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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

 

Not reportable

Case no: A9/2024

In the matter between:
BOHLOKO MADITO	APPELLANT
and
THE STATE	RESPONDENT

 

Neutral citation:       MADITO v S (A9/24)

Coram:                   DANISO, J & MAHLANGU, AJ

Heard:                    02 SEPTEMBER 2024

Delivered:               01 OCTOBER 2024

 

Summary: Evidence – Single witness and cautionary rule of child evidence.

 

ORDER

 

The appeal against conviction and sentence is dismissed.

 

JUDGMENT

 

INTRODUCTION

 

Mahlangu, AJ (Daniso, J concurring)

 

[1]      This is an appeal against the judgment of the Regional Magistrate Mzana stationed at Bloemfontein Magistrate Court (the court a quo), which was delivered on 7 February 2014. The appellant was convicted on two counts of rape in terms of section 3 of the Criminal Law Amendment Act 32 of 2007 read with section 51(1), of the General Criminal Law Amendment Act, Act 105 of 1997 read with Part I of Schedule 2 of Act 105 of 1997. He was sentenced to life imprisonment. The appellant appeals against both conviction and sentence.

 

[2]      The State called three witnesses: the complainant herself, her aunt and the doctor who examined her. The defence called two witnesses: the appellant and the complainant’s sister.

 

[3]      The issues in this appeal are whether the trial court erred in accepting the evidence of the State witnesses and dismissing the evidence of the appellant and whether there were substantial and compelling circumstances that could affect the minimum sentence of life imprisonment for the rape of a person under the age of 16.

 

[4]      The complainant testified about the rape and about the fact that the appellant threatened to kill her should she tell anyone about the incident. Her aunt testified on how she came to know about the incident: the complainant and her aunt attended a traditional ceremony where the girls were assessed if they were still virgins or not. The complainant became hysterical when witnessing the girls undressing and started to cry. The complainant told her aunt about the rape, she was assessed and indeed she was found not to be a virgin. A charge was open and the complainant was then examined by the doctor who found that there were no physical injuries to the complainant’s vagina but she explained that it does not mean that there was no sexual abuse. Based on this evidence, the appellant was arrested as he was well known to the complainant.

 

[5]      During examination in chief, the complainant testified that she was residing with her brother, her sister and her brother’s wife at Soutpan, Free State Province. The appellant was the brother to her brother’s wife. She testified that she knew the appellant. The incident happened more than once at her brother’s house where she was residing with her brother and sister.

 

[6]      The Appellant testified that he knows the complainant and her sister, the witness he has called to testify for him. He knows them from Soutpan and that they were residing with her sister and brother in law.  He testified that he had a relationship with the complainant sister and they had a child together. That the complainant was aware of the relationship he had with her sister. The appellant’s witness, the sister to the complainant admitted that the appellant has fathered her child and that the complainant did not know about their relationship.

 

[7]      During cross examination, he testified that, he was in good terms with the complainant, he does not know why he would make false allegations against him. He was adamant that he never sexually assaulted the complainant. The appellant closed his case.

 

Ad conviction

 

[8]      R v Dhlumayo[1] makes it clear that a court of appeal will be reluctant to interfere with the trial court’s evaluation of oral evidence unless there is misdirection by the trial court. The trial court has the advantage of seeing and hearing witnesses, which is not the case in the appellate court. A trial court is thus better suited to make credibility findings. An appellate court would be hesitant to interfere unless there is a misdirection in applying the law to the facts, in which case the appellant court will interfere. This court thus needs to consider whether there is such a misdirection or not.

 

[9]      The defence made the argument that the complainant is a child and did not immediately report the incident. That the complainant might be making up a story against the appellant. The court found that, the complaint could not immediately report the incident as the appellant promised to kill her should she tell anyone.

 

[10]    In Woji v Santam Insurance Co Ltd[2] the following was held regarding the cautionary rule of a single child witness: “The question that 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 testified.”

 

[11]    S v Dyira[3]  the court laid down guidelines for how the evidence of a child witness, who is also a single witness, must be approached. The general guidelines require the court to: (a) … articulate the warning in the judgement, and also the reasons for the need for caution in general and with reference to the particular circumstances of the case; (b)…… examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material respects; (c) although corroboration is not a prerequisite for a conviction, a court will sometimes, in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt; (d) failing corroboration, a court will look for some feature in the evidence which gives the implication by a single child witness enough hallmark of trustworthiness to reduce substantially the risk of a wrong reliance upon her evidence.

 

[12]    The magistrate did consider these guidelines when considering the evidence of the single child witness. I am satisfied that the child could recall the incident and what followed with sufficient clarity and with adequate observation. She gave evidence of the crime of rape with maturity and composure, despite her young age and the trauma that she experienced. Her evidence was clear and satisfactory, and where there were some inconsistencies, it was not material to the case. Her evidence has intrinsic worth, even if evaluated with caution. There is no reasonable possibility that she can fabricate the story and implicate the appellant.

 

[13]    The trial court correctly found that, the complainant’s evidence clear and chronological, she presented herself as credible witness and even though she was subjected to a vigorous cross examination, she stood her ground.

 

[14]    Furthermore, the trial court also correctly found that, the appellant was not an honest and a reliable witness. He was aggressive and evasive in answering the questions during cross examination.

 

[15]    Thus I find no basis for concluding that the State did not discharge the onus of proving the appellant’s guilt beyond reasonable doubt or that the magistrate erred in her finding. This court can therefore see no reason to interfere with the finding of the trial court on the conviction.

