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[2024] ZAFSHC 167
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Botha v S (A182/2023) [2024] ZAFSHC 167 (28 May 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
IN
THE HIGH COURT OF SOUTH AFRICA
,
FREE
STATE DIVISION
,
BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
APPEAL
NUMBER: A182/2023
In
the matter between
:
REINIER
ANDRIES
BOTHA
APPELLANT
And
THE
STATE
RESPONDENT
HEARD
ON:
20
MAY 2024
CORAM:
NAIDOO,
J
et
REINDERS, J
JUDGMENT
BY:
NAIDOO,
J
DELIVERED
ON:
28
MAY 2024
[1]
The appellant
was convicted on 12 April 2017 of Rape, in the Brandfort Regional
Court, the allegation being that he raped a minor
child more than
once. He was sentenced to Thirty (30) years' imprisonment on 26 April
2017. The appellant approaches this court
with
the
leave
of
the
court
a
quo.
The
appeal
lies
against
both
his conviction
and sentence. Mr JD Reyneke appeared for the appellant and Ms S Tunzi
for the respondent (the state).
[2]
The
Appellant's grounds of appeal against the conviction and sentence
are, in essence, that the court a
quo
erred in:
2.1
failing to
approach, with caution, the evidence of the complainant
who was a
single, child witness;
2.2
disregarding
the contradictions in the evidence of the state witnesses, which cast
doubt on whether sexual penetration or sexual
assault occurred.
2.3
finding that
the complainant was a credible and reliable witness regarding the act
of penetration;
2.4
finding that
the state proved its case against appellant, beyond reasonable;
2.5
With regard to
sentence, in:
2.5.1
over-emphasising
the seriousness
of the offence
and the interests of society, over the personal circumstances of the
appellant;
2.5.2
over
emphasising the two principles of sentencing, namely deterrence and
retribution over the principle of rehabilitation;
2.5.3
not taking
into account that the appellant spent two years in custody awaiting
trial.
[3]
The
complainant's biological parents were divorced, and her mother became
involved in a relationship with the appellant. They started
to live
together as
a family, and
the
complainant's
mother at
some
stage
became
pregnant with the appellant's child. While the complainant and her
mother lived together with the appellant, it would appear
that he
began molesting the complainant. Early in 2014, when the complainant
went to visit her biological father during a weekend,
she told
him that
the appellant
was
touching/playing
with her
genitals. She
also indicated to her father that she was afraid of
the appellant,
as he would kill her. The father communicated this to the
complainant's mother. Shortly thereafter, the mother found
a
blood-stained panty belonging to the complainant
in the
laundry.
[4]
The mother's
evidence was that she showed it to the appellant, who said she should
take it to the social worker, which was done.
There is no
further evidence in
this regard so
it is unknown what became of the
panty. At
some stage the
complainant
was removed from
the care of
her mother and placed in a children's home. It was thereafter that
the investigation into the complainant's allegations
began. She was
seen by a social worker as well as a doctor who examined her to
determine if she was sexually abused. The social
worker employed
different tests and techniques to ascertain what the complainant was
exposed to and also if she was indeed sexually
abused. She assessed
the complainant over seven sessions.
[5]
In brief the
evidence of the social worker, Ms MM Joubert, was that she
ascertained during her assessment of the complainant that
the
appellant exposed his genitals to her, and told her that if she told
anyone her would choke/strangle
her. During
the session using what she referred to as the castle technique, the
complainant was asked who she wanted to live in
her house, she said
she her biological parents, her baby sister, her grandmother and
herself inside the house
while
the
appellant
and
a
child
called
M[…]
outside
her
house.
I pause to mention that M[…] is a four year child who was also
resident in the children's home at which the complainant
was placed
when she was removed from her mother's care. M[…] was
allegedly also sexually abused. The complainant alleged
(to the
social worker) that M[….] also touched the complainant's
genitals.
[6]
The social
worker's further evidence was that towards the end of her assessment,
the complainant revealed to her that she had been
sexually penetrated
by the
appellant. The
description
she
gave
is
that
he put his "wrong place" (a reference to his genitals) into
her "wrong place", being a reference to her
genitals. She
said his "wrong place" was big and she felt pain. Later she
noticed blood. Her mother was outside, talking
to someone at the
time. The social worker indicated that when the complainant was
narrating events that caused her trauma, she
was able to see the
pain, sadness and discomfort in her face, and sometimes the
reluctance to talk. She further indicated that
due to the
complainant's age, she would not have been able to feign the kind of
emotions she observed, if the complainant had been
relating events,
which she had heard and which happened to someone else. She was
therefore satisfied that that complainant had
related what in fact
had happened to her
.
[7]
The doctor
examined the complainant a few weeks after she was removed from her
mother. She did not pursue the history of the matter,
as the
complainant merely told her that she had been touched. The doctor
found warts on the genitals of the complainant, and
testified
that
on
its
own
and
without
knowledge
of
the
circumstances
of
the
matter,
no
conclusions
can
be
drawn
about sexual
abuse, but penetration could not be excluded.
[8]
The court a
quo
found
the appellant's version not to be reasonably possibly true for a
number of reasons. It found that it could not be ascertained
from his
evidence when he stayed with the complainant and her mother, that it
is not clear when the complainant's grandfather passed
away, as he
had said that they were together when the grandfather passed away.
The court concluded that he must have been living
with the
complainant and her mother when the grandfather passed away. The
court also found that his version was fabricated especially
with
regard to the reason for removing the complainant from the care of
her mother (which he said was due to alcohol abuse) and
the issue of
the protection order which was allegedly obtained against him by the
complainant's mother. These aspects
were never put
to
the
state witnesses. It
seems the
court held the
view, although
not expressed
in so
many
words, that the
appellant
attempted to create the impression that he did not spend much time
with the complainant,
so that he
would not have had the opportunity to sexually molest her.
[9]
In other
respects too, my view is that he was an untrustworthy witness, for
example, fabricating the version about the errant behaviour
of the
complainant (a six year old child). He alleged that she improperly
sought male attention, saying that she would grab his
genitals, and
even did so to her late grandfather. This too was never put to any of
the state witnesses, especially as it would
have been an important
aspect of his
defence.
In
my view, it appears that the trial court regarded the version of the
appellant as being so improbable that it could be rejected
as false,
and correctly so
.
[10]
It is
trite
the
state
bears
the
onus to
prove
its
case
beyond reasonable doubt, while there is no such duty on the appellant
to prove his case. Not
only was the
court essentially faced with
two mutually
destructive versions in this matter, but it also had to deal with the
evidence of a single witness, who was a child.
The task of analysing
and evaluating evidence is vested in the trial court. An appeal court
is limited in its ability to interfere
with the trial court's
conclusions,
and may not do
so simply because it would have come to a different finding or
conclusion. The trial court's advantage of seeing
and hearing
witnesses places it in a better position than a court of appeal to
assess the evidence, and such assessment must prevail,
unless there
is a
clear and
demonstrable misdirection. This is a
principle that
is well established in our law
.
[11]
In
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at
705
the majority,
per Greenberg JA and Davis AJA (Schreiner dissenting) said: "The
trial court has the advantages, which the appeal
judges do not have,
in seeing and hearing the witness and being steeped in the atmosphere
of the trial.
Not only has
the trial court the opportunity of observing their demeanour, but
also their appearances and whole personality. This
should not be
overlooked."
A similar view
was adopted in
S
v Pistorius
2014 (2) SACR 315
(SCA) par 30,
which
cited,
inter
alia Dhlumayo
with
approval:
"It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential
and slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly
wrong.
R
v
Dhlumayo
and
Another
1948
(2)
SA
677
(A)
at
706;
S
v
Kebana
[2010]
1 All SA 310
(SCA) para 12
.
It can hardly
be disputed that the magistrate had advantages which we, as an appeal
court, do not have of having seen, observed
and heard the witnesses
testify in his presence in court. As the saying goes, he was steeped
in the atmosphere of the trial. Absent
any positive finding that he
was wrong,
this
court
is
not at liberty to interfere with his findings.''
[12]
The trial
court, in evaluating the evidence before it, was eminently aware that
the complainant was a single, child witness and
reminded itself of
the caution to be exercised when dealing with such evidence. The
trial court cited the relevant case law which
set out guidelines for
the admission of the evidence of a single witness and a child
withness, upon which a court can convict an
accused person. The
learned authors
Du
Tait et al
in
the
Commentary
on the
Criminal Procedure Act
introduce
their commentary on section 208 of the CPA thus:
"The
danger of relying exclusively on the sincerity and perceptive powers
of a single witness has evoked
a
judicial
practice that such evidence be treated with the utmost care. This
practice
seems
to have
originated in the following remarks made by De Villiers JP in R v
Mokoena
1932 OPD 79
at 80:
'Now
the
uncorroborated
evidence
of
a
single
competent
and
credible
witness
is
no
doubt
declared
to
be
sufficient
for
a
conviction
by
[section
*256],
but
in
my
opinion
that
section
should only be relied on where the evidence of
a
single
witness is
clear
and
satisfactory
in
every
material
respect.
Thus
the
section
ought not to be invoked where, for instance, the witness has
an
interest
or bias
adverse
to the
accused,
where
he
has
made
a
previous
inconsistent
statement,
where
he
contradicts
himself in the witness box, where he has been found guilty of an
offence
involving
dishonesty,
where
he
has
not
had
proper
opportunities
for observation, etc.' (RS 67, 2021 ch24-p1).
[*Section
256
of
the
old
CPA
56
of
1955
was
the
predecessor of the current section 208)]
[13]
The guidelines
set out in
Mokoena
have
solidified the manner in which courts approach the evidence of a
single witness.
It has become
trite that the final evaluation of the evidence of a single witness
can rarely be made without considering whether
such evidence is
consistent with the probabilities. Where there is even a small
measure of corroboration, the court is no longer
dealing with the
evidence of
a single
witness, and
such
corroboration
renders
the
accused's version less probable on issues in dispute. Courts
generally employ corroboration as a safeguard against the dangers
of
relying on the evidence of a single witness. [See
S
v Teixeira 1980(3)
SA
755
(A);
S
v
Letsedi1963(2)
SA
471
(A);
S
v
Gentle
2005(1) SACR 420 (SCA)].
[14]
In the present
matter, the complainant was six years old when the incidents
happened. The court correctly found that the complainant
was
consistent in her version, as relayed to her father, the social
worker and the medical practitioner who completed the J88 medical
examination form. The issue was raised about the complainant
reporting that her genitals were touched and/or played with. The
social worker testified that the complainant was too young to
fabricate the events she conveyed to her. The doctor testified that
at six years old, the complainant would not have had the kind of
experience to know the difference between touching and penetration.
The complainant's narration to these two persons as well as her
father, in my view, provides the corroboration the court relied
on to
make the credibility findings in respect of the complainant. The
bloodied panty is another important aspect of corroboration,
which
the court took into account.
The
complainant had said that when the appellant had penetrated her
sexually, she noticed there was blood. It appears that it was
at this
time that the mother found the panty with the blood on it, lending
credence to the complainant's version
.
[15]
The
trial
court
also
evaluated
the
evidence of
the
appellant in
the light of
the probabilities of the case as well as the version of the
complainant, and found that his version was not credible.
This was
especially
so
in
view
of
the
version
of
complainant,
where
the
trial court,
cited with approval a Zimbabwean case and agreed with that court's
dictum, which
appears to
have held
a similar view
to
the
court in the matter of
S
v V
1995(1) SACR 22 (0),
that
"children do not fantasise over things that are beyond their own
direct or indirect experience". I mention
that
Mr
Reyneke
argued
that
the
complainant
repeatedly
reported
that
she
had
been
touched,
hence creating doubt
that there was
penetration. While he conceded that the appellant had done
"something" to the complainant, it cannot be
said with
certainty that he had sexually penetrated the complainant.
I do not
agree.
[16]
In view of
what I said in respect of the social worker's and the doctor's
evidence, I am in agreement with the court's assessment
of the
quality of the complainant's evidence, as it was clear that a six
year old child has neither the intellectual development
nor the
mental sophistication to fabricate such a detailed version as
to what the
appellant had done to her. Mr Reyneke argued that the court did not
deal with the contradictions in the evidence of
the state witnesses.
The court
evaluated all
the evidence,
and
in
my view, the fact that the court did not specifically articulate that
it did not consider such variances to be contradictions,
does not
amount to a
misdirection
nor does it vitiate the judgment. The manner in which the court
evaluated the evidence indicates that it did not consider
such
contradictions to be material. This the court a
quo
specifically
said at p229, lines 3-6 of the record -
"The
witnesses for the state were good credible and reliable witnesses.
Even
though discrepancies
(sic)
they were
not material in order to disregard the evidence in totality. I could
not detect any motive or reason to falsely implicate
the accused
either."
The
court's rendering of a guilty verdict cannot be
faulted, and
consequently the grounds of appeal in
respect of the
conviction, which I set out earlier in this judgment, cannot be
sustained.
[17]
With regard to
sentence, it is well established that sentencing is a matter which is
within the discretion of the trial court. It
is trite that an appeal
court will only interfere with a sentence if the trial court
misdirected itself in
imposing
sentence or its discretion is
vitiated by
irregularity, or if the sentence is unreasonable, unjust. or
disproportionate to the offence. This trite principle has
been well
settled in our law, and was succinctly enunciated approximately 50
years ago in the case of S
v
Rabie 1975(4) 855 (A) at
857,
where Holmes JA said:
"1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal –
(a)
should be
guided by the principle that punishment is "pre-eminently a
matter for the discretion of the trial Court"; and
(b)
should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been "judicially and properly exercised".
2.
The test under
(b)
is whether
the sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate"
.
This
principle was subsequently re-iterated in the much-quoted case of
S
v Malgas 2001(1) SACR, 469 (SCA) at, 478 para12,
where the court
remarked that:
"
...
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh...
".
[18]
In this
matter, the appellant's personal circumstances, as placed on record
by his
attorney, are
that he
was a 26
year old,
unmarried man who was living with his mother at the time of his
arrest, and has a three year old daughter with the complainant's
mother. He was, at the time of his arrest, employed and earning a
salary of R6 500.00 per month. His mother is very sickly. The
appellant spent two years in custody awaiting trial. In this regard,
I mention that Mr Reyneke argued that this court should sentence
the
appellant afresh. He conceded that the major part of the two years
that the appellant spent in custody awaiting trial, was
due to his
bail being forfeited to the state. He also argued that the appellant
has served approximately five years of his sentence,
which he
requested the court to take into account in sentencing the appellant
[19]
The trial
court also undertook a comprehensive examination of the case law
relevant to sentencing and applied the established principles
of
sentencing in its consideration of the appellant's personal
circumstances. The court found that substantial and compelling
circumstances, justifying a departure from imposing the
prescribed
minimum sentence of life imprisonment, were present. The trial
court's comprehensive analysis of the various factors
relevant to
sentencing in this matter cannot be faulted, and I am unable to find
any material misdirection in the imposition of
the sentence of Thirty
(30) years' imprisonment
in this
matter
.
[20]
In the
circumstances, the following order is made:
20.1
The appeal in
respect of the conviction and sentence is dismissed
20.2
The conviction
and sentence
imposed
on the
appellant
are confirmed.
NAIDOO,
J
I
concur.
REINDERS,
J
On
behalf of appellant:
Mr
JD Reyneke
Instructed
by:
Legal
Aid South Africa
Bloemfontein
Local Office
On
behalf of respondent:
Ms
S Tunzi
Instructed
by:
The
Office of the DPP
BLOEMFONTEIN