About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 159
|
|
Tshabalala v S (A 74/2011) [2013] ZAGPPHC 159 (12 June 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case No: A 74/2011
DATE:12/06/2013
In
the matter between
THABO McPHERSON TSHABALALA
…..............................................................
Appellant
and
THE
STATE
.................................................................................................................
Respondent
JUDGMENT
Oosthuizen
AJ:
[1]
This is an appeal against the conviction of the Appellant in the
Sebokeng Regional Court, on 4 August 2010, of having contravened
section 3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 (‘Act 32 of 2007") in that
he had
raped a thirteen (13) year old girl more than once on 4 December
2009, and against his sentence of sixteen (16) years imprisonment,
imposed on the same date. His conviction and sentence also resulted
in an order that his personal particulars and other information
be
included in the National Register of Sexual Offenders (as
contemplated in section 50(1 )(a) (i) read with section 50(2) of Act
32 of 2007) and in him becoming unfit to posses a firearm (as
contemplated in section 103(1 )(g) of the
Firearms Control Act 60 of
2000
), with the further order by the Sebokeng Regional Court in terms
of section 103(4) of the Firearms Control Act 60 of 2000 (“Act
60 of 2000") of an immediate search for and seizure of all
competency certificates, licences, authorisations and permits issued
to the Appellant in terms of Act 60 of 2000, as well as all firearms
and ammunition in his possession.
[2]
An application for leave to appeal against the conviction and the
sentence was heard by the Sebokeng Regional Court and leave
tc appeal
was granted on 6 August •2010. There is some lack of clarity as
to what leave was precisely granted, but in the
end nothing turns on
it.
[3]
The matter was enrolled in the High Court for an appeal hearing that
was to be held on 15 May 2012. On that day the matter came
before our
brothers LOUW J and WRIGHT AJ. They considered the matter and came to
the prima facie view that the appeal against conviction
should
partially succeed, in that the conviction and sentence should be set
aside but that it should be replaced with a conviction
of having
contravened section 15(1) of Act 32 of 2007, as a competent verdict
on the original charge in terms of section 261(1
)(g) of the Criminal
Procedure Act 51 of 1977 (“Act 51 of 1977'). That section, read
with the definition of a “child”
in section 1(1) of Act
32 of 2007, creates the statutory offence of having committed an act
of consensual sexual penetration with
a child, that is with a person
twelve (12) years or older but under the age of sixteen (16) years.
[4]
The court was then made aware of a judgment that was given a few days
earlier on 11 May 2012 in Director of Public Prosecutions,
Western
Cape v Prins
2012 (2) SACR 67
(WCC). That judgement of the Full Bench
of the Western Cape High Court held unanimously that, because section
5(1) of Act 32 of
2007 which creates the offence of sexual assault
but does not prescribe a penalty and with no penalty for the offence
being prescribed
elsewhere in Act 32 of 2007, that section falls foul
of the nulla poena sine lege principle and the Constitution;
consequently
the Full Bench held that an indictment or charge-sheet
alleging a contravention of section 5(1) of Act 32 of 2007 did not
disclose
an offence. The same reasoning would have held good for an
indictment or charge-sheet alleging a contravention of section 15 of
Act 32 of 2007 and, on that basis, the conviction of the Appellant on
section 15 of Act 32 of 2007 would have been impermissible.
The
appeal hearing was postponed so that counsel could consider the
aforesaid judgement.
[5]
On that same date, 15 May 2012, the court also ordered the release of
the Appellant on bail, subject to a number of conditions,
pending the
final outcome of this appeal. The Appellant, having been arrested on
16 December 2009, would have spent at least twenty-nine
(29) months
in custody. There is nothing on record before us to show that the
Appellant made bail but we were informed from the
bar that on 23 May
2012 he was indeed released on bail.
