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[2015] ZAGPPHC 717
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Makube v S (A461/2011) [2015] ZAGPPHC 717 (19 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH IN THE
COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE
NUMBER: A461/2011
DATE:
19/6/2015
In
the matter between:-
ISAAC
MODIKOE
MAKUBE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MOSEAMO
AJ:
[1]
This is an appeal against both conviction and sentence. Appellant who
was legally represented was convicted on a charge of rape
of a six
year old girl and sentenced to life imprisonment at the Regional
Court of Pretoria.
POINT
IN LIMINE
[2]
I firstly want to deal with the issue of the incomplete record and
the appellant's submission that as a result of the incomplete
record
it is not clear whether the complainant was properly admonished. It
is submitted on behalf of the appellant that the appeal
on both
conviction and sentence ought to be upheld as the record is
incomplete and cannot be reconstructed.
[3]
It is true that the record is incomplete and cannot be reconstructed.
The part of the evidence where the complainant is being
sworn in is
not on record and it is also not on record whether the complainant
knew the difference between the truth and a lie.
It appears from an
affidavit submitted by the magistrate that her notes of the
proceedings were destroyed in the fire which occurred
at the Pretoria
magistrates court during October 2010.
[4]
The appellant is not contending that the complainant did not
appreciate the difference between the truth and a lie. It is also
not
the appellant's contention that the complainant was not admonished,
but it is submitted that because the record of the complainant's
evidence is incomplete then this court should find that the
complainant was not a competent witness. Although the record cannot
be reconstructed, the magistrate confirms in her affidavit that 'I
was at all stages aware that a child should be properly admonished
to
tell the truth after a proper examination to establish whether the
child understands the importance of telling the truth and
have always
done it as a matter of course. I am therefore convinced that before
the child started to give evidence I was convinced
through
questioning of the child that the child understood the importance of
telling the truth and was admonished to tell the truth.'
The
prosecutor states that because of her experience she is aware that a
child victim should be properly admonished to tell the
truth and she
would not proceed if that was not done.
[5]
I am therefore satisfied that the child was properly admonished
before giving evidence.
[6]
Secondly, the fact that the record is incomplete and cannot be
reconstructed does not automatically mean that the appeal has
to be
upheld. The defects in the record have to be so serious that a proper
consideration of the appeal is not possible. The nature
of the
defects in this case do not make it impossible to consider the
appeal. I am of the view that the defects will not affect
the
appellant's right to a fair trial.
[7]
Therefore the appellant's point in limine stands to be dismissed.
CONVICTION
[8]
The conviction was attacked essentially on the following grounds:
(a)
The trial court misdirected itself in speculating what
the
complainant meant when demonstrating with anatomical dolls about what
happened to her;
(b)
The evidence of the complainant does not prove beyond
reasonable
doubt that there had been penetration of her vagina by way of the
penis of the appellant;
[9]
The complainant testified through an intermediary. She testified that
the incident happened at Moreletapark, Pretoria in the
house of
Rondekop (appellant). The appellant undressed her and came on top of
her and started bumping on top of her. Then a person
by the name of
Ma K. came into the room and said to the appellant: 'Rondekop you
have raped the child'. She demonstrated that when
the appellant was
on top of her, she felt pain on her chest as well as in her vaginal
area.
[10]
C. M. testified that she is the mother of L. M. and her birth
date is the [……] 2000. (Her evidence was
incomplete)
[11]
JohnM. testified that on the 30
th
June 2007 he was from
work. He asked the appellant to cook as he was hungry. Appellant
agreed, he cooked and when the food was
ready appellant called him.
As they were sitting down and preparing to eat the complainant came
to where they were seated. Appellant
left with the complainant and
went to his shack 'to put the blankets in order'. After about 20
minutes he called out to appellant
and enquired from him whether he
is not coming to eat and enquired about the whereabouts of the
complainant. The complainant was
still inside appellant's shack He
reported to C. that the appellant was in his shack with the
complainant. At the time of the incident
he had a good relationship
with the appellant.
[12]
C. S. testified that on the 30 June 2007 she found the complainant in
the appellant's shack wearing only her underwear. She
took the
complainant and left the shack. During cross examination she
testified thatM. followed her to the appellant's shack but
he did not
go inside. She confirmed that when she called out to the appellant,
he did not respond. She reiterated that she found
the complainant in
the appellant's shack. Members of the community wanted to assault the
appellant and her husband, I., protected
him.
[13]
E. M. testified that the complainant was playing at I.'s place. She
was informed that the complainant was raped.
[14]
Dr Sophia Carla Language testified that she is the doctor that
examined the complainant. She confirmed that she recorded the
complainant's date of birth as 8 January 2000. She testified that she
saw the complainant at 22h30 on the 30
th
June 2007. She
noted that there were small tears, the labia majora also had linear
tears. It was in line with trauma. Under conclusions
Dr Language
noted: 'Injuries observed is consistent with alleged sexual assault'.
The JBB was handed in as an exhibit. During cross
examination
she could not explain the discrepancy with regard to the birth date.
