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2024
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[2024] ZAFSHC 305
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Madito v S (A9/2024) [2024] ZAFSHC 305 (1 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable
Case
no: A9/2024
In
the matter between:
BOHLOKO
MADITO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
MADITO v S (A9/24)
Coram:
DANISO, J & MAHLANGU, AJ
Heard:
02 SEPTEMBER 2024
Delivered:
01 OCTOBER 2024
Summary
:
Evidence – Single witness and cautionary rule of child
evidence.
ORDER
The
appeal against conviction and sentence is dismissed.
JUDGMENT
INTRODUCTION
Mahlangu,
AJ (Daniso, J concurring)
[1]
This is an appeal against the judgment of the Regional Magistrate
Mzana stationed at Bloemfontein
Magistrate Court (the court
a
quo
), which was delivered on 7 February 2014. The appellant was
convicted on two counts of rape in terms of section 3 of the Criminal
Law Amendment Act 32 of 2007 read with section 51(1), of the General
Criminal Law Amendment Act, Act 105 of 1997 read with Part
I of
Schedule 2 of Act 105 of 1997. He was sentenced to life imprisonment.
The appellant appeals against both conviction and sentence.
[2]
The State called three witnesses: the complainant herself, her aunt
and the doctor who examined
her. The defence called two witnesses:
the appellant and the complainant’s sister.
[3]
The issues in this appeal are whether the trial court erred in
accepting the evidence of the State
witnesses and dismissing the
evidence of the appellant and whether there were substantial and
compelling circumstances that could
affect the minimum sentence of
life imprisonment for the rape of a person under the age of 16.
[4]
The complainant testified about the rape and about the fact that the
appellant threatened to kill
her should she tell anyone about the
incident. Her aunt testified on how she came to know about the
incident: the complainant and
her aunt attended a traditional
ceremony where the girls were assessed if they were still virgins or
not. The complainant became
hysterical when witnessing the girls
undressing and started to cry. The complainant told her aunt about
the rape, she was assessed
and indeed she was found not to be a
virgin. A charge was open and the complainant was then examined by
the doctor who found that
there were no physical injuries to the
complainant’s vagina but she explained that it does not mean
that there was no sexual
abuse. Based on this evidence, the appellant
was arrested as he was well known to the complainant.
[5]
During examination in chief, the complainant testified that she was
residing with her brother,
her sister and her brother’s wife at
Soutpan, Free State Province. The appellant was the brother to her
brother’s wife.
She testified that she knew the appellant. The
incident happened more than once at her brother’s house where
she was residing
with her brother and sister.
[6]
The Appellant testified that he knows the complainant and her sister,
the witness he has called
to testify for him. He knows them from
Soutpan and that they were residing with her sister and brother in
law. He testified
that he had a relationship with the
complainant sister and they had a child together. That the
complainant was aware of the relationship
he had with her sister. The
appellant’s witness, the sister to the complainant admitted
that the appellant has fathered her
child and that the complainant
did not know about their relationship.
[7]
During cross examination, he testified that, he was in good terms
with the complainant, he does
not know why he would make false
allegations against him. He was adamant that he never sexually
assaulted the complainant. The
appellant closed his case.
Ad
conviction
[8]
R v
Dhlumayo
[1]
makes it clear that a court of appeal will be reluctant to interfere
with the trial court’s evaluation of oral evidence unless
there
is misdirection by the trial court. The trial court has the advantage
of seeing and hearing witnesses, which is not the case
in the
appellate court. A trial court is thus better suited to make
credibility findings. An appellate court would be hesitant
to
interfere unless there is a misdirection in applying the law to the
facts, in which case the appellant court will interfere.
This court
thus needs to consider whether there is such a misdirection or not.
[9]
The defence made the argument that the complainant is a child and did
not immediately report the
incident. That the complainant might be
making up a story against the appellant. The court found that, the
complaint could not
immediately report the incident as the appellant
promised to kill her should she tell anyone.
[10]
In
Woji
v Santam Insurance Co Ltd
[2]
the following was held regarding the cautionary rule of a single
child witness: “
The
question that the trial Court must ask itself is whether the young
witness evidence is trustworthy. Trustworthiness ….
Depends on
factors such as the child’s power of observation, his power of
recollection, and his power of narration on the
specific matter
testified
.”