[6]
On 15 June 2012 the Supreme Court of Appeal, in Director of Public
Prosecutions, Western Cape v Prins and others
2012 (2) SACR 183
(SCA), overturned the aforesaid judgment of the Full Bench of the
Western Cape High Court. The Supreme Court of Appeal held that
the
various provisions defining criminal offences in chapters 2, 3 and 4
of Act 32 of 2007 clearly and unequivocally created criminal
offences
and it was also clearly and unequivocally within the contemplation of
the legislature that on conviction the courts will
impose an
appropriate sentence on the accused. In the absence of an express
penalty provision in Act 32 of 2007 (which has since
been rectified
by the insertion of section 56A with effect from 26 June 2012
therein, in terms of
section 5
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act Amendment
Act 6 of 2012), there is
a legal basis for the imposition of sentences on persons convicted of
the various offences set out in
Act 32 of 2007 to be found in section
276(1) of Act 51 of 1977. The said section 276(1) was described as a
general empowering provision
authorising courts to impose sentences
in all cases, whether at common law or under statute, where no other
provision governs the
imposition of sentence. See also SvBooi
2012
(2) SACR 52
(FB).
[7]
The matter was again enrolled in the High Court for an appeal hearing
that was to be held on 23 November May 2012. On that day
the matter
came before our brother RANCHOD J and our sister MOLOPA-SETHOSA J.
They, under circumstances not known to us, postponed
the matter sine
die apparently because they were of the view that our brothers LOUW J
and WRIGHT AJ should deal with the matter
as they have dealt with it
before and became seized with it. The matter has now been enrolled
again in the High Court for an appeal
hearing today, 10 June 2013,
and serves before us. We see no reason why it should be postponed for
a third time and why we cannot
entertain
the
appeal. Both the representative for the Appellant as well as the
representative for the State were asked whether there is any
objection to us continuing with the appeal hearing and there was no
objection. We therefore continue to deal with the merits.
[8]
A charge of rape under section 3 of Act 32 of 2007 was duly put to
the Appellant at the start of the trial on 7 July 2010, informing
him
that he stood accused of the rape of the child N, a thirteen (13)
year old female person, in that he allegedly, on 4 December
2009 and
at or near Sebokeng, unlawfully and intentionally committed an act of
sexual penetration with her by inserting his finger
in her vagina and
by having sexual intercourse with her. Before he pleaded to the
charge, he was made aware of an informed of the
provisions of section
51 (1) of the Criminal Law Amendment Act 105 of 1997 (incorrectly
referred to by the Sebokeng Regional Court
as the Criminal Law
Amendment Act 38 of 2007) concerning the possibility of a sentence of
life imprisonment in the event of a conviction.
He pleaded not guilty
to that charge and his legal representative, for the purposes of
section 115 of Act 51 of 1977, started to
explain that the Appellant
(then himself 20 years old) had a love relationship with N.
[9]
The regional magistrate interrupted the explanation and took the
initiative to ask whether it should be recorded as a formal
admission
that the Appellant admits that on 4 December he had consensual sexual
intercourse with N, and upon a confirmative answer
from the
Appellant’s legal representative a formal admission to that
effect was recorded in terms of section 220 of Act 51
of 1977 without
any comment, objection or criticism from the prosecutor. An admission
tendered on behalf of an accused, in terms
of section 220 of Act 51
of 1977, does not bind the State to a meaning which is radically at
variance with the State's case: see
S v Groenewald
2005 (2) SACR 597
(SCA). Nevertheless, one would have expected the prosecutor to make
it clear on that occasion that, whilst it was common cause
between
the parties that sexual intercourse took place on the date and at the
place alleged, the alleged consensual nature thereof
was not common
cause.
[10]
The proceedings proceeded in camera and N, the complainant, testified
first. Her evidence in chief was that, during the morning
of the day
of the incident, she was on her
way
to visit her grandmother when she encountered the Appellant on the
street. She knew him “from the street and for quite
a long
time. The Appellant grabbed her and dragged her into a house, where
he assaulted her (by slapping her repeatedly with an
open hand
through the face) and told her that she can tell her parents or the
police about the assault because they will do nothing
to him and he
is not afraid to be arrested. N stated that on this occasion she
sustained no injuries. According to her, she was
then locked inside
the bedroom whilst the Appellant went outfor a brief period. She
states that he returned, smoking a cigarette,
and assaulted her by
again slapping her once through the face with an open hand. He then
pushed her onto the bed, undressed her
and first inserted his finger
into her vagina where after he had sexual intercourse with her. On
her version they only had sexual
intercourse once, albeit that two
sexual penetrations took place.
At
this juncture the prosecutor asked N whether she had consented to the
Appellant putting his finger in her vagina. The question
was clear
and she answered affirmatively but qualified her answer by stating
she consented because she was afraid of the Appellant.
The question
was rephrased without objection by the presiding officer or the legal
representative of the Appellant, asking whether
N gave permission for
that conduct of the Appellant, whereupon the answer was that she did
not allow it. The next question was
whether she consented to sexual
intercourse and this time N answered directly that she did not
consent to sexual intercourse.
N
confirmed in her evidence that the Appellant used a condom during
sexual intercourse. When that was finished, he told her to get
dressed but, despite her request, refused to open the door of the
bedroom or house and only allowed her to leave at about 22h00.
Immediately after he released her, he came running after her with
someone else to assault her a third time with his open hands
and was
told by an older man (presumably in the street) to leave her alone.
N
then went straight home, instead of to her grandmother as she
originally intended. She explained that the reason for this was
that
she was released so late by the Appellant. She reported the incident
to her mother immediately upon her arrival at home. On
her testimony
she only reported the sexual penetrations to her mother and not the
three incidents of assault. She was taken to
a hospital where a
doctor examined her, recording the result of his medico-legai
examination on the J.88 medical report form. Afterwards
she went for
counselling and, on the date of the trial, she did not fee! good
about what happened to her.
[11]
During cross-examination the complainant N denied that she was
friends with the Appellant but she confirmed that she knows
his name
and that they do not live far apart from each other in the township.
She maintained that when she was grabbed on the street
at about noon,
and dragged into the house by the Appellant, there were no-one else
in sight or on the street. She also answered
that she and the
Appellant went through the only gate at the house in question, which
turned out to be the Appellant’s place
of residence. When she
was confronted with the fact that there is a salon in the front of
that yard, she answered that the people
in that salon did not see
them because they went in through a back door of the house. She added
that she was crying softly but
did not shout for help because she was
afraid of the Appellant and he told her not to make a noise. Once
inside the house, the
Appellant locked the house and then he started
slapping her for quite a long time but she was not injured on that
occasion. She
then mentioned that she had some swelling under her
eyes and that the doctor at the hospital saw that. In passing we note
that
no such swelling or any kind of related injury is recorded on
the aforesaid J.88, which was handed in by consent during the case
for the prosecution and with the legal representative for the
Appellant admitting the correctness and the admissibility thereof.
When the Appellant briefly left, she was still afraid of him and of
his sudden return, which is why she never thought to shout
for help,
from the house in which she was held captive, from the people in the
salon. Cross- examination confirmed the evidence
in chief on what
happened upon the return of the Appellant to the bedroom and elicited
the further evidence that the Appellant
undressed her roughly but was
gentle during sexual intercourse. She experienced severe pain in her
vagina during sexual intercourse
but no bleeding. She denied consent
and she denied being in any love relationship with the Appellant. She
also denied having told
the Appellant, when they met, that she was
1514 years old and volunteered the evidence that, when the Appellant
started giving
her trouble, her father warned him to leave her alone
because she was still young. She therefor insisted that the Appellant
knew
her age but it later transpired that her evidence in this regard
was hearsay; in any event and although the Appellant may have been
told that she was young, there is no evidence that he was told how
young she was or what her actual age at the time was.
The
said J.88 form recorded that the complainant N had semen in her
vagina and she was asked to explain this in view of her evidence
that
the Appellant had a condom on before, during and after sexual
intercourse. She could not explain the discrepancy.
The
questions in cross-examination suggested, and the complainant N
conceded, that she look older that her biological age. Unfortunately
the presiding officer did not record his observations at the time on
what is an important aspect of this matter. In the later evidence
of
her mother this was also confirmed, that she looks older than she
actually is.
[12]
Nothing of any particular relevance came forth in the rest of the
cross-examination of the complainant N and there was no
re-examination.
