Vilakazi v S (A868/2011) [2012] ZAGPPHC 135 (28 June 2012)

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[2012] ZAGPPHC 135
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Vilakazi v S (A868/2011) [2012] ZAGPPHC 135 (28 June 2012)

IN
THE NORTH GAUTENG-HIGH COURT - PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
REPORTABLE
CASE
NO: A868/2011
DATE:28/06/2012
(n
the matter between)
MUNTUZA
RALPH VILAKAZI
..........................................
APPELLANT
and
THE
STATE
......................................................................
RESPONDENT
JUDGEMENT
KHUMALO
AJ
[1]
The Appellant was arraigned before the Regional Magistrate in Secunda
on a charge of rape read with the provisions of Section
51 (1), (52
(2), 52A and 52B of the
Criminal Law Amendment Act 105 of 1997
for
unlawfully and intentionally having had sexual intercourse during
December 2007, with a nine year old girl, without her consent.
[2]
After the trial, the Appellant was convicted on an alternative charge
of attempted rape and sentenced to twelve years imprisonment
of which
five (5) years was suspended on condition he is not convicted of
rape, attempted rape or indecent assault committed during
the period
of suspension.
[3]
The Appellant is, with leave of this court, appealing against both
the conviction and sentence alleging that there were certain

procedural deficiencies in the trial process and placing in issue the
admissibility of certain witness statements, their probative
value
and the reliance placed upon such statements by the court in arriving
to its factual findings.
[4]
The nine year old Complainant lived with her father at a farm called
Naas Steyn in Charl Celliers. Appellant was their neighbour,
staying
nearby with his aunt's family and he and the Complainant's father
were also employed at the farm.
[5]
The state led evidence of five key witnesses on the merits, that of
Paulina Johanna Mokeretla ("Paulina"), who was
in a
relationship with Complainant's father, then of Complainant's father
Samuel Nkosi ("Samuel"), followed by Complainant's
aunt
Johanna Nkosi, ("Johanna"), the Complainant and Dr Mabotja
who presented and gave evidence on the J88 medical report.
The sixth
witness Constable Mkhabela could not take the matter any further
testifying on his endeavours to locate Dr Mabotja, the
medical
doctor.
[6]
Paulina's testimony was that:
[6.1]
On 23 December 2007 she fetched the Complainant from her husband's
place to come and stay with her at her place in Embalenhle
Township.
On 3 January 2008 her sister in law, Josephine came to visit her. She
enquired from Josephine why Complainant looked
like a child who had a
problem and does not want to play with other children. Complainant
was wetting herself and would not say
anything when she questions her
about it. Josephine told her that Complainant was raped. She then
questioned Complainant again,
and Complainant confirmed that she was
raped by one Muntuza Vilakazi, ("the Appellant"). She has
never met the Appellant
and did not know who he is. Complainant told
her that Appellant came to her place and found her sitting on a
chair. Appellant took
her from the chair, put her on the bed and
closed her mouth. On the bed Appellant removed her panty, took his
penis and put it
in her vagina. After he finished he told her not to
tell her father otherwise he will kill her. She then went to Samuel
and informed
him of what Complainant had told her and Samuel
confirmed that Complainant reported the incident to him. He then
ordered her to
go and open a case. When she asked him why him and his
sister ("Josephine") did not open a case, Samuel told her
that
he wanted the Appellant to pay him compensation. She then
proceeded to report the matter to the police. She was there when
Appellant
was arrested. Complainant pointed the Appellant out to the
police.
[6.2]
Under cross-examination, the defence interrogated her on the
statement that she made to the police. She confirmed the contents
and
did not contradict herself in anyway. The statement was consistent
with her evidence in chief. The defence then asked her about
a
discussion that allegedly took place in a taxi she was travelling in
with the other witnesses on their way home after attending
court
proceedings in April 2009, when someone else, a family member, was
mentioned as the person who raped the Complainant, to
which she
responded by denying any knowledge of the said discussion or of the
person she was alleged to have spoken to, one Zandile
Vilakazi.
[7]
Samuel's, evidence was that:
[7.1]
During December he asked Paulina to fetch the Complainant and go and
stay with her and also enrol her at a school in Embalenhle.
During
that stay Paulina called him to report that the child has been raped
by Appellant. He told Paulina that Complainant also
visited Josephine
in December who also noticed some strange signs of behaviour. In
January, Paulina came back to the farm and again
informed him that
Complainant has been raped. He ordered Paulina to open a case because
the child had already told him in
December
that she was raped by Muntuza but he could not confirm that because
as a man he could not see anything. He also did not
get a chance to
speak to Appellant as Paulina went to open a case. When he was
confronted with the allegation that he sought compensation
from
Appellant, he alleged that Paulina was turning against him. He
further alleged that Paulina told him that Complainant slept
with one
of her brother's sons after Complainant touched the boy's private
parts.
[7.2]
Under cross examination, he contradicted himself alleging that
Complainant went to Josephine in December and he made the
arrangements for Complainant to go and stay with Paulina only in
January, by then he was two months into a relationship with Paulina.

He thought its better that the child leaves the school and the farm
since this thing has happened.
[8]
Josephine Nkosi was the third witness to testify, her account of
events was that:
[8.1]
Complainant visited her during December 2007 for some few days. She
noticed that Complainant was walking in a strange way.
She asked her
about it and Complainant told her that Appellant slept with her. On
Saturday she went to see Complainant's father
Samuel. She asked
Samuel if Complainant had told him about the rape. Samuel was drunk
and she could not remember what his response
was. She did not go to
the police because of work and also because she stays far. She was
questioned by Paulina about Complainant's
behaviour and she told
Paulina that Complainant has once told her about the rape incident.
Josephine denied any knowledge or being
party to a conversation that
allegedly took place in a taxi wherein it was suggested that someone
else other than Appellant might
have had sexual intercourse with the
complainant.
[8.2]
Under cross examination Josephine confirmed that Complainant told her
that it was the Appellant who raped her. She could not
confirm if it
was during school holidays when Complainant visited her.
[9]
Through the assistance of an intermediary, complainant's testimony
was that:
[9.1]
Paulina took her to Embalenhle she does not know why. Appellant found
her eating at the farm, after she ate, Appellant closed
her mouth.
She was alone her father was away. She was in the kitchen. Appellant
entered through the bedroom door. She knows the
Appellant because he
stays there at Naas farm and is friends with her father. She tried to
fight but she could not and Appellant
removed her parity and lav on
top of her in the bedroom. It happened in the bedroom, he was on top.
On Sunday, Appellant took her
to the bedroom. Appellant opened the
kitchen door after that closed her mouth and she could not cry. She
was making the bed, when
she finished eating. She went to the bedroom
to make the bed. Appellant came in whilst she was in the kitchen, he
was then crawling
towards her, coming to her crawling so that she
cannot see him. He came through the kitchen door. She was in the
bedroom. Appellant
ran slowly towards her and closed her mouth.
Appellant was standing behind her. He pushed her to the bed, removed
her panty and
laid on her. She was lying on her back. Appellant was
not wearing his trouser and underpants he put them aside. Appellant
then
put his penis in her and he was doing it on her. She illustrated
that by putting a male doll on top of a female doll and demonstrating

the thrusting movements of the upper body of the male doll. Appellant
thereafter dressed himself and left. He did not speak to
her or give
her anything. Her father Samuel came back on Sunday and she told him
that Appellant raped her. Samuel said he was going
to open a case
against the Appellant. She also told Josephine when Josephine asked
her why she was walking with her legs apart.
[9.2]
At this stage of Complainant's evidence the prosecutor requested
permission from the court to put to Complainant the statement
that
she made to the police. The presiding officer then enguired from the
defence if the statement was in dispute and there was
no response.
The prosecutor was then allowed to proceed to guestion
Complainant
on the contents of the statement. It was put to the Complainant that
in the statement she said that sometimes she used
to sleep at
Muntuza's parents house especially when her father is drunk and does
not come home early, to which she responded that
she did not sleep
there. However when it was put to her that she also said when she
slept at Muntuza' parents house she used to
sleep with her friend
Ntombi on the kitchen floor, she confirmed, stating that she slept
with Ntombi and did not sleep with Muntuza.
Her father told her to go
and sleep with Ntombi.
[9.3]
The prosecution then proceeded to question the Complainant on a
second statement that she made to the police, after the court
had
enquired again from the defence if this statement was in dispute.
Again there was no challenge from the defence. It was put
to
Complainant that in this particular statement she said she was
sitting on the chair when Appellant said to her he loves her
and she
responded by saying to Appellant she does not want him to love her.
Complainant confirmed the statement and also added
that Appellant
locked the door. The prosecutor then asked her if Appellant grabbed
her to the bedroom or found her in the bedroom
making the bed. Her
response was that Appellant grabbed her. She at the same time
confirmed that Appellant crept on her whilst
she was busy in the
bedroom making the bed. When asked why in the statement she said
Appellant pulled her into the bedroom she
said she has forgotten. In
her testimony she said after Appellant raped her he said nothing. She
was then asked why in the statement
she says Appellant said to her
she must not tell anyone what happened otherwise he would hit her,
her reply was that Appellant
said he would kill her.
[9.4]
The prosecutor then asked for permission to hand in both statements
into evidence. The defence did not challenge the prosecutor's
request
or question the use, admissibility or inadmissibility of these
statements, as a result the court admitted the statements
as Exhibit
"D" and "E" whilst Paulina's police statement was
already admitted as Exhibit "A" after
she was interrogated
on it.
[9.5]
Notwithstanding all this happening prior to cross examination of the
Complainant, the defence did not interrogate her on her
oral evidence
or witness statements admitted as exhibit "D" and "E"
opting instead to question her on Samuel's
allegation that she has
had sexual intercourse with one of Josephine's sons which allegation
she vehemently denied (as all other
previous witnesses have done) and
maintained that she was raped by Appellant. She also confirmed that
it was Plaintiff who came
from behind and grabbed her.
[10]
The state then called Dr Mabotja who submitted the following medical
evidence on the complainant's condition compiled in the
J88 medical
report:
[10.1]
the Posterior fourchette, a part of the female genitalia in the
vagina is scarred which means pressure was applied on the
genitalia
that caused an abrasion that has healed. A scar indicates a healed
wound resultant from an abrasion. Hymen configuration
- one finger
under 20 which can mean the vagina is normal or that there was a
dilation of the vagina, slightly opened. In a nine
year old a tip of
the finger should go not the whole finger.
[11]
Dr Mabotja also read into evidence the contents of the J88 report
which was that:
"Nine
year old allegedly raped two months ago. Evidence collection kit not
used. On examination the posterior fourchette scarred
which could
mean that there was rubbing around it that resulted in bruising and
ultimate scarring. However the hymen seems to be
intact. No fresh
tears or bleeding seen. The whitish discharge was taken for
pathology"
[12]
Dr Mabotja further explained that the discharge was not normal and
that it signifies an infection going inside the vagina which
cannot
be contracted without being sexually active. It also cannot be caused
by not bathing and will not clear until it is treated.
The medical
evidence was admitted as exhibit "F".
[13]
In closing arguments, the prosecution referred to Complainant's
police (witness) statements, pointing out, inter alia, the

consistency between the statements and Paulina's testimony on what
Complainant told her and also that the statements confirm that

Complainant reported the incident to Samuel when he came back home on
Sunday, the same day that the incident took place. The prosecutor

also explained Complainant's forgetfulness attributing it to the time
lapse and the fact that she was very young at the time of
the
incident. He further confirmed that the witness statements clarify
the Complainant's testimony in court, who sometimes mistook
the
inquisition to be an accusation as indicated by the manner in which
she answered the question about sleeping at Muntuza's place
that she
understood to imply that she slept with Muntuza.
[14]
On the other hand, in its argument, the defence did not refer to any
of the oral or written statements of the witnesses but
alleged that
even though it does seem like Complainant was raped, Appellant was
not the perpetrator. The defence further argued
that Complainant
could not be sure of the identity of the perpetrator because she
alleged that the perpetrator came from behind.
So she could not have
been able to see the perpetrator but just assumed it was Appellant
because Appellant usually visited her
house to drink with her father.
The defence further argued that Complainant has had sexual
intercourse with one of her aunt's boys.
[15]
When the court commenced to consider the evidence that was before it,
the magistrate mentioned all the witnesses that gave
testimony for
the state and then announced that "formally admitted as evidence
during the course of the trial were Exhibits
"A", which was
Paulina Mokeretla's witness statement, "B\ Samuel Nkosi's
witness statement, "C," Constable
Mkabela's witness
statement, "D" and "E", Complainant's witness
statements and "F"\ the J88 report
presented and read out
Dr Mabotja who examined the Complainant. It also mentioned that the
Appellant did not place any evidence
before court.
[16]
Appellant's contention stems from this announcement. Therefore a
careful scrutiny of the record, concentrating more on the
statements
of Samuel, Paulina and more especially that of Complainant, becomes
not only necessary but crucial to understand and
appreciate the
reasons for the announcement and also to establish if it was
warranted, since it is the admissibility of these statements
that
forms the nub of Appellant's disenchantment.
[17]
In examining the circumstances surrounding Samuel's testimony in
chief or under cross examination, I could not find an instance
where
reference was made to Simon's witness statement or to the request
that the said statement be admitted as an exhibit. However
at the end
of Samuel's evidence in chief the prosecutor informed the presiding
officer that the defence has no objection to the
content thereof, I
would imagine the prosecutor was referring to the contents of
Samuel's witness statement and handing it in as
exhibit "B",
This is however not clear from the record. Samuel was not necessarily
a hostile witness as his evidence
in chief was mostly consistent with
the testimony of the other state witnesses, however at the end of his
testimony in chief he
alleged that Paulina told him that complainant
slept with one of her brother's sons as well which allegation was a
deviation from
his witness statement. The allegation does not have
any correlation with whether or not the Appellant raped the
Complainant but
brought Samuel's credibility into question.
[18]
There is an overriding principle that places a duty upon a prosecutor
to make available to the defence, with a view to cross
examination, a
witness statement, mostly referred to as a police statement (which is
a privileged statement) of a state witness
that deviates from it in
his or her oral evidence. Failure to comply with this overriding
principle renders the proceedings irregular
as pronounced in S v Xaba
1983 (3) SACR 717
(A) at 728D. The rule serves as a protective
measure against the danger of an accused being found guilty on the
strength of the
evidence of a witness who is unreliable or lacks
credibility. The deviation will frequently be sufficiently far
reaching to create
a duty of disclosure if the credibility and
reliability of a witness may be put in question by the trial court
through cross examination
upon the deviation. From this perspective
it was therefore crucial for the prosecution to make Samuel's
statement available to
the defence and the court, so as to circumvent
the process being afflicted by this irregularity. In S Ncaphayi en
Andere
1990 (1) SACR 472
(A) on 486-487 the court pronounced that:
"the
absence of a request by the defence for the deviating statement to be
made available does not relieve the prosecutor of
his duty unless,
for example the defence has made it clear that it does not require
such a statement" hence the prosecutor's
disclosure of the
statement and making it available to the defence was the correct and
proper procedure to follow and the converse
could have amounted to an
irregularity. Moreover, the question whether irregular or wrongful
proceedings are such that the overriding
principles are not complied
with, must be determined in accordance with the circumstances of each
case and with public policy.
S v Mushimba & Andere
1977 (2) SA
829
(A) at 844H-845.
[19]
On the other hand, the reason for the acceptance of Paulina's
statement (exhibit "A"), is obvious and easily explicable

because it was introduced by the defence in an attempt to bring to
light some contradictions or to show that she might have contradicted

herself on a statement she made under oath in the matter under
adjudication. The purpose of which was to discredit her oral
evidence.
Therefore the admission of the statement after she has been
cross examined on it and reliance thereon when making a conclusion on

the facts cannot be irregular. Kgomo J in S v Agliotti SACR 2011 (2)
437 SGHC at par 32 clarified what is acceptable evidence when
he said
that:
"acceptable
evidence in a criminal trial is not just the say-so of a witness, ie
what the witness tells the court in chief;
it is that evidence as
qualified or coloured by cross examination".
He
further noted that ..."The previous statement(s) made by such a
witness may be put to him/her and the cross-examiner may,
in that
process, succeed in casting aspersions or doubt on the veracity of
her story and concomitantly on his /her credibility"
[20]
Turning to the Complainant's witness statements, there are underlying
principles that govern specifically the admissibility
of a
complainant's witness statement, especially if the intention is to
have the statements admitted into evidence and taken into

consideration when making findings of facts. The state of
complainant's oral evidence at the time of the introduction of the
witness
statements determines whether the way in which they were
introduced was acceptable and purpose for which they were used
justified.
[21]
As it was apparent in her evidence in chief, Complainant was unable
to provide a clear account of some of the aspects surrounding
the
circumstance under which the rape took place, making a few
incongruent assertions. At the end of her oral evidence, it was

unclear:
[21.1]
if she was in the kitchen or bedroom when the Appellant grabbed her
to the bed or bedroom;
[21.2]
if Appellant said anything to her after the alleged rape? and if he
did, if he threatened to assault or kill her.
[21.3]
Whether Appellant entered her house through the kitchen or bedroom
door.
Whilst
in the police statements she confirmed that Appellant grabbed her to
the bedroom and indeed threatened to kill her after
raping her.
[22]
The assessment of her evidence was made difficult by the fact that
neither of the sides enquired from the child about the make
up or
structure of her home, which information is clearly crucial in order
to understand or to can make out if indeed her evidence
is discrepant
or not. The understanding of the structural build if it is made up of
one or two rooms could have changed the perspective
placed on her
evidence as well. My view as concluded from perusing the record is
also that she did not get a satisfactory assistance
from the
intermediary and interpreter. I would however not dwell on that.
Nevertheless, for these reasons and the other factors
pointed out by
the court, complainant seemed to exhibit a poor recollection of the
sequence of events. Accordingly, if one has
regard to the
prosecution's closing argument, it is evident that the purpose of
introducing the statements was to prove the consistency
between the
witness statements made not long after the incident took place and
the oral evidence as well as to clarify the seemingly
incongruence in
the complainant's oral testimony and have the witness statements
admitted into evidence.
[23]
A witness statement of a complainant is generally inadmissible as
hearsay evidence unless it can be received under the principled

exceptional analysis. Under these circumstances were a party wants to
introduce a witness statement for the purpose of proving
consistency
and clarity, it must do so by way of an Application to the court for
permission to cross examine the witness on the
said statements in
view of the perceived discrepancies. See
Sections 196
and
210
of the
Criminal Procedure Act 51 of 1977
and also Section 58 of the Criminal
Law Amendment Act 32 of 2007 on Sexual Offences and Related Matters
that makes provision specifically
for admissibility of previous
consistent statements in criminal proceedings involving alleged
commission of sexual offences. The
witness is cross examined to
remove the hurdle created by hearsay evidence due to the difficulty
of testing its reliability. The
factors relevant to the credibility
and reliability of a statement can then be tested with the witness in
the witness box and subject
to cross examination. However it is
important to bear in mind that the reception of these statements
under these exceptions is
only for the purpose of showing consistency
only, not the truth of what is contained in the statement, S v MG
2010 (2) SACR 66
ECG at 71.
[24]
Section 3 of the Law of Evidence Amendment Act of 45 of 1988 ("the
Act) with regard to hearsay evidence in this scenario
provides that:-
'(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
-
a.
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
b.
the person upon whose credibility the probative value of such
evidence depends, himself testifies at such proceedings; or
c.
the court........................
[25]
it is evident from the record that prior to Complainant being
questioned on her police statements, the prosecutor did make
a
request to the court to cross examine her on the said statements,
accordingly, making the envisaged application. The magistrate
then
enquired if there was any objection from the defence and none was
raised, in that case there was no need for the issue to
be
adjudicated and the magistrate allowed the prosecutor to proceed and
cross-examine Complainant on the contents of the statements.
At the
time, the defence was aware of the permission sought and the
magistrate acceding to the state's request to lead the evidence
on
the statements but did not object. The defence's allegation of
an
irregularity in the introduction of the statements is therefore
opportunistic and without any foundation.
[26]
At the end of the prosecutor's cross examination of Complainant, the
prosecutor then requested to hand in both statements as
evidence and
again there was no objection or contest from the defence, the
statements were then admitted into evidence as Exhibit
"D"
and "E". Since there was no disagreement or contest to the
admission of the statements and the Complainant,
being the person
upon whom the probative value of the statement depended, herself
testified, and was available to be cross examined
in accordance with
Section 3 (1) (b) of the Act, removing the hurdle created by hearsay
evidence, the evidence itself became admissible,
so a formal ruling
was not necessary, (as it would have been the case under 3 (1) (c)).
This dispels the crux of Appellant's challenge
on the admissibility
of this evidence.
[27]
Consequently the defence was aware of all the evidence and the case
that Appellant was facing at the time when Complainant
and the other
witnesses was placed at the disposal of the defence for cross
examination and had an opportunity to deal with the
said evidence,
challenging and displacing its probative value as highlighted in S v
Ndlovu
2002 (2) SACR 325
SCA, at by Mlambo J that:
"'Cross
examination was an integral part of the armoury placed at the
disposal of an accused person to test, challenge and
discredit
evidence tendered against him or her".
[28]
Appellant's allegation of any prejudice suffered as a result of the
admission of the said statements in evidence is also opportunistic

like his challenge on their introduction. He was able to
cross-examine, if he so wished and to deal with the statements in the

preparation and presentation of his case, which he chose not to do.
See Cachalia AJA statement in S v Molimi and Another
2008 (2) SACR 8
at 17 supporting that view that:
"The
tendering of this evidence against the Appellants came as no surprise
in the sense that they were unable to deal with
it. They were able to
cross-examine....................... There was no prejudice to them
and the fairness of the trial had not
been compromised".
[29]
Appellant also appreciated the full evidentiary ambit that he faced
by the time the state closed its case so it cannot be said
that
Appellant was ambushed by the late or unheralded admission of hearsay
evidence. See, S v Molimi on para 17. Appellant nonetheless
chose not
to challenge the evidence or to submit any testimony to refute any of
the evidence tendered against it.
[30]
I therefore cannot find any irregularity in the introduction of these
witness statements and their admission into evidence
later. Appellant
did not suffer any prejudice through their admission, any potential
prejudice was vitiated by the opportunity
that the Appellant was
given to challenge the state's request for permission to lead and
hand in the said statements as evidence,
to cross examine the
witnesses on the statements and through the said cross examination to
displace their value and dependability
and finally to place evidence
before court to counter that evidence.
[31]
The other contention raised by the Appellant relates to the reliance
that was placed on these statements by the trial court
when making
its findings on the facts and if such reliance resulted in an
injustice. The Supreme Court of Appeal in S v Hadebe
& Others
1998 (1) SACR 422
(SCA) at 426a-b, recommended and emphasised that,
it could be useful for the understanding of the evidence as a whole
to break
it down into components as done above. But the court should
in assessing whether the trial court's findings of fact were wrong,

be careful not to focus too much intently on the separate parts,
losing sight of the fact that the whole body of the evidence might

shed light on the evidential value of its components.
[32]
Except for Samuel's testimony under cross examination, the magistrate
was satisfied with the oral evidence of the state's witnesses
that
even though the evidence seemed incoherent at some stage it could not
be found to be wanting in any material respect when
assessed as a
whole.
[33]
Complainant's evidence in chief was confirmed to have appeared to
have contradictions when compared to her statements to the
police but
however the court cautioned that in considering these discrepancies
to determine her credibility, regard should be had
to the fact that
Complainant was testifying 2 years after the incident has happened
and that she is a young girl, nine years of
age, as a result she
would not be able to remember everything in detail, referring to S v
Njembe
1982 (1) SA 835
, (A). In comparison, the police statements
that were compiled 2 months after the incident, would be clearer and,
as it was proven,
more consistent with the other witnesses' testimony
on what was reported to them by Complainant in relative detail soon
after the
incident. The court then concluded that it was therefore
justified to accept Complainant's statements as a reliable source for
proving consistency and clarifying her oral evidence. From this
perspective the magistrate could not be said to have misdirected

himself, taking into consideration the statement by Nugent J. In S V
Mayden
1999 (2) SA 79
(W) when he said;
'
A court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond

reasonable doubt and so too does it look at the exculpatory evidence
in isolation to determine whether it is reasonable possible
that it
might be true. A court does not base its conclusion, whether to
convict or to acquit on only part of the evidence"
[34]
The above conclusion negates the Appellant's allegation that the
court a quo failed to apply the cautionary approach when considering

complainant's evidence as a single and child witness. The court was
very sensitive and conscious of the obligation that it had
in dealing
with that challenge and the need for the evaluation of her evidence
to be done with full appreciation of the dangers
of an uncritical
reliance upon such evidence. Evidently the court's assessment
included the weighing of all the options and examination
of
Complainant's position with regard to:-
[34.1]
having a possible motive to implicate the Appellant;
[34.2]
how well known was the Appellant to the Complainant;
[34.3].
the lapse of time since the alleged offence was committed;
[34.4]
any other independent evidence, that corroborate the complainant's
evidence;
[34.5]
the existence of evidence pointing to a spontaneous complaint of rape
made at a first reasonable opportunity that was consistent
with
subsequent reporting on the incident.
[35]
Jones J warns in S v MG
2010 (2) SACR 66
(SCA) that the cautionary
rule is a rule of practice and not a rule of law and refers to the
decision of SvArtman and Another
1968 (3) SA 339
where Holmes JA
stated that:
"while
there is always a need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt, and the
courts must
guard against their reasoning tending to become stifled by formalism.
In other words, the exercise of caution must
not be allowed to
displace the exercise of common sense".
[36]
I am in no doubt that the magistrate in the court a quo was
appreciative of challenges presented by the statements when he

further proceeded with the analysis of the remainder of the state's
evidence. The court used the police statements as a source
against
which the memory of the witnesses can be measured to test the
reliability of their evidence in court and not as a memory
refresher
as alleged by the Appellant. Understandably so, because the
statements were made not so long ago after the incident unlike
their
testimony in court that was two years after the incident. The court
took into consideration that there was consistency in
the
identification of Appellant by Complainant as the perpetrator not
only to Paulina, Samuel, Josephine but also to the police.
The report
to Samuel was made voluntarily and freely, without a threat, at a
first reasonable opportunity she got on that very
Sunday the incident
took place, immediately after Samuel arrived home. It also regarded
the testimony of certain changes in Complainant's
behaviour that made
others suspect that something was wrong with her and the consistency
of that suspicion with Complainant's report
of the sexual assault, as
a good enough indication of the credibility of that evidence. The
court took also into consideration
that Appellant was well known to
Complainant being a family friend who frequented her home and could
not find any reason on the
evidence why Complainant would want to
falsely incriminate Appellant. Complainant's evidence of a sexual
assault is further in
line with and corroborated by the doctor's
evidence and explanation of the J88 medical report that confirms not
only the presence
of a scarring that resulted from a healing bruise
in the vagina but also of a white discharge that is consistent with
an infection
caused by sexual intercourse (and excludes the
possibility of any other cause) even though successful penetration is
debatable
due to the hymen being intact. On the basis of the totality
of the evidence, court found the evidence of Complainant to be
acceptable.
[37]
The Appellant's heads of argument also allege that the contradictions
that were in complainant's evidence were in relation
to material
aspect. As already indicated in other parts of this judgement, the
court a quo dealt with the contradictions and confirmed
that due to
the time lapse and the age of the complainant at the time when the
incident took place it would be inevitable that
she would not
remember every minor detail about the incident. It is also important
to take cognisance of the fact that what would
appear as
discrepancies in her evidence paled in importance when balanced
against the totality of the evidence and did not affect
the material
aspect of the case. Therefore the court a quo correctly found that
the perceived contradictions, when looked upon
against the totality
of the evidence did not alter the adequacy of her evidence or affect
its credibility. The acceptance in admission
of the police statements
against the totality of the state's case lent support to the
credibility and evidential value of her statements,
that pointed to
the guilt of the Appellant.
[38]
Conversely, the court also appreciated the fact that Appellant does
not have to place any evidence before court as it is not
his duty to
prove his innocence but that of the state to prove his guilt beyond
reasonable doubt. A principle highlighted by Brand
AJA in S v
Shackell
2001 (4) SA 1
(SCA) on para 30;
"It
is 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 of
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 reasonable 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 reasonable possibly
be true".
[39]
In the same tone, the burden to prove the guilt of an accused beyond
reasonable doubt does not impute that it should be beyond
any shadow
of doubt as held in R v Mlambo
1957 (4) SA 727
(A) at 738A-B BY Malan
AJ:
"in
my opinion there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt an accused has committed
the crime
charged. He must in other words, be morally certain of the guilt of
the accused. An accused's claim to the benefit of
a doubt when it may
be said to exist must not be derived from speculation but must rest
upon a reasonable and solid foundation
created either by positive
evidence or gathered from reasonable inferences which are not in
conflict with, or outweighed by, the
proved facts of the case."
[40]
Now, the Appellant's bare denial lacks sufficient materiality to
exclude any reasonable possibility that his denial may have
been
true. Appellant's Counsel refers, in his heads of argument, to the
allegation that was put to all the state witnesses and
equally
refuted by all, that complainant might have had sexual intercourse
with another person. This is obviously a groundless
hypothesis,
baselessly instigated by Samuel being fuelled on by the defence when
he was trying to get himself out of a fix for
having sought to be
compensated instead of reporting the matter. The story is so far
fetched and is, if weighed against the context
of the full picture
presented in evidence, so improbable that it cannot be reasonably
probably true that whilst being aware of
complainant's sexual
activity with one of her brother's son, Paulinah would report the
incident with the
Appellant
to the police and be unhappy with Samuel and Josephine that they did
not report the matter themselves. The defence could
also not
articulate clearly if the other person who allegedly had sexual
intercourse with Complainant was Paulinah's brother's
son or
Josephine's. The allegation lacks substance and the court was correct
in not putting any weight to it. The evidence before
the court is
that the Appellant was well known to the Complainant and a friend of
her father. He frequented their home as much
as she would also
sometimes visit his home. The court found that there would be no
reason why she would possibly want to falsely
accuse or incriminate
the Appellant, continue to falsely point at the Appellant when the
perpetrator was somebody else. The totality
of the evidence puts the
truthfulness of Appellant's denial in serious doubt. Accordingly, the
court correctly found the Appellant's
guilt to have been proven
beyond reasonable doubt.
[41]
However, even though there was proof of a possibility of a sexual
assault having taken place because of the evidence of a scarring
on
the vagina and a white discharge found in the vagina which can only
originate from a sexual activity, for the reason that the
hymen was
found to be intact and there was doubt that penetration was
successful, I agree with the trial court's conviction of
the
Appellant on attempted rape and his acquittal on the main charge of
rape.
[42]
I therefore confirm that the court was correct in acquitting the
Appellant on a charge of rape and finding him guilty on the

alternative charge of attempted rape.
AD
SENTENCE
[43]
Appellant is also appealing against the sentence on the basis that
the court a quo emphasised retribution and deterrence as
aims of the
sentence, failing to take into consideration the following factors:
[43.1]
His actual age, that was not clarified,
[43.2]
that no violence or physical injuries were inflicted upon the
complainant,
[43.3]
that he was gainfully employed,
[43.4]
the period of 18 months he has already spent in custody,
[43.5]
that he was a suitable candidate for rehabilitation.
[44]
The evidence that was considered by the trial court during sentencing
was a report compiled by a correctional supervision officer.
In terms
of this report the Appellant's personal circumstances were briefly
outlined as follows:
[44.1]
He is 21 years old, born on 11 January 1988 and with no identity
number.
[44.2]
He is single, living with his married maternal aunt and her family
since the death of his mother in 2004 and also uses the
family's
surname instead of that of his mother. He is an only child and had no
other siblings.
[44.3]
At the time of sentencing he was unemployed but before his arrest, he
worked at the farm earning R600 00 per month for a
period of 2 years.
He only went up to Standard 6 at school.
[44.4]
He was kept in detention from February 2008 until April 2009.
[44.5]
Appellant confirmed that he smokes but that he does not use drugs or
drink, his family agreed with him. Although the social
worker
suspects that the said addictives might have played a role in the
commission of the crime.
[44.6]
He is a first offender and before the alleged offence he had an
accident that is said to have affected his ability to maybe
have
children in future or express himself sexually however has a
girlfriend and maintains normal sexual relationship with her.
[44.7]
He was unable to express any remorse and continued to deny liability.
[44.8]
Complainant was moved to another place for safety.
[45]
The report further looked at whether Appellant, considering his
personal circumstances, the seriousness of the crime and public

interest, was a suitable candidate for a correctional supervision
sentence in terms of Section 276 A (1) of Act 51 of 1977 and
also
investigated the practicalities of such a sentence.
[46]
The conclusion of the report was that the Appellant was not a
suitable candidate for correctional supervision sentence in that,

whilst taking note of his youthfulness and the fact that he is a
first offender, he was convicted of a very serious offence involving

a young child that was vulnerable and defenceless. He also stays in
close proximity with the complainant who had to be moved to
go and
live at another place for her safety. He put the interest of the
community at stake by his persistent denial, of a possibility
that he
might commit the same offence again. The remoteness of the farm where
he stayed to the nearest facility where he would
have to perform his
community service would make it impractical for him to adhere to the
conditions of his sentence.
[47]
The report clearly dealt with all the factors that are raised in the
Appellant's reasons for appeal against sentence, giving
proper,
serious and adequate consideration to the Appellant's personal
circumstances in determining if he is a proper candidate
for a
sentence in terms of
Section 276
(1) of the
Criminal Procedure Act 51
of 1977
. Relying on this report, the trial court then proceeded to
consider alternative sentencing. In doing so it took into
consideration
as well, the aggravating circumstances which it pointed
out to be the age of the Complainant, the fact that she was violated
in
the sanctuary of her home, the society's views towards the crime
and the fact that the sentence must sufficiently punish the Appellant

(to fit the crime) and serve as a deterrent as well. It then imposed
the sentence of 12 (twelve) years imprisonment of which 5
(five)
years was suspended. I cannot find any reason for interference with
the imprisonment sentence.
[48]
The only time that the court of appeal can interfere with sentence is
when the sentencing court has seriously misdirected itself
or when
there is such disproportion between the sentence that the appeal
court considers appropriate and the one imposed by the
sentencing
court that it invokes a sense of shock, as restated in S v Malgas
2001 (2) SA 1222
(SCA) par 12 by Marais AJ 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. When
material misdirection by the trial court vitiates
its exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh... However
even in the absence of
material misdirection, an appellate court may yet be justified in
interfering with the sentence imposed
by the trial court....when the
disparity between the sentence of the trial court and the sentence
which the Appellate court would
have imposed had it been the trial
court is so marked that it can properly be described as 'shocking',
'startling' or 'disturbingly
inappropriate'".
[49]
In his heads of argument Appellant' Counsel contends that Appellant's
personal circumstances, mainly his age, makes him suitable
for a
sentence in terms of Section 276 (1) (i) of the Act premised on the
contention that the Appellant is 17 years old. In terms
of Section 28
(3) of the Constitution, a child is defined as 'a person under the
age of 18 years'.
[50]
It is to be noted that the Appellant's Counsel at the commencement of
the trial in December 2008, a year before sentencing,
alleged that
Appellant was 17 years old and also that he was 17 years old when the
offence was allegedly committed, in December
2007. He, again in
October 2009 during sentencing alleged that on that date Appellant
was 17 years old which means according to
his Counsel his age has
remained unchanged from the time when he committed the offence. The
correctional supervision officer clearly
states in her report that
Appellant was born in January 1988, which means he was 19 years old
at the time of the commission of
the offence, already falling outside
the threshold laid down by the constitution at that time. This
however did not stop or influence
the correctional supervisor's
investigation nor was it cited as a reason why the Appellant was not
considered to be a good candidate
for the rehabilitative sentence.
[51]
Be as it may, Section 28 (1) (g) of the Constitution provides that
'{e} very child has the right not to be detained except
as a measure
of last resort in which case the child may be detained only for the
shortest appropriate period of time. The youthfulness
of the offender
does not, per se, guarantee a non custodial sentence or dictate that
the shortest period of time be imposed, but
the constitution imposes
upon the courts the duty to then weigh the youthfulness against all
other factors that are to be considered
for the specific crime in
determining the appropriate sentence with imprisonment being the last
resort. The shortest period referred
to herein is to be decided on a
case to case basis having regard to the requirement of an
individualised, tailor made sentence
for each offender. Cameron AJ in
his majority judgement in Ntaka v The State {2008} ZASCA 30 confirms
by stating that:
"the
clear injunction is that we must weigh in the mix the fact that he
was only seventeen. This bears not only on whether
we choose prison
as a sentencing option, but on the sort of prison sentence we impose,
if we
must..................
but if prison is unavoidable its form and duration should also be
tempered."
Scott
JA expanded the thought to encompass all the circumstances in S v
Ningi
2000 ZASCA 184
at par 8 where he held that:
"The
question is, therefore, whether in all the circumstances a sentence
of correctional supervision would be appropriate.
It is unnecessary
to repeat what has been said before of the advantages of correctional
supervision. They are well known. What
I think must be acknowledged,
however, is that insofar as a first offender in particular is
concerned and leaving aside for the
moment the practicalities of
administering a non-custodial sentence, whether correctional
supervision as opposed to direct imprisonment
is to be imposed must
depend ultimately on the seriousness of the offence and the
particular circumstances in which it was committed.
This is so
because, whatever its advantages, correctional supervision remains a
lighter sentence than direct imprisonment. Any
contention of the
contrary I think would be unrealistic".
[52]
Therefore care should be exercised that we guard against placing too
much emphasis on the personal circumstances, ie, first
offender or
youthfulness, of an offender that the sentence imposed ends up not
serving the interest of justice and that of society.
In the same way
as the interest of justice will not be served by a too harsh a
sentence or too lenient a sentence that is not in
synch with the
crime committed. It is a difficult situation that requires careful
balancing of the rights involved. Rape itself
has been regarded as an
atrocious and heinous crime which statistically has been revealed to
have become so prevalent in our communities
that the legislature saw
a need in the sentence it prescribes to convey society's contempt and
revulsion towards the offence. As
a result every rape sentence is
regarded as sending a public message. A non custodial sentence would
be too lenient that its message
would be misinterpreted. Cameron JA
confirms in S v Ntaka
2008 (1) ZASCA 30
on para 41 stating that:
"To
this extent the appellant must bear the brand and carry the burden of
these times, in which rape is a mass circumstance-....
The face of
public policy from the executive, the legislature and the courts,
must be set unmistakably against perpetration. Even
for a child
offender over 16 but not yet 18, where this court has held that the
sentencing court "starts with a clean slate',
it must
nevertheless take into account the weighting effect of the
statutorily prescribed minimum sentences (ten years for rape
by a
first offender). Pure correctional supervision cannot be. A prison
sentence is therefore unavoidable".
[53]
In her minority judgement of the same matter Maya JA refers to Nugent
J's observations in S V Swart
2004 (2) SACR 370
(SCA) in clearing up
these comments that the court no doubt did not intend to suggest that
the quality of mercy, an intrinsic element
of civilised justice,
should be altogether overlooked, but rather meant to emphasise that
retribution and deterrence will come
to the fore (and that
rehabilitation of the offender will play a smaller role) in relation
to such serious crime.
[54]
The referral also by the Appellant to the fact that Complainant did
not suffer any physical injuries is misconceived. In the
case of rape
that fact does not reduce the gravity of the offence.
Section 51
(3)
(aA) (ii) of the
Criminal Law Amendment Act 105 of 1997
provides that
an apparent lack of physical injury to the complainant shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence when imposing a sentence in respect
of the offence of rape.
I
therefore cannot find any material misdirection that can justify
interference with the trial court's decision to sentence the

Appellant to imprisonment.
[55]
However even though I cannot find any material misdirection per se,
and find that there is no justification for an imposition
of a
sentence under
Section 276
(1) (i), I however find that there is a
disproportion between the sentence that would have been imposed by
this court and the sentence
imposed by the court a quo that obviously
resulted from the court a quo's failure to take into consideration
that Appellant had
at the time of sentencing spent a period of 18
months in custody already. The sentence was therefore inappropriate
for that reason.
A sentence of 10 years imprisonment of which 5 years
is suspended on condition Appellant is not convicted of rape,
attempted murder
or indecent assault committed during the period of
suspension would be appropriate and fair under the circumstances.
[56]
I therefore propose the following order
[56.1]
The Appeal against conviction is dismissed.
[56.2]
The Appeal against sentence is upheld, the sentence in the court a
quo is set aside and in its stead the following sentence
to be
imposed: '10 years imprisonment with 5 years suspended on condition
that Appellant is not convicted of rape, attempted rape
or indecent
assault committed during the period of suspension.
N
KHUMALO AJ
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
I
AGREE AND IT IS SO ORDERED
T
J RAULINGA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
FOR
THE APPELLANT: Adv V Z NEL
FOR
THE RESPONDENT: Adv Z G MSHOLOZA
DATE
OF JUDGMENT: 28 .06.12
HEARD
ON: 19.03.12