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[2012] ZAWCHC 220
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R.M v S (A151/12) [2012] ZAWCHC 220 (16 October 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE
HIGH COURT, CAPE TOWN
APPEAL CASE NO:
A151/12
CASE NO:
CC03/2009
In
the matter between:
R
M
Appellant
and
THE
STATE
Respondent
JUDGMENT: 16
OCTOBER 2012
INTRODUCTION
[1]
On 9 November 2000 the Appellant was arrested on
various counts of sexual assault. The four complainants were his two
biological
daughters (R and C M) born of his common law relationship
with C B (“C”) and two of C’s daughters (J and L B)
born of her marriage to G B.
[2]
On 23 May 2002 the Appellant appeared before the Regional Magistrate,
Bellvilie having been indicted on six common law charges.
In respect
of each of the four girls it was alleged that during the period 1999
to 2000 and at Delft on the Cape Flats, the Appellant
repeatedly
raped them. In addition it was alleged that he had indecently
assaulted J and L B by inserting his finger in their vaginas
on
various occasions and fondling their breasts. At the time of the
alleged offences the girls ages were as follows:
•
J 12-13
years
•
L 8 years
•
R 6 years
•
C 5 years
[3]
The Appellant pleaded not guilty to all of the charges and placed all
the issues in dispute. He was, however, prepared to admit
the
respective ages of each of the complainants.
[4]
On 22 July 2002 the Appellant was convicted by the Regional
Magistrate on the four counts of rape relating to each of the girls
and on the count of indecently assaulting J. He was acquitted on the
charge of indecently assaulting L.
[5]
Immediately after conviction the Regional Magistrate heard brief
submissions from the defence regarding sentence. Thereafter
the
Appellant was sentenced to ten years’ imprisonment on each of
the counts of rape and to six years’ imprisonment
on the count
of indecent assault. The Court ordered that certain of the sentences
should run concurrently and that the Appellant
should serve an
effective period of imprisonment of thirty years.
[6]
At the sentencing stage the prosecutor had asked the Court to refer
the matter to the High Court for sentencing in terms of
the Criminal
Law Amendment Act No. 105 of 1997 (the so-called
“
minimum
sentencing provisions
”
).
The Court did not accede to this request, evidently believing that it
was entitled to exercise its ordinary statutory jurisdiction
to
impose what it considered to be appropriate sentences in the
circumstances.
[7]
More than four years later, and on 5 October 2006, the Appellant
applied for leave to appeal against the sentences. In granting
him
leave to appeal the Regional Magistrate remarked that in the interim
the legal position had crystallized and that he believed
that he
ought to have referred the matter to the High Court for sentencing
under the minimum sentencing provisions, rather than
impose the
sentences which he did.
[8]
On 7 March 2008 the appeal against sentence was heard by this Court.
Thring, J (with De Swardt AJ concurring), was of the view
that the
Regional Magistrate was not empowered by the legislation to impose
the sentences and held that the Regional Magistrate
should have
terminated the proceedings and referred the matter to the High Court
for sentencing in terms of the erstwhile Section
52(1) of the minimum
sentencing provisions. The Court accordingly declined to hear the
appeal, believing that the sentence was
ultra vires.
The Court exercised
its powers of review under
Section 304(4)
of the
Criminal Procedure
Act No. 51 of 1977
, set aside the sentences of the Regional
Magistrate and referred the matter to the High Court for sentencing
under the minimum
sentencing provisions. On 15 April 2009 the matter
came before Saldanha J in terms of
Section 52(1
)(b) for sentencing
under the minimum sentence provisions as they were applicable before
the 2007 amendment thereof. Before he
could consider imposing
sentence, Saldanha J was obliged to confirm that the proceedings
before the Regional Magistrate in regard
to conviction were in
accordance with justice.
[9]
The State (very properly in my view) brought to the attention of
Saldanha J that, subsequent to the sentencing of the Appellant,
R and
C had claimed that they had given false testimony before the Regional
Magistrate and further alleged that it was not the
Appellant who had
sexually molested them. In light of this, the Court a quo
directed that the
evidence of all four complainants be heard along with the evidence of
various other witnesses including C B.
[10]
Having regard to the fact that the complainants and C may have
committed perjury before the Regional Magistrate, Saldanha J
required
that they be legally represented at the hearing before him so that
they could be properly advised of their rights against
self-incrimination.
[11]
After hearing the further evidence, the Court a quo
was satisfied that
the Appellant’s conviction on the charges relating to J and L
was sound and the learned Judge confirmed
the judgment of the
Regional Magistrate in that regard. As far as R and C were concerned,
the Court a quo
was
not impressed with the integrity of their respective recantations
but, nevertheless, had little choice in the circumstances
but to
decline to confirm the convictions relating to them.
[12]
After hearing further evidence relevant to sentence, Saldanha J found
that the provisions of the minimum sentencing legislation
did not in
fact apply to the case of the Appellant since he had not been
cautioned of the applicability thereof by the Regional
Magistrate at
the commencement of the trial before him.
[1]
The
Court a
quo
proceeded
to sentence the Appellant to thirteen years’ imprisonment on
each of the rape counts in respect of J and L and six
years’
imprisonment on the count of indecently assaulting J. The sentences
imposed in respect of J were directed to run concurrently,
thereby
giving the Appellant an effective sentence of twenty six years’
imprisonment.
[13]
On 29 March 2011 Saldanha J granted the Appellant’s application
for leave to appeal against his convictions. There was
no application
in respect of the sentences.
[14]
On 23 July 2012, exactly ten years after his conviction in the
Regional Court, the Appellant’s appeal was heard by this
Court.
At that hearing (and as was the case before Saldanha J) the Appellant
was represented by
Adv.
A Erasmus
of
the Cape Bar
and
the State by
Adv.
C. de Jonqh
of
the office of the Director of Public Prosecutions in Cape Town. The
Court is indebted to both counsel for their thorough heads
of
argument and their most helpful arguments in open Court.
THE
APPROACH TO BE ADOPTED BY THE HIGH COURT IN MINIMUM SENTENCE
MATTERS
ORIGINATING IN OTHER COURTS.
[15]
The role of the Court a quo
in
proceedings such as those before it have been euphemistically
described by Davis J as that of a
“
chain
novelist'
who
is required to complete a novel which began in another Court.
[2]
The
turn of phrase employed by the learned Judge is a curious one if only
because the penning of a judgment is intended to embrace
facts upon
which conclusions of law are based. As the most disturbing facts of
this case so graphically demonstrate, we are dealing
here with the
harsh realities of the human condition in the poorest of this Court’s
neighbourhoods and not with this year’s
crime fiction best
seller by one of our well known authors. But, if what the Full Bench
in
Taliaard’s
case
meant (as I believe it did) was that the role of Saldanha J in this
matter was:
(i) to satisfy
himself that the proceedings before the Regional Magistrate were
procedurally in order; and
(ii)
that the evidential material before that Court was prima facie
sufficient to sustain the convictions brought out;
then
the Court a quo
was
entitled to enter its view that the earlier proceedings were
“
in
accordance with
;justice”
on the record and continue with the criminal proceedings before it by
bringing them to finality. Such finality,
the Legislature has
determined, was to be reached by imposing a prescribed minimum
sentence or deviating from there if the High
Court was satisfied that
substantial and compelling circumstances existed for it to do so
[3]
.
[16]
The Legislature has determined that the function of the High Court in
such circumstances is primarily to impose an appropriate
sentence in
a case which commenced in another Court. But this function, as is the
case with any sentencing Court, is exercised
in the context of
consideration of the fair trial rights protected under Sections 35
(2) and (3) of the Constitution, 1996, together
with the rights
protected under Sections 9 (equality), 10 (human dignity), and
12(1)(e) (not to be subjected to cruel, inhuman
or degrading
punishment) thereof.
