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[2013] ZAKZPHC 34
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Zulu v S (AR 296/12) [2013] ZAKZPHC 34 (24 June 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
(REPUBLIC
OF SOUTH AFRICA)
Case
No: AR296/12
In
the matter between:
SIFISO
SAMUEL ZULU
....................................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
JUDGMENT
HARTZENBERG,
A.J
:
The Appellant, a man presently aged
33, was convicted in the Regional Court at Newcastle on 9 February
2012 of raping a child,
aged 8 at the relevant time. He was
sentenced to 25 years’ imprisonment.
The appeal is directed against both
the Appellant’s conviction and sentence. The State has given
notice that it intends
asking that the Appellant’s sentence be
substituted with the minimum prescribed sentence of life
imprisonment, as is provided
for in terms of
s 51(1)
of the
Criminal
Law Amendment Act, 1997
1
.
The background to the matter is
briefly as follows: The complainant lived with her mother and
grandmother. The complainant’s
mother was called by the
complainant’s teacher to inform her that the complainant was
not coping at school. In response
to questioning by her mother, the
complainant disclosed that the Appellant had sexually interfered
with her and has had sexual
intercourse with her. The complainant’s
mother and her grandmother, then confronted the Appellant. According
to both of
them, the Appellant confessed to having raped the
complainant. The Appellant also, according to the complainant’s
mother
and grandmother offered to pay compensation. The mother then
took steps to have the matter reported to the Police. The Appellant,
so it seems, lived on the same premises as did the complainant and
her mother and grandmother, but in a separate room, for which
he
paid rent. The Appellant in his evidence, denied that he had raped
the complainant or that he made any confession to the complainant’s
mother and grandmother.
CONVICTION
The following issues arise on the
question of the Appellant’s conviction: First, whether the
complainant’s evidence
was satisfactory in all material
respects. Second, whether the confession relied upon by the
prosecution was admissible against
the Appellant. I turn to each of
these issues.
The complainant was born on 14
December 2000. The medical report which was admitted without the
medical practitioner being called
as a witness revealed the
following: The examination of the complainant took place on 16
September 2010. There were no clinical
signs of physical trauma.
There were no apparent mental health problems. The gynaecological
examination revealed no fresh or
recent injuries. The findings of
the medial practitioner were thus recorded in the transcript of the
proceedings:
“
Point
1 enlarged hymenal oriface
Point
2 is an old partial tear 6 o’clock and 9 o’clock
Point
3 moderate vaginal discharge
Clinical
findings fit with assault to vaginal penetration in the past
Injuries
fit with the time and circumstances of the reported incident”
The medical practitioner’s
conclusions with regard to the anal examination were that the absence
of injuries did not exclude
the “possibility of penetration”.
The charge, it must be noted, alleged
that the Appellant had raped the complainant during or about
September 2010, at Madadeni.
The complainant it appears, gave her
evidence through an intermediary as provided for in terms of
s 170A
of the
Criminal Procedure Act, 1977
.
2
At the time when she gave her evidence
was 11 years old and a Grade 5 pupil. According to the complainant
the Appellant stayed at
the same place as she did with her mother and
grandmother. The complainant further stated that she went with the
Appellant to his
room. He would lock the door. He would remove her
panty, lift her onto the bed and would then have sexual intercourse
with her.
He told her not to tell anyone. He, according to her, was
afraid that he would be arrested. She was afraid to tell anyone,
since
she believed the Appellant would assault her. She could not
remember on how many occasions this happened. She said she was afraid
to report the matter. The complainant’s evidence, making due
allowance for the fact that she gave her evidence through an
intermediary, reads well and is consistent. I am not persuaded that
the complainant’s evidence is not satisfactory in all
material
respects. The fact that the complainant did not spontaneously report
the matter to anyone, seen against the aforesaid
background, and
particularly her fear of the Appellant, is understandable.
I am alive to
inter alia
the
following principles and considerations, which apply in matters of
this kind:
Evidence of a complainant reporting a
sexual offence, at the earliest opportunity, is exceptionally
admitted only as evidence
of consistency in the account by the
complainant, that is, it is evidence going to the complainant’s
credibility
3
.
Where material parts of the
complainant’s evidence are in dispute, Courts require
corroboration of such parts of the complainant’s
evidence
4
.
By corroboration is meant other
evidence which supports the evidence of the complainant and which
renders the evidence of the
accused less probable
5
.
s 59
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
6
provides as follows:
“
In criminal proceedings
involving the alleged commission of a sexual offence, the Court may
not draw any inference only from the
length of any delay between the
alleged commission of such offence and the reporting thereof.”
Evidence of a prompt complaint,
moreover, does not provide corroboration for the complainant’s
testimony
7
.
A Court must approach a complaint or
report made by an impressionable child, as a consequence of
prompting or suggestive questioning,
with appropriate and
considerable caution.
Even if I am wrong in my assessment
of the complainant’s evidence, and assuming in favour of the
Appellant that the complainant’s
evidence was not satisfactory
in all material respects, I consider, for the reasons which follow,
that the complainant’s
evidence was sufficiently corroborated
by that of her mother and grandmother, as well as the medical
evidence and the other circumstantial
evidence, which illustrates
that the Appellant did have the opportunity to rape the complainant.
Counsel for the Appellant made two
submissions with regard to the admissibility of the confession made
by the Appellant to the
complainant’s mother and grandmother.
These were that the mother and grandmother were biased against the
Appellant and
that the confession was obtained while the Appellant
was a suspect, without due observance of the Appellant’s
constitutional
rights. With regard to bias, it is noteworthy, that
the Appellant’s attorney at the trial never put it to either
the complainant’s
mother or grandmother that they were biased
or that they were falsely implicating the Appellant for some
ulterior purpose. The
evidence of both the mother and grandmother
makes it clear that the Appellant made the confession to them before
the mother’s
boyfriend arrived at their home. The boyfriend is
employed as a Constable in the Internal Stability Unit of the
Police, at Newcastle.
Once he arrived, the Appellant was taken to
the Police Station. This was admittedly done on the evidence of the
Appellant’s
mother, under some compulsion – she said
“force was used”. Prior to that, on both the mother’s
and grandmother’s
versions, no force or duress was applied to
the Appellant. It was never put to either the mother or the
grandmother, in cross-examination,
that the Appellant was forced to
confess to raping the complainant. There is no factual basis for
finding that the Appellant
had not made the confession to the mother
and grandmother, otherwise than freely and voluntarily, as the
mother and grandmother
testified.
With regard to the infringement of
the Appellant’s constitutional rights, I make the following
observations: s 35(1)(c)
of the Constitution
8
entrenches the rights of anyone who
is arrested for allegedly committing an offence from being compelled
to make any confession
or admission that could be used in evidence
against him. At the time when the Appellant, on the prosecution’s
version,
made the confession to the mother and grandmother, he had
not been detained. As indicated, it was not the Appellant’s
version
that he was subjected to duress to make the confession. He
denied making any confession at all. It was also not the Appellant’s
case at the trial that the admissibility of the confession was in
issue.
A careful perusal of the evidence of
the complainant’s mother and that of her grandmother,
satisfies me that the statements
made by the Appellant and his
conduct, at the relevant time amounted to a confession by him to
raping the complainant. According
to the mother, the Appellant was
specifically told that he had raped the complainant. He at first
remained silent. The mother
then insisted to “hear from him
whether it is the truth or not the truth”. When asked by the
Regional Magistrate,
the complainant’s mother said that the
Appellant, then said “yes”, indicating that the
allegation made against
him was the truth. When asked why he did
that, the Appellant, according to the complainant’s mother,
said that if they
wanted him “to pay compensation”, he
wanted to know “what must he pay as compensation”. The
mother’s
evidence, in essence confirmed the grandmother’s
evidence. It is noteworthy that the grandmother did not make a
statement
to the Police. It was therefore not anticipated that she
might be called as a witness. Her evidence appeared to be
spontaneous.
There can thus be no doubt that the Appellant indeed
admitted all the elements of the crime of which he was accused at
the time
by the complainant’s mother. By doing so, he also
admitted all the elements of the crime with which he was charged.
