About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 52
|
|
Mtyala v S (A183/14) [2015] ZAGPPHC 52 (30 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER A183/14
DATE:
30 JANUARY 2015
REPORTABLE
In the matter
between:
PATRIC
RASTA
MTYALA
.................................................................
Appellant
AND
THE
STATE
.......................................................................................
Respondent
JUDGMENT
MUDAU AJ
[1] The appellant
Mr. Patrick Rasta Mtyala was convicted by the regional court,
Pretoria North, of two counts of rape involving
two young girls aged
six and nine years at the time of the incidents. Consequently, he was
sentenced to 2 life terms of imprisonment
in terms of the provisions
of s 51(1) read with Part 1 of Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
. He appeals against both his conviction and
sentence with the leave of this court (Fabricius J and De Klerk AJ).
The issue in this
appeal is whether the State has proved the crime of
rape and if so, whether the trial court exercised its sentencing
discretion
properly.
[2] The facts
underlying the conviction are briefly as follows. The appellant stays
in the same neighbourhood as the two young children
referred to as KM
and TM in this judgment in order to protect their identity. The
evidence by TM through an intermediary is essentially
that she and
her companion KM were, on the day of the incident, collecting tins at
a dumping site next to the appellant’s
residence. This was in
broad daylight. It was there that they met “Rasta” (the
appellant) who she knew by sight. The
appellant called them over and
took them to a goat kraal. It was there that he undressed her (TM),
covered her mouth with cello
tape after which he put his penis inside
her vagina. When he did so, he had made her lie on her back after
which he came on top
of her. Her legs were tied to a pole. Not only
was she raped as per her vagina but that the appellant inserted his
penis inside
her anus.
[3] Whilst being
violated KM was tied up and also had her mouth covered with cello
tape. Once he was done with her (TM) the appellant
did the same with
KM. Thereafter he gave them peaches and instructed them to leave but
not tell anyone. They went to KM’s
home after the rape. The
reported the rape incidents to her (KM’s) parents the same day.
She (TM )was present when the appellant
was arrested. They were also
taken to the hospital for examination. Before the trial magistrate,
she identified the appellant as
the rapist.
[4] KM also
testified through an intermediary and essentially confirmed TM’s
evidence. It is her evidence that she was on
a bench and the
appellant (Rasta) had tied her feet. However she did not witness
appellant put his penis inside her companion’s
vagina as he had
taken her to the back of the kraal. When he was busy raping her TM
was tied up at that stage and was on the bench.
[5] The evidence of
Mrs. MM, KM’s mother, is to the effect that the report by the
two young children was made to her and her
husband on 2 January 2010.
At that time she was busy in the kitchen when she overheard the two
children who were playing outside
under the tree, relating the rape
incidents to each other. She immediately brought this to the
attention of her husband VM. She
and her husband went outside where
the children were. Her husband enquired from them what they had been
talking about. The two
started crying but without being coerced
reported the rape incidents by the appellant who they referred to by
his name, Rasta.
They also explained where the incidence occurred.
TM’s mother was contacted and in her presence the children
repeated the
rape allegations. Thereafter the children took them to
the appellant’s residence where they pointed him out.
[6]
Upon being confronted by the allegations of rape, the appellant
admitted the incident and apologized for his conduct. During
cross-examination she denied that the appellant was assaulted first.
It is Mrs. MM’s evidence that members of the community
only
assaulted him after he admitted to the incident. Mr. VM also
testified and confirmed his wife’s testimony. According
to Mr.
VM, members of the police community forum were called to the scene.
When the appellant was asked why he could do such a
thing he
responded and said
“I
did not do it but
only put it in a little”.
[7] Mrs. JM, TM’s
mother, also testified and confirmed that the appellant is a
neighbour. It is her evidence that the appellant
was not a member of
the Community Police Forum (“CPF). She disputed that there were
any stolen copper cables that the appellant
found at her premises.
[8]
Dr Zikalala conducted a physical examination which was followed by a
genital and anal test on both children but found no evidence
of
physical injuries. It is his evidence that his findings did not
exclude other forms of sexual assault on the children. He explained
that
“
the
reason being, in a female child, because of the estrogen, it makes
the genital area more soft and more elastic. So, they might
be a
chance there might be no injuries because of that.”
[9] Warrant Officer
Sedibe is attached to the Forensic Science and Biology Laboratory
section of the SAPS. It is his evidence that
he had in the course of
his duties received the relevant pediatric sexual assault kits
regarding this matter. He, after breaking
the seals evaluated and
tested the contents which were: intra-vaginal, the rectal and
vestibule swabs, amongst others. The rectal
swabs tested positive for
semen which was sent for further DNA analysis which is found in the
sperm cells. However, for some men
who undergo vasectomy or are
naturally Azoospermia (misspelt on record as astammic is medically
defined as the complete lack of
sperm in the ejaculate), they do not
have sperm cells. In this instance the DNA results were inconclusive.
[10] The appellant
testified in his defence and denied the allegations of rape. It is
his evidence that had he raped the minor children,
they would have
sustained serious injuries. Although they were neighbours, he only
saw the children after 3 PM on 2 January 2010
when they pointed him
out as the rapist. Earlier that day he had visited friends that
included Thandi, with whom he spent about
three hours. He returned
home shortly before 3 PM. He attributes the false allegations of rape
to the fact that as a member of
the CPF he had found stolen copper
cables at the premises of TM’s mother, Mrs. JM.
[11] The cables had
been stolen by her son. This happened approximately a month before
the alleged incidents of rape. However, he
conceded that he never had
problems with the two minor children. During cross-examination he
also conceded that the version to
the effect that the cables were
stolen by Mrs. JM’s son was never put her. It is his version
that this was unnecessary as
the cables were found in her presence.
Furthermore, that the adult state witnesses also participated in his
assault.
[12] It is with this
evidence that the trial court convicted the appellant as charged. In
rejecting the appellant’s evidence
as improbable and not
reasonably possibly true, the trial magistrate found that the
evidence by the two minor children materially
corroborated each
other. It is trite that the evidence of children must be treated with
circumspection. The children were single
witnesses in respect of the
rape incidents themselves. In addition, the learned magistrate
dismissed the appellant’s version
that these are trumped up
charges at the instance of TM’s mother since the first report
was made to someone else. In his
approach, the magistrate, to his
credit took into account the totality of the evidence.
[13]
The thrust of the appellant’s attack against the conviction
before this court concerned the question whether the State
had proved
beyond reasonable doubt that there had been penetration to constitute
the offences of rape. In this regard, the appellant’s
counsel
relied heavily on Dr Zikalala’s inconclusive findings. However,
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
provides that
"any
person (“A”) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (“B”),
without the consent of “B”
,
is guilty of the offence of rape”.
In
addition
“
sexual
penetration” is
defined
as “
any
act which causes penetration to any extent whatsoever by - (a) the
genetical organs of one person into or beyond the genetical
organs,
anus, or mouth of another person”.
Therefore the fact
that there were no visible injuries in the private organs of the two
minor children on its own, does not help
the appellant’s course
as any penetration no matter how slight constitute sexual
penetration, and therefore rape. The expanded
definition in terms of
s3
is applicable to all forms of sexual penetration without consent.
[14]
It is common cause in this matter that identity is not in dispute.
The appellant and the children are neighbours. The cautionary
rule
requires that the court having warned itself of the danger inherent
in the acceptance of such evidence, must look for some
safeguards
like corroboration in order to reduce the risk of wrong conviction
(See also
R v Manda
1951 (3)
SA
158
(A).
[15]
The alibi raised by the accused must be considered in the context of
the totality of the facts of this matter. In S
v
Liebenberg
2005 (2) SACR 355
(SCA)
para
15 the Supreme Court of Appeal held:
“
Where
a defence of an alibi has been raised and the trial court accepts the
evidence in support thereof as being possibly true,
it follows that
the trial court should find that there is a reasonable possibility
that the prosecution’s evidence is mistaken
or false. There
cannot be a reasonable possibility that the two versions are both
correct. This is consistent with the approach
to alibi evidence laid
down by this Court more than 50 years ago in R v Biya
1952 (4) SA 514
(A). At 521C-D Greenberg JA said:
‘
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime’.’
(See
also S
v Van Aswagen
2001 (2) SACR 97
(SCA)
para
8; S
v Trainor
2003 (1) SACR 35
(SCA)
para
[8]—[9]; S v
Crossberg
[2008] ZASCA 13
;
[2008] 3 ALL SA 329
(SCA)
para
[121]).
[16]
In S
v Mathebula
2010 (1) SACR 55
(SCA)
at
para 11 the court cautioned that:
“
[T]he
vulnerability of unsupported alibi defences is notorious, depending,
as it does, so much upon the court’s assessment
of the truth of
the accused’s testimony”.
[17] In this case
the appellant’s alibi defence is inherently contradicted by his
version that he had seen the children playing
which would have been
before he was confronted about the allegations of rape at about 3 PM.
Neither was his version supported by
any independent witness or
persons whom he claims he was with.
[18] The trial
court’s findings that the children and their parents were
honest, credible and trustworthy witnesses are in
my view
unassailable. There was in my view sufficient corroboration for each
child’s testimony by the other in material respects.
I do not
think it is necessary to analyse the evidence on record any
further.The conviction of the appellant for both charges is
correct.
[19] It remains to
deal with the appeal on sentence. In a carefully reasoned and
detailed judgment the court below had regard to
the fact that the
appellant had shown no remorse. The court had regard to his personal
circumstances which are as follows. The
appellant was born in the
Eastern Cape. His parents are deceased. The appellant was
approximately 49 years of age at the time of
sentencing. He had
minimal education as he is a grade 2 drop -out. He had no formal
employment but survived on odd jobs. He is
a member of the United
Apostolic Church in Zion, where he is, according to him, a pastor.
Although he is a father of two, he is
not married. He is a first
offender.
[20] The victim
impact report was in this matter was disclosed in court. According to
the said report, the rape incident had affected
KM emotionally. Since
the incident, she wets herself. She would scream at night and when
woken up by her mother she would indicate
that she was dreaming about
the accused trying to kill her. She is afraid to play with other
children as they tease her about the
rape incident. TM was not
affected differently. She too has been emotionally and academically
affected by the incident of rape.
Her school performance has since
deteriorated. In a well-motivated judgment the trial court found no
substantial and compelling
circumstances to deviate from the
prescribed minimum sentence of life imprisonment for the rape of each
child.
[21]
In S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
at
344 l-J, it was said:
"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".
Despite
the introduction of the minimum sentence regime, there is no sign
that these kinds of incidents are on the decline. In S
v
Jansen
1999 (2) SACR 368
(C)
at
378G-379B, the learned judge aptly put it as follows:
"Rape of a
child is an appalling and perverse abuse of male power. It strikes a
blow at a very core of our claim to be a civilized
society...'
"The
community is entitled to demand that those who perform such perverse
acts of terror be adequately punished, and that the
punishment
reflect the societal censure It is utterly terrifying that we live in
a society where children cannot play in the streets
in any safety;
where children are unable to grow up in the kind of climate which
they should be able to demand in any decent society,
namely in
freedom and without fear. In short, our children must be able to
develop their lives in an atmosphere which behoves any
society which
aspires to be an open and democratic one based on freedom, dignity
and equality, the very touchstones of our Constitution.
The community
is entitled to demand of the police that they bring those who subvert
these minimum aspirations before the courts
and that the courts, in
punishing such persons, should ensure that the sentence adequately
reflect the censure which society should
and does demand, as well as
the retribution which it is entitled to extract".
[22]
I n
Mudau v S
2013 (2) SACR 292
(SCA)
at
para 19 it was said:
“
Life
imprisonment is the most severe sentence which a court can impose. It
endures for the length of the natural life of the offender,
although
release is nonetheless provided for in the
Correctional Services Act
111 of 1998
. Whether it is an appropriate sentence, particularly in
respect of its proportionality to the particular circumstances of a
case,
requires careful consideration. A minimum sentence prescribed
by law which, in the circumstances of a particular case, would be
unjustly disproportionate to the offence, the offender and the
interests of society, would justify the imposition of a lesser
sentence than the one prescribed by law".
[23]
It is trite that even in the context of minimum sentencing
legislation; each case has to be assessed on the basis of its own
peculiar facts and circumstances. To this extent what the Supreme
Court Appeal stated in S
v Vilakazi
2012 (6) SA
353
(SCA)
is
also apposite:
“
[15]
It is clear from the terms in which the (determinative) test
was
framed in Malgas
and endorsed in Dodo that it is incumbent upon a court in every case,
before it imposes a prescribed sentence,
to assess, upon
a
consideration of
all the circumstances of the particular case, whether the prescribed
sentence is indeed proportionate to the particular
offence”.
[24]
The SCA also held in
S
v Abrahams
2002 (1) SACR 116
(SCA)
para
29 that: ...“...some
rapes
are worse than others, and the life sentence ordained by the
Legislature should be reserved for cases devoid of substantial
factors compelling the conclusion that such a sentence is
inappropriate and unjust.
It
is trite that courts should not deviate from a prescribed minimum
sentence for flimsy reasons (See
S
v Matyityi
2011 (1) SACR 40
(SCA).
In
this matter, however, the seriousness of the offences committed make
the appellant’s personal circumstances pale in comparison
to
competing interest. Neither did appellant exhibit nor express any
remorse before the trial court.
[25] The peculiar
facts of this case show that the rapes (as distinguished from the
Mudau case above) had a devastating impact on
the two minor
complainants as described above. Courts have a legal duty to protect
the most vulnerable members of our community
and in particular,
children. Accordingly, I am of the view that the learned magistrate
exercised his sentencing discretion properly.
In my view the
prescribed sentence imposed is proportionate to this offence upon a
consideration of all the circumstances. To find
otherwise would
amount to an unwarranted interference with a discretion properly
excised.
[26] In the result
the following order is proposed:
1. The appeal
against conviction and sentence is dismissed.
30 JANUARY 2015
T P MUDAU
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
l agree and it is
so ordered
JANSE VAN
NIEWENHUIZEN
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
APPEARANCES
For appellant:
Adv Albertyn Nel
Instructed by:
Legal Aid Board
For respondent:
Adv MNC Menigo
Instructed by:
NPA Pretoria