[17]
I have said that this Court's function in matters such as these is
primarily to impose sentence, but of course that function
can only be
given effect to if the Court is satisfied that the convictions are in
accordance with justice. That is a sine qua non
for the exercise of
the sentencing discretion (such as it is). What troubled many judges
before the minimum sentencing provisions
were amended in 2007 was
what a court was required to do when it had reservations about the
integrity of the conclusions arrived
at by the trial court. In the
bifurcated procedure which existed before that amendment the High
Court did not sit as a court of
appeal or review as it was composed
of a single judge and so it was not able to set aside the trial
court’s findings on that
basis. In my view the way in which
Saldanha J went about dealing with the matter after being alerted to
the recantation of the
2 witnesses was eminently sensible and
correct. There was no complaint before us that the accused did not
receive a fair trial
in the two courts in which his matter was heard,
nor could there have been in the circumstances.
[18]
Fortunately the 2007 amendment did away with the bifurcated procedure
and the type of problem which confronted Saldanha J is
not likely to
present itself much more in the future.
[19]
After hearing the witnesses and considering the other evidential
material before him, Saldanha J was only satisfied with certain
of
the convictions. In respect of those with which he was not satisfied
the Appellant received the benefit of the doubt and was
acquitted by
the Court a quo.
[20]
The notice of appeal filed in this matter attacks “the
confirmation of the ... [Appellant’s]
... convictions on
counts 2, 3 and 4 on 18 March 2010 by his Lordship Justice Saldanha ”
The Appellant then
sets out in quite some detail (9 pages) the specific grounds for his
attack on the confirmation. This attack
focuses on evidence given
before the Regional Magistrate, as well as before Saldanha J and
seeks to highlight, inter alia,
alleged
contradictions and/or improbabilities in the witnesses’
testimony in the two Courts.
[21]
In order for this Court to be satisfied that Saldanha’s J
confirmation of the convictions was justified, it is necessary
to
look at the totality of the available evidential material before both
the Regional Court and the High Court relevant to count
2 (the rape
of J), count 3 (the indecent assault of J) and count 4 (the rape of
L).
THE
EVIDENCE GIVEN IN THE REGIONAL COURT
[22]
In May 2002 the Regional Magistrate heard the evidence of R, J, L and
C. At the time of testifying:
(i) R was aged 8
years and in grade I;
(ii) J was aged
15 years and in grade 7;
(iii) L was aged
10 years and in grade 9; and
(iv) C was aged
7 years. Her level of education does not appear from the record.
All
of the complainants gave evidence in a different room to the
Appellant and with the assistance of an intermediary.
[23]
The complainants testified consistently of being repeatedly raped by
the Appellant, inter alia,
at
their house in Delft. Since the family had been moved around from
pillar to post, (Heideveld to Delft, to Mitchell’s Plain,
to
Mannenberg and back to Delft), there was initially some uncertainty
as to precisely when the assaults took place. Fortunately
the
existence of the District Surgeon’s so-called J88 examination
form fixed the date of examination of the complainants
by Dr. Claire
Edson as being some time prior to 9 November 2000. It was common
cause before us that in 2000 the family was living
in Delft for the
second time. At that stage C had separated from G B and was living in
a common law relationship with the Appellant
who had fathered R and
C.
[24]
All four of the complainants testified about their desperate domestic
circumstances in Delft. The family occupied a small council
house
with other relatives and it appears as if all six of them slept in
one room. C and the Appellant had a drug problem and C
often went out
at night, it seems, to earn something extra from prostitution. On
occasion, C took J and L along with her and would
use the girls as
foils when she would beg for money from passing motorists at traffic
lights. It is quite possible too, on the
evidence before the Regional
Magistrate, that the girls were present when their mother
participated in acts of sexual contact with
men whom she had picked
up in the process of begging.
[25]
It seems too that C suffered from mental illness and was admitted to
Lentegeur Hospital from time to time. In such circumstances
the care
of the children was precarious to say the least and they were
eventually placed in the care of Ms. F E, a Good Samaritan
who lived
in Delft. It was she who noticed injuries to some of the girls’
genitalia while they were bathing at her house,
and who raised the
alarm.
[26]
As a consequence of F’s intercession the Appellant was arrested
and all four girls were examined by Dr. Edson on 9 November
2000. She
found various injuries which she believed were consistent with
sexual assault. The girls were then placed in formal
foster care.
[27]
In May 2002 each of the girls gave evidence before the Regional
Magistrate in the circumstances described above and, in general
terms, testified as to how the Appellant systematically raped them
over a period of time at Delft when C was not present. J also
described acts of indecent assault.
[28]
In a fairly terse judgment which was short on detail, the Regional
Magistrate found the children to be credible witnesses,
found some
corroboration of their evidence and discredited the Appellant. He
accordingly convicted the Appellant on four counts
of rape and one
count of indecent assault and acquitted him on another count of
indecent assault.
THE
EVIDENCE BEFORE THE COURT A QUO
[29]
Because of the stance adopted by R and C in reneging on their
previous testimony, Saldanha J approached the entire case with
great
caution. He heard the evidence of all four complainants as well as a
number of other lay witnesses, including C. The Court
a quo
did not hear any
medical evidence but relied on the testimony of Dr. Edson before the
Regional Magistrate.
[30]
Before the Court a quo
R
and C sang another tune. They claimed that their mother had put them
up to falsely implicating the Appellant in the Regional Court,
because of the fact that she had found a new lover and wanted the
Appellant out of her life.
They claimed that C had exposed them to pedophiles at a drug-den in
Woodstock, that they had been doped
and that in the process they had
sustained the genital injuries detected by Dr. Edson.
[31]
Saldanha J, correctly in my view, was not persuaded that there was
any proper factual basis for this recantation on the part
of these
witnesses and he clearly disbelieved them. However, he had little
choice but to refuse to confirm the convictions relating
to R and C,
since this would clearly not be in the interests of justice.
[32]
As far as J and L were concerned the Court a quo
was satisfied as to
their reliability with the evidence given before him and he confirmed
the relevant convictions in respect of
them.
THE
CHARGE RELATING TO L
[33]
At the time of testifying before Saldanha J, L was seventeen years of
age and obviously a teenager of some maturity. She was
required to
testify about ten years later of events which had occurred when she
was six or seven years old. She described acts
of indecent assault
which the Appellant allegedly perpetrated (by inserting his finger in
her vagina and touching her inappropriately)
as well. She had
difficulty locating the events as to time and place, other than to
say they had happened when the family lived
in Delft.
[34]
The evidence of L as to rape was not corroborated by Dr. Edson whose
finding of genital injuries was inconclusive: it was possible
too
that the child exhibited the consequences of poor health care.
[35]
Saldanha J delivered a very detailed and searching judgment in which
he applied the cautionary rule, conscious of the fact
that he had to
consider the evidence of young women who were children when the
alleged incidents occurred and who were single witnesses
in respect
of the individual charges relevant to them.
[36]
But, Saldanha J also cautioned himself and noted that he was not
sitting as a Court of Appeal in respect of the Regional Court
proceedings. That approach is correct in terms of
Taliaard’s
case supra
but the Court a quo
did have the
additional benefit of receiving viva voce
evidence in addition
to the record of proceedings in the Court of first instance.
[37]
In summing up the evidence of J and L the Court a quo
held as follows:
“
in
respect of the testimony of J and L I do not have any dilemna or
doubt in accepting their version as opposed to the dilemna I
have in
accepting the evidence of R and C in their recanting of their
evidence that they had given in the Regional Court.
”
[38]
After considering the evidence of J and L “in the context of
the mosaic created by the totality of all the evidence including
that
of the accused
”
,
Saldanha
J was persuaded that
“
what
clearly emerged with credence and consistency ...[was]... the high
probability of the allegations of sexual abuse by the accused
of his
female children."
[39]
I shall deal with the evidence of J below, but having read the
evidence of L I am unable to come to the same conclusion as
the Court
a quo
as
regards her consistency and reliability.
[40]
In argument
Ms.
Erasmus
highlighted
a number of inconsistencies in the evidence of L before the Court a
quo
when
considered in the light of her testimony before the Regional
Magistrate. These included the fact that she could not remember
whether she had been raped more than once (whereas she had earlier
testified that this was certainly so) and where in the house
the
incidents took place.
[41]
In the Regional Court, for example, L had testified about an incident
in which a man called Ashraf had
“
made
off
’
with
her, but in the High Court she was equivocal as to whether anyone
else had sexually assaulted her. And, under probing, yet
sensitive,
cross-examination by
Ms.
