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2011
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[2011] ZAFSHC 63
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Jansen v S (A68/09) [2011] ZAFSHC 63 (24 March 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : A68/09
In
the Appeal between:-
GEORGE JANSEN
….........................................................................
Appellant
and
THE STATE
…................................................................................
Respondent
HEARD ON:
14 MARCH 2011
CORAM:
MOLOI, et LEKALE, AJ
__________________________________________________________
JUDGMENT BY:
MOLOI, J
__________________________________________________________
DELIVERED ON:
24 MARCH 2011
APPEAL JUDGMENT
__________________________________________________________
MOLOI,
J
[1] The appellant was
found guilty by the Regional Court of contravening section 3 of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act No.
32 of 207 in that he unlawfully and intentionally committed an act of
sexual penetration of the complainant,
P N, by inserting his penis
into her vagina without her consent. The trial court thereupon
sentenced him to life imprisonment.
He appealed against both the
conviction and sentence having an automatic right to appeal in terms
of
section 309
(1) (a) of the
Criminal Procedure Act No. 51 of 1977
,
as amended.
[2] It was contended on
the appellant’s behalf that the state failed to prove the
appellant’s guilt beyond a reasonable
doubt:
S v Van der
Meyden
1999 (1) SACR 447
(W). This contention was based on the
fact that the complainant was a single witness in as far as the rape
itself was concerned
and that the trial court did not apply the
cautionary rule relating to single witnesses as stated in
R v
Mokoena
,
1932 OPD 79.
It was also contended that the complainant
being only 10 years old, the court must have guarded against
admitting the evidence
of a child without much ado.
[3] According to the
complainant on 6 January 2008 she visited her friend, Maria, to play.
It was raining and cold. Maria was asleep.
She started playing alone.
The appellant waved at her to go to him. She did not comply. The
appellant moved towards her and she
tried to run away. The appellant,
however, grabbed her arm and closed her mouth with his other hand as
she was crying. The appellant
dragged her to his house, closed and
locked the door as he tied her hands with a handkerchief. She
demonstrated how he lied on
top of her on the bed and did “
funny
things”
to her. In the process she felt pain in her vagina
but did not know what was hurting her. People outside forced the door
open and
entered the house. The police were called and found her at
Sephamla’s place. She did not know the appellant before but
knew
where he stayed. She testified that Sephamla beat her up on her
legs with a stick while asking where she had been. Sephamla is
Maria’s mother and the first report was made to her.
[4] Sephamla testified
she was the appellant’s neighbour. That on 6 January 2008 she
was sleeping as it was raining while
the complainant and Maria (her
daughter) were playing outside. She called the complainant and Maria
into the house but only Maria
responded. When she called the
complainant again the complainant was not there. She sent Maria to go
and look for the complainant.
When the complainant eventually arrived
she wanted to know where the complainant had been and threatened to
beat her up if the
complainant did not tell her the truth. It was
then that the complainant told her that the appellant took her to his
house and
he said to her it was cold outside. He also promised to
give her money and sweets. The appellant took her to the bedroom.
Another
man knocked on the appellant’s door. She saw a group of
people in front of the appellant’s house. Eventually the
complainant
showed her what happened to her and the police were
called.
[5] On 7 January 2008 a
medical practitioner examined the complainant and noted his findings
on the customary J88 form. He noted
that the complainant was agitated
as a result of emotional distress though there were no physical
injuries save for the two tears
to the hymen and vaginal
discharge/bleeding consistent with sexual assault. The report was
received in evidence by consent. The
appellant was legally
represented and the contents thereof were admitted. The complainant
weighed a mere 20kg which was too low
for her age. She was 10 years
old.
[6] The appellant’s
defence was a denial of having had sexual intercourse with the
complainant. He raised an
alibi
that on the day in question he had been to his sister’s
place since the morning. That in the afternoon when he came back to
his house, he listened to the radio and heard his neighbour
(Sephamla) calling for the complainant. He told Sephamla that the
complainant passed his place earlier to her, Sephamla’s, place.
The complainant was dragged outside the neighbour’s
house and
slapped three times on her head by Sephamla. He knew the complainant
was sent to the shops.
[7] The court called a
witness, Nelsie Moabi, a teacher who testified that she saw a group
of people on the scene i.e. the appellant’s
house. She
approached the complainant who was standing on the stoep of the
appellant’s house crying. She asked the people
what was taking
place and they referred her to the complainant. When she asked the
complainant what was wrong, the complainant
replied that
“an
old man caught me and took me to his house and then took me and put
me on the bed”.
The complainant continued crying
which broke her heart realising what had happened to the ‘child’,
the complainant.
The people around were also heartbroken by what
happened to the complainant.
[8] Mr. Pretorius, of the
Legal Aid Board, representing the appellant, argued before us that
the evidence of Sephamla contradicted
that of the complainant in that
Sephamla stated that the complainant was playing with Maria outside
when she called them into the
house whereas the complainant said
Maria was sleeping in the house and she continued to play alone
before the appellant grabbed
her. Mr. Lencoe on behalf of the
respondent argued that the contradictions, if any, were not material
in that they did not relate
to the allegations against the appellant.
The court agrees with that view and rules that only if the
contradictions are material,
i.e relate to the elements of the
offence charged, would they impact negatively on the evidence
adduced.
[9] The appellant’s
denial of having had sexual intercourse is directly contradicted by
the evidence of the complainant that
she was rescued by the people
that opened the door from the outside of the appellant’s house
and the evidence that the complainant
was standing on the stoep of
the appellant’s house and was crying. Moabi’s evidence
was further that a group of people
were on the scene and were all
heartbroken by what happened to the child. Moreso, the medical
evidence of the doctor who examined
the complainant and which was
admitted as correct by consent confirmed that the complainant was
sexually violated. This court cannot
find fault with the assessment
of the evidence by the trial court in that there was corroboration of
the complainant’s evidence
though she was a single and child
witness.
[10] Mr. Pretorius
further argued that the trial court should have found that there were
substantial and compelling circumstances
which would justify the
trial court’s departure from imposing the prescribed minimum
sentence of life imprisonment. His argument
was based on the fact
that the appellant was 63 years old and the complainant had not
suffered any other physical injuries save
for those caused by sexual
intrusion. This argument falls far too short to prove the existence
of substantial and compelling circumstances
even if taken
cumulatively. Mr. Lencoe, for the respondent argued that the fact
that the appellant was 63 years old, had married
daughters who could
easily have been the complainant’s mother, was, on the
contrary, an aggravating factor. The fact that
the appellant was a
first offender in as far as rape was concerned was a neutral factor
the legislature having ordained first offenders
to be subject to the
prescribed sentence. The court agrees and finds no fault with the
trial court’s ruling in this regard
and confirms there were no
substantial and compelling circumstances justifying a departure from
the imposition of the prescribed
sentence of life imprisonment.
[11] The court is
authorised to depart from the imposition of the prescribed sentence
of life imprisonment only where substantial
and compelling
circumstances are found to exist
:
S v Malgas,
2001 (1) SACR 469
SCA at 482 e and
S
v Matyityi
2011 (1) SACR 40
SCA at 53 (f).
The finding should be based on
“truly convincing
reasons”
and not at the whim of the court.
[12] In the result the
appeal against both the conviction and sentence is DISMISSED.
____________
MOLOI, J
I concur and it is so
ordered.
______________
LEKALE,
AJ
On behalf of the
Appellant: Mr. K Pretorius
Bloemfontein Legal Aid
Centre
2
nd
Floor, St
Andrew Centre
St Andrew Street 113
BLOEMFONTEIN
9300
And on behalf of the
State: Mr. Lencoe
The Director of Public
Prosecutions
3
rd
Floor
Waterfall Centre
BLOEMFONTEIN
9300