About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 37
|
|
Mbokazi v S (AR581/14) [2015] ZAKZPHC 37; 2017 (1) SACR 317 (KZP) (17 July 2015)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PITERMARITZBURG
CASE
NO: AR581/14
DATE:
17 JULY 2015
THEMBINKOSI
EMMANUEL
MBOKAZI
..................................................................
APPELLANT
And
THE
STATE
.......................................................................................................................
DEFENDANT
JUDGEMENT
Delivered:
17 July 2015
MBATHA
J
[1]
This is an appeal from the judgment of the Madadeni Regional Court
Magistrate, Ms M.T. Lubuzo, given on the 11th of April 2014.
This
appeal is against both conviction and sentence in terms of the
Judicial Matters Amendment Act
[1]
,
which came into operation on the 22
nd
of January 2014.
The
Appellant was convicted of one count of Rape (of a child under the
age of 16 years) and was sentenced to life imprisonment.
[2]
The Appellant’s grounds of appeal are broadly stated as
follows:-
a)
That the complainant was not properly
admonished by the trial Court in that the enquiry held by the learned
Magistrate in that regard,
was a superficial enquiry. In that
case, it cannot be said whether she established whether the witness
knew the difference
between the truth and a lie.
b)
That her evidence as a single witness was
not clear and satisfactory in every material respect, in that there
were inconsistences
and a contradiction in her evidence as to how the
Appellant raped her.
c)
That the complainant’s evidence as a
child complainant was unreliable due to suggestibility and
susceptibility of minor children.
[3]
The appeal is opposed by the State on the basis that there was no
misdirection on the part of the Regional Magistrate either
on the
requirements of
section 162
and
164
of the
Criminal Procedure Act 51
of 1977
and in the evaluation of the evidence before her.
[4]
It has been settled since
R
v Dhlumayo and Another
[2]
and the cases that follow it that a Court of appeal will be reluctant
to interfere with the trial Court’s evaluation for
oral
evidence, unless there is a misdirection by the trial Court.
[5]
The Appellant had been charged in terms of
Section 3
read with the
provisions of section 1, 56(a), 57, 58, 60 and 61 of the Sexual
Offences and Related Matters Amendment Act
[3]
,
Rape, read with the provisions of Section 51 and/or 52 of Schedule 2
of the Criminal Law Amendment Act
[4]
,
as amended. The complainant was 12 years old at the time of the
commission of the offence.
[6]
At the time when the complainant gave evidence in Court, she was
thirteen (13) years old. Due to her tender age and the
nature
of the offence, the Court determined that she would suffer undue
mental stress if she testified in open Court. An
intermediary
was then appointed in terms of
Section 170A
of the
Criminal Procedure
Act.
[7
]
The main issue raised by the Appellant is that the complainant was
not properly admonished.
Section 162
of the
Criminal Procedure Act
requires
that all evidence be given under oath. The person
testifying must understand the nature and import of the oath.
Section 164
(1) of the
Criminal Procedure Act
[5
]
states as follows:
“
Any
person, who is found not to understand the nature and import of the
oath or affirmation, may be admitted to give evidence in
criminal
proceedings without taking the oath or making the affirmation;
provided that such person shall, in lieu of the oath or
affirmation,
be admonished by the presiding judge or judicial officer to speak the
truth.”
The
provisions of
Section 164
are peremptory as the words “
that
such person
shall
”,
appears in the wording thereof. Such a failure as stated by
Appellant’s Counsel would render the evidence of
the
complainant inadmissible. The provisions of
Section 162
to
164
of the Act
[6]
specifically state
that the witness will be examined under oath, affirmation or
admonishment to ensure that the evidence is reliable.
[8]
Section 192
of the
Criminal Procedure Act
[7
]
goes further to state that if a child does not have the ability to
distinguish between the truth and untruth, such child is not
a
competent witness. It is the duty of the presiding officer to
satisfy himself or herself that the child can distinguish
between the
truth and untruth. The maturity and understanding of the child
must be established by the judicial officer, who
must ascertain the
level of intelligence for the child to give evidence in the trial
proceedings.
[9]
The Appellant’s submission is that the child witness could not
distinguish between the truth and lies due to the insufficient
admonition made by the learned Magistrate. In amplification
therefore it is submitted that when the child was asked what
it means
to tell the truth her response was that “
telling
the truth is saying something that is straight and something that is
understandable
” and when she was
asked what it means to tell lies, her response was that “
It
is speaking something that is not understandable, someone would not
even know what you are saying
”.
In
this regard, the Court was referred to
S
v B
[8]
,
where the Court held that where there has been a failure to admonish
the child witness, such evidence should be inadmissible.
[10]
Upon perusal of the record it is clear that the Magistrate was alert
to the fact that the complainant was a child witness.
She
enquired about her date of birth. The complainant gave the 23
rd
of May 2000 as her date of birth. When the Magistrate informed
her that she was enquiring because of what is written in her
birth
certificate. She proffered that there was a mistake on the
birth certificate, as it did not reflect the correct date.
The
Magistrate enquiry went on further as follows:
“
Court:
Do you understand the meaning of the oath?
Complainant:
No.
Court:
Do you know what it means to tell the truth?
Complainant:
yes.
Court:
yes, what does it mean?
Complainant:
Telling the truth is saying something that is straight and something
that is understandable.
Court:
How? What do you mean by this, saying something that is straight and
understandable? Can you elaborate?
Complainant:
No.
Court:
Do you know what it means to tell lies?
Complainant:
Yes.
Court:
What does it mean?
Complainant:
Its speaking something that is not understandable. Someone who
would not even know what you are saying.
Court:
I understand that in view of your age…(intervention).
Interpreter:
Are you?
Court:
I understand that in view of your age, you may be ignorant of the
concept such as oath and so on. Let me put it this way.
Is it a bad
thing or a good thing to tell lies?
Interpreter:
Can you please repeat the question.
Court:
Is it a bad thing or a good thing to tell lies?
Complainant:
It is a bad thing.
Court: I am
satisfied that the witness is competent. Philile Mbokazi.
Record:
(admonished).”
[11]
It is clear from the above extract from the record that the learned
Magistrate determined that the complainant understood what
it meant
to tell the truth. The word “straight” as used by
the interpreter when he related to the Court what
the complainant was
stating is synonymous with the words “unswerving, direct and
undeviating and unbending”.
The Oxford Dictionary gives
various examples of the definition of the word straight. In one
of its definitions which I consider
to be relevant to the context of
this matter is this one.
“
Not
evasive; honest, ‘a straight answer’ thank you for being
straight with me.”
[12]
When she was asked what does it mean to tell lies, she answered in
the same fashion; “It is something that is not understandable,
someone would not even known what you are saying”. Her
response basically means that if you lie it’s something
that
you manufactured, a figment of your imagination and something that
people will not understand as it is not in existence or
an untruth.”
[13]
The learned Magistrate to clarify what the complainant meant, went on
to establish if she understood the effect of telling
a lie, when she
asked her whether it is a good or a bad thing to tell a lie.
Her response was an unequivocal answer that
“it is a bad
thing”.
[14]
It did not end there, but she admonished child as the record clearly
states that she is admonished at every stage of the proceedings.
The words used are not typed on the record as it is often the case
when the oath is administered, the record merely reflects the
words
“sworn in”.
[15]
The Appellant’s Counsel referred us on this aspect to
S
v B
[9]
,
where the Court held such evidence by the complainant to be
inadmissible due to a failure to affirm or admonish a witness.
The decision in
S
v B
was confirmed in
Director
of Public
Prosecutions
v Mekka
[10]
,
where the Supreme Court of Appeal held that
Section 164
of the
Criminal Procedure Act
[11
]
required nothing more than that the presiding judicial officer had to
form an opinion that the witness did not understand the nature
and
import of the oath or affirmation due to ignorance arising from
youth, defective education or other cause and that the section
did
not expressly require that an investigation be held in all
circumstances before such a finding could be made, was not abiter
and
also was correctly decided.
[16]
The finding by the learned Magistrate that she was competent to give
evidence is also reinforced by the manner in which she
gave evidence.
Her evidence is clear and her answers to cross-examination questions
reflect her maturity and competency.
[17]
This Court is satisfied that the judicial officer did not
superficially carry out her duties. The intermediary was first
sworn in terms of
section 170A
of the
Criminal Procedure Act, she
had
the birth certificate of the complainant as proof of her age
and had already detected that there was an error in the
birth
certificate as proffered by the complainant.
[18]
It is our view that there was sufficient compliance with the
provisions of
section 162
and
164
of the
Criminal Procedure Act.
The
complainant was a competent witness and her evidence is
admissible.
