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[2013] ZAFSHC 104
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Motaung v S (A41/2013) [2013] ZAFSHC 104; 2014 (1) SACR 48 (FB) (14 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A41/2013
In the appeal between:-
AUGUSTUS
LEHLOHONOLO MOTAUNG
..............................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOCUMIE, J
et
SEPATO, AJ
_____________________________________________________
HEARD ON:
20 MAY 2013
_____________________________________________________
DELIVERED ON:
14 JUNE 2013
_____________________________________________________
APPEAL
_____________________________________________________
MOCUMIE, J
[1] This is an appeal
from the Regional Court, Bethlehem. The appellant was convicted of
one count of rape on 11 April 2008 and
sentenced to life imprisonment
in terms of section 51(1) of Act 105 of 1997 as amended (“the
Criminal Amendment Act”).
The appellant was legally represented
during the trial.
[2] The complainant was
fourteen years of age when the appellant, who was in a love
relationship with her mother, stayed with them
in the same house. The
appellant was, in other words, her stepfather.
[3] The unrefuted
evidence the State led was that on 13 January 2007 the complainant,
her twenty three year old sister, D, her nine
year old sibling, L,
her mother, and the appellant went to sleep after watching
television. Around midnight or very early hours
of the morning,
whilst the rest of the family were fast asleep; the appellant
stripped off his underwear; removed the blankets
the complainant was
sleeping under on the floor in D’s bedroom and had sexual
intercourse with her. The appellant threatened
to kill her should she
report the incident to anyone.
[4] The house is a one
roomed house divided into a kitchen and two bedrooms. The kitchen is
divided from the bedrooms by a wardrobe.
The bedrooms are divided
into two by a curtain.
[5] When the complainant
woke up later that day the first opportunity she got, she went to her
aunt, who stayed in the same premises,
but in the backyard, and
reported the incident to her in a letter she wrote herself and gave
to her aunt’s daughter. In the
letter she stated (as
translated):
“
Gister
ouboet Lehlohonolo het my R5 gegee. Ek het gedink dit is net ‘n
geskenk wat hy my gegee. Maar dit was nie so nie. Hy
wou my verkrag
het. Toe my ma al klaar aan die slaap geraak het; dit was tussen 1 en
2 uur. Dit was vroeg in die oggend toe hy
na my toe gekom en hy was
kaal. Dit is ek Nana. Ek gaan eers nog ‘n bietjie ver. Toe hy
vir my daardie geld gegee het was
dit toe ek nog TV gekyk het. Dit is
al.”
[6] As a single witness
of fourteen years of age and clearly not sophisticated with sexual
matters, there were discrepancies in
her evidence, which made her
evidence not satisfactory in all respects. However, her evidence was
corroborated by DNA results,
which linked the appellant directly as
the person whose semen was found on the young girl’s underwear.
Her evidence was also
corroborated,
albeit
not a prerequisite, by the first report she made to her
aunt at the slightest opportunity she got, hardly six hours after
this incident
took place and the aunt’s own observation that
the young girl was crying was anxious and complained of pains in her
bladder.
She also had a foul smell of
“a female after
sexual intercourse”
. She denied that the
complainant ever went out during the night as the appellant alleged.
[7] In his defence the
appellant simply denied that he had sexual intercourse with this
young girl, except to allege that he and
the mother always
reprimanded her for going out with young boys during the night and
coming back home late. Insinuating that this
young girl must have had
sexual intercourse with someone else but not him and was angry at him
for reprimanding her. He, however,
could not explain how his semen
ended up on the child’s underwear, as confirmed by the DNA
analysis conducted subsequent
to the young girl’s report.
[8] It was common cause
between the State and the defence that the complainant was sexually
penetrated on the night or early hours
of 13 January 2007. The only
dispute, thus the only issue between the State and the defence to be
determined by the trial court
and this Court on appeal, was whether
the appellant was the person who had sexually penetrated this young
girl and thus raped her.
[9] Despite the
complainant being a young and single witness, her evidence as a whole
was satisfactory in all material respects.
The trial court dealt
sufficiently with this issue. It was alive to the pitfalls of the
evidence of a single witness, particularly
of such a young age. It
addressed the discrepancies in the evidence of this young girl and
correctly so, came to the conclusion
that such discrepancies were not
material taking into account that it was corroborated by the first
report she made to her aunt
and critically the DNA results. The
appellant could hardly refute this evidence nor could he explain the
presence of his semen
on the underwear the young girl was wearing the
morning she alleged he appellant raped her.
[10] Mr Van der Merwe, on
behalf of the appellant, in the light of the overwhelming evidence
the State presented and the careful
consideration the trial court
gave to the matter, conceded that he could not persuade the appeal
court that the trial court erred
in any manner. I am also not
persuaded that the trial court misdirected itself on any aspect of
the merits of this case. In the
absence of any irregularity or
misdirection the court is bound by the credibility findings of the
trial court. (See
S v Olivier
1998 (2) SA 267
(A);
S
v Francis
1991(2) SACR 198 (A).) There is consequently no
reason to temper with the conviction.
[11] It is trite that
sentencing is pre-eminently within the discretion of a trial court
and a court of appeal will only interfere
with the sentence if the
trial court has not exercised its discretion judiciously. The test
for interference is (a) whether the
discretion of a trial court has
been judiciously and properly exercised and (b) whether the sentence
imposed is vitiated by irregularity
or misdirection or is shockingly
inappropriate -
S v Malgas
2001 (1) SACR 469
(SCA).
[12] In his grounds of
appeal against sentence, Mr Van der Merwe submitted that the trial
court failed to take the cumulative effect
of the appellant’s
personal circumstances into account, particularly his relative young
age (he was 40 years of age at the
time of the commission of this
rape); the fact that he had no previous convictions as well as the
fact that this rape was not the
worst kind, because the complainant
was not seriously injured. Compare
S v Mahomotsa
2002
(2) SACR 435
(SCA) at 443 g-h.
[13] It is however clear
on the record that the trial court took into account as aggravating
circumstances the following factors:
the tender age of the
complainant; the fact that the appellant raped her under the same
roof her mother and elder sister were sleeping;
the fact that the
appellant threatened to kill her if she reported the incident to
anyone; the fact that the appellant abused his
position as the
complainant’s stepfather; and the high rate at which the crime
of rape was perpetrated against young children.
[14] Rape of a young
child such as the complainant is always an extremely serious matter,
even in the absence of serious injuries
and despite there being no
evidence of permanent psychological after effect. This is all the
more so where the perpetrator is a
man in a position of trust
vis-à-vis
the complainant. (See
S v Snoti
2007 (1) SACR 660
(EC) at 663c. Over and above section 51(3)(a)A (ii)
of the Criminal Law Amendment Act as amended provides:
“
When
imposing sentence in respect of the offence of rape the following
shall not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence:
(ii) an apparent lack of physical
injury to the complainant”
[15] There is a
responsibility on courts to impose sentences in respect of certain
classified crimes as the legislature prescribed
without any fear or
based on any flimsy reasons as set out clearly in
S v Malgas
[2000] ZACC 25
;
2001 (1) SACR 1
(SCA). Even stronger remarks were made recently in
S
v Matyityi
2011 (1) SACR 40
(SCA) at 53d-g:
“
As
Malgas
makes plain, courts have a duty, despite any personal doubts about
the efficacy of the policy or personal aversion to it, to implement
those sentences. Our courts derive their power from the Constitution
and like other arms of state owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own power by showing due deference
to
the legitimate domains of power of the other arms of state. Here
parliament has spoken. It has ordained minimum sentences for
certain
specified offences. Courts are obliged to impose those sentences
unless there are truly convincing reasons for departing
from them.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such as ‘relative
youthfulness’
or other equally vague and ill-founded hypotheses that appear to fit
the particular sentencing officer’s
personal notion of
fairness. Predictable outcomes, not outcomes based on the whim of an
individual judicial officer, are foundational
to the rule of law
which lies at the heart of our constitutional order.”
If this approach is
consistently applied by all courts in cases where victims are of the
complainant’s age group which falls
within the age group
provided for specifically by the legislature, there is a great
likelihood that this scourge can be eradicated.
This is not to ordain
that life imprisonment should be implemented blindly; the courts must
still conduct a balancing exercise
of all relevant factors. Compare
S
v Mqikela
2010 (2) SACR 589
(ECG);
S v PB
2011
(1) SACR 448
(SCA).
[16] In this case the
appellant conducted himself with total disregard of this young girl’s
right not to be abused and individual
physical integrity. To use the
words of
Ponnan JA
in
S v Matyityi
above
“
[this] is
unacceptable in any civilised society, particularly one that ought to
be committed to the protection of the rights of
all persons,
including women [and children.]”
[17] I agree with the
trial court entirely that the appellant’s personal
circumstances and mitigatory factors referred to
by the defence, in
the light of the aggravating factors highlighted above, do not on
their own or cumulatively, amount to compelling
and substantial
circumstances which justified it to deviate from the prescribed
sentence.
[18] Having regard to all
the circumstances in this case, the minimum sentence imposed is
manifestly fair and just. This is precisely
the type of matter the
legislature had in mind when it enacted the minimum sentencing
legislation. The trial court cannot be faulted
in any manner. The
sentence it imposed ought to be confirmed.
[19] In the result the
following order is made:
ORDER:
The appeal against
both conviction and sentence is dismissed.
The conviction and
sentence imposed are confirmed.
_______________
B.C. MOCUMIE, J
I concur.
_______________
R.M. SEPATO, AJ
On behalf of appellant:
Mr P.L. van der Merwe
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv M. Lencoe
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
BCM/sp