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2024
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[2024] ZAFSHC 212
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Galeboe and Another v S (A138/2023) [2024] ZAFSHC 212 (18 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/N
Case
No. A138/2023
In
the matter between:
SAKENG
ISAAK GALEBOE
FIRST
APPELLANT
GEORGE
MAGOQA
SECOND
APPELLANT
And
THE
STATE
RESPONDENT
CORAM:
VAN RHYN, J
et
MAJOSI, AJ
HEARD
ON:
13 MAY 2024
JUDGMENT
BY:
MAJOSI
,
AJ
DELIVERED
ON:
18 JULY 2024
[1]
The appellants were convicted in the Regional Court, Brandfort on
individual counts of contravening
section 3 of the Sexual Offences
and Related Matters Act 32 of 2007(SORMA) under the purview of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. They
were sentenced to undergo life imprisonment.
[2]
Both accused were declared unfit to possess firearms in terms of
section 103
of the Firearm’s Control Act 60 of 2000. It was
ordered that their names be entered into the National Register of Sex
Offenders
in terms of section 50 of SORMA and in terms of section
120(4) of the Children’s Act 38 of 2005, they were found
unsuitable
to work with children.
[3]
In their notice of appeal, the appellants assailed their respective
convictions on count 1 and
2:
3.1.
namely that the court a quo erred in finding that the state proved
its case beyond a reasonable doubt despite
contradictions in the
state’s case;
3.2.
the court a quo erred in rejecting the appellants and accepting the
version of the state;
3.3
The court erred in not finding the complainant’s version
improbable.
For sentence, the
appellants stated that the court erred in imposing life imprisonment
and not finding the presence of substantial
and compelling
circumstances:
3.4
the accused were never found guilty of similar offences;
3.5
the complainant did not sustain serious bodily injury;
3.6
not considering all mitigating factors which cumulatively constituted
substantial and compelling circumstances;
3.7
both appellants are capable of rehabilitation.
[4]
For count 1, the complainant, a 13-year-old girl testified that on
the evening of the 9
October 2017 at 18h30, she was alone
at home when her next-door neighbour, the second appellant came to
her house. Upon realizing
she was alone at home, he came inside the
house, instructed her to close the door and instructed her to lie on
the couch.
[5]
He undressed her pants and underwear and thereafter undressed himself
and sexually penetrated
her without her consent. When he had ceased
his up and down movements, he got dressed and instructed her to fold
the blanket he
had used. Before he left her house, he threatened to
assault her should she disclose what had just transpired. The
complainant
went to look for her friend and her mother, but she did
not report this incident to anyone.
[6]
On the 20 of October 2017 at 12h00 midday, the second appellant in
the company of a friend, found
her alone at home. After his friend
left, he sexually penetrated her again without her consent and closed
her mouth to prevent
her from screaming. The second incident again
occurred when the complainant was left alone at home. She was 11
years of age at
the time of both incidents.
[7]
In respect of count 2, the very same complainant in count 1,
testified that on the 21
of October 2017, whilst playing
with a friend, the first appellant, a neighbour, approached her and
asked her to buy him cigarettes
and bring it to his house. She did as
she was told. Upon her return, he lost interest in the cigarettes and
instead he undressed
her bottom half and removed his pants and
sexually penetrated her with his penis without her consent.
[8]
When he was done, she got dressed outside his house. The first
appellant told her to keep the
R 1.00 change from the cigarettes. She
left his house and went to Ous Mudau’s house where she reported
that she was raped
and a case was opened with the police. She was
taken for a medical examination the following day and the two
appellants were arrested
in connection with the offences.
[9]
Ms. Molefi (referred to as Ous Mudau by the complainant) stated that
on the 21 October 2017, the
complainant came to her house walking
with great difficulty. When she enquired, it was reported to her that
the second appellant
had raped her earlier that day. After she
examined the complainants’ genitals, she informed the
complainant’s mother
of the situation and the two went to the
police station to open a criminal case.
[10]
The medico - legal examination report of the complainant revealed
that she was examined on the 21
st
of October 2017 at
National Hospital by a forensic nurse who observed no genital
injuries but concluded that the absence of genital
injuries does not
exclude sexual abuse.
[11]
The second appellant denied any knowledge of the offences in count 1
and contended that the complainant is
falsely implicating him as he
caught her stealing his peanut butter. The first appellant, with
regard to count 2, alleged that
he is being falsely implicated by the
complainant as she and her mother were evicted from his uncle’s
house. Both accused
confirmed that they were known to the
complainant.
[12]
The courts powers to interfere on appeal with the findings of fact of
a trial court are limited unless there
is a clear misdirection by the
court a quo.
[1]
In S v
Naidoo
[2]
at paragraph 46, the
following was stated:
“
As
an appellate court it is essential that we remain
cognisant of the strictures on us as far as the trial court’s
factual findings
are concerned. Absent demonstrable, material
misdirections and clearly erroneous findings, we are bound by the
trial court’s
factual findings. It is not for an appellate
court ‘to second-guess the well-reasoned factual findings of
the trial court’.
We are not the triers of fact at first
instance…”
[14]
The appellants were convicted based on the evidence adduced by the
complainant who is a single child witness.
Section 208 of the
Criminal Procedure Act provides that an accused may be convicted on
the evidence of a single witness provided
that the evidence of the
witness is satisfactory in all material respect.
[3]
In Maile v S. the following was stated at paragraph 18:
“
This
Court has, since Woji, cautioned against what is now commonly known
as the double cautionary rule. It has stated that the double
cautionary rule should not be used to disadvantage a child witness on
that basis alone. The evidence of a child witness must be
considered
as a whole, taking into account all the evidence. This means that, at
the end of the case, the single child witness’s
evidence,
tested through (in most cases, rigorous) cross-examination, should be
‘trustworthy’. This is dependent on
whether the child
witness could narrate their story and communicate appropriately,
could answer questions posed and then frame
and express intelligent
answers.
Furthermore, the child
witness’s evidence must not have changed dramatically, the
essence of their allegations should still
stand. Once this is the
case, a court is bound to accept the evidence as satisfactory in all
respects; having considered it against
that of an accused person.
‘Satisfactory in all respects’ should not mean the
evidence line-by-line. But, in the overall
scheme of things,
accepting the discrepancies that may have crept in, the evidence can
be relied upon to decide upon the guilt
of an accused person…”
[15]
The transcribed record reveals that the complainant, in both counts,
answered all questions posed to her
during examination in chief and
did not deviate from her version despite extensive cross examination
which took place over a period
of two days. The evidence of Mrs.
Molefi corroborates the complainant’s version where count 2 is
concerned in that shortly
after she was raped, she was seen walking
with difficulty and after further enquiry the complainant confirmed
that she was raped
and immediately identified the first appellant as
her assailant.
[16]
The medico legal report indicated that there were no visible genital
injuries but in the same breath, did
not exclude sexual abuse. It can
thus be termed as neutral. The first two rapes were not reported to
Mrs. Molefi but, that does
not mean that they did not occur as
described by the complainant. These rapes were reported at the police
station when the complainant
and her mother opened the criminal
cases. No negative inference can be drawn from her delay in reporting
that the second appellant
raped her more than once as per count 1 as
this was reported to the police.
[4]
[16]
The trial court in its evaluation of the conspectus of the evidence,
found that the complainant gave an honest
and detailed account of all
three incidents despite the fact that the actual incidents would have
occurred almost two years before
she testified.
[5]
The appellants’ version of events boiled down to a bare denial
as they indicated they were elsewhere whilst the complainant
was
being raped. They however did not dispute the fact that the
complainant is well known to them and vice versa.
[17]
The appellants version was that they were being falsely implicated
and that the evidence given by the complainant
is manufactured. In my
view, the details provided by the complainant as to where each rape
occurred, how these rapes took place
and how it came about that she
was at the first appellant’s house after she had been sent on
an errand are intricate details.
It therefore cannot be said that she
imagined the incidents because it is evident that it emanates from
her own experience and
recollection of events.
[18]
The discrepancy in her evidence pertaining to why she was unable to
scream for assistance cannot be said
to be material in nature and did
not affect the bulk of her evidence as correctly found by the trial
court. I cannot fault the
reasoning of the court a quo when it found
that that the versions of the appellants were not only improbable,
but also not reasonable
or possibly true considering that both
appellants adduced new evidence whilst they were testifying in their
own defence. I am of
the view that the appellants’ appeal
against their respective convictions ought to be dismissed.
[19]
It is trite that sentence is the prerogative of the sentencing court
and an appeal court should be careful
not to erode such discretion.
