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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
( l) REPORT ABLE: YESANo\
(2) OF INTEREST TO OTH°E'R JUDGES: Y S
MOYO, NKULULEKO
and
THE STATE
JUDGMENT
Karam AJ:
APPEAL NO: AS0/2022
OPP Ref No: 10/5/1-(2022/035)
APPELLANT
RESPONDENT
INTRODUCTION
1. The appellant was charged and convicted in the Johannesburg Regional Court
on three counts of having raped the 15 year old complainant, on three occasions
in and during February 2015. The charges were read with the provisions of
Section 51 ( 1) of the Criminal Law Amendment Act 105 of 1997
("the minimum sentence provisions").
2. He was sentenced to life imprisonment.
3. The matter comes before this court by virtue of the appellant's automatic right to
appeal in terms of Section 309 (1) (a) of the Criminal Procedure Act 51 of 1977
("the CPA").
4. The appellant appeals both the conviction and sentence .
THE EVIDENCE
5. The State led the evidence of the complainant, her teacher being the first report,
the complainant's mother, and the doctor who examined the complainant.
The appellant testified in his defence and called as defence witnesses , the
complainant's mother's employer and the investigating officer in the matter.
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It was as a result of the evidence of the complainant's mother's employer ,
that the State, upon being granted leave to re-open the State case, called a
further witness.
6. The complainant testified that she and her mother resided in a room at a
residence where various other tenants occupied rooms thereat. The
appellant was one such tenant. Her mother would occasionally sleep over
at her employer. In and during February 2015, and on three occasions that
her mother had slept at her employer and was thus not present at the residence,
the appellant had raped the complainant.
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6.1 On the first occasion, the appellant had opened the unlocked door to her room,
produced a firearm and, instructing her to keep quiet, proceeded to rape her.
6.2 The second occasion was the following evening . She was alone in her room,
her mother having gone to work. There was persistent knocking at her locked
door and believing that it was the child who resided next door and whom she
occasionally assisted with homework, she unlocked the door. Prior to her
opening the door, the appellant burst into the room, instructed her to keep
quiet, and stated that they would do what they had done the previous evening.
After raping her, he repeatedly stated that he would kill her and her mother if
she informed anyone as to what had occurred.
6.3 The third occasion was two days later. The complainant was busy washing
dishes in the kitchen . It was in the evening and her mother, again, was not
present having gone to work. The appellant approached the complainant
from behind , pointed a firearm at her, ordered her to go to her room and
not to lock the door thereof. Shortly thereafter , the appellant entered the
room, raped the complainant, ordered her not to advise anyone thereof ,
and left the room.
6.4 In and during 2016 , the appellant moved out of the premises. In January
2017, the complainant herself moved out of the premises and went to
reside with her aunt.
7. Rhina Hove testified . She was a senior teacher at the complainant's school.
As a result of the complainant having experienced what appeared to be epileptic
fits or seizures and the complainant collapsing, she, as the senior teacher ,
was requested to attend thereto. Upon speaking to the complainant, the latter
advised her, inter alia, that she was angry with life, chose death as her life was
painful, that she had contracted an illness as a result of having been raped and
proceeded to inform her of the appellant, a tenant , having raped her three times
in her room and having threatened to kill her and her mother if she reported
this. The complainant undertook to inform her mother thereof.
Several days later, the complainant again collapsed and learning that she had
not advised her mother thereof, the witness called her mother to the school and
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advised her thereof .
8. The complainant's mother testified. She stated that the complainant was born
on 21 March 1999. She confirmed that at the relevant time the appellant had
been a tenant at the residence. She had had a cordial relationship with him
and there was no bad blood between them. She confirmed the evidence
of Ms Hove and upon questioning the complainant , the latter informed
her of what had transpired.
She worked at a creche during the day and would, on occasion, babysit for
one of her employers , sleep over there, and return home the following morning.
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The complainant commenced fainting in 2015. The complainant did not inform her
of the cause thereof . She was aware that the complainant had commenced taking
ARV medication since 2015.
9. Dr Kuya testified . She examined the complainant on 15 May 2017. She confirmed
that the complainant had gynaecological injuries, remnants of the hymen and clefts
which are healed tears of the hymen. The complainant had reported to her that she
had been vaginally penetrated by a known man who was a tenant where she had
resided .
10. The appellant testified. He denied the complainant's allegations , stating that he had
never touched or raped the complainant and never entered her room when her
mother was not present.
He further denied the complainant's mother's evidence that she ever slept over
at her employer 's residence during that period .
11. Jane Govender was called as defence witness. She testified that she was the
Employer of the complainant's mother. Whilst the latter never babysat for her .
or slept over at her residence , she was aware that she did so for a parent
whose children attended her creche .
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12. Sergeant Shai was also called as a defence witness and testified as to the arrest
of the appellant.
13. Upon reopening of the State's case, Paulina Ngceba testified. She knew the
complainant 's mother from the latter's employment at the creche. She confirmed
that the latter would babysit for her from 2014. In that year and in 2015 , the
complainant's mother would , on occasion, sleep over when she requested her
to do so.
ISSUES ON APPEAL
14. The issues to be determined on conviction are whether the trial court erred in
finding that the State had proved its case beyond reasonable doubt and in not
finding the appellant's version to be reasonably possibly true.
The issues to be determined on sentence are whether the trial court erred in
failing to find substantial and compelling circumstances to exist, warranting a
deviation from the prescribed sentence of life imprisonment, or whether the
sentence imposed is disproportionate in the circumstances and results in an
injustice.
LAW AND ANALYSIS
15. It is trite that in a criminal trial, the onus of proof is on the State to prove its case
beyond reasonable doubt. This is indeed a stringent test but is applied in order
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to ensure that only the proven guilty are convicted. It is further trite that the Court
is required to adopt a holistic approach in respect of the evidence and its
assessment thereof, and use a common sense approach . It is not sufficient if the
guilt of the accused appears possible or even probable - his guilt must be
proven beyond reasonable doubt. If his version is found to be reasonably
possibly true, he must be acquitted .
S v Van Der Meyden 1999 (1) SACR 447 (SCA)
at p448 (f) - (h); p449 (j) - p550 (b)
S v Phallo & Others 1999 (2) SACR 558 (SCA) at p562 (g) - p563 (e)
S v Shackel 2001 (2) SACR 185 (SCA) at p194 (g) - (h)
S v Chabalala 2003 (1) SACR 134 (SCA) at p139 (i) - p140 (b)
AD CONVICTION
16. The complainant was a single witness.
It is trite that a court can convict on the evidence of a single witness if such
evidence is satisfactory in all material respects. The evidence must not only be
credible, but must also be reliable.
R v Mokoena 1932 OPD 79 at p80
S v Webber 1971 (3) SA 754 (A) at p758 (F) - p759 (A)
S v Sauls & Others 1981 (3) SA 172 (A) at p180 (C) - (G)
I am of the view that the court a quo correctly accepted the evidence of the
complainant. She was extensively cross examined and nothing material
emanated therefrom .
16.1 It is inexplicable and incomprehensible as to why the complainant would,
for no reason, seek to falsely implicate the appellant. Furthermore , that
she would do so some two years after the incident.
16.2 She gave a vivid account of what had occurred on the three occasions
that the appellant raped her.
16.3 She implicated the appellant as the rapist to her teacher , her·mother,
the doctor and in her evidence in the trial court.
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16.4 There is nothing sinister in her failure to report the matter to her mother
after the appellant had vacated the premises or to her aunt with
whom she subsequently resided. It must be borne in mind that she is a
child and that she had been threatened with the death of herself and
her mother, if she said anything.
These threats , coupled with her seeing the appellant in possession of a
firearm , and having regard to her age, adequately account for her failure
to scream out in order to attract the attention of the other tenants .
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16.5 It is significant that she suffered the fainting spells or seizures subsequent
to the rapes.
16.6 It is certainly not the complainant's fault that her mother, whilst being
aware of the complainant being on HIV medication since 2015, failed
to investigate the cause thereof or the reason/s therefor.
16.7 The complainant 's evidence was corroborated in material respects by
her teacher.
16.8 It is significant that the medical evidence corroborates the fact that
she was sexually violated .
16.9 It is significant that the appellant was in fact resident at the premises
at the relevant times of the rapes.
17. The appellant's evidence was a bare denial.
17.1 He was unable to furnish any reason/s as to why the complainant had
accused him of committing these offences.
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17 .2 His denial of the complainant and her mother's evidence that the latter
would, on occasion, sleep out, leaving the complainant on her own at
the residence, was refuted by the witness Ngceba.
17.3 His version was that he, upon learning that he was being sought by the
police, called them. This was not borne out by the investigating officer,
who testified that upon not finding the appellant at his place of
employment , had left his contact details with the security officer and
that the latter had called him to advise him that the appellant had
arrived at his workplace.
18. Having regard to all of the aforesaid, I am of the view that the learned
Magistrate correctly convicted the appellant and rejected his version as not
reasonably possibly true.
19. I am of the view that there is no merit in the appeal on conviction.
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AD SENTENCE
20. Having been charged and convicted in terms of Section 51 (1) of the minimum
sentence provisions, the prescribed minimum sentence was life imprisonment,
the complainant being under the age of 16 years when the offences were
committed , and further , the appellant having raped the complainant more
than once.
21 . I can find no fault with the court a quo's determination that the mitigating
factors , either individually or cumulatively considered , do not constitute
substantial and compelling factors warranting a departure from the prescribed
sentence .
I further do not find the imposition of the minimum sentence to be
disproportionate in the circumstances or that it results in an injustice.
22. There are numerous aggravating factors:
22.1 the fact that the complainant was raped on three occasions ;
22.2 the grave effects that the rapes have had on the complainant's physical
health, resulting in her having convulsions/seizures , that she hitherto did
not suffer from;
22.3 the grave effects that the rapes have had on the complainant's mental
health, resulting in her attempting suicide on more than one occasion;
22.4 the evidence that the complainant contracted HIV from the appellant
as a result of these rapes;
22.5 the fact that it can be gleaned from the evidence that the commission
of the offences was premeditated. The appellant , having worked and
resided with the complainant's mother, would in all probability have
had insight as to when she would be baby sitting and sleeping out,
leaving the complainant on her own at the residence ;
22.6 the lack of any remorse whatsoever;
22.7 the scourge of rape, particularly that of minor children , in our society.
23. Whilst it is trite that a court consider the period of incarceration , it is
further trite that detention awaiting finalisation of a trial matter does not
on its own constitute a substantial and compelling factor , but is one of the
factors to be considered.
S v Radebe & Ano 2013 (2) SACR 165 (SCA) at p170 (b)
OPP NG, Pretoria v Gcwala & Others 2014 (2) SACR 337 (SCA)
at p342 para 16 - p343 para 18
Ngcobo v S 2018 (1) SACR 479 (SCA) at p483 (d) - (e)
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... ' .
' .
The two year period awaiting finalization of the matter is not an unduly lengthy
period of time, It must further be borne in mind that we are dealing with an
indeterminate sentence in this matter.
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24. Accordingly, I am of the view that there is no merit in the appeal against sentence.
25. In th:e circumstances I propose the following Order:
25.1 The appeal against both conviction and sentence ls dismissed.
I AGREE AND IT IS SO ORDERED
WA KARAM
ACTING JUDGE OF. THE HIGH COURT
RMKHABELA
JUDGE OF THE HIGH COURT
Appearances:
Appellant: Adv S Hlazo
Legal Aid SA
Johannesburg Office
Respondent: Adv L R Surendra
Director of Public Prosecutions .
Gat.i1ing Local Division
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