[13]
The mother of the complainant N then testified and corroborated that
her daughter left the house on 4 December 2009 ostensibly
to go and
visit the mother’s sister (which we assume is a reference to
the person that the complainant N regarded as her
grandmother). The
mother testified in more detail about the report to her than the
complainant N testified about, but some minor
differences and
discrepancies are to be expected. If their evidence on this report
was identical in all respects, that would have
been suspicious. She
also confirmed the reprimand by the father of the complainant N to
the Appellant, that he must stop "troubling"
her, but she
had very little if any personal knowledge of these events.
[14]
That was the case for the prosecution. The Appellant testified in his
own defence. He was at the time of the trial (in July
2010) 20 years
old and selling fruit as a hawker to make a living. He knew the
complainant N because for the past year and five
months she was his
girlfriend. He believed that she was fifteen (15) years old and saw
her at his residence the previous year on
4 December 2009. He does
not know how she arrived there but was told by one Musendo that she
was looking for him. He returned home
and found her in his yard. They
then went into the house where he washed the dishes and they
conversed with each other. Thereafter
they had three rounds or bouts
of consensual sexual intercourse with each other in the open bedroom
during the afternoon. In the
course of that afternoon the same
Musendo came in to the house in order to put the equipment, used in
the hair salon, away. The
complainant N left at about-19h00 that
evening and he started to accompany her. They then had a verbal
altercation because she
wanted him to accompany her to her house
whilst he remembered that he had some errands to run for his sister.
They did not part
on good terms.
The
Appellant testified that everyone knew about their relationship,
including his sister who warned them repeatedly against getting
pregnant. The Appellant confirmed that there was an incident when the
father of the complainant N warned him not to have a relationship
with his young daughter and claimed that he then told her father that
they loved each other. When this incident took place and
how long it
was before the incident of 4 December 2009 do not appear from the
record and there are some unsatisfactory aspects
in the evidence of
the Appellant concerning this incident.
[15]
The cross-examination of the Appellant by the prosecutor did not
shake or destroy the evidence of the Appellant. The Appellant
persisted that, although he knew that the complainant N was still at
school, he did not know that she was thirteen (13) years old
at the
time. He did not contest a birth certificate stating her day of birth
to be 21 April 1996 and that became evidence by consent.
Questions
were put to the Appellant on the basis that he knew the complainant N
was still a child, but without stating or putting
that the Appellant
had an actual subjective knowledge of her real age. Some of the
questions became argumentative and called for
speculation on the part
of the Appellant. He remained steadfast in his version.
Even
the accusation by the prosecutor, that the defence of sexual
intercourse by consent was a fabrication because of a realisation
that there was incriminating evidence against the Appellant, was met
with the calm answer that that was not what happened. This
accusation
falls strange on the ear. The same prosecutor stood by passively when
it was formally admitted that the sexual intercourse
between the two
on 4 December 2009 was consensual. The same prosecutor allowed the
J.88 medical report and its content to become
common cause between
the prosecution and the defence, contradicting the claim by the
complainant that she had some swelling or
injury to her face as a
result of the assault or assaults upon her and the doctor allegedly
saw this. Save for the oral evidence
of the complainant, there was
also no incriminating evidence against the Appellant that would
compel the strategy of which he was
accused of by the prosecutor.
[16]
The said Musendo, a 25-year old male whose full name is Musendo
Mathavele, was called as a witness for the defence. He corroborated
the evidence of the Appellant in all major respects. He works in the
hair salon in the yard at the Appellant’s residence.
The
complainant arrived and enquired about the Appellant. The said
Musendo knew why she was there, namely because she had a love
relationship with the Appellant, and he saw her regularly at that
house. He went and called the Appellant. The Appellant came back
to
the house and went indoors with the complainant. The said Musendo
carried on with his work and at some time, when he closed
up the
salon, went to put his equipment in the house. He estimated the age
of the complainant to be 16 or 17 years old. He never
saw anyone
being dragged from the street nor did he see any assault upon the
complainant that day. In cross- examination he was
taken to task on
the improbability that he as a 25-year old would go and call someone
like the Appellant who is younger than he
is at the request of a
young girl and, to boot, leave his salon without supervision.