 

Ad sentence

 

[16]    For the sentencing the appellant submits that the sentence of life imprisonment is strikingly inappropriate. The court further erred in finding that there are no substantial and compelling circumstances and that the appellant’s personal circumstances and the circumstances cumulatively constitute substantial and compelling circumstances.

 

[17]    The rape of a child below 16 years of age carries a minimum sentence of life imprisonment. Section 51(3) provides that “substantial and compelling circumstances” must be present for a court to depart from the prescribed measure. The minimum sentences are meant to send out a strong message that there are certain crimes that society finds so repugnant that lenient sentences will not be tolerated. The accused must prove that “substantial and compelling circumstances” are present. In S v Malgas[4], the locus classicus on the interpretation of “substantial and compelling circumstances”, stated that only the factors traditionally considered when an appropriate sentence is determined cumulatively justify a departure from the statutory prescribed minimum sentence should a court consider imposing a lesser sentence.

 

[18]    Each case is decided on its own facts, with all the aggravating and mitigating factors considered cumulatively. When determining whether a departure is called for, the court should weigh all the considerations that are traditionally relevant to sentencing.

 

[19]     In S v Zinn[5] the court laid down the sentencing triad that ought to taken into account when determining an appropriate sentence: the crime, the offender and the interests of society. When focussing on the crime, aggravating factors include that the victim was 9 years old, was raped at the house where she was residing with her sister and brother, and that he threatened to kill her should she tell anyone.

 

[20]    The defence attempted to argue that the absence any of the bodily injuries should be considered as a mitigating factor. The court informed the appellant that no notice will be taken of that. I am of a view that rape is inherently a violent crime, and the fact that there was no additional violence cannot constitute a mitigating factor. In any case, section 51(3)(a) prohibits the court from taking the apparent lack of physical injury to the complainant into account. Therefore, this court is unwilling to consider this factor as a possible mitigating factor.

 

[21]    When focusing on society’s interest, it is noted that gender violence in South Africa is the second pandemic. Rape is often an underreported crime which means that the true extent of the crime is not known. There is a disparate need for the courts to give guidance on how to eradicate this pandemic. There must be a situation where it is possible for woman to feel free and safe with no risk of being raped.

 

[22]    Lastly, the impact on the victim should be considered. The complainant was interviewed approximately 2 years after the incident but was still experiencing trauma. She lived in fear that the appellant would kill her should she tell her family.  

 

[23]    It is settled law that, where a trial judge makes findings on credibility of a witness, an appeal court will not interfere with or tamper with a trial court’s credibility findings judgment unless, it is demonstrably clear from evidence that the trial court was wrong. See R v Dhlumayo and Another.[6] The principle was echoed in S v Pistorius[7] where the court remarked as follows: “It is a time-honoured principle that once a trial court has made credibility findings, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Kebana 2010 (1) All SA 310 (SCA) para 12.' As the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings.”

 

[24]    The appellant did not dispute that the complainant and her Aunt are known to him. The court a quo found that the evidence of the complainant was satisfactory and without any contradictions. The court a quo correctly rejected the evidence of the appellant as false. There is no reason to interfere with the conviction.

         

 [25]   The appellant was sentenced to life imprisonment in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997. It was submitted on behalf of the appellant that the sentence be reduced to 20 years’ imprisonment. Section 51(1) provides:

 

“Notwithstanding any other law but subject to subsections (3) and (6) a High Court shall if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.”

 

[26]    The court a quo found no substantial and compelling circumstances warranting deviation from the prescribed minimum sentence. A court of appeal will be entitled to interfere with the sentence imposed by the trial court if the sentence is disturbingly inappropriate or out of proportion to the seriousness of the offence.[8] In imposing an appropriate sentence, the court should always balance the circumstances of the offence, the personal circumstances of the offender and the impact of the crime on the community, its welfare and concern.[9]

 

[27]    Further, it is trite that sentencing is pre-eminently a matter for the discretion of the court a quo and that the court of appeal should be loath to interfere with an imposed sentence. In S v Petkar[10] the applicable legal principles are stated as follows: “This Court’s powers to interfere with a sentence on appeal are circumscribed. It may only do so if the sentence is vitiated by (1) irregularity, (2) misdirection, or (3) is one to which no reasonable court could have come, in other words, one where there is a striking disparity between the sentence imposed and that which this Court considers appropriate.”

 

[28]    The appellant was well known to the complainant. The appellant used to visit his sister where the complainant was residing. The complainant could not tell anyone about the incident as the appellant promised her that, he will kill her should she tell anyone about the incident.

 

[29]    In totality of the circumstances of this appeal I cannot find that there is any basis upon which we can interfere with the appellant’s sentence.

 

[30]    When weighing up the mitigating factors against the aggravating circumstances, in this matter as well as the interests of the community, I am not persuaded that there is a just cause to interfere with the sentence imposed. The appeal ought to fail.

 

ORDER

 

[31]    Consequently, the following order is made:

 

1.     The appeal against conviction and sentence is dismissed.

 

E MAHLANGU, AJ

 

I concur, and it is so ordered

 

NS DANISO, J

 

Appearances:
Counsel for Appellant:	Ms. S. Kruger
Attorneys for Appellant:	Bloemfontein Justice Centre
	Legal Aid SA
	4th Floor, Fedsure Building
	49 Charlotte Maxeke Street
	BLOEMFONTEIN
Counsel for Respondent:	Adv A Bester
Attorneys for Respondent:	The Director of Public Prosecutions
	Ground Floor
	Waterfall Centre
	Aliwal Street
	BLOEMFONTEIN

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