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[2015] ZAFSHC 94
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Teele v S (A209/2014) [2015] ZAFSHC 94 (14 May 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number: A209/2014
In
the appeal of:
THABO
TEELE
…................................................................................................................
Appellant
versus
THE
STATE
….....................................................................................................................
Respondent
CORAM:
VAN ZYL, J and WILLIAMS, AJ
JUDGMENT
BY:
WILLIAMS, AJ
HEARD
ON:
20 APRIL 2015
DELIVERED
ON:
14 MAY 2015
[1]
Appellant was charged in the regional court, Bloemfontein, for
contravening section 3 read with the provisions of section 1,
55,
56(1), 57, 58, 59, 60 and 61 of act 32 of 2007 in that he allegedly
raped M[…] M[…] (age 9) on 6 June 2010 at
Bloemfontein.
He unlawfully and deliberately sexually penetrated the complainant
without her permission.
[2]
The appellant was represented in the court a quo by Mr Sujada. He
pleaded not guilty, based on a total denial. He was convicted
of
rape.
He
was then sentenced to life imprisonment in terms of section 276(1)(f)
of Act 51 of 1977 as amended, read with Act 105/1997
as
amended.
Appellant
sought leave to appeal which was refused. Leave to appeal against the
conviction and sentence was thereafter granted on
petition to this
court.
[3]
The grounds of appeal are as follows:
3.1
Ad conviction:
a.
That the court a quo erred by not
approaching the evidence of the complainant with caution since she
was a single witness;
b.
That the court a quo erred by accepting the
evidence of the third state witness that the complainant was unable
to walk, since the
medical evidence did not support such finding;
c.
That the court a quo erred by relying on a
medical report that the complainant was raped;
d.
That the court a quo erred by not accepting
the version of the appellant and not giving him the benefit of the
doubt.
3.2
Ad sentence:
a.
A sentence of life imprisonment is
shockingly inappropriate since the court a quo did not pay proper
attention to the appellant’s
personal circumstances and
mitigating factors;
b.
That the court a quo erred by not finding
that the appellant’s personal circumstances and mitigating
factors could be considered
compelling and substantial.
[4]
The evidence tendered by the prosecution can be summarised as
follows:
4.1
4.1.1
The complainant, M[…] M[…], a 9 year old girl,
testified that on the day of the incident she was sent by her
guardian, M[…], to the appellant’s house to ask for
maize meal. The appellant was dressed only in his underpants.
He
pulled her into a bedroom where he proceeded to rape her vaginally as
well as anally. He thereafter gave her R20, 00 to give
to M[…]
and she returned home, reported the incident to M[…], who did
not believe her. M[…], however took
the money from the
complainant. Thereafter, presumably the following day, the uncle of
the complainant was informed of the incidents
by a neighbour, M[…]
M[…]. He contacted the police who arrested the appellant. M[…]
was thereafter taken for
a medical examination to doctor J.M.
Coetzee.
4.1.2
During cross-examination the complainant testified that it was the
first time to be sent to the appellant’s house and
that she had
never before entered his premises. According to her, there was some
liquor on a table but that the appellant was not
drunk. She testified
that the house comprised of three rooms, which appellant had shown
her. This was not canvassed any further
by Mr Sujada, and therefore
stands uncontested.
4.2
The uncle of the complainant, K[…] S[…] M[…],
testified that he heard from Me M[…] about the incident.
He
enquired from M[…] as to why she did not inform him
accordingly and last mentioned denied that the rape incident took
place. M[…] was confronted in the presence of M[…].
According to him, M[…] did not have permission for the
complainant to stay with her. The complainant relayed the version to
him and according to him the complainant could not walk properly.
This witness testified during cross-examination that M[…] only
told him that she was raped anally.
