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[2015] ZAGPPHC 58
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T.P.D v S (A432/2014) [2015] ZAGPPHC 58 (6 February 2015)
SAFLII
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Certain
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IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO:
A432/2014
DATE: 6 FEBRUARY
2015
In the matter
between:
T[...]
P[...]
D[...]
......................................................................................................................
Appellant
and
THE
STATE
.......................................................................................................................
Respondent
JUDGMENT
JANSEN J
[1] On 16 April 2014
the appellant was found guilty of rape in terms of section 3 of the
Criminal Law Amendment Act 32 of 2007 read
with section 51(1) of the
Criminal Law Amendment Act 38 of 2007 and was sentenced to life
imprisonment in terms by the acting regional
magistrate Ms B Oswell
in Springs.
[2] When the matter
came on trial on 3 February 2014, the appellant pleaded not guilty to
the charge of rape. It was alleged that
he raped the daughter of his
wife (“the complainant”) on the 14
th
of
October 2011. The appellant had been married to the complainant’s
mother for a period of six years when he allegedly raped
the
complainant who was 13 years old at the time. The complainant was
staying with her grandmother during the period of the alleged
rape.
[3]
The medical report relating to the complainant was handed in by
consent, as exhibit
“
A”.
The
birth certificate of the complainant was also handed in by consent as
exhibit
“
B”.
[4] The first
witness for the state was the complainant’s stepmother who
testified that the complainant was her stepdaughter
and that she
neither knew nor met the appellant.
[5] According to the
stepmother, when the complainant visited her during December 2012 and
seemed troubled and harassed. She testified
that the complainant
would shut herself in her room, always crying, was rude and was also
very angry. She testified that she became
very concerned that
something was wrong with the complainant as she noticed that the
complainant was displaying signs of a child
who had been harassed as
she had previously, researched this topic.
[6] The stepmother
testified that she questioned the complainant and stated that she was
aware of the fact that the complainant
would always set out her
problems in a letter if something was bothering her. She told her
that if it was difficult to talk to
her then she should write her a
letter telling her what her problems were. The complainant then wrote
a letter and gave it to her.
The letter was handed in as exhibit “C”.
Upon receipt of the letter and reading it, the complainant’s
biological
father informed the complainant’s biological mother
and they went to the police station.
[7] During
cross-examination the stepmother was asked if she knew the
complainant’s biological mother. She answered in the
affirmative. She was then asked if she knew whether the mother was
staying with a man and whether she had a boyfriend. The stepmother
stated that she could not answer that as the incident took place in
2011 when she did not even know of the complainant’s
existence.
It was only in September 2012 when she found out that her husband had
a child. She did testify that the complainant’s
father was
aware, at all relevant times, that the complainant was his biological
child. The stepmother said that after finding
out about the existence
of the complainant, the complainant visited her and her biological
father during the holidays. The stepmother
testified that the
complainant did not have a boyfriend nor did she have friends.
[8] The stepmother,
when asked if she perceived the complainant’s behaviour to be
normal teenage behaviour, she confirmed
that she perceived the
complainant’s behaviour to deviate from normal teenage
behaviour.
[9] At the next
court appearance the stepmother brought the complainant to court. At
that stage the complainant was fifteen years
old and testified
through an intermediary in terms of section 170A of the Criminal
Procedure 51 of 1977.
[10] The complainant
testified that she was in Grade 10. She testified that on 14 October
2011 at about four o’clock an incident
occurred at her home
after returning from school. Upon arriving home, she knocked first
and that after her stepfather had opened
the door for her, she went
to the bedroom and closed the door. She further testified that she
started undressing (as she had to
take off her school uniform to
change into casual clothes), whereupon her stepfather entered the
bedroom whilst she was half naked.
She farther testified that he then
pushed her onto the bed and proceeded to take off his pants and
underpants and then took his
penis and inserted it in her vagina. She
testified that she felt pain. She stated that after he had “slept
with me”
he got dressed and left her crying.
[11] The complainant
testified that when her stepfather’s daughter arrived home she
found her crying and asked her what was
wrong but she lied as to the
reason why she was crying
[12] When asked who
the first person was whom she told about the rape the complainant
stated that it was her class teacher and then
her mother. Neither the
teacher nor her mother did anything. Her teacher at least arranged
counselling for the complainant.
[13] The complainant
was then shown the letter which she wrote to her stepmother and which
was then read out in the court. In the
letter she stated that she had
to tell her something but she was scared to do so face to face. She
then confessed that she had
been raped by her stepfather and that her
mother did not do anything about the rape. She further implored her
stepmother to show
her love as her own mother did not love her and
that her family did not care for her and kept on saying that she is
angry. She
also requested her stepmother not to tell anyone about the
rape and once again asked for her love. The complainant also wrote
that
she would rather kill herself than have to have a life without
parents.
[14] The complainant
further testified that her father took her to a doctor but it was a
long time after the incident. Her mother
was still in a relationship
with the appellant at the time when she saw the doctor.
[15] The complainant
said she first told her mother about the incident in 2012 and her
teacher in 2013 and then wrote the letter
to her stepmother as she
wanted her to help. Her mother and teacher had done nothing save for
the teacher organising counselling
for her. She also testified that
her mother had told her not to tell anybody.
[16] The complainant
was asked about her mother and stepfather’s relationship when
the complainant lived with them. She testified
that her mother and
stepfather quarrelled at times, and that sometimes the quarrels were
verbal and at times physical. She denied
that her mother had another
boyfriend when the question was put to her. It was also put to her
that the only reason why the appellant
was being implicated is
because in June 2012 he and her mother were fighting and he packed
his belongings and left the house and
that the appellant alleged that
her mother told him that she would “show him” and thus
had persuaded her to lay a false
charge of rape. The complainant
denied this.
[17] The complainant
testified that after the rape on 15 October 2011, she went to stay
with her grandmother. She alleged that it
took her a long time to
tell anybody about the rape because she did not want her mother and
stepfather to part ways and also did
not tell her grandmother because
she did not want her to fall ill.
[18] Allegedly the
appellant left the complainant’s mother after she told her
teacher about the incident. However, this evidence
does not tally
with her evidence that she told her teacher only in 2013.
[19] Upon
cross-examination as to why she told nobody at first she testified
that she did not want her mother and stepfather to
part ways because
he took good financial care of them. She also testified that she knew
her stepfather would go to prison and she
did not wish this to
happen.
[20] The
complainant’s mother was made available to the prosecution, but
was not called to testify.
[21] The next state
witness called was the complainant’s class teacher. She stated
that she had taught the complainant from
2011 and was still teaching
her in 2014. She stated that she noticed that the complainant’s
behaviour had changed and that
other teachers had also observed that
the complainant was not doing her school work. She then questioned
the complaint if she had
a problem but was told that there was
nothing wrong. The teacher further testified that the complainant’s
behaviour started
to become more bizarre. One such example of bizarre
behaviour was that it seemed as though she did not want to stay in
the class
and constantly asked to be excused from the class to go to
the toilet.
[22] The teacher
testified that on a day whilst she was teaching the class the
complainant was writing a letter instead of doing
her school work and
when she requested to see the letter the complainant refused to hand
it to her. The teacher stated that not
long after that particular
day, the complainant must have realised that she was concerned about
her and wanted to help her. She
further testified that the
complainant began to trust her and even asked for her phone number
which she gave to the complainant.
[23]
The teacher testified that weeks after having given the complainant
her telephone number she received a sms from the complainant
very
late one evening. The sms was to the following effect:
“
Madam
will you come to my burial. I am going to kill myself
’
.
She testified that she immediately went to the complainant’s
grandmother house but unfortunately the grandmother did not
know
where she was but furnished her with the telephone number of the
mother. She then testified the she spoke to the mother, who
told her
that she did not know what the whereabouts of the complainant were
but stated that she thought her daughter was safe and
was quite
confident that that her daughter would not harm herself.
Having no further
recourse, the teacher returned home. The mother clearly had no
interest in the wellbeing of her daughter.
[24] The teacher
testified that the very next day when she arrived at school she
called all the girls who were close to the complainant
and asked them
whether they had seen the complainant as the she was not at school.
She testified that the complainant stayed away
from school for three
days. Upon her return to school the teacher said she asked her why
she wanted to commit suicide. The complainant
then told her what had
happened the day she was raped by her stepfather.
[25] The teacher
testified that she then went to the principal and reported what the
complainant had told her. The principal then
suggested that they call
the complainant to the office and the complainant then once again
told the principal about the rape.
[26] The teacher
was, during cross-examination, asked why she stated that the
behaviour of the complainant had changed. The teacher
replied that in
Grade 8 she seemed to be happy notwithstanding the incident but her
behaviour started to change in Grade 9. She
was also asked if the
mother sounded like a concerned parent when she had phoned her. The
teacher did not want to comment whether
she thought the complainant’s
mother was a bad or good mother but stated that it would be
perplexing for any parent who heard
that their daughter wanted to
commit suicide and did not know where their child was and hence found
it strange that the complainant’s
mother did not seem to be
perplexed at all. She added that she was also disconcerted by the
fact that the mother had never bothered
to contact her or come and
see her after the phone call informing her about her daughter’s
message.
[27] The state
closed its case.
[28] The appellant
then gave evidence. The appellant stated that he raised the
complainant and never had sex with her and was married
to her mother.
He testified that he and his wife had commenced quarrelling in
February 2012. The stepfather suggested his biological
child and the
complainant leave the home during February 2012. The children duly
left. On the 8
th
of June 2012 his wife came to the house
with the police. The appellant testified that he left wishing to
divorce his wife but that
on the 10
th
of June she obtained
a protection order against him. During October 2012 his wife alleged
that he had gone to her boyfriend’s
place and fired shots.
[29] The appellant
strangely enough testified that there was a good relationship between
his daughter and the mother and the mother
and the complainant.
[30] However, the
evidence indicated that the mother did not love the complainant and
w'anted the freedom to cavort around with
boyfriends. The appellant
further testified that during November 2012 the complainant asked for
money for clothes and money to
go to a salon to have her hair done.
He paid for this and had no idea where the mother was.
[31] The J88
indicated that the nurse who examined the child long after the event
stated that there were old injuries, and in her
opinion the
complainant never had intercourse with consent. She had clearly been
penetrated on a previous occasion.
[32]
It cannot be stated that the magistrate misdirected himself in
respect of the testimony regarding the rape or in respect of
sentencing. As was held in the well-known case of
S
v
Pieters
1987 (3) (SA) 717 (A)
at
page 727F-H: —
“
The
basic governing principle was restated by Botha JA in S v Pieters.
1
It boils down to the following: The discretion to impose sentence
belongs to the trial court. Owing to this fact the appeal court
may
not and shall not interfere with the imposed sentence unless it is
convinced
2
that the sentence discretion has been exercised improperly or
unreasonably.
3
If the trial court committed a misdirection of the nature and extent
indicated in S
v
Pillay,
4
it means the presiding officer did not exercise the discretion
properly.
5
The relevant portion in S v Pillay reads as follows:
—
“
[n]ow
the word misdirection in the present context simply means an error
committed by the Court in determining or applying the facts
for
assessing the appropriate sentence ... [A] mere misdirection is not
by itself sufficient to entitle the Appeal Court to interfere
with
the sentence; it must be of such a nature, degree, or seriousness
that it shows, directly or inferentially, that the Court
did not
exercise its discretion at all or exercised it improperly or
unreasonably. Such a misdirection is usually and conveniently
termed
one that vitiates the Court's decision on sentence. ”
[33] The minimum
sentence for the rape of a child under the age of 16 is lifelong
imprisonment.
[34]
Sentencing is the domain of the trial court. Hence, a court of appeal
will be very reluctant to upset the factual findings
and evaluation
of the court
a quo
court
and will only interfere where the trail court materially misdirected
itself insofar as it’s factual and credibility
findings are
concerned.
[35] In the instant
case the complainant’s evidence was consistent with the letter
that she wrote to her stepmother and with
what she told her teacher.
Even though the complainant was a single witness, her subsequent
conduct, unhappiness and anger as perceived
by her stepmother and her
teachers, together with the letter that she wrote to her stepmother
are all consistent with her version.
Her mother’s indifference
explains her behaviour and her version is credible in all respects.
[36]
Regarding the evidence of a single witness it was held in
S
v Sauls and Others
1981
(3) SA 172
(A)
at
180E-G that: —
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness...
. The trial
judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether it is
trustworthy and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony
.
he is satisfied that the truth has
been told.
The cautionary rule referred to
by De Villiers JP in 1932 [in R v Mokoena
1932 OPD 79
at 80] may be a
guide to a right decision but it does not mean
‘
that
the appeal must succeed if any criticism, however slender, of the
witnesses’ evidence were well-founded...
’
It has been
said more than once that the exercise of caution must
not
be allowed to displace the exercise of common sense.
