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[2014] ZAFSHC 94
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K v S (A51/2014) [2014] ZAFSHC 94 (26 June 2014)
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No.: A51/2014
In
the matter between:
M[…]
K[…]
…..........................................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
CORAM:
LEKALE, J
et
JAJI,
AJ
JUDGEMENT:
LEKALE, J
HEARD
ON:
23 JUNE 2014
DELIVERED
ON:
26 JUNE 2014
[1]
On the 5
August
2010 the appellant, who was legally represented, was convicted on and
sentenced to 18 years and life imprisonment respectively
for two
counts of rape by the Regional Court sitting at Ficksburg. He
feels aggrieved by both the convictions and sentences
and now
approaches us on appeal against the same with leave granted on
petition by members of this court.
[2]
On convicting him the trial court rejected his version as not
reasonably possibly true and found that the same was fabricated
during the trial insofar as certain material aspects thereof were not
put to state witnesses. The court below, further, agreed
with
both the state and the defence that the two complainants, who
happened to be the appellant’s 16 and 14 year old daughters,
corroborated each other’s evidence where applicable and that
they were good witnesses.
[3]
The appellant assails the convictions on,
inter
alia
, the grounds that no medical or
independent evidence was placed before the trial court to prove that
the two complainants were
sexually molested in that they were
penetrated carnally. The appellant’s tilt at the
sentences is confined to and directed
at the life imprisonment
imposed in respect of the second charge in circumstances where no
serious after effects exist. On
its part the state supports the
convictions and the sentences.
[4]
The evidence tendered in support of the charges was to the effect
that the rape on the 16-year old complainant started in 2006
in
Lesotho and continued at Ficksburg throughout 2007 and 2008 until
February 2009 when it stopped because the complainant was
then able
to resist by overpowering the appellant. The trial court
accepted that with regard to rape incidents in Ficksburg
the only
clear evidence related to what happened in February 2009 when the
appellant returned home after having been laid-off from
work for poor
health. On that occasion the appellant called the complainant
in count 1 to the toilet at night and raped her.
The 14-year
old’s case was that the appellant called her to the toilet at
night in April 2009 and enquired from her after
whether or not she
knew what would happen when she met a boy. The appellant,
thereafter, sat on the toilet seat and ordered
her to undress her
pants and panty and to sit on top of him. Whereafter the appellant
took out his penis and penetrated her vagina
therewith without her
consent. When she cried in pain the appellant asked her if she
did not want him to admonish her she
should leave the toilet. She
left the toilet, whereupon, the appellant asked her if she seriously
did not want him to admonish
her and told her to return to the
toilet. When she returned the appellant once again directed her
to sit on his lap and raped
her again. The younger complainant,
further, testified that one night the appellant woke her up from
where she was sleeping
on the floor with her sister and brother and
directed her to get in bed with him, whereupon, he played
pornographic material on
the DVD player. The 16-year old,
however, woke up and the appellant ordered the 14 year old
complainant to go back to her
sleeping place. The following day
the appellant ordered her not to talk to him anymore or to use the
appurtenances in the
house because she did not want to be
admonished. He, further, told her that if they did not want to
be admonished they should
go the family planning clinic to get an
injection. The 16-year old complainant corroborated her younger
sister’s evidence
with regard to the night concerning
pornographic material as well as the night when the latter returned
from the toilet crying
and the appellant was following her
effectively pointing out that he was only admonishing her as he
always did with her viz.
the former.
[5]
The appellant’s version was a bare denial and he accused the
complainants of lying because they were either upset with
him for
always fighting their mother or because they did not want him to
exercise control over them by reprimanding them for going
out at
night.
[6]
There is nothing on record to suggest that the trial court
misdirected himself on the facts when he agreed with the parties
that
the complainants made a good impression as witnesses and corroborated
each other where their evidence overlapped. (See
S
v Francis
1991 (1) SACR 198
(A).
[7]
I am, further, not persuaded that it was necessary, in the
circumstances of the instant matter, for independent or medical
evidence proving sexual intercourse or penetration to be tendered in
order for a guilty verdict to be returned. Such evidence
would
be corroborative probative material which is not mandatory for the
purposes of a conviction in the present matter.
As Ms Giorgi
correctly points out, such evidence is not always necessary and would
have been of great assistance in the state’s
case if it was
tendered but its absence is not fatal. The question is simply
whether or not available evidence was sufficient
to prove the state
case beyond reasonable doubt. To require such corroboration in
the instant matter would simply serve to
reintroduce the cautionary
rule in sexual assault cases which was abolished in
S
v J
1998 (4) BCLR 424
(A).
[8]
The evidence of the two complainants, as corroborated by the report
witness of the 16-year old complainant, was accepted as
credible and
reliable by the court below. In this regard it is worth noting
that the said report witness’ uncontroverted
evidence was to
the effect that the 16-year old complainant was crying when she
reported her ordeal, at the hands of the appellant,
to her.
Such acceptance of the relevant evidence by the trial court has not
been demonstrably shown to be clearly wrong.
[9]
The convictions can, thus, not be faulted. The appellant
effectively feels that the trial court misdirected himself by
imposing life sentence in the case of the rape of the 14-year old
girl when the
modus operandi
was the same in both cases and the age difference between the two
girls was only one year.
[10]
Life imprisonment is ordained, as a minimum sentence, for rape of a
person under the age of 16 years. The court below
could only
deviate from such a mandatory minimum sentence where a legal cause,
in the form of substantial and compelling circumstances,
existed.
The question is, therefore, whether or not the cumulative effect of
mitigating factors on the gravity of the crime,
the aggravating
circumstances and the interest of the society rendered such a
sentence unjust. (See
S v
Malgas
2001 (1) SACR 469
(SCA).
[11]
We are not convinced that the trial court failed to exercise its
discretion reasonably or appropriately so as to justify
interference
by this court insofar as the victim is the appellant’s daughter
and was exposed to the risk of contracting human
immunodeficiency
virus (HIV) as the appellant intimated to the trial court that he is
HIV positive. (See
S v Malgas
(
supra
))
ORDER
[12]
The appeal fails.
[13]
The convictions and sentences are confirmed.
______________
L.
J. LEKALE, J
I
concur.
______________
N.
P. JAJI, AJ
On behalf of
appellant: Adv J.S Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv S. Giorgi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN