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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 REPUBLIC OF SOUTH AFRICA

THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 CASE: NO:A762/2015

M. N.                                                                                                                 APPELLANT

and

STATE                                                                                                           RESPONDENT

JUDGMENT

KHUMALOJ

INTRODUCTION

[1] The 43 year old Appellant, exercising his automatic right to appeal conferred upon him in terms of s 10 of the Judicial Matters Amendment Act 42 of 2013, is appealing against his conviction and the life sentences imposed by the Regional Court in Pretoria on two counts of rape, in contravention of s 3 read with other provisions of the Criminal Law ("Sexual Offences and Related Matters") Amendment Act 32 of 2007 and also read with s 51 and schedule 2 of the Criminal Law Amendment Act 105 of 1997 ("the Prescribed Minimum Sentence Act").

[2] The two incidents of rape took place allegedly at Appellant's temporary place of residence in Mamelodi. He came from Ngoyi in Hammanskraal where his family which constitutes of his four children and wife stayed. He was employed in Mamelodi where he rented a shack. The children often visited him there. It is alleged that during the school holidays in July 2013, he was visited by the eldest of his children, a 15 year old daughter

("complainant") with her 4 year old sibling when he committed acts, of sexual penetration, on the complainant without her consent.

[3] He was duly represented during the trial. He pleaded not guilty to the  charges and   did not proffer a statement in explanation of  his plea, electing to  exercise his right to remain

silent in terms of s 35 (h) (i) of the Constitution of the Republic of South Africa, 1996 ("the Constitution").

[4] The fact that the complainant was penetrated was not in issue. The issue during the trial, that was also raised on appeal was whether the state had proved beyond reasonable doubt that the Appellant was the one who sexually penetrated the  complainant.

[5] The Appellant was convicted following the testimony of the complainant that was found to have been consistent with the testimony of her mother and corroborated by a medical report on the injuries she sustained in her vagina when she, was penetrated. The trial court accepted the evidence of the state witnesses whilst it rejected Appellant version, that of a bare denial, as not reasonably possibly true.

[6] The ground for Appellants appeal against conviction is that the  trial  court misdirected itself in finding that the state succeeded to prove its case against him beyond reasonable doubt.

[7] Briefly the evidence that was led on behalf of the prosecution was as recounted by the complainant through an intermediary that: When she and her four year old sibling visited the Appellant's shack in July 2013, they both slept in Appellant's bed sharing a blanket, whilst Appellant had one to himself. Her sibling slept in the middle. On 13 July 2013 while they were sleeping, Appellant woke her up and instructed her to come and sleep next to him under his blanket. She obliged. Appellant took off her panty and raped her. He did the same thing the following day. After each rape he told her to bath. He took them back home to their mother in Ongoyi on 15 July 2013. He later found out that she has not menstruated and sent her money to come back to Mamelodi. He then took her to a doctor, a Nigerian national who inserted pills in her vagina which were supposