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[2024] ZAKZPHC 73
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V.K v S (AR327/23) [2024] ZAKZPHC 73 (30 August 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR327/23
In
the matter between:-
V[...]
K[...]
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
1.
The Appeal is dismissed.
2. The Convictions and
Sentences of the court
a quo
are confirmed.
JUDGMENT
R.
Singh, AJ (Olsen, J concurring)
[1]
The appellant was convicted in the Durban Regional Court,
on 17 July
2023 on two counts of rape. The charges were read with the provisions
of s51 of the Criminal Law Amendment Act 105 of
1997 (the CLAA) and
s256 and s261 of the Criminal Procedure Act 51 of 1977 (the CPA) thus
attracting a prescribed minimum sentence
of life imprisonment as the
complainants S M and A M were six years old and ten years old,
respectively at the time of the offences.
The court
a quo
did
not find any substantial and compelling circumstances that warranted
deviation from the prescribed minimum sentence. The appellant
was
sentenced to two terms of life imprisonment in respect of both
counts. The appellant is exercising his automatic right of appeal
provided for in s309 of the CPA in respect of conviction and
sentence.
[2]
The appellant was engaged in a relationship with Ms D
M and they
commenced living together in 2015. Ms D M’s daughters, namely T
S M, and the two complainants S M and A M lived
with them. The
appellant and Ms D M have one male child, K M.
[3]
The first complainant A M testified that during 2020
when it was the
lockdown period, there was limited attendance at school. The
appellant would start work at 09h00 of each day and
was off work on
Wednesday of each week. She attended school on some days and on other
days, she would be at home with the appellant
and K M.
[4]
During November 2020, she was at home doing chores when
the appellant
called her inside the house. He was seated on his bed and he told her
to play a game on his cell phone. Whilst she
was playing the game on
his cell phone, he removed her underwear and his trunk. He inserted
his penis into her vagina. She demonstrated
what the appellant did to
her to the court by using analytic dolls.
[5]
He threatened her that she was not to tell her mother
or he would
kill them all. She told her sister T S M the following day. She
stated that he continued the ‘naughty deeds’
over a
period of time whilst her mother was at work and her siblings at
school. On each occasion, he would threaten to kill her
family.
[6]
She denied that she was never alone with the appellant
under
cross-examination and that her mother would be at home. She refuted
any suggestion that her mother used to go out and party
and would
quarrel with the appellant upon her return. She also denied that
following one such quarrel, her mother threw the appellant’s
personal belongings out but they reconciled on 21 May 2021 when he
was thrown out again and arrested. She reiterated under
cross-examination
that she and her sisters went to school on
different days and her mother went to work.
[7]
A M was however unable to say when the incidents commenced.
She
stated that the first incident occurred when she was washing dishes
and the appellant called her to him. The next incident
occurred when
she was cleaning dirt next to the television. She experienced pain in
the area of her womb during the second incident.
She did not
embellish her evidence and readily conceded that the appellant
treated her siblings and her as his own children except
that he did
‘silly things’ to them.
[8]
The second complainant, S M was eight years old at the
time she
testified. She stated that her mother had gone to work and A M had
gone to school on the day of the first incident. Her
sister T S M was
at home hanging clothes. She was asleep in her bed which was in the
kitchen. The appellant woke her up and carried
her to his bed. He
inserted his penis into her vagina. He threatened her not to tell
anyone about the incident or he would beat
them up. She told T S M
about what had happened and expected T S M to tell their mother about
the incident. She recalled being
taken to the police station and
speaking to a social worker but could not recall any medical
examination. She stated that aside
from the appellant no one else
sexually violated her. She also stated that she had a good
relationship with the appellant.
[9]
The eldest of the three sisters, T S M was 13 years old
and in Grade
8 at the time of the trial. She stated that one day when she was
walking to the shop with S M, she noticed that S
M had a lot of money
in her possession. She questioned S M who told her that the appellant
gave A M and her money to have sexual
intercourse with him. She did
not report this to her mother because she was afraid of the
appellant. About two days after this
conversation with S M, the
appellant approached T S M when she was alone at home with him and
told her to play games on his cell
phone. She did not like the
suggestion and left the house. She only returned home when her mother
returned home from work.
[10]
She further stated that S M had reported the rapes to her on two
occasions,
the one time being when she questioned S M about the money
in her possession and the second time when they were by the showers
doing washing, S M told her to go to the house because the appellant
was in bed with A M. T S M stated that she did not go immediately
because she was afraid that the clothes would be stolen. When she
went over to the house, A M did not want to speak about the incident
and they were afraid that the appellant was overhearing their
conversation. T S M denied that their mother drank alcohol when she
came back from work or that the appellant and her mother had problems
because of her mother consuming excessive alcohol.
