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[2016] ZAGPPHC 1201
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Matshane v S (A740/2015) [2016] ZAGPPHC 1201 (29 November 2016)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Appeal
Case No: A740/2015
Case:
29/11/2016
In
the matter between:
ANDREW
MATSANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
The appellant, a 36 year old man, was convicted on a charge of rape
of a minor (Ms T) who was at the time of the offence between
9 and 12
years old. He was charged for having raped the complainant four
times. He was however only convicted for two of the incidents.
The
appellant was informed at the commencement
of the proceedings a
quo
that
the prosecution would rely on the minimum sentence provisions
of Act 105 of 1997. The appellant had legal representation
during the
hearing and was sentenced at its conclusion to life imprisonment and
declared unfit to possess a firearm in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
. The appellant appeals in terms of
section 1O of the Judicial Matters Amendment Act 42 of 2013 against
his conviction and sentence.
[2]
The appellant pleaded not guilty to the charge and explained his plea
by stating that Ms T is the [....] of the appellant's
[....] deceased
[....] and that he knows Ms T. Ms T stayed with the appellant but
denied that he ever raped her. Ms T testified
via closed circuit
television in terms of
section 170A
of the
Criminal Procedure Act of
1977
with the help of an intermediary. The first State witness was Ms
M. who worked for a community project in Atteridgeville. She knew
Ms
T as a child who does not have parents. At a function of the
community on or about 15 March 2011 which was a Saturday, attended
by
Ms T with other children, Ms T waved at Ms M. and other staff members
and told them that she (Ms T) would see them the following
day (the
Sunday). The next day and at conclusion of the function there was a
church sermon and after that there was a lunch for
those who
attended. After Ms T had lunch she entered the kitchen and said that
she has a problem. On further enquiries Ms T said
she wanted to
explain her problem to female persons. She said that she was having a
problem at home with the husband of her [....]
and that the husband
of her [....] is abusing her and has had sexual intercourse with her.
She also stated that it started long
ago and that the accused used to
take her during the night to have sexual intercourse with her. Ms T
was, according to Ms M., crying
while narrating the events. Ms T told
Ms M. further that the last incident took place the previous
Saturday, which was 5 March
2011.
[3]
The prosecution then called Dr Mojabelo. Ms T was brought to Dr
Mojabelo on 18 March 2011 when she interviewed and examined
Ms T and,
while doing so, completed the medical Form J88. Dr Mojabelo stated
that she assessed the mental status of Ms T and found
her to be
withdrawn. Dr Mojabelo did so after having been informed that Ms T
had since March 2009 until 5 March 2011 (13 days earlier)
been
sexually assaulted by a male person known to her. Dr Mojabelo found
no evidence of external injuries and proceeded with a
gynaecological
examination. The doctor found that Ms T had not yet started
menstruation and had never been pregnant and was not
using any
contraceptive at the time and said she has never had consensual
intercourse since or before. The doctor found Ms T's
hymen to be torn
and that she displayed an odorous vaginal discharge. Dr Mojabelo
found that possible penetration beyond the vulva
and vagina had
occurred. Dr Mojabelo handed in the Form J88 and confirmed the
correctness of her notes thereon during evidence.
The
cross-examination of Dr Mojabelo was very brief after which the
Magistrate put a number of questions to Dr Mojabelo. Dr Mojabelo
described the vaginal discharges she observed as yellowish to
greenish, consistent with the presence of a sexually transmitted
infection. The Magistrate then asked Dr Mojabelo as follows:
"If
the child had been penetrated
in the about
a
week
prior
to the examination
which she had,
would that be, would your findings be consistent with that, that
there were no remaining
fresh injuries?
-
Within
a
week
we definitely
see
some
injuries,
we age them you
know
as
I
assess them.
Right.
[Indistinct]
Well after, it is well after the day which
she told somebody
else
that
she
has
been
penetrated,
so
that
would
be [indistinct]. It was
a
couple of weeks before [indistinct] penetration, fresh tears from
[indistinct]
-
Within the week period
we
are likely to
get the fresh
injuries.
Right
and
if
it
is
after
a
week,
more
than
a
week?
-
If
it
is
more than
a
week
depending
and
if
it
had
been
done
repeatedly,
you
know healing does not take slow in the, on the genitals.
Yes
-
you know like repeated exposure, there will be those
injuries initial and depending
how it is done and with
time
they heal completely.
It is
difficult you know to pick them up, more especially it is almost two
years later that this has been going on.
From
the evidence that we have [indistinct] the child made
a
report
to
somebody on the 5
th
or the
6
th
of March.
She
said
she [indistinct]
last,
the
last
occasion
was
a
week
the
Sunday [indistinct]
would have
been
about
the 26
th
of February
and
then you examined the child on the 18
th
of March.
-
Yes.
So
would it be surprising
then that there were no
remaining,
well I suppose
it
is
not
surprising, any
injuries
would
have
healed
by
then?
-
Yah, just to
add
to
that. A
hymen
is
like
a
membrane structure,
you
know it
can be
torn even
when the child is
riding
a
bicycle,
but
when
you
examine
that
kind
of
a
child
you
know
you would still get the remains,
you
can
visualise it
so
clearly
but
with repeated penetration
beyond the vulva
vagina,
you know that membrane
was
already
gone
and it
was not
an
easy
examination as I was
[indistinct] examining the
[indistinct].
Right
s
o
just
so that I understand
that
part doctor, how much of the
hymen
was
still
there,
or
was the
whole
hymen
[indistinct]?
-
It is what we call [indistinct] you know it is small, small flaps.
Right.
Tiny
little
[intervenes]
-
that
indicated,
usually
we
do
not
see
this in young
children you know.
We see it in women who have
been
repeatedly
exposed
to
sexual
intercourse
and
even
after
child
birth.
Right
so, so
the lack
of,
the
state of the hymen
or the lack
thereof as
I
understand
he
was
consistent
with
repeated,
possible repeated
penetration?
-
Penetration.
Thank
you I understand [indistinct] perhaps more clarity now."
[4]
The prosecution then called Ms T, the complainant, who gave evidence
in
camera.
The Magistrate questioned Ms T to
determine her competence as a witness and she testified that she
knows the appellant as her [....],
[....]. Ms T stated that the
appellant raped her four times. She could not remember the date on
which the first rape took place.
She was asked which year it was but
stated that it happened in March. Ms T could not remember the year it
occurred. She could remember,
however, that she was 9 years old and
that she was in Grade 5 at the time.
Ms
T's recollection of the last rape which she said took place on 5
March 2011 was more vivid. On the 5th of March her [....] went
to
M.’s place. Ms T played at the neighbours with her friend V..
The appellant called her around 5pm while she was still
at V.'s to
send her to M.’s. When she got home the appellant took her into
the bedroom of his house. She was wearing a dress
and a panty. The
appellant undressed her and himself and climbed on top of her and
raped her. After the appellant raped her, he
told her to get dressed
and to leave and not tell anyone. The appellant's [....] (Ms T's
[....]) later returned. Ms T said nothing
about the rape to her
[....]. On the question why she did not tell her [....] she said:
"Because he said to me if I tell anyone
the
police
are going
to arrest him and are
also going
to arrest me to."
[5]
Ms T's first report about the rape on 5 March took place according to
her evidence the next day when she reported it to Ms M..
This part of
Ms T's evidence contains a contradiction. Ms M. said that Ms T made a
report to her on Saturday 15 March while Ms
T said it was the day
after the last rape (6 March). According to the Form J88
and the evidence of Dr Mojabelo she
examined Ms T during the early
evening of 18 March. I will return to this aspect and the first
report of the rape presently. Some
days later Ms M. came to Ms T's
[....]'s house. Present was her [....] and a friend of her [....],
L.. Ms M. then spoke to L. and
after that Ms T was taken to the
clinic by L.. At the clinic Ms T was examined and, according to her
evidence, found to have been
raped. After that L. and Ms T
returned to Ms M. whom they informed of the doctor's finding that Ms
T had been raped whereupon
they called Ms T's [....]. Thereafter Ms
T, her [....] and L. went to the police station. From the police
station Ms T, her [....]
and L. went to the [....]'s house. The
police then arrested the appellant at home.
