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2014
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[2014] ZAGPPHC 435
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Tshabalala v S (A1040/2013) [2014] ZAGPPHC 435 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE NO:
A1040/2013
DATE: 30 MAY 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
TSHABALALA
...................................................................................................................................
Appellant
and
THE
STATE
....................................................................................................................................
Respondent
Date
of Hearing: 19
May
2014
Date
of Judgment: 30
May
2014
JUDGMENT
1.
The appellant appeals against conviction and sentence imposed by the
Regional Court Magistrate, Brakpan
(the
Court a quo)
on
20
th
September 2013. He was convicted of rape of a minor of 8 years at the
time. The Court a quo then sentenced him to 15 years imprisonment.
2. The State’s
case is succinctly that on 8 May 2012, the appellant called the minor
to his house, whereafter he took her
to his bedroom and raped her.
The minor knew the appellant very well as they were neighbours and
she used to visit his house. Her
version is that after the rape she
exited the bedroom, with appellant following behind her. The minor
later reported the incident
to her mother who took her to hospital.
The medical examination concluded that the minor was penetrated
sexually.
3. The appellant
denied having had any sexual act with the minor and further denied
having been seen exiting the bedroom with her.
4. The state
presented the evidence of the minor as a complainant, her mother and
the Medical Practitioner who examined her at the
hospital. Appellant
testified and called the neighbour, who corroborated the minor’s
version that she saw her exiting the
bedroom with appellant following
her.
5. The Court a quo
found, on the evidence, that the accused is guilty as charged. In
analysing and evaluating the evidence, the
Court a quo, referring to
the relevant authorities, dealt thoroughly with the principles and
approach relating to the evidence
of single witnesses and in
particular in this case, of a child witness. The Court also analysed
the cautionary rules relating to
evidence in sexual assault cases.
6. The Court a quo
come to the conclusion that:
(1) the evidence of
the minor and her mother was credible and reliable;
(2) the Medical
Examiner’s report and her evidence found that the minor was
sexually penetrated, consistent with rape and;
(3) the version on
Appellant that he was not in the house but sitting outside when the
neighbour arrived is contradicted by his
own witnesses’
evidence that she saw the minor exiting the bedroom with appellant
following behind her. The appellant’s
version was found not be
reasonably possibly true.
7.
In
R v Dhlumayo
and Another 1948(2) SA 677 (A)
the
Court established the principle that the powers of an appeal court to
intervene in a finding of the Court a quo on demeanour
of witnesses
are limited. The Court a quo found the evidence of the state
witnesses to be credible and reliable, a finding which
this Court, in
the absence of any contrary evidence, cannot interfere with.
8. This Court in
particular agrees with the finding of the Court a quo on the medical
report and evidence of the examining doctor.
The medical examination
of the minor took place on the same day she was raped. After she
reported the incident to her mother on
the same day, she there and
then took her to the hospital. The probability that she may have been
raped by someone else as contended
by counsel for appellant has no
merit.
9. The appellant’s
alibi that he was sitting outside the door when she saw a neighbour
coming from the house with the minor
is contradicted by his own
witness. His version that he went shopping with his spouse is also
contradicted by the same witness.
The Court a quo was therefore
correct in finding that the appellant’s version was not
reasonably possibly true.
10. The appeal on
conviction must therefore fail.
11. In regard to
sentence, the Court a quo took into account the fact that the
appellant was 60 years old, had two previous convictions
of theft,
and had spent 14 months in prison awaiting trial. These mitigating
factors were weighed against the aggravating factors
inherent in the
crime of rape. The court found, in appellants favour, that there are
substantial and compelling circumstances which
would justify a
departure from the imposing prescribed minimum sentence of life
imprisonment. Appellant was sentenced to 15 years
imprisonment.
12.
The rape of a minor is a serious offence, a scourge for which a
person convicted should not be punished leniently. In S
v
Chapman 1997(2) SACR 3 (SCA)
the
Court held that rape is regarded as a serious offence constituting a
humiliating, degrading and brutal invasion of the privacy,
dignity
and the person of the individual. Appellant, who in terms of the
prescribed minimum sentence on this offence could have
had a sentence
of life imprisonment imposed on him, was handed a prison term of 15
years which under the circumstances is in my
view fair and
reasonable. There is thus no need for this Court to tamper with this
sentence.
13. In the premises
I proposed the following order:
The appeal against
both conviction and sentence on the charge of rape is dismissed.
S P Mothle
Judge of the High
Court
I concur and it is
so ordered
N B Tuchten
Judge of the High
Court