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2024
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[2024] ZAMPMBHC 37
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Mashego v S (A49/19) [2024] ZAMPMBHC 37 (3 June 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: A49/19
1.
REPORTABLE: YES/ NO
2.
OF INTEREST TO OTHER JUDGES: YES/NO
3.
REVISED.
DATE
[SIGNED]
SIGNATURE
In
the matter between:
JOHN
MASHEGO
Appellant
and
THE
STATE
Respondent
This
judgment shall be delivered to the parties by e-mail and shall be
published on Saflii. The date and time of the delivery of
this
judgment is deemed to be on 3 June 2024 at 10:00.
JUDGMENT
CORAM:
Roelofse AJ
et
Phahlamohlaka AJ
Roelofse
AJ:
[1]
The
appellant was arraigned and convicted in the Regional Court for the
Division of Mpumalanga on a count of rape
[1]
read with the provisions of Section 51(1) and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
. The appellant was sentenced
to life imprisonment. The rape victim was a seven-year old girl.
[2]
The
appellant is exercising his automatic right of appeal
[2]
and challenges both his conviction and sentence.
[3]
The
appellant’s ground of appeal in respect of this conviction is
that the court below erred in finding that the respondent
has proved
beyond a reasonable doubt that the appellant has penetrated the
victim’s vagina with his penis “…
..despite
contradictions by the witness on this aspect and lack of medical
evidence to corroborate or confirm penetration”
[3]
The
appellant therefore seeks to challenge the factual finding made by
the court below over the penetration of the victim’s
vagina.
[4]
The appellant challenges the sentence that was imposed by the
court below on the following grounds: the sentence is strikingly
inappropriate;
the court erred in not imposing a shorter sentence in
light of the appellant’s age and personal circumstances; that
the appellant
was a first offender; and the court below
over-emphasized the seriousness of the offence, the interests of
society, the prevalence
of the offence and deterrence.
[5]
In my view the appeal must fail on both conviction and
sentence. These are the reasons.
[6]
The appellant challenges the factual findings made by
the court and the court’s sentence, both of which are not to be
interfered by a court of appeal unless there has been a material
misdirection committed by a court a quo or an injustice may result.
[7]
By
now it is trite that a court on appeal should not interfere with the
trial judge’s factual findings and/or conclusions
unless it is
satisfied that the trial court was plainly wrong.
[4]
However, this is not an inflexible rule as set out in
Bernert
v Absa Bank Ltd
[5]
“
What must be
stressed here, is the point that has been repeatedly made. The
principle that an appellate court will not ordinarily
interfere with
a factual finding by a trial court is not an inflexible rule. It is
recognition of the advantages that the trial
court enjoys which the
appellate court does not. These advantages flow from observing and
hearing witnesses as opposed to reading
"the cold printed word".
The main advantage being the opportunity to observe the demeanour of
the witnesses. But this
rule of practice should not be used to "tie
the hands of the appellate courts". It should be used to assist,
and not
to hamper, an appellate court to do justice to the case
before it. Thus, where there is a misdirection on the facts by the
trial
court, the appellate court is entitled to disregard the
findings on facts and come to its own conclusion on the facts as they
appear
on the record. Similarly, where the appellate court is
convinced that the conclusion reached by the trial court is clearly
wrong,
it will reverse it.”
[8]
In
S
v Bogaards
[6]
, with regards to the interference by a court of appeal on sentence,
Khampepe J stated:
“
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences
imposed by courts
below is circumscribed. It can only do so where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.”
The
conviction
[9]
The question to consider whether the appellant’s
conviction should stand is to consider whether there had been a
misdirection
committed by the lower court on the facts.
[10]
The respondent relied upon the evidence of the
complainant to prove rape.
Section 3
of the Act provides:
“
Rape.—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.
[11]
Section 1
of the Act defines “sexual penetration”,
in relevant part, as:
“
sexual
penetration” 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;…”
[12]
The
respondent therefore had to prove beyond a reasonable doubt that the
appellant unlawfully and intentionally penetrated the vagina
of the
complainant with his penis.
[7]
[13]
Sexual penetration by the appellant of the victim is the main
issue in this appeal concerning the conviction. The appellant alleges
contradictions by the complainant and the lack of medical evidence
that could support a finding that penetration indeed occurred.
[14]
The
victim testified through an intermediary. With regards to the
penetration, the victim was a single witness. In her testimony
the
victim described the penetration as follows:
[8]
“
After he picked me
up I wanted to scream then he blocked my mouth. Then he let me jump
over the fence. After he let me jump the
fence he took me to Mpho’s
room. Then he closes the door. After he closed the door I do not know
whether he started undressing
me first or he undressed himself
first.…..
COURT Interpret it
as it is? - - - He took his thing and put it into my thing.
All right. You told us
now that he then threw you on the bed and he put his thing into your
thing period can you tell us what are
you referring to if you say is
a thing? - - - it is his thing in front.
What does he use that
thing for? - - - He uses it to urinate.
And your thing that he
put his thing into, what do you use it for? - - - I also use it
to urinate.
…
.
- - - After
he took his thing and put it into my thing I screamed, I try to
scream, but he closed my mouth.
PROSECUTOR:
One other thing. After Shelly [the appellant] put his thing into your
thing, what did he do? - - -
Then he climbed on me.
Yes, and what did he do?
Did he just lie on top of you or what did he do? - - - Yes, he did
something that adults are doing.”
[15]
The victim’s testimony over the penetration was not
challenged under cross-examination save for putting it to the victim
that
the appellant’s instructions were that the victim was not
raped. In my view, the victim did not contradict herself.
[16]
It is common cause that the respondent did not present any
medical evidence to support the victim’s testimony over the
penetration
despite the victim being taken to hospital for medical
examination.
[17]
The respondent led the evidence of three other witnesses, all
of whom placed the appellant with the victim at the time of the
alleged
rape. The evidence shows that the appellant was found with
the victim in the same room, the appellant’s trousers lowered
to his knees and the victim’s skirt pulled up. She had no
underwear on.
[18]
In this appeal, this court has to consider whether the lower
court was wrong in finding that the respondent had proven the
appellant’s
guilt on rape beyond a reasonable doubt, or to put
it differently, whether the respondent had proven beyond a reasonable
doubt
that the accused sexually penetrated the victim. Two cautionary
rules apply namely, the victim was a single witness in respect of
the
sexual penetration and also a child.
[19]
That
which was said in
S
v Vilakazi
[9]
is of particular importance:
“
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.”
[20]
I
proceed with the caution expressed in
Vilakazi
supra
.
[21]
Section
208
of the
Criminal Procedure Act 51 of 1977
provides that a
c
onviction
may follow on evidence of single witness. The evidence of a single
witness must be clear and satisfactory in every material
respect.
This court is guided by
S
v Sauls and Others
:
[10]
“
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the single witness . . . The trial Judge
will weigh his evidence,
will consider its merits and demerits and, having done so, will
decide whether it is trustworthy and whether,
despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is satisfied that the truth has
been told. The cautionary rule
referred to by De Villiers JP in 1932. . .may be a guide to a right
decision but it does not mean
“that the appeal must succeed if
any criticism, however slender, of the witnesses’ evidence were
well-founded…’’
It has been said more than once
that the exercise of caution must not be allowed to displace the
exercise common sense.
[22]
The
manner in which a child’s evidence who is also a single witness
must be evaluated is set out in
Haarhoff
and another v Director of Public Prosecutions Eastern Cape
(Grahamstown)
:
[11]
“
It is settled law
that evidence of a child must be approached with caution. The same
principle applies to the evidence of a single
witness. The court has
to satisfy itself that the evidence given by the witness is clear and
substantially satisfactory in material
respects. The court is to look
for features, in the evidence, which bear the hallmarks of
trustworthiness to substantially reduce
the risk of wrong reliance
upon the evidence of a single witness. The judgment of the trial
court demonstrates that it was alive
to the application of the
cautionary rule on account of the complainant being a single witness
to the rape and also on account
of her youthful mental age. The
following dictum in S v Van der Meyden is apposite:
“
The passage seems
to suggest that the evidence is to be separated into compartments,
and the ‘defence case’ examined
in isolation, to
determine whether it is so internally contradictory or improbable as
to be beyond the realm of reasonable possibility,
failing which the
accused is entitled to be acquitted. If that is what is meant, it is
not correct. A court does not base its conclusion,
whether it be to
convict or to acquit, on only part of the evidence. The conclusion
which it derives at must account for all the
evidence.”
(Footnotes omitted)
[23]
The evidence of the victim was honest. She testified about
what she had experienced. Her testimony was of the nature to be
expected
from such a young child. The victim’s testimony
regarding the circumstances of how she and the appellant were found
is corroborated
by the other witnesses that testified for the
respondent. There is no reason to reject the victim’s evidence
in respect of
the penetration while accepting her other evidence
which was corroborated. Having regard to the totality of the
evidence, this
court of is of the view that no misdirection was
committed by the court below in convicting the appellant. The court
below properly
evaluated the evidence and applied caution where
caution was warranted.
Sentence
[24]
The rape of a girl under the age of 16 years attracts a
minimum sentence of life imprisonment in terms of the provisions of
section 51(1)
read with Schedule 2 of the
Criminal Law Amendment Act
105 of 1997
unless the court satisfied that substantial and
compelling circumstances exist which justify the imposition of a
lesser sentence.
[25]
Despite
the provisions of
section 51(1)
of Act 105 of 1997, a trial court
still retains a discretion to impose an appropriate sentence. I
consider what was said in
S v Malgas
[12]
where the Court held as follows:
"B
Courts are required to approach the imposition of sentence conscious
that the legislature has ordained life imprisonment,
(or the
particular prescribed period of imprisonment), as the sentence that
should ordinarily and in the absence of weighty justification
be
imposed for the listed crimes in the specified circumstances.
C
Unless there are, and can be seen to be, truly convincing reasons for
a different response, the crimes in question are therefore
required
to elicit a severe, standardised and consistent response from the
courts.
D
The specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying the legislation,
and marginal differences in personal circumstances or degrees of
participation between co-offenders are to be excluded."
[26]
From
the outset, the court below regarded the sentencing triad in
S
v Zinn
.
[13]
The court below specifically addressed the sentencing discretion of
that court as well as the principles in
Malgas
supra
.
The court below weighed both the mitigating and aggravating
circumstances in considering an appropriate sentence. It also
considered
a presentencing report and a victim impact report for
purposes of sentencing. The court below had due regard to the
appellant’s
personal circumstances including that the appellant
was a first offender. As aggravating circumstances, the court below
considered
the nature of the crime and the interests of society and
the impact of the crime upon the victim as well as the lack of
remorse
by the appellant.
[27]
In
my view, the imposition of life imprisonment did not result in an
injustice having regard to the circumstances of the case. The
appellant committed a heinous crime ravaging the life of a young girl
for whatever satisfaction he sought for himself. He forcefully
took
the young victim to a room raped her and prevented her outcries to be
heard by smothering her mouth. I need not repeat
the absolute
vulgar and despicable nature of the crime, especially committed on a
young girl and the prevalence thereof in society.
In this regard, all
has been said before. See:
Director
of Public Prosecutions, Eastern Cape, Makhanda v Coko
[14]
“
Rape is an utterly
despicable, selfish and horrendous crime. It gains nothing for the
perpetrator, save for fleeting gratification,
and yet inflicts
lasting emotional trauma and, often, physical scars on the victim.
More than two decades ago, Mohamed CJ, writing
for a unanimous court,
aptly remarked that:
'Rape is a very serious
offence, constituting as it does a humiliating, degrading and brutal
invasion of the privacy, the dignity
and the person of the victim.
The rights to dignity, to
privacy, and the integrity of every person are basic to the ethos of
the Constitution and to any defensible
civilization.
Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets,
to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the peace
and tranquility of their homes
without the fear, the apprehension and
the insecurity which constantly diminishes the quality and enjoyment
of their lives.'”
[28]
Having considered the reasoning of the court below in imposing
the sentence, this court finds no misdirection committed by that
count in the consideration of its sentence. There is no reason to
interfere with the sentence that was imposed.
[29]
In the premises, I propose the following order:
(a)
The appeal is dismissed.
Roelofse AJ
Acting Judge of the High
Court
I agree and it is so
ordered.
Phahlamohlaka AJ
Acting Judge of the High
Court
DATE
OF HEARING: 24
May 2024
DATE
OF JUDGMENT:
APPEARANCES
For
the appellant:
NR
Rasivhaga
For
the Director of Public Prosecutions
D
Roles
[1]
In
terms of Section 3 of Criminal Law (Sexual Offences and Related
Matters) Amendment Act.
[2]
In terms of
section 309(1)(a)
of the
Criminal Procedure Act.
[3
]
Notice of Appeal at p. 176.
[4]
R v Dhlumayo & another
1948 (2) SA 677
(A) at 705-706.
[5]
2011
(3) SA 92
(CC), para. 106.
[6]
2013
(1) SACR 1
(CC) para.
41.
[7]
Consent is not an issue are the complainant at seven years old could
never have given consent.
[8]
Postponed 12 and 13 of the record.
[9]
2009
(1) SACR 552
(SCA);
[2008]
ZASCA 87
para
21.
[10]
1981
(3) SA 172
(A)
at 180 E-G.
[11]
[2019]
1 All SA 585
(SCA) at p 598 and 599.
[12]
[2001]
3 All SA 220
(A) para. 25.
[13]
1969
(2) SA 537 (A).
[14]
(248/2022)
[2024] ZASCA 59
(24 April 2024).