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 330
|
|
Simelane v S (A474/2014) [2015] ZAGPPHC 330 (10 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A474/2014
Date:
10 March 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
KHULU
FRANK
SIMELANE
.................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
JUDGMENT
POTTERILL
J
[1]
The appellant was charged with three counts of contravening section
3, read with sections 1, 56(1), 57 ,58, 59, 60, 61 and 68(2)
of Act
32 of 2007 in raping three girls under the age of 16, all of them
between the ages of 7-8. The appellant was found
guilty on
counts 1 and 2 and was found not guilty and discharged on count 3.
The court
a quo
took
the two charges together for sentencing purposes and imposed life
imprisonment.
[2]
The appellant is with the leave of the court
a
quo
before us.
[3]
The grounds as supplemented for the appeal are either nonsensical,
ill-conceived or bad in law and require only a short address.
[4]
There were three little girls testifying about three different
incidents. The mere fact that the Magistrate found that
the
state did not on count 3 prove beyond reasonable doubt that the
appellant had raped the complainant can cast no suspicion on
counts 1
and 2. One count was not reliant on another and no
corroboration was necessary for the other. The court
a
quo
found that due to the fact that the
J88, the medical report was not available, there was no objective
independent corroboration
for this charge. It was also clear
from the complainant’s testimony that she was in fact raped by
two persons, also
a Mr. Dlamini, and that it casted doubt as to
whether this incident related to this appellant or to another
person. The court
a quo
thus
correctly exercised caution and did not find the appellant guilty on
count 3 beyond reasonable doubt.
[5]
The next ground of appeal is also bad in law. There is no rule
of evidence that the J88 is insufficient to corroborate
a witness
that rape took place. There is certainly no rule of law that
there must be a corroboration with DNA tests.
The court
a
quo
quite correctly found all the
single witnesses and their first report witnesses to be reliable and
truthful and the J88 corroborated
that they had in fact been raped.
[6]
It was further submitted and I quote “
that
the vulnerability of the complainants in their vicinity made it
possible for anyone to cease the opportunity of committing
the
offence”
. If this relates
to the mistaken identity of the appellant then this argument is
rejected. All the complainants identified
the appellant in
court. Of course a dock identification can be tainted, but it
must be remembered that these children were
in a different room and
taken out of that room and presented to court with four males in the
court. Despite this all of them
identified the appellant as the
person with the yellow T-shirt. Ms. G. Nkosi on count 1
referred to him by name i.e. Simelane
and further identified him as
living near her parental home knowing him from sight. Nomthado
Nkosi, the complainant in count
2, also referred to him as Simelane.
Ms. Mokoena on count 3 also referred to the appellant as Simelane,
also staying close
to her parental home. In the trial identity
was never put in dispute by the appellant, he did not for instance
aver that
he did not stay close to their parental home or was at work
or forwarded any other reason as to why it could not have been him.
On the J88’s, completed by two different doctors, the girls
already gave the name of Simelane being their rapist to the doctors.
I am satisfied that there was no misdirection on the part of the
Magistrate in him finding that the appellant was the perpetrator
of
the crimes.
[7]
It was also submitted that the parents couched the kids. This
submission was not canvassed in cross-examination of any
of the
witnesses by the appellant. In fact the appellant only
forwarded this in his own evidence. This despite the
fact that
he had not spoken to the parents or knew their names and could not
give any reason why he would be pinpointed by these
unknown people.
Later on he changed this version of him to in fact having a problem
with the granny of Ms. Mokoena (count
3) and this was because she was
blaming him for the gossip about her grandchild being raped. I
am satisfied that the court
a quo
did
not err in rejecting the appellant’s version as not being
reasonably possibly true.
[8]
A further argument was that the South African Police’s
investigations were not approached with caution. Counsel could
not
motivate this submission and it requires no further address.
[9]
It was also submitted that the gathering prior to the appellant’s
arrest where the appellant was implicated was not given
the necessary
weight. It was argued that at this gathering the complainants
were in fact coached. This was addressed
in paragraph [7]
supra
and no further address is required.
[10]
I am satisfied that the court
a quo
did
not err in finding the appellant guilty on counts 1 and 2.
[11]
Ad sentence
The
appellant set out that life imprisonment was too harsh if cognisance
is taken of the fact that the appellant was a first offender.
The court
a quo
thus
erred in not taking this as a substantial and compelling factor.
Furthermore the appellant was employed and this should
also have
constituted a compelling and substantial circumstance.
[12]
The court
a quo
found
that there were no substantial and compelling circumstances. I
cannot find that the court
a quo
in
imposing life imprisonment imposed a sentence disproportionate to the
appellant.
[13]
Raping two little girls of between 7 and 8 years is indeed
despicable. In
S v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)
at 5b-c rape was
describe in these terms:
“
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. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos
of the Constitution
and to any defensible civilisation.
Women
in this country 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.”
Furthermore
in
N v T
1994
(1) SA 862
(C)
at 864G rape was
described as:
“
Rape
is a horrifying crime and is a cruel and selfish act in which the
aggressor treats with utter contempt the dignity and feelings
of his
victims.”
Even
more so when two young children are exposed to such a crime.
The imposition of the life sentence is thus not disproportionate
to
the crime itself.
[14]
In addressing the needs of society the Minimum Sentence Act was
promulgated to address specifically rape in this country.
A
court should thus not lightly deviate from the minimum prescribed
sentence unless there are compelling and substantial circumstances.
Society urges the court to address these horrific crimes with the
minimum sentence. The imposition of life imprisonment is
thus
also addressing the needs of society.
[15]
The court must however also take cognisance of the personal
circumstances of the offender and must deviate from the prescribed
minimum sentence if the sentence is disproportionate to the
appellant. There is nothing in the personal circumstances as
a
factor alone, or cumulatively, that can be seen as substantial and
compelling circumstances. This sentence is prescribed
specifically for first offenders. The appellant abused his
power as an older person to gain sexual pleasures from very small
children, dismissing them with R2. I cannot find that the court
erred in sentencing the appellant to life imprisonment.
[16]
I accordingly propose the following order:
That
the appeal against conviction and sentence is dismissed.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
S.A.
THOBANE
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A474/2014
HEARD
ON: 6 March 2015
FOR
THE APPELLANT: ADV. P.M. KHUNENE
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. A.P. WILSENACH
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 10 March 2015