She further testified that it was an oversight
that she did not
complete the name of the complainant on the JBB. Although the JBB did
not have the name of the complainant, it
had the case number which
corresponds with the case number on the Affidavit in terms of Section
212(4) of Act 51 of 1977 (as amended)
in which the name of the
complainant is completed.
[15]
Appellant testified in his own defence and did not call any
witnesses. He testified that on the 30th June 2007 he came back
from
work and went to I. Samulapo's place where he consumed alcohol. He
was with I. An they were sitting under a shelter. Complainant
arrived
asking the appellant for R1.00 to buy chips. He told complainant that
he did not have money and she left. He went back
to his shack. S.
came to his shack and accused him of raping the child. Community
members came out and attacked him. The police
were called and he was
arrested. He denied that he raped the complainant. He denied that the
complainant was found at his place.
[16]
The magistrate stated that the evidence of the state forms a picture
of a six year old child who enters the appellant's shack
and is
'sexually assaulted or raped by the appellant'. As to the credibility
of the complainant, the magistrate found the complainant
to be a very
good witness, for her age. ' ... I have to emphasise that I found
her, under the circumstances, for her age, to be
a very good witness.
She did not contradict herself in any material aspects and the court
could understand what she was telling
me and what she said'.
[17]
The magistrate remarked that she found one piece of her evidence very
interesting, where she said that after she was found
someone said
'Rondekop you have raped a child'. The magistrate stated that it is
difficult to think a six year old child would
have the 'imagination
or knowledge to fabricate the kind of evidence ...' about what
happened to her. The magistrate considered
the fact that the
complainant was a single witness as to what happened to her but found
that her evidence was corroborated by the
evidence of M., S. and Dr
Language.
[18]
The magistrate considered the evidence of the accused. She noted that
the appellant's version is a bare denial which is very
difficult to
disprove. She further noted that the appellant denied that M. saw the
complainant come into his shack, and denied
that C. found the
complainant at his shack. The magistrate noted that the appellant's
version about seeing the complainant at I.'s
place was not
corroborated and the appellant never called I. to testify.
[19]
The magistrate also considered the version that was put to the doctor
that the trauma suffered by the complainant might have
been caused by
other
factors.
She noted that the version was never put to the complainant or her
mother to confirm that she did get hurt. So she concluded
that the
version about other factors that might have caused the injury was
mere speculation.
[20]
The appellant was in fact convicted on the evidence of a single
witness, a complainant aged approximately 6 years at the time
of the
trial. The complainant is a single witness with regards to what
happened to her. The evidence M. supports the complainant's
evidence
that appellant took her to his shack. His evidence is supported by
the evidence of S. who testified that she found the
complainant, who
was dressed only in her underwear, in the appellants shack. Dr.
Language's evidence corroborates the evidence
of the complainant that
she was hurt between her legs as per her illustration in court.
[21]
The appellant's reliance on Dr Language's response that the trauma
suffered by the complainant cannot be attributed to one
specific
thing was not supported. It was not put to the complainant or her
mother that the complainant could have sustained those
injuries due
to other factors other than sexual assault or rape.
[22]
It is trite that an appeal court will not disturb the factual
findings of a trial court unless the latter has committed a material
misdirection. See Rex Dlumayo and Another
1948 (2) SA 677A
at
689-690; S v Naidoo and Others
2003 (1) SACR 347.
[23]
The State bears the onus of establishing the guilt of the appellant
beyond reasonable doubt and the converse is that he is
entitled to be
acquitted if there is a reasonable possibility that he might be
innocent. The test to be applied is that the court
must be satisfied
upon consideration of all the evidence. See S v Van der Meyden
1999
(2) SA 79
(W)
[24]
The complainant in this case is a single witness as far as the
commission of the offense is concerned. In addition to being
a single
witness, the complainant is also a child and therefore more than one
cautionary rule applies to the complainant as a witness
See S v Dyira
2010(1) SACR 78E.
[25]
The evidence of the complainant is that the appellant called her into
his shack, undressed her, undressed himself and laid
on top of her
and hurt her between the legs. The evidence of M. that he saw the
appellant take the child into his shack and the
evidence of S. that
she found the complainant in the appellant's shack and she was only
wearing her underwear corroborates the
testimony of the complainant
that she was in the appellant's shack on the day in question.
[26]
The evidence of the doctor indicating that the complainant sustained
injuries to her vagina which were consistent with sexual
assault,
corroborates the evidence of the complainant that appellant hurt her
between the legs.
[27]
The accused denies that the complainant was at his shack on the day
in question; he denies that she was found in his shack
and he denies
that he raped the complainant. His version is that he saw the
complainant at I.'s house. He however did not call
I. to testify on
his behalf.
[28]
In S v Chabalala 2003(1) SACR 134 (SCA) para 15 it was said that the
correct approach is to weigh all elements which points
towards the
guilt of the accused against all those that are indicative of his
innocence, taking proper account of inner 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.
