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[2015] ZAFSHC 229
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Booysen v S (A175/2015) [2015] ZAFSHC 229 (19 November 2015)
SAFLII
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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
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, Jan, acting suspiciously
towards
the complainant and him not trusting him (Jan) 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 with"
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