[11]
S v
Dyira
[3]
the court laid down guidelines for how the evidence of a child
witness, who is also a single witness, must be approached.
The
general guidelines require the court to: (
a)
… articulate the warning in the judgement, and also the
reasons for the need for caution in general and with reference
to the
particular circumstances of the case; (b)…… examine the
evidence in order to satisfy itself that the evidence
given by the
witness is clear and substantially satisfactory in all material
respects; (c) although corroboration is not a prerequisite
for a
conviction, a court will sometimes, in appropriate circumstances,
seek corroboration which implicates the accused before
it will
convict beyond reasonable doubt; (d) failing corroboration, a court
will look for some feature in the evidence which gives
the
implication by a single child witness enough hallmark of
trustworthiness to reduce substantially the risk of a wrong reliance
upon her evidence.
[12]
The magistrate did consider these guidelines when considering the
evidence of the single child witness. I
am satisfied that the child
could recall the incident and what followed with sufficient clarity
and with adequate observation.
She gave evidence of the crime of rape
with maturity and composure, despite her young age and the trauma
that she experienced.
Her evidence was clear and satisfactory, and
where there were some inconsistencies, it was not material to the
case. Her evidence
has intrinsic worth, even if evaluated with
caution. There is no reasonable possibility that she can fabricate
the story and implicate
the appellant.
[13]
The trial court correctly found that, the complainant’s
evidence clear and chronological, she presented
herself as credible
witness and even though she was subjected to a vigorous cross
examination, she stood her ground.
[14]
Furthermore, the trial court also correctly found that, the appellant
was not an honest and a reliable witness.
He was aggressive and
evasive in answering the questions during cross examination.
[15]
Thus I find no basis for concluding that the State did not discharge
the onus of proving the appellant’s
guilt beyond reasonable
doubt or that the magistrate erred in her finding. This court can
therefore see no reason to interfere
with the finding of the trial
court on the conviction.
Ad
sentence
[16]
For the sentencing the appellant submits that the sentence of life
imprisonment is strikingly inappropriate.
The court further erred in
finding that there are no substantial and compelling circumstances
and that the appellant’s personal
circumstances and the
circumstances cumulatively constitute substantial and compelling
circumstances.
[17]
The rape of a child below 16 years of age carries a minimum sentence
of life imprisonment. Section 51(3)
provides that “
substantial
and compelling circumstances
”
must be present for a court to depart from the prescribed measure.
The minimum sentences are meant to send out a strong
message that
there are certain crimes that society finds so repugnant that lenient
sentences will not be tolerated. The accused
must prove that
“
substantial
and compelling circumstances
”
are present. In
S
v Malgas
[4]
,
the locus classicus on the interpretation of “
substantial
and compelling circumstances
”,
stated that only the factors traditionally considered when an
appropriate sentence is determined cumulatively justify a
departure
from the statutory prescribed minimum sentence should a court
consider imposing a lesser sentence.
[18]
Each case is decided on its own facts, with all the aggravating and
mitigating factors considered cumulatively.
When determining whether
a departure is called for, the court should weigh all the
considerations that are traditionally relevant
to sentencing.
[19]
In
S
v Zinn
[5]
the court laid down the sentencing triad that ought to taken into
account when determining an appropriate sentence: the crime,
the
offender and the interests of society. When focussing on the crime,
aggravating factors include that the victim was 9 years
old, was
raped at the house where she was residing with her sister and
brother, and that he threatened to kill her should she tell
anyone.
[20]
The defence attempted to argue that the absence any of the bodily
injuries should be considered as a mitigating
factor. The court
informed the appellant that no notice will be taken of that. I am of
a view that rape is inherently a violent
crime, and the fact that
there was no additional violence cannot constitute a mitigating
factor. In any case, section 51(3)(a)
prohibits the court from taking
the apparent lack of physical injury to the complainant into account.
Therefore, this court is
unwilling to consider this factor as a
possible mitigating factor.
[21]
When focusing on society’s interest, it is noted that gender
violence in South Africa is the second
pandemic. Rape is often an
underreported crime which means that the true extent of the crime is
not known. There is a disparate
need for the courts to give guidance
on how to eradicate this pandemic. There must be a situation where it
is possible for woman
to feel free and safe with no risk of being
raped.
