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[2011] ZAWCHC 70
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Theron v S (A523/2010) [2011] ZAWCHC 70 (11 March 2011)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
WESTERN CAPE HIGH COURT, CAPE
TOWN
CASE NO: A523/2010
In the matter between:
PETRUS
THERON
…..................................................................................................
Appellant
and
THE STATE
…..........................................................................................................
Respondent
JUDGMENT : 11 MARCH 2011
KOEN A
J
:
1. On 24 August 2009 the
appellant was convicted on one count of indecent assault and two
counts of rape. He was sentenced to imprisonment
for a period of five
years in regard to the first count, and to imprisonment for a period
of 20 years in regard to each of the
rape convictions. The trial
court ordered that the sentences in respect of the rape charges were
to run concurrently, the result
being that for all three convictions
the appellant was sentenced to imprisonment for a period of 25 years.
2. An application for leave to
appeal both the conviction and the sentence was refused by the trial
court on 26 May 2010. On 1 June
2010 the appellant applied to this
court for leave to appeal sentence only. This court granted leave to
appeal both conviction
and sentence on 19 August 2010.
3. It is necessary to state at
the outset that the complainants in all three matters were boys of a
tender age. At the time the
indecent assault was allegedly
perpetrated the complainant, T, was only 6 years old. The
complainants in regard to the rape charges,
K and S, were aged 10 and
12, respectively, when the offences were alleged to take place. The
thrust of the appeal against conviction
was that the Magistrate had
erred in accepting the evidence of the three young children who, it
was argued, were single witnesses
whose evidence was not
corroborated.
4. At the commencement of the
appeal the State made application in terms of section 22 of the
Supreme Court Act for leave to introduce
further evidence. No proper
basis for the reception of the further evidence was evident from the
application, and it was accordingly
refused.
5. Before
dealing with the evidence it is necessary to observe that that the
State framed the second and third charges against the
appellant
(which I have described as rape charges) under the provisions of
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
. This Act came into force on 16 December
2007. Amongst other things the intention of this Act was to reform
the South African law
of rape by providing that both males and
females could be victims of the crime of rape. The charge sheet
alleged that the appellant
was guilty of contravening this section in
that he had "since December 2007" committed the acts of
which he was convicted.
It is apparent from the evidence led by the
State that K and S testified that they had been repeatedly raped by
the appellant during
the December2007/January 2008 school holidays.
In fact, K stated, and his evidence was not challenged, that the
incidents stopped
during January or February 2008.
I
am
therefore satisfied that the provisions of section 3 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
("the Act") applied to a substantial number, if not the
vast majority, of the incidents complained of in the
charge sheet. I
shall now turn to summarise briefly the relevant evidence.
The conviction for indecent
assault:
6. T gave evidence on 30 October
20O8, just over 9 years after the incident took place. He was 15
years old at the time he testified.
7. He testified that he had
encountered the appellant on a Saturday afternoon whilst riding his
bicycle. The appellant had identified
himself as "Chris".
After he and the appellant had gone to T's house the appellant pushed
him on the bicycle to a rugby
field near to the Berg River. There the
appellant indecently assaulted him by playing with T's penis. T gave
a relatively detailed
account of what had happened. Upon returning
home T immediately told his parents what had happened. There was
nothing about his
cross examination which casts any measure of doubt
about the reliability of T's evidence.
8. T's parents testified. They
testified that T had reported the indecent assault upon him to them
immediately. His father testified
that he had become enraged upon
hearing what had transpired, and had gone to try to find the
perpetrator. He had not found him
and a complaint was that day made
to the police. The next day the appellant had arrived at T's house.
He had come to deliver firecrackers
he had promised to T, and also
brought a letter. Amongst other things the letter contained an
apology for what had happened the
previous evening explaining that
things had happened too quickly. When the appellant had arrived at
T's house the following day
T's father had made small talk with him
to keep him there whilst the police were summoned. The appellant was
arrested that day.
9. The appellant admitted that
he had met T that Saturday and that the two of them had gone to the
rugby field near the river. T's
evidence was largely undisputed save
that the appellant denied the indecent assault. But the appellant's
evidence in regard to
the events that day, and the letter he admitted
writing, was unimpressive. His version was that T had followed him,
but he could
not explain why. To all intents and purposes his
evidence amounted to nothing more than an unsubstantiated denial of
the assault.
10. As
I
have
indicated above the thrust of the attack on the conviction in regard
to this charge was that the magistrate had erred in accepting
the
evidence of a young single witness. In my view, however, T's evidence
was corroborated in at least one important respect, namely
the letter
which the appellant admitted he had written. The explanation
furnished by the appellant for having written the letter
is entirely
unconvincing. In chief he gave no evidence explaining why he would
have written such a letter. It is unlikely in the
extreme that the
appellant would have written a letter containing an apology which he
handed to T's father had there been nothing
to apologise about.
Nothing had transpired between the two which called for an apology.
And his explanation in cross examination
for having written the
letter was, in truth, nothing other than an expression of an
inability to explain why he wrote the letter.
11. There were other aspects of
the appellant's evidence during the trial which require comment. At
one stage during his cross examination
he suggested that he had been
entrapped by T, as a reason for his having gone to T's house. He then
explained this statement as
one which came from a strange man whose
thoughts were wandering. He could not satisfactorily explain why he
had been in the company
of T, who was so many years his junior, why
they had gone to the river, or what they had done whilst at the
river. After first
testifying under cross examination that he had
pushed T on his bicycle to the river he then testified that T had
followed him to
the river. These are mutually irreconcilable
versions. He testified further, under cross examination that he had
been on his way
to meet people from Blommendal he knew, but did not
explain why he had spent as long as he did sitting and talking to T
at the
river, if he was on his way to meet friends.
12. These
factors provided a sufficient basis for the magistrate to be
satisfied that T's evidence should be accepted. The Magistrate
found
T to be a credible witness and that the appellant had lied to the
court.
I
do
not think that she can be faulted in this respect.
The Rape Convictions
13. For the
purposes of this judgment I propose to deal with both convictions
under the same heading, as the facts are strikingly
similar. The
complainants in regard to these charges were K and S, aged 10 and 12,
years respectively. Both testified that the
appellant had had
penetrative sex
per
anum
with
them. Both testified that they had witnessed the appellant raping the
other. Their evidence was thus not the evidence of a
single witness,
as each witnessed the other being raped. Their evidence was not
seriously challenged in cross examination. In addition
their evidence
was to a degree corroborated by one Jakobs, who had witnessed the two
young boys in the presence of the appellant
on regular occasions
during the December 2007 / January 2008 holidays.
14. On the appellant's own
version he admitted knowing the two boys, and socialising with them
at the place where the offences took
place, the local swimming pool,
over the period in question. He said he had witnessed the two boys
having sex with each other.
None of this was put to the two boys in
cross examination by the appellant's counsel at the trial, a feature
which supports the
conclusion that the version given by the appellant
is palpably false. Moreover, on the appellant's own version he did
nothing to
stop the two boys from having sex with each other,
notwithstanding that he disapproved of their conduct, a quite
unlikely state
of affairs.
15. In 5
v
Hodebe and Others
1997
(2) SACR 641
(SCA) reference was made to the principles applicable in
appeals against findings of fact. In this regard Marais JA said, at
645
e - f.
In
short, in the absence of demonstrable and material misdirection by
the trial court, its findings of fact are presumed to be correct
and
will only be disregarded if the recorded evidence shows them to be
clearly wrong".
I
am not satisfied that the Magistrate misdirected himself in a
material or demonstrable way or that he erred in accepting the
evidence of the young boys. In my view the State proved its case
beyond a reasonable doubt and there is no basis for interfering
with
the convictions.
16. This
leaves the question of sentence. It is well settled that an appeal
court may only interfere with the sentencing discretion
of a trial
court if it is satisfied that the trial court did not exercise its
sentencing discretion reasonably. In
S
v Malgas
2001(1)
SACR 469 (SCA) the circumstances entitling an appeal court to
interfere with sentence were stated to be as follows:
"A
court exercising appellate jurisdiction cannot, 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 by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court. Where
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.
As it is said, an appellate court is at
large. However, even in the absence of 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"."
(at
Par 12).
In this case
counsel for the appellant submitted in his heads of argument that the
Magistrate had failed to take sufficient account
of the appellants
personal circumstances, the prospects of rehabilitation and the fact
that he had lived with the burden of the
1
st
charge for
over nine years before the trial. I do not think that there is any
merit in these points. The offence was a grave one,
which has
dramatically affected the lives of three young boys. He took
advantage of the vulnerable. Amongst his previous convictions
was a
conviction for a sexual offence (indecent assault) in respect of
which correctional supervision had been imposed. None of
his previous
convictions and the sentences imposed had the hoped-for deterrent
effect. In my view the Magistrate properly took
all relevant factors
into account and I cannot fault the exercise by her of her sentencing
discretion.
17. One
further aspect of the matter requires mention. A contravention of
section 3 of the Act is equivalent to a conviction for
the offence of
rape (see
Corolus
v
5
[2008] ZASCA 14
;
[2008] 3 All
SA 321
(SCA) at par. 36). The minimum sentence prescribed in respect
of the rape of a boy or girl under the age of 16 years, and where
the
rape occurs more than once, is life imprisonment. The minimum
sentence in respect of a contravention of section 3 of the Act
was
introduced by Act 38 of 2007 which came into force on 31 December
2007. Although the appellant commenced committing the offences
before
this time it is clear from the evidence of both K and S that the
commission of the offences continued on a number of occasions
for
some time after 31 December 2007. The Magistrate was thus correct to
warn the appellant at the commencement of the trial that
the
prescribed minimum sentence was applicable. The Magistrate considered
this aspect of the matter when sentencing the appellant,
and although
she did not expressly mention those facts which persuaded her to
depart from the minimum sentence it is apparent that
she considered
the facts advanced in argument by the appellant's legal
representative at the trial in deciding that she was justified
in
imposing a lesser sentence.
18. In the result I would
dismiss the appeal against conviction and sentence.
K 0
E N , AJ
I agree and it is so ordered
FORTUIN,
J