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[2016] ZAGPPHC 769
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Mnyambo v S (A624/15) [2016] ZAGPPHC 769 (26 August 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
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HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A624/15
DATE:
26 AUGUST 2016
In
the matter between:
FARENCE
NICLAS
MNYAMBO
...........................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Not reportable
Not
of interest to other Judges
SETHOLE,
AJ
INTRODUCTION
1.
The Appellant was
convicted by the Regional Magistrate's Court of Nelspruit for rape of
N T, a minor, “the complainant”.
He was sentenced to life
imprisonment and it was ordered that his name be placed in the
Registrar for Sexual Offenders.
2.
The Appellant had an
automatic right of appeal in terms of section 10 of the Judicial
Matters Amendment Act 42 of 2013. He is appealing
against both
conviction and sentence.
3.
A birth certificate
was handed in as exhibit “A” which reflects that the
complainant was born on the 07
th
January 2001. The rape incident occurred around 2008 meaning the
minor was 7(seven) years old at the time.
4.
The complainant
testified through an intermediary. She testified that the complainant
was staying with her aunt and her sister N…..
at M…..
T…... On a date that she could not remember, her aunt had gone
to work and N…..‘s child got
ill and had to be taken to
a clinic. It was on this day that the minor was taken to her uncle,
the appellant to take care of her.
5.
The appellant went to
buy some liquor and when he came back, gave the minor food to eat.
After eating when appellant took the complainant
to his bedroom,
caused her to lie on his bed, undressed her and had sexual
intercourse with her. He thereafter gave the complainant
R2, 00 and
promised to kill her should she tell anyone.
6.
It was on a different
date when she made the first report to her grandmother that the
appellant took her to his room undressed her
and had sexual
intercourse with her. She had sustained injuries on her bladder and
her vagina. The complainant was thereafter taken
to female forensic
nurse for examination at a later date.
7.
On cross examination
she testified that her sister came back in the afternoon around 16h00
- 17h00 to fetch her from the appellant
and she bled as a result of
the incident. She further testified that it is a police woman by the
name of Patricia (Hlanhlanhla)
who advised her grandmother and mother
to take her to the police station.
8.
The complainant did
not tell anyone immediately after the incident out of fear of being
killed as the appellant had promised to
kill her should she tell
anyone.
9.
The complainant’s
sister, though not biological, Ms N M testified that she left the
complainant with the appellant at about
08h00 in the morning as she
had to take her own child to the clinic on that particular day. She
returned to fetch the complainant
around 17h00.She found the
complainant seated at the door busy crying. Upon being asked, the
complainant said she had severe toothache.
10.
The grandmother of
the complainant, Ms L M, testified that the accused is his son in law
and that on the 25
th
September 2009 she took the complainant to the police station. It was
after the complainant complained of pains on her tummy as
well as her
abdomen and neck. The police officer Hlanhlanhla who is a next door
neighbour, in her presence enquired from the complainant
what her
problem was. The complainant did not report anything at the time, but
Hlanhlanhla advised her grandmother that the complainant
be
investigated either by the police or GRIP. On their way to the police
station, the complainant opened up and related the whole
incident to
her as testified, save to say that this witness’s testimony is
that the minor ate food and went to bed and that
is where the
appellant came and mounted her, undressed her and had sexual
intercourse with the complainant.
11.
It was her testimony
that the appellant closed the complainant’s mouth and threated
to kill her should she tell anyone about
what happened. She noticed
behavioural changes
on the minor in that the minor was “was longer playful, she
would kneel on her knees or sit by her side
for a long period”
P73 of the record.
12.
On cross examination,
she stated that the complainant was threated to be killed by the
appellant and that is the reason why she
did not report the incident
immediately. She further stated that, immediately after the arrest of
the appellant on Friday, his
family members approached the elders of
the complainant and asked for forgiveness.
13.
Hlanhlanhla testified
that she knew the complainant since 2008 because at a certain stage,
the complainant used to sleep with her
as she was scared to sleep
alone. She said around 25
th
September 2009, she interviewed the complainant who did not reveal
anything relating to the alleged crime then. However, her gestures
of
looking down gave rise to a suspicion that something was wrong
whereupon she requested the grandmother to take the complainant
to
GRIP at the police station but before the grandmother and the
complainant reached the police station, the complainant related
the
whole incident to the grandmother because she was afraid to go to the
police station.
14.
On cross examination,
she testified that the complainant’s urine was abnormal in that
it contained some dirt and that confirmed
her suspicion that
something is wrong with the complainant. She did not report the
complainant’s abnormality to anyone because
she wanted the
complainant herself to open up and report what had been done to her.
It is this witness who testified that the complainant
was taking
chronic medication because she was suspected of being HIV positive.
15.
