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[2011] ZAFSHC 75
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Ali v S (A41/09) [2011] ZAFSHC 75 (12 May 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A41/09
In
the appeal between:
VUYISILE
THABISO ALI
...............................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM
:
MOLOI, J
et
KUBUSHI, AJ
HEARD
ON:
7 MARCH 2011
_____________________________________________________
DELIVERED ON:
12
MAY 2011
KUBUSHI, AJ
[1] This is an appeal
against the judgment from the Regional Magistrate’s Court
Bloemfontein. The appellant was charged and
convicted of rape of a
five year old girl. He was sentenced to life imprisonment on the 24
October 2008. The appellant originally
filed a notice of appeal
against sentence only, however it was argued by his legal
representative that since the appellant had
an automatic right of
appeal such appeal embraced both conviction and sentence. This court
had to decide on both conviction and
sentence.
[2] The facts of the case
are that on the 28
December 2006 appellant waylaid
complainant, a five year old girl, from the street and took her to
his place where he raped her.
He was seen by Marcia Qoto (Thandeka),
one of the state witnesses when he grabbed the complainant from
amongst her friends and
walked away with her. The rape was discovered
by Maria Mothwana, complainant’s neighbour, who noticed that
the complainant
was walking with difficulty and the rape was
subsequently reported to the police.
[3] As regards the
conviction, Mr Makhene for the appellant, in the Heads of Argument
stated that:
a. the trial court did
not apply the cautionary rule to the evidence of the complainant who
was a single witness and a child witness.
The argument was reiterated
at the appeal hearing and Mr Makhene also submitted that the trial
court did not refer to a single
case law on the issue and that it
(the trial court) mentioned the cautionary rule in its judgment just
in passing.
b. the trial court erred
in accepting the evidence of the complainant as admissible although
the complainant delayed in reporting
the rape. The delayed reporting
of the rape cast doubt as to whether this complaint was made freely
and voluntary or not.
c. the court erred in
rejecting the alibi defence of the appellant as being reasonably
possibly true.
[4] Adv Giorgi
respondent’s legal representative argued that the trial court
applied the cautionary rule. She contended that
the trial court
relied on the evidence of Marcia Qoto and that of the nursing sister
who examined the complainant after the incident
as corroborating the
complainant’s evidence as a single witness. She argued further
that as a child of five years the complainant
was able to positively
identify the appellant.
[5] As regards sentence
appellant’s legal representative declared that the sentence
imposed by the trial court was unjust
and disproportionate to the
offence. He contended that there are a number of authorities that
state that it is not in every case
where the prescribed sentence is
imposed. There are cases where it has been held that some rapes are
more serious than others and
referred the court to the case of
S
v TYATYAME
1991 (2) SACR 1
(SCA) as an example of a serious
rape where the complainant was severely injured.
[6] Respondent’s
legal representative contended that the sentence imposed by the trial
court was proportionate and just and
that there were no circumstances
justifying the imposition of a lesser sentence. She based her
argument on the fact that the complainant
was injured, that the
complainant’s personal circumstances were not peculiar and that
society needed to be protected from
people like the appellant.
[7] The issues to be
answered by this court as regards conviction are whether the trial
court
(a) failed to apply the
cautionary rule to the evidence of the complainant who was a child
witness and a single witness in a sexual
case;
(b) erred in accepting
such evidence as admissible although the complainant delayed in
reporting the rape.
And as regards sentence
this court is to decide whether the sentence imposed by the trial
court was unjustified and disproportionate
to the offence.
[8] The principle as
enunciated in
S v DE VILLIERS AND ANOTHER
1999 (1) SACR
297
(OPD) is that a complainant in a sexual case ought to make her
complaint at the first opportunity that it could reasonably be
expected
of her to do so. My view is that the trial court did not err
in accepting the evidence of the complainant even though it was
reported
a day later. Such a delay is to me not unreasonable. Taking
into account that the complainant was a child of five years, what had
happened to her was something very unusual to her and it might not
have been easy for her to report immediately after the incident
either to her grandmother or her mother. She might have been afraid
because of the threat made to her by the appellant or just
merely
ashamed to tell her grandmother or her mother. At that age, she could
also have not known how to deal with the matter. I
am satisfied that
the delayed reporting of the rape, as in this case, does not, as
argued by the respondent’s legal representative,
cast any doubt
as to whether this complaint was made freely and voluntary or not.
This case is distinguishable from
S v DE VILLIERS AND ANOTHER
,
supra, where the appeal court upheld a delay of approximately one
year in disclosing the rapes as an unreasonable factor against
the
acceptance of complainant’s evidence.
[10] It is established
judicial practice for trial courts to apply cautionary rules to the
testimony of young children and single
witnesses and also to adopt a
cautionary approach to complaints in sexual cases. The purpose of the
cautionary rule, as stated
by DT Zeffert in
The South African Law
of Evidence
2
nd
ed at p961, is to assist the court in
deciding whether or not guilt has been proved beyond reasonable
doubt.
[11] It is common cause
that the complainant in this case was a single witness in regard to
the commission of the offence. She was
also a child witness and a
complainant in a sexual case. The trial court had to treat her
evidence with the required caution. In
my view the trial court’s
treatment of the evidence in this case constituted misdirection on
its part in that it did not
apply the cautionary rule. It is not
evident from its reasons for judgment that the evidence in this case
was treated with the
required caution.
[12] In
S v AVON
BOTTLE STORE (PTY) LTD AND OTHERS
1963 (2) SA 389
(A) it was
stated that the best indication that there was proper appreciation of
the risks is naturally to be found in the reasons
furnished by the
trial court. The trial court must demonstrate that it has in fact
heeded the warning and that it was well aware
of the dangers of wrong
conviction by its treatment of the evidence. See also
R v MANDA
1951 (3) SA 158
(AD).
[13] It is apparent from
the trial court’s reasons for judgment that it was aware that
it ought to approach the complainant’s
evidence with caution.
The trial court mentioned in its judgment that
“
whilst I am
cautious of the fact that the complainant herein is a single witness
regarding the rape itself and also that she is
a child witness …”,
however it failed to
fully appreciate the evidence of the complainant and in my view thus
did not treat the evidence with the required
caution. In
S v
MGENGWANA & OTHERS
1964 (2) 149 (CPD) the court observed
as follows:
“
The
difficulty I have with this part of the magistrate’s judgment
is that although he states that it is necessary to approach
the
evidence with caution, there is nothing in his treatment of the
evidence that indicates that he did adopt a cautious approach
to this
evidence”.
[14] There is nothing in
the trial court’s treatment of the evidence in this case that
indicates it adopted a cautionary approach
to the complainant’s
evidence. As contended by Mr Makhene, the trial court mentioned the
cautionary rule only once and in
relation to the acceptance of the
evidence of Thandeka as corroborating that of the complainant. In
R
v MANDA
,
supra
, which dealt with the evidence of
children, which is apposite in this case, the court at 163H commented
that a brief treatment
of the matter does not in itself reveal a full
appreciation of the danger of relying upon the evidence of the
children.
[15] The finding of this
court is that in the course of its adjudication upon the guilt of the
appellant in this case, the trial
court misdirected itself by failing
to apply the cautionary rule to the evidence of the complainant. This
misdirection is of a
sufficiently serious nature to constitute an
irregularity leaving this court at large to reconsider the case
against the appellant
on the record.
[16] From the record it
is apparent that the complainant’s evidence was clear and
satisfactory in every material respect.
For a child of five years,
she was a reliable and truthful witness and she did not contradict
herself in any material way. She
was also able to positively identify
the appellant. Immediately she was ready to tell her grandmother who
the perpetrator was she
named him and she also positively identified
the house where the incident took place and where the appellant
resided.
[17] The cautionary rule
requires that the court having warned itself of the danger inherent
in the acceptance of such evidence,
it must look for some safeguards
like corroboration in order to reduce the risk of wrong conviction.
In casu
the trial court sought and found in the evidence of
Thandeka what it considered to be corroboration of the complainant’s
evidence implicating the appellant in the offence. The evidence of
Thandeka, that she saw appellant grab the complainant and walk
away
with her, served as that of an independent source that connected the
appellant with the crime. She had no interest or bias
adverse to the
appellant and had no reason to lie about what she saw. She was an
honest and truthful witness and did not even contradict
herself in
the witness box.
See
R v MOKOENA
1932 OPD 79
and
R v MANDA
,
supra
, at 162E.
[18] The trial court also
considered the probabilities of both the State’s evidence and
the defence’s evidence.
S v SINGH
1975 (1) SA 227
NPD at 228. It rejected as false the alibi defence of the appellant
and also rejected the evidence of the defence’s witnesses
as
being not reasonably possibly true. It was, in my view, entitled to
do so, on the basis of the strong evidence of Thandeka that
the
prosecution had placed before it linking the appellant to the
offence.
[19] After proper
consideration of the evidence with the caution required in law, I am
beyond all reasonable doubt certain that
the story told by the
complainant and as corroborated by Thandeka is the truth. I am
therefore satisfied that a reasonable court
properly informed would
have inevitably convicted the appellant. The conviction is therefore
confirmed.
[20] The crime, of which
the appellant was convicted, falls within the provisions of the
Criminal Law Amendment Act, 105 of 1997
as amended (“the Act”).
In terms of
section 51
(1) read with
part I
of 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 there are substantial and compelling circumstances
which will justify the imposition
of a lesser sentence.
[21] In determining
whether there are substantial and compelling circumstances which
justified the imposition of a lesser sentence
the trial court,
rightly so, considered the particular circumstances of the case in
accordance with the well known traditional
triad of factors relevant
to sentence and concluded that there were no circumstances justifying
a deviation from the prescribed
minimum sentences. See
S v
MALGAS
2001 (1) SACR 469
(SCA). I do not agree with
this finding.
[22] When considering all
the factors of the case my opinion is that the imposition of a life
sentence in this case was unjust and
disproportionate to the offence.
The trial court overemphasised the gravity of the offence and the
interests of society and underplayed
the personal circumstances of
the appellant. In reaching this conclusion, the trial court was
swayed by the fact that the trial
was being finalised four weeks
before the activism period of violence against women and children.
[23] At the time of
sentencing the appellant was 34 years of age. He was single and had a
daughter of eleven years in grade 3. He
was in a stable employment,
having being employed by Garden Village since 1996. He had fixed
property – a house. He maintained
his daughter who was staying
with her maternal grandmother because her mother passed away. He paid
R200.00 per month towards the
maintenance of the said child. Since
his incarceration there was no one maintaining the child as the
grandmother did not work and
the maternal uncle who was helping had
since passed away. He was a first offender and had been in custody
for this offence since
he was arrested on the 28 December 2006 i.e.
twenty two months.
[24] It is worth noting
that in the process of sentencing, while each of a number of
mitigating factors when viewed in isolation
may have little
persuasive force, their combined impact may be considerable. In
S
v VILAKAZI
2009 (1) SACR 552
(SCA) the court commented that
once it becomes clear that the crime is deserving of a substantial
period of imprisonment the questions
of whether the accused is
married or single, whether he has children or not, whether or not he
is employed are in themselves largely
immaterial to what that period
should be. But they are none the less relevant in another respect.
[25] A material
consideration, according to
S v VILAKAZI
,
supra
,
is whether the accused can be expected to offend again. While that
can never be confidently predicted, his or her circumstances
might
assist in making at least some assessment. In this case, as in the
present case, the accused had reached the age of 30,
in casu
32, without any brushes with the law. He was in a stable employment
and apparently stable family and taking care of his daughter.
These
circumstances are not indicative of an inherently lawless character.
[26] I am satisfied that
cumulatively considered the appellant’s personal circumstances
must be regarded as substantial and
compelling justifying the
imposition of a lesser sentence. I therefore find that the trial
court misdirected itself in finding
that no substantial and
compelling circumstances existed.
[27] The court made it
clear in
S v MALGAS
,
supra
, that even when
“
substantial
and compelling circumstances are found to exist, the fact that the
Legislature has set a high prescribed sentence as
‘ordinarily
appropriate’ is a consideration that the courts are to
‘respect, and not merely pay lip service to’.
When
sentence is ultimately imposed, due regard must therefore be paid to
what the Legislature has set as a ‘bench mark’.”
[28] I therefore consider
the sentence of 25 years imprisonment as appropriate and just in the
circumstances.
[29] In the circumstances
I would make the following order:
1. The appeal succeeds as
far as sentence is concerned.
2. The conviction stands.
3. The sentence imposed
by the trial court is set aside and replaced by the following:
“
25
years imprisonment antedated to the 24 October 2008”.
________________
E.M.
KUBUSHI, AJ
I concur and it is so
ordered.
____________
K.J. MOLOI, J
On behalf of the
appellant: Adv. J.S. Makhene
Instructed by:
Legal Aid South Africa
2
nd
Floor St
Andrew Centre
113 St Andrew Street
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Giorgi
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp