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[2015] ZAGPPHC 73
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Maleka v S (A921/2011) [2015] ZAGPPHC 73 (19 February 2015)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
A921/2011
DATE: 19 February
2015
Not reportable
In the matter
between:
JOSEPH
MALEKA
.......................................................................................................................
Appellant
and
THE
STATE
................................................................................................................................
Respondent
JUDGMENT
MUSHASHA
AJ
INTRODUCTION
[1] Appellant was
convicted of Rape of a 7 year old child, in the Regional Court,
Rustenburg, on 24 April 2001. The appellant was
not legally
represented in the Regional Court.
[2] The proceedings
were stopped in terms of
section 51(l)(b)
of the
Criminal Law
Amendment Act No. 105 of 1997
and referred to the High Court North
Gauteng Division for sentence.
[3] On 18 February
2002 the conviction was confirmed, and the appellant was sentenced to
life imprisonment by Mlambo J as he then
was. In the High Court the
appellant was legally represented.
[4] On 19 June 2009
the appellant was granted leave to appeal against both conviction and
sentence to a full court of the High Court.
THE EVIDENCE
[5] The State
evidence can briefly be sketched out as follows:
5.1
On the 27 March 2000 in the morning,
T[...]
N[...]
(the
complainant), a girl child who was 7 years of age at the time, she
was lying sick on her mother's bed.
5.2 The
complainant's brother E[...] N[...] went to their mother's workshop
with a view to fetching money so that he could take
her to the
clinic.
5.3 On his return he
entered the house and saw appellant alighting from the bed where the
complainant was. He chased the appellant
and apprehended him with the
help of other people.
5.4 The mother of
the complainant and the police were called and the complainant was
subsequently taken to the hospital where she
was examined by a Dr
Smit.
5.5 According to the
medical report (J88) the complainant's labia minora was found to be
normal, hymen normal, no swellings, no
fresh tears, no bleeding.
5.6 Accordingly, the
doctor concluded that the complainant was not injured in any way.
5.7 The appellant's
version was that he did not commit the offence. He was passing next
to E[...]'s house and E[...] accused him
of wanting to steal from
their place. E[...] called some people and appellant ran away but was
later apprehended.
POINTS
IN
LIMINE
[6] In argument on
appeal it was argued on behalf of the appellant that the trial court
failed to inform the appellant of his constitutional
rights to have a
legal representative of his own choice or a legal representative at
State expense.
[7] Accordingly, it
was argued that a failure of justice had occurred.
[8]
Section 73(2)
of the
Criminal Procedure Act 51 of
1977
provides
that:
"An accused
shall b: entitled to be represented by his legal advisor at criminal
proceedings..."
Every accused
shall at his or her first appearance in court be informed of his
right to be represented at his or her own expense
by a legal advisor
of his or her own choice and if he or she cannot afford legal
representation that he or she may apply for legal
aid and of the
institutions which he or she may approach for legal assistance".
[9]
In the present case the record shows that appellant went on record
saying
"
E
delagbare
ek wil nog steeds my eie saak behartig en indien ek gestraf word dit
is toe dat ek my familie sal vra om namens my 'n
regsverteen
woordiger te bekom om vir my appêl aan te teken."
[10]
From
appellant's response quoted above,
I
am satisfied that the appellant adequately understood the rights to
legal representation as explained to him by the Magistrate.
The
issue is also further canvassed by the learned Magistrate.
See
record p. 12
-13.
[11] I am also in
full agreement with the view that it is also evident from the nature
of cross-examination by the appellant when
conducting his defence
that appellant was a very intelligent person who would "put some
lawyers to shame".
[12] I cannot agree
more with Mlambo J that having regard to the trial as a whole the
proceedings were in accordance with justice
and that no substantial
injustice had occurred.
[13]
I, accordingly I propose that the point in
limine
should
fail.
AD CONVICTION
[14] The crisp issue
which remains to be decided is whether the complainant was raped by
the appellant.
[15] During her
testimony the complainant was asked to demonstrate with the aid of
two dolls as to what happened to her.
[16] The complainant
specifically demonstrated the male doll penetrating the female doll.
