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[2024] ZAFSHC 182
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Classen v S (A82/2020) [2024] ZAFSHC 182 (7 June 2024)
THE HIGH COURT OF SOUTH
AFRICA
FREE STATE PROVINCIAL
DIVISION
Reportable: YES/NO
Case No: A82/2020
In the matter between:
FERREL
CLASSEN
Appellant
And
THE
STATE
Respondent
Coram:
Opperman
J et
Nemavhidi
AJ
Heard:
15 April 2024
Delivered:
7 June 2024. This
judgment was handed down in court and electronically by circulation
to the parties'
legal
representatives
via
email
and
release to SAFLII on 7
June 2024. The date and time of
hand-down
is
deemed
to
be 15h00 on 7 June 2024
Judgment:
Opperman J
Summary:
Appeal -
conviction &
sentence-
rape
15-year-old child -
life imprisonment
JUDGMENT
Opperman J
[1]
The appeal lies against
both the conviction and sentence by the Regional Court on the 28
th
and 30
th
of August 2018, respectively. The conviction is on a charge of rape
of a 15-year old girl. The sentence is one of life imprisonment
in terms of section 51(1) of the Criminal Law Amendment Act
l 05 of 1997. The
appellant was represented by counsel
a
quo.
The delay in
bringing the appeal was caused by the fact that the record had to be
re-constructed by the presiding officer due to
issues with the
recording of the proceedings.
[2]
The conviction circles
around one central issue that fell for decision by the court
a
quo;
it
was
whether the appellant raped the complainant.
[3]
The grounds for appeal
on conviction, which are opposed
by the State, are that:
The court
a quo
erred in:
1.
Finding that the State
proved their case beyond reasonable doubt;
2.
finding that the
complainant was
a
credible witness in the
light of the
contradictions in her
testimony;
3.
in
not
applying
the
requisite
caution
when
dealing
with
the
complainant's
uncorroborated evidence;
4.
in accepting the
version of the
State
and rejecting the version of the appellant.
[4]
Nugent JA in
S
v Mbuli
2003 (1)
SACR 97
(SCA), stated that:
[57] It is trite that the
State bears the onus of establishing the guilt of the appellant
beyond reasonable doubt, and the converse
is that he is entitled to
be acquitted if there is a reasonable possibility that he might be
innocent
(R v Difford
1937 AD 370
at 373, 383). In S
v Van
der Meyden
1999 (2) SA 79
(W), which was adopted and affirmed by
this Court in S
v Van Aswegen
200 I (2) SACR 97 (SCA), I had
occasion to reiterate that in whichever form the test is applied it
must be satisfied upon a consideration
of all the evidence. Just as a
court does not look at the evidence implicating the accused in
isolation to determine whether there
is proof beyond reasonable
doubt, so too does it not look at the exculpatory evidence in
isolation to determine whether it is reasonably
possible that it
might be true. In similar vein the following was said in
Moshephi
and Others v R
LAC (1980 - 1984) 57 at 59F - H, which was cited
with approval in S
v Hadebe and Others
1998 (I) SACR 422 (SCA)
at 426f - h:
'The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful aid
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far
from it. There is no substitute for a detailed and
critical examination of each and every component in a body of
evidence.
But, once that has been done, it is necessary
to
step
back a pace and consider the mosaic as a whole.
If that is not done, one may fail to see the
wood
for the trees.'
(Accentuation added)
[5]
Although an accused has
a right to appeal, a court of appeal is not at liberty to depart from
the trial court's findings of fact
and credibility, unless they are
vitiated by irregularity, or unless an examination of the record of
evidence reveals that those
findings are patently wrong. The trial
court's findings of fact and credibility are presumed to be correct,
because the trial court,
and not the court of appeal, has had the
advantage of seeing and hearing the witnesses, and is in the best
position to determine
where the truth lies.
[6]
A balanced approach on
appeal lies in the words of Zulman JA in the Supreme Court of Appeal
in
Sanlam
Bpk. v
Biddulph
(105/2003)
[2004]
ZASCA 11
;
[2004] 2 All
SA 23
(SCA);
2004 (5)
SA 586
(SCA) (23 March 2004):
[5] Whilst a court of
appeal is generally reluctant to disturb findings which depend on
credibility it is trite that it will do
so where such findings are
plainly wrong
(R v Dhlumayo and Another
1948 (2) SA 677
(A)
706). This is especially so where the reasons given for the finding
are seriously flawed.
Over-emphasis of the advantages which a
trial court enjoys is to be avoided lest an appellant's right of
appeal 'becomes illusory'
(Protea Assurance Co. ltd. v Casey
1970 (2) SA 643
(7) 648 D-E and
Munster
Estates
(Pty)
Ltd v Killarney
Hills (Pty)
L
td
1979 (1) SA 621
(A) 623H - 624A). It is equally
true that findings of credibility cannot be judged in isolation but
require to be considered in
the light of proven facts and the
probabilities of the matter under consideration. (Accentuation added)
[7]
The crux of the case is the following:
1.
The complainant
bad resided with her
aunt and the appellant for about six years at the time the incident
occurred that caused the case. The appellant
is the aunt's boyfriend.
The appellant and the aunt had three minor children that also resided
with them.
2.
It is undisputed that
on the 3
rd
of September 2015 the appellant took the 15-year old complainant
into a bedroom in their house and closed the door. He reprimanded
her
after her aunt complained about the complainant's conduct to him.
3.
The
consternation
in
the
bedroom
caused the
other
three
minor
children
in
the
house
to run to the neighbours and one of them reported that the
complainant is being raped. The children were not called to testify.
The court ruled the evidence of hearsay admissible because the
defence cross examined on it and elicited the evidence on it.
4.
The police arrived but
neither the complainant nor the neighbour that allegedly saw the
appellant lying on top of the complainant
on the bed in the room when
he looked through an opening above the door, reported the rape to the
police. The wife of the neighbour
that also went to the scene of the
alleged crime similarly did not report the incident
to the police that
evening.
5.
The complainant only
reported the incident to a teacher the next day at school. The
teacher was not called to give evidence. The
police were involved and
the matter came to court two years later in 2017.
6.
The vaginal samples
that were taken during the examination of the complainant and the
compilation of the medico-legal examination
report (Exhibit A)
yielded no DNA after analysis (Exhibit B).
7.
It was alleged by the
appellant and the aunt that the complainant had regular intercourse
with older men. The court
refused evidence on
this aspect.
8.
The complainant died in
2018 of natural causes and the State was allowed to open their case
on the merits to hand in the death certificate.
9.
The court emphasised
section 59 of the Criminal Law (Sexual Offences) Amendment Act 32
of2007 in that a court may not draw a negative
inference based only
on the delayed report of a rape
[8]
It is the word of the complainant against that of the appellant. The
court
a
quo
warned
itself of the issues that involve the evidence of a single witness
and a minor. She testified
that
the appellant raped her. The court noted that she made a good
impression and that her evidence was corroborated by the neighbours
and the conduct of the children that reported the incident to them.
He described her as a "fairly good witness"
[1]
and remarked that: "She has related a certain story to the court
about what has happened inside the house and directly and
indirectly
almost every aspect were confirmed by evidence before this court."
[2]
The court
a
quo
did
not place too much reliance on the evidence of the complainant in
itself; the court ruled that there was corroboration in the
objective
evidence of other witnesses and the real undisputed and proven events
of the case.
[9] Important at this
stage is that the complainant and the other children involved were
beyond any doubt very scared of the appellant.
The aunt that
testified for the appellant, was not in the house during the
incident. She admitted that she does not want to suffer
the loss of
the appellant as the sole breadwinner and for their children to grow
up without a father. The complainant testified
that she was
threatened with a sheep shear by the appellant during the rape and
that he would kill her if she reported the incident.
One of the
children that went to the neighbours to report the incident refused
to return borne and spent the night with the neighbours
because she
was scared of the appellant. It stands undisputed that the children
were crying and distraught when they arrived at
the neighbours.
[10] The explanation of
the neighbours for not reporting the incident is plausible. They
wanted for the matter to be investigated
properly and as one of them
said; they would report the matter to another police person the next
morning. The complainant was clearly
too afraid to report
immediately.
[11]
The contradictions
between the witnesses in the case for the State were carefully
analysed by the court. The manner in which the
court adjudicated the
evidence cannot be faulted. The perfect case does not exist. The
extensive expertise of the presiding officer
and the careful
manner in which he
applied the law on the adjudication of the evidence cannot be
questioned. It is unfortunate that he made the
emotional comment on
the passing of the complainant
but magistrates are
just human. Although it might cause a perception of bias due to
maudlin sympathy to the complainant and the
fact that her life was
cut short at such a young age, none of this can be picked up in the
evaluation of the evidence. This is
what he had to say:
The evidence from the two
neighbours Graham Collin Booysen and Candice Charlie is not without
mistakes, but they were purely reactive.
They have acted after they
were alerted and the words that they were alerted with was the words
of Valerie and for some or other
reason Mr Sheminu thought it
important to enter the arena to make inadmissible evidence
admissible, but the answer was quite clear,
they started to react
after Valerie reported to them that her father is raping the
complainant and what was testified by both the
adults is in total
support of the complainant. Interesting enough, on the version of the
defence witnesses after the time, immediately
afterwards, there was
already mention of rape. Why was that? To a certain extent this is in
full support of what has happened to
the complainant.
The moment when I am
making my second evaluation of the complainant, I am satisfied that
her version was the truth. On purpose I
have asked Mr Carpede also
about the version from the children and I think the movement, the
hysteria, the reluctance to return
to the house, everything is
painting a certain picture of what has happened in the house that
specific evening although they did
not testify. Their actions are not
in dispute and before court. It is possible to take care of that as
well.
Collin Booysen made a few
blunders and that is quite common. I think if you ask most people to
relay exactly what has happened last
week on a specific day, people
will struggle. The moment when you are asked to testify about a thing
that has happened almost two
years ago, is difficult. It is also
important to take note of a certain personality type. I think to a
certain extent Mr Booysen
is not a type of person who would like to
confront. He is more a person that will try to avoid direct
confrontation. Luckily it
is not, there is not a need to rely purely
on his evidence.
There
is some small contradictions with regard to the evidence tendered by
his wife Candice Charlie and I was thoroughly
impressed
with her evidence. She never tried to implicate the accused. She did
not shy away from differing from her husband Collin
Booysen. She
testified to this court to a certain extent as to what she can
remember of the entire process. I was impressed
with
her. I termed her an iron woman at the end and also made a note for
myself that if there is difference between her version
and the
version of Collin, I would rather accept her version and also that I
must remember that it has taken place quite a long
time ago.
[3]
[12]
The court
a
quo
correctly
refused to accept the evidence of the appellant and the aunt. The
accused's version was one of bare denial. He made himself
out to be
the good substitute father; he did not admit that he assaulted the
complainant
until
his cross examination. He did his utmost to befoul the character of
the complainant and make her the villain in the case.
But as was said
in the judgment
a
quo;
even if the
complainant was sexually active it did not take away from what
happened between her and the appellant. "Even a
sex worker can
be raped." The situation that prevailed in the house on the day
of the incident indicates the opposite of what
he wants the court to
believe.
[13]
The
aunt was not present when the incident happened and she had much to
lose if the appellant was incarcerated. She did not have
a good
relationship with the complainant. The appellant was not a good
witness. His evidence stands in stark contrast to the spontaneous
and
unique evidence of the neighbour that he saw the appellant lying on
top of the complainant on the bed. Further, the evidence
of the wife
of the neighbour that she heard the appellant say: "I have heard
Ferrel telling the complainant to open up. I
then turned and left.
Mamie said no Ferrel."
[4]
[14]
The appeal of the
appellant against his conviction cannot stand.
[15]
Turning to sentence;
section 51(1) of the General Law Amendment Act 105 of 1997 is
applicable.
[16]
The factors to be
regarded and as submitted by the appellant during the adjudication of
the sentence did not impress as substantial
and compelling. It was
mundane in comparison to the circumstances of the case. He raped a
minor that was in his care. The home
where she was raped was supposed
to be her safe haven.
[17]
From the evidence
adduced in the court below and the factors pointed out in the appeal,
there is nothing that indicates that the
trial court did not apply
his mind judiciously and with due care. He did not misdirect himself.
The sentence is in accordance with
the prevailing legislation and
law. There is not any issue that dictates for the interference of
this court. The sentence is apt
and appropriate in the circumstances.
In
S
v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W) Goldstein, J (Coram: Goldstein J, Snyders J and
Willis J), concluded
that:
[1] In S
v Bopape
(unreported WLD case No A548/0I), I delivered a minority judgment
in which I expressed the view that this Court is bound, when imposing
sentence to following the precedents established by the Supreme Court
of Appeal when that Court sets aside a sentence on appeal
and itself
determines an appropriate sentence. I have reconsidered that view and
now believe it to have been erroneous for the
reasons which follow.
[2]
In S
v
Pieters
1987 (3) SA
717
(A), Botha JA stated at 734D -
F that the decisive
question facing a Court of appeal on sentence was whether it was
convinced that the court which had imposed
the sentence being
adjudicated
upon
had exercised its discretion to do so unreasonably. If so, the Court
of appeal was entitled to interfere and, if not, not.
After pointing
out, at 734G -
H,
that the determination of a specific period of imprisonment in a
particular case cannot occur in accordance with any exact,
objectively valid standard or measure, the learned Judge of Appeal
goes on at 734H I to say (citing
R
v Alwyn
1955 (3) SA
207
(A) at 213B-
D,
S
v Sibiya
1973
(2)
SA
51(A)
at 58B - 59A, and S
v
Skenjana
1985 (3)
SA 51(A)
at 54I-55F) that, even if the Court of appeal is of
the view that it would
have imposed a much lighter sentence, it would not be free to
interfere if it were not convinced that the
court below could not
reasonably have imposed the sentence which it determined. In
Alwyn,
five Judges of
Appeal subscribed to the view that they would have imposed a
suspended sentence if they had been the court of first
instance;
nevertheless, they dismissed an appeal against an effective sentence
of 18 months'
imprisonment; this
aspect of the case was referred to with approval in
Sibiya
at 58E-
F.
[3]
In
Hiemstra
Suid-Afrikaanse Strafproses
6
ed at 836 -
7,
the learned authors, Kriegler and Kruger, say that Botha JA's
dicta on sentence in
Pieters
have
been repeatedly approved by the Appellate Division and ought to be
the last word on the subject.
Respectfully
accepting that this is so, ii seems 10
me to follow
that, provided that a court imposing sentence exercises its
discretion reasonably, it is not bound by sentences imposed
by other
courts,
including higher
Courts.
(Accentuation
added)
[18]
ORDER
The appeal against the
conviction and sentence is dismissed.
M OPPERMAN J
I concur,
M.B. NEMAVHIDI AJ
APPEARANCES
On
behalf of the
appellant
V.C. ABRAHAMS
Legal Aid: South Africa
Bloemfontein
On
behalf of the
respondent
N.M.TSHEFUTA
Office of the Director:
Public Prosecutions,
Free State
Bloemfontein
[1]
Page
200 of the record at Iine 6.
[2]
Page
195 of the record at lines 2 to 16.
[3]
Pages
195 to 197 of the record.
[4]
Page
12 of the reconstructed record and at page 250 at paragraph 3.3 of
the record (the heads of argument by the State).