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[2012] ZAFSHC 73
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Mofokeng v S (A185/11) [2012] ZAFSHC 73; 2012 (2) SACR 507 (FB) (19 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A185/11
In the matter between:-
BENJAMIN POPO
MOFOKENG
…...............................................
Appellant
and
THE STATE
…...................................................................
First
Respondent
_______________________________________________________
CORAM:
EBRAHIM, J
et
CHESIWE, AJ
_______________________________________________________
HEARD ON:
20 FEBRUARY 2012
_______________________________________________________
JUDGMENT BY:
CHESIWE, AJ
_______________________________________________________
DELIVERED:
19 APRIL 2012
_______________________________________________________
[1] The appellant was
convicted in the Regional Court, Petrus Steyn, on a charge of raping
the complainant, a nine year old girl.
The appellant pleaded not
guilty. He was, however, found guilty as charged and sentenced to
life imprisonment. He lodged an application
for leave to appeal
against both conviction and sentence, but was unsuccessful. He
subsequently petitioned the Judge President
of this Court. His
petition was successful and he now appeals to this Court against both
his conviction and sentence.
[2] The facts of the case
are that on the 14
th
January 2006 the complainant was
playing with a friend, Karabo, when another friend, Mantwa, arrived
and told her that the appellant
was calling her. The complainant left
and went to Mr. Mokoena’s place where the appellant was
visiting.
[3] The complainant
testified that on arrival at Mr. Mokoena’s place, the appellant
allegedly took her into the house and
closed the door. The appellant
put her on the bed on her back and had carnal intercourse with her
without her consent. During this
whole process, the appellant used a
red cloth to close the complainant’s mouth so that she did not
make any noise. After
the alleged rape, the complainant went home.
[4] When complainant
arrived at home her grandmother asked her where she had been and she
informed her grandmother that she was
from Mr. Mokoena’s place.
Her grandmother noticed that she had a R2,00 coin. She questioned the
complainant and gave her
a hiding. The complainant then told her
grandmother that she was given the R2,00 by the appellant after he
had raped her. Her grandmother
made the complainant take off her
panty. She observed that the panty had semen on it and was blood
stained.
[5] Mr. Potgieter, on
behalf of the appellant, in his Heads of Argument and in oral
submission, argued that the complainant and
the second state witness
Manto Elizabeth Radebe the 11-year old friend of the complainant,
were unable to distinguish between right
and wrong because of their
youth. He further submitted that the investigation conducted in terms
of
section 164
of the
Criminal Procedure Act, no 51 of 1977
by the
presiding magistrate at the trial fell short of what is required when
admonishing a child witness to speak the truth.
Section 164(1)
provides:
“
Any person
who, from ignorance arising from youth, defective education or other
cause, is found not to understand the nature and
import of the oath
or the affirmation, may be admitted to give evidence in criminal
proceedings without taking the oath or making
the affirmation:
Provided that such person shall, in lieu of the oath or affirmation,
be admonished by the presiding judge or judicial
officer to speak the
truth, the whole truth and nothing but the truth.”
He argued that the
correct approach which should have been followed was that
encapsulated in
DIRECTOR OF PUBLIC PROSECUTIONS, TRANSVAAL v
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, AND OTHERS
2009 (4) SA 222
(CC) at 279 para 165:
“
[
165]
The practice followed in courts is for the judicial officer to
question the child in order to determine whether the child
understands what it means to speak the truth. As pointed out above,
some of these questions are very theoretical and seek to determine
the child’s understanding of the abstract concepts of truth and
falsehood. The questioning may at times be very confusing
and even
terrifying for a child. The result is that the judicial officer may
be left with the impression that the child does not
understand what
it means to speak the truth and then disqualify the child from giving
evidence. Yet with skilful questioning, that
child may be able to
convey in his or her own child language, to the presiding officer
that he or she understands what it means
to speak the truth. What the
section requires is not the knowledge of abstract concepts of truth
and falsehood. What the proviso
requires is that the child will speak
the truth. As the High Court observed, the child may not know the
intellectual concepts of
truth or falsehood, but will understand what
it means to be required to relate what happened and nothing else.”
At paragraph 166 the
Constitutional Court set out the rationale for the procedure required
by
section 164:
“
[
166]
The reason for evidence to be given under oath or affirmation or for
a person to be admonished to speak the truth is to ensure
that the
evidence given is reliable. Knowledge that a child knows and
understands what it means to tell the truth gives the assurance
that
the evidence can be relied upon. It is in fact a pre-condition for
admonishing a child to tell the truth that the child can
comprehend
what it means to tell the truth. The evidence of a child who does not
understand what it means to tell the truth is
not reliable. It would
undermine the accused’s right to a fair trial were such
evidence to be admitted. To my mind, it does
not amount to a
violation of
section
28(2)
to
exclude the evidence of such a child. The risk of a conviction based
on unreliable evidence is too great to permit a child who
does not
understand what it means to speak the truth to testify. This would
indeed have serious consequences for the administration
of justice.”
[7] Advocate Pienaar, on
behalf of the State, argued that the record showed that the
complainant and the second witness were properly
admonished. An
intermediary was used to assist the child witnesses and the court. He
indicated that it is clear that the court
was satisfied with the
evidence of the complainant and the second witness. He emphasised
that the demonstration using the dolls,
showed that the complainant
knew the difference between a lie and the truth.
[8] 8.1 The questioning
of Manto Elizabeth Radebe (“Manto”) by the presiding
magistrate in terms of
section 164
proceeded as follows:
“
AANKLAER
Kan hierdie saak ‘n oomblik afstaan vir getuies.
HOF
Die saak sal ‘n
oomblikkie afstaan dankie.
MASJIEN AF / AAN
HOF
Sy gaan natuurlik baie kort
getuig.
AANKLAER
Ja, baie kort getuig
Edelagbare. Baie dankie. Ons volgende getuie is Elizabeth Radebe
Agbare. Sy is na bewering 11 jaar oud.
HOF
U volle name?
GETUIE
Manto Elizabeth Radebe.
HOF
Hoe oud sê u is u?
GETUIE
13 jaar oud.
HOF
Gaan jy skool?
GETUIE
Ja.
HOF
Graad?
GETUIE
Graad vyf.
HOF
Is jy bereid om in die
opehof te getuig nê om hier te praat by ons. U is nie bang vir
ons nie?
GETUIE
Dis korrek.
HOF
Weet u wat dit is om die
waarheid te praat of om ‘n leuen te vertel?
GETUIE
Dis korrek.
HOF
Gaan jy kerk toe?
GETUIE
Dis korrek, ek behoort
aan die kerk, die United Kerk.
HOF
Weet u wat dit is om ‘n
eed af te lê, voor die Here te sweer om die waarheid te praat?
GETUIE
Dis korrek.
HOF
Wat beteken dit? Kan jy vir
my vertel wat beteken dit om te sweer om die waarheid te praat voor
die Here of verstaan jy dit nie?
GETUIE
Ek verstaan nie mooi
nie.
HOF
Goed, ek gaan jou waarsku,
Goed. Elizabeth, die Hof waarsku jou vandag om die waarheid te praat,
die hele waarheid en niks anderste
as die waarheid nie. As jy nie die
waarheid praat nie kan jy in baie groot moeilikheid belang. Verstaan
jy dit?
GETUIE
Ja.
HOF
Die Hof is tevrede sy is ‘n
goeie getuie dat sy die verskil tussen die waarheid en ‘n leuen
verstaan. Sy word gewaarsku
om die waarheid te praat.”
The questioning of the
complainant by the presiding magistrate so as to determine her
competence to testify proceeded as follows:
“
AANKLAER
Agbare dankie. Die Staat sal vra dat die Hof oorweeg om op te tree in
terme van
Artikel
170(a)
van die Strafproseswet. Die Staat sal versoek dat die kind deur
middel van ‘n tussenganger getuig. Agbare, ter ondersteuning
van die Staat se aansoek roep die Staat dan ‘n
maatskaplikewerkster, Hadiyo Constolation Moloi.”
“
Die hof is
dan ook tevrede dat hierdie persoon nie die meriete van die saak met
die klaagster bespreek het nie. Die Hof gaan dan
nie verder inlig van
hoe die werking is nie aangesien sy al verskeie kere opgetree het as
‘n tussenganger. Die Hof kan net
vir u vra, watter taal praat
u? --- Suid-Sotho.
En die kind? --- Ook Suid-Sotho.
Goed dankie. U verstaan mekaar dan
baie goed. --- Dis korrek.
Goed. Die tussenganger kan dan afstaan
en verdaag na die vertrek aangrensend tot die Hof.
AANKLAER
Edelagbare, die Staat
sal dan dieselfde tyd vra dat Lina Radebe, die klaagster geroep word,
sodat sy gereed gemaak kan word deur
die tussenganger.
HOF
Lina Radebe kan dan ook na
die getuie toe gaan. Die Hof sal
in camera
wees. Is die deur
toe? U moet net die deur toemaak sodat daar nie mense inkom nie. Die
Hof merk op dat ons nou in verbinding is
met die tussenganger. Die
Hof merk ook op dat daar wel – dat daar aangepaste poppe by
haar is. Maak die deur toe. U moet
net die deur toemaak asseblief.
Kom meneer, hierdie ge-in en uit hier by die bank is nonsens. Goed
dankie. Ons is dan in verbinding
met die tussenganger. Die klaagster
is ook daar. Die Hof merk op dat sy besonder klein is, klein gebou en
nog uiters ‘n kind
is. Haar volle name?
GETUIE
Lina Radebe.
HOF
Nou Lina, vertel vir my
weet jy self hoe oud is jy nou?
GETUIE
Dis korrek, ek weet is
tans 11 jaar oud.
HOF
Weet jy jou datum van
geboorte, dag, maand en jaar van geboorte, uit eie kennis?
GETUIE
Ek weet net ek is gebore
op die 2de Junie, dieselfde maand, maar ek weet nie watter jaar nie.
HOF
Dan gaan u skool?
GETUIE
Dis korrek.
HOF
Watter graad is u?
GETUIE
Graad vyf.
HOF
En wat is die skool se
naam?
GETUIE
Mamafubedi publiekskool.
HOF
Behoort jy aan ‘n
kerk?
GETUIE
Dit is korrek, dit is
United Apostolic Unie Church.
HOF
Gaan u so nou en dan kerk
toe darem?
GETUIE
Dis korrek.
HOF
Nou, het jou ma jou al
geleer wat dit is om die waarheid te praat en wat dit is om ‘n
leuen te vertel, en wat maak sy met
jou as jy ‘n leuen vertel?
GETUIE
Dis korrek, my ma het my
geleer en as ek leuens praat miskien ek kan sê dat hierdie pop
is lelik.
HOF
Wat gaan sy, dan jou ma met
jou maak?
GETUIE
My ma sal vir my raas.
HOF
Goed. As ek vir jou sê
dat die persoon wat daar sit langs jou ‘n menspersoon is, is
dit reg of verkeerd?
GETUIE
Dis korrek, dit sal
leuens wees.
HOF
Leuens wees dankie. Die Hof
is dan tevrede op hierdie stadium dat die getuie wel ‘n
bevoegde getuie is en ook die verskil
tussen die waarheid en ‘n
leuen verstaan. Verstaan u wat dit is om ‘n eed af te lê
en vir die Here te sweer om
die waarheid te praat of verstaan u dit
nie?
GETUIE
Ek weet en ek kan sweer
voor die Here.
HOF
Goed. Vertel vir my wat
beteken dit?
GETUIE
Moet die eed aflê.
HOF
Ja, maar wat beteken dit om
die eed af te lê?
GETUIE
Ek sal voor die Here
sweer dat ek moet net die waarheid praat en ek sal ook die Here laat
vra om my te help om net die waarheid
te sê.
HOF
Goed. Blyk dit dat sy wel
besef wat dit is om ‘n eed af te lê en derhalwe gaan die
Hof haar insweer. Sweer sy die getuienis
wat sy sal aflê die
waarheid sal wees, die hele waarheid en niks anderste as die waarheid
nie?
GETUIE
So help my God.
LINA RADEBE
(Ingesweer) (deur
tussenganger) (deur tolk)
HOF
Dankie. U moet net besef
dat u nou net die waarheid mag vertel, u mag nou glad nie leuens
vertel nie, hoor? --- Ek verstaan.
Goed dankie. U kan voortgaan.”
[9] In my view, the court
a quo
correctly applied
section 164
of the CPA and warned the
witnesses to speak the truth. I am not persuaded by the appellant’s
argument that the witnesses
were unable to distinguish between right
and wrong and that the magistrate’s investigation was
insufficient.
9.1 Manto’s
evidence was formalistic in nature viz that a man called Popo (she
asked him for his name) arrived and called
for Lina. Discovering she
was not at home, he sent Manto to call her. Manto did not know Popo.
She went to Karabo’s house,
told Lina Popo wanted her. She
asked “which Popo”. Manto said she did not know. Lina
went to Memes house and they told
her it was not Meme’s Popo,
she then went to Mr Mokoena’s place. Manto did not go with her.
When, in cross examination
by the appellant’s legal
representative, it was put to her that the appellant, Popo, would
testify that he did not know her,
had not met her on the day in
question, a Saturday, and had never, in his lifetime, spoken to her,
her response was quick, spontaneous,
forthright and logical.
“
How are you
related to Lina? --- Family.
Do you stay together? --- That’s
correct I stay at Lina’s place.
Okay. Popo will come and testify that
he never met you that Saturday. --- I was inside the yard and Popo
was asking for her.
He will also come and testify that he
never spoke to you on that day. --- He just called Lina. It’s
then that I came out and
asked where is Lina and I said that Lina is
not there.
And? --- And then Popo walked down to
Mr Mokoena’s place.
When did he tell you his name? --- The
same day.”
When it was put to her
pertinently that she was not telling the truth, her answer was
indignant.
“
It’s
the truth.”
There was no fumbling or
hesitancy on the part of this witness in giving her testimony. I have
no doubt that this was not due on
her part to any practiced art of
misleading or lying to persons who were in authority over her, as
indeed the learned attorney
for the appellant was when cross
examining her. The court is an intimidating place for most witnesses
and, doubtless, even more
so for child witnesses. In the face of such
direct scrutiny, bearing in mind that Manto was not testifying
through, the medium
of an intermediary, but in person in the full
view of the appellant, his attorney, the prosecutor as well as the
presiding magistrate,
I am convinced that had she indeed not been
telling the truth, this would have been patent to the court by virtue
of her demeanour.
In court the content of her evidence also speaks
volumes as to her veracity in giving it. It was such a
straightforward, simple
story that she was called upon to tell to the
court that it permitted of no fabrication. In these circumstances and
for these reasons,
I find that the learned presiding magistrate’s
enquiry in terms of
section 164
of the
Criminal Procedure Act in
the
case of this witness, whilst it may be criticized for its marked
brevity, cannot be imputed with invalidity.
As far as the
complainant herself is concerned it is clear to me also that the
learned presiding magistrate did, in fact, satisfy
himself as to
this witness’s ability to give a full, proper and truthful
account of the relevant incident. This he did
by virtue of
questions put through the medium of the intermediary, eliciting
direct, logical and sequential responses from
the complainant. The
content of the complainant’s evidence also bears out the
correctness of the learned magistrate’s
ruling that she was a
competent witness.
9.3 Accordingly, Mr
Potgieter’s submission that insufficient examination of these
two witnesses in terms of
section 164
of the
Criminal Procedure Act
was
evident from the record of the trial proceedings indicating a
failure by the learned magistrate to satisfy himself that the child
witnesses knew the difference between what it is to tell the truth
and what it is to lie, cannot, and does not, find favour with
this
court. I find, and it is my conclusion, on a reading of the
conspectus of the evidence of the child witnesses as a whole,
that,
whilst these witnesses
might
not (and it is by no means clear
to me that they
in fact
did not) have an appreciation of the
abstract concepts of truth and falsehood, they nevertheless were
perfectly able and did,
in fact
, convey to the court
a quo
what had happened to them on the day in question as regards the rape
charge laid against the appellant.
[10] On the merits, Mr
Potgieter challenged the conviction on the basis of the state’s
failure to present positive DNA evidence
linking the appellant to the
crime. He argued that the fact that the complaint’s hymen was
bruised on examination of her
genitalia immediately after the alleged
intercourse with the appellant was, on its own, not corroborative of
rape.
[11] It appears that the
preliminary DNA tests in this matter were negative and as a result
thereof no DNA comparison could be carried
out. The records showed
that the grandmother, Mrs Radebe, washed the child’s panty when
she saw semen on it.
[12] The appellant
admitted that he was in Petrus Steyn on Saturday 14 January 2006, the
day of the alleged rape. He admitted being
at Mr Mokoena’s
house with Simon Lephutleng. He said the complainant and her friend,
Lina, arrived. He denied raping her.
[13] In my view, the
complainant, despite her young age, was a truthful and reliable
witness. She was cross-examined at length but
did not change her
version at all. The appellant could not refute her version except
through his bare denial. There is no evidence
that showed that the
complainant met any other person who could have had sexual
intercourse with her. After being in the appellant’s
company,
which is common cause she went home directly. Her grandmother
discovered that there was something wrong with her and,
upon her
arrival, questioned her, after which she related what the appellant
had done to her. Her grandmother immediately confronted
the appellant
with the said allegations. The complainant was consistent in her
version, and explained in detail what the appellant
did to her. Quite
correctly the trial court came to the inescapable conclusion that the
appellant was the only person who had had
the opportunity to rape the
complainant. It follows that there is no room for interference with
the conviction
[14] I turn now to the
appeal against the sentence. Advocate Pienaar acknowledged that the
appellant is young and has no previous
convictions. Nevertheless he
supported the sentence on the basis that this court was only at large
to interfere if the court
a quo
had committed a misdirection
in sentencing the appellant.
[15] Advocate Potgieter,
on behalf of the appellant, submitted that the mitigating factors of
this case and the personal circumstances
of the appellant
cumulatively amounted to compelling and substantial circumstances,
which justified the court
a quo
imposing a sentence less than
the prescribed minimum sentence. He highlighted the following:
the appellant’s
youthfulness at the time of commission of the crime;
the appellant was still
a scholar doing Grade 10;
the appellant had spent
three years and three months in custody awaiting trial.
[16] The crime, which the
appellant was convicted of, falls within the provisions of the
Criminal Law Amendment Act, 105 of 1997
as amended (“the Act”).
In terms of
section 51(4)
read with
part 1
schedule II, where a
person is convicted of an offence of rape and the victim is a person
under the age of 16 years, the sentence
of life imprisonment must be
imposed unless subsections (3) and (6) provide there are substantial
and compelling circumstances
which will justify the imposition of a
lesser sentence.
[17] In order to
determine whether in a particular case substantial and compelling
circumstances exist, a court has to follow the
guidelines as set out
in
S v MALGAS
2001 (1) SACR 469
(SCA) at 482 c and
consider the trite triad of factors propounded in
S v ZINN
1969 (2) SA 537
(A) relevant to sentence: the crime, the criminal and
the interests of society.
[18] It was submitted on
behalf of the appellant that the rape was not of such a serious
nature, but the fact that the child was
nine years old at the time of
the crime, in itself is very serious. Rape of a child violates the
child’s dignity. The record
shows that the impact of the crime
on the complainant is such that her performance in class has been
affected. She is no longer
an active participant and she lacks
concentration in class.
[19] A court of appeal
may interfere with the sentence imposed by a trial court only where
the sentence imposed is so disproportionate
to the crime committed
that it is unjust or where the trial court in sentencing the offender
failed to exercise its discretion
properly or exercised it
unreasonably.
[20] In my view the trial
court did not accord due weight to the personal circumstances of the
appellant; the fact that he was nineteen
years of age and a scholar
when the offence was committed; that he is a first offender with good
prospects of rehabilitation, and
that he had spent 3 years and 3
months in custody while awaiting his trial. The trial court found
that the aggravating circumstances
of the case outweighed the
mitigating factors as the underlying rationale for imposing the
prescribed minimum sentence of life
imprisonment.
[20] That approach, in my
view, constituted a misdirection entitling this court to interfere. A
comprehensive pre-sentence report
was compiled in respect of the
appellant and admitted in evidence. It indicates that there is room
for the rehabilitation of the
appellant. The learned magistrate had
regard for the fact that the appellant had connived and planned to
rape the complainant and
had lured her with money and death threats
into having sexual intercourse with him against her will.
[21] I am in agreement
with the sentiments expressed by the learned magistrate in his
judgment where he emphasises the seriousness
of the crime of child
rape and that it be punished severely. Undoubtedly, in arriving at
this conclusion in the appellant’s
case, he took into account
that the appellant had connived and planned beforehand to rape the
complainant and that he had achieved
his aim by luring her with money
and stifling her resistance with the threat of death. But despite his
lack of remorse for his
actions, I am not persuaded that the sentence
of life imprisonment imposed by the learned magistrate is warranted
in the appellant’s
case. I say so in light of the fact that the
appellant is a youthful first offender who has been determined by
expert evidence
to be capable of being rehabilitated, given the
opportunity. These are weighty factors, which cumulatively must
redound to his
benefit as substantial and compelling circumstances
justifying the imposition of a sentence less than the minimum
prescribed (
S v MALGA
supra
). In my view to
allow the appellant to be imprisoned for the rape of the complainant,
despite the seriousness thereof, for the
rest of his life would
amount to endorsing punishment which is disproportionate to his
offence which would be unjust.
[22] In
S v
PHULWANE AND OTHERS
2003 1 SACR 631
(T) at 635 H – I,
the court held that when a youth or juvenile strays from the path of
rectitude to criminal conduct, it
is the responsibility of the
judicial officer invested with the task of sentencing such a youth to
obtain all the relevant information,
in order to structure a sentence
that will best suit the needs of and interests of the particular
youth. I am of the view that
every judicial officer who has to
sentence a youthful offender must ensure that whatsoever sentence he
or she decides to impose
will promote the rehabilitation of the
particular youth. See also
S v NKOSI
2002 (1) SACR 135
W.
[23] A fine balance needs
to be struck between society’s needs to punish crime whilst not
overlooking the right and interest
of a juvenile offender to be
accorded an opportunity to be rehabilitated in suitable and
appropriate cases. Taking into account
all the relevant factors in
the appellants case leaves me with the conviction that a sentence of
15 years imprisonment would be
an appropriate sentence, which would
serve the retributive, deterrent and rehabilitative aims of
punishment. That sentence should
also reflect a credit to the
appellant for the time which he spent awaiting his trial.
[24] I would accordingly
make the following order:
24.1 The appeal against
the conviction is dismissed. The appellant’s conviction of rape
in the Regional Court, Petrus Steyn,
is confirmed.
24.2 The appeal against
the sentence succeeds. The sentence of life imprisonment is set aside
and in its place a sentence of 15
years imprisonment is substituted,
which sentence is to be ante dated to 16 November 2009, in terms of
section 282
of The
Criminal Procedure Act, 51 of 1977
.
24.3 Three (3) years of
the sentence of 15 years imprisonment are to be deducted when
calculating the date upon which the sentence
is to expire.
______________
S. CHESIWE, AJ
I concur.
_____________
S. EBRAHIM, J
On behalf of appellant:
Adv. Hendrik Potgieter
Instructed by:
Giorgi & Gerber
Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. F.J. Pienaar
Instructed by:
Office of the Director:
Public Prosecutions
BLOEMFONTEIN
/eb