[6]
During cross-examination Ms T said that during the first rape, she
slept with three other children of her [....] (her cousins)
in a
room. The appellant and Ms T's [....] had an argument after which the
appellant chased her [....] out of the house. The appellant,
according to Ms T then came and took her from the bed. Her cousins,
(age between 9 and 12) were with Ms T in the room when the
appellant
took her and muffled her with his hand. The cousins did not wake up.
It was late in the evening. The appellant then according
to Ms T
raped her. The distance between the room where she was raped and
where she was taken from is not far - there is a dining
room between
the two rooms. Ms T made a noise she said when the appellant raped
her and the noise was audible. After that rape
Ms T went back after
she dressed herself and slept. The next morning Ms T woke up and saw
that
[7]
I now return to the first report of the rape and the examination of
Ms
T on 18
March.
Our Courts
recognise
that
reluctance on
the part of
rape
survivors,
or some
of them,
to
report the
rape at the
first
opportunity
is a firmly
recognised fact.
I
t
is
also
generally accepted that with young children the reluctance is
compounded.
In the
present case Ms T testified that she
was told
by the
appellant
to keep
quiet about the
incident.
Ms T's fear
to expose the
i
ncident
was,
so
I infer,
compounded
by her
belief (justified or unjustified)
that her
[....]
would not
believe her
if
she
reported
the rape
to her
[....]. An
i
mportant
feature of the first report of the
rape to Ms
M. was
that
i
t
was
not
induced and was
done
by Ms T
spontaneously.
I
am further
of the view that the
l
ack
of date and detail about the earlier rapes is understandable
i
n
a
complaint
of
a
young
child
such
as
Ms
T.
I
t
was
submitted
on
behalf
of
the
appellant
that
the
l
ack
of
particularity
in
that
context should have compelled the Trial Court to find that the
prosecution failed to prove
the crime
of rape beyond a reasonable doubt.
I
do not
agree.
Section
84(1)
of
the
Criminal
Procedure
Act
51
of
1977
provides
that
a
charge must
set forth the relevant offence in such a manner and with such
particulars
as to the time and place at which the offence is alleged to have
been
committed
as may be
reasonably
required to
enable the accused to
plead.
I
n
an offence
such as the
present
where
the
exact time when
the offence
occurred is not a material element of the offence, failure to specify
the
time
does
not
render
the
charge
defective.
In the
present
case
the
appellant
knew in no
uncertain terms what the case he had to respond to was.
In Du Toit
et al
[1]
the learned authors say:
''An
accused
who
wishes to
raise
an
alibi
will
not
necessarily
be
prejudiced
by
the
fact
that
the
charge only mentions
a
period
during which an offence was allegedly committed, nor by the State's
inability to provide further particulars in respect of
the dates. If
such uncertainty
will
in fact hamper
him
in his defence,
he
may
reserve
his
cross-examination of State witnesses until after completion of the
State case and
then
apply
for
an adjournment
to
prepare
...".
[2]
In
casu
the
appellant's defence
was
a
denial
of
any
involvement
in
the
rape
of
Ms
T.
[8]
He was, as the Trial Court observed, an unsatisfactory witness. His
explanations were unconvincing and, so the Magistrate found,
patently
false and rejected it as such, while on the other hand, Ms T was
found to be a reliable witness and that it was
"impossible
that she came across so well as
a
witness"
if she was
lying. The Trial Court thus accepted the version of the prosecution
above that of the appellant on grounds of credibility.
The appellant
challenged the Magistrate's credibility findings before us. The
challenge is two-pronged. First, it was submitted
that the evidence
of Ms T was accepted without subjecting her testimony to the required
measure of scrutiny and, secondly, that
the Magistrate subjected the
appellant to questioning which amounted to cross-examination on the
appellant's affidavit presented
during bail proceedings without first
establishing whether the appellant's rights have been explained to
him in that context.
[9]
A
credibility
finding
by
a
trial
court
can
never
be
entirely
discounted
on
appeal.
It is,
however, the result of a subjective assessment.
I
ts
force in any given case depends, as Heher JA stated in
Gardener
[3]
,
upon
the strength and cogency
of
the
objective
probabilities
opposed
to
it.
The
more
such
probabilities
accumulate
the
less
persuasive
it
becomes.
Demeanour
and
apparent
candour are
tricky
yardsticks
and not
less
so
when a
witness
testifies
through
close
circuit
television
and
with
the
assistance
of
an
intermediary,
as was the situation in
the present
case.
[10]
During the
evaluation
of
evidence
a
Court
should
remain
mindful
of
its
obligation
to
exercise
caution
in
appropriate
cases.
I
n
S
v J
[4]
the
Supreme
Court
of
Appeal,
when
ruling that
there
is
no
room for
a general
cautionary
rule in
our
law, accepted with reference to
Easton
[5]
that a Court should, before
acting upon
the
unsupported
evidence of a witness,
exercise
caution.
In
my view
no
objective
probabilities
appear
from
the
record to
justify
rejection
of Ms
T's
evidence on grounds of credibility.
[11]
The
Magistrate rejected the appellant's
denial of
involvement in the rape
as not
being reasonably
possibly
true.
In
Van
Aswegen
[6]
the Supreme
Court
of Appeal
approved the statement of the law in
Van
der
Meyden
[7]
to wit:
"It
is
difficult
to
see
how
a
defence
can possibly
be
true
if
at
the same
time
the
State's
case
with
which
it
is
irreconcilable
is
'completely
acceptable
and
unshaken'.
The passage
seems
to suggest
that evidence
is
to be separated
into compartments,
and
the 'defence case' examined in isolation,
to determine
whether it is so internally contradictory or improbable
as
to
be beyond the realm of reasonable possibility,
failing
which the accused is entitled to be acquitted. If that is what was
meant, it is not correct.
A
Court does
not
base
its
conclusion
whether
it
be
to
convict
or
acquit
on
only part of
the
evidence.
The
conclusion,
which
it
arrives
at
must account for all
the
evidence.
I
am
not
sure
that
elaboration
upon
a
well-established
test
is
necessarily
helpful.
On
the contrary,
it
might at time contribute to confusion by diverting the focus of the
test.
The
proper
test
is that an accused is bound to be convicted if the evidence
establishes his guilt
beyond
reasonable
doubt,
and
the
logical corollary
is
that he must
be
acquitted
if
it
is
reasonably
possible that
he
might
be
innocent.
The
process
of
reasoning
which
is
appropriate
to
the
application
of
the
test
in
any
particular
case
will
depend
on
the
nature
of
the
evidence
which
the
Court
has
before
it.
What
must be borne in mind however
is
that
the conclusion
which
is reached (whether to convict or to acquit, must account for all the
evidence).
Some
of the
evidence might be found to be false;
some
of it might
be
found to be unreliable;
and
some of it might be found to be only possibly false or unreliable;
but none of it
may
simply be ignored.
”
[8]
[12]
Before rejecting an accused version on the probabilities a Court must
be able to find,
as a matter
of probability, that the accused version
is simply
not reasonably possibly true.
I
n
Shackell
[9]
i
t
was held
that
the
mentioned
requirement
should
be
applied
in
the
following
terms:
"Although
I am not persuaded that every one of these suggested inherent
improbabilities can rightfully be described as such
I do not find it
necessary to dwell on each of them in any detail. There is a more
fundamental reason why I do not agree with the
line of reasoning by
the Court a quo. It is a trite principle that in criminal
proceedings the prosecution
must
prove its case beyond
reasonable doubt and that a mere preponderance
of probabilities is
not enough. Equally trite is the observation that, in view of the
standard of proof in a criminal case, a Court
does not have to be
convinced that every detail of an accused version is true. If the
accused version is reasonably possibly true
in substance the Court
must decide the matter on the acceptance of that version. Of course
it is permissible to test the accused
version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable; it can only be rejected
on the basis of inherent
probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true.
On my reading of the judgment of
the Court a quo its reasoning lacks this final and crucial step. On
this final enquiry I consider
the answer to be that, notwithstanding
certain improbabilities in the appellant's version, the reasonable
possibility
remains that the substance thereof may be true. This conclusion is
strengthened by the absence of any apparent reason
why the appellant
would, without any motive, decide to brutally murder the deceased by
shooting him in the mouth at point blank
range. As a
consequence the matter must be decided on the appellant's version."