For these reasons, I am satisfied
that there was sufficient corroboration of the complainant’s
evidence, by the evidence
of her mother and grandmother, in
particular. The appeal against the conviction must therefore fail.
SENTENCE
I turn to the appeal against sentence
and the State’s request that the sentence should be altered to
life imprisonment.
The crime of which the Appellant was
convicted, being rape as contemplated in
s 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, is
an offence
referred to in
s 51(1)
of the
Criminal Law Amendment Act, which
carried with it a mandatory sentence of life imprisonment. The
Regional Magistrate nevertheless imposed a sentence of 25 years’
imprisonment. In doing so, the Regional Magistrate
inter alia
held as follows:
“
Although you have pleaded
not guilty and did not demonstrate or show any remorse in Court there
was an indication that there was
initially some acceptance and
remorse when you were confronted. Perhaps your attitude has changed
when you heard what the prescribed
sentence is. As serious as this
matter is because of the repetitive assault and rape of the
complainant, and her age of course,
I do not think that it deserved
the maximum sentence.”
I am mindful of the remarks by Ponnan
JA in
S v MATYITYI
9
where he said:
“
There is, moreover, a chasm
between regret and remorse. Many accused persons might well regret
their conduct, but that does not
without more translate to genuine
remorse. Remorse is a gnawing pain of conscience for the plight of
another. Thus genuine contrition
can only come from an appreciation
and acknowledgment of the extent of one’s error. Whether the
offender is sincerely remorseful,
and not simply feeling sorry for
himself or herself at having been caught, is a factual question. It
is to the surrounding actions
of the accused, rather than what he
says in Court, that one should rather look. In order for the remorse
to be a valid consideration,
the penitence must be sincere and the
accused must take the Court fully into his or her confidence. Until
and unless that happens,
the genuineness of the contrition alleged to
exist cannot be determined. After all, before a Court can find that
an accused person
is genuinely remorseful, it needs to have a proper
appreciation of,
inter
alia
: what motivated
the accused to commit the deed; what has since provoked his or her
change of heart; and whether he or she does
indeed have a true
appreciation of the consequences of those actions…..”
10
In this case the Appellant has not
been remorseful in the true sense of that term. His offer to pay
compensation for his crime,
as testified to by the complainant’s
mother and grandmother, was no sooner made than the Appellant chose
to deny that he
had ever made such offer.
Counsel for the Appellant submitted
that the fact that the complainant did not suffer any serious
physical injuries, constituted
“substantial and compelling
circumstances” as contemplated in terms of
s 51(3)
of the
Criminal Law Amendment Act and
that, to the extent that the Regional
Magistrate did not impose a sentence of life imprisonment upon the
Appellant, he was correct.
Counsel for the Appellant further
submitted that the Regional Magistrate had sentenced the Appellant on
the basis of him having
repeatedly assaulted and raped the
complainant.
s 51(3)(aA)(ii)
of the
Criminal Law
Amendment Act, provides
as follows:
“
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:
(ii) an apparent lack of physical
injury to the complainant.”
In
S
v NKAWU
11
Plasket J (as he then was) expressed
the view that
s 51(3)(aA)(ii)
, literally and disjunctively
interpreted, is unconstitutional. He however held that the provision
should be interpreted in a manner
which would harmonise it with the
Constitution. He further stated as follows:
“
I am of the view that it is
possible to read s 51(3)(aA)(ii) in a way that would render it
constitutional. That is to interpret
it, and the other provisions of
s 51(3)(aA), to mean that any one of them on their own may not be
regarded as a substantial and
compelling circumstance justifying a
departure from the prescribed sentence, but that each one of them may
be considered along
with other factors cumulatively to amount to
substantial and compelling circumstances. On this interpretation I am
not precluded
from considering the fact that the complainant suffered
injuries that were neither serious nor permanent, along with a basket
of
other factors, in order to arrive at a just and proportionate
sentence.”
12
The latter approach was endorsed by
the SCA, in
S v MUDAU
13
,
where Majiedt JA held as follows:
“
In respect of the severity
of the rape, referred to in the preceding paragraph, it is plain form
the medical report that the doctor
did not find any serious physical
injuries…. And there was no further violence in addition to
the rape. Similarly in S v
NKAWU the complainant had not suffered any
serious injuries as a consequence of being raped. In considering
whether substantial
and compelling circumstances exist justifying
departure from the prescribed sentence, Plasket J was called upon to
consider the
provisions contained in
s 51(3)(aA)(ii)
of the
Criminal
Law Amendment Act, 105 of 1997
, as far as the absence of serious
physical injuries to the complainant was concerned. That subsection
provides that when a court
sentences for rape ‘an apparent lack
of physical injury to the complainant’ shall not be regarded as
a substantial
and compelling circumstance. Plasket J, expressed the
view, correctly as I see the matter, that a literal interpretation of
that
provision would render it unconstitutional, since it will
require judges to ignore factors relevant to sentence in crimes of
rape
which could lead to the imposition of unjust sentences. I agree
with the learned Judge that ‘to the extent that the provision
restricts the discretion to deviate from a prescribed sentence in
order to ensure a proportional and just sentence it would infringe
the fair trial right of accused persons against whom the provision
was applied’. He correctly in my view concluded that the
proper
interpretation of the provision does not preclude a court sentencing
for rape to take into consideration the fact that a
rape victim has
not suffered serious or permanent physical injuries, along with other
relevant factors, to arrive at a just and
proportionate sentence. To
this one must add that it is settled law that such factors need to be
considered cumulatively, and not
individually.”
14
In my view the Regional Magistrate was
clearly alive to all the relevant circumstances of the matter. Those
circumstances included
the fact that the complainant suffered no
serious physical injuries. In my view, the Regional Magistrate also
did not sentence
the Appellant, on the basis of having committed
multiple rapes on the complainant. He did, however, in my view, with
justification,
take into account the improper behaviour of the
Appellant, over a period of time. On that basis, the Regional
Magistrate, in my
view, did not misdirect himself in imposing a
lesser sentence than life imprisonment upon the Appellant. On the
other hand, the
offence of which the Appellant was convicted was a
serious offence and warranted a commensurate sentence. In the latter
regard,
the complainant was of tender years. The complainant was
known to the Appellant and to this extent, the Appellant abused the
trust
placed in him by the complainant. The complainant, as is clear
from the evidence, was unable to cope at school and therefore did
suffer significant psychological stress and trauma. It is regrettable
that the prosecution did not present any evidence or any
report on
the impact of the offence on the complainant. I am not persuaded that
the Regional Magistrate, in any way misdirected
himself imposing the
sentence which he did, upon the Appellant.
[14.] I would therefore propose that
the appeal be dismissed and that the conviction and sentence be
confirmed.
_________________________
HARTZENBERG,
A.J.
I agree and it is so ordered.
_____________________
VAN ZÿL,
J.
COUNSEL FOR THE APPELLANT: Adv J.
Butler, Pietermaritzburg Justice Centre
COUNSEL FOR THE STATE: Adv W. Smit,
instructed by the Director of Public Prosecutions, Durban
DATE OF HEARING: 20 June 2013
DATE OF JUDGMENT: 24 June 2013
ZULU.NOTES
(19 6)
1
Act
105 of
1997
2
Act
51
of 1977
3
S
v HAMMOND, 2004(2) SACR 303 (SCA), paras [15] and [16] at 308 i –
310 d
4
S
v MATOME, (565/2011) [2012] ZASA 14 (16 March 2012), para [6] at
page 4 of the judgment
5
S
v GENTLE, 2005(1) SACR 420 (SCA), para [18] at 430 i – 431 a
6
Act
32 of 2007, which came into effect on 16 December 2007
7
S
v MATOME,
supra
,
para [8] at page 5 of the judgment
8
Act
108 of 1996
9
2011(1)
SACR 40 (SCA)
10
At
47 a - d
11
2009(2)
SACR 402 (ECG)
12
Para
[17] at 406 g - h
13
(764/12)
[2012] ZASCA 56
(5 May 2013)
14
Para
[26] at pages 13 and 14 of the judgment