About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 83
|

|

S v Klaushe (CC02/2024) [2024] ZAECMKHC 83 (20 June 2024)

DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:

YES / NO
(2)
OF INTEREST TO OTHER JUDGES :YES / NO
(3)
REVISED
....................................................
SIGNATURE
DATE:
.............................
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION FOR MAKHANDA
CASE
NO
:  CC02/2024
DATE
:
20-06-2024
DELETE
WHICHEVER IS NOT APPLICABLE-
-(1)
REPORTABLE:  YES / NO.
(2)
OF INTEREST TO OTHER JUDGES:  YES / NO.
(3)
REVISED.
DATE
SIGNATURE
In
the matter between
THE
STATE
and
SIVUYILE
KLAUSHE

Accused
J
U D G M E N T
NONCEMBU
J
:
The accused in this
matter is facing a charge of rape in contravention of section 3 read
with sections 1, 56(1), 57, 58, 59 and
60 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act.
Can I just establish does
the accused; I know that throughout the accused in this matter did
not have interpretation services, does
he require them now?
ACCUSED
:
M’Lady, I require that it be interpreted just for some phrases
that I might not understand.
COURT
:
Thank you.
INTERPRETER
:
M’Lady, tell me, I am so sorry, is there a copy for me?
COURT
:
Unfortunately, there is not…[speaking simultaneously]
INTERPRETER
:
No, it is fine.  It is fine, M’Lady.
COURT
:
It is alleged that on 24 April 2023 he performed an act of sexual
penetration with the complainant, a 10-year-old
girl, by inserting
his penis in her vagina without her consent.
For purposes of this
judgment the complainant shall be referred to as LM in order to
protect her identity as provided for in terms
of the law due to her
young age.
Section 51(1) of the
Criminal Law Amendment Act which provides for a discretionary minimum
sentence of life imprisonment is applicable
in the matter in that the
complainant was below the age of 18 years when the offence was
committed.
The accused pleaded not
guilty to the charge and he elected not to give any plea explanation,
however, he made certain admissions
in terms of section 220 of the
Criminal Procedure Act pertaining to
inter alia
his identity
by the complainant not being taken in issue, as well as the
chronology of events of the day before the incident in
question.
The state led the
evidence of five witnesses in the matter, these being the
complainant, her mother and biological father, her aunt,
as well as
the forensic nurse who examined the complainant.  The accused
closed his case without leading any evidence.
A photo album depicting
the scene of crime was admitted by consent and admitted as EXHIBIT
C.
What follows hereunder is
a brief exposition of the evidence that was tendered before this
Court.  The complainant testifying
through an intermediary,
after being properly admonished by this Court, told the Court that on
the day before the incident, which
was a Sunday, she was dropped off
at church by her mother and the accused whom he called
Bhuti
and regarded as her second father.
The accused was her
mother’s boyfriend and they lived together in Nahoon, East
London, since she was about five or six years
old.  Her mother
was going away on a work-related trip.  After church she was
picked up by her aunt, who was also in
church, to her house in
Amalinda from where she was later fetched by the accused and taken
home.
The accused left her
alone at home for awhile but later came back.  He went to his
room and the complainant went to sleep in
her bedroom.  During
the course of the night there was loadshedding but although it was
dark it was not so dark that one could
not see.  In that time
the accused came to the complainant’s room, removed her pyjama
pants and underwear, applied Vaseline
in her vagina and inserted his
penis in her vagina.
She clarified during
cross-examination that she did not know the name of these body parts
at the time but she learnt of them after
being told by some people
after the incident had happened.
Whilst demonstrating with
anatomically correct dolls she showed the Court the position as well
as the movements made by the accused
whilst he was on top of her
saying that the accused was kind of swaying side to side whilst on
top of her, movements which appeared
to be consistent with sexual
intercourse.   She was kicking and fighting trying to get
the accused off of her.
Whilst the accused was
still busy making the said movements on top of her, the electricity
came back signifying the end of loadshedding.
The accused
quickly got off her, bid her goodnight and went to sleep in his
room.  At that stage the complainant sent a message
via WhatsApp
to her mother informing her what had happened.
Her mother called her
biological father by the name of A[...] and after a short while the
mother called her back again telling her
that the biological father
was waiting outside.  She opened the door and went outside where
she met her father and told him
what had happened.  Her father
took her to Medicross Hospital in East London.  At Medicross
they were referred to a hospital
in Mdantsane where she was examined
by doctors.
Her mother also came and
she narrated to her what the accused had done. They went to the
detectives’ offices where she
told the police what had
happened.
Her mother called the
accused but the accused did not answer the phone.  They went to
Berea where they found the accused but
the accused refused to talk to
the complainant’s mother.  The detectives went inside and
arrested the accused.
During cross-examination
she explained further that her vagina was sore during the sexual
intercourse and that although she did
not scream, she was crying at
the time.  She also stated that it was painful to urinate after
the incident.  She estimated
the ordeal to have lasted for about
two to three minutes.
She was also shown the
photo album depicting a bedroom which she confirmed to be her bedroom
where the incident happened.
She pointed the Court to one of
the photos in the album depicting a Vaseline tub, which was on the
dressing table next to the bed,
stating that it was the one used by
the accused to apply in her vagina as it always stayed next to the
bed.
Her mother corroborated
her evidence with regards to the events of the Sunday before the day
of the incident, specifically that
she dropped her at church together
with the accused person and she was later to be picked up by her
cousin.  She testified
further that after she had left for her
business trip, she kept on communicating with the accused as she
wanted to make sure that
he did not forget to pick up the complainant
from her cousin’s place as she needed to be in bed on time as
the following
day was a school day.
At some stage after eight
in the evening when she tried to get hold of the accused on the
phone, the accused did not answer his
phone.  After
communicating for a while with the complainant she fell asleep.
Around two in the morning
she saw a WhatsApp message on her phone from the complainant telling
her that she was not okay as the
accused had done something to her.
She called the complainant and the complainant told her what had
happened.  She then
called the complainant’s biological
father by the name of A[...], telling him that the complainant was
not okay without giving
him the full details of what had happened.
A[...] went to fetch the complainant from her home.
Her employer made
arrangements for her to come back home and she met up with the
complainant as she was busy making a statement
with the police
detectives.
She tried calling the
accused person on his phone but the accused did not answer.  She
tracked the accused through the vehicle
tracker and found him in an
area between Vincent and Nahoon in East London.  She asked to
speak to the accused but the accused
refused.  The accused was
thereafter arrested by the police.
A[...] confirmed
receiving a call from the complainant’s mother telling him that
the complainant was not okay.  He went
to their house, waited
outside as he normally did when he visited the complainant, called
the complainant’s mother to inform
the complainant that he was
waiting downstairs.
As the complainant came
out of the house- he noticed that something was not okay as she was
not wearing any shoes.  When he
asked her where her shoes were
the complainant said she was afraid to go back and fetch them.
He accompanied her back inside
to fetch her shoes.  He then took
the complainant to Life Beacon Bay Hospital in East London where they
were referred to the
Thuthuzela Rape Crisis Centre in Cecelia
Makiwane Hospital in Mdantsane.  The complainant was examined by
a nurse, thereafter
they went to the police.
Nothing much turned on
the evidence of the complainant’s aunt, N[…] B[…],
who picked up the complainant from
the church on the day of the
incident, except to state that she was with the complainant in the
same room the entire time that
the complainant was playing with her
girl children at her house after church until she was picked up by
the accused a day before
the incident.
The forensic nurse who
examined the complainant, Ms Nomvuyo Makinana, testified about her
observations and findings as recorded
in the J88 after examining the
complainant on the day of the incident.
Of significance in her
findings was that the complainant had redness and bruising on the
right side of the labia majora which she
stated was indicative of
blunt force injury.
She indicated that
although the hymen of the complainant was intact that is not
indicative of absence of penetration in that because
of her tenner
stage, which was three, the complainant’s hymen was highly
elastic and as such no longer sensitive thus making
it not easy to
sustain injuries.  She concluded that the genital findings were
consistent with fresh genital penetration.
The accused closed his
case without leading any evidence.  His version, as was put to
the complainant’s mother, was that
he was very drunk on the day
in question and that he does not know what happened.
The issue for
determination by this Court is whether or not the state has proved
beyond reasonable doubt that the accused person
raped the complainant
on the day in question.
Regarding the actual rape
the complainant was a single witness in the matter and therefore the
cautionary rule is applicable, first
by virtue of the fact that she
was a single witness, and secondly by virtue of her young age.
It is trite that a Court
can convict on the evidence of a single witness provided that such
evidence is clear and satisfactory in
all material respects.
Section 208 of the Criminal Procedure Act is apposite in this
regard.  With regards to dealing
with the evidence of a child
witness the following was stated by this division is
S v Dyira
2010 (1) SACR at page 78, and I quote:
“
The
courts should be aware of the danger of accepting the evidence of a
little child because of potential unreliability or untrustworthiness,

as a result of lack of judgment, immaturity, inexperience,
imaginativeness, susceptibility to influence and suggestion, and the

beguiling capacity of a child to convince itself of the truth of a
statement which may not be true or entirely true, particularly
where
the…”
MECHANICAL
INTERRUPTION
[09:26]
“
Here
more than one cautionary rule applies to the complainant as a
witness.  She is both a single witness and a child witness.”
A proper manner of
assessing the evidence of a child witness was set down in
Woji v
Santam Insurance Company
1981 (1) SA 1021
by the Appellate
Division where the Court stated the following and I quote:
“
The
question which 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 to
be testified.  In each instance the capacity of the particular
child is to be investigated.  His capacity
of observation will
depend on whether he appears intelligent enough to observe; whether
he has the capacity of recollection will
depend again on whether he
has sufficient years of discretion to remember what occurs, whilst
the capacity of narration or communication
raises the question of
whether the child has the capacity to understand questions put, and
to frame and express intelligent answers.
There are other
factors as well which the Court will take into account in assessing
the child’s trustworthiness in the witness-box.
Does he
appear to be honest?  Is there a consciousness of the duty to
speak the truth?  At the same time the danger of
believing the
child where evidence stands alone must not be underrated.”
As correctly conceded by
counsel for the accused the complainant in this matter ticked all
these boxes.  For a child of her
age her demeanour in the
witness box was impeccable.
Her account of events of
the day in question was given in a clear chronological and coherent
manner and the material aspects of
her evidence, not pertaining to
the actual rape itself, in particular the chronology of events, were
corroborated in material respects
by other witnesses, including her
mother to whom she reported the incident immediately, her biological
father, as well as her aunt.
In my view she faired way better
than most adult witnesses who appear in our courts.
I therefore welcome the
concession that the reliability and trustworthiness of her evidence
cannot be questioned.
Having made the above
concessions Mr Tshingana, on behalf of the accused, argued that the
matter turns on whether or not penetration
has been established by
the state.  He based this argument on the concession which was
made by the forensic nurse who examined
the complainant when a
proposition was put to her that penetration by any other object,
including a finger, could not be excluded.
He implored this
Court to draw an inference that the injuries sustained by the
complainant could have been caused by anything other
than penetration
by the penis of the accused.
This argument, however,
presents with a number of shortcomings.  Firstly, it is not
based on any evidence presented before
Court.  Granted the
concession by the forensic nurse was correctly made because
objectively speaking such injuries indeed
could be cause by any other
blunt object.
However, the subjective
evidence of the complainant, which this Court has no basis to reject,
is that the accused inserted his penis,
which she described as the
body part which boys use to “pee”, into her vagina, also
appropriately described.
This in my view takes away the
possibility of her making a mistake with regards to what object
penetrated her due to her lack of
knowledge of sexual activity
consequent upon her young age.
