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[2024] ZAFSHC 366
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Lesetla v S (A66/2024) [2024] ZAFSHC 366 (14 November 2024)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: A66/2024
In
the matter between
TSHOKOLO
DAVID LESETLA
APPELLANT
And
STATE
RESPONDENT
Neutral
citation: Tshokolo David Lesetla v State
Coram:
Reinders J et Nemavhidi AJ
Heard:
28 October 2024
Delivered:
This judgment was handed down and released to
SAFLII. The date for hand-down is deemed to be 14 November 2024.
Summary:
Rape – single child witness –
double cautionary rule – s 60 of Act 32 of 2007 – alibi
defense.
ORDER
The appeal
against the conviction and sentence is dismissed.
JUDGMENT
Nemavhidi
AJ (Reinders J concurring)
[1]
This appeal concerns
the rape of a seven year-old girl, the complainant, R[…] M[…],
who was raped and assaulted in
2010. She was playing with the
children at the neighbour’s house in the evening when she was
sent by one Mashoto to buy a
soft drink at a shop. On her way back
she was in the company of one Keke, when they met the appellant.
[2]
The appellant tied her
neck with his belt and dragged her to an open field where he removed
her panty and inserted his penis into
her vagina. Afterwards, he took
her to a shack where he put her on the bed and proceeded to have
sexual intercourse with her. When
he was done, he then carried her on
his back, dropped her off near her home, gave a five rand and
admonished her not to tell her
mother or anyone about this incident.
[3]
The appellant was
convicted in the regional court of rape and assault with the intent
to do grievous bodily harm and sentenced to
life imprisonment. In
terms of s 309 of the Criminal Procedure Act 51 of 1977 (the CPA),
read with the provisions of ss 10 and
43(2) of the Judicial Matters
Amendment Act 12 of 2013 (JMA ACT 3 of 2013), once the regional court
imposed the sentence of life
imprisonment, the appellant is entitled
to an automatic right of appeal to the full bench of the High Court.
[4]
The trial court found
that the appellant raped the complainant. The appellant raised the
fact that the court erred by not taking
into account, the
discrepancies in the testimony of the complainant and also
disregarded the alibi raised by him.
[5]
The issue for
determination before this court is whether the appellant was properly
convicted on the evidence of a single witness.
[6]
The
complainant was raped on two occasions on that fateful night. After
the appellant dropped her off in the street next to her
home, he was
seen by her brother David and his friend Lehlohonolo. The appellant
then turned back and started running, but David
and Lehlohonolo ran
after him in order to see who dropped the complainant off. Once they
caught up with him, they turned back.
[7]
Ms N[...] testified
that on the 8
th
of April 2010, the complainant came to her home in order to play with
her siblings. At about 22h00, the complainant’s mother
came to
her home, inquiring about the whereabouts of the complainant. The
search party went out to the streets looking for her
while her mother
and aunt went to the police station to report the missing child.
[8]
Ms N[…] and
other people stood at the gate hoping that the complainant would
emerge. While standing at the gate, she observed
the complainant
approaching from the corner. She called her and she noticed that her
pants were wet, her neck had multiple abrasions
on the left cheek,
and her eyes were red indicating that she had been crying. She then
took her to her grandmother who observed
that she had been raped. The
complainant stated that she was raped by the appellant. After this
statement, Ms N[...] went to the
police station where she found
complainant’s mother and informed her
about
the rape of the
complainant.
[9]
Ms. M[…] M[…],
the complainant’s mother, testified that the complainant was
born on the 1[…]
th
of J[…] 2003. She handed in her birth certificate.
She knew the accused as he was a
tenant at her sister’s place. She regarded the accused as a
family member and complainant
regarded him as her brother. On the 8
th
of April 2010 she went to the police station to report that her
daughter was missing. While she was at the police station, Ms N[...]
arrived at the police station and reported to her that the
complainant had been raped. She went home with the police and found
their complainant’s wet clothes. She was shivering and her head
was full of grass.
[10]
The complainant stated
that she was sent by Mashoto to the shop to buy soft drink and on her
way back she met the appellant who
dragged her. She gave the things
she bought to Keke.
[11]
The appellant dragged
her to the field, having tied her neck with his belt, undressed her
panty, and had sexual intercourse with
her, he thereafter took her to
a shack, where he put her on the bed and had vaginal sex with her.
[12]
The police took the
complainant and her mother to the police station where female police
officers examined her, and later took her
to the hospital for a full
examination. She was unable to walk properly and she had to carry her
on her mother’s back.
[13]
This incident affected
the complainant, which resulted in her failing her grade. She was
afraid of sleeping, no longer played with
the other children, could
not eat normally and started bed-wetting while asleep.
[14]
The accused ran away
from Batho location in Bloemfontein and was arrested in Edenburg
after two years and four months.
[15]
She denied that she
once had a romantic relationship with the appellant. She also denied
that she asked the appellant to buy her
soccer jersey.
[16]
The complainant
testified through the intermediary and the hearing was in
camera
.
She narrated a horrific experience at the hands of the appellant. She
witnessed her brother and Lehlohonolo chasing the appellant
after he
dropped her in the street and they were the ones who decided to chase
the appellant in order to see who that person that
was that dropped
the complainant near her home.
[17]
Two years and four
months later, Constable Lekgoba managed to trace and arrest the
appellant in an informal settlement in Edenburg.
When he introduced
himself as a police officer, the appellant jumped out through the
window in order to avoid arrest. However,
the police managed to
arrest him after giving chase.
[18]
The appellant’s
testimony is to the fact that the complainant’s mother had a
love relationship with him. He alleged
that she asked him to buy her
a soccer jersey, a ticket and to give her an amount of R500. He
refused to give her those items,
which resulted in her fabricating
these rape allegations. The appellant conceded that the complainant
could have been raped by
someone else as on that day as he was at his
workplace at Petrusburg. He, however, accepted the contents of the
medical report
(J88).
Ad
Conviction
[19]
The evidence in this
case was based on the evidence of a single witness, namely the
complainant who was seven years old at the time
of the rape. For many
years, the evidence of a child witness, particularly as a single
witness, was treated with caution because
cases prior to the advent
of the Constitution (which provides in s 9 that all are equal before
the law) stated
inter
alia
that a child
witness could be manipulated to falsely implicate a particular person
as the perpetrator (thereby substituting the
accused person for the
real perpetrator).
[20]
To
ensure that the evidence of a child witness can be relied upon as
provided in s 208 of the Criminal Procedure Act 51 of 1977
(the CPA),
the court held in
Woji
v Santam Insurance Co Ltd
[1]
(
Woji
)
that:
‘
The question
the trial Court must ask itself is whether the young witness'
evidence is trustworthy. Trustworthiness, as is pointed
out by
Wigmore in his
Code
of Evidence
para 568 at 128, 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" while the capacity of narration
or communication raises the question whether the child has "the
capacity to understand the 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 witnessbox.’
[2]
[21]
The
Court has, since
Woji
,
cautioned against what is now commonly known as the double cautionary
rule.
[3]
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. What the Court in
S
v Hadebe and Others
[4]
calls the necessity to step back a pace (after a detailed and
critical examination of each and every component in the body of
evidence), lest one may fail to see the wood for the trees. This
position has been crystallised by the Legislature in
s 60
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, which provides:
‘
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.’
[22]
As
indicated, in his defense the appellant raised an
alibi
that he was at work when the complainant was raped. However, this was
not put to the witnesses nor was it stated in his plea explanation,
as the plea tendered on his behalf by his counsel was that of a bare
denial.
[23]
The
only responsibility an accused person bears with regards to their
alibi
defense is to raise the defense at the earliest opportunity. The
reason is simple: to give the police and the prosecution the
opportunity to investigate the defense and bring it to the attention
of the court. In appropriate cases, in practice, the prosecution
can
even withdraw the charge should the
alibi
defence,
after investigations, prove to be solid.
[24]
The
alibi defence has received the attention of the courts, in particular
that of the Constitutional Court in
Thebus
and Another v S
[5]
(
Thebus
),
where it stated:
‘
. . . [A]
failure to disclose an alibi timeously has consequences in the
evaluation of the evidence as a whole [and] is consistent
with the
views expressed by Tindall JA in R v Mashelele. After stating that an
adverse inference of guilt cannot be drawn from
the failure to
disclose an alibi timeously, Tindall JA goes on to say: “But
where the presiding Judge merely tells the jury
that, as the accused
did not disclose his explanation or the alibi at the preparatory
examination, the prosecution has not had
an opportunity of testing
its truth and that therefore it may fairly be said that the defence
relied on has not the same weight
or the same persuasive force as it
would have had if it had been disclosed before and had not been met
by evidence specially directed
towards destroying the particular
defence, this does not constitute a misdirection.”’
[6]
[25]
Applying
the
Woji
principles
to this case, I find that the evidence of the complainant is
trustworthy and, thus, (supported by
aliunde
evidence
of the forensic nurse) satisfactory beyond reasonable doubt. Despite
her young age, the complainant’s evidence
was consistent and
clear. She was able to respond to statements put to her and questions
posed by the defence with certainty and
clarity; intelligently and
without difficulty. The cross-examination of the complainant was
rigorous and to some extent unnecessary.
Where she did not understand
the question, the question was repeated and she responded
appropriately. The complainant was consistent
to the extent that her
evidence was supported by independent medical evidence set out in the
J88 form as well as the report she
made to her mother. The nurse who
examined the complainant noted
that
there was
redness
of the vagina. The appellant on his own (although not admitting that
it was him) agreed that the complainant was raped and
could not
have
fabricated
a
story of having being raped. She was observed by her grandmother
as she was disheveled, wet and had dry grass on her clothes
upon
arrival at home. Her mother noted her reddened vagina, abrasions on
her neck and some scratches on her face.
[26]
The
Court warned in
Thebus
that
a court cannot attach much weight to an alibi that is raised later;
in this case, more than two years later. This is because
such an
alibi
is
prone to fabrication, as evidenced in this case.
[27]
The trial court in my
view correctly convicted the accused as charged.
Ad
Sentence
[28]
I now turn to the
question of sentence. The trial court imposed the prescribed minimum
sentence of life imprisonment. It is common
cause that the provisions
of
s 51
of the Criminal Law Amendment Act 105 of 1997 (Act 105 of
1997) are applicable. Section
51 of
Act 105 of 1997 provides:
‘
51.
Discretionary minimum sentences for certain serious offences–
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court
shall sentence a person it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life....
(3)
(a) If any court referred to in subsection (1) or (2) is satisfied
that substantial and
compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections,
it shall enter those circumstances on the record of the
proceedings and must thereupon impose such lesser sentence. . .’
[29]
It is trite that sentencing or
punishment is pre-eminently a matter of discretion of the trial
court. A court exercising appellate
jurisdiction cannot, in the
absence of a 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 by it simply because it prefers
it. To do so would be to usurp the
sentencing discretion of the trial
court.
[30] Where,
however, a material misdirection by the trial court vitiates its
exercise of that discretion,
an appellate court is of course entitled
to consider the question of sentence afresh. In doing so, it assesses
sentence as if it
were a court of first instance and the sentence
imposed by the trial court has no relevance.
[31]
Nevertheless,
even in the absence of a material misdirection, an appellate court
may yet be justified in interfering with the sentence
imposed by the
trial court. It may do so when the disparity between the sentence of
the trial court and the sentence which the
appellate court would have
imposed had it been the trial court is so marked that it can properly
be described as 'shocking', 'startling'
or 'disturbingly
inappropriate’.
[7]
[32]
When
setting out minimum sentencing for certain offences, ‘the
Legislature aimed at ensuring a severe, standardised, and consistent
response from the courts to the commission of such crimes unless
there were, and could be seen to be, truly convincing reasons
for
different response’
[33]
The trial court dealt comprehensively with the personal circumstances
of the appellant,
the seriousness of the crime of rape of a child and
the interest of society. It considered the interests of the child
victim and
held that “the traumatic effect of sexual abuse is
argued to be most complexed and more persuasive in terms of the
impact
of a child life”
Having
considered all factors placed before it in mitigation and aggravation
of sentence the trial court was satisfied that there
are no
substantial and compelling circumstances which, would warrant a
deviation from the prescribed minimum sentence of imprisonment
for
life. The trial court can in my view not be faulted in the conclusion
so reached.
[33]
In
the result, the following order is granted:
The appeal
against the conviction and sentence is dismissed.
MB NEMAVHIDI AJ
I
concur
C REINDERS J
Appearances
For
the Appellant
Mr
P Mokoena
Instructed
by:
Legal
Aid South Africa
Bloemfontein
For
the RespondenT:
Adv
VD Didi
Instructed
by:
NDPP
Bloemfontein
[1]
Woji v
Santam Insurance Co Ltd
1981 (1) SA 1020 (A).
[2]
Ibid at 1028A-D.
[3]
See
in this regard
Vilakazi
v S
[2016] ZASCA 103
; 2016 (2) 365 SCA.
[4]
S
v Hadebe and Others
1998
(1) SACR 422
SCA.
[5]
Thebus and Another v S [2003] ZACC 12; 2003 (6) SA 505 (CC).
[6]
Ibid para 63.
[7]
See in this
regard
S v Malgas
2001 (2) SA 1222
(SCA).