However, that is not so inherently improbable
as to be rejected. In
this regard the remarks in Viviers v Killian
1927 AD 449
at 454 at
springs to mind (own underlining for the sake of emphasis):
“
But
then we are asked to say that Hughes' evidence is so grossly
improbable that it should not have been accepted by the court below.
That,
however, is an argument that cuts both wav's. It is true that the
circumstances deposed to by Hughes are exceedingly strange.
That Mrs.
Kilian should not have noticed him as she passed near him on her way
to meet the appellant, and that the alleged adultery
should have
taken place in the manner described by him on a bright moonlight
night within a few yards of where he was sitting and
on the border of
a public street, does seem highly improbable. On the other hand, it
is not difficult to understand that Mrs. Kilian
should not have
observed Hughes. His house was in darkness, he was sitting in the
shadow, and if his story is true, her attention
would naturally have
been directed to the appellant, who was in the street, so that she
might very well have passed Hughes without
noticing
him. Moreover the very improbability of the story is to some extent
evidence of its truthfulness. Truth. we know is sometimes
stranger
than fiction. Had the story been concocted, it is difficult to
believe that it would have taken the form which it did.
It would have
been so much easier to ha ve made up a simple story without any of
the improbabilities with which this one abounds,
demanding a wealth
of imagination with which one could scarcely credit any of the
witnesses for the respondent.
The
learned Judges who saw Hughes and heard his evidence were satisfied
that he was speaking the truth, and I can find no good ground
for
dissenting from their conclusion."
He
was also criticized for saying that he remembered the incident
because the police arrived whilst he was present. The answer by
the
said Musendo was then taken out of context. He never testified that
the police arrived the same day on 4 December 2009.
[17]
The case for the defence was closed after this testimony, argument
followed and the Sebokeng Regional Court gave an ex tempore
judgment
on 4 August 2010. No previous convictions were proven against the
Appellant. Submissions on punishment followed, after
which sentence
was imposed.
[18]
That brings us to this appeal. We have a number of problems with the
evidence of the complainant N, testifying as a single
witness and as
a youthful one.
[18.1]
According to the complainant she was grabbed in clear daylight on a
public street with nobody in sight and dragged, past
a hair salon
with people in attendance there, into a yard and through the back
door of the house. In this regard it was never in
dispute, and is in
fact common cause, that at least the one defence witness was in or at
that salon on that day and he saw nothing.
In our view her version is
inherently improbable.
[18.2]
She claims that during this incident on 4 December 2009 she has been
assaulted on three separate occasions (when she was
taken from the
street, when the Appellant returned to the bedroom and immediately
after she was released by the Appellant that
evening) by the
Appellant slapping her with the open hand through the
face;
yet the medico-iegal examination showed no injuries on her consistent
with that version.
[18
.3] On the crucial aspect of this case, namely whether sexual
intercourse took place with or without consent, the answers had
to be
coached out of the complainant. We realise that testifying in court
may be a harrowing experience for any witness, especially
a child,
and that sometimes there is no other way to put the evidence before
court. The overall impression of the evidence in chief
by the
complainant is however that she answered all questions without
difficulty except for those pertaining to her consent.
[18.4]
The discrepancy between her oral evidence (that the Appellant had a
condom on before, during and after sexual intercourse)
and the
objective medical evidence (recorded in the said J.88 medical form,
that she had semen in her vagina) was never explained
or clarified by
the prosecution. In addition the use of a condom seems to be more
consistent with an afternoon of consensual sexual
intercourse between
the Appellant and the complainant than a violent grabbing of the
complainant from the street, dragging her
into the nearest house and
then raping her after a number of slaps through the face.
[18.5]
The overall picture sketched by the witnesses is that, from shortly
after noon until at least early that evening on 4 December
2009, the
complainant and the Appellant were together. The incident thus
occupied some seven (7) hours or longer. The version of
the
complainant simply does not account for all that time. On her version
she was grabbed around noon, dragged into the house,
assaulted, then
raped and afterwards told to dress before she was held against her
will until early evening when she was released.
On that version and
in the hours before she was released, she and the Appellant
apparently simply waited for the time to go bye
and did nothing. This
version does not have the ring of truth to it and is highly
improbable.
[18.6]
On the complainant’s version she had more than one opportunity
to escape, to make alarm or to call for help. She did
neither and
this passiveness, over a sustained period of time, cannot be
explained simply on the basis that she was afraid of the
Appellant.
That alleged fear would have been all the more reason to get away
from him at the first available opportunity, especially
if she also
feared for her life, as she claimed in her testimony.
[18.7]
Her explanation as to why she returned to her mother’s house
instead of continuing to visit her grandmother is also
unsatisfactory. She explains that she returned to her mother’s
house because the Appellant released her so late but one would
have
thought that, after the ordeal that she went through, she would go
straight home for that reason: the ordeal itself and not
because of
the lateness of the hour.
[19]
The Appellant’s version is, in our view, not only one that may
be reasonably possibly true but is corroborated by a defence
witness
and some elements of the evidence presented on behalf of the
prosecution. The Appellant and the complainant knew each other
for
quite some time before the incident on 4 December 2009. They lived in
the same neighbourhood within walking distance from each
other.
During 2008 her parents had a problem with the Appellant because he
was seeing their daughter and they wished the relationship
to end.
The said Musenko confirmed that he went to call the Appellant after
the complainant had already arrived at the house, where
the Appellant
found her when he arrived there. The said Musenko also confirmed that
during the course of that afternoon he entered
the house to put away
his equipment upon closing the hair salon.
[20]
The Sebokeng Regional Court rejected the Appellant’s version as
false. This it did on the basis that the complainant
disclosed the
incident to her mother on 4 December 2009 voluntarily whilst, if the
Applicant’s version was true, she would
have had no reason to
do so and she would have had no reason to be crying. We find this
logic unacceptable. Firstly, this leaves
out of consideration the
evidence of the Appellant that he and the complainant had a verbal
altercation just before she left for
home and they did not part on
good terms. Secondly, the version of the complainant and the version
of the Appellant are mutually
destructive. We cannot see how the
version of the complainant can be accepted as the truth without
showing that the version of
the Appellant is false, especially where
the version of the Appellant, in our view, does not suffer from any
improbabilities, inherent
or otherwise. See in this regard, for
example, National Employers Mutual General Insurance Association v
Gany
1931 AD 187
; Koster Ko-operatiewe Landboumaatskappy Bpk v
Suid-Afrikaanse Spoorwee en Hawens
1974 (4) SA 420
(W), which held
that where, at the conclusion of the evidence, the versions of a
plaintiff and a defendant were mutually destructive,
the onus rested
on the plaintiff to prove on a balance of probabilities that the
plaintiffs version was true and that of the defendant
false; African
Eagle Life Assur Company Ltd v Cainer
1980 (2) SA 234
(W) where the
same judge explained that the aforesaid approach (that where there
are two stories mutually destructive, before the
onus is discharged
the court must be satisfied that the story of the litigant upon whom
the onus rests is true and the other false)
only applies in cases
where there are no probabilities one way or the other; Senekal v
Roodt
1983 (2) SA 602
(T). The correct approach is, in our view,
neatly summed up in National Employers' General Insurance Company Ltd
i/ Jagers
1984 (4) SA 437
(E) 440D-G:
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiffs allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will
accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not favour
the plaintiff's case any more
than they do the defendant's, the plaintiff can only succeed if the
Court nevertheless believes him
and is satisfied that his evidence is
true and that the defendant's version is false."
The
reasoning of the Sebokeng Regional Court was in essence that the
evidence of the
Appellant
must be false because it does not explain the conduct of the
complainant later that same evening. We have already pointed
out that
it did. We also pointed out that whereas her evidence abounds with
improbabilities, the brunt of his evidence does
......
not. Furthermore his version is consistent with the objective and
common cause
medical
evidence whilst hers is not.
[21]
Another flaw in the reasoning of the Sebokeng Regional Court is the
fact that the evidence of the defence witness was not canvassed
at
all in that reasoning, not even indirectly. That evidence
corroborated the version of the Appellant directly and, upon our
understanding of the case, could only have been dismissed, rejected
or ignored out of hand on the basis that the Appellant and the
defence witness conspired to present the court with a concocted
fabrication. There is no room on the evidence for such a finding
or
conclusion.
[22]
On the facts before us we find that the sexual intercourse between
the Appellant and the complainant on 4 December 2009 was
not proven
beyond a reasonable doubt to be without her consent; in fact, on the
available and admissible evidence the conclusion
must be that they
had consensual sexual intercourse that day.
[23]
We therefore come to the same conclusion that our brothers LOUW J and
WRIGHT AJ reached previously, albeit that they reached
only a prima
facie view that the appeal against the conviction on rape under
section 3 of Act 32 of 2007 should partially succeed
in that the said
conviction and sentence thereon should be set aside. That leaves us
with the question whether that conviction
should be replaced with a
conviction of the Appellant having contravened section 15(1) of Act
32 of 2007. The provisions thereof
are as follows:
“
A
person ... who commits an act of sexual penetration with a child...
is, despite the consent of [that child] to the commission
of such an
act, guilty of the offence of having committed an act of consensual
sexual penetration with a child”
Section
56(2)(a) of Act 32 of 2007 affords the Appellant a defence if the
child in
question
deceived him into believing that she was 16 years or older at the
time of the alleged commission of the offence and the
accused person
reasonably believed that the child was 16 years or older. In this
case it was never the case for the Appellant that
he believed the
complainant to be older that 16 years at the time: he testified that
he believed her to be 15'years old at the
time. There is some
indication in the evidence that this is what the Appellant believed,
on the basis of information received from
the complainant, at the
time when their relationship started approximately 1years before the
incident, but that is contradicted
by his clear and unambiguous
evidence at the outset of his evidence in chief. We therefore find
that such a defence was not made
out on the evidence. It follows that
the aforesaid conviction should be replaced with a conviction of the
Appellant having contravened
section 15(1) of Act 32 of 2007.
[24]
That brings us to the issue of sentence, which needs to be considered
afresh. At the time of the commission of the conduct
for which the
Appellant was convicted and at the time of the conviction and
sentencing before the Sebokeng Regional Court, the
present section
56A of Act 32 of 2007 was not yet on the statute books. We
accordingly approach this matter on the basts that section
276(1) of
Act 51 of 1977 is a general empowering provision authorising this
court to impose a sentence in this case even where
no other provision
governs the imposition of sentence.
[25]
The offence of which the Appellant now stands convicted is one aimed
at the protection of children. There can be very little
doubt that it
is regarded as a serious offence regardless of the fact that sexual
penetration took place by consensus. Although
the Appellant attempted
to draw himself and the complainant as both children and although the
complainant had the physical appearance
of being a child older than
13 years, the facts are that at the time the Appellant was 20 years
old whilst the complainant was
only 13 years old. He was already a
young man whilst she was still a child and there was an age
difference of 7 years between them.
The fact that her parents were
not in favour of a relationship between them, to the knowledge of the
Appellant, compounds the seriousness
of the offence. On the other
hand, the complainant suffered no physical injuries and her testimony
that, some 6 months after the
incident, she did not feel “good"
about what happened to her is not a sound evidential foundation to
hold that she carried
emotional scars from and since the incident (as
was submitted by the prosecutor in the Sebokeng Regional Court). In
this regard
it is unfortunate that the prosecutor did not tender
additional evidence during sentencing proceedings.
[26]
As for the interests of the community, that interest also lies in the
protection of its youth even if it requires protecting
them against
themselves. During argument before the Sebokeng Regional Court it was
conceded that rape was a prevalent offence in
the jurisdiction of
that court and in all likelihood that is also the case with the
offence of which the Appellant now stands convicted.
In any event it
is the interest of the community that sexual intercourse with
children be prevent or deterred by the threat of
and by actual
criminal sanction. The problems society face with unwanted teen
pregnancies, with the spread of HIV, with violence
against women and
children and a host of other problems are generally known and are
cause for real concern.
[27]
The Appellant was at the time of the incident 19 years old and upon
conviction 20 years old. He is a single young man with
no children,
yet, and his highest qualification is standard 7 (or grade 9, as it
is now known). He left school when his father
died. The whereabouts
of his mother and her present circumstances are not known to the
court. He is unemployed but tried to make
a living hawking fruit on
the street and thus have no assets or income of note. If we read
between the lines, it is clear that
both the Appellant and his family
as well as the complainant and her family live in circumstances of
poverty. He is taken care
of by his older sister within her extended
family. He is also a first offender. Furthermore he has been in
custody for this matter
since his arrest on 16 December 2009, as an
accused awaiting trial, and as from 4 August 2010 he was held as a
convict serving
a term of imprisonment until he was released on bail
on or about 23 May 2012. Effectively he spent some 36 months behind
bars and
already has served a period of 21 months and 19 days (from 4
August 2010 to 23 May 2012) of imprisonment.
[28]
Taking into consideration the seriousness of the crime, the interest
of the community and the personal circumstances of the
Appellant, an
appropriate sentence
would
be a sentence of imprisonment for the period already served.
[29]
In view of the sentence we intend imposing, we are called upon by
section 103(1 )(g)'"of Act 60 of 2000 to consider whether,
as a
result of this conviction and sentence, the Appellant becomes unfit
to possess a firearm. The circumstances of this matter
is such that
we do not see any grounds upon which the Appellant should be visited
with such an unfitness.
[30]
That brings us to section 50(1)(a)(i) of Act 32 of 2007, which
provides in peremptory language that the particulars of a person,
who
in terms of Act 32 of 2007 (as is here the case) or any other law has
been convicted of a sexual offence against a child, must
be included
in the National Register of Sexual Offenders. Section 50(2) and (4)
thereof makes it clear that a court order to that
effect is
mandatory. If we had any discretion in this regard, we would have
exercised it in favour of the Appellant. However, in
view thereof
that these are appeal proceedings, this court does not make the order
in terms of the said section 50(2) itself. Sub-section
(3) thereof
stipulates that where a court (such as the Sebokeng Regional Court
and clearly intended to be a reference to the trial
court) has made
such an order under sub-section (2), the clerk of that court must
forthwith forward the order to the Registrar
of the High Court and
that Registrar must immediately and provisionally enter the
particulars of the person concerned in the said
Register, pending the
outcome of any appeal and must, after the appeal proceedings have
been concluded, either enter or remove
such particulars from the said
Register, depending on the outcome of the appeal.
[31]
Accordingly we propose that the following order be made:
1.
The appeal against the conviction of the Appellant on rape under
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
is upheld and that conviction is set aside.
2.
That conviction is replaced with a conviction under
section 15(1)
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
, namely that the Appellant on 4 December 2009 and at or
near
Sebokeng
committed an act of consensual sexual penetration with a child aged
13 years.
3.
The sentence of the Appellant is set aside and replaced with the
sentence, of imprisonment of 21 months and 19 days (being the
time
already served) and, in terms of
section 282
of the Criminal
Procedure Act 51 of 1977, that sentence of imprisonment is
furthermore antedated to 4 August 2010.
4.
In terms of section 103(1 )(g) of the
Firearms Control Act 60 of 2000
it is determined that the Appellant does not become unfit to possess
a firearm as a result of this conviction and sentence.
5.
In view of the outcome of this appeal, the order made by Sebokeng
Regional Court on 4 August 2010 in terms of
section 50(2)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
is corrected by deleting the description of the sexual
offence against a child of which the Appellant has been convicted, as
one
of “rape of a child', and replacing it with the following
description: "an act of consensual sexual penetration with
a
child between person twelve (12) years and sixteen (16) years’’.
OOSTHUIZENA
J
10
June 2013
[32]
I concur in the judgment prepared by my brother OOSTHUIZEN AJ. In the
result the orders set out in paragraph 31 above are made
the orders
of this court.
MURPHY
J
10
June 2013