It was held in
S v F
1990 (1) SACR 238
(A) that in the absence of facts such possibilities
(as was suggested by Mr Tshingana in the present matter) were no more
than
mere speculation.  Furthermore, in terms of the act
penetration is described as including any act which causes
penetration
to any extent whatsoever.
Dealing with this issue
of penetration, the Court in
S v Letsibane
2020 JDR 1087 (GP),
the Court held that for a finding of a rape the law did not require
that the sexual deed had to be completed.
In this regard Bam J
stated that penetration to any extent was sufficient to constitute
the crime of rape.
Many other authorities
have confirmed that entry into the labia, described as the anterior
of the female genital organ, even to
the slightest extent was
sufficient for the element of penetration resulting in criminal
liability for the crime of rape.
Milton in South African
Criminal Law and Procedure 3
rd
Edition, Volume 2, also
states that what is required is penetration of the labia by the penis
albeit to a slight extent.
Lastly on this issue, in
an article titled, An Inconvenient Truth on the Absence of Definitive
Corroborative Medical Evidence in
Child Sexual Abuse Cases by
Professor Susan Kreston a Fullbright scholarship recipient, relying
on multiple medical studies that
conclude it is completely possible
for a child to be sexually abused but for there to be no discernible
physical trace on the child,
examines the most common reasons why
definitive medical evidence is not forthcoming in the overwhelming
majority of child sexual
abuse cases.
She states the following
in her introduction to the article and I quote:
“
There
is a wrongly yet widely held belief that if a child has been sexually
assaulted medical evidence will be able to conclusively
corroborate
the child’s evidence.  This myth is doubly dangerous in
that it subjects both the victim’s case and
the medical
community to unrealistic standards that simply cannot and will not be
met in the overwhelming majority of instances
of child sexual abuse.
The truth is that while medical examination can sometimes confirm
that a child has been sexually assaulted,
it can never exclude it.”
Incidentally similar to
the evidence of the forensic nurse who testified in this court one of
the reasons she mentions for lack
of medical evidence in child
sexual, in child victims of sexual assault is elasticity.
She states that similar
to the evidence of the nurse who testified in this matter that the
hymen’s tissue is elastic and full
penetration by an object, a
finger or even a penis, particularly in an older child may cause no
visible trauma, e.g., the tearing
or e.g., tearing the posterior rim
of the hymen.
Another reason she
mentions for absence of injuries in such cases is what she refers to
as offender/victim typology.  In this
regard she opines that a
careful perpetrator of child abuse, of child sexual abuse, or an
experienced one is likely to perform
an act which will result in his
or her detection.
She states that in most
circumstances this perpetrator is well-known to the child and force
is generally not used.  This type
of child abuse perpetrator is
called intimate offender, in that the offender is known to and
trusted by the child victim, they
tend to cause less physical harm to
their victims.
I find the similarities
between the offender/victim typology referred to in the above study
and that of the accused and the complainant
in the present matter to
be strikingly uncanny.  The closeness between the complainant
and the accused in this matter was
to the extent that she considered
the accused to be her second father.
And significantly in her
evidence she stated that the accused rubbed Vaseline on her vagina
before penetrating her, a
And as stated by the
forensic nurse this could explain why she did not suffer serious
injuries because Vaseline acts as a lubricant
making penetration
easy.
I take note of the minor
discrepancy between the nurse’s evidence as recorded in the J88
and that of the complainant in this
regard.  In my view this is
insignificant.
Furthermore, the
suggestion by Mr Tshingana that the complainant may have made a
mistake in this regard applies equally in respect
of the forensic
nurse.  I dare say even more so in the case of the forensic
nurse because her recordal in this regard was
based on hearsay, in
other words, what she was told by the complainant and therefore room
for misunderstanding or miscommunication
can never be excluded.
The complainant on the
other hand whose evidence could not be faulted was testifying about
her own personal experience, and if one
views the two versions
objectively the complainant’s one is more plausible if one
considers that the only way she could have
come up with a deduction
or even a suspicion that Vaseline was used in her vagina was if she
knew what purpose the Vaseline would
serve, that is that of a
lubricant.  And from the evidence before Court and given her age
this Court can readily; we can readily
accept that she could not have
had such knowledge.
It is apparent therefore
that the accused used Vaseline as a lubricant for easy penetration to
ensure that the complainant sustained
as little harm, if any, as
possible during the penetration.
One other significant
aspect in this regard is the movements that were made by the accused
whilst on top of the complainant as she
so eloquently demonstrated
before this Court.  Most victims of sexual abuse when describing
the sexual act refer to up and
down movements being made by the
perpetrator.  In this matter and as visibly demonstrated by the
complainant the accused was
swaying left and right as if trying to be
gentle enough so as not to injure the complainant, once more talking
to the closeness
between the two in as far as the offender/victim
typology referred to above.
Given all the authorities
that I have referred to above I am therefore satisfied that the state
has proved beyond reasonable doubt
that the complainant was
penetrated by the accused on the day in question.
Regarding the purported
version by the accused that he was so drunk on the day in question
that he does not know what happened,
the following is apposite.
Firstly, he has no version before this Court to consider because no
evidence was tendered on his
behalf.  What was put to the
complainant’s mother regarding his state of sobriety was just a
proposition which bore
no evidential value as it was never tendered
under oath, this Court therefore need not even consider it.
I also find it quite
telling that this version was not put to the complainant, the one
person who was with and who saw the accused
first-hand at the time of
the incident.  Furthermore, the chronology of event as narrated
by the complainant on the night
in question does not correspond with
the conduct of someone who was acting in a stupor due to a high level
of intoxication.
The evidence of the
complainant demonstrated the conduct of someone who had very
carefully planned and calculated how he was going
to execute his
plan.  He went into the complainant’s room when it was
loadshedding and therefore dark and when the electricity
came back,
he quickly got off the complainant.
According to the
complainant the rape lasted for only about three minutes because he
was disturbed by the lights coming back.
He used Vaseline as a
lubricant to ensure smooth penetration so that no visible injuries
caused by friction were sustained by the
complainant thus to make
detection difficult.  All this points to someone who knew
exactly what he was doing thus making his
version that he was so
drunk that he does not know what he was doing highly improbable.
I therefore reject it as false.
I am thus satisfied that
the state has proved the guilt of the accused beyond reasonable
doubt.  He is therefore accordingly
found guilty of rape as
charged in the matter.
…………………………
..
NONCEMBU J
JUDGE OF THE HIGH
COURT
DATE
:
……………….
MR
TSHINGANA
:   As the Court
pleases, M’Lady.
ACCUSED’S
PREVIOUS CONVICTIONS ARE PUT TO HIM
:
As the Court pleases, M’Lady.  The state proves one
previous conviction and it reads as follows.
On 7 February 2019
in Mdantsane the accused person was convicted of contravening section
65(2)(e) of Act 93 of 1996 which is driving
a vehicle on a public
road while the concentration of alcohol in blood is not less than
0,05 grams per 100 millilitres and he was
sentenced to a fine of R3
000 or 6-months’ imprisonment and was suspended for a period of
5 years.  In terms of section
35(3) of Act 93 of 1996 the Court
orders that the suspension of the accused’s licence shall not
take effect.
COURT
:
Please rise, Mr Klaushe.  Do you admit the previous conviction
that was read out to you?
ACCUSED
:
Yes, M’Lady.
ACCUSED ADMITS HIS
PREVIOUS CONVICTION
COURT
:
Please sign the SAP69 form.  The SAP69 is admitted and marked as
EXHIBIT E.
MR
TSHINGANA
:   Court pleases,
M’Lady.
MR
SOGA
:   The Court pleases,
M’Lady.  Lastly, M’Lady, the state applies to hand
in the victim impact report
of the complainant that had been compiled
by a social practitioner, [indistinct].  My learned colleague
was furnished with
a copy of the report.
COURT
:
Can you just read the findings of the report into
the record?
MR
SOGA
:   Thank you, M’Lady.
COURT
:
Or the evaluation.
MR
SOGA
:   As the Court pleases,
M’Lady.  Starting with paragraph 8, psychological
emotional trauma suffered.
“
The
minor child expressed her feelings of disappointment against the
accused.  Trust had been broken as she regarded him as
the
father.  According to the minor child the accused violated her
at the time she was starting to have a strong bond with
him.  To
her she was the father and she played that role of being a father to
her.  According to L[…][?] the accused
created a very
worse situation and I quote as said by the complainant, “I will
become uncomfortable with the person who did
this”, she
expressed herself; at this moment she is disassociating herself from
the accused.  She experienced nightmares
which she regarded as
triggering dreams of the trauma.  To her these nightmares bring
back all the memories of the trauma.
She further explained how
the dreams or rather nightmares showed her what she could have done
during the trauma incident.
This shows that the minor child is
blaming herself for what happened to her at the time of the trauma.
She felt scared and
sickly.  L[…] also reported that she
lost her aunt she was confiding to as she passed on.  She
expressed her feelings
of grief explaining how her aunt was able to
make her feel when she is going through the most.  It seems that
the minor complainant
had lost three significant people in her life.
The father figure, that is the accused, her aunt through death and
her maternal
family though her mother allows her to speak with her
maternal aunt.  The family is now ripped apart.  A sense of
betrayal,
guilt, loss, grief, powerlessness is being felt by the
minor child.  Ms [indistinct], that is now the complainant’s
mother, reported the impact of the offence to her daughter as
follows.  The offence has created a breakdown within the
family.
She lost her family and finding herself alone with her
mother.  The only support received is from fellow colleagues.

L[…] now locks the bathroom when she is taking a shower or a
bath.  She does everything in a locked bedroom.
Before the
incident they were taking a bath and do everything together as a
mother she is now finding herself reminding L[...]
that they are both
females and there is no male in the house, she does not need to lock
herself up as there are no strangers in
the house.  Both the
minor complainant and the mother are residing in a secured estate
where there is no access to uninvited
guests from the
access-controlled gate, but this does not make L[...] feel safe at
home.  Safety and protection were not available
at the time of
need.  The minor child now hates the darkness.  She does
not sleep in the dark and there must be light
all the time or lights
always switched on at night.  She refuses and does not want to
sleep alone.  She discards the
pyjamas called “
onesie
”;
she hates it.  She does not want to wear skirts and dresses
anymore (feeling of shame).  At school she chooses
to wear a
skort[?].  Her academics remained the same.  She is
progressing well at school.  The minor child is always
carrying
her teddy bear called, DT, wherever she goes.”
And the evaluation,
M’Lady, on paragraph 12 reads as follows:
“
L[...]
M[…] is 11 years old.  She was 10 years old at the time
of the rape ordeal.  She is currently in Grade 6
in George where
she resides with her mother.  She is operating according to her
range of cognitive development which is formal
operational phase,
this is a stage of development where children are starting to
reason.  Children at this stage become aware
of the consequences
of their disclosure.  This is the reason in cases of
intrafamilial sexual abuse [indistinct] and delayed
disclosure is
heightened.  Children at this stage of development continue to
be egocentric and believe that everything that
happens to them they
are to be blamed.  Feelings of guilt are starting to surface to
the minor child as she narrates the details
of her nightmares.
The nightmares or dreams are showing her what she did not do during
the traumatic event.   Her
thoughts are telling her that
there were things she was supposed to have done, escape the offence.
Feelings of blame and
guilt are kicking in.  She verbalised
feelings of disappointment for what the accused did.  She is now
disassociating
herself with him as she is unable to address him in
anyway. Feelings of shame were identified by her mother as the
child is
not comfortable reacting with her mother or in front of
her.  The sexual offence took away the trust she had with the
people
in general and she does not feel safe even at home.  She
was sexually violated at a place she called home by the trusted
figure
she regarded as a father who was meant to protect her during
her mother’s absence.  The offence now had brought up a

distorted value systems in the child’s mind.  The minor
child now feels that the world is not safe even around people
who can
be trusted.  It brought about confusion between wrong and
right.  The word[?] model of trust and possession did
not work
at the time of need.  Sexual abuse of children has got a
long-lasting effect on the child.  It does not go away
but the
child will learn to cope with the aftermath of her ordeal as long as
she lives.  It does not affect the child as a
victim alone but
impacts the family and the society as a whole.  The fact that
she is an introvert cannot be misunderstood
by the fact she is coping
well.  The effects of the trauma continue to exist and can also
show in adulthood.  If unattended
it could lead to rebellious
behaviour in the future, substance abuse, self-harm, suicide, lots of
mental issues.”
The conclusion and
recommendation in paragraph 11:
“
It
is therefore recommended that both the minor child and the mother be
referred for psychotherapy to assist to cope better with
the
aftermath of the ordeal.  The offices of the Department of
Social Development are available in all areas.  They will
be in
a position to assist the family in this regard.”
That is all, M’Lady.
May I hand it in, M’Lady?
COURT
:
Mr Tshingana, was the report explained to the
accused?
MR
TSHINGANA
:   No, M’Lady,
it has not been but it has just been given by my learned colleague
just before the court started.
COURT
:
Can you summarise the report for the benefit of
INTERPRETER
:
Thank you, M’Lady.
COURT
:
Thank you.  The report is admitted and marked as EXHIBIT F.
MR
TSHINGANA
:   Court pleases,
M’Lady.
MR
SOGA
:   The Court pleases,
M’Lady.
COURT
:
Mr Soga, was the complainant referred to the recommended
psychotherapy?
MR
SOGA
:   That is correct,
M’Lady, I did interview the mother of the complainant, there
are sessions that he attended
and she is busy with those sessions,
M’Lady.
COURT
:
Thank you.  Mr Tshingana.
MR
TSHINGANA
:   Thank you,
M’Lady.  May I approach my learned colleague for the state
quickly, M’Lady?
COURT
:
Yes.
MR
TSHINGANA
:   May I approach
the accused quickly, M’Lady?
COURT
:
Yes, you may.
MR
TSHINGANA ADDRESSES COURT
:
Thank you, M’Lady.  M’Lady, the defence is aware
that in respect of the charges that have been proven
against the
accused that there is a prescribed minimum sentence of life
imprisonment, however, the law states it clear, M’Lady,
that if
there are compelling and substantial circumstances to deviate, then
the Court may so do.
The personal
circumstances of the accused, M’Lady, are as follows, he is a
36-year-old male, was unemployed at the time of
his arrest, however,
he is a professional who had been working with the Department of
Public Works.  He has two dependants
aged 10 and six
respectively, a boy and a girl, M’Lady.  Indeed, as per
SAP69 he has a previous conviction, the sentence
of which has now
been completed, M’Lady.  He was a movable property, that
is a vehicle, has no immovable property.
M’Lady, the Court
needs to take into cognisance that the accused, as it was testified,
had great relations with the mother
of the complainant, as well as
the complainant.  Yes, M’Lady, voluntary taking alcohol
while one is fully aware of its
consequences is not an excuse
exonerating that particular person in the event of committing a
crime, however, it is a factor to
be considered, M’Lady,
considering the said relationship between the parties.
M’Lady, one may
find that defending this case on the part of the accused was not
showing remorse or was trying to delay the
finalisation of the
matter, or was to waste the state resources.  We submit, M’Lady,
that is not the case.
There were medical
questions, M’Lady, that needed clarity in order to determine if
in the event of a guilty verdict rape was
the appropriate charge to
have been proven by the state.
M’Lady, from a
layman’s point of view when a hymen is intact, as was reflected
in the J88, it simply means that there
was no penetration.  That
is how laypersons understand with no medical experience.
While in medical terms we
have come to learn before this Honourable Court, M’Lady, that
it simply means that there was no
damage or injuries to the hymen but
not necessarily that there was no penetration.  That was but one
of the reasons why the
matter was defended.
Further, M’Lady,
clarity was sought as to how there were no injuries, tearing
[indistinct], considering that it was a 10-year-old
that was raped by
a 36-year-old man.  Also, that, M’Lady, was based on the
fact that we understood from a laypersons
point of view that there
ought to have been visible and terrible injuries.
All these clarities,
M’Lady, were needed in order to assist this Court to decide on
whether or not there was actual penetration.
M’Lady, it is our
submission that the accused is capable of being rehabilitated as he
has learnt from the consequences of
excessive consumption of
alcohol.  He was confirmed by the mother of the child as a heavy
drinker, something that he will
learn from and try not to repeat in
future.
M’Lady, accused did
not lie or mislead this Honourable Court and he simply stated that he
could not remember, M’Lady,
and therefore he could not admit or
deny but in the event that he was to be found guilty considering the
fact that there was only
one version before the Court and that of the
complainant, what would then have been the appropriate charge for his
conviction?
A person in trouble,
M’Lady, has a choice always either to tell the truth or to lie
to cover his actions, but the accused
elected to tell his truth
without wasting the Court’s time and his truth was that he
could not remember.
M’Lady, it must
also be considered that the circumstances surrounding this event
depict that there was no violence that was
used by the accused except
for the actual penetration, M’Lady.  There were no threats
that were directed at the complainant.
M’Lady, there is
plethora of authorities to support the deviation from the prescribed
minimum sentence.  I will not waste
this Honourable Court’s
time with many of those but I will just cite one, that is
S v
Letsoalo
, (Case number 108/2022) [2023] ZAGPJHC 452, a judgment
that was delivered on 10 May 2023.  I am not going to quote from
the
case, M’Lady, but at paragraph 12 it just states the
circumstances in which a Court may deviate.  However, at
paragraph
12, M’Lady, it says:
“
Where
a court is convinced that after consideration of all the factors, an
injustice will occur if the minimum sentence is imposed
then it can
characterise such factors as constituting substantial and compelling
circumstances and deviate from imposing the prescribed
minimum
sentence.”
At paragraph 13, M’Lady,
it reads:
“
Further,
it is trite that particular factors whether aggravating or mitigating
should not be considered individually and or in isolation
to
determine whether substantial and compelling circumstances exist.
Alternately in deciding whether substantial and compelling

circumstances exist one must look at the traditional mitigating and
aggravating factors and consider the cumulative effect thereof.”
M'Lady, the defence is
aware of the fact that accused elected to exercise his right to
remain silent and did not take the witness
stand, it is therefore –
it was therefore not easy for the Court to establish his remorse,
however, the fact that he did
not take it, M’Lady, was solely
based on the fact that he felt that he had no version and then did
not want to delay this
Court any further.  However, it is not a
fact that should be taken as him having shown no remorse.
Under the circumstances,
M’Lady, the defence submits that it has satisfied this
Honourable Court that there exist compelling
and substantial
circumstances to deviate from the prescribed minimum sentence and
further, M’Lady, the defence has no objection
to the accused
being declared unfit to hold a firearm license.
If there is anything that
the Court wants me to address on, M’Lady, that will be all.
COURT
:
Okay.
MR
TSHINGANA
:   As the Court
pleases.
COURT
:
Mr Soga.
MR
SOGA ADDRESSES COURT
:   As
the Court pleases, M’Lady.  The state submits, M’Lady,
that the Honourable Court has [indistinct]
serious offence and he is
liable to be in possession of a life sentence in that sense of
substantial and compelling circumstances.
And as correctly pointed
out by the Honourable Court when delivering judgment the
complainant’s evidence in this matter revealed
that the accused
actions before this Honourable Court, before and after the event,
demonstrated that he was fully aware of his
actions and also the fact
that his conduct involved an element of planning in that he was
consciously aware of what he was doing
when he raped the complainant
hence he applied Vaseline on the genital organs of the complainant
before he raped her.
And the complainant in
this matter was 10 years old at the time of the incident thus
substantially under the age of 18 years and
I submit, M’Lady,
that due to her age she was particularly vulnerable and in addition
to that her mother was absent when
the offence was perpetrated by the
accused person.
The accused person I
submit, M’Lady, that he took advantage of the absence of the
complainant’s mother and abused the
complainant.  He knew
that the complainant’s mother was going to be away for three
days.  This is a factor that
is ordinary present, I submit
before this Court, on rapes committed within families or by those who
are close to them.  They
wait for the right opportunities and
strike.
And I submit, M’Lady,
that it is an aggravating factor that this heinous act by the accused
person was not committed by a
stranger but it was committed by a
person who was considered by the child to be a father.
And then now I submit,
M’Lady, that the accused person violated a breach of trust
between himself, the complainant, as well
as the mother of the
complainant and the offence took place at the place where the
complainant regarded it as her home and the
complainant throughout
her testimony, he referred to the accused person as
Bhuti
, he
kept of saying
Bhuti
, so that indicates, M’Lady, I
submit the trust that he had on the accused person.  And also,
as evident from the testimony
of the mother of the complainant that
shows that they maintained good relations, good relations with each
other.  He used
to assist the complainant with school work and
also, he used to drop the complainant at school.
Now, it is not known now
as to where this carnal desire from the accused person came from
because he perpetrated this offence on
the same day that his
girlfriend, that is now the mother of the complainant, left to
Maclear for her work duties.  So that
means, M’Lady, that
his behaviour was goal directed to satisfy his carnal desires on the
young helpless child who was left
now in his care by her mother.
I mean he had time,
M’Lady, I submit to reflect on his actions because the child
was sleeping alone in her own bedroom and
the accused person went
there, open the bedroom, went to the child’s bed, took off her
pyjama and underwear and committed
this heinous act.  I mean
that shows barbaric conduct on the person of the; the accused person
on the helpless child.
Now instead of restoring
his father figure to the complainant now he abused this position of
trust and by preying on her, instead
of setting an example to the
child and also take into account, M’Lady, that it was for the
first time that he was left; I
mean according to the mother that was
the first time that he left the complainant with him; I mean when he
was going to be away,
so the accused person, I mean now waited,
waited like an opportunistic predator for the young defenceless child
to be left with
him so that he can pounce on her that night. I
submit, M’Lady, that those are aggravating factors in this
matter.
Also, the evidence of the
victim impact report; I mean the victim impact report establishes
that the complainant suffered greatly
after the incident, even her
mother suffered greatly as correctly pointed, M’Lady, in
paragraph 8 and in paragraph 10 of
the report.  The social
practitioner listed a long list of symptoms that the complainant is
suffering, is suffering from and
that she continues to suffer.
I therefore submit,
M’Lady, that the incident would have long devastating effects
on the complainant and her mother.
And the accused person I
submit, M’Lady, that he infringed the right to dignity and the
right to bodily and psychological
integrity of the complainant which
any democratic society respects those rights.
And I also wish to refer
this Honourable Court to what was stated in the case of
S v Jansen
1999 (2) SACR 368
(C) at 378g to 379b.  The Court stated as
follows insofar as rape involving young children are concerned:
“
Rape
of a child is an appalling and perverse abuse of male power.  It
strikes a blow at the very core of our claim to be a
civilised
society.  The Community is entitled to demand that those who
perform such perverse acts of terror be adequately
punished and that
the punishment reflect the societal censure.  It is utterly
terrifying that we live in a society where children
cannot play in
the streets in any safety; where children are unable to grow up in
the kind of climate which they should be able
to demand in any decent
society, namely, in freedom and without fear.  In short, our
children must be able to develop their
lives in an atmosphere which
behoves any society which aspires to be an open and democratic one
based on freedom, dignity and equality,
the very touchstones of our
Constitution.”
And I submit, M’Lady,
that the accused person in this matter did not testify under oath
which leaves the Court now guessing
as to what has been on his mind
now when he committed the offence.
So, in the light of that,
M’Lady, I submit that it is difficult to find any true remorse
on the person of the; of the accused
person because if he was
remorseful, I submit, M’Lady, he was expected to take the Court
into confidence and testify under
oath and tell the Honourable Court
as to what motivated him to commit this offence.
And now his personal
circumstances are before this Honourable Court, the Honourable Court
of course will take into account the gravity
of the offence as well
as the personal circumstances of the accused person, as well as the
legitimate interest of the society.
COURT
:
Mr Soga, can you address me on the existence or otherwise of
substantial and compelling circumstances?
MR
SOGA
:   Yes, that is where I
am heading to, M’Lady.
COURT
:
Oh, I see.
MR
SOGA
:   Yes.  Yes,
M’Lady, his personal circumstances were placed on record by my
learned colleague and I understand,
M’Lady, that the personal
circumstances has not been defined in case law, however, in the light
of those that were placed
by my learned
colleague before this
Honourable Court, I mean viewing
them cumulatively or
individually I submit, M’Lady, that they do not pass the test,
they do not amount, M’Lady, to substantial
and compelling
circumstances.  I understand this Honourable Court will use its
discretion of course, however, in the light
of the personal
circumstances the state finds no compelling and substantial
circumstances.
I therefore, M’Lady,
apply that he be sentenced to life imprisonment, unless the
Honourable Court finds that there are substantial
and compelling
circumstances that are present in his case.
That will be all, M’Lady.
COURT
:
Thank you.  A reply, Mr Tshingana?
MR
TSHINGANA IN REPLY
:   Yes,
M’Lady.  M’Lady, my learned colleague for the state
made emphasis on the victim impact report.
M’Lady, it is
our submission that it is normal for rape victims to react in the
manner that the complainant is behaving and
we empathise with that,
M’Lady, however that is not the only factor that this
Honourable Court should take into account.
It must be taken
cumulatively with all the other factors, M’Lady, and secondly,
M’Lady, we concede that planning of
an event, be it good or
bad, in this event we will refer to the rape in question, can take a
moment rather than weeks or months.
COURT
:
Yes.
MR
TSHINGANA
:   However, M’Lady,
it is our submission that he could not have planned to rape the
accused, the complainant, simply
because, M’Lady, the
complainant had been exposed to the accused on many occasions, like
taking her to and from school and
being with her in the same house
while the mother is away.
M’Lady,
[indistinct] a submission that on the day the accused just satisfied
his selfish desires, rather than to have planned
it, that on
realising, M’Lady, the difficulties that may be there because
it is a child that is when he applied Vaseline.
It was a spur
of the moment and then realising that penetration might be difficult
he used Vaseline, M’Lady, and that will
be all.
COURT
:
Mr Tshingana, if the Court should find that substantial and
compelling circumstances exist in this matter, what in your view
would be an appropriate sentence?
MR
TSHINGANA
:   M’Lady,
considering that the offence is a gruesome one and it is one that is
prevalent in our community and
then the Court has a duty to preserve
the confidence in the justice system then, M’Lady, I will be
lying to myself and I
will be dishonest if I said any form of
imprisonment, any form of sentence that is short of imprisonment is
applicable in this
particular matter, M’Lady.
Yes, it is rape, rape of
a minor and a message must be sent, M’Lady, to anybody else out
there who still wants to commit such
a gruesome act that the law does
not tolerate same.
Yes, M’Lady, the
Court may deviate from imposing life sentence but direct
imprisonment, M’Lady, will still be a suitable
sentence,
M’Lady.
COURT
:
For how long?
MR
TSHINGANA
:   It is difficult
to say, M’Lady, considering the circumstances.  The
prescribed minimum sentence is life,
the victim is a minor child and;
M’Lady, to be honest I would like to leave it …[intervenes]
COURT
:
Let me make it easy for you and say Malgas states that where the
Court finds such circumstances to exist it must be
mindful that the
benchmark for the particular offence is life.  So, in deviating
it must use that...
MR
TSHINGANA
:   That benchmark.
COURT
:
As the benchmark.
MR
TSHINGANA
:   Yes, M’Lady.
In this event, M’Lady, I will say anything between 20 and 22.
As the Court pleases.
COURT
:
Thank you.  Mr Soga, on the last aspect?
MR
SOGA
:   As already conceded
by my learned colleague for the defence, M’Lady, I also agree
that, M’Lady, a sentence
in the range of 22 years will do
justice, M’Lady, in this matter.
COURT
:
Thank you.
MR
SOGA
:   Thank you, M’Lady.
COURT
:
The matter is to stand down until two.
MR
TSHINGANA
:   As the Court
pleases, M’Lady.
MR
SOGA
:   As the Court pleases,
M’Lady.
COURT
:
Court to take tea adjournment.
COURT
ADJOURNS [
10:35]
COURT
RESUMES
[13:36]
REGISTRAR
:
M’Lady, I am recalling the matter case number CC02/2024.
The State versus Klaushe Sivuyile.
COURT
:
You may be seated for now, sir.
- - - - - - - - - - - -
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION FOR MAKHANDA
CASE
NO
:  CC02/2024
DATE
:
20-06-2024
In the matter between
THE STATE
and
SIVUYILE
KLAUSHE

Accused
S E N T E N C E
NONCEMBU,
J
:
Having convicted the
accused of rape as charged in this matter I am now faced with the
daunting task of having to sentence him.
Both the defence and
state addressed this Court in regard to sentence or in respect of
sentence and a victim impact report in respect
of the complainant was
submitted to Court.
The state has argued that
there are no substantial and compelling circumstances justifying a
deviation from the prescribed minimum
sentence of life imprisonment,
whilst the defence argued otherwise.
The victim impact report
sets out in detail the impact that this offence had on the
complainant.  It will not be repeated in
this judgment as I
believe it is still fresh in everybody’s mind and forms part of
the court record.
It is trite that in
sentencing an offender a Court is enjoined to take into account the
Zinn triad which ensures that a balancing
of competing interest in
maintained.  The Court thus has to take into account the
seriousness of the offence committed, the
personal circumstances of
the offender, as well as the interest of society.
