 60 of the Sexual Offences Act 32 of 2007
which provides:
"Notwithstanding any
other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence."
[23]
The Court thereafter, dealt with the approach to adopt when dealing
the capacity of observation and the sufficient intelligence
of the
child to give reliable evidence in court. In applying the relevant
test the Court found that the complainant was sufficiently
intelligent to observe and relate to the Court what happened on the
day in question.
Evolution
/analysis
[24]
The key issue in dispute in this matter is not whether the incident
occurred but rather relates to the identity of the perpetrator.
There
are two conflicting versions; that of the appellant and that of the
complaint. The complainant says the person who assaulted
her was the
appellant whilst he on the other hand the appellant disputes that it
was him. In his version the appellant suggested
that the complainant
may have been assaulted by someone. In other words he was a victim of
mistaken identity.
[25]
There Court
was thus faced with having to resolve the conflicting versions, which
it did by correctly adopting the trite principle
of resolving
conflicting versions in trial matters. It did so by determining and
making a credibility finding in as far as this
issue was concerned.
It found the complaint to have been a credible witness and
accordingly accepted her version. The version of
the appellant was
rejected. The record of the proceedings, in my view supports that
finding. This should also be understood within
the trite principle of
our law that the determination of credibility is a matter that lies
in the terrain of the trial court. On
appeal the Court will not
readily interfere with such a finding unless as stated in Mofokeng v
S.
[3]
"...the ambit for
the interference by the appeal court on a finding of fact and
credibility is restricted to few instances.
It is only allowed in
instances where there is a demonstrable and material misdirection by
the trial court where the recorded evidence
shows that the finding is
clearly wrong."
[26]
In my view, having read the record and the judgment of the Court,
there is no basis for interfering with the finding of the
Court.
[27]
In relation to the identity of the appellant, there was no dispute in
as far as the other witnesses were concerned. There was
also more
importantly, for the purpose of this judgment no dispute of fact that
the appellant visited the father of the complainant
on the day of the
incident. His arrival and departure coincide with the period when the
incident is alleged to have happened. These
critical facts are not
denied by the appellant. It is important to also note that until the
incident the appellant had a good relationship
with the family of the
complainant. The appellant also had a good relationship with the
complainant. In this respect the appellant
testified that about two
years before the incident, whenever he visited the family, he would
on those occasions pick up the complainant
and hug her.
[28]
The above analysis in my view destroys the defence of possible
mistaken identity, as suggested by the appellant. The fact that
the
complainant picked up the name of the appellant at the police station
when the incident was being reported by her father to
the police, is
irrelevant for the purpose of the identity of the appellant by her.
[29]
In my view, the above analysis indicates very clearly that appellant
is the perpetrator of the sexual assault on the complainant.
[30]
In addition to the above analysis, the evidence indicate that it is
highly improbable that any of the witnesses fabricated
the story
against the appellant, in order to get him into trouble.
[31]
Another point that needs to be made, in case there is a suggestion
that the complainant consented to what happened to her,
is that
during cross examination she conceded that she agreed when the
appellant requested her to kiss him. This is in my view,
is not
surprising and does not in fact assist the case of the appellant. The
probabilities indicate that the kiss was offered as
an innocent
affectionate feeling towards a fatherly figure, who the child saw as
part of the family by virtue of the relationship
with the father. In
inserting his tongue into the mouth of the innocent child and
touching her inappropriately the appellant did
not only commit a
criminal offence but also breached the trust that the child had in
him.
[32]
In light of the above discussion Ifind no basis for faulting the
finding of the Court in relation to the conviction. Accordingly
the
appellant's appeal stands to fail and therefore the conviction is to
be confirmed.
The
sentence imposed
[33]
The appellant has already served the major part of his sentence. It
was reported during the hearing in this Court, that he
has already
been released on parole. It was agreed during argument by both
counsels that the sentence imposed by the Court should
be set aside
and be replaced with a 3 years sentence, half of which be suspended.
[34]
In other words they agreed that the sentence that should be imposed
is 3 years suspended on condition the appellant does not
commit the
same offence, sexual assault prohibited in terms of the Criminal Law
(Sexual Offences and Related Matters) Amendment
Act. The Court
accepts and agrees with this proposition.
Order
[35]
In the premises the following order is made:
1. The decision of the
Court a
quo
on conviction is upheld, and accordingly the
appeal on conviction is confirmed.
2. The sentence imposed
by the Court a quo is set side and replaced with the order to the
effect that:
i.
The accused is sentenced to 3years imprisonment, half of which is
suspended for a period of 3 years on condition that he does
not
commit any offence contemplated in section 51 read with
Sections 1
,
56
(1) of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
.
ii.
The sentence is
ante
dated to the 8 October 2014.
__________________
Molahlehi
E
Judge
of the Gauteng Division
I
agree
__________________
Fabricius H.J
Judge
of the Gauteng Division
I
agree
__________________
Mphahlele
S.S
Judge
of the Gauteng Division
[1]
Criminal Law Sexual Offences and related matters Amendment Act,32 of
2007
[2]
Section 170A
of the CPA reads as follows: "Evidence through
intermediaries
(1)
Whenever criminal proceedings are pending before any court and it
appears to such court that it would expose any witness under
the
biological or mental age of eighteen years to undue mental stress or
suffering if he or she testifies at such proceedings,
the court may,
subject to subsection (4), appoint a competent person as an
intermediary in order to enable such witness to give
his or her
evidence through that intermediary."
[3]
A170/2013)
[2015] ZAFSHC 13
(5 February 2015).