[22]
Lastly, the impact on the victim should be considered. The
complainant was interviewed approximately 2 years
after the incident
but was still experiencing trauma. She lived in fear that the
appellant would kill her should she tell her family.
[23]
It is settled law
that,
where a trial judge makes findings on credibility of a witness,
an appeal court will not interfere with or tamper with a trial
court’s credibility findings judgment unless, it is
demonstrably
clear from evidence that the trial court was wrong. See
R v
Dhlumayo and Another.
[6]
The principle was echoed in
S
v Pistorius
[7]
where the court remarked as follows: “
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.' 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
.”
[24]
The appellant did not dispute that the complainant and her Aunt are
known to him. The court a quo found that
the evidence of the
complainant was satisfactory and without any contradictions. The
court a quo correctly rejected the evidence
of the appellant as
false. There is no reason to interfere with the conviction.
[25]
The appellant was sentenced to life imprisonment in terms of
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. It was submitted on
behalf of the appellant that the sentence be reduced to 20 years’
imprisonment.
Section 51(1)
provides:
“
Notwithstanding
any other law but subject to subsections (3) and (6) a High Court
shall if it has convicted a person of an offence
referred to in
Part
I
of Schedule 2, sentence the person to imprisonment for life
.”
[26]
The court a quo found no substantial and compelling circumstances
warranting deviation from the prescribed
minimum sentence. A court of
appeal will be entitled to interfere with the sentence imposed by the
trial court if the sentence
is disturbingly inappropriate or out of
proportion to the seriousness of the offence.
[8]
In imposing an appropriate sentence, the court should always balance
the circumstances of the offence, the personal circumstances
of the
offender and the impact of the crime on the community, its welfare
and concern.
[9]
[27]
Further, it is trite that sentencing is pre-eminently a matter for
the discretion of the court a quo and
that the court of appeal should
be loath to interfere with an imposed sentence. In
S
v Petkar
[10]
the applicable legal principles are stated as follows: “
This
Court’s powers to interfere with a sentence on appeal are
circumscribed. It may only do so if the sentence is vitiated
by (1)
irregularity, (2) misdirection, or (3) is one to which no reasonable
court could have come, in other words, one where there
is a striking
disparity between the sentence imposed and that which this Court
considers appropriate
.”
[28]
The appellant was well known to the complainant. The appellant used
to visit his sister where the complainant
was residing. The
complainant could not tell anyone about the incident as the appellant
promised her that, he will kill her should
she tell anyone about the
incident.
[29]
In totality of the circumstances of this appeal I cannot find that
there is any basis upon which we can interfere
with the appellant’s
sentence.
[30]
When weighing up the mitigating factors against the
aggravating circumstances, in this matter as well as
the interests of
the community, I am not persuaded that there is a just cause to
interfere with the sentence imposed. The appeal
ought to fail.
ORDER
[31]
Consequently, the following order is made:
1.
The appeal against conviction and sentence is dismissed.
E
MAHLANGU, AJ
I
concur, and it is so ordered
NS
DANISO, J
Appearances:
Counsel
for Appellant:
Ms.
S. Kruger
Attorneys
for Appellant:
Bloemfontein
Justice Centre
Legal
Aid SA
4
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
BLOEMFONTEIN
Counsel
for Respondent:
Adv A
Bester
Attorneys
for Respondent:
The
Director of Public Prosecutions
Ground
Floor
Waterfall
Centre
Aliwal
Street
BLOEMFONTEIN
[1]
R
v Dhlumayo
1948(2)
SA 677 (A).
[2]
Woji
v Santam Insurance Co Ltd
1981(1)
SA 1020 (A).
[3]
S v
Dyira
2010(1)
SACR 78 (ECG).
[4]
S v
Malgas
2001(2)
SA 1222 (SCA).
[5]
S
v Zinn
1969(2)
SA 537 (A).
[6]
R v
Dhlumayo
fn1
.
[7]
S v
Pistorius
[2014] ZASCA 47
,
2014
(2) SACR 315
(SCA) para 30.
[8]
S v
Romer
[2011] ZASCA 46
;
2011 (2) SACR 153
(SCA) para 22.
[9]
S v
Banda and Others
1991
(2) SA 352
(BGD) at 355.
[10]
S
v Petkar
1988
(3) SA 571
(A) at 574D.