A fourth consideration
pertains to the interest of the victim as was highlighted in
S v
Matyityi
2011 (1) SACR 40
(SCA) asserting the provisions of the
Service Charter for victims indicating that a just penal policy
should be victim centred.
In addition to this a Court has to
take into account the objectives of punishment which are prevention,
deterrence, rehabilitation
and retribution being mindful, however,
that these will not be applied equally in each case as the
circumstances of each case will
determine which one of these must
come to the fore.
The Supreme Court of
Appeal in
S v Mhlakazi
1997 (1) SACR 515
at 519(d-e) stated
the following and I quote in this regard:
“
Given
the current levels of violence and serious crimes in this country it
seems proper that in sentencing, especially such crimes,
that
emphasis should be on retribution and deterrence and retribution
might even be decisive.”
Rape by its nature is a
serious offence.  It is, however, even more so when it is
committed against a child in a familial environment,
the sanctity of
her home, the one place where the child is supposed to feel
protected; not to mention when such is committed by
a person placed
in a position of trust, as the accused was, whom the complainant
considered to be her second father.  The
accused abused such
trust in a very heinous manner.
Regarding the offence of
rape, the Supreme Court of Appeal in
S v MM
2013 (2) SACR 292
at paragraph 17 stated the following:
“
Rape
is undeniably a degrading, humiliating and brutal invasion of a
person’s most intimate, private space.  The very
act
itself, even absent accompanying violent assault inflicted by the
perpetrator, is a violent and traumatic infringement of a
person’s
fundamental right to be free from all forms of violence and not to be
treated in a cruel, inhumane, or degrading
way.”
In
S v Day
, Van
Den Heever JA stated the following:
“
Children
are vulnerable to abuse and the younger they are the more vulnerable
they are.  They are usually abused by those who
think they can
get away with it and all to often do, even where an offence is
brought to light our adversarial system often results
in the Courts
failing the victims.”
The accused took
advantage of the complainant’s vulnerability knowing very well
that he was trusted, not only by the complainant
but by her mother as
well who put him in such a high regard that she trusted him even more
than she trusted the child’s biological
father.
These types of offences
are very rife in our communities and seem particularly to be on a
spirally rise in this division.
I find it quite significant
that only today this is the second matter where I have to sentence a
rape offender who was in a position
of a father figure to the
complainant.  It seems that the more efforts are being put in
place to try and curb this disturbing
trend, the more the offences
seem to be on the rise depicting an even bleaker future for our
children.
Society seems to be at
their wits end and now courts seem to be the only hope that they look
up to and the only way that courts
can ensure that society is
afforded some measure of hope is by ensuring that those who are
brought before the courts for having
committed these atrocious crimes
are appropriately dealt with and get the full might of the law as
that will send a message not
only to the offender before court but
also those who are likeminded.
The personal
circumstances of the accused were placed on record by his counsel and
need not be repeated here, suffice to say that
whilst he has a
previous conviction the Court is mindful of the fact that it is for
an unrelated matter and as such he will be
treated as a first
offender for purposes of this offence.
It does appear from the
evidence of both the complainant and her mother that the commission
of this offence by the accused was out
of character for him given the
high regard that both placed him to the extent that he was very often
left alone with the complainant.
One thus cannot overlook
the fact that intoxication may have played a role in the commission
of the offence, as even the complainant
conceded in her evidence that
the accused was drunk on the night in question.  Hence correctly
conceded by his counsel though
that is no justification for the
offence he committed.  It does, however, play a role on the
extent of his moral blameworthiness
for the offence committed.
In
S v MM
2013 (2)
SACR 292
at paragraph 18 to 19, Majiedt JA, emphasised that the
advent of minimum sentence legislation had not changed the centrality
of
proportionality in sentencing and that since life imprisonment is
the most severe sentence which a Court can impose the question

whether it is an appropriate sentence requires careful
consideration.  The Court held that when a minimum sentence
prescribed
by law which in the circumstances of a particular case
would be unjustly disproportionate to the offence, the offender and
the
interest of society it would justify the imposition of a lesser
sentence.
I take into account the
factors referred to above, as well as the manner in which the offence
was committed that no serious physical
injuries were sustained by the
complainant, whilst on the same breath not in any way discounting the
emotional scars and impact
carried by the complainant as a result of
the said offence.
I find, however, that
considered cumulatively the above factors constitute substantial and
compelling circumstances justifying a
deviation from the prescribed
minimum sentence of life imprisonment, as I am of the view that life
imprisonment would not be a
just sentence on the circumstances of
this matter.
Please rise, Mr Klaushe.
I therefore find that an appropriate sentence on the circumstances of
this matter would be imprisonment
for a period of 20 years and the
accused is sentenced accordingly, and the following ancillary orders
shall issue:
a)
No otherwise order is made in terms of
section 103(1)
of the
Firearms Control Act 60 of 2000
.  In other
words, the accused remains unfit to possess a firearm.
b)
The accused’s name shall be included
in the National Register for Sexual Offenders in terms of
section 50
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
.
c)
In terms of
section 120
of the Children’s
Act 38 of 2005, the accused is deemed unsuitable to work with
children.
d)
In terms of
section 299A
of the
Criminal
Procedure Act 51 of 1977
the victim’s family or the
complainant’s family is advised that they are entitled to make
representations to the Parole
Board or to attend any relevant meeting
of the Parole Board where the placement of the accused on parole, day
parole or correctional
supervision, is considered.
…………………………
..
NONCEMBU,
J
:
JUDGE OF THE HIGH
COURT
DATE
:
…………………
MR
SOGA
:   As the Court pleases,
M’Lady.
MR
TSHINGANA
:   The state begs
leave of this Honourable Court to hand in the draft orders, M’Lady,
as part of the order in terms
of
section 52(a)
, as well as in respect
of the completion of the victim impact statement.
COURT
:
Thank you.  Court adjourns.
COURT
ADJOURNS
[13:58]
- - - - - - - - - - - -