[19]
On the merits the facts of the case are that on the afternoon of the
26
th
of April 2012, the Appellant arrived at the home of the complainant
to visit her family. The Appellant is her uncle whom
she was
seeing for the second time on that day. The Appellant sat with
the children in the dining room, where the complainant
and her
younger siblings played games on the Appellant’s phone and
whilst they were busy playing games the Appellant touched
her on her
waist. The complainant who was uncomfortable with that moved to
sit on another sofa. They also watched TV
up to the time that
they decided to retire to bed. They prepared their sleeping
places on the floor of the dining room where
they often slept.
They retired to their respective sleeping places on the floor.
[20]
The Appellant had remained seated on the sofa. Whilst sleeping
she felt his hand touching her breasts and underclothing.
She
tried to push him away but the Appellant continued to touch her
breast, lick her ears and was also trying to kiss her.
Finally,
he got underneath her blankets. He fingered her and made her
touch his penis. She cried and faced towards
the direction of
the TV set (away from the Appellant). When she turned her back
towards him, it was then that the Appellant
penetrated her vagina
from the back. He made forward and backward movements.
She felt pain. The Appellant instructed
her to get on top of
him inside her private parts. When that happened the Appellant
heard the sound of keys opening the door,
he jumped up quickly and
returned to the sofa where he had been sitted.
[21]
On behalf of the Appellant it is submitted that she was not a clear
and satisfactory witness, because under cross-examination
she
testified that the Appellant made her turn around, face him and then
he raped her. Having done that he placed his penis
inside her
vagina and started moving back and forth, and that her grandfather
and Manqo came in, when she had got on top of the
Appellant. It
is also submitted that it is a material contradiction in her evidence
regarding whether she was facing him
during the rape or whether he
penetrated her through bum into the vagina.
[22]
The learned Magistrate was mindful that whenever it comes to the
evidence of young children, she should guard against two (2)
elements
suggestibility and imaginativeness. It is clear in her judgment
too that she was alive to the fact that she was
dealing with the
evidence of a single witness, which need to be clear and satisfactory
in every material respect. It is clear
to this Court that she
considered the merits and demerits of the evidence of the
complainant, a single witness. Having done
so, considered if
the truth had been told or not, irrespective of the shortcomings,
defects or contradictions in the evidence.
This Court has noted
the following:-
a)
It is clear from the evidence presented
before the trial Court that penetration had taken place. This
is corroborated by the
evidence of Dr Shoba who examined the
complainant;
b)
The Appellant was the only adult male in
the dining room where the complainant and the younger children were
sleeping. There
is no dispute as to the identity of the
Appellant or his presence in that room that night;
c)
The grandfather of the complainant
corroborated her evidence in a material respect. He
independently said, when he woke up
from his bedroom to go past the
dining room he saw the Appellant lying behind her. This is consistent
with how she described being
raped;
d)
It was also her evidence that the Appellant
had ordered her to get on top of her, after he penetrated her through
her back.
This was not a figment of her imagination that she
had been penetrated by the Appellant;
e)
The complainant immediately reported the
rape to her aunt, Nkosingiphile Venetia Mbokazi, who testified that
she was crying when
she reported that she had been raped by the
Appellant. Upon her examination, the aunt found her to be wet,
which is consistent
with what she reported to her;
f)
The Appellant was a visitor to her home;
she did not wait for him to leave before making a report. The
moment he let go of
her nightie, she jumped up to go and report to
her aunt. There is nothing in her evidence and other witnesses’
evidence,
which suggests imaginativeness or unreliability. This
Court accepts that the primary concern for the trier of facts is to
ascertain if the truth has been told and this was done by the learned
Magistrate;
g)
The learned Magistrate did not ignore the
discrepancies and contradictions in the complainant’s evidence,
but weighed up all
the evidence in its all totality, and accepted
that the State had proved its case beyond any reasonable doubt; and
h)
When approached by the complainant’s
grandfather the Appellant could not explain why he was lying behind
the complaint.
There is no reason why the grandfather would
have fabricated against a nephew who does not live with him and who
has no issues
with him. It is also important to note the
grandfather’s evidence that the Appellant had no reason to
sleep on the
floor as he had been directed by him to go and sleep
with the other boys in the outside rooms.
[23]
The DNA results were inconclusive, in that it stated as follows that
“no male DNA was obtained from exhibits (O8D1AC4913XX)and
the
Court was alive of this favourable factor to the Appellant.
However, she considered that there were factors that led
to such
inconclusive results like in the case where the perpetrator used a
condom, but found that the direct evidence of the complainant
and her
witnesses to be true and consistent. This was also corroborated by
the evidence of Dr Shoba and her findings in the J88
medical report.