Erasmus
on
a number of pertinent issues, the witness’s testimony is
littered with phrases such as
“
I’m
not sure”
or
“/ don’t know”. These answers were given, inter
alia,
to
questions relating to her earlier testimony before the Regional
Magistrate and the important question as to whether she was raped
by
anyone else in Delft, to which she replied
“
I'm
not sure Miss, I don’t know.”
[42]
in the light of this equivocation one looks for corroboration,
particularly in the medical evidence. Regrettably, in respect
of L
this is sorely lacking, in evidence Dr. Edson handed in the J88 form
regarding sexual assault in respect of L but was not
asked to testify
in regard thereto. And, the form itself does not assist one in
determining conclusively whether the nine year
old child sustained
any injuries to her genitalia when she was examined by the District
Surgeon on 9 November 2011.
[43]
While the suspicion is strong that L was also one of the Appellant’s
victims, I regret to say that I do not agree with
the Court a quo
that the totality of
the evidence presented by the State in the Regional Court and the
testimony before Saldanha J, was sufficient
to establish the guilt of
the accused beyond reasonable doubt. In my view there is sufficient
doubt to justify the Appellant’s
acquittal on the charge of
rape relating to L (count 4).
THE
EVIDENCE RELATING TO J
[44]
When she testified before the Court a quo
J
B was a mature woman of 22 who was employed and was engaged to be
married.
[4]
J’s
evidence was clear and appears to have been given in a forthright
fashion. She was under no illusions as to what had happened
to her or
who the perpetrator was.
[45]
The Court a quo’s
findings
in respect of J are clearly borne out by the record, the pain and
trauma of the events all those years ago still being
very evident
from her testimony. The assault giving rise to J’s complaints
occurred at a time when she was about twelve or
thirteen. She was
required to testify for the first time about them when she was 15 and
then again seven years later before the
Court a quo. Throughout
therefore J was an older and more reliable witness than her younger
siblings.
[46]
The most important aspect of the case in respect of J, however, is
that her claims are fully supported by the evidence of Dr.
Edson and
the medical examination conducted on her in November 2000. There is
therefore sufficient independent corroboration for
her testimony.
[47]
In argument
Ms.
Erasmus
correctly
pointed to some inconsistencies in the evidence given by the witness
before the Regional Magistrate and later before the
Court a quo. I
have had regard to the record and I am satisfied that those
inconsistencies are not of sufficient materiality to
undermine the
witness’s evidence when considered in the entirety of the
“mosaic
”
,
as the Court a quo
called
it.
[48]
In the circumstances I am satisfied that the Appellant was correctly
convicted of the charges relating to J (counts 2 and 3).
CONCLUSION
[49]
In light of the aforegoing, I would uphold the appeal against the
Appellant’s conviction on count 4 but otherwise dismiss
the
appeal against the conviction on count 2 and 3
GAMBLE,
J
FOURIE,
J: I agree.
The
appeal succeeds in respect of count 4. The confirmation by the Court
a quo
of
the Appellant’s conviction on count 4 and the sentence imposed
upon him in regard thereto, are set aside and an order setting
aside
the conviction of the accused by the Regional Court on count 4, is
substituted therefor.
The
appeal against the confirmation by the Court a quo
of the Appellant’s
convictions on counts 2 and 3 is dismissed.
In
the result the sentences of 13 years’ imprisonment and 6 years’
imprisonment imposed in respect of counts 2 and 3,
respectively, as
well as the order that such sentences are to run concurrently, are
confirmed. The effective term of imprisonment
is accordingly 13 years
with commencement date 22 July 2002.
FOURIE,
J
ZONDI,
J: I agree.
ZONDI,
J
[1]
S
v Ndhlovu
2003
(1) SACR 331 (SCA)
[2]
S
v Taliaard
2005
(1) SACR 370
(C) at 373c
[3]
See
Section 51 (3) of Act 105 of 1997
[4]
The
Court was informed from the Bar by Ms. Erasmus
during
argument on appeal that Judith had since married and had her first
child.