”
[emphasis added]
[37]
This dictum was repeated by Holmes JA in
S v Artman and Another
1968
(3) SA 339
(A)
at
341A-C:
—
"She was,
however, a single witness in the implication of the appellant. That
fact, however, does not require the existence
of implicatory
corroboration: indeed, in that event she would not be a single
witness. What was required was that their testimony
should be clear
and satisfactory in all material respect, see R v Mokoena
1956 (3) SA
81
(A) at pages 85-6. The court unanimously found that her evidence
passed the test. I would add that, while there is always a need
for
caution in such cases, the ultimate requirement is proof beyond
reasonable doubt,
and the courts must suard
asainst their reasonins tendins to become stifled by
formalism. In
other words, the exercise of
caution must not be allowed to
displace the
exercise of common sense
[emphasis
added]
[38]
In the Supreme Court of Appeal in
S v Chabalala
2003 (1) SACR 134
(SCA)
at
139i—140a at paragraph [15] Heher AJA. with reference to
S
v
Van Aswegen
2001
(2) SACR 97
(SCA),
enunciated
the position as follows: —
"The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which
are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities
on both sides and,
having done so, to decide whether the balance
weighs so
heavily in favour of the state as to exclude any reasonable doubt
about the accused's guilt."
[39] It was
contended that the complainant’s delay in reporting the rape
indicated that her evidence was unreliable.
[40] However,
section 59 of the Criminal Law Act 32 of 2007 makes it clear that no
such inference can be drawn against a complainant
for a delay in
reporting a sexual crime.
[41] The appellant’s
defence that it was because there was bad blood between him and the
complainant’s natural mother
is simply far-fetched and is
inherently improbable. The complainant was in any event raped before
the bad blood between him and
his wife commenced during February
2012. It is also difficult to understand how one can get a minor
child convincingly to give
false evidence in a court of law against
her stepfather if she has no motive whatsoever to lie about her
stepfather.
[42]
The Appellate Division in
SvD
1995 (1) SACR 259
(A)
at
page 260f-i emphasised the vulnerability of small children,
particularly when they are abused by people whom they trust and who,
more often than not, will get away with their misdeeds because of the
few avenues that they have to gain assistance.
[43]
In
S v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)
at page 5b the following is stated: —
“
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
[44]
In
S v Chapman
supra
at
page 5b-e court further stated: —
“
...woman
in this country have the legitimate claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment,
to go and
come from work, and to enjoy the peace and tranquillity of their
homes without fear, the apprehension and the insecurity
which
constantly diminishes the quality and enjoyment of their lives.”
[45]
See also
S v Chapman
supra
at
page 5e where the following is stated: —
“
The
courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.
”
[46]
In
S v Mojaki
2006
(2) SACR 590
(T)
at
page 591 the following is stated: —
“
Rape is
a very serious offence, so serious that I doubt whether those who are
not women will ever be able to fully understand its
effect on the
victim. It violates the dignity of the person being raped More so
when it is perpetrated on young, defenceless and
innocent ones.
Children are entitled to be children.’’'
[47] Given the
severity of the emotional trauma that the rape caused the
complainant, the magistrate did not misdirect himself in
imposing the
minimum prescribed sentence. No evidence was led of substantial and
compeiling circumstances which would justify a
deviation from the
minimum sentence.
[48] In the result,
I propose the following order: —
[49.1] The appeal
against the conviction and sentence is dismissed.
JANSEN J
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered
KHUMALO J
JUDGE OF THE HIGH
COURT
For
the Appellant
Advocate
VZ Van Zyl (084 618 5924)
Instructed
by
Legal
Aid South Africa
For
the Respondent
Advocate
PN Ngcobo (076 544
0267)
Instructed
by
The
State Attorney Pretoria
(012-309
1563)
1
1987
3 SA 717
(A)
at
727F-H. For a more recent, but essentially unchanged, version, see
S
v Sadler
2000
(1) SACR 331
(SCA)
at
para 8;
S
v
Swart
2000
(2) SACR 566
(SCA)
at
a para 21. See also, eg.
S
v L
1998
(1) SACR 463
(SCA)
at
468/ff;
5
v
Blank
1995
(1) SACR 62
(A)
at
65
h-i.
2
Op
cit
728B-C.
This means that the appellant has the burden of proof to convince the
appeal court of the merits of the appeal.
3
Although
various tests, aids and yardsticks have been formulated and applied
by various courts in the practical application of the
basic
principle, too much must not be made of the differences between these
tests - 727H-728A.
4
1977
(4) SA 531
(A)
at
534H-535G.
5
A
paraphrasing of
“
[i]ndien
dit sou blyk dat daar ‘n mistasting begaan is, van die aard en
omvang wat aangedui is in S v Pillay, dan sou dit
beteken dat die
Verhoorregter nie sy diskresie behoorlik uitgeoefen het nie".