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[2024] ZALMPPHC 4
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M.J.M v S (A13/2023) [2024] ZALMPPHC 4 (16 January 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA;
LIMPOPO
DIVISION; POLOKWANE.
CASE
NO: A13/2023
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
16 January 2024
AJ
MANZINI
In
the matter between:
M[…]
J[…] M[…]
:
APPELLANT
And
THE
STATE
:
RESPONDENT
JUDGMENT
HEARD
ON:
24
NOVEMBER
2023
CORAM:
SEMENYA
ADJP AND
MANZINI AJ
Delivered:
This judgment was handed down electronically by circulation to the
parties' representatives by email and publication
and release to
SAFLII. The date and time for hand-down is deemed to be
16 January
2024 at 16:00.
MANZINI
AJ:
[1]
This
matter
came
before
the
High
Court
as
an
appeal
against
the
conviction and sentence of the appellant who was arraigned in the
Regional court of Modimolle of one count of contravention
of section
3 of the Criminal Law (Sexual Offences and Related Matters)
Amendment
[1]
Act (hereinafter
referred to as "Sexual Offences Act"). He was convicted as
charged by the learned Regional magistrate
Mr P Manthata on
15
March 2022.
Following
his conviction, the appellant was sentenced to twelve years
imprisonment on
21
July 2022.
It
was further ordered in terms section 50(2) of the Sexual Offences Act
that his name be recorded in the National Register for
Sexual
Offenders. He was also declared unfit to possess a firearm.
[2]
The appellant
brought an application for leave to appeal against the conviction
only. The application was granted by the trial court
on
08
March 2023
to
this court. When granting the application, the court a
quo
remarked
that with the facts of this case another court may come to a
different conclusion.
[3]
The facts of
this matter are briefly that the appellant is the stepfather of the
complainant in this matter, and they were staying
together with the
complainant's mother. One evening the complainant was in the living
room with the appellant and her mother. She
asked for the appellant's
cell phone so that she can watch videos. He gave it to her and she
went to her bedroom to watch those
videos. After watching the videos,
she put the cell phone on the pillow. The appellant entered her
bedroom and pulled off her panties.
He then inserted his finger
inside her private part.
[4]
The
complainant's mother, who was sleeping in her bedroom at that time,
woke up to go to the bathroom and she noticed that the complainant's
bedroom door was opened. As she went to investigate, she saw the
appellant coming out of the complainant's bedroom. She inquired
from
both the appellant
and the
complainant
what the
former
was
doing in the latter's bedroom. She was told by both of them that the
appellant went in there to fetch his cell phone. The mother
later
went to complainant's bedroom and inquired again what was happening.
The complainant repeated her previous answer that the
appellant was
there to fetch his cell phone. She lifted the blanket from the
complainant to inspect her and noticed that she was
not wearing her
panties. She probed again why the appellant was in her bedroom and
the complainant finally informed her that the
appellant inserted his
finger in her private parts. The complainant was 11 years old and in
Grade 7 during the incident. When she
was testifying in court, she
was 12 years old and in Grade 8.
[5]
Following
the
incident,
criminal
charges
were
laid
against
the
appellant and
the complainant was taken for medical examination. She was examined
by Dr Chioma Blessing Uzokwe, a medical practitioner
at the
government hospital. According to the doctor's observations, the
complainant's private part had a fresh superficial laceration
at
06:00 position. The area was mildly tender. Her conclusion was that
'there appears to be a case of a sexual assault with fingers
as a
possible penetrating organ'. The appellant, who also testified
in
his
defence,
denied
that
he
inserted
his
finger
in
his
stepdaughter's private part. He insisted that he was merely in her
bedroom to fetch his cell phone.
[6]
It
is imperative that the well-established principles that are
applicable in matters of this nature where the appeal court deals
with the findings of fact by the trial court are set out. It is a
trite principle that the findings
of
fact of the trial court are presumed to be correct unless there are
demonstrable and material misdirection on its part. Those
findings
will only be disregarded if the recorded evidence shows them to be
clearly wrong. In the same vein, the credibility findings
of the
trial court cannot be disturbed unless the recorded evidence shows
them to be clearly wrong.
[2]
[7]
Equally
trite,
is the principle
that
the
onus rests on the state to prove the guilt of an accused person
beyond reasonable doubt and there is no onus
on
the accused to prove his or her innocence.
[3]
A mere preponderance of probabilities is not enough. The court does
not have to be convinced that every detail of an accused's
version is
true. If the accused's version is reasonably
possibly
true
in substance
the
court
must
decide
the
matter
on
the acceptance of that version. The court can 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 reasonably possibly be true.
[4]
[8]
I
am mindful of the fact that the complainant in this matter is a child
of 11 years old during the incident and she is a single
witness, in
as far as the incident of rape is concerned. Therefore, cautionary
rule does apply.
[5]
Although
what Nugent JA stated in
S
v
Vilakazi
[6]
was
in the context of sentencing, it is equally relevant here and it
sounds an appropriate warning even where the correctness of
the
finding of guilt is determined:
"The
prosecution
of rape
presents peculiar
difficulties
that always call for the greatest care to be taken, and even more so
where the complainant is young
.
From
prosecutors it calls for thoughtful preparation, patient and
sensitive presentation of all the available evidence,
and
meticulous
attention
to detail
.
From
judicial
officers
who try
such cases it
calls
for accurate understanding and careful analysis of all the evidence.
For it is in the nature of such cases that the available
evidence is
often scant and many
prosecutions
fail
for that reason alone.
"
The
correct approach in a case of this nature was summed up by Plasket J
in
S
v Mdiniso
[7]
as
he quoted
with
approval the following passage from
S
v Dyira
[8]
:
"In
our law
it is possible for an accused
person
to be convicted on the single evidence of
a
competent
witness
(section 208
of the
Criminal Procedure Act No 51 of 1977
).
The requirement in such
a
case is,
as
always,
proof of guilt beyond reasonable doubt, and to assist the courts in
determining whether the onus is discharged they have
developed
a
rule of
practice that requires the evidence of
a
single
witness to be approached with special caution (Rex v Mokoena,
1956
(3) SA 81
(AD) 85, 86). This means that the courts must be alive to
the danger of relying on the evidence of only one witness because it
cannot be checked against other evidence. Similarly, the courts have
developed
a
cautionary
rule
which is to be applied to the evidence of small children (R v Manda,
1951
(3) SA 158
(AD) at 162E
to 163E). The courts should be aware of the danger of accepting the
evidence of
a
little
child because of potential unreliability or untrustworthiness
as
a
result of
lack of judgment, immaturity, inexperience, imaginativeness,
susceptibility to influence and suggestion,
and the
beguiling capacity of
a
child to
convince itself of the truth of
a
statement
which may not be true or entirely true, particularly where the
allegation is of sexual misconduct, which is normally beyond
the
experience of small children who cannot be expected to have an
understanding of the physical, social and moral implications
of
sexual activity (Viveiros v
S
[2000] 2
All SA 86
(SCA) para 2). Here, more than one cautionary rule applies
to the complainant
as
a
witness.
She is both
a
single
witness and
a
child
witness. In such
a
case the
court must have proper regard to the danger of an uncritical
acceptance of the evidence of both
a
single
witness and
a
child
witness
"
[9]
Coming back to
the facts of this matter, the appellant and the mother of the
complainant,
together
with
their
children,
were
all
staying
together
for some time.
The complainant indicated that she had no problems with the appellant
and he had never done what he did to her in
the past. It is
inconceivable that the complainant can suddenly accuse the appellant
of something that he did not do where there
is no history of
animosity between them. In fact, she was even trying to protect the
appellant by hiding from her mother about
what he did to her. She
denied, at least, twice that the appellant violated her until when
the mother saw what may seem to be the
proof of something wrong,
i.e., that she was lying in bed without wearing her panties,
something unusual of her. The fact that
he gave her his cell phone to
watch videos indicates that the two were getting along well like
father and daughter. It does not
matter that he is not her biological
father but a stepfather. She considers him to be her father. The
conduct of the mother of
the complainant indicated that she did not
have any problems with the appellant until on the fateful night when
she received the
report from the complainant.
She acted in a
manner that every parent would have reacted when confronted with the
similar situation. She had a responsibility
to protect her daughter,
like any caring and loving mother.
[10]
The version of
the appellant, which he maintained throughout the proceedings
,
that the
mother of the complainant screamed at the complainant,
interrogated
her for over thirty minutes and instilled fear in her to falsely
implicate him on something he did not do, is without
merits. The
court a
quo
correctly
rejected that version
.
There is no
indication of any collusion and/or conspiracy on the part of the
state witnesses to trumped up charges against him.
No one disputes
that he went into the complainant's bedroom to fetch his cell phones
that he gave to the complainant for temporary
use. However, taking
advantage of the fact that the mother is sleeping in their bedroom
and seize the opportunity to sexually violate
the child is one of the
most horrendous things a child of that age may experience from her
father who should protect her against
such things.
[11]
The
next issue that should be explored is the issue of penetration. If
this offence was committed before 16 December 2007
[9]
the appellant would have no doubt been convicted of a different
offence other than rape. Probably indecent assault.
[10]
Since then, the definition of rape
,
which
is now a statutory
offence,
has developed. Sexual penetration is part of the definition of rape
and it is described in section 1 of the Sexual Offences
Act as
follows:
"includes
any act
which causes penetration to any extent whatsoever
by-
(a)
the
genital organs of one person into or beyond the genital organs, anus
or mouth of another person;
(b)
any
other part of the body of one person or, any object, including any
part of the body of an animal, into or beyond the genital
organs or
anus of another person; or
(c)
the
genital
organs
of
an
animal,
into
or
beyond
the
mouth
of
another
person
...
"
It
is clear that any form of penetration, even if it is slight, is
sufficient to fall under this definition
.
[11]
Further,
it is clear that penetration by 'any object' falls under the
definition of sexual penetration, which includes penetration
by a
finger, and therefore constitutes rape. There is no doubt that the
conduct of the appellant falls squarely within the definition
of
penetration aforementioned and it is rape.
[12]
It
is
also
clear
that
there
was
no
consent
from
the
side
of
the
complainant.
Even
if
there
was
it
would
not
make
the
appellant's
conduct
less reprehensible because she was 11 years old during the
incident.
[12]
The
Sexual Offences Act defines consent as 'voluntary and un-coerced
agreement.' As in any other offence, it is the state that must
prove
lack of consent
by
the victim. In
Otto
v
S
[13]
the
SCA held that:
"The
onus rests on the State to prove all of the elements of the offence
of rape, including the absence of consent and intention.
That
is
so
even
where,
as
in this
case,
the
version put to the complainant by the appellant's legal
representative
was
a denial of
any sexual contact with her."
The
complainant testified that the appellant pulled off her panties and
inserted his finger in her private part. The issue of consent
is out
of question. The state has proven beyond reasonable doubt that that
the appellant's intention was very clear on that night,
being to
penetrate the complainant's sexual organ with his finger without her
consent.
[13]
When the learned
Regional magistrate granted the appellant
leave to
appeal and remarked that another court may come to a different
conclusion and that there are reasonable
prospects of
success, in my view, he was just
trying to be
fair to the appellant and give him the opportunity
to have his
case be reconsidered
by another
person. This is more in particular on the aspect of whether the
mother of the complainant might have caused the injuries
observed by
the doctor on the complainant's genitalia. Unfortunately, that should
not be the reason to grant leave to appeal. There
was no compelling
reason to grant leave to appeal as the facts are very clear. There is
no basis for the submission of the appellant
that the mother of the
complainant might have caused the injuries on her genitalia. She did
approach the issue sensibly and examined
her daughter as she had a
reasonable suspicion of wrongdoing. Neither her nor the complainant
testified that she touched the complainant
inappropriately and in a
manner that may cause the noted injuries. Therefore, the court
a
quo
quite
correctly rejected any contrary suggestion to that effect. I cannot
find any misdirection on the part of the learned magistrate.
[14]
In conclusion,
I
am of the view
that the appellant's
appeal against
conviction
stands to fail
as there is no basis to find any fault on the findings of the court
a
quo,
including
the conviction. In the premises, the following order should
accordingly be made:
(i)
The
appellant's appeal against the conviction is dismissed.
(ii)
The conviction
on rape in
contravention
of
section 3
of the
Criminal
Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
is
confirmed.
LM
MANZINI
ACTING
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION:
POLOKWANE
I
concur
MV
SEMENYA
ACTING
JUDGE PRESIDENT OF THE
HIGH
COURT LIMPOPO DIVISION:
POLOKWANE
APPEARANCE:
For
the Appellant: MR R Machovani
Legal
Aid South Africa, Polokwane
For
the Respondent: Adv. Mohale
Director
of Public Prosecutions' Office Limpopo, Polokwane
[1]
Act
32 of 2007
[2]
See
S
v Hadebe
&
others
1998 (1)
SACR
422
(SCA) p 645E
-
6461;
S v V
2000 (1) SACR 453
(SCA) p 4558;
and
Y
v S
(Case
no
537/2018)
[2020] ZASCA 42
para 45.
[3]
See
S
v Mhlongo
1991 (2) SACR 207
(A)
p
210D-Ff;
R
v Hlongwane 1959 (3)
SA
337
(A)
p
340H.
[4]
See
S
v Shackell
2001 (2) SACR 185
(SCA)
p
194 G-1.
[5]
In
this regard, see
Nedzamba
v S (911/2012)
[2013] ZASCA 69
;
2013
(2) SACR 333
(SCA)
(27 May
2013)
para
29;
S
v MM
2012 (2) SACR 18
(SCA)
para
9
.
[6]
2009
(1) SACR 552
(SCA)
([2008]
4 All SA 396)
para
21.
[7]
[2010]
ZAECGHC 18
(3
March
2010)
paras
17
and
18.
[8]
2010
(1) SACR 78
(E) para 6.
[9]
This
is the date of commencement
of
the Sexual Offences Act. Since 16 December 2007 rape is now a
statutory offence. Section 68(1)(b) specifically repealed common
law
rape. Section 3 of the Sexual Offences Act defines rape as follows
:
'Any
person
(
"
A")
who
unlawfully
and
intentionally
commits
an
act
of
sexual
penetration
with a
complainant
(
"
B
"
),
without the consent of
"
B",
is guilty of the offence of rape.
'
[10]
Which
is now a statutory offence and is provided by section 5 of the
Sexual Offences Act and it is known as sexual assault
.
[11]
See
S
v MM
2012 (2)
SACR
18
(SCA)
paras
21, 29, 31 and 32; In
S
v Carter
2014 (1)
SACR
517
(NCK)
paras
16 and 17, the court remarked about the misdirection
regarding
lack
of appreciation that even slightest penetration was sufficient to
constitute the crime of rape
.
This
misdirection resulted in conviction of attempted rape and not of
rape.
[12]
Note
that section 57 of the Sexual Offences Act states thus:
'Inability
of
children under 12 years and persons who are mentally disabled to
consent to sexual acts
(1)
Notwithstanding
anything
to
the
contrary
in
any
law
contained,
a male
or
female
person
under
the
age of
12
years
is
incapable
of consenting
to a
sexual act.
(2)
Notwithstanding
anything to the contrary in any law contained, a person who is
mentally disabled is incapable of consenting to
a sexual act'.
[13]
[2017]
ZASCA 114
para
16.