An appeal court will only interfere if the sentence imposed by the
court a quo is disproportionate
as found in S v Rabie
1975 (4) SA 855
(A) AT 857 D- E and also S v De Jager and Another
1965 (2) SA 616
(A).
[20]
In S v Mudau 2013 JDR 0938 (SCA) at paragraph 13 Madjiet JA stated as
follows:
“…
it
is trite that each case must be decided on its own merits. It is also
self-evident that sentence must always be individualised,
for
punishment must always fit the crime, the criminal and the
circumstances of the case. It is equally important to remind
ourselves
that sentencing should always be considered and passed
dispassionately, objectively and upon a careful consideration of all
relevant
factors. Public sentiment cannot be ignored, but it can
never be permitted to displace the careful judgment and fine
balancing
that is involved at arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence which is
just
and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests of
society…”
[21]
Section 51(1)
of the
Criminal Law Amendment Act (supra
) prescribes a
minimum sentence of life imprisonment to be imposed upon conviction
unless substantial and compelling circumstances
are present. The
complainant was under the age of 16 years at the time of the
commission of the offences. The general rule of thumb
is that
substantial and compelling circumstances presented to court must be
truly convincing to allow the court to deviate on proper
grounds and
not for flimsy reasons.
[6]
[22]
S v Vilakazi
2012 (6) SA 353
(SCA) at paragraph 58 where the court
stated the following:
“…
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that Malgas said should be avoided…”
[23]
For the first appellant it was submitted that he is a first offender
of rape, 40 years of age, unmarried
with two children aged 11 and 5
years respectively. He, before his incarceration, earned an income of
R 600.00 per month from casual
employment. As a sole breadwinner, his
mother, brother and minor children, were dependent on his income. The
second appellant is
said to be a first offender aged 32 years,
unmarried with one minor child aged 12 years old and a recipient of a
disability grant
of R 1500. 00 per month.
[24]
The legal representative for the appellants argued the court a quo
failed to consider that both appellants,
due to their age, could
still be rehabilitated as first offenders of rape, that the
complainant did not suffer any injuries, and
the cumulative effect of
their personal circumstances justified the imposition of a lesser
sentence.
[25]
Transversely thereto, the legal representative for the state argued
that the court correctly found that there
were no compelling and
substantial circumstances and the apparent lack of physical injuries
do not constitute same.
[26]
The fact remains that the complainant was 11 years of age and a
vulnerable member of society at the time
the offences were committed.
The first two incidents of rape occurred in the sanctity of her own
home which can no longer be regarded
as a safe space. The victim
impact statement elucidated that although these incidents would have
occurred almost two years prior
to her testifying in court, she still
suffers from emotional trauma. She will also have to live trauma of
the brutality of gender-based
violence that she experienced at a very
young age.
[27]
In my view, the court a quo correctly found, under these
circumstances, no substantial and compelling circumstances
justifying
the imposition of a lesser sentence.
Section 51(3)(aA)
(ii) of the
Criminal Law Amendment Act specifically
states that a complainant’s
apparent lack of physical injuries in cases of rape shall not
constitute substantial and compelling
circumstances. The cumulative
effect of both appellants circumstances and all other mitigating
factors do not morph into substantial
and compelling circumstances in
light of the numerous aggravating factors. Thus, their appeal against
sentence must also fail.
[28]
Accordingly, I propose the following order:
1.
The
appeal
against conviction and sentence is dismissed
.
O
R MAJOSI, AJ
I
concur
I
VAN RHYN, J
It
is so ordered.
APPEARANCES:
On
behalf of the Appellants
Mr.
P Mokoena
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent
Adv.
M.P. Liebenberg
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
S
v Francis
1991 (1) SACR 198
(A); R v Dhlumayo and Another 1948 (2)
SA 677 (A).
[2]
(333/2018)
[2019] ZASCA 52
(1 April 2019).
[3]
Section
208
of the
Criminal Procedure Act 51 of 1977
as amended.
[4]
Section
59
of SORMA, Evidence of delay in reporting -In criminal proceedings
involving the alleged commission of a
sexual
offence, the court may not draw any inference only from the length
of any delay between the alleged commission of such
offence and the
reporting thereof.
[5]
Transcribed
record, judgment, pages 140 -141
[6]
S
v Malgas
2001 (1) SACR 469
(SCA).