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[2012] ZAKZPHC 42
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S v Cele (AR48/2012) [2012] ZAKZPHC 42; [2012] 4 All SA 182 (KZP) (17 July 2012)
KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
REPORTABLE
Case No: AR48/2012
In the matter between:
SIHLE JULIUS CELE
…...................................................................................
APPELLANT
Vs
THE STATE
…............................................................................................
RESPONDENT
APPEAL
JUDGMENT
DELIVERED ON: 17 July
2012
MADONDO J
[1] The appellant was
convicted of rape of a three year old child in the Ixopo Regional
Court and sentenced to life imprisonment.
With the leave of the court
a quo
he now appeals against both conviction and sentence.
[2] The conviction was
based on the evidence of a five year old single witness A M; the
complainant, implicating the appellant with
the offence. Her evidence
was that on a Saturday, the 9
th
of August 2008, she was on
her way alone from Bonelo’s place to her home. The foot path
ran through a bush or thicket. Whilst
walking there she met up with
the appellant who accosted her, grabbed her by the hand, pulled her
to the bush or forest, removed
her pants and panties and penetrated
her. Whilst the appellant was raping her she felt pains in her
vagina. When her grandmother
examined her at home, she told her that
it was the appellant who had raped her.
[3] As to the rape
incident, the complainant’s evidence finds corroboration in the
evidence of Thulelani Beatrice Ntsendani
her grandmother, Thandekile
Mnguni, the appellants’ aunt, and Dr A Narula. Her grandmother
testified that on Saturday the
9
th
of August 2008 she had
been away from her home attending a funeral. On her return a report
was made to her that the complainant
was experiencing pains when she
urinated. On examining the genitals of the complainant she discovered
that she had been sexually
abused. She saw blood and semen emitting
from the complainant’s vagina. When she asked the complainant
who had done that
to her, she responded saying that it was the
appellant. The grandmother got shocked and she sent for Thandekile
Mnguni to come
and witness what she had discovered.
[4] On receipt of the
message Mnguni proceeded to the complainants’ homestead. On her
arrival there the complainant’s
grandmother enquired from the
complainant in the presence of Mnguni, the appellants’ aunt, as
to who had sexually molested
her and she replied saying that it was
Sihle, the appellant. The appellant’s aunt also examined the
complainant and discovered
that she had been raped since she saw
blood and semen on the outside of her vagina and when she asked the
complainant who had done
that to her, she said that it was the
appellant. Appellant’s aunt also testified that in the
afternoon on the day in question
she saw the appellant walking alone
past her homestead. However, she stated that when she saw the
appellant walking past her homestead,
it was before sunset. She
confirmed that Mpume was her daughter and related to the appellant.
Mnguni also testified that her homestead
was situated just above the
complainant’s homestead and that the appellant used to visit
her homestead.
[5] On examining the
complainant on 11 August 2008 Dr A Narula made the following
findings: abrasions and bruises on her inner thighs
and concluded
that this could have been sustained as the result of the blunt force
trauma. Her clitoris was red, tender and swollen.
The doctor also
found fresh tears at 9 ‘o’ clock. In conclusion, the
doctor found definitive evidence of penile penetration
of the
complainant’s vagina. The doctor also stated that a penile
penetration of anus could not be excluded.
[6] On conclusion of the
evidence of the state, the appellant testified that on Saturday, the
7
th
August 2008, he was in the company of Sphamandla
Sanele and Sihle Cele at Ntombela’s homestead where there was a
traditional
ceremony. He remained there until sunset and when he left
Ntombela homestead it was already dark. On 11
th
August
2008 the appellant was arrested at school. The blood as well as pubic
hair samples was obtained from him for the purposes
of analysis.
[7] Under
cross-examination the appellant confirmed that on the previous day in
court he had been wearing a white jacket, pair of
jeans and black
shoes. At the time there was only Sihle from Pongola. The appellant
also confirmed that he was a brother to Mpume.
The appellant conceded
that the other Sihle was known as Ryce and that the complainant also
knew him as such. The appellant stated
that he used to see the
complainant at his aunt’s place in the afternoons on his return
from school. The appellant admitted
that the complainant knew him.
The appellant mentioned it for the first time under cross-examination
that in the afternoon on the
day in question he went to Ntsendani
homestead (where the complainant resided) to buy four cigarette
sticks and that he was told
by those who were selling there that they
were running short of change.
[8] Under questioning by
the court it was put to him that the 9
th
of August 2008
fell on a Saturday. The appellant was adamant that it fell on a
Monday. However, he stated that should it be proved
that it fell on
Saturday he would withdraw his assertion. Notwithstanding that, when
the calendar was later shown to him, the appellant
persisted with his
claim. The appellant closed his case without calling further
evidence.
[9] On the close of the
defence case the prosecutor stated that the DNA comparison could not
be done because when the complainant
came to the clinic on Monday she
had already washed herself and as a result the sperm could not be
found in her vagina. The affidavit
to that effect by the Head of
Forensic Science Laboratory was handed in by consent.
[10] On conclusion of
the trial the Learned Magistrate after taking all the relevant
factors into account found the complainant
to be a credible witness
and accepted her evidence as true and correct, and rejected the
version of the appellant as false beyond
reasonable doubt.
The Evidence of a
Single Witness of Tender Age.
[11] In
S v J 1998(1)
SACR 470 (SCA),
it was stated that the cautionary rule in sexual
assault cases was based on an irrational and outdated perception. It
unjustly stereotyped
complainants in sexual cases (overwhelmingly
women) particularly women as unreliable.
[12] The evidence in a
particular case may call for a cautious approach. However, it will
depend on the facts and the circumstances
of each individual case as
to whether such an approach is necessary or not.
[13] In
S v V 2000(1)
SACR 453 (SCA)
the following was said:
“
The
cautionary rule applicable to complainants in sexual assault cases is
no longer part of our law. However, evidence in particular
cases
potentially is still requiring cautionary approach despite the
abolition of general cautionary rule that means evidence of
young
children to be treated still with caution.”
[14] In
S v Van der
Ross 2002 (2) SACT 362(C) 365 f-g,
Thring J said:
“
Soos ek die
gewysde verstaan, beteken dat difinitief nie dat dit verhoorhowe van
nou af vrystaan on op ‘n onverskildig of
roekelose skuldig
bevindings in sake in te bring waar die aanklag van ‘n seksuele
aard is nie; dit beteken ook nie meer versagting
hoef te wees;
inteendeel, ek sou dink dat strafhowe liewers aangemoedig behoort to
word om die uiterste versigtigheid aan die dag
te lê voordat
hulle mense aan ‘n ernstige aanklag soos verkragting skulding
bevind, veral na die invoer van die baie
swaar verpligte vonniisse
wat die Wetgewer nou met die strafregwysingswet 105 van 1977 vir oa
sekere seksuele oortredings voorgeskryf
het.”
[15] In
S v Hones
2004(1) SACR 420(C) at 427f-h,
Van Reenen J said the following:
“
Omdat die
klaagster ‘n enkelegetuire is en omdat daar eienaarsdighede in
haar getuinis is wat daarvour smeek (Sien S v J 1998(1)
SASR 470(HHA)
1998(2) SA 984) vind die vesigtig heidsreël in onderhawige
aanwending:
Die versigtigheidsreël verlis
dat ‘n hof bedag moet wees of faktore wat die onkritiese
aanvaardig van getuinis riskant
maak, byvoorbeeld, die
verbeeldingsrykheid en die be
ї
nvloed
baarheid van kinders en dat dit deurentyd voor oë gehou moet
word (Sien S v M 1992 (2) SASV 188(W) te 193 c-e). die
versigtigheids
re
ё
l
vereis egter nie dat getuinenius knitiekloos moet wees nie, maar
slegs dat dit substansieel bevedigend teen opsigte van wesenlike
aspekte moet wees of gekorroboreer word (Sien S v Ganie and others
1967(4) SA 203 (N) te 206H) verder moet daar nie slegs lippediens
aan
die reel getoon word nie. Dit moet uit die hantering van die
getuienis blyk dat dit indaradaad deur dit hof toegepas is. (Sien
S V
F 1989(3) SA 847 (A) te 852H- 853C)”.
Imaginativeness and
Pliability of Children
[16] The evidence of a
young child has been said to be unreliable because of the child’s
inexperience, imaginativeness and
suggestibility to influence. In
S
v Jackson
case,
supra,
the court dispensed with the
cautionary rule in sexual cases on the ground that the application of
the cautionary rule to sexual
assault cases was based on irrational
and outdated perceptions. Therefore, it follows that the state is
simply obliged to prove
the accused’s guilt beyond reasonable
doubt. However, a particular case may call for a cautionary approach,
for instance,
where imaginativeness and pliability of a young witness
is a potential risk.
[17] In dealing with the
evidence of a young child it has been said that where the complainant
is in respect of a sexual crime is
a child under the age of six,
corroboration linking the accused to the crime may be sought. If the
circumstances eliminate the
reasonable possibility of a false
identification or motive to lie, the desirability of a particularly
cautious approach diminishes
or disappears (R v J 1966(1) SA 88(SRA)
94-95).
[18] In
S v V supra,
it was held that while there is no statutory requirements that a
child’s evidence must be corroborated, it has long been
accepted
that the evidence of young children should be treated with
caution. In
S v S 1995(1) SACT 50(25),
it was stated that the
purpose of requiring corroboration is to guard against false
implication as far as possible. The court went
on to state that it
was well established in various cases that it is advisable to require
corroboration of the testimony of young
children because their youth
indicates an immature mind which may cause them to give
ill-considered or misleading evidence. See
also
R v Judson 1966(1)
SA 88 (RA); S v Mupfudza 1982(1) ZLR 271 (C); S v Santos SC 138/85
(not reported); and S v R 1990(1) SACR 413
(ZS).
At 55c-i the
court in S v V case,
supra,
stated six objections to relying
on children’s evidence, as
viz
that (a) children’s’
memories are unreliable; (b) children are egocentric; (c) children
are highly suggestible (d)
children have difficulty in distinguishing
fact from fantasy; (e) children make false allegations, particularly
of sexual assault,
and (f) children do not understand the duty to
tell the truth.
[19] The child rape in
particular is fundamentally suspect as stated above, under South
African Law there is no statutory requirement
demanding corroboration
of a child’s evidence but in practice a child’s evidence
must be treated with caution. In
R v S
1948 (4) SA 419(G)
422,
Bok
J said:
“
It is
however dangerous to convict only on the evidence of a child of
tender years and it is therefore the established practice
to require
corroboration”
In
R
v J 1958(3) SA 699(SR) 702,
it was held that
the imaginativeness and suggestibility of a little child of four is
so great and the tendency of him or her to
romance is so marked, that
corroboration is in practice essential. If the circumstances are not
such as to exclude all substantial
risk, corroboration should be
required.
[20] Corroborative
evidence comes from several sources. Where an allegation in sexual
offence is made, there has to be corroboration
of a material nature.
This can be medical evidence or may be things seen or heard that
could point to the truth of the allegation.
The nature of this
required corroboration may consist in the child simply telling an
adult, if this is done soon after the alleged
event and that story
reasonably objective – a description of emissions.
[21] In
R
v Manda 1951(3) SA 158(A) at 163B,C & E,
the
court held that the imaginativeness and suggestibility of children
are only two of a number of elements that require their evidence
to
be scrutinised with care amounting, perhaps, to suspicion. The trial
court must fully appreciate the dangers inherent in the
acceptance of
such evidence. The best indication that there was proper appreciation
of the risks is naturally to be found in the
reasons furnished by the
trial court.
Was the Appellant’s
guilt proved beyond all reasonable doubt?
[22] The only evidence
implicating the appellant was that of the young complainant.
Therefore, for it to be accepted it must be
clear and satisfactory in
all material respects. See
R v Mokoena 1956(3)
SA 81 (AD) at pp 85 – 6.
In
S
v Artman and another 1968(3) SA 339 (AD) at 431B,
it
was held that no rule of law requiring corroboration in criminal
cases. If some safeguard reducing the risk of conviction is
required,
the safeguard must not consist of corroboration but if corroboration
is relied upon as the safeguard, it must go the
length of implicating
the accused in the commission of the crime.
[23] The rape incident
finds confirmation in the findings of the elderly women being the
complainant’s grandmother and Thandekile
Mnguni, who examined
the complainant on the day of the rape and also in the clinical
findings by the doctor who examined her on
the third day, ie 11
August 2008. In
Dladla and others 1964(1) P.H.H. 130(AD),
the
court held:-
“
where the
only evidence implicating an accused is that of one witness, the
witness must be treated as a single witness even though
the witness`s
evidence might be corroborated on other aspects not implicating the
accused.”
[24] The evidence of the
complainant as a single witness of tender age needed a double
caution. The learned magistrate must show
in his evaluation of the
evidence that he appreciated the dangers inherent in accepting the
evidence of this nature. The need to
treat the evidence of a child’s
evidence with caution arises from the inexperience of the child and
the imaginativeness and
the susceptibility to influence of the
child’s evidence. A guide is provided by Diemont JA in
Woji
v Santam Insurance Co. Ltd, 1981(1)SA 1020(A) at 1028A-E,
dealing
with a civil case, where the learned judge of appeal said:-
“
The
question which the trial court must ask itself is whether the young
witness’s evidence is trustworthy. Trustworthiness
…
depends on factors such as the child’s power of observation,
his power of recollection, and his power of narration
on the specific
matter to be testified. In each instance the capacity of the
particular child is to be investigated. His capacity
of observation
will depend on whether he appears intelligent enough to observe.
Whether he has the capacity of recollection will
depend again on
whether he has sufficient years of discretion ‘to remember what
occurs’ while the capacity of narration
or communication raises
the question whether the child has ‘the capacity to understand
the questions put, and to frame and
express intelligent answers’
… . There are other factors … Does he appear to be
honest – is there a consciousness
of the duty to speak the
truth?”
[25] The complainant
testified that when the bottom part of her body was not covered the
same part of the appellants’ body
was also not covered. This is
suggestive of a sexual act. This was elucidated when she demonstrated
by means of male and female
dolls what the appellant was doing when
he was on top of her by putting a male doll on top of the female doll
and causing a male
doll to make a slow up and down movement on top of
a female doll. She also stated that whilst the appellant was lying on
top of
her she felt pain in her vagina, and this is indicative of a
penile penetration of the complainant’s vagina by the appellant
otherwise, there could not have been any pain in her vagina, in
particular. The pain she suffered and the sexual act was corroborated
by the blood and semen her grandmother and Mnguni saw emitting from
her vagina, as well as the injuries the doctor found on examining
her
on the third day after the rape incident. In addition, the
complainant did not have an inkling of what the appellant was doing
on top of her. It is therefore unthinkable that she could imagine a
thing she had no experience of and did not know what it was.
In
S
v S 1995(1) SACR 50 (25),
the court held that children do not
fantasise over things that are beyond their own direct and indirect
experience.
[26] The complainant
gave a detailed and logical account of the rape and this was not the
type of story that could credibly emerge
from the fantasy of 3 year
old girl. The details were too graphically realistic and precise. She
told her grandmother at the first
opportunity when she enquired from
her what had happened, after examining her on the complaint that she
experienced pains when
urinating. Also, when Mnguni, the aunt to the
appellant, asked her who was responsible for what she saw come from
her private parts
she told her without hesitation that it was the
appellant. She adhered to her version throughout. The girl remained
unshaken throughout
the cross-examination to which she was subjected
by the defence attorney. Had she invented the story or had been
prompted to tell
her story it is most unlikely that she would have
remained unshaken under cross-examination. To me the complainant has
been an
intelligent child of five (5) years who gave her evidence in
a convincing manner.
[27] With regard to the
identity of the person who had raped her it was put to the
complainant that there were three Sihle Cele’s
in her area. The
complainant clearly distinguished the Sihle she was referring to from
the rest, who could have existed in the
case, by stating that the
said Sihle was the brother to Mpume and residing at the homestead
above hers. Her evidence in his respect
finds corroboration in the
evidence of Mnguni that Mpume was her daughter and that the appellant
frequented her homestead situated
above hers. Though the appellant
and Mpume were not a brother and sister but they were cousins,
therefore related to each other.
On appellant’s version he and
the complainant knew each other very well since the appellant used to
find the complainant
at his aunts’ place on his return from
school in the afternoon.
[28] Asked whether she
had seen the Sihle she was referring to in court, the complainant
answered in the affirmative and that she
had seen him the previous
day outside court. Asked what the Sihle she had seen the previous day
was wearing, she said that he had
been wearing a pair of jeans, white
jacket and black shoes, and which was common cause. No one could have
known or expected that
such a question would be put to her. The
complainant’s apt description of Sihle who allegedly raped her
put it beyond reasonable
doubt that she knew the person who was the
subject of discussion. In the circumstances, it can safely be
concluded that the complainants’
evidence was of good quality,
impeccable and free from any suggestibility of imaginativeness.
[29] I now turn to
decide whether the complainant was raped by the appellant as the
complainant alleged or by another person. In
R v 1948(4) SA 419(G)
at 422
BokJ said that where the complainant in respect of a
sexual crime is a child under the age of six years corroboration
linking the
accused to crime was required. However, if the
circumstances eliminate the reasonable possibility of a false
identification or
motive to lie, the desirability of a particularly
cautious approach diminishes or disappears. See
R v J
1966 SA 88
(SRA) at 94-95.
[30] The appellant
averred that on the day in question he was at Ntombela homestead
where there was a traditional function. At the
said homestead the
appellant was in the company of Sphamandla, Sanele and Sihle Cele. He
remained there until sunset and when he
left Ntombela homestead for
his home it was already dark. Mr Butler for the appellant has
submitted that although there was real
suspicion that the appellant
was the perpetrator, his version was, though weak in some respects,
not shown to be false beyond reasonable
doubt in the trial court and
that therefore he ought to have been acquitted on the charge.
[31] For an alibi to be
rejected as false the evidence adduced must disprove the alibi. The
alibi does not have to be considered
in isolation. The correct
approach as stated in
R v Hlongwane 1959(3) SA 337(A) at 341A
is
to consider the alibi in the light of the totality of the evidence in
the case, the court’s impression of the witnesses.
See also
S
v Liebenberg 2005(2) SACR 355(SCA) 358 para 14.
In
R v Biya
1952(4) SA 514(A) at 521
Greenberg J said:
“
If on the
evidence there is a reasonable possibility that the alibi evidence is
true it means that there is the same possibility
that he had not
committed the crime.”
[32] In
S v V 2000(1)
SACR 453(SCA) at 455 a-b
Zulman JA said:
“
It is trite
that there is no obligation upon an accused person, where the State
bears the onus, to convince the court. If his version
is reasonably
possibly true he is entitled to his acquittal although his
explanation is improbable. A court is not entitled to
convict unless
it is satisfied not only that the explanation is improbable but that
beyond reasonable doubt it is false. It is
permissible to look at the
probabilities of the case to determine whether the accused’s’
version is reasonably true
but one subjectively believes him is not
the test.”
In the present case it
is common cause that the evidence of the evidence of the complainant
was treated with caution by the court
a
quo.
The learned
magistrate demonstrated this by seeking and finding corroboration in
the evidence of the complainant’s grandmother,
Mnguni and the
gynaecological examination results performed on the complainant two
days after the rape incident. The court a
quo
accepted the
evidence of the complainant as true and correct and rejected the
evidence of the appellant as false beyond reasonable
doubt.
[33] On the other hand,
the evidence of the appellant was found to have been sharp in
contrast to the evidence of the appellant’s
aunt. She testified
that on the day in question she saw the appellant walking alone past
her homestead and that at the time it
was before sunset. He even
shouted at her children telling them that he was not coming to her
homestead on the day in question.
The appellant mentioned it for the
first time under cross – examination that on the day in
question he went to the complainant’s
homestead to buy four
cigarette sticks. During his evidence in-chief he distanced himself
as far as possible from the complainant’s
homestead. Had the
appellants’ aunt not seen him before sunset, she had no reason
to lie.
[34] The appellant was
arrested on Monday and the rape incident was alleged to have taken
place on Saturday and he made no mention
of his alibi to the police
and the complainant’s grandmother at the time of his arrest. If
it was true that at the time the
complainant was raped he was at
Ntombela homestead he would have disclosed this alibi at the first
opportunity, not two years after
the incident. This would also have
afforded the State an opportunity to investigate it, and obtain
statements from witnesses in
this regard. On his version the
appellant was in the company of three persons at Ntombela homestead.
In addition, he was a choir
conductor and his presence there could
not have escaped the sight and the attention of many people who
attended the occasion. It
is highly improbable that it could not
reasonably possibly be true that none of the said persons could have
come out at the time
of the appellant’s arrest or sometime
later and told the police or the prosecution that appellant was on
the day in question
and at the particular time in point at the
Ntombela homestead. In
Thebus and another v S
[2002] 3 All SA 782
(SCA),
where the alibi was raised for the first time at the
trial, similarly, two years after the incident, the court inferred
from the
failure of the appellant to advise the police at the time of
his arrest or the prosecutor at the time he was charged and the
failure
of other witnesses to do so that his alibi had no truth in it
at all. Upon consideration of the totality of the evidence in the
present case, I conclude that the alibi by the appellant was a
product of a recent fabrication and therefore false.
[35] However, in order
to secure conviction the State was obliged to prove the accused’s
guilt beyond reasonable doubt. The
DNA analysis, which could have
been of much assistance in linking the appellant to the commission of
the crime charged, was not
done on the ground stated above. What now
remains is the evidence of the complainant implicating the appellant.
Since the case
against the appellant rested entirely upon the
evidence of a single witness of tender age, her credibility was
therefore of utmost
importance. In
S v S, supra
,
at 60 a-b
Ebrahim JA stated that a rational decision as to the credibility of a
witness (especially a child witness) can be arrived at only
in the
light of a proper analysis by means of testing it against likely
short comings in such evidence.
[36] It was common cause
that the complainant and the appellant knew each other very well. And
that the complainant was sexually
abused. The appellant denied that
he raped the complainant. In order to reduce the risk of wrong
conviction the court a
quo
applied double caution on the
ground that the complainant was a single witness of tender age. When
the rape case is made the following
requirements should be met: That
it was made at the earliest possible opportunity, it must be made
voluntarily and the complainant
must testify. In the circumstances of
the present case the learned magistrate found it unfair to strictly
apply these requirements.
It was undeniable fact that the complainant
took the opportunity offered to her to disclose the rape to her
grandmother. In fact
she first made a report to the daughter of the
Thulelani Ntsendani, her grandmother, on her arrival. The person to
whom she first
made report had at the time of the hearing passed
away. But a report was made to the grandmother that she experienced
pains when
she urinated. After examining her, the grandmother asked
the complainant as to what had happened to her. In my view, a conduct
which can reasonably be expected from an adult, after the rape
incident, could not legitimately and reasonably be expected from
a
rape complainant of tender age. However, it does not follow that the
test applicable in determining the guilt of the accused
should be
dispensed with.
[37] Though it was
undisputable in the present case that the complainant’s
evidence as a witness was clear and satisfactory
in all material
respects she has been criticised for her failure to comment on the
version of the appellant when called upon to
do so by the defence
attorney. In my opinion her evidence must be treated with
understanding that she was a child and most probably
not
understanding the import of a comment on the version of the
appellant.
[38] I fully agree with
the learned magistrate that though the complainant did not comment on
the appellant’s statements,
she answered the questions put to
her in a clear and straight forward manner, and that most things she
said were confirmed by other
state witnesses. Her evidence relating
to the rape incident is clear, simple and straight forward. In my
view it was completely
free from contradictions and improbabilities
which could reasonably have been expected to be inherent in the
evidence of a witness
of such a tender age. She narrated the rape
incident with remarkable brilliance and intelligence which is often
not found even
in some of the adult witnesses.
[39] I agree with the
learned magistrate that when the complainant referred to the
appellant’s home, she was in fact referring
to the home of the
appellant’s aunt where she knew the appellant to have been
resident. When she referred to Mpume as the
sister to the appellant,
she correctly thought that Mpume was the appellant’s sister. I
have dealt with the relationship
of the appellant and Mpume which was
not disputed above. That the complainant mistook the relationship
between the appellant and
Mpume as that of a brother and a sister did
not detract from the truth of her evidence and have an adverse
bearing on her credibility.
Instead, it strengthened her evidence as
to the identity of her rapist. She had therefore no doubt as to which
Sihle she was referring
to. Apart from the appellants version that he
used to find the complainant at his aunt’s place on his return
from school,
it was not in dispute that the appellant used to visit
Mrs Ntsendani (complainants grandmother) younger children at the
homestead
where the complainant was also residing.
[40] Both under
cross-examination and questioning by court the appellant was adamant
that the 9
th
of August 2008 fell on Monday. Asked if it
could be proved that it fell on a Saturday he would abandon his
version the appellant
answered in the affirmative. However,
notwithstanding that the 2008 year calendar was shown to the
appellant that the 9
th
of August 2008 fell on a Saturday,
he insisted that it fell on a Monday. This, in my view, revealed the
appellant as an incredible
and dishonest witness. By so being adamant
despite having been shown a 2008 calendar clearly revealed that the
appellant had not
confused the dates but that he had been
deliberately untruthful when he said that the 9
th
of
August 2008 fell on a Monday. The appellant’s aunt testified
that she saw him walking past her home, whereas the appellant
said
that he did not see her on that day since when he went past her home
it was already dark.
[41] The complainant’s
failure to comment on certain statements put to her by the defence
attorney could not, in my view,
be regarded as an implied admission
by the complainant of the appellant’s evidence on that point
but it could rather be attributable
to her inexperience with the
resultant lack of the appreciation of the import of her comment on
the statements put to her by the
defence attorney on behalf of the
appellant. She was subjected to a lengthy and tough cross-examination
but she adhered to her
version throughout. Her credibility was not
effectively challenged.
[42] The surrounding
circumstances exclude any reasonable possibility of mistaken identity
or of any potential motive to falsify
the identity of the offender,
and could not even reliance on the cautionary rule suggest one. Also,
all the surrounding circumstances
and probabilities exclude any
reasonable possibility that someone other than the accused
perpetrated the offence. It is apparent
from the above that the
merits of the complainant and the demerits of the accused as a
witnesses were beyond question. See
R v J supra, at 94D.
Threfore,
I am satisfied that the guilt of the appellant was proved beyond
reasonable doubt.
Sentence
[43] In the present case
it was common cause that the charge of rape fell within the ambit of
section 51(1) of the Criminal Procedure
Act 105 of 1997 (the Act) and
that the court was accordingly obliged, subject to the provisions of
s 51(3) and (b), to impose a
sentence of life imprisonment. The
learned magistrate after weighing and considering all the proper
factors, concluded that there
were no substantial and compelling
circumstances justifying the imposition of a lesser sentence than the
one prescribed. In
S v Van Wyk 2000(1) SACR 45(C) 49j-a,
it
was held that substantial and compelling circumstances must include
those which previously were referred to as mitigating circumstances,
and which include all the circumstances which might indicate a
diminished moral blameworthiness on the part of the offender.
[44] In
S v M 1994(2)
SACR 24(A)
the appellant was 20 years old at the time of the
commission of the offences and his youthfulness played a major
consideration in
reducing his death sentence to life imprisonment. In
S v Gqamana 2001(2) SACR 28(C) 37j-a,
the mitigating factors
were the youth of the accused (during the commission of an offence he
was 20 years 8 months), the fact that
the complainant suffered no
real physical injury and that the mental sequelae of her experience
were not of great seriousness,
nor were they apparently of a long
lasting nature complied with the fact that the accused did not use a
weapon in the commission
of the offence.
[45] In
S v Blaauw
2001(2) SACR 255,
the accused, a 18 year old man had been
convicted of the rape of a five year old girl. The medical evidence
indicated that the complainant
suffered reasonable serious genital
injuries and that she appeared very frightened at the time of the
medical examination after
the rape. There was a possibility that the
rape could cause permanent emotional, psychological and/or medical
problems in the long
term. These were many factors the accumulative
effect of which forced the court to reconsider the prescribed
mandatory sentence
of life imprisonment. These factors included the
very unfavourable personal background of the accused, the effect of
liquor on
him at the time he committed the offence. In
S v Nkawu
2009 (2) SACT 402 (ECL) para 19,
the factors that the accused was
young, gainfully employed, the injuries he caused to the complainant
by his act of raping her were
not serious or permanent and she
experienced no psychological trauma that was out of the ordinary,
taken cumulatively, were held
to constitute substantial and
compelling circumstances that justified the imposition of the
sentence other than life imprisonment.
(A 21 year old accused had
broken into the house of the complainant abducted her and raped her.)
[46] Rape is a crime of
utmost gravity, and while accepting that the offence the appellant
committed in this case was repulsive
and that the interests of
community required a severe sentence, there were factors the
cumulative effect of which constituted substantial
and compelling
circumstances that justified the imposition of the lesser sentence
than life imprisonment. Such factors included
that there were chances
of rehabilitation since the appellant is relatively young (19 years
old ), a scholar and a first offender,
he was abandoned by his father
at an early age and he apparently grew up without a father figure,
the appellant had been detained
for a year awaiting trial, and the
medical evidence did not show that the complainant’s injuries
were of a permanent nature,
and she sustained any psychological harm.
In the circumstances, the desirability or necessity of psychotherapy
for his rehabilitation
should not have been under emphasized.
[47] The magistrate
attached too little weight to the appellant’s mitigating
circumstances and overemphasised the deterrent
element. The judicial
officer has to guard against overemphasising the element of
deterrence at the cost of the offender’s
rehabilitation and
return to the community to the benefit of himself, his family and
community. See
S v N
1991 (1) SACR 271(C).
[48] The learned
magistrate, in my view, erred in not finding the factors referred to
above to constitute substantial and compelling
circumstances that
justified the imposition of a lesser sentence than life imprisonment,
and in which event this court is entitled
to interfere with the
sentence imposed by the court a
quo
.
Order
[49] Accordingly, the
order I propose is the following:
(a) Appeal against
conviction is dismissed and the conviction by the court a
quo
is confirmed.
(b) Appeal against
sentence is upheld, and the sentence imposed by the court a quo is
set aside and replaced by the following sentence:
(i) the appellant is
sentence to fifteen (15) years’ imprisonment, the sentence is
antedated to 19 May 2010 ;
(ii) it is recommended
that the appellant must as soon as possible be placed in a
psychiatric treatment and rehabilitation programme
in prison.
_____________
Madondo J
_____________
Seegobin J I agree, it
is so ordered.
Date reserved on: 17 May
2012
Date handed down: 17
July 2012
Counsel for Appellant:
Adv Butler
Instructed by: Justice
Centre Pietermaritzburg
Counsel for Respondent:
Adv Ludick
Instructed by: Director
of Public Prosecutions Pietermaritzburg