---

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

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

 

(1)          NOTREPORTABLE

(2)           NOT OF INTEREST TO OTHER JUDGES

(3)           REVISED.

Case Number: A890/2015

30/10/2017

 

 

In the matter between:

 

SIPHO MATHEW MANANA                                                                                       Appellant

 

and

 

THE STATE                                                                                                                   Respondent

 

JUDGMENT

JANSE VAN NIEUWENHUIZEN .T

 

[1]       The appellant was convicted of the rape of a 12 year old boy and sentenced to life imprisonment. The appeal is against both conviction and sentence.

[2]        The appellant was the next door neighbour of the victim and had a good relationship with the victim's mother, Ms B.

[3]       Ms B testified that the victim's older brother alerted her to the possibility that the victim is being sexually assaulted by the appellant. She questioned the victim who was initially uncomfortable and refused to say anything. Upon being threatened with the police, the victim told his mother that the appellant had on numerous occasions inserted his penis into his anus.

[4]       The police was contacted and the victim was examined by a medical doctor. The doctor testified that the victim was penetrated anally.

[5]       The only question that remained was the identity of the perpetrator.

[6]       When questioned by his mother, the victim identified the appellant as the perpetrator. In his evidence, he confirmed that the appellant was the person who raped him.

[7]       The appellant bought the victim various items, especially items his mother could not afford to buy for him. From the evidence as a whole it clearly appears that the appellant was "grooming" the victim in order to gain his confidence. This was done with one aim and one aim only, to coerce the victim into the sexual interactions.

 

CONVICTION

Grounds of appeal

[8]       In her heads of argument, Ms Moloi, counsel for the appellant raised several grounds of appeal. Firstly, she submitted that the court a quo misdirected itself by not having sufficient regard to material contradictions in the state case.

[9]        The court a quo had due regard to the contradictions in the victim's evidence and after analysing the contradictions, came to the following conclusion:

 

"These two inexplicable contradictions do not however detract from the good impression that the complainant made in the court.

 

Although demeanour is a fallible guide to credibility the court was impressed with the assertiveness with which the boy answered questions during cross­ examination. He could not be shaken and his version remains the same throughout.

 

The court is of the opinion that he gave satisfactory evidence despite the apparent shortcomings referred to above and below.

 

He also answered spontaneously to all questions without hesitation. "

 

[10]      The court, furthermore, had regard to a contradiction between the evidence of the victim and that of his mother and concluded as follows:

 

"The court scrutinised Ms B's evidence mindful of the version of the accused and came to the conclusion that there was no indication of any motive she could have had to falsely implicate the accused.

 

Her testimony as well as her demeanour in court does not support the version of the accused in this regard. "

 

[11]      Secondly, Ms Moloi ubmitted that the court a quo should have treated the victim's evidence with caution because he was a single witness. The court a quo was alive to this issue and stated the following in the judgment:

 

"The traditional cautionary rule finds application in this case due to the fact that the complainant was a single witness in respect of the alleged rapes by the appellant.

This requires the court to be vigilant in the assessment of the witness's evidence and to look for safeguards which will exclude the risk of a wrong conviction. "

 

[12]      If one has regard to the judgment as a whole, it is clear that the court a quo duly applied caution in analysing the evidence of the victim.

[13]      Thirdly, it was argued that the victim did not make the report about the rape voluntarily. The court a quo, however, specifically excluded the evidence of Ms B in respect of the first report. In the judgment, the court deals with this aspect as follows:

 

"Ms B's behaviour was clearly intimidating in nature and adversely affects the voluntariness of the report that her son had made to her.

 

It therefore follows that this evidence as to the contents of the report has to be excluded. The rest of Ms B's evidence is however admissible."

 

[14]       In the final instance, Ms Moloi contended that the court a quo erred in not finding that the appellant's version is reasonably possibly true. The appellant denied the allegations against him and suggested that the victim and his mother are giving false evidence against him, because he stopped proposing love to her.

[15]      This version of the appellant, however, changed dramatically during his evidence. After analysing the appellant's evidence, the court a quo came to the following conclusion:

 

"The accused was not a credible witness. His answers to questions during cross-examination created the impression the he was grasping at anything that could possibly be considered as an acceptable answer but since his answers were incompatible with the general circumstances of the case they only served to emphasise the unreliability of his version. "

 

[16]       In the premises, the court a quo did not misdirect itself in any of the instances relied upon by the appellant. The appeal against conviction stands to be dismissed.

 

SENTENCE

Grounds of Appeal

[17]      The appellant submits that the court a quo misdirected itself in finding that there are no substantial and compelling circumstances justifying a lesser sentence than life imprisonment.

[18]      In substantiation of the aforesaid, Ms Moloi, counsel for the appellant, submitted that the following factors, cumulatively taken, constitute substantial and compelling circumstances:

"

•         There are prospects of rehabilitation;

•         He was maintaining his family;

•         This was not one of the worst rape cases;

•         The court misdirected itself in assisting the state to prove the age of the complainant.,,

 

[19]     The last factor does not constitute compelling and substantial circumstances as envisaged in the Act.

[20]      The appellant's personal circumstances appear from a pre-sentencing report that was compiled by a social worker, to wit.

"

•He was 47 years old;

•He is the eighth child from (he family of 16 children;

•His mother is still alive and his father passed away in 2004;

•He has a girlfriend and they have three children together;

•He dropped out of school in standard 6;

•He dropped out of school due to poverty;

•He also attended ABET and was doing grade 10;

•He was doing odd jobs as a builder earning R 1 300-00 per week;

•The mother of his children is employed by a school feeding scheme;

•He has sight and hearing problem. "

 

[21]      Neither the prospects of rehabilitation nor the fact that the appellant was maintaining his family constitute, in itself or cumulatively, substantial and compelling circumstances.

[22]      The appellant's averment that this was not one of the "worst cases of rape" is countered by the contents of the victim impact report. According to the report, the victim has been adversely affected on a psychological, physical, educational and social level. The victim, being only 12 years old, has his whole life in front of him. He should have had the joys of boyhood. He should have been able to enter adulthood with the innocence that is afforded to sexually inexperienced young adults. He should have been afforded to live with self-worth and dignify.

[23]      All of these have been brutally taken away from him by conduct of the appellant. In the premises, I do not agree that it was not one of the "worst cases of rape".

[24]      In the result, I am of the view that the court a quo did not misdirect itself in finding that no substantial and compelling circumstances, justifying the imposition of a lesser sentence, exist.

 

ORDER

[25]     In the result, the following order is proposed:

 

The appeal against conviction and sentence is dismissed.

 

 

 

N JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

I agree and it is so ordered.

 

 

 

S MAKAMU AJ

JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

 

APPEARANCES

 

Counsel for the Appellant:                  Advocate Ms M.B. Moloi

(012 4019200/072443 0328)

Instructed by:                                      Legal Aid South Africa

 

Counsel for the Respondent:               Advocate G.J.C. Maritz

(012 351 6832/084 257 9436)

Instructed by:                                     Director of Public Prosecutions

 

---