[11]
Ms D M, the mother of the two complainants testified that in
2021 she
arrived home from work and the appellant told her that T S M
left home in the morning and did not return. T S M was eventually
found at the home of a neighbour. She questioned T S M about why she
was not at home and T S M told her that the appellant had told
her to
come to the bed and ‘play the game’. T S M told her that
she became nervous and ran away. Ms D M stated that
she confronted
the appellant as she had an uneasy feeling and that ‘something
like that tweaked my mind’.
[12]
On the Saturday of that week, D M asked T S M to explain again about
what had
transpired. She also spoke to both complainants who
confirmed that they were being raped by the appellant. Ms D M said
that at
the time she was pregnant with the appellant’s and her
minor child, K M, she had not been working but after his birth she
started working at a factory at Unit […], Chatsworth. She
denied any suggestion by the appellant’s legal representative
that she and the appellant quarrelled because she consumed alcohol to
excess and that she was not employed.
[13]
The J88 medical reports were completed by Dr B S Mdladla who also
testified
at the trial. In respect of S M, Dr Mdladla’s
conclusion was that there was evidence of ‘previous penetration
as noted
by redness of vestibular and also opening of the hymen’.
He also noted reddening around the external genitalia. He testified
that the examination was consistent with the history provided in
respect of the child.
[14]
Dr Mdladla also examined A M on 21 May 2021 and recorded that there
was redness
on the vestibular arear with old scarring as well as an
open vaginal orifice. He stated that this too was consistent with the
history
furnished to him.
[15]
Under cross-examination he was adamant that he examined both children
despite
the evidence of S M being that she had not been examined by a
doctor. He stated that S M may have forgotten and further that he
was
dressed in civilian clothes when he examined S M because children are
normally afraid of doctors. He was further emphatic that
he
remembered the two girls as they told him that on the day of the last
rapes it was the Muslim festival of Eid and they had celebrated
Eid.
[16]
The appellant testified in his defence. The gist of his evidence was
that the
complainants and their mother were implicating him in these
charges because the mother, Ms D M would go out to her sister’s
home and become intoxicated. She would arrive home in the late hours
of the night and argue with him in the presence of the children.
He
conceded that there were no problems in his relationship with the
complainants and their sister T S M. He was adamant that the
complainants’ mother was always at home as she was unemployed
and that he was not alone with both complainants as they would
have
the court believe.
[17]
It is well
established that a court of appeal is not at liberty to interfere
with the findings of the trial court unless they are
clearly shown to
be wrong.
[1]
The evidence in
respect of both counts was based on the evidence of a single witness,
namely the two complainants. Apart from being
single witnesses to the
acts of rape, the complainants were five and nine years old,
respectively at the times of the incidents.
For many years, the
evidence of child witnesses, particularly single witnesses was
treated with caution because of the perception
that a child witness
could easily be manipulated to implicate a perpetrator falsely. S208
of the CPA nonetheless provides that
an accused may be convicted of
any offence on the single evidence of any competent witness. The
court in
Woji
v Santam Insurance Company Limited
[2]
stated that the court must be satisfied that the evidence of a single
witness is trustworthy. The court must also take into account
that
trustworthiness depends on a number of factors such as the child’s
power for observation, recollection and his power
of narration on the
specific matter to be testified.
[18]
The court
in
Vilikazi
v S
[3]
stated that the double cautionary rule should not be used to
disadvantage a child witness on that basis alone and that the
evidence
of child witnesses must be considered as a whole taking into
account the totality of the evidence. The question of fairness in
assessing a witness’s evidence in relation to sexual offences
was also dealt with in
s59
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, which is to the effect
that late reporting of incidents does not take a matter any further
when considering charges of rape
[4]
.
S60
of Act 32 of 2007 further provides that ‘notwithstanding
any other law, a court may not treat the evidence of a complainant
in
criminal proceedings involving the alleged commission of a sexual
offence pending before that court, with caution, on account
of the
nature of the offence.’
[19]
Both complainants in my view were consistent and corroborated by
their sister
T S M. They may not have been able to use correct
biological terminology regarding the use of the words like ‘penis’
or ‘vagina’ and for that matter referred to the rapes as
‘silly things’. However they were, with the help
of the
analytical dolls, able to give a clear account of what had happened
to them. Their explanations for not reporting the rapes
was also
reasonable. One has to be mindful that the appellant threatened both
of them with assault if they reported the incidents.