[13]
The evidence that was Ms T penetrated, suffered from a sexually
transmitted disease after the incident, was not sexually matured
and
only 13 years of age at the time of the last incident have been
proved beyond any doubt. That she reported the rape spontaneously
and
without being induced to do so is clear from the evidence. That she
only complained of the rape to Ms M. at the church is explained
by
her as the result of the appellant's threats that she should remain
quiet about the rape. This explanation is plausible. A further
aspect
that is of relevance is the unchallenged evidence of Ms T that she
thought her [....] would not have believed her allegations
of rape.
That evidence explains why Ms T did not confide in her [....] about
any of her rapes and why her [....] was not called
to give evidence
and that her [....]'s friend L. assisted Ms T in processing her
complaint against the appellant. The criticism
levelled on behalf of
the appellant against the trial court's acceptance of the evidence of
Ms T fades away when measured against
her evidence and the wider
factual matrix.
[14]
I accept for purposes of the appeal that the appellant is an
uneducated person and less articulated than his much younger accuser.
What remains absent from the appellant's evidence is a plausible
explanation as to his whereabouts during the events of the night
of 5
March 2011 when the fourth alleged rape took place. During his
evidence in chief he tendered no explanation. He failed to
do so
while he faced clear and direct testimony of his accuser that he
raped her on 5 March 2011. That the appellant was unable
to recall
his exact whereabouts during the rapes prior to 5 March is
understandable, but his evidence in that context is less than
satisfactory. Ms T's evidence in that respect is not detailed and the
probative value thereof uncertain. But her evidence about
the rape of
5 March is clear, detailed and one would have expected the appellant
to have supplied detailed evidence to rebut his
accuser's testimony.
His explanation and evidence in that context is wholly unacceptable
and was rightly rejected by the trial
court, when measured against
the inherent probabilities and the principles explained in
Van
Aswegen.
[15]
In view of the absence of credible evidence by the appellant the
probabilities accumulated against him to such an extent that
his
denial of involvement in the rape should be dismissed. In my view the
appellant's conviction on the charge of rape cannot be
faulted.
[16]
A
court
of
appeal
will
only
i
nterfere
with
the
i
mposed
minimum
sentence of
the trial court
i
f
i
t
can be
found that
substantial
and compelling circumstances
exist
to do so.
The purpose
of
the
dispensation
imposing
minimum
sentences
has been
described in
S
v
Malgas
[10]
as a
measure
aimed at
dealing
with
an
"alarming
burgeoning
in
the
commission
of
crimes
of
the
kind
specified
resulting
in
the
government,
the
police,
prosecutors
and
the
courts
constantly
being
exhorted
to
use their
best
ef
f
orts
to stem
the
tide
of
criminality which threatened and continues to threaten to engulf
society".
[11]
I
n
my
view
the
appellant's
crime
falls
squarely
within
the
category
our
law
seeks
to
eradicate from society.
[
1
7]
The
trial
court
recorded
the
personal
details
of
the
appellant
in
i
ts
judgment. No
evidence in
that regard
appears
from
the record
or
the
exhibits
forming
part
thereof.
I
t
appears
that
the
trial
court
listed
the
personal
circumstances
of
the
appellant
but
that
the
relevant
part
of
the
record
was
not
transcr
i
bed.
The
particular aspect was raised
with
counsel
for the
appellant.
Application
was
not made
to present
evidence
in
that
context or to supplement the record. In
Malgas
[12]
it
was
pointed
out
that
all
factors
traditionally
taken
i
nto
account
i
n
sentencing
continue to
play a role. The u
l
timate
i
mpact
of
all
the
circumstances
relevant
to
sentencing
must
be measured
against
the
"composite
yardstick"
(substantial
and
compelling)
and must be
such as
cumulatively justify
a departure
from the sentence prescribed
by
law.
The
appellant's
personal
circumstances
which
were
recorded
in
the
trial
court's
judgment do
not
constitute
substantial
and
compelling
circumstances. The actions of the appellant (his denial and the
absence of
conduct that displays remorse or any other form of contrition) do
not
assist
in
the
present
matter.
No
evidence
was
tendered of
what
motivated
the
appellant
to
commit
this
wicked
deed
and
in
view
of
the
seriousness
of the offence that he raped an orphan child who
i
s
under the care of
her
maternal
[....]
shows,
in my view,
that the
ultimate
penalty
is
imperatively called for. It
was
submitted on behalf of the appellant that the trial court misdirected
itself by not taking
i
nto
account that
Ms T
sustained no physical
i
njuries
and
that
the
appellant
could,
as first
offender,
be
a
sound
prospect for rehabilitation. The submissions
cannot be
accepted.
S
53
of Act
1
05
of
1997
expressly exclude the absence
of physical
injuries of a victim as a reason for deviation from the minimum
sentence regime. The appellant has
not shown
any
remorse for
his wicked
deed.
He denied
having had any
part
in
i
t.
He has
not
convinced
the trial
court
or this
court that
his
prospects
for
rehabilitation
are
good.
[18]
The appellant was in the position of a close male relative of Ms T.
Our courts are under a duty to punish the despicable behaviour
that
fathers and those in parental authority turn their backs on what is
their natural duty to ensure the safety of their [....]s,
and
themselves pose a danger towards their own vulnerable children and
children they are expected to care for. Dealing with a similar
incident in
S
v
Abrahams,
Cameron
JA stated the following:
"Of
all grievous
violations
of the family bond the case manifests, this
is
the
most
complex,
since
a
parent,
including
a
father,
is
indeed in
a
position
of
authority and command over
a
[....].
But it is
a
position
to be exercised with reverence, in
a
[....]'s
best interest, and for
her
flowering as
a
human
being.
For
a
father
to
abuse
that
position
to
obtain
forced
sexual
access
to
his
[....]'s
body
constitutes
a
deflowering
in
the
most
grievous
and
brutal
sense.
...
rape
within
the
family
has
its
own
peculiarly
reprehensible
features,
none
of
which
subordinate
it
in
the
scale
of
abhorrence
of
other crimes
.
"
[13]
[19]
The appellant has been in custody from his arrest on 19 March 2011.
Counsel for the appellant proposed that his sentence should
have been
antedated to that date. I agree
[20]
Under the circumstances the appeal against the conviction and
sentence must fail subject to the amendment to the commencement
date
of the imposed sentence and the following order is made:
[20.1]
The appellant's appeal against his conviction and sentence is
dismissed.
[20.2]
The appellant's conviction on the charge of rape is confirmed and so
is the sentence of life imprisonment imposed on him
for that
conviction. The sentence of life imprisonment is antedated to 19
October 2011.
_____________________
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered
_____________________
J
W LOUW
JUDGE
OF THE HIGH COURT
PRETORIA
Date
29 November 2016
MATSANE,
ANDREW V STATE- JUDGMENT
[1]
Commentary
on the
Criminal Procedure Act
at
p 14-37.
[2]
See also
V.
Samuel
Vilakazi
v
The
State
Case
No
636/2015
[2015]
ZASCA
103
(15
June
2016)
at[21].
[3]
S
v
Gardener
&
Another
2011
(4)
SA 79
(SCA) at [51].
[4]
1
998
(2) SA 984 (SCA).
[5]
R v
Makanjuolo, R v Easton
[1995]
3 All England Reports 730 (CA).
[6]
S
v Van
Aswegan
2001
(2) SACR (SCA).
[7]
S
v Van
der Meyden
1999
(2) SA 79 (W).
[8]
S
v
Mbuli
2003
(1) SACR 97
(SCA); S
v
Hadebe
&
Others
1998
(1) SACR 422 (SCA).
[9]
S v Shackell 2001 (2) SACR (SCA)
[10]
2001 (1) SACR 469
(SCA) par [7].
[11]
See also S
v
Matyityi
2011
(1) SACR 40
SCA at par (23];
Mthethelwa
Dube v The
State
Case No
89/16 (2016] ZASCA 123 (22 September 2016) at [4].
[12]
Supra.
[13]
See also
Mthethelwa
Dube
v
The
State
Case
No
89/16 (2016] ZASCA
123
(22 September 2016) at [17].