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[2014] ZAFSHC 242
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M v S (A59/2014) [2014] ZAFSHC 242 (27 November 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Case No: A59/2014
In the matter
between
S[...]
K[...] M[...]
….............…........................................................................................
Appellant
and
THE
STATE
…..........................................................................................................
Respondent
CORAM:
RAMPAI,
AJP
et
TSATSI,
AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
18
AUGUST 2014
DELIVERED
ON:
27
NOVEMBER 2014
INTRODUCTION
[1]
This is an appeal against conviction and sentence of the regional
court in Bloemfontein (court
a
quo).
The
appellant was charged with rape in terms of section 3 of Act 32 of
2007, the Sexual Offences and Related Matters Amendment Act.
It was
alleged that the appellant unlawfully and intentionally committed an
act of sexual penetration with the 8 year old complainant
by
inserting his penis into her vagina without the consent of the
complainant. In terms of section 309(1) of the Criminal Procedure
Act, Act 51 of 1977 as amended the appellant has an automatic right
to appeal.
1.1 The appellant
pleaded not guilty to the charge put against him;
1.2 The regional
court found no substantial and compelling circumstances that
warranted a sentence less than life imprisonment.
1.3 The respondent
supported the conviction and the sentence imposed on the appellant.
[2] The testimony of
the complainant was conveyed through the CCTV in terms of section
158(3) of Act 51 of 1977. The court informed
the appellant that his
name will be listed in the National Register of Persons who have
sexually abused children and mentally retarded
women.
[3] The appellant is
the biological father to the complainant. The mother passed away
during 2013. The appellant has a live - in
girlfriend. The appellant
lived with the complainant and her brother on a farm. The appellant
was employed as a gardener on this
farm. In addition, he was employed
to do other types of jobs. He was a handyman.
[4] “As
regards conviction the grounds of appeal were that
“
The
court erred in finding that the state has proved its case beyond
reasonable doubt on the following terms:
1. The court
erred by overlooking the contradiction in the state case. There was a
material contradiction between the evidence of
the complainant
(N[...] M[...]) and the evidence of the said state witness (P[...]
B[...]).”
1. 1. Complainant
in evidence in chief testified that on the day in question the
appellants picked her up and he put her on the
bed where the rape
took place. Complainant clearly indicated that at the time of rape
nobody was in the house. Evidence of the
2
nd
state witness
contradicted the evidence of the complainant on the following
grounds: Complainant said during the rape nobody was
in the house
whereas the 2
nd
state witness said he was in the house and
he witnesses the aforesaid rape. Complainant’s evidence did not
corroborate the
evidence of the 2
nd
state witness who
testified to the effect that they were offered liquor by the
applicant. Secondly she did not corroborate the
evidence of the
second state witness who testified to the effect that during the rape
he stabbed the appellant with a knife.
1.2 The court
erred by relying on the evidence of the 2
nd
state witness.
2
nd
state witness during the examination in chief he
maintained that he witness the rape incident. During cross
examination he was
crumbling and he did not stick to his version.
During cross examination he changed and he said he did not witness
the rape incident
but he heard from the complainant.
1.3 The court
erred by not making a finding that the probabilities does not favour
the state case. Complainant and second state
witness both testified
that the appellant after the rape he was hit by the brother of Anton
with a hammer. It is appellant submission
that if he was hit with a
hammer he was supposed to sustain injuries and the fact that he did
not sustain injuries, it is a clear
indication that he was not hit
with a hammer and both state witnesses are lying.
1.4 The court
further erred by not rejecting the version of the complainant and the
2
nd
state witness. It is the appellant submission that,
the evidence was supposed to be related because that evidence was not
corroborated
by the evidence of Anton and his mother. It is
appellant’s submission that the improbabilities and the
contradictions highlighted
above they cast doubt as to whether the
rape took place.
2. The
complainant as a single witness the court has failed to treat the
evidence of the complainant with a degree of caution. The
court when
evaluating the evidence of the complainant the court further erred by
not taking into consideration the fact that the
complainant is a
child.
The court erred
by not approaching the evidence of the complainant with a degree of
caution. The court erred by finding that the
evidence of the
complainant, as single witness, was satisfactory in every material
respect, and the court failed to warn itself
that the evidence of the
complainant, as a single witness and child witness, had to be
approached with caution.
3. The court
further erred by not taking into account the fact that after the rape
the complainant was examined and the forensic
examiner did not find
any genital injuries. The fact that the forensic examiner did not
find genital injuries it is clear indication
that the rape did not
take place.
4.
The court erred by
rejecting Appellant’s version as not reasonably and possibly
true. Appellants still maintain that he did
not rape the complainant.
[5] The events
giving rise to the charges upon which the appellant was convicted and
sentenced are summarized thus: It was alleged
that during November
2009 at Bloemspruit the appellant committed an act of sexual
penetration, with the complainant who was eight
years old at the
time. The complainant also told the court that such acts occurred on
more than one occasion at different times.
She narrated her version
through an intermediary where she demonstrated the alleged act by
using a female and a male doll. She
told the court that, on one
occasion, she was lying on the floor and the appellant picked her up.
The appellant put her on the
bed. By using the dolls, she put the
doll lying facing up, lifted the doll’s pants and showed the
male doll lying face down
onto the female one, showing the penis
touching the female’s vagina. The complainant showed the male
doll making up and down
movements whilst lying on top of the female
doll. The prosecutor asked the complainant what was she doing when
the appellant made
the up and down movements on top of her. She told
the court that the appellant closed her mouth, with his hand. She
then said that
she screamed out loud and the appellant left her
alone.
The complainant then
ran away. She said that there was nobody at the house at the time.
[6] The complainant
told the court that this was not the only time that such an incident
happened. A similar incident happened in
2008 or 2009. This time the
complainant’s brother was in the house. She told the court that
she was asleep. The appellant
came in the room and picked her up. He
put her on the bed, lifted her dress, and undressed her of her
panties. The prosecutor asked
the complainant to demonstrate to court
what happened on the day by using female and male dolls. The
complainant repeated almost
the same demonstration that she did
before, confirming an act of sexual penetration. The complainant
screamed and whereupon the
appellant left her alone. She then went
out through the window. She ran to the owner (“Ms M[...]”)
of the farm house.
She told Ms M[...] and his son, A[...], of what
the appellant did to her.
[7] A[...] and Ms
M[...], told A[...]’s brother (“the brother”) who
then came to the appellant’s house with
a hammer. The brother
hit the appellant with a hammer on his back. The police were called
and the appellant was arrested.
[8] Subsequently the
complainant went to her friend’s place where she told her
friend’s mother, called S[...] M[...]
(“Ms M[...]”).
Her elbow was swollen because the appellant hit her with a sjambok.
Ms M[...] then used warm water to
treat the complainant’s
elbow. The prosecutor asked the complainant if anybody took her to a
doctor or hospital. The answer
was in the negative. Under cross
examination it was put to the complainant that when she was asked if
her father raped her once
she said no. This corroborated the
complainant’s evidence in chief and she clearly stated that he
was raped by the appellant
more than once. She was further asked
under cross examination if she continued to live with her appellant
after the first rape.
She testified that she went and lived with her
friend M[...], whose mother’s name was A[...] L[...] (Ms
L[...]”). She
indicated that at the time of the trial she was
staying with Ms L[...] again. She only stayed with Ms M[...] for five
days. She
further testified that she did not want to stay with the
appellant after her mother’s death. The reason being, that the
appellant
did not want her and her brother to visit their friends.
[9] The complainant
further stated under cross examination that she visited her friend
M[...]. The complainant admitted that she
did not tell M[...]’s
mother because M[...] promised the complainant that she would inform
her mother (M[...]) about the
rape. The complainant was confronted
under cross examination about why Ms L[...] fetched her and her
brother from Ms M[...]’s
house. She told the court that Ms
L[...] fetched them because she saw the appellant buying them alcohol
at a tavern. Under cross
examination it was put to the complainant
that she told the court in her examination in chief that when her
father raped her the
first time there was nobody in the house. She
explained that, she meant that there was nobody because her mother
passed away. Her
brother was busy playing with his toy cars next to
the door of the room where the rape occurred. Her brother was aware
that she
was being raped because she told him.