In relation to S
M, he was clearly bribing her by giving her money. This was not
challenged by the appellant in the court
a quo
. I am therefore
satisfied with both complainants’ explanations for not
reporting the rapes.
[20]
Likewise, I find that the evidence of T S M and the complainants’
mother
Ms D M was clear and satisfactory in all respects. Both of
them withstood cross-examination. There was no embellishment on their
part. I find it noteworthy that if any credence is to be placed on
the appellant’s version that he was being implicated by
the
complainants’ mother because they ended their relationship
because of her excessive alcohol consumption, he could very
well have
been implicated in raping T S M as well. T S M however was clear that
she became uncomfortable when the appellant suggested
that she come
to his bed to play the game on the cell phone and ran away. This, in
my view is consistent with a child who had already
been forewarned by
her two siblings that they were sexually violated by the appellant.
[21]
I am
therefore satisfied that the court
a
quo
correctly weighed up ‘all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strength and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused’s
guilt.’
[5]
[22]
In relation to the appellant’s evidence in the court
a quo
,
save for his bare denial and his version that the complainants’
mother was at home at all times, he raised no worthy defence.
In my
view, the court
a quo
was correct in rejecting his version.
The trial court correctly convicted the appellant as charged.
Consequently, the appeal against
both convictions must fail.
[23]
I now turn
to the appeal on sentence. The trial court imposed a prescribed
minimum sentence of life imprisonment in respect of each
count. It is
trite that sentencing or punishment is pre-eminently the discretion
of the trial court. When exercising its appellate
jurisdiction, the
appellate court will not in the absence of material misdirection by
the trial court approach the question of
sentence as if it were the
trial court and then substitute the sentence arrived at simply
because it prefers it. To do so would
be to usurp the discretion of
the trial court. Where however there is a material misdirection by
the trial court, an appellate
court is entitled to consider the
question of sentence afresh. In doing so, it assesses the sentence as
if it were a court of first
instance and the sentence imposed by the
trial court has no relevance. Even in the absence of a material
misdirection an appellate
court may be justified in interfering with
the sentence imposed by the trial court if there is a disparity where
the sentence can
be described as shocking, startling or disturbingly
inappropriate.
[6]
[24]
In my view there is no irregularity or misdirection in the sentence
imposed
by the court
a quo
. I am satisfied that the court
a
quo
exercised its sentencing in discretion judicially and that
all other relevant factors and circumstances were duly considered and
taken into account.
[25]
There was
nothing special about the appellant’s personal circumstances.
He has not shown any remorse despite being in a position
of trust in
respect of both complainants. They were both violated by the very
same person whom they regarded as a father and to
whom they would
have looked for protection.
[7]
The appellant took away both complainants’ childhood, self
esteem, peace and their right to freedom. As held in the
matter of
Director
of Public Prosecution, Eastern Cape, Makhanda v Coko
[8]
:
‘
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.’
[26]
In my view the personal circumstances of the appellant are far
outweighed by
the seriousness of the offences and the interests of
society. I therefore do not believe that our interference in sentence
is warranted.
Counsel for the appellant chose not to make submissions
in support of a contrary view.
[27]
I accordingly propose the following order:
1.
The Appeal is dismissed;
2.
The Convictions and Sentences of the court
a quo
are
confirmed.
R
SINGH, AJ
I agree
OLSEN
, J
CASE
INFORMATION
APPEARANCES
For
Appellant:
Mr P
Daniso
Instructed
by Appellant’s Attorney:
Legal
Aid South Africa
For
Respondent:
S
Parak
Instructed
by Respondent’s Attorney:
Director
of Public Prosecutions
Durban
Date
of hearing:
23
August 2024
Date
of judgment:
30
August 2024
[1]
R
v Dhlumwayo
1948
(2) SA 677 (A)
[2]
Woji v
Santam Insurance Company Limited
1981 (1) SA 1020
(A) at 1028 B to D
[3]
Vilakazi
v S
2016
(2) SACR 365 (SCA)
[4]
Jantjies
v S
[2023]
ZASCA 3
para 9
[5]
S
v Chabalala
2003 (1) SACR 134
(SCA) at para 15
[6]
S
v Malgas
2001
(1) SACR 469
(SCA) para 12
[7]
Ts
habalala
v S, Ntuli v S
2020
(5) SA 1
CC
[8]
Director
of Public Prosecution, Eastern Cape, Makhanda v Coko
[2024] ZASCA 59
, para 2