[17]
The complainant further testified that the appellant had applied
Vaseline on her vagina, and lay on top of her. She testified
“
Hy
het die ding ingedruk in my privaat deel.
”
She
further testified that in the process she felt pain as if she was
being cut by a knife. In my view, the complainant's explanation
corroborates penetration and accords with other evidence.
[18] It may well be
so that the medical report (J88) did not show fresh tears or hymen
tears however, Dr Smit confirmed in evidence
that the hymen would not
necessarily have perforated following penetration.
[19]
In
S
v
F
1990 (1) SACR 238
(A) at 244 g-h
the
court held that minimal or even the slightest penetration is
sufficient to sustain a charge
of
rape.
[20] Having regard
to the fact that the complainant was only 7 years old at the time of
the rape coupled with her indication of
severe trauma, that to me
provides sufficient safeguards to drive me to the conclusion that her
evidence was credible and reliable.
[21] On the other
hand the evidence of the appellant was clearly less than credible.
The trial court correctly found, in the view
which I hold, that the
appellant version was demonstrably false and inherently improbable as
to be rejected as false.
See:
S v Munyai
1986 (4) SA 712
(V) at 715 G
AD
SENTENCE
[22] In the present
case the appellant was convicted of the offence contemplated in
section 51 of the Criminal Law Amendment Act
105 of 2007. It is an
offence described in part I of Schedule 2 being the rape of a child
under the age of 16 years.
[23] It was argued
that the sentence of life imprisonment imposed on the appellant
induces a sense of shock.
[24]
It was further argued that the trial court misdirected itself by not
finding that the following factors
inter alio
cumulatively
taken constituted substantial and compelling circumstances:
24.1 The fact that
complainant did not sustain injuries;
24.2 the fact that
there was no evidence that complainant suffered trauma;
24.3 the fact that
appellant was still young, only 26 years of age; and
24.4 the fact that
appellant was convicted on the 24 April 2001 and has been in custody
since then.
[25]
In
S v Petkar
1988
(3) SA 571(A)
at
574 C- D, the court held:
"
The court's powers
to interfere with a sentence on appeal are circumscribed. It may only
do so if the sentence is vitiated by irregularity,
misdirection or is
that which no reasonable court could have come to..."
[26] In the present
case the complainant was only 7 years old. In the circumstances the
provisions of section 51(1) of Act 105 of
1997 which prescribe a
minimum sentence of life imprisonment is applicable unless
substantial and compelling circumstances are
found to be present.
[27] In as much as
courts are free to depart from the prescribed sentences in doing so
courts are to respect and not merely pay
lip service to the
legislature's view that the prescribed periods of imprisonment are to
be taken to be ordinarily appropriate
when crimes of the specified
kind are committed.
See:
S
v Malgas
2001(1) SACR
469 (SCA) at 481 paragraph 25
S
v Dodo
2001(1) SACR 594 (CC) at 603 J
[28] In the present
case the court is disturbed by the barbaric and abhorrent violation
of the seven year old innocent little girl.
[29] What is
significant is that the appellant committed the offence against the
complainant within the sanctity of her own home
where she lay sick on
the bed.
[30]
Regarding the seriousness of the rape as an offence I cannot agree
more with the following sentiments expressed by the late
Chief
Justice Ismail Mahomed in S
v Chapman
1997(2) SACR 3
(SCA) at 5 C:
"... Women
in this country and I may add children are entitled to the protection
of these rights. They have a 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 the fear, the apprehension and the insecurity which
constantly diminishes the quality and
enjoyment of their lives”.
[31] In light of the
aforegoing, I find that Mlambo J, (as he then was) correctly found
that there are no compelling and substantial
circumstances justifying
departure from the prescribed minimum sentence.
[32] After taking
all the circumstances into account, I am of the view that the
sentence of imprisonment for life is appropriate.
[33] In the
circumstances I propose the following should ensue:
33.1 The appeal
against conviction and sentence is dismissed.
33.2 The
conviction and sentence of life imprisonment imposed by the Gauteng
High Court is confirmed.
M J MUSHASHA
ACTING JUDGE OF
THE HIGH COURT
I agree
N. RANCHOD
JUDGE OF THE HIGH
COURT
I agree
W.R.C PRINSLOO
JUDGE OF THE
HIGH COURT