[10] I should
interpose at this stage to mention that after lunch adjournment, the
intermediary told the court that an incident
happened during lunch.
Apparently the appellant saw the complainant and pointed a finger at
her. The complainant got scared, clung
to the intermediary and
started crying. The complainant told the court that she was scared of
the appellant because the appellant
threatened to hit her.
[11] It was put to
the complainant during cross examination that the reason she lied
about the fact that the appellant raped her
was because she did not
want to stay with the appellant. She has already told the court that
she hated the appellant. During re-examination
the complainant told
the court that one of the reasons why she did not want to stay with
the appellant was because the appellant
hit her on the cheek and her
cheek was swollen on one of the days of the rape. She testified that
when the appellant raped her,
he put something like a “balloon”
on his “thing”. His “thing” meant his penis
as the complainant
demonstrated to court by using the male doll. The
“balloon” meant a condom. She confirmed her testimony
during examination
in chief.
[12] The
complainant’s brother, (“I[...]”) corroborated the
version of the complainant, including the fact that
the appellant
made them consume alcohol. Itumeleng, testified that he was inside
the same room when the appellant raped his sister.
He even used the
dolls to demonstrate an act of rape. He then changed and said that he
did not witness the rape but his sister
told him about the rape.
During cross examination he was not sure when it was put to him that
the complainant told the court that
he was outside. He told the court
that he did not like the appellant because the latter raped and
abused his sister. He said that
the appellant raped the complainant
“every day”. He prefers to live with Ms L[...] not with
the appellant.
[13] Ms M[...]
testified that on 10 November 2009 whilst at home the complainant and
her brother came to her house. It was very
late at night. The
complainant looked sad, she was not the child she knew. Her cheek was
swollen. Ms M[...] enquired to find out
what was going on. The
complainant started crying without saying anything. She went inside
with Ms M[...]’s daughter, M[...].
She told M[...] that the
appellant “did strange things” to her. She said that the
appellant slept with her. On 11 November
2011 Ms M[...] told the
court that she took the two minor children to Mr B[...] (“Mr
B[...]”) who is the minor children’s
paternal
grandfather. She told Mr B[...] about the rape incidents and the
abuse of the minor children by the appellant. Mr B[...]
could not
take care of the children because they are still young and he is
elderly. Ms M[...] confirmed her version under cross
examination. On
12 November 2009, when she came back home after collecting her grant,
she was told that a woman (Ms L[...]) fetched
the minor children from
her home.
[14] Ms L[...]
testified that on 11 November 2009, she was approached by an old man
called Mr B[...]. Mr B[...] told Ms L[...] that
it had been reported
to him that the appellant abused the complainant sexually. Mr B[...]
asked Ms L[...] to keep the minor children
safe. Ms L[...] felt that
the correct thing to do was to report the matter to the relevant
authorities. She corroborated her version
about fetching the minor
children on 12 November 2011 from Ms M[...]’s house. Ms L[...]
and the social workers then went
to the appellant’s house to
inform him that the minor children had been removed from Ms M[...]’s
home. The purpose
of the visit to the appellant’s house was to
inform the appellant about his visitation results. Ms L[...]
testified that
the complainant told her that she reported the rape to
Ms M[...]. Ms L[...] testified that she was the foster mother of the
complainant
and her brother.
[15] Ms L[...] told
the court that she took the complainant and her brother to hospital
for a check-up. The complainant was diagnosed
with some undisclosed
ailment. The complainant was given medication to treat the said
ailment. Ms L[...] took the complainant on
several occasions to the
hospital for treatment. After two months the complainant was said to
have been cured of whatever ailment
troubled her.
[16] I should
interpose once again to indicate that the medical report was handed
in court. The said medical report did not indicate
injuries fresh or
healed on the complainant’s genitals. The report indicated that
the complainant had an offensive smelling
vaginal discharge. This was
said to be in line with a person who has contracted sexually
transmitted disease or infection, (record,
page 189).
