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[2015] ZAFSHC 166
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Monende v S (A84/2015) [2015] ZAFSHC 166 (27 August 2015)
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Certain
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal
No.: A84/2015
In
the appeal between:
JOHANNES
MOSUWE
MONENDE
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
MOKOENA,
AJ
JUDGMENT:
DAFFUE,
J
HEARD
ON:
24
AUGUST 2015
DELIVERED
ON:
27
AUGUST 2015
I
INTRODUCTION
[1]
On 7 November 2011 appellant was convicted on two counts of rape and
one count of sexual assault in the regional court held
in Sasolburg.
The charges were taken together for purposes of sentence and he was
sentenced to life imprisonment. Appellant
has an automatic
right of appeal.
II
GROUNDS OF APPEAL
[2]
It is the appellant’s case that the court
a
quo
erred in convicting him in that (a) the State failed to prove his
guilt beyond reasonable doubt, (b) his version should have been
found
to be reasonably possibly true, (c) the negative DNA result is
indicative of his innocence and (d) the complainant’s
version
is a fabrication.
[3]
The grounds of appeal relating to sentence are that the court
a
quo
failed
to take into account (a) the harsh conditions in the correctional
centre and (b) the mitigating factors, i.e. he is a first
offender,
he spent time awaiting trial and he co-operated with the police.
III
THE CHARGE SHEET AND A BRIEF SUMMARY OF COMPLAINANT’S
VERSION
[4]
The appellant faced three counts of rape, the first that on 11 July
2010 he raped the complainant, a [….] year old girl,
by
inserting his penis into her vagina, the second that in or about 2010
he raped the same complainant by inserting his penis into
her anus
and thirdly, that in or about 2010 the same complainant was raped by
him in that he inserted his penis into her vagina.
It is
alleged that all three crimes were committed at or near Somerspost
and in all three instances the deeds were executed without
the
consent of the complainant.
[5]
Complainant testified, in line with the allegations contained in
counts 1 and 2, that she was in the care and custody of her
stepfather, the appellant, on 11 July 2010 during her mother’s
hospitalisation, that appellant took her into his bedroom,
locked the
room and raped her by inserting his penis into her vagina, where
after he also inserted his penis
“
in
between her bums”
.
Me A. S., a […] year old cousin of the complainant came
looking for her and knocked at the bedroom door, but appellant
did
not open the door. She went to call her sister-in-law where
after they went to appellant’s home and knocked at
his bedroom
door. Appellant came out, informing them that he was not aware
of complainant’s whereabouts and went to
the toilet. The
two ladies came across complainant inside appellant’s bedroom
where she was hiding behind the curtains,
wearing a panty and T-shirt
only. Complainant made her first report to the two ladies and
confirmed that she had been raped
by appellant. She also
informed them that appellant used two condoms. The complainant
was examined by a medical practitioner
a few hours later who found
abrasions on her private parts, the para-urethral folds in
particular, but no tears. A fresh
tear was found at the
11o’clock position in her anus. The medical practitioner
testified as well and denied that his
findings were consistent with
“
forced
penetration”
,
although he stated that
“
there
was alleged sexual offence”.
[6]
Count 3, as is the case with count 2, does not indicate the specific
date of the alleged offence, but the offence referred to
allegedly
occurred prior to the incidents of 11 July 2010. According to
complainant she was again left in the care of appellant
when her
mother attended a funeral. At that time the appellant allegedly
raped her by inserting his penis
“
in
her bums”
,
the effect of her testimony being that she was raped by way of
penile-anal penetration. She tried to tell her mother when
she
returned, but the mother stopped her. However if one
scrutinises the evidence, it is apparent that complainant wanted
to
convey to the court that appellant threatened to beat her if she
dared informing her mother of the incident and that she did
not try
to tell her mother. The difficulty with the conviction in
respect of this matter is the clear allegation in count
3 that rape
occurred by way of penile-vaginal penetration and not as described by
complainant. No effort was made by the
prosecutor to ask for an
amendment of the charge sheet. There must have been uncertainty
as to whether complainant changed
her version as conveyed in her
witness statement, or whether a
bona
fide
mistake was made in drawing the charge sheet. This aspect was
never taken any further, neither during evidence in chief,
nor during
cross-examination, or in the arguments addressed to the court
a
quo
.
The court
a
quo,
without making any specific findings in this regard, convicted
appellant of sexual assault in respect of count 3 and not rape,
it
being a competent verdict on a charge of rape. These aspects
will be dealt with later in this judgment.
IV
THE SUBMISSIONS ON BEHALF OF THE PARTIES
[7]
Mr Hoffman who appeared on behalf of the State submitted that the
court
a
quo
did not make any misdirections and that the appeal in respect of both
the convictions and sentence should be dismissed. When
it was
put to him during oral argument that there was a clear discrepancy
between the allegations contained in count 3 and the
version of the
complainant which version was not corroborated at all, that the court
a
quo
decided to convict appellant of sexual assault only without
explaining why, whilst the scribe of this judgment was of the view
that appellant should have received the benefit of the doubt, he
conceded that the appeal in respect of the conviction pertaining
to
count 3 should succeed.
[8]
Mr Hoffman submitted in respect of sentence that appellant was in a
position of trust, complainant was a young girl and based
on
authorities such as
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA),
S
v Malgas
2001 (1) SACR 469
(SCA) and
S
v Matyityi
2011 (1) SACR 40
(SCA), the court
a
quo
was
correct in imposing life imprisonment notwithstanding the fact that
there was a failure by the court
a
quo
to
deal with the various aggravating and mitigating factors and
indicating why no substantial and compelling circumstances were
present. The court
a
quo
briefly referred to the fact that the minimum sentence legislation
applies to first offenders as well and that the appellant was
trusted
by his partner and mother of the complainant to such an extent that
the complainant was left in his care and custody during
her
hospitalisation. The point was made that appellant was expected
to protect the complainant and not to abuse her.
[9]
Appellant’s heads of argument were drafted by Mr Reyneke, but
oral argument was presented to us on his behalf by Mr Makhene.
Neither of these two legal representatives argued the matter with
conviction and I got the distinct impression that they did not
believe that the court of appeal should interfere with either the
convictions or the sentence. When I addressed my difficulty
with the conviction on count 3 to Mr Makhene, he conceded that he had
not considered the aspect at any stage and that it would
be difficult
for him to make submissions in that regard.
V
LEGAL
PRINCIPLES AND LEGISLATION RELATING TO THE CRIMES
[10]
Where an appeal is lodged against a trial court’s findings of
fact the court of appeal must take into account that the
court
a
quo
was in a more favourable position than itself to form a judgment.
When inferences from proven facts are an issue, the court
a
quo
may also be in a more favourable position than the court of appeal
because it is better able to judge what is probable or improbable
in
the light of its observation of witnesses who have appeared before
it. Therefore, where there has been no misdirection
of fact, a
court of appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings, unless it is
convinced that the trial court is wrong. See
R
v Dhlumayo and Others
1948 (2) SA 677
(AD) at 705 – 706.
[11]
Therefore in order to interfere with the court
a
quo
’s
judgment, it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory,
or where
the record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the SCA stated that it is
only in exceptional cases that it will be entitled to interfere with
the trial
court’s evaluation of oral evidence and concluded as
follows:
“
This
court’s powers to interfere on appeal with the findings of fact
of a trial court are limited. … In the absence
of demonstrable
and material misdirection by the trial court, its findings of fact
are presumed to be correct and will only be
disregarded if the
recorded evidence shows them to be clearly wrong (S v Hadebe and
Others
1997 (2) SACR 641
(SCA) at 645e-f),”
[12]
In assessing the evidence the trial court must in the ultimate
analysis look at the evidence holistically in order to determine
whether the guilt of the accused is proved beyond reasonable doubt.
Inherent probabilities and improbabilities may be considered
in
evaluating the evidence in totality. See
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15]). It is permissible to
test the accused’s version against the inherent probabilities,
but it cannot
be rejected merely because it is improbable. It
can only be rejected on the basis of the inherent probabilities if it
can
be said to be so improbable that it cannot be reasonably possibly
true. See
S
v Schackell
2001 (2) SACR 185
(SCA) at para [30].
[13]
Section 208
of the
Criminal Procedure Act, 51 of 1977
, provides that
an accused may be convicted of any offence on the single evidence of
any competent witness. There is no magic
formula to apply when
it comes to the consideration of the credibility of a single
witness. The trial court should weigh
the evidence of a single
witness and consider its merits and having done so should decide
whether it is satisfied that the truth
has been told despite the
shortcomings or defects in the evidence. See
S
v Sauls
1981 (3) SA 172
(AD) at 180E-G. See also
Stevens
v S
2005 (1) All SA 1
(SCA) at 5d-e. Where the evidence of a single
witness is corroborated in any way the caution enjoined may be
overcome and
acceptance facilitated, but corroboration is not
essential. Any other feature which increases the confidence of
the court
in the reliability of the single witness may also overcome
the caution.
[14]
There is no statutory requirement that a child’s evidence must
be corroborated, but it has been accepted for a long time
that the
evidence of young children should be treated with caution and that
the evidence in a particular case involving sexual
misconduct may
call for a cautionary approach. See
S
v V
2000 (1) SACR 453
(SCA) at 454i-h.
[15]
Rape is the crime in terms whereof a person unlawfully and
intentionally commits an act of sexual penetration with another
(the
complainant) without the consent of the complainant. See
s 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
32 of 2007
.
“
Sexual
penetration”
is
defined in
s 1
of the aforesaid Act to include
“
any
act which causes penetration to any extent whatsoever by - (a) the
genital organs of one person into or
beyond
the genital organs, anus or mouth of another person; (b)….
(c)….”
(emphasis
added.)
“
Sexual
assault”
is
defined in
s 5
as the crime in terms whereof a person unlawfully and
intentionally sexually violates a complainant without the consent of
the
complainant.
“
Sexual
violation
includes
any act which causes
(a)
direct or indirect contact between the (i) genital organs or anus of
one person or,
……”
See
s 1
of the aforesaid Act.
[16]
There can be no doubt that the crime of rape is not only committed
when for example the penis of one person penetrates the
vagina or
anus of another person, but also when the penis of that person causes
penetration to any extent whatsoever, i.e. into
or even beyond the
vagina or anus of the other person. The translation of
“
beyond”
in the
Afrikaans text is
“
verby”
.
VI
LEGAL PRINCIPLES PERTAINING TO SENTENCE
[17]
The appellant was sentenced to life imprisonment in terms of the
provisions of
s 51(1)
, read with
Part 1
of Schedule II of the
Criminal Law Amendment Act, 105 of 1997
. The prescribed minimum
sentence for the rape of complainant, a 10 year old girl and thus
under the age of 16, is life imprisonment.
Although appellant
is not the father of the complainant, he is her stepfather in so far
as he has been living with the complainant’s
mother as husband
and wife for a considerable period of time. The Supreme Court
of Appeal found in
MDT
v S
(548/2013)
[2014] ZASCA 15
(20 March 2014), delivered on 20 March
2014 at para [6] that one can rightly ask what could be considered
more heinous than the
rape of a child by a father. The SCA
referred with approval to the remarks of Cameron JA in
S
v Abrahams
2002 (1) SACR 116
(SCA) at paras [17] – [23].
[18]
In
S
v PB
2013 (2) SACR 533
(SCA), in line with
Matyityi
loc
cit,
the Supreme Court of Appeal emphasised in para [20] that prescribed
minimum sentences should not be departed from lightly or for
flimsy
reasons. The SCA refused to interfere with the prescribed
sentence of life imprisonment imposed on a father who had
raped his
12 year old daughter. As mentioned in paragraph [7] of
MDT
loc
cit
“
child
rape is a national scourge that shames us as a nation”
.
The courts have a serious duty to prevent young girls from being
abused. Sachs, J stated the following in a unanimous
judgment
of the Constitutional Court in
Bothma
v Els
2010
(2) SA 622
(CC) at para [47]:
“
Child
rape is an especially egregious form of personal violation….
By its very nature it is frequently characterised by secrecy
and
denial. There is accordingly a special public interest in
taking action to discourage and prevent rape of children.
Because it often takes place behind closed doors and is committed by
a person in a position of authority over the child, the result
is the
silencing of the victim, coupled with difficulty in obtaining
eyewitness corroboration.”
[19]
The determination of a sentence in a criminal case is pre-eminently a
matter for the discretion of the trial court. In
the exercise
of this function the trial court has a wide discretion in deciding
which factors should be allowed to influence the
court in determining
the measure of punishment and in determining the value to attach to
each factor taken into account.
A failure to take certain
factors into account or an improper determination of the value of
such factors amounts to a misdirection,
but only when the dictates of
justice carry clear conviction that an error has been committed in
this regard. A mere misdirection
is not by itself sufficient to
entitle a court of appeal to interfere with the sentence as the
misdirection must be of such a degree
or seriousness that it shows
that the court did not exercise its discretion at all or exercised it
improperly or unreasonably.
See
S
v Kibido
1998 (2) SACR 213
(SCA) at 216g-j.
[20]
It has also been stated that the court of appeal will not alter a
sentence imposed by the trial court unless it is found that
no
reasonable person ought to have imposed such a sentence, or that the
sentence is totally out of proportion to the gravity or
magnitude of
the offence, or that the sentence evokes a feeling of shock or
outrage, or that the sentence is grossly excessive
or insufficient,
or that the trial court has not exercised its discretion properly.
See
S
v Fhetani
2007 (2) SACR 590
(SCA) at para [5] and
Director
of Public Prosecutions KwaZulu Natal v P
2006 (1) SACR 243
(SCA) at 254c-f,
S
v Bogaards
2013 (1) SACR 1
(CC) at para [41] and
Monyane
and Others
loc
cit
at paras [23] and [26].
VII
FINAL EVALUATION OF THE EVIDENCE
[21]
On 11 July 2010 the complainant was found in appellant’s
bedroom, hiding behind the curtains whilst wearing her panty
and
T-shirt only. Appellant, who exited from that room and passing
the two ladies who had been knocking on his door, indicated
that he
did not know anything about the whereabouts of the complainant.
He initially refused to open the door when Me Sompane
knocked at the
first occasion and it is apparent from the evidence of the
complainant that he was at that stage busy with his heinous
deed of
raping her. When Me Sompane left to call her sister-in-law and
only when the two ladies approached the bedroom of
appellant and
knocking on the door again, did appellant open the door. The
ladies confronted complainant who informed them
that she had been
raped, causing them to visually examine her at that stage.
[22]
As indicated above, the medical report and the testimony of the
medical practitioner confirm the complainant’s version
although
the medical practitioner was not prepared to testify that forced
penetration occurred. It must however be taken
into
consideration that he is not a legal expert and not necessarily aware
of the definition of rape.
[23]
Appellant was a poor witness who was in essence caught red-handed.
He advanced a pathetic and false explanation as to
the whereabouts of
the complainant. His version was correctly rejected as false in
respect of the events of 11 July 2010.
I am satisfied that a
proper case has been made out for the convictions on counts 1 and 2
and that the appeal in this regard should
be dismissed. Even if
it is accepted that “full” penetration did not occur in
either or both instances, the facts
stated by complainant
corroborated by the objective facts are indicative that the crimes of
rape, based on the definitions referred
to above, were committed.
[24]
The allegations pertaining to count 3 are more complex.
Firstly, there is no corroboration in the form of a so-called
first
report or direct evidence of complainant’s version; secondly,
there is no objective evidence such as medical evidence
to
corroborate her version; and thirdly, her version is in direct
conflict with the allegations contained in count 3 as mentioned
above. Appellant denied that he raped and/or sexually assaulted
complainant at the stage when her mother attended the funeral.
The fact that complainant’s mother attended a funeral at a
stage is common cause, but that is insufficient for a finding
that
the State has proven its case beyond reasonable doubt.
Appellant was not convicted of rape – correctly so –
but
he should not have been convicted at all. The appeal must
succeed in respect of the conviction on count 3.
[25]
It is apparent that there was not full and forced penetration,
particularly pertaining to complainant’s vagina if one
takes
into consideration the medical evidence. However, abrasions
were found and there was as least one tear at her anus.
Complainant, a […] year old girl at that stage, was severely
abused by her stepfather and the person in whose care and custody
she
was left when her mother was hospitalised. This is a heinous
offence and although appellant is not her natural father
as was the
case in the authorities mentioned above, complainant in all
probabilities regarded him as her father and custodian.
Appellant was in a position of authority and trusted to such an
extent that her mother was prepared to leave her in his care
and
custody during her temporary absence.
[26]
Appellant was entirely without remorse and maintained his innocence
throughout the trial notwithstanding the fact that he was
caught
about red-handed. When the complainant’s mother testified
about the telephone call and the fact that appellant
asked for
forgiveness for his wrongdoings, it was put to her on behalf of
appellant that she was not telling the truth. This
is further
proof of his lack of remorse.
[27]
It must also be accepted that although no expert testimony was led
pertaining to emotional and psychological effects of the
incidents on
the complainant, logic dictates that she was in fact severely
traumatised during and as a consequence of the rape
episode and
furthermore as a result of having to testify in the trial. Both
the rape incident and the experience during the
trial must have been
nightmarish experiences and it was totally unnecessary for the
complainant to be subjected to either of these.
[28]
Although we are at liberty to reconsider the sentence of life
imprisonment in so far as the court
a
quo
has taken the three convictions together for purposes of sentence and
we have found that the appeal should succeed in respect of
count 3, I
am satisfied, bearing in mind the evidence produced during the trial,
the authorities and what have been stated above,
that no substantial
and compelling circumstances are present
in
casu
and consequently life imprisonment was called for and should have
been imposed. The appeal against sentence cannot succeed.
VIII
ORDER
[29]
Consequently the following orders are made:
1.
The
appeal succeeds partially in that the appeal pertaining to the
conviction in respect of count 3 is upheld.
2.
The
appeal against the convictions pertaining to counts 1 and 2 is
dismissed.
3.
The
appeal against the sentence of life imprisonment is dismissed.
_____________
J.P.
DAFFUE, J
I
concur.
________________
R.
MOKOENA, AJ
On
behalf of appellant:
Adv. O. Makhene
(Mr J
D Reyneke drafted the Heads)
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent:
Adv. R. Hoffman
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN
/eb