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[2015] ZAGPPHC 501
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Sibanyoni v S (A693/2014) [2015] ZAGPPHC 501 (13 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC
OF
SOUTH
AFRICA
CASE NUMBER: A693/2014
(1)
REPORTABLE: YES
I
NO
(2)
OF INTER EST TO OTHER JUDGES: YES/NO
(3)
REVISED.
……
13.5.2015……..
………………………
DATE
SIGNITURE
In
the matter between:
SIBUSISO
PETROS
SIBANYONI
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE
VAN
NIEUWENHUIZEN
J
[1] The appellant was
convicted on one count of rape in the Ermelo Regional Court
(Mpumalanga Division) and sentenced to life imprisonment.
[2] Leave to appeal
against the conviction and sentence was granted on petition by this
court.
FACTS
AND EVIDENCE
[3]
The allegations pertaining to the rape charge emerged during
September 2012 when the complainant, a […] year old girl,
was
living with her father in New Castle. From the evidence it appears
that the complainant stayed with her mother in Breyten,
Mpumalanga
until approximately June 2012.
[4]
The appellant, a [….] year old male, is the [.....] of the
complainant's mother and according to the evidence of the
complainant, the appellant visited her mother every day after work.
[5] The complainant
testified that the appellant raped her twice during the period she
resided with her mother. She further testified
that the rapes
occurred in the bedroom whilst her mother was in the kitchen.
[6] The complainant did
not tell her mother about the rapes because she was afraid. It
appears that her fear emanated from a threat
made by the appellant to
the effect that, should she tell her mother
"he will see
what he
will do".
[7] Save for the evidence
of the complainant, the State called Dr Longolongo and the
complainant's neighbour in New Castle, Ms Mkhwanazi.
[8] Dr Longolongo
examined the complainant on 1 October 2012 and came to the following
conclusion:
" THIS IS A
[…..]
YRS OLD GIRL WITH A
NORMAL
GENERAL
MEDICAL EXAMINATION, BUT PRESENT AN
ANNULAR
HYMEN,
OPENED AT
MORE
THAN
1Omm OF
TRANSVERSAL DIAMETER
AND
HAVING
2
OLD TEARS
AT
15:00 AND
17:00 THAT MAY BE
VERY
SUGGESTIVE
OF ANY
KIND
OF
HYMEN PENETRATION."
[9] During
cross-examination, Dr Longolongo conceded that it was not possible to
determine when the injuries to the complainant's
vaginal area
occurred.
[10] Ms Mkwanazi, the
neighbour, testified that the complainant played daily at her house
with her children. She was previously
informed by the mother of the
complainant (most probably referring to the complainant's stepmother)
that
the
complainant had problems with passing urine and stools. Ms Mkwanazi
told the court that she had seen a program on television
about
children that were sexually assaulted and the problems experienced by
the complainant correlated with those she saw in the
program.
[11] She took it upon
herself to question the complainant and when asked whether she was
raped at some stage, she told Ms Mkwananzi
that someone did put his
private part into her private part. When asked who the person was,
the complainant said
"Sibusisu"
(the appellant).
Upon further questioning, the complainant told Ms Mkwanazi that the
appellant lived in Mpumalanga and that he was
in a relationship with
her mother.
[12]
Ms Mkwanazi informed the complainant's stepmother and they took her
for an examination to verify the allegations.
[13]
During cross-examination, Ms Mkwanazi testified that she arrived in
New Castle some nine months prior to the incident and that
the
complainant was already living with her father at that stage. This
evidence contradicts that of the complainant in respect
of when
exactly she moved to New Castle.
[14] During the evidence
of the appellant, he confirmed that he knew the complainant and he
further testified that he is still in
a relationship with the
complainant's mother. He further stated that he visited the
complainant's mother over weekends, during
the time the complainant
resided with her mother.
[15] The appellant
confirmed the complainant's version that she moved to her father
during June 2012.
[16] The appellant
confirmed that he had a good relationship with the complainant and
bought fruits for her and her siblings. He
could not understand why
the complainant would implicate him as the perpetrator of the crimes.
CONVICTION: GROUNDS OF
APPEAL
[17]
From the heads of argument filed on behalf of the appellant, the
following salient grounds of appeal appear:
i)
in view of the fact
that the complainant is a child and a single
witness, the court a
quo
erred in not treating the evidence of
the complainant with caution;
ii)
the complainant did not
explicitly say that the appellant inserted
his penis into her vagina;
iii)
it is improbable that the appellant
would have raped the complainant
whilst the complainant's mother was in the house;
iv)
the evidence of the complainant did
not establish exactly where and
when she was raped;
[18] I have carefully
considered the judgment delivered by the court a
quo
and am
satisfied that the court properly dealt with each of the grounds
relied upon by the appellant in this appeal. The court a
quo
carefully examined the evidence and applied the correct legal
principles thereto.
[19]
In the premises, no reason exists to interfere with the conviction of
the appellant in the court a
quo.
SENTENCE:
GROUNDS OF APPEAL
[20] It was submitted on
behalf of the appellant, that the court a
quo
erred in not
considering the cumulative effect of the appellant's personal
circumstances to constitute substantial and compelling
circumstances
justifying a deviation from the prescribed sentence of life
imprisonment.
[21] The court a
quo
had due regard to the seriousness of the crime, the interests of
the community and the personal circumstances of the appellant.
[22] The approach of the
appellant, in relying only on his personal circumstances to justify a
deviation from the prescribed minimum
sentence of life imprisonment,
is misguided.
[23] The seriousness and
prevalence of the rape of young girls need not be elaborated upon.
The most precious possession the complainant
possessed, her innocence
and bodily privacy, has been rudely taken away from her by the
appellant. The appellant's actions will
have a lifelong impact on the
complainant.
[24] I could not find any
established ground in law to interfere with the sentence imposed by
the court a
quo.
ORDER
In
the premises, I propose the following order:
The
appeal against conviction and sentence is dismissed.
__________________________________
JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
I
agree,
_________________________________
T P MUDAU
AC TING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DlVISlON,
PRETORIA
lt
is so ordered.
___________________________________________________________________
A.PPEARANCE
ON BEHALF OF THE APPELLANT:
Advocate
V
J
D
h
lomo
APPEARANCE
ON BEHALF OF THE RESPONDENT:
Advocate
F W VAN DER MERWE