[29]
It is submitted on behalf of the appellant that the available
evidence of the complainant does not prove beyond reasonable
doubt
that there had been penetration of her vagina by way of the penis of
the appellant. It is submitted that the complainant
failed to respond
when she was asked what hurt her. Further that complainant used the
terms 'bumping' and 'sleeping' and that she
never testified that 'she
had seen the private part of the appellant and that he had inserted
his private part into her private
part'. It is submitted that since
there is no proof of penetration, the appellant should have at most
been charged with sexual
assault.
[30]
In S v Mlambo 1957(4) SA 727(A) at 738A, it was stated that while it
was not incumbent on the state to close every avenue of
escape which
may be said to be open to an accused, it would be sufficient, in
order to secure a conviction, to produce evidence
by which a high
degree of probability is raised that the ordinary reasonable man,
after mature consideration, comes to the conclusion
that there exists
no reasonable doubt that the accused has committed the crime charged.
See S v Phallo and Others
1999 (2) SACR 553
SCA at 10; S v Mavinini
2009 (1) SACR 523
SCA at 26.
[31]
The trial court came to a conclusion that the medical evidence proves
that there was at least partial penetration of the vaginal
area of
the complainant. The medical evidence as recorded by Dr Language on
the J88 is as follows: 'complainant had small linear
tears on her
para-urethral folds and labia minora, she also had swelling and fresh
tears to her hymen.' She concluded that the
injuries observed are
consistent with alleged sexual assault She said that the small linear
tears were an indication of trauma.
[32]
She testified that the injuries were consistent with the alleged
rape. When she was asked during cross-examination whether
fresh tears
on the hymen could have been caused by other factors, she said that
something must have applied pressure against the
hymen for it to
tear.
[33]
She testified that this particular tear is different from the ones on
the para-urethral folds and on the labia minora. She
stated that ' ..
dis heeltemal binne. Dis hoekom jy nie inwendige ondersoek op ·n
maagd kan doen nie want dan gaan jy hymen
skeur'. In my view the
above testimony proves that there was penetration and the trial
court's finding of guilt on a charge of
rape cannot be faulted.
[34]
The fact that the complainant did not mention that she was penetrated
cannot be used to exonerate the appellant from a conviction
of rape
where there is corroborating medical evidence. The terms used by her
i.e 'bumbing' and 'sleeping' should be considered
in light of her
age.
[35]
In my view the appellant was correctly convicted of rape.
SENTENCE
[36]
The only time that the court of appeal can interfere with sentence is
when the sentencing court has seriously misdirected itself
or when
there is such disproportion between the sentence that the appeal
court considers appropriate and the one imposed by the
sentencing
court that it invokes a sense of shock, as stated in S v Malgas
2001
(2) SA 1222
par 12.
[37]
The sentence is challenged on the basis that life imprisonment is the
ultimate sentence that the court can impose and that
it is
disproportionate to the facts of this case.
[38]
It is submitted on behalf of the appellant that: (a) the complainant
did not suffer serious injuries; (b) the complainant was
not
threatened during the commission of the offence; (c) the complainant
showed no symptoms of trauma; (d) the appellant was held
in custody
for 1 year and 4 months pending the finalisation of the trial; (e)
the complainant was not fearful of the appellant.
[39]
In sentencing the appellant the trial court considered the offender,
the offence and the interest of the society. In a detailed
judgement
the trial court had regard to the appellant's personal circumstances.
The personal circumstances of the appellant that
were placed before
the court were as follows: (a) he is 27 years old; (b) he has a
child; (c) he is contributing to the maintenance
of the child; (e) he
was employed as a gardener earning R100 per day.
[40]
The following factors were placed before the trial court as
substantial and compelling circumstances in order to justify a
lesser
sentence that the prescribed sentence of life imprisonment: (a) the
appellant's age; (b) the fact that he spent one year
four months in
custody awaiting finalisation of the trial;
(c)
the appellant can be rehabilitated; (d) the fact that the appellant's
previous conviction was older than 10 years. In my view
the trial
court correctly found that there were no substantial and compelling
circumstances.
[41]
The trial court also had regard to the seriousness of the offence. It
noted that the rape had a devastating effect on the emotional
wellbeing of the child. It had regard to the report which stated that
the child was permanently scarred emotionally.
[42]
In the present case the appellant was not a first offender, he had a
previous conviction of attempted rape. He did not accept
responsibility for what he had done to the complainant and made her
relieve the trauma by testifying at the trial.
[43]
The State presented a report that detailed the effect that the rape
has had on the complainant. The report was considered by
the trial
court, and it was noted that the rape has damaged the complainant
permanently. The court also noted that her relationship
with other
people and her relationship with her father and other males have been
scarred. Her ability to perform at school has
been negatively
affected.
[44]
In my view the trial court cannot be faulted for imposing life
imprisonment. Consequently the appeal against sentence stands
to be
dismissed.
[45]
In the result I make the following order:
1.
Appeal against conviction is dismissed.
2.
Appeal against sentence is dismissed.
___________________
P D MOSEAMO
ACTING JUDGE OF THE
HIGH COURT
I
agree, and it is so ordered
_____________________
J
W LOUW
JUDGE OF THE HIGH
COURT