[24]
It is also our view that there was no misdirection on the part of the
learned Magistrate in her consideration of the evidence
before her.
We are accordingly satisfied that there is no basis to interfere with
the learned Magistrate’s findings
that the State had proved
beyond any reasonable doubt that the accused is guilty of the crime
of Rape.
Sentence
[25]
It is trite that the Court will only interfere with a sentence if a
Court misdirected itself in passing sentence. Moreover,
a
misdirection alone does not suffice for a Court of appeal to
interfere, a misdirection should be material as expressed by Trollip
JA in
S
v Pillay
[12]
,
where he stated as follows:
“
It
should be of such a nature, degree or seriousness that it shows
directly or inferentially, that the Court did not exercise its
discretion at all or exercise it improperly or unreasonably.
Such a misdirection is usually and conveniently termed, one
that
vitiates the Court’s decision on sentence. That is
obviously the kind of misdirection predicated in the last quoted
dictum.”
[26]
It is common cause that the conviction attracts a sentence of life
imprisonment. The Court had to determine if there
were
substantial and compelling circumstances that would make it deviate
from imposing the prescribed minimum sentence.
[27]
It is clear from the record that the learned Magistrate is
au
fait
with
the provisions of Section 3(A) of the Criminal Law Amendment Act
[13]
,
which sets out four (4) factors which will not count as substantial
and compelling circumstances; they are the complainant’s
previous sexual history, the apparent lack of physical injury to the
complainant; the accused’s persons cultural or religious
beliefs about rape and any relationship between the accused person
and the complainant prior to the offence being committed.
[28]
The learned Magistrate also took into account the traditional factors
taken into account, when sentencing is considered.
The
Appellant was a first offender, had one minor child, was 29 years at
the time of the commission of the offence and was gainfully
employed. The Courts should not shy away from imprisoning first
offenders and not depart easily from imposing the prescribed
sentences. In this case, his age and other personal
circumstances were found not to be substantial and compelling
circumstances.
[29]
The Court took into account what was stated in the Victim Impact
Report and also considered the aggravating factors being that
the
complainant was raped in the sanctity of her home by a relative.
She was a child, who will have to bear the rape scars
for life.
It also took into account that the Appellant was not an immature
young man but was a 29 year old male, who is also
a father to a
child. She aligned herself with what was stated in
S
v Matyityi
[14]
,
regarding the personal circumstances of the Appellant.
[30]
The Supreme Court of Appeal in various judgments has repeatedly held
that it is not only for rapes of the worst type, that
life
imprisonment will be justified, for example; in
S
v Abrahams
[15]
,
S
v Mahomotsa
[16]
and the more recent
Mudau
v S
[17]
delivered on 9 May 2013.
S
v Vilakazi
[18]
differed and held that life imprisonment is not reserved only for
extreme cases, as long as it is proportionate to the offence.
The Courts should not only look at physical injuries, courts should
not ignore profound psychological, trauma, loss of dignity
and
emotional scars in the victims of rape.
[31]
In the light of the facts before us, we find that there was no
discretion or irregularity on the part of the learned Magistrate
in
imposing the sentence of life imprisonment on the Appellant.
[32]
I accordingly propose the following order:
a)
The Appeal against both conviction and
sentence is dismissed.
MBATHA
J
I
agree:
D.
PILLAY J
Date
of hearing : 14 July 2015
Date
delivered : 17 July 2015
Appearances
:
For
the Appellant : Adv. P. Andrews
Instructed
by : Legal Aid, Pietermaritzburg
For
the Respondents : Adv S. Singh
Instructed
by : The Director of Public Prosecutions
Pietermaritzburg
[1]
Act
42 of 2013
[2]
1948
(2) SA 67 (A) 705.
[3]
Act
32 of 2007
[4]
Act
105 of 1997
[5]
Act
51 of 1977, as amended.
[6]
Act
51 of 1977, as amended.
[7]
Act
51 of 1977, as amended.
[8]
2003
(1) SACR 52
SCA.
[9]
2003
(1) SACR 52 (SCA).
[10]
2003
(2) SACR 1 (SCA).
[11]
Act
51 of 1977
[12]
1997
(4) SA 531 (A).
[13]
Act
38 of 2007
[14]
2010
(SCA) 127
[15]
2002
(1) SACR 116 (SCA)
[16]
2002
(2) SACR 435 (SCA)
[17]
764/12
SACR 292 (SCA)
[18]
2009
(1) SACR 552
(SCA)