The forensic nurse
who examined the complainant stationed at Themba Hospital was also
called to testify. On the 07
th
October 2009 she examined the complainant and completed the J88 which
was subsequently handed in as exhibit “C” during
the
trial of this matter. She confirmed there are certain portions of the
J88 that she could not complete as the incident happened
some time
ago. Upon relating the incident to her, the complainants emotional
state appeared to be “sad and sobbing when telling
the story”
P 62 of the record. She examined the complainant’s hymen, and
noted that there was something suspicious,
which appeared to be an
interruption which could be caused by penetration or sometimes it
could be an abnormality. The report that
the complainant gave to this
witness was that “she was in grade 2 staying at her aunt’s
place when her male relative
put his penis into her vagina”.
The forensic nurse conclusions were that her findings are consistent
with the history of
previous penetration.
16.
The state closed its
case and an application for discharge of the accused in terms of
section 174
of The
Criminal Procedure Act 51 of 1977
was made and
according to the record, it is not clear what the outcome was. I will
assume that it was turned down as the appellant
took the stand in his
defence.
17.
The appellant
testified in his defence but his defence was just a bare denial. It
is not necessary to repeat his evidence as he
denied everything,
including the visit by the minor ever at his house or any visit by
his family at her house even though they
live 100 metres apart and
they are related. He indicated that he does not have an idea of the
alleged incident. He was arrested
on the 25
th
of September 2009. The police informed him that he was arrested for
raping his sister’s child.
18.
In cross examination
the appellant introduced a defence that he was implicated because the
family of the complainant owes his wife
money and as a result there
was a vendetta between the two families.
19.
J T M testified in
defence of the appellant. She confirmed that the motive of
implicating the appellant is the issue of money owed
to her by the
family of the complainant.
20.
In convicting the
appellant, the trial court made a credibility finding on the
complainant and found that she was logical and did
not contradict
herself besides that she was a child. The trial court found the
complainant to be an honest witness and accepted
the complainant’s
explanation that she did not report the incident because she was
constantly reminded almost on daily basis
by the appellant, that she
will be killed, should she report the incident to anyone. The trial
court accepted the evidence of the
state despite the delay in
reporting the rape. The version of the appellant was rejected as
false and a conviction followed.
21.
The issue to be
decided was whether the trial court misdirected itself in accepting
the explanation of the complainant of delaying
in reporting the rape
incident? And whether the state proved its case beyond reasonable
doubt.
22.
On appeal it was
argued, that the complainant is a single witness and her evidence
should be clear and satisfactory in all material
respects and treated
with caution. It was further argued that there is no conclusive proof
in the form of DNA. See appellant’s
heads of arguments.
23.
I agree with
appellants counsel that the complainant is a single witness and her
evidence should be clear and satisfactory in all
material respects
and treated with caution. I found nothing unbecoming in the
evidence/testimony of the complainant. The trial
court already made a
credibility finding on the complainant’s testimony which could
not be shaken under cross examination.
She was consistent in her own
evidence.
24.
The appellants
defence rely mainly on the fact that there was a delay in the report
of the incident.
25.
The charge sheet
though refers to an incident that occurred in around 2008 and the
charges against the appellant were laid on or
around the 25
th
September 2009. I am of the view that is impossible to expect the
appellant to be linked through DNA in the current matter as it
happened a long time ago. Furthermore the identity of the appellant
to the complainant and her family is not in dispute as they
know each
other well to an extent that during the trial each of the witnesses
tried to explain to the court how they are related,
including the
appellant and his wife.
26.
The appellants
defence rely mainly on the fact that there was a delay in the report
of the incident: I agree with the conviction
by the trial court for
the following reasons:
26.1.
The complainant was
7(seven) years old at the time of the incident and 11 (eleven) years
old at the time she gave evidence. Due
to the complainant’s age
at the time, there might have been contradictions in the state’s
case as a whole but such
are not material contradiction between the
complainant’s testimony and that of her grandmother, the
complainant testified
that she was taken to the appellant’s
bedroom but the version of the grandmother was that after eating, she
went back to
bed and while lying in bed she felt appellants body onto
hers.
26.2.
The complainant’s
testimony is of a single witness regarding the actual rape itself but
was corroborated by the sister who
found the complainant seated
outside the house of the appellant on the date of
the
incident busy crying. And the grandmother who at a later stage ended
up taking the complainant to the police station even though
the
complainant opened up before they could reach the police station.
26.3.
Further by the
testimony of Hlanhlanhla, the neighbour who noticed a change in
behaviour of the complainant and finally by the forensic
nurse who
testified that the complainant reported the rape incident, even
though it was not recent but upon vaginal examination,
her findings
were consistent with penetration. See S v Teixeira
1980 (3) SA 755
(A) at 761 where the court in evaluating the evidence of a single
witness stressed that ’a final evaluation can rarely, if
ever,
be made without considering whether such evidence is consistent with
the probabilities/ The fact that it is corroborated
would also
strengthen its probity, without which it may be rejected if it also
has a litany of intrinsic probabilities, omissions
and
contradictions.
26.4.
There was an
explanation advanced by the complainant regarding
the
reason for the delay in the reporting of the alleged rape. The
complainant was threatened by the
appellant that she will be killed
should
she report the incident to anyone. In terms of section 59 of
the Criminal Law (Sexual Offences
and Related Matters)
Amendment Act 32 of
2007it states:
“
In
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof\
27.
The trial court
accepted the evidence of the state despite the delay in reporting the
alleged rape. The version of the appellant
was rejected as false. For
the rejection of an accused’s
version as not reasonably possibly true Zulman JA, iniSv K2000 (1)
SACR 453 (SCA) at 455A-C
said the following:
’
The
accused's failure to convince the court is a further guarantee of the
veracity ofthe evidence tendered by the State
.'
It
is trite that there is no obligation upon an accused person, where
the State bears the
onus
,
'to convince the court. If his version is reasonably possibly true he
is entitled to his acquittal even though his explanation
is
improbable. A court is not entitled to convict unless it is satisfied
not only that the explanation is improbable but that beyond
any
reasonable doubt it is false. It is permissible to look at the
probabilities of the case to determine whether the accused’s
version is reasonably possibly true but whether one subjectively
believes him is not the test. The test is whether there is a
reasonable possibility that the accused’s evidence may be true.
28.
I find it improbable
(as the magistrate did) that the complainant at her age and her
family, would conspire to fabricate charges
of rape against the
appellant and also fake a previous penetration that was noted by the
nurse and hide the real perpetrator due
to the fact that the family
of the complainant owed money to the family of the appellant.
29.
I am satisfied that
the conviction of the Appellant was in order.
SENTENCE
30.
Whilst it is trite
that the sentencing powers are pre-eminently within the judicial
discretion of the court that tries and convicts
the accused, the
appeal court will interfere where a sentence is based on incorrect
facts or it is shockingly inappropriate or
where there is an
irregularity or misdirection. S v Rabie 1975(4) SA 855 (A) AT857 D-E.
31.
I now turn to
consider the personal circumstances of the appellant placed on the
trial record and arguments advanced on his behalf.
The appellant was
46 years old at the time of the trial, married with four children. He
was employed at Rob Ferreira School, has
a medical condition with his
testicles and his highest level of education is matric. He has no
previous conviction.
32.
Not only has this
court to take into account the personal circumstances of the
appellant, but also the seriousness of the offence
and its effect on
the minor. It is also on record that the child is under chronic
medication as she is suspected as being HIV positive.
It is not clear
as to whether this condition resulted from the same incident or not
but having regard to the age of the minor at
the time of the
incident, this court cannot totally ignore that fact. According to
the psychosocial report handed in at the trial
as exhibit “B”
at paragraph 3.5 that is, impact of the offence on the child. It
states, inter alia:
The
abuse had a negative impact both physically and psychological to the
child\ since the incident occurred the child complains
of headache
and the neck the incident also affected the child’s
socialization process, she could no longer play with other
children
and friends as she usually did though she is trying to adjust. She
has shown social withdrawal as she spent more time
at home than she
used to do before. She is also scared of male persons, should a male
visit her family, she becomes uncomfortable
or she would stay in the
house until that particular person leaves the child school
performance has dropped.
33.
This appeal court is
to exercise its jurisdiction as the appeal court, is in essence
called upon to oversee the fairness of the
proceedings in the court a
quo and to determine whether the ultimate outcome was underpinned by
the dictates of justice or not.
We have to ensure that the personal
circumstances of appellant as stated above have been properly taken
into consideration and
that his profile has been evenly balanced
against the backdrop of the crime committed as well as the interest
of society offended.
The delicate balancing act demands careful and
objective measure of restraint. Great care has to be taken in order
to see to it
that no cornerstone of the triad is overemphasised or
underemphasised at the expense of another-S v Zinn
1969 (2) SA 537
(A).
34.
Sitting as the appeal
court, this court cannot, in the absence of a material misdirection
by the trial court, approach the question
of sentence as if this
court is the trial court and then substitute the original sentence
with a different sentence simply because
this court reckon it is more
preferable than the one imposed by the trial court - S vMalgas
2001
(1) SACR 469
(A) at 478d - e.
3 5. This court’s
judicial power to exercise interference is limited and for sound
reasons. Where the original sentence imposed
by a trial court is in
all circumstances shockingly severe and thus inappropriate, the
appeal court can also interfere with the
sentencing discretion of a
trial court ~S v De Jager
1965 (2) SA 612
(A).
36.
In the premises, and
having considered all the fact regarding sentence, I do not find the
sentence of the trial court to be shockingly
inappropriate or that
there is an irregularity or misdirection.
37.
In the results I
propose the following order:
1. The appeal
against conviction and sentence is dismissed.
E.E
SETHOLE Acting Judge
of the High Court
I
agree and it is so ordered.
N.V
KHUMALO
Judge
of the High Court
Date
of judgment: 26 August 2016
For
the appellant: Adv. L Augustyn (heads filed by Ms. M.M.P Masete)
Instructed
by: Pretoria Justice Centre
For
respondent: Adv. J.J Kotze
Instructed
by: Director of Public Prosecutions