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[2015] ZAGPPHC 414
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Mnisi v S (A709/2014) [2015] ZAGPPHC 414 (26 May 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: A709/2014
DATE
OF HEARING: 26 MAY 2015
In
the matter between:
JEREMIAH
MNISI
APPELLANT
and
THE
STATE
RESPONDENT
J U D G M E N T
AVVAKOUMIDES,
AJ
1.
The
appellant was convicted on a charge of contravening
section 3
of the
Criminal Law (Sexual Offences And Related Matters) Amendment Act 32
of 2007
by the Regional Court of Pretoria, held at Pretoria, having
pleaded not guilty to the charge and on 5 March 2014 was sentenced to
life imprisonment. He was represented in the trial.
2.
The
sentence is the minimum prescribed sentence in accordance with the
provisions of
section 51
(1) read with section 51 (3) of the Criminal
Law Amendment Act 105 of 1997 (the Act) the essence of which is that
upon conviction
of the rape of a child under the age of sixteen, the
trial court is obliged to sentence the accused to imprisonment for
life, unless
there are substantial and compelling circumstances
justifying the imposition of a lesser sentence.
3.
According
to the notice of appeal the appellant has appealed against his
conviction only. The appellant has an automatic right of
appeal in
terms of section 10 of the Judicial Amendment Act, 2013, Act No. 42
of 2013.
4.
The
grounds for appeal appear from the notice of appeal as follows:
(a)
The
trial court failed to take cognisance of the single witness
cautionary rule; and
(b)
The
state failed to prove that the appellant is guilty beyond a
reasonable doubt.
5.
The
state called the complainant who was [….] at the time. She
testified that she knew the appellant and that he was the
boyfriend
of her grandmother. It appears from the record that the lady referred
to is not actually the complainant’s grandmother
but rather an
elderly cousin of the complainant’s mother, whom the
complainant regards as her grandmother.
6.
The
complainant testified that on the night in question the appellant and
the accused were drinking in the dining room of her home.
At
approximately 23h00 she went to bed. She slept in a bedroom with her
two brothers who were asleep and as was her mother. She
slept with
her one brother in the same bed. While she was asleep facing up she
was woken up by something penetrating her vagina
and she woke up and
saw the appellant on top of her. She recognised the appellant from
his dreadlocks and even thought it was dark
there was enough light
from the Apollo street light shining in the bedroom.
7.
She
screamed and this woke her mother. She was scared to tell her mother
what happened but eventually did so. The mother also testified
and
stated that initially the complainant told her that the appellant
penetrated her vagina with his finger but later told her
mother that
it was with his penis. The medical examination did not reveal any
injuries but the testimony of the examining doctor
concluded that
this did not mean that there was no penetration. The complainant
testified that she had had intercourse with her
boyfriend about one
month prior to the incident and knew what a penis felt like.
The examining doctor testified that because
the complainant was
sexually active this could be the reason that he could not find any
injuries.
8.
The
appellant submitted that there were material contradictions in the
testimony of the complainant but only relies upon the issue
of the
finger vis a vis the appellant’s penis aspect to show material
contradiction. In my view, even if the was initially
contradiction in
this regard it is immaterial. The complainant explained this by
stating that she was initially afraid of telling
her mother. The
principles in this regard have been established in the instructive
case of S V Mafaladiso and others
2003 (1) SACR 583
(SCA) and which
has been followed in many subsequent cases.
9.
Furthermore
the appellant relies on the improbability of him having entered the
complainant’s bedroom whilst knowing that
her brothers were
sleeping in the same room. This is speculative to say the least.
Insofar as the aforesaid contradiction is concerned,
I have had
regard to the decision in S v Oosthuizen
1982 (3) SA 571
(T) wherein
the court held that: “
Contradictions
per se do not lead to rejection of a witness’ evidence. Not
every error made by a witness affects his credibility,
in each case
the trier of facts has to take into account such matters as the
nature of the contradictions, their number and importance,
and their
bearing on other parts of the witness’ evidence.
”
10.
The
submissions made by the appellant in his heads of argument do not aid
him at all. The majority of the submissions are made to
cast
aspersion on the probability of the incident having occurred as the
complainant testified. For example the appellant argued
that if the
complainant was wearing a dress and underwear, as she testified, the
appellant would have had move her body in order
to lift her dress and
shift her underwear to the side. These submissions are merely
speculative and cannot be accepted in support
of an argument that
what the appellant says is reasonably and possibly true. They stand
to be rejected.
11.
The
appellant called the grandmother to testify and her evidence was
aimed at denying that the appellant could have got up in the
night
because she would have woken up if he did. Two aspects vitiate
against this version: one is that it is common cause that
she and the
appellant had been selling liquor from the premises and drinking for
some time before the complainant went to bed and
secondly she told
the complainant’s mother that she did not see the appellant get
up in the night.
12.
The
evidence of the complainant does not appear to me to be
unsatisfactory and was accepted by the trial court as reliable and
sufficient to sustain the conviction. Insofar as the cautionary rule
in sexual assault cases is concerned, I have had regard to
the case
of S v Jackson
1998 (1) SACR 470
(SCA) at 476 E-F where the court
stated that: “
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and outdated perception. It unjustly stereotypes
complaints in sexual assault cases as particularly unreliable. In our
system of law, the burden is on the stat to prove the guilt
of an
accused beyond reasonable doubt, no more no less
.”
13.
In
Director of Public Prosecutions v S
2000 (2) SA 711
(TPD) the court
held that: “……….
it
cannot be said that the evidence of children, in sexual and other
cases, where they are single witnesses, obliges the court to
apply
the cautionary rules before a conviction can take place
.”
I am satisfied that the evidence of the complainant and that of her
mother was credible and there is no reason to
confirm the
acceptability thereof for purposes of sustaining a conviction, as the
trial court did.
14.
The
appellant submitted that the trail court misdirected itself in
applying the minimum sentence. The Act provides that if there
are
substantial and compelling circumstances present, the court may
deviate from the minimum sentence. I have had regard to the
submissions of the appellant and his circumstances. He submitted,
inter alia, that he is a single offender, his parents are deceased,
he was one of three children, one of whom passed away, he does not
know his biological father, his father’s family never
accepted
him as his father’s child, he is unmarried but has two children
from a previous relationship and two other children
with his
girlfriend and has worked as a hairdresser for a period of 14 years.
15.
The
appellant further submitted that he is gainfully employed, was the
breadwinner in the family, that no violence used in the rape
and that
it was not one of the worst rapes. None of the reasons
submitted by the appellant constitute substantial and compelling
reasons for the court to deviate from the minimum sentence.
Consequently I cannot find that the imposition of the statutorily
prescribed minimum sentence by the regional court was grossly
disproportionate to the offence. I am therefore of the view that the
appeal should be dismissed.
16.
I
accordingly make the following order:
16.1 The appeal against
conviction and sentence is dismissed.
___________________________
AVVAKOUMIDES, AJ
ACTING JUDGE OF THE HIGH COURT
I
agree:
__________________________
HUGHES, J
JIUDGE
OF THE HIGH COURT
Representation
for the Appellant:
Counsel
H. B.
Moloi
Instructed
by
Pretoria Justice Centre
Representation
for Respondent:
Counsel
M. T. Moetaesi
Instructed
by:
The
State