4.3
The neighbour of the complainant, M[…] M[…], testified
that she did not know the appellant. She had been woken
up by M[…]
during the morning after the incident and was informed by her that
the complainant was raped, that she had called
the police but was
informed that the police did not have transport to assist. She
further testified that she informed the uncle
of the complainant
about the incident, although M[…] was not present then. During
cross-examination it was put to her that
M[…] would deny
telling the witness that the complainant was raped. Instead, M[…]
would tell the court of an incident
where appellant was seen
whispering to M[…] at the fence of M[…]’s
property. According to M[…], the
complainant told her that the
appellant had offered her R20,00 in exchange for sex. M[…]
denied this. Importantly, she did
confirm that M[…] had
informed her about the R20, 00 that was handed over by the
complainant. This piece of evidence is
of vital importance and I will
deal with it during the analysis of the evidence. It was furthermore
put to the witness that the
uncle wanted custody of the complainant
and that the rape incident was a fabricated story, although this was
never put to the uncle
for his comment.
4.4
The last state witness is doctor Coetzee who testified that there
were not extra genital abnormalities and that the development
of the
complainant was at Tanner Stage 1. The Gynaecological and anal
examination was normal. Her finding was one of possible child
abuse
according to the Adams classification. According to the witness the
redness observed in the fossa navicularis, was non-specific
and that
various factors could cause same.
4.5
4.5.1
That concluded the state’s case and the appellant testified in
his own defence. He denied the allegation of rape and
denied that the
complainant was sent to his house or that he gave her R20, 00. He
testified that he was at a drinking place up
until 5pm and thereafter
returned home, which was next door to the shebeen. Shortly thereafter
M[…] came to his dwelling
and confronted him with the
allegation that he had raped the complainant. He asked M[…] as
to the time and place where the
incident took place. He further
testified that he had never heard about the R20, 00 story until the
trial had commenced. He had
a good relationship with M[…],
whom he referred to as the complainant’s mother. There had been
a problem between them
about four months prior to the incident but
according to him, this had been resolved. He did not know the uncle
or the neighbour
and had no knowledge as to why they would fabricate
this allegation against him. He denied that he would ever have
whispered to
the complainant.
According
to him, M[…] had never been to his house at any stage, either
on the day of the alleged rape or prior thereto.
The following day,
M[…] also confronted him about the alleged rape, but from a
distance.
4.5.2
He further testified that he had no knowledge how the uncle had come
to hear about the incident. Furthermore that he was at
a drinking
place on the day of the incident and that the owner of the
establishment will be able to confirm the same. This was,
however,
never put to the state witness.
4.6
4.6.1
One defence witness was called, M[…] P[…] M[…].
She testified that the complainant had been staying with
her since
she was ten days old. She was not the biological mother of M[…].
On the Sunday she saw the appellant whispering
to the complainant,
she confronted the complainant and was eventually told that the
appellant had offered her R20,00 to have sexual
intercourse with her.
4.6.2
She confronted the appellant at a drinking place and he threatened
her. She told the neighbours that the complainant was almost
raped by
the appellant and that he had offered the complainant R20,00. On the
Monday the uncle came to her house and confronted
her about the
incident, she informed him that the complainant was not raped,
whereafter he took the complainant away.
4.6.3
She denied having sent the complainant to the appellant and that
R20,00 was handed over to her. Later in cross-examination,
the
witness testified that R20, 00 was handed to her by the complainant
on a previous occasion. She denied having told the neighbour
that
M[…] was raped, or that she could not have walked properly.
During cross-examination it was put to her that the appellant
testified she confronted him of raping the complainant, which she
denied. She stated that she had confronted the appellant with
the
version of the whispering incident and offer for sex. She was adamant
that since the Sunday when she confronted the appellant
at the
drinking place, complainant was in her presence the whole time. It
could therefore not have been possible for the appellant
to rape the
complainant. She further said that M[…]’s version was
pure fabrication and that she had been coached by
the uncle to
provide such version to the court. That concluded the defence case.
[5]
5.1
Me Kruger who appeared for the appellant argued that the complainant
was a 9 year old single witness and that the cautionary
rules applied
to her evidence, as set out in
R
v Mokoena
1932 OPD 79
as well as
R v Mokoena 1956(3) SA
81 (A)
.
5.2
Me Kruger argued that the medical report could be seen as neutral She
further argued that the court
a quo
erred by accepting
the evidence of the complainant and that it had to be evaluated with
caution. She submitted that although
there were statements put to
witnesses which were not testified to by the appellant, his version
could still be seen as reasonably
possibly true.
She
referred to
Shusha v The State
(609/10)
[2011] ZASCA 171
, par. 9
in which it is recorded:
“
It
is trite law that in criminal matters the state must prove its case
beyond reasonable doubt. An accused’s version can only
be
rejected if the court is satisfied that it is false beyond reasonable
doubt. An accused is entitled to an acquittal if there
is a
reasonable possibility that his or her version may be true. An
accused’s version cannot be rejected merely because it
is
improbable.”
On
this basis Me Kruger suggested that the conviction cannot stand. She
did, however, concede that the evidence of Mampi was unconvincing.
[6]
As far as sentence was concerned she argued that this court could and
should interfere with the sentence of lifelong imprisonment
that was
handed down. She emphasized the appellant’s personal
circumstances as well as the fact that he had spent 17 months
in
custody awaiting trial. He was a first offender and 55 years old, as
well as gainfully employed at the time. Compelling and
substantial
circumstances existed which should minimise the maximum sentence.
[7]
7.1
Mr Botha, who appeared for the state, agreed that the cautionary rule
needed to be applied, but argued that the magistrate had
not erred in
applying the same. He argued that the court had not erred in
accepting the evidence of the complainant and the state
witness as
credible. He was of the opinion that the appellant himself had
provided corroboration for the state’s case in
that M[…]
had confronted him with the allegation of rape. Mr Botha was further
of the opinion that the fact that no injuries
were found did not
suggest that the complainant had not been raped. According to Mr
Botha therefore the court
a quo
had correctly adjudicated that
the appellant and his witness’s evidence was
contradictory and that the versions of
both had to be rejected as
false beyond reasonable doubt.
7.2
On sentence he submitted that there were no grounds for interference.
[8]
8.1
As stated by the magistrate in his judgment at page 108 of the record
at line 15:
“
Whichever
way this court looks at the facts before it, the R20,00 and the
sexual intercourse, or rape, or sexual penetration, the
facts
thereof, keep on coming up. Is this coincidence? This court thinks
not.”
The
court
a quo
found on page 109 at line 20 as follows:
“
The
court a quo found the complainant to be a credible witness. The uncle
and the neighbour corroborated her on all material aspects,
they did
not make it worse than what it was. The neighbour even went so far as
to say she didn’t see the complainant. It
would have been easy
to make matters worse, for instance by saying the child was beaten,
the child was bloody, etc., etc. This
was not done, just the facts
were given to the court.”
Conversely,
the magistrate found that the accused and his witness were not sure
which versions to stick to, as to whether he was
drinking, whether he
was whispering to the child or whether this allegation was made to
him at all. The magistrate therefore rejected
the accused’s
version as false.
8.2
In evaluating the totally of the evidence I agree with the findings
of the court
a quo
. One of the major factors which tends to
prove the appellant’s guilt beyond reasonable doubt is his own
evidence that M[…]
confronted him on the same afternoon,
accusing him of raping the complainant. She would not have acted in
such a manner but for
the report. There is no evidence of malice
between them. This testimony, coupled with the evidence of M[…]
that M[…]
told her of the alleged rape on the following day
demonstrates that the complainant must have told M[…] of the
incident.
Furthermore, M[…]’s evidence that R20,00 had
been given to M[…] by the complainant must be accepted as
true.
The reasons for M[…]’s false version are
irrelevant. For purposes of this judgment her testimony can be
ignored.
I
would therefore dismiss the appeal in respect of the conviction.
[9]
9.1
As far as the sentence imposed is concerned, it is trite law that
each matter must be adjudicated on its own merits and that
all
relevant factors must be carefully judged. Majiedt, JA, emphasized
this principle again in
S v SMM, 2013(2) SACR 292 (SCA)
as follows in paragraphs [13] and [14]:
“
[13]
… I hasten to add that it is trite that each case must be
decided on its own merits. It is also self-evident that sentence
must
always be individualised for punishment must always fit the crime,
the criminal and the circumstances of the case. It is equally
important to remind ourselves that sentencing should always be
considered and passed dispassionately, objectively and upon a careful
consideration of all relevant factors. Public sentiment cannot be
ignored, but it can never be permitted to displace the careful
judgment and fine balancing that are involved in arriving at an
appropriate sentence. Courts must therefore always strive to arrive
at a sentence which is just and fair to both the victim and the
perpetrator, has regard to the nature of the crime and takes account
of the interests of society …
[14]
… There is consequently increasing pressure on our courts to
impose harsher sentences primarily, as far as the public
is
concerned, to exact retribution and to deter further criminal
conduct. It is trite that retribution is but one of the objectives
of
sentencing. It is also trite that in certain cases, retribution will
play a more prominent role than the other sentencing objectives.
But
one cannot only sentence to satisfy public demand for revenge –
the other sentencing objectives, including rehabilitation,
can never
be discarded all together, in order to attain a balanced, effective
sentence.”
The
magistrate referred to case-law dealing with a variety of factors
relating to sentence and determined that the fact that the
appellant
was a first offender, should not be seen as a compelling and
substantial factor. He referred to
S v Zinta 1990(2) SACR 44 W
in this regard. I, however, feel that the court
a quo
did not
give sufficient credit to the personal circumstances of the
appellant. At the time of sentencing the following, amongst
others,
was placed on record:
Appellant
was 55 years old at time of sentencing;
Appellant’s
highest qualification is Standard 1;
Appellant
had four children, two of whom were still minors at the time of
sentencing;
Appellant
was maintaining the children and working as a contractor, earning an
income of R2 400,00 per month;
Appellant
had no previous convictions and was a first defender;
Appellant
had spent 17 months in custody awaiting trial.
The
aggravating circumstances have been taken into consideration.
9.2
The defence attorney did refer the magistrate to the matter of
S
v Mongoma 2007(2) SACR, at 198,
where it was indicated that
the age and absence of a previous conviction could be taken into
account. The magistrate declined to
follow this option.
9.3
According to the present foster mother of the complainant, her
relationship with men has improved and she is no longer scared
of
them. According to the provisions of section 51(3)(aA), the
apparent lack of injury to a complainant does not constitute
a
substantial and compelling circumstance justifying in position of a
lesser sentence than the minimum prescribed. However, according
to
Hiemstra’s commentary on this section found in Hiemstra’s
Criminal Procedure at 28-24(1)”
“
If
the provision regarding the apparent lack of physical injuries is
interpreted literally, it is unconstitutional because it would
mean
that Parliament is attempting to instruct judges to ignore factors
which are relevant when imposing sentence, and to impose
sentences
which would consequently be unfair (S v Nkawu
2009 (2) SACR 402
(ECG)
par [15] per Plasket J). The provisions should however be read so as
to preserve constitutional values. Section 51 (3)(aA)(ii)
should be
read to mean that any one of the factors mentioned on their own may
not be regarded as a substantial and compelling circumstance
justifying departure from the prescribed sentence, but each of the
factors may be considered together with the other factors
cumulatively
to amount to substantial and compelling circumstances.
On this interpretation the court is not precluded from considering
the fact
that the complainant suffered no serious or permanent
injuries, along with the basket of other factors, in order to arrive
at a
just and proportionate sentence (par [17]). The same argument
applies in respect of the other factors mentioned in section 51
(3)(aA).
The factors must be considered cumulatively, not
individually (S v SMM
2013 (2) SACR 292
(SCA)).”
Although
the appellant was convicted of a serious offence which has reached
epidemic proportions in our country, I am convinced
that the
cumulative effect of the mitigating factors are of such a nature that
they provide substantial and compelling circumstances
which justify
the imposition of a lesser sentence. The imposition of the life
sentence of imprisonment disturbs one’s sense
of justice, is
unjust and inappropriate. In
S v
Malgas 2001(1) SACR (SCA)
it was
determined that in such circumstances a less severe punishment be
imposed. It is recorded at paragraph 25 thereof:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[10]
I am therefore inclined to interfere with the sentence.
[11]
The following orders are made:
1.
The appeal against the conviction is
dismissed.
2.
The sentence of life imprisonment is set
aside and replaced with one of 13 years imprisonment.
3.
The sentence is assumed to have been handed
down on 15 November 2011.
______________________________
A.
WILLIAMS, AJ
I
concur:
______________________________
C.
VAN ZYL, J
On
behalf of appellant: S. Kruger
Bloemfontein
Justice Centre
On
behalf of the state: J.P du P Botha
Director:
Public Prosecution