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[2015] ZAFSHC 225
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Booysen v S (A175/2015) [2015] ZAFSHC 225 (19 November 2015)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No.: A175/2015
DATE: 19 NOVEMBER 2015
In the matter between:
PIERRE
BOOYSEN
.................................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
CORAM: MOLOI, J et MOHALE, AJ
HEARD ON: 09 NOVEMBER 2015
DELIVERED ON: 19 NOVEMBER 2015
MOLOI, J
[1] The appellant was convicted of rape
of the complainant in contravention of section 3 of Act 32 of 2007
and two counts of contravention
of section 5 (1) of the same Act. It
was alleged that during 2009 at Dagbreek in Welkom the appellant
committed an act of sexual
penetration of the complainant by lying on
top of her, penetrated her sexual organ with an unknown object, his
finger and his tongue
and that during 2009 and during 2012/13 he
touched her sexual organ, played with it and licked it with his
tongue. In 2009 the
complainant was 10 years old. He was sentenced on
count 1 to twenty years imprisonment and on counts 2 and 3 to three
years imprisonment.
The sentences in counts 2 and 3 were ordered to
run concurrently with the sentence in count 1. He appeals both the
convictions
and sentences with the leave of this court on petition
leave to appeal having been denied by the trial court.
[2] The appeal against conviction is
premised on three grounds, namely that the trial court erred in
finding that the State had
proved the case against the appellant
beyond a reasonable doubt, that the trial court did not make a proper
assessment of the contradictions
in the State case together with the
precautionary rules applicable to a single witness and that the trial
court erred in rejecting
the appellant's version. Against the
sentence the grounds of appeal are that the sentence imposed is
shockingly heavy and inappropriate
and that the trial court did not
give due consideration to the appellant’s personal
circumstances.
[3] The complainant testified that
during 2009 she, her brother [H……..] and the appellant
were home. The appellant
called her to the bathroom and told her what
was going to happen she must not tell anyone and, if she did so, he
was going to kill
her entire family. He ordered her to go to the
bedroom, undress herself and lie on her stomach on the bed. She did
so and the appellant
got into the room, lied on her back and fondled
her vagina with his fingers and licked it with his tongue. She then
said the appellant
ordered her to lie on her back and that he made
her stand halfway before he fondled her. His fingers did not
penetrate her vagina
but his tongue did. After appellant stood up he
lied on her again and pushed a strange object into her vagina and
asked her to
guess what it was. His pants were down to his knees.
According to the mother, the complainant reported to her that she was
enticed
to the bathroom, sent to the bedroom where she (the
complainant) was touched on her private parts and licked with a
tongue and
that the appellant touched her vagina with his fingers as
well as her chest and that she lied on her stomach as she endured
pain.
This is said to be a direct contradiction of the complainant’s
version. The complainant’s brother came down the passage
to the
bedroom and the appellant stopped him saying the complainant had
fallen asleep.
[4] In cross-examination the
complainant says the threat to kill the family was made because if
the incident came out, the appellant
would go to prison. She said she
could feel the appellant’s finger as she was on her knees. It
was contended that she first
said she was made to half stand by the
appellant and that contradicts her previous evidence that she stood
up on her own and could
thus see the appellant’s mouth. These
are said to be serious contradictions. A further contradiction is
said to be the complainant’s
denial that the appellant’s
pants were at his knees and that he pulled the pants down when he
stood up. She had previously
said the appellant stood up when her
brother came down the passage and he told him (the appellant) the
complainant was sleeping.
The same evening the appellant slept next
to the complainant and touched her vagina, licked it with his tongue
and touched her breasts. On occasion of
Father’s day in Kroonstad he did the same to her. The family
was staying there and
the appellant was fetched by the complainant’s
father from Welkom. It is not clear whether the Father’s day
referred
to was in 2012 or 2013.
[5] The complainant was examined by a
therapist, Ester Aletta Fourie and, said to her she was with the
appellant only during the
incident whereas in her testimony she
stated her brother was also at home. A forensic nurse, M Khatatsi
examined the complainant
on 08 October 2013 and found that her hymen
was not intact. She noticed old clefts in the complainant’s
vagina at 3, 6 and
9 o’clock. The complainant was then fourteen
years old. The complainant’s mother became aware of the cuts
the complainant
was inflicting on herself during 2013. The mother
pressurised the complainant to explain what was happening to her. She
thereafter
told her mother of these incidents and the case was
reported to the police.
[6] The appellant also testified. There
was no version he told about the allegations against him. His was a
bare denial of everything
the complainant said. He even denied
staying at his brother’s (complainant’s father) flat at
Dagbreek in Welkom. During
the evidence of the complainant and other
State witnesses this was not raised as an issue at all. He denied
having been at the
Kroonstad house when Father’s day was
celebrated for the first time when he gave evidence.
He went to Kroonstad only on the
occasion of his mother having had a heart attack. Gratuitously he
raises his suspicions about his
other brother, [J……],
acting suspiciously towards the complainant and him not trusting him
([J……])
concerning the complainant the appellant, in
effect, does not gainsay what the complainant testified about at all.
He only removes
himself from the scenes by saying he was not there.
Asked why the young complainant would incriminate him he stated she
must have
being influenced by her parents because they did not
approve of his relationship with a black woman. This explanation can
safely
be ignored as thumb- suck in view of the fact that both the
complainant’s parents knew about his relationship with the
black
woman and had nothing to do with it. The existence of that
relationship was not a problem for them and never made them dislike
him.
[7] The trial court was thorough in its
judgment and dealt with all the issues comprehensibly. It started by
pointing out that it
was bound to evaluate all the evidence placed
before it as a unit It quoted from S v Civa
1974 (3) SA 844
(T) at
846 H, see also S v Trainor,
2003 (1) SACR 35
(SCA) par 9. The trial
court correctly pointed out that the State bore the onus to prove its
case beyond a reasonable doubt and,
importantly, that there was no
onus on the appellant to prove his innocence and referred to S v
Jackson
1998, (1) SACR 470
(A). It dealt with the caution that the
court must apply in considering the evidence of a minor person who is
also a single witness
regarding the actual sexual complaints. He
referred to S v Sauls and Others 1981 (3). In S v Hanekom
2011 (1)
SACR 430
(W) it was said that evidence of young complainants in
sexual cases needs to be considered with special caution as they may
be
susceptible to external influence. The trial court found that the
complainant was fourteen years of age when she testified about
incident that took place when she was merely ten years old. Her
tender age, her mental development and life experience aside, he
found that she was consistent despite few non-material contradictions
in her evidence. From the detail of the complainant’s
evidence
regarding the fingers used, the tongue, the unknown object used to
penetrate her and the question as to, whether she knew
what was
penetrating her, it becomes clear that she could not have been
couched what to say against the appellant. One cannot draw
any
inference from her leaving the room from which she was giving her
evidence. What is important is that despite the lengthy cross-
examination she came back and endured further cross- examination. The
trial court had to bear in mind that it was not dealing with
a static
situation here and the fact that she was lying on her stomach or
back, on her knees or on her feet, are all things that
are possible
in an assault of this nature and there was no suggestion that her
penetration could not take place in any of those
positions.
[8] The appeal against the conviction
was based on three grounds - (a) the trial court erred in finding
that the State had proved
its case against the appellant beyond a
reasonable doubt. Looking at the record and the arguments advanced
one fails to see in
which respect this submission
can hold. The evidence of the
complainant is not challenged at all and finds corroboration in the
other evidence adduced, (b) The
court erred in not taking into
account the contradictions in the State case as well as the
cautionary rule relating to a single
witness.’ The trial court
dealt extensively with the contradictions referred to and found them
to be immaterial. The cautionary
rule has clearly been uppermost in
the mind of the court as illustrated above. The cautionary rule is
“not laying down a
requirement of law that must be strictly
complied with5’ R v Mokoena
1956 (3) SA 81
(A) at 85; R v T
1958 (2) SA 676
at 678 - the cautionary rule should not be equated to
an absolute rule of law. What the rule emphasize is that the court
must be
vigilant when dealing with the evidence of a single witness
to ensure that a case has been proven beyond a reasonable doubt. The
rule is not a substitution of common sense which must be used in
search of the truth. Assessment of credibility of witness requires
experience,insight, knowledge of human nature, common sense,
detachment, patience and humility: See Albert Kruger in Hiemstra’s
Criminal Procedure, Lexis Nexis Service Issue 2 at 24.3. (c) The
trial court erred in rejecting the appellant’s version.
I have
pointed out above that the appellant’s defence was a bare
denial of what the complainant and other witnesses testified
about
and this came for the first time when he gave evidence. Nowhere in
the record did he deny he lived in the complainant’s
flat and
slept with her in the same room when the incidents occurred. It was
equally never denied that he was at the house in Kroonstad
on a
Father’s day when events in count three took place. Alibi was
never the appellant’s case for, if it was, the
gruelling extensive cross-examination
of the state witnesses as to how, where, when the events took place,
would be redundant. It
was never put to any of them that during those
happenings, the appellant was sleeping in his own flat and never went
to Kroonstad
except when his mother had suffered a heart attack. The
trial court was, therefore, right in rejecting the alibi that came as
an
afterthought that even surprised his own legal representative from
what can be gleaned from the record.
[9] In as far as the sentence is
concerned it is not correct that the trial court did not take into
account the personal circumstances
of the appellant. In fact it did
and even found that there were substantial and compelling
circumstances that moved it from imposing
the prescribed minimum
sentences and that this was based purely on his personal
circumstances. The sentences imposed and the order
that they should
run concurrently shows that the court went even so far as to consider
their cumulative effect on the appellant.
The sentences imposed are
not shockingly inappropriate as contended. On the contrary they are
lenient and appropriate in the circumstances.
[10] In the result the appeal against
both the convictions and sentences imposed is dismissed.
K. J. Moloi J
I concur.
MOHALE, AJ
On behalf of the Appellant: Adv. L
Smit
Instructed by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On behalf of Respondent: Adv A
Bester
Instructed by:
Director of Public Prosecutions
BLOEMFONTEIN