[17] The appellant
testified that he was in good terms with his children. He denied that
he raped the complainant. He further denied
that he hit her with a
sjambok. He even denied that he was hit with a hammer and that he was
arrested on the day. He denied I[...]’s
version that, I[...]
hit and stabbed him. He denied that he abused the children and that
he gave them alcohol. His version was
that he was arrested on 16
November 2006, which was not the day when he was allegedly hit with
the hammer. He told the court that
the first week of November the
complainant went to church with her brother and they never returned
to the appellant. He was of
the opinion that Ms L[....] was a bad
influence on his children. He said that somebody told him to be
careful of Ms L[...], the
reason being that Ms L[...] had an
intention of taking his children away from him
[18] He told the
court that Ms L[...] took his children from the neighbour when he was
not there. He told the court that Ms L[...]
did not like his live-in
girlfriend. Ms L[...] wanted the appellant to leave his girlfriend
and marry one of her daughters. The
appellant refused because Ms
L[...]’s children are younger than him. Ms L[...] wanted the
appellant to maintain her family
as there was no breadwinner at her
house. During cross examination the appellant told the court that Ms
L[...] was the one who
told the complainant not to return to her home
because the appellant would rape her. The prosecutor challenged the
appellant and
asked him if Ms L[...] was the sole reason why the
complainant accused him of rape, he could not give the exact reason.
Also when
he was asked during cross examination of what did Ms
L[....] do to influence his children, he could not answer. The
prosecutor
challenged the appellant and asked him why did he not
challenge the testimony of Ms L[...] when she told the court that
there was
no bad blood between him and Ms L[...]. The appellant told
the court that the “bad blood” came after he fought with
Ms L[...]’s son. He told the court that his attorney never
asked him about that. He told the court that he loves his children
very much and they love him.
[19] Ms M[...] and
her son, A[...] testified. They both denied any knowledge of what the
complainant and her brother told the court.
They denied any knowledge
of the rape and abuse.
[20]
The main issue in this regard is whether the complainant is credible
with regard to her version that she was raped and secondly
whether it
was the appellant who raped her. The second issue is whether or not
the court
a quo
erred
and thus misdirected itself in finding that no substantial and
compelling circumstances existed to deviate from minimum sentence.
[21] The submissions
on behalf of the appellant were as follows: It was submitted on
behalf of the appellant that the complainant
was a single witness.
The cautionary rule applying to a single witness must be applied
together with the residual cautionary rule
relating to sexual
offences. The court must properly and critically evaluate the
complainant’s evidence as a single witness
and warn itself
against the uncritical acceptance of her evidence. The trial court
should not have treated the evidence of the
complainant as if it was
not evidence of a single witness. There were contradictions in the
complainant’s evidence. At the
time of the incident the
complainant was 8 years old. Her younger brother was 5 years old. The
court must be cautious when evaluating
evidence of young children.
There was suspicion that the evidence itself was not enough to
convict the appellant. The appellant
was arrested on 16 November
2009, when the complainant was not staying with the appellant. The
complainant conceded that she was
not staying with the appellant when
the latter was arrested. The state did not proof its case beyond a
reasonable doubt. Therefore
the appeal must succeed.
[22]
Counsel for the respondent submitted that it was difficult to compel
the court to intervene. The fact remains that the complainant
was
raped. The question is, did the state prove its case beyond a
reasonable doubt. In his heads of argument, counsel for the
respondent submitted that the appellant was convicted of rape based
on evidence of a single witness. The cautionary rule regarding
evidence of a single witness should be taken into account. However,
it has been said more than once that the exercise of caution
must not
be allowed to displace the exercise of common sense
(S
v Webber
1971
(3) SA 754
(A) at 758). It was submitted on behalf of the respondent
that this court should bear in mind the provisions of section 208 of
the Criminal Procedure Act, which provides that an accused may be
convicted of any offence on the single evidence of any competent
witness. Counsel for the respondent further submitted that in the
absence of an irregularity or misdirection, a court of appeal
is
bound by the credibility findings of the trial court unless it is
convinced that such findings are clearly incorrect
(J
v S
(2)
ALL
SA 267 1998 (SCA)).
[23]
The state bears the onus of proving the guilt of an accused person
beyond a reasonable doubt. Every accused person is presumed
innocent
until proven guilty
(R
v Difford
1937
(AD) 370). Section 35 (3) (h) of the Constitution of the Republic of
South Africa 1996, provides that:
“
Every
accused person has a right to a fair trial which includes the right -
(h) to be presumed innocent...”
There
is no onus which rests on the accused to prove his innocence
(S
v
Kombela
1966
(4) SA 358
(ALL). The onus never shifts, it remains squarely on the
shoulders of the prosecution throughout the criminal trial
(S
v Moleko
1955
(2) SA 401
(AD). It is trite that the accused person is entitled to
be acquitted if it is reasonably possible that his version might be
true
(S v Van
der Mevden
1999
(1) SACR 447
(W) at 448F. This onus of proof was expressed as follows
in the case of
S
v Shackell
2001
(4) SA 1
(SCA) at para [30]:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused's version is true. If the accused's version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible to test
the
accused's version against the inherent probabilities. But it cannot
be rejected merely because it is improbable; it can only
be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be
true.”
[24]
The cautionary rule generally means that the court is obliged to
consciously remind itself to be careful in considering evidence
which
practice has taught should be viewed with suspicion. In addition the
court should seek other safeguard of reducing the risk
of a wrong
finding based on suspect evidence (Schwikkard and Van der Merwe,
Principles of
Evidence
.
3
rd
ed)
2005.
In
J v S 1998
(4)BCLR 424 (SCA).
the
court dismissed the appeal by reasoning that a case might call for a
cautionary rule approach only where there was some evidential
basis
for suggesting that the evidence of the witness may be unreliable and
not simply because the witness was a complainant of
a sexual offence.
[25]
In
S v J
1998 (1)
SACR
470
(SCA),
it was stated that the cautionary rule in sexual assault cases was
based on an irrational and outdated perceptions. It unjustly
stereotyped complainants in general cases, most of whom are women, as
being unreliable. The cautionary rule was abolished in South
African
Law in
1998
by
the Supreme Court of Appeal’s decision in
S
v Jackson
(supra).
This
decision brought South African Law in line with comparable foreign
jurisdictions like Canada, England, New Zealand and California.
The
rule has also been abolished in Namibia and Zimbabwe
(S
v Banana
2000 (2)
SACR
1
(ZS).
Statutory confirmation of the abolition of the cautionary rule is
found in section
60
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32
of
2007
.
It
provides that:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant in
criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence.”
[26]
In
S v Sauls
1981 (3)
SA
172
(A)
180,
the
court held that there is no rule or test or formula to apply when it
comes to the consideration of the credibility of a single
witness.
The trial court should weigh the evidence of the single witness and
second consider the merits and demerits, having done
so, should
decide whether it is satisfied that the truth has been told despite
shortcomings or defects or contradictions in the
evidence.
[27]
The appellant was convicted of rape of his 8 year old daughter. I
have had particular regard to the decision referred to by
counsel for
the appellant,
S
v Shackell
(supra)
that
the principle in criminal proceedings is that the prosecution must
prove its case beyond a reasonable doubt and that a mere
preponderance of probabilities is not enough. It follows that the
onus rests on the state to prove every element of the crime alleged,
including that the appellant is the perpetrator, that he had the
required intention and the crime in question was unlawful (Schwikkard
and Van der Merwe:
Principles
of Evidence
(3
rd
ed)
at paragraph
31.3.1.
In
order to be acquitted, the version of the appellant has to be
reasonably possibly true
(S
v Van der Meyden
1999
(1)
SACR
447
W). Nugent J in
S
v Van der Meyden
(supra)
said
that:
"... These are
not separate and independent test, but the expression of the same
test when viewed from opposite perspectives.
In order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt, which will be so only if there
is at the same time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are
being inseparable, each being
the logical corollary of the other.”
[28]
The correct approach is to weigh up all the evidence which points
towards the guilt of the accused against all those which
are
indicative of his innocence. Proper account of inherent strengths and
weaknesses, probabilities and improbabilities should
be taken into
account, on both sides and having done so, to decide whether the
balance weighs so heavily in favour of the state
as to exclude any
reasonable doubt about the accused’s guilt. The result may
prove that one scrap of evidence or one defect
in the case for either
party (such as a failure to call a material witness concerning an
identity parade) was decisive but that
can only be an ex post facto
determination and a trial court (and counsel) should avoid the
temptation to latch on to one (apparently)
obvious aspect without
assessing it in the context of the full picture presented in
evidence.”
(
S
v
Chabalala
2003 (1
)
SACR
134
para
[15-1
8],
[29]
In
S v M
2006 1
SACR
135
(SCA)
at
272,
Cameron
J criticized the cautionary rule as it stood prior to
S
v Jackson
(supra)
and
said:
“
The
recent radical reason of the so-called cautionary rule in sexual
assault cases ... is a reminder that today’s perceived
wisdom
regarding human behaviour and the ability of the lay person to
correctly interpret it, may tomorrow be discarded as irrational
and
out of date.”
[34]
In
casu
the
complainant gave a detailed and logical account of the rape
incidents, even though she could not remember the dates. This is
not
unusual for an 8 year old girl. She may not have appreciated the
seriousness of the offence at the time when it happened. She
would
not have known that she was supposed to keep a diary of the dates of
the rape incidents. She may not have known that one
day she will be
called to testify against her father and expected to give exact dates
of when the incidents happened. The complainant
cannot be punished
for not remembering the dates albeit the fact that she was raped by
her father. An 8 year old girl cannot fantasize
over things that were
beyond her own direct and indirect experience
(S
v S
1995
(1)
SACR
50
ZD).
The details were too graphic and precise to be fabricated by an 8
year old girl. Such details are beyond the comprehension
of an 8 year
old. The complainant had never heard of the word “condom”
that is why she described a condom as a “balloon”.
She
does not know the term of the complainant’s private part but
called it a “thing”. There is no rule of law
requiring
corroborations in criminal law. If some safeguard reducing the risk
of conviction is required, the safeguard must not
consist of
corroboration but if corroboration is relied upon as the safeguard,
it must go the length of implicating the accused
in the commission of
the crime
(S v
Artman and
Another
1968 (3)
SA
339
(AD).
In light of the preceding, the evidence in a particular case may call
for the application of a cautionary rule. It will depend
on the facts
and circumstances of such case as to whether such an approach was
necessary. I am of the view that this case does
not call for the
application of such a rule due to the facts and circumstances under
which the rapes were committed. The learned
magistrate was free to
“proceed to consider the evidence without the restraints
imposed by the cautionary rule.” (This
is what Mclunsky AJA
observed in
S v
M
(supra)
with
reference to
S v
Jackson
(supra).
[30]
In
S v Webber
1971 (3)
SA
754
(A)
the court said that the evidence of a single witness should be
approached with caution and such evidence should not be rejected
merely because the single witness happens to have bias towards the
accused. In
casu
the
complainant expressed her dislike of the appellant. This did not mean
that because she did not like the appellant so she decided
to falsely
implicate him. The reverse is true. I am of the considered view that,
the complainant disliked the appellant because
of the fact that the
appellant raped her. The complainant described the rape incidents to
her friends and the state witnesses as
the appellant doing “strange
things” to her. The complainant’s brother also said he
disliked the appellant. In
Woii
v Santam Insurance Co Ltd
.
1981
(1) SA 1020
(A) at 1028A-E, the learned Judge of Appeal Diemont JA
state that:
“
The
question which the trial Court must ask itself is whether the young
witness' evidence is trustworthy. Trustworthiness, depends
on factors
such as the child's power of observation, his power of recollection,
and his power of narration on the specific matter
to be testified. In
each instance the capacity of the particular child is to be
investigated. His capacity of observation will
depend on whether he
appears "intelligent enough to observe". Whether he has the
capacity of recollection will depend
again on whether he has
sufficient years of discretion "to remember what occurs"
while the capacity of narration or communication
raises the question
whether the child has "the capacity to understand the questions
put, and to frame and express intelligent
answers".”
[31] My view is that
the complainant’s evidence was trustworthy. I am of the
considered view that the truth has been told
by the complainant and
Itumeleng. This was despite the shortcomings, defects and
contradictions in their evidence. Even though
there were
contradictions between the complainant’s evidence and that of
Itumeleng, such contradictions were not material.
It was clear that
the complainant was not a privileged child who came from a
sophisticated background. Her cognitive understanding
and capacity
cannot be measured against that of an educated adult.
There
was no indication whether or not she attended school. Even if she
did, it would be a school on the farm with no modernized
technology
and facilities. She cannot be compared with a child who grew up in a
city, with a privileged and sophisticated background.
She should not
be compared with a child who attended a privileged school, like a
private school and who is broad minded. The fact
that she could not
remember other details like dates when the rapes happened had nothing
to do with the truthfulness or lack thereof
of her version. It has
got more to do with her unsophisticated and motherless background. I
am satisfied that the complainant’s
evidence was credible and
satisfactory. This was despite the fact that the submission on behalf
of the appellant was that she should
have been considered a single
witness. The court
a
quo
found
that she was a competent witness. The court
a
quo
simply
omitted to mention that the evidence was satisfactory in every
material respect
(R
v Mokoena
1932
OPD79 at 80).
[32]
In my view the conviction is in order. There is no merit in the
appeal against the conviction. The learned magistrate correctly
convicted the appellant of rape as charged. The appellant did not
have a defence to put before the court a quo. Instead he presented
different versions to court. The learned magistrate rightly said to
the appellant,"...
your
version is typical of that of a person who does not have a defence at
all to the charge he is faced with, you are merely clutching
at
straws.”
(See
the record, page 192). Both the magistrate and the prosecutor were of
the view that they did not know what the version of the
appellant
was. The prosecutor told the court that the appellant was evasive and
he only tried to mislead the court (see record,
page 162). I am of
the view that the appellant’s version was not reasonably
possibly true. The appellant’s different
versions were
indicative of inconsistency and lack of adequate defence.
[33] I agree with
the learned magistrate that the appellant gave multiple versions.
Firstly the appellant denied the allegations
against him in their
totality. The appellant then said that Ms Lebeoana wanted him to be
his son in law. He also said that Ms Lebeoana
wanted to take his
children away from him. The appellant further indicated Ms Lebeoana
once expressed to her boyfriend after the
appellant fought with his
son that she will see to it that the appellant got into trouble. As
if that was not enough the appellant
then said that his daughter
fabricated the rape version so that she could stay with Ms Lebeoana.
There is no need for this court
to tamper with the conviction.
[34] I now turn to
the sentence. As regards the sentence the grounds of appeal were
stated as follows:
“
AD
SENTENCE
As regards
sentence grounds of appeal relied on were:
6
The honourable court erred by finding that there are no substantial
and compelling circumstances which justify the departure from
the
minimum sentence of life imprisonment
..........
The
court erred by not finding as compelling and substantial
circumstances the fact that the appellant was gainful employed and
the fact that he is a first offender In this regard see the decision
of
SvVilakazi
(2008)
JOL 22360
(SCA).
7
The sentence of
maximum sentence of life imprisonment imposed by the trial court is
shockingly inappropriate and harsh.
7.1 Is out of
proportion to the totality of the alleged facts in mitigation.
8 The court a quo
erred by not imposing a shorter term of imprisonment coupled with
community service and/or further suspended sentence,
more
particularly in view of the following factors:
8.1 the age and
personal circumstances of the appellants;
8.2 the
rehabilitation elements;
8.3 the
mitigating factors inherent in facts found proved.
9 The court a quo
erred in over-emphasizing the following factors:
9.1 seriousness
of the offence;
9.2 prevalence of
the offence;
9.3 interest of
society”.
[35]
Section 51
of
the
Criminal Law Amendment Act 105 of 1997
provides that:
“
Notwithstanding
any other law, but subject to subsections (3) and (6) a regional
court or a high court shall sentence a person it
has convicted of an
offence referred to in
Part I
of Schedule 2 to imprisonment for
life.”
Section 3
of the
said Act provides that if any court is satisfied that substantial and
compelling circumstances exist which justify the imposition
of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances in the record of the
proceedings and
must impose a lesser sentence. Whereas section 3(aA) of the said Act
provides that:
“
when
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
(i)
….
(ii) An apparent
lack of physical injury to the complainant;
(iii) ...
(iv) ...”
[36]
In
S v Lister
1993 (2)
SACR
228
(A)
Nienaber said the following:
“
To
focus on the wellbeing of the accused at the expense of the other
aims of sentencing such as the interests of the community,
is too
distant the process and to produce, in all likelihood, a warped
sentence.”
[37]
In
S v Sinden
1995 (2)
SACR
704
(A)
at
709
(b)
the court stated as follows:
“
A
sentence does more than deal with a Particular Offender in respect of
the offence of which he has been convicted. It constitutes
a message
to society in which the offence occurred.”
[38]
The
court said in
S
v Malqas
2001 (1)
SACR
469
SCA
that:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it to do
so would
be to usurp the sentencing discretion of the trial court. Where
material misdirection by the court vitiates its exercise
of that
discretion, an appellate court is of course entitled to considering
the question of sentence afresh.”
[39]
The court
a quo
sentenced
the appellant to life imprisonment and concluded that no substantial
and compelling circumstances were proven. The allegation
that lack of
visible genital injuries on the complainant, meant that the
complainant was not raped, was baseless and without substance.
I am
of the view that the court a
quo
correctly
imposed a term of life imprisonment. I am not convinced that the
sentence was shockingly inappropriate. In considering
whether the
sentence imposed upon the appellant was inappropriate, I must of
course bear his personal circumstances in mind. The
personal
circumstances of the appellant were that he was 34 years old at the
time of the commission of the offence. He only passed
standard three
and was raised by his grandmother. He was a first offender. He had a
live- in girlfriend who was allegedly sick
and pregnant. In contrast
to the personal circumstances of the appellant, the aggravating
factors were that he committed a serious
crime of rape that was also
premeditated. The complainant was only 8 years old at the time of the
offense. He was the complainant’s
father. The rape incident
happened more than once and over a period of time. There was evidence
regarding emotional scars and it
will be unrealistic to propose that
there will be no psychological harm done by the incidents. The
emotional scars and psychological
harm are evident for instance in
the incident that happened during lunch break after the court
adjournment, on the day when the
complainant testified, after the
appellant pointed a finger at the complainant.
[40]
In
casu,
it
was common cause that the charge of rape fell within the ambit of
section 51(1) of the Criminal Procedure Act and that the learned
magistrate was obliged, subject to the provisions of section 51(3) to
impose a sentence of life imprisonment. The learned magistrate
after
weighing and considering all the factors, including mitigating and
aggravating circumstances concluded that, there were no
substantial
and compelling circumstances justifying the imposition of a lesser
sentence than the one prescribed. Taking into consideration
all the
circumstances and factors pertaining to sentence, including but not
limited to the seriousness of the offence, the interests
of the
community, the personal circumstances of the appellant, I am in all
circumstances satisfied that this court should not consider
the
sentencing of the court a quo afresh. Having considered all the
aggravating factors, I am not convinced that there are compelling
and
substantial circumstances in this case. There is no merit in the
appeal against the sentence. In my view there was no material
misdirection by the court a
quo.
It
is my view that the court a quo exercised its discretion judicially
and properly. There is nothing that this court can add to
the
reasoning or the findings of the Court a quo. I am of the view that
there was no need to tamper with the sentence of the court
a
quo.
[41] In the result
the appeal against the conviction and sentence should fail.
ORDER
[42]
The conviction and sentence imposed by the court
a
quo
are
confirmed.
E. K. TSATSI, AJ
I agree.
M. H. RAMPAI, AJP
On behalf of
appellant: K. Pretorius
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. F. Pienaar
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN