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[2013] ZAGPPHC 548
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A.M v S (A710/2012) [2013] ZAGPPHC 548 (7 May 2013)
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IN THE NORTH GAUTENG HIGH COURT, PRETORIA
/ES
(
REPUBLIC
OF SOUTH AFRICA
)
CASE NO:
A710/2012
DATE: 7/5/2013
IN THE MATTER BETWEEN
A[…]
M[…]
..........................................................................................................................
APPELLANT
AND
THE
STATE
.......................................................................................................................
RESPONDENT
JUDGMENT
PRINSLOO,
J
[1] 0n 18 July 2005 the
appellant, then about 50 years old, was convicted in the
Vanderbijlpark regional court of raping the complainant,
a 13 year
old girl, on a number of occasions during the period May to June
2004.
[2] 0n the same date, the
learned regional magistrate, correctly, referred the appellant for
sentence by the High Court in terms
of the provisions of section 52
of the Criminal Law Amendment Act, Act 105 of 1997, as that
particular subsection then provided.
[3] 0n 22 February 2006,
the matter came before SALDULKER, J who found that the
proceedings before the learned regional magistrate
were in accordance
with justice and she confirmed the conviction.
[4] 0n 27 February 2006 the
learned judge sentenced the appellant to eighteen years imprisonment,
after finding that there were
substantial and compelling
circumstances justifying a departure from the prescribed sentence of
life imprisonment.
[5] 0n 28 May 2009, the
learned judge granted leave to appeal to this court against both the
conviction and sentence.
[6] In the appeal before
us, Mr Nel appeared for the appellant, and Ms Vorster appeared
for the state.
[7] It is
convenient to quote the contents of the charge-sheet:
"That
the accused is guilty of the offence of rape read with section 51 of
Act 105 of 1997.
In
that upon or about during May to June 2004 and at or near 3246
Silicon Street, Lenasia South in the regional division of Gauteng,
the said accused, wrongfully and intentionally had intercourse with
V[…] M[…] a 13 year old female person, without
her
consent."
[8] In the trial court the
appellant was legally represented and he pleaded not guilty, denying
all allegations of having had sexual
intercourse with the
complainant, who was his stepdaughter. At the commencement of
the proceedings, the learned regional
magistrate also explained the
implications of section 51(1) of Act 105 of 1997 to the appellant,
namely that, if convicted, he
could be sentenced to imprisonment for
life, which was the prescribed minimum sentence.
[9] In terms of the
relevant statutory provisions, it was ruled that the trial would be
conducted in camera and the young complainant
was also allowed to
give her evidence through an intermediary as well as by the use of
closed circuit television. The intermediary,
Ms Getrude
Maselelo, was adjudged to be properly qualified and a competent
person to be the intermediary. The 13 year
old complainant was
also found to be appreciative of the implications of taking the oath.
[10] The complainant
testified that the incidents, or rapes, started during May 2004 and
the last occasion was on 25 June 2004.
It happened on several
occasions, basically every day unless the accused worked nightshifts.
[11] The following
background facts are also useful to record: when the complainant was
about 3 years old, her mother formed a relationship
with the
appellant. 0ut of this union, two younger siblings, a boy and a
girl, were also born. The five of them lived
in the house
mentioned in the charge-sheet which belonged to the appellant.
For a number of years, the appellant and the
mother shared a bedroom,
so that the two siblings had a bedroom and the complainant had her
own bedroom.
The weight of the evidence
was to the effect that from about May 2004 the appellant moved into
the room of the siblings with the
latter going to sleep with their
mother and the complainant stayed in her own room. The room now
used by the appellant was
adjacent to that used by the complainant.
The complainant and the
mother testified that during the relevant period, May to June 2004,
the appellant and the mother were not
on good terms, and, according
to the mother, the appellant would not speak to her, and would not
explain why he adopted such an
unsociable attitude. The
appellant, on the other hand, testified that there was no ill feeling
between him and the mother,
and they slept together throughout, with
the exception of two nights when he was on nightshift and had the
control radio with him
which meant that he could be called up for
duty and nightshift at any time. This version was not put to
either the complainant
or the mother in cross-examination.
[12] It was during this
period when the appellant was said to sleep in the other room, that
he, on the first occasion in May 2004,
came to the complainant's room
while she was sleeping, took off her pajamas and panty and inserted
his penis into her vagina, obviously
without her consent. He
made certain up and down movements. She said that her private
part was sore as a result.
[13] The appellant took the
complainant to school every morning in his motor vehicle. They
were alone in the car and on a
number of occasions the appellant
warned the complainant not to tell her mother about these incidents.
In this regard, it
should also be added that the appellant was the
sole breadwinner of the family, the mother being unemployed at all
relevant times.
According to the complainant, the appellant, on
occasion, told her that if she were to reveal his conduct and he were
to go to
jail, the rest of the family would be destitute.
[14] The complainant
testified that although she found these experiences painful, she
persevered and did not scream. She felt
tired because she never
slept properly and she lost interest in playing with her friends.
She also failed her mid-year exams
during that year, when she was in
grade 8.
[15] There was some dispute
between the complainant and the mother on the one side and the
appellant on the other side, about the
question of visibility.
The complainant and the mother testified that, although the light was
off in the room of the complainant
when she slept, the outside light
of the house of the neighbours was always switched on during the
night and the glow shone through
the window of the room used by the
complainant (although covered by a curtain) leaving sufficient light
and visibility for the
complainant to clearly identify her stepfather
during these nocturnal visits. In any event, there was never
any suggestion
as to who else, but the stepfather, would have raped
the complainant at night, if indeed those attacks took place.
The testimony
of the appellant, on this subject, was that the outside
light of the neighbour only shone against the side wall and could not
illuminate
the room used by the complainant.
[16] There was also an
incident when the complainant screamed one night while being raped by
her stepfather who then left the room
before the mother could rush in
to enquire about the reason for the screaming. The complainant
did not answer the question
but she kept on crying. The mother
also observed the appellant standing in the passage by the door of
his room swearing at
the complainant and complaining about the fact
that she was making a noise.
[17] By 25 June 2004, the
complainant had had enough, and this was the last time she was
attacked. 0n 26 June, when her stepfather
was not at home, she
told her mother what was going on. The mother consulted with an
aunt and the matter was reported to
the police. 0n 30 June, the
appellant was arrested.
[18] 0n 30 June, the
complainant was also examined by Dr Soomati D Natha, whose J88
form was also handed in as an exhibit.
[19] In her evidence, the
mother, L[…] M[…], confirmed that she used to get on
well with the appellant, and so did
the complainant. She
confirmed that things took a turn for the worse when the appellant
stopped talking to her, for reasons
unknown to her, and he would not
discuss the issue either. She confirmed that over the relevant
period, May to June, he slept
in the other room. The younger
siblings slept with her and the complainant stayed in her own room.
The mother corroborated the
evidence of the complainant that there was sufficient light in the
latter's room at night for identification
purposes. This light
was caused by the outside lights of the neighbours.
[20] The mother confirmed
the incident in the passage when the complainant was crying, and when
the appellant swore at the complainant.
The mother confirmed the
complainant's evidence that the latter always appeared to be tired,
lost interest in her friends and failed
her mid-year examinations.
This was uncharacteristic of the complainant, because she used to be
a happy child playing with
her friends, two of whom were named in the
evidence, and always passing her examinations. The mother
confirmed that the report
was made to her on 26 June, that she
consulted with an aunt who actually laid the charge with the police,
that the arrest
took place on 30 June and that she had the
complainant examined by Dr Natha on 30 June. At a point
after all this
happened, the mother and her children also left the
home of the appellant and moved in with her sister in Vlakfontein.
[21] Dr Natha gave
comprehensive and lengthy evidence about the condition of the
complainant. She was also cross-examined
quite intensively.
She related the version of the events as told to her by the
complainant. This version, broadly,
corresponded with the
evidence of the complainant during the trial.
The complainant said that
she had been a virgin before the attacks started taking place.
She said that condoms were used during
the attacks. I add that
during the trial, the complainant also explained the clothing worn by
the appellant when he visited
her at night. He wore shorts and
a T shirt. This evidence of the appellant's favorite
sleeping attire was also
confirmed by the mother.
[22] Returning to the
evidence of Dr Natha, she said that on gynaecological
examination she noted tears on the posterior fourchette.
There
was no bleeding anymore but there was increased friability.
This means that the tissue looked like it was torn and
healed and
torn and healed. The edge of the hymen was irregular. The
child had healed tears at 3 o'clock and 6
o'clock positions.
There was a synechiae at about the 6 o'clock position. This was
like a cut "that was not together
… it was two separate
edges". It is like a healed cut that is not bleeding but
open. There was no bleeding
or discharge because of the length
of time that had expired since the last incident some five days
earlier. For the same
reason the doctor took no specimens for
analysis. According to her, the results of the examination did
not exclude recent
vaginal penetration. The hymen was not
intact. 0n a 13 year old this sort of an injury is highly
probably one
that could have been caused by a blunt object, for
example a finger or a penis.
During cross-examination,
the doctor also said that if the complainant had still been
menstruating when the last attack took place
(which appeared likely
from the history provided by the complainant) the injury occasioned
on that date would have been lessened
by the additional moistness in
the vagina.
[23] The doctor also
testified that because the injuries are mostly noted in the lower
half of the clock, from 3 o'clock to 9 o'clock,
they suggest a high
probability of forceful penetration. These injuries would
include the synechiae at 6 o'clock and the
friability to which I have
referred.
[24] The appellant was the
only witness in his own defence. He denied everything. He
denied, as I have said, that he
was on bad terms with his wife and
that he had slept in the other room over that extended period,
barring for the two nights when
he was on standby with the control
radio. He said that he was on good terms with the wife and the
complainant. He could
think of no reason whatsoever why the
complainant and the wife would fabricate false evidence against him.
He did say that
all the rooms in the house had keys so that they
could be locked if necessary. It must be pointed out that this
evidence
was supported by the mother whilst the complainant said that
the keys had been removed at some earlier stage by the appellant.
The appellant also denied the incident when he was in the passage
when the complainant first screamed and later cried.
[25] In a well-reasoned
judgment, the learned regional magistrate found that the evidence of
the appellant could not be reasonably
possibly true. There was
no reason, according to him, for the complainant and the mother to
fabricate false evidence.
The learned regional magistrate paid
due regard to the cautionary rules when it came to considering the
evidence of a single witness.
She found corroboration for that
evidence in the medical evidence presented by Dr Natha and the
fact that there was no other
conceivable person, suggested by
anybody, that could have had sexual intercourse with the complainant
under the prevailing circumstances.
Further corroboration was
found in the change in the behavior of the complainant who became
lethargic, was always tired, would
not play with her friends and
failed her examinations.
[26] I find no material
misdirection on the part of the learned regional magistrate when she
made the factual findings which led
to the conviction. Under
these circumstances, a court of appeal will not interfere with the
factual findings – see
R v Dhlumayo & Another
1948 2 SA 677
(A). The learned judge correctly confirmed the
conviction.
[27] In the
result, I am of the view that the appeal against the conviction must
fail.
[28] As to the sentence
imposed, the learned judge thoroughly considered the relevant aspects
of this particular case. In
coming to the conclusion that there
were substantial and compelling circumstances justifying the
imposition of a lesser sentence
than the prescribed one of life
imprisonment, the learned judge took the following into account: the
appellant came from a stable
background. He had been employed
for twelve years with the Johannesburg Water Board, earning a salary
of some R9 000,00
a month and had been a useful member of
society, maintaining his family, including the complainant. He
had already been in
custody for some eighteen months by the time
sentence was imposed. The appellant had a number of previous
convictions but
all of them occurred more than ten years before the
sentence was imposed. There was no evidence that the
complainant had
suffered long term permanent psychological harm as a
result of the rape.
The learned judge also
identified aggravating factors such as the fact that the appellant
was the stepfather of the victim and,
therefore, in the position of
trust where he was supposed to protect rather than abuse the
complainant. The learned judge
also paid due consideration to
comparable cases and comparable prison sentences that had been
imposed.
[29] Sentencing is, in any
event, in the province of the trial court, and will only be
interfered with by a court of appeal if vitiated
by misdirection or
irregularity or if the sentence can be described as being shockingly
inappropriate. In my view, this is
not the case in the present
instance. Consequently the appeal against the sentence should
also fail.
[30] The order that I make
is that the appeal against the conviction and sentence is dismissed.
W R C PRINSLOO
JUDGE OF THE
NORTH GAUTENG HIGH COURT
A710-2012
I agree
A P LEDWABA
JUDGE OF THE
NORTH GAUTENG HIGH COURT
I agree
N KOLLAPEN
JUDGE OF THE
NORTH GAUTENG HIGH COURT
HEARD ON: 20
MARCH 2013
FOR THE
APPELLANT: V Z NEL
INSTRUCTED
BY: LEGAL AID SOUTH AFRICA
FOR THE
RESPONDENT: Ms VORSTER
INSTRUCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS