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[2024] ZAKZPHC 53
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Z.S v S (AR308/2023) [2024] ZAKZPHC 53 (5 July 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
AR308/2023
In
the matter between:
Z[...]
S[...]
APPELLANT
and
THE STATE
RESPONDENT
Coram:
C Smart AJ (A D Collingwood AJ concurring)
Heard:
27 June 2024
Delivered:
5 July 2024
ORDER
On
appeal from
: the Regional Court for the Regional Division of
Pietermaritzburg:
1.
The appeal is dismissed.
2.
The convictions and sentences imposed are confirmed.
JUDGMENT
C
SMART AJ (A D COLLINGWOOD AJ concurring):
Introduction
1.
Rape remains
under-reported nationally, but there may be no rapes more hidden than
those committed within families.
[1]
2.
This appeal concerns the rape of a 13-year-old girl who was raped
over a period of ten months in her home which
she shared with her
mother and her step-father (the appellant). The rape occurred during
the day when her mother was not at home.
3.
The appellant was charged with rape of a minor child (count 1) and
exposure of pornography to a child (Count 2).
4.
The appellant was convicted by the Pietermaritzburg Regional Court
and sentenced to life imprisonment for count 1
and three years
imprisonment for count 2, with both sentences to run concurrently.
5.
Given that the appellant was sentenced to
imprisonment for life by the trial court under section 51(1) of the
Minimum Sentencing
Act, the appellant noted this appeal against his
conviction and sentence without having to apply for leave to do so,
as he was
entitled to do in terms of section 309(1)(a) of the
Criminal Procedure Act 51 of 1977 (“the CPA”).
Factual
background
6.
In the court a quo the respondent relied on the evidence of the
complainant and her cousin, R[...] N[...] (“R[...]”)
and
on the evidence of Dr Dyweli who examined the complainant and
compiled a report on his findings.
7.
The evidence of the complainant was that she lived with her mother
and her stepfather, the appellant.
Her evidence was that she
had a good relationship with the appellant and regarded him as a
father figure. During September
of 2016, and whilst her mother
was at work, the appellant, having closed the curtains and doors,
called the complainant to his
bedroom. The appellant inserted a
pornographic video into the television, removed the complainant’s
clothing and kissed
and fondled her whilst watching the pornographic
video. He thereafter had sexual intercourse with her.
According to
the complainant, and subsequent to that first instance,
the appellant raped her more or less every Sunday whilst her mother
was
at work. Under cross-examination she stated that she was
unable to state exactly how many times this occurred but that it
did
not occur during the period she was at the home of her natural father
for holidays.
8.
In June of the following year, and upon her return from spending her
holiday with her father, she told R[...]
that the appellant had been
sexually abusing her for some months. When asked by R[...] why
she had not reported this to her
mother, the complainant replied that
she was afraid her mother would not believe her. R[...] then
advised her mother of this.
Her mother immediately reported
this to the complainant’s mother who telephoned the appellant
and warned him not to return
home.
9.
It was put to the complainant under cross examination that she had
falsely accused the appellant of raping
her due to the bad
relationship that had developed between them as a result of a dispute
about the complainant’s use of her
cellphone. The
complainant readily conceded that there was a conflict between her
and the appellant about the contents of
her cell phone but that this
did not affect her relationship with him.
10.
According to the evidence of R[...], the complainant had told her
that the appellant had been touching her.
When questioned
further by R[...], the complainant told her that the appellant was
sexually abusing her.
11.
The evidence of Dr Dyweli was that he examined the complainant on 17
July 2017 and he found that there were injuries
to the complainant’s
vagina as well as evidence of blunt force trauma to her anus.
His evidence was that these injuries
were chronic and were at least
more than seven days old.
12.
Dr Dyweli was not cross examined on behalf of the appellant.
13.
The appellant’s evidence was that he was 40 years of age, he
was employed as a truck driver and he was in
a long term relationship
with the complainant’s mother. He has two children one of
whom was employed at that time.
He pleaded not guilty to the charges.
14.
His evidence was that the complainant falsely implicated him because
she and her sisters believed that he was the
cause of the breakdown
of the relationship between her parents. It is significant that
this version was not put to the complainant
during cross
examination. His further evidence was that he objected to the
complainant’s use of her cellphone which
led to an altercation
with the complainant. It was subsequent to this, and on her
return from her father’s home, that
she falsely accused him of
molesting her.
15.
The magistrate convicted the appellant as charged after all the
evidence was led.
16.
The
appellant was sentenced to life imprisonment in terms of section
51(1) read with Part I of Schedule 2 of the Criminal law Amendment
Act
[2]
after a finding was made
by the magistrate that there were no substantial and compelling
circumstances justifying a departure from
the imposition of the
prescribed minimum sentence.
Ad
Merits
17.
The first issue to be determined in this appeal is whether the
magistrate misdirected herself in the assessment
of the evidence.
It was the submission on behalf of the appellant that the
complainant’s version was improbable and
that the magistrate
should have approached the evidence of the complainant with extra
caution.
18.
The
fundamental principle on the evaluation of evidence on appeal is that
an appeal court is not inclined to disturb findings by
a trial court
on the evaluation of evidence.
[3]
19.
The magistrate found that the complainant was ‘candid and
forthright’ when giving evidence and that
‘even under
cross examination, she answered all questions without hesitation,
contradiction or inconsistency’.
20.
We do not find that there has been a clear misdirection by the
magistrate or that his findings are clearly erroneous.
21.
Having regard to the complainant’s version we are of the
view that there is nothing improbable about it.
Although the
appellant’s Counsel argued that her version was improbable
especially having regard to the complainant’s
delay in
reporting the rapes or, for that matter, that she chose to report to
the incidents to her cousin R[...] rather than to
her own mother, we
do not believe that this to be improbable at all.
22.
We are in agreement with the trial Magistrate as to the
underlying probabilities in this case. Sight must
not be lost of the
fact that the complainant’s mother was in a relationship with
the appellant and so her concern that her
mother would disbelieve her
is not, in these circumstances, improbable. What is more, the
suggestion made by the appellant
that the complainant was acting
maliciously in making the complaint is inherently questionable.
There is, of course, no onus
upon an accused person to prove his
innocence, but where, however, a version is placed before the Court
it must be closely scrutinised
having regard to the inherent
probabilities. The learned Magistrate made a favourable finding in
respect of the complainant’s
credibility. Certainly, the
complainant’s evidence from the record, suggests that she was a
reliable witness and telling
the truth. For instance, as has
already been noted, there had been conflicts between her and the
appellant but, if anything,
this adds greater credence to her version
because, whilst conceding that there had been conflicts this is
altogether different
to the defence case that she deliberately
falsely implicated him.
23.
We accordingly find that the conclusion of the magistrate was
correct.
Ad
Sentence
24.
The second issue to be decided is whether the magistrate erred in
finding that there were no substantial and compelling
circumstances
which justified a deviation from the imposition of the prescribed
minimum sentence of life imprisonment.
25.
It is trite
that sentencing is a matter of discretion of the trial court.
Unless there is a material misdirection by the trial
court, an appeal
court cannot 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. However, even though there may not be a
material misdirection, a court on
appeal may yet be justified in
interfering with the sentence imposed by the trial court when the
disparity between the sentence
of the trial court and the sentence
which the appeal court would have imposed had it been the trial court
is shocking or disturbingly
inappropriate.
[4]
26.
The crime of rape of a minor child for which the appellant was
convicted carries a minimum of a life sentence
in terms of
s 51
of
the
Criminal Law Amendment Act 105 of 1997
unless compelling and
substantial factors are present to detract from the minimum
sentence.
27.
The facts and circumstances of this case bring the appellant’s
rape conviction within the ambit of the
prescribed minimum sentence
of life imprisonment in that the complainant was thirteen years of
age at the time she was raped and
that she was raped over a period of
some months. The court a quo found that further aggravating
circumstances were that the
appellant was the complainant’s
stepfather and in a position of trust and that the complainant was
raped in the safety of
her home.
28.
The magistrate delivered a detailed and well-motivated judgment in
which he weighed the mitigating factors against
the aggravating
factors and came to the conclusion that there were no substantial and
compelling circumstances which justified
the deviation from the
imposition of the prescribed minimum sentence of life imprisonment.
29.
The trial court had regard to the basic triad of sentencing and it
took into account the appellant’s personal
circumstances. The
appellant was a first offender, he was gainfully employed and he had
two children of his own, both of whom had
attained majority.
30.
It was argued on behalf of the appellant that the personal
circumstances of the appellant constituted compelling
reasons not to
impose the prescribed minimum sentence. We find that nothing in
the personal circumstances of the appellant
stands out as substantial
and compelling to merit deviation from the minimum sentence.
31.
The following aggravating factors were taken into account by the
court
a quo
:
1)
the complainant was thirteen years of
age at the time she was raped;
2)
she was raped by her stepfather in her
home;
3)
the complainant was raped over a period
of months;
4)
offences of a sexual nature committed
against women and children are viewed by courts in a serious light.
32.
Counsel
for the appellant referred in her argument to cases where lesser
sentences were imposed for a similar offence. One
of those
cases was
S
B Sangweni v S
[5]
where Steyn J upheld the appeal against the sentence of life
imprisonment and imposed a sentence of eighteen years. Steyn
J
found that the presiding magistrate had misdirected himself when he
considered the minimum sentence as the norm without taking
into
consideration all of the facts and applying the proportionality test
to depart from the minimum sentence. In this case,
however, we
find that the analysis of the evidence and the applicable law was
carefully and thoroughly dealt with by the presiding
magistrate in
the court a quo and we can find no fault with that reasoning.
33.
In
S v Malgas
2001 (1) SACR 469
(SCA) the court set out the approach to be taken in
assessing the existence of substantial and compelling circumstances
for the
purposes of
section 51
of the Act. Unless there are
truly convincing reasons for a different response, “the
offences provided for in the Minimum
Sentencing Act and its schedules
are therefore required to elicit a severe, standardized and
consistent response from the court.”
34.
The Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
approved the approach set out in
Malgas
as “undoubtedly correct”.
35.
This court
is in agreement with the sentiments of the Supreme Court of Appeal in
the case of
Maila
v The State
[6]
which are expressed as follows:
The message must be
clear and consistent that this onslaught will not be countenanced in
any democratic society which prides itself
with values of respect for
the dignity and life of others, especially the most vulnerable in
society: children. For these reasons,
this Court is not at liberty to
replace the sentence that the trial court imposed. For an uncle, who
is in the position of trust
just as a father, to rape his own niece
is unconscionable and deserves no other censure than that imposed by
the trial court: life
imprisonment. The sentence is not
disproportionate to the serious offence that the appellant committed
on a 9-year-old child, his
niece. The sentence is, thus, justified in
the circumstances.
36.
In the present case the sentence imposed on the appellant is far from
inappropriate. The sentence imposed is not different from
what this
court would have imposed. Any lesser sentence would not serve the
interests of justice, particularly in this case which
involves the
rape of a defenceless minor child in her home by her stepfather.
37.
Accordingly, the following order is made:
37.1
The appeal is dismissed.
37.2
The convictions and sentences imposed are confirmed.
C
SMART AJ
I
agree
A
D COLLINGWOOD AJ
Date
reserved:
27
June 2024
Date
delivered:
5
July 2024
APPELLANT:
L
Barnard
Instructed
by:
Chetty,
Asmail & Maharaj Attorneys
RESPONDENT:
E S
Magwaza
Instructed
by:
Director
of Public Prosecutions
[1]
Maila v S (429/2022)
[2023] ZASCA 3
(23 January 2023) at paragraph 1
[2]
105 of 1997
[3]
A M and another v MEC for Health, Western Cape [2020] ZASCA 89
[4]
S v
Malgas
2001 (1) SACR 469
(SCA) para 12 and
Maila
v S supra
at paragraph 44
[5]
2010 (1) SACR 419
(KZP)
[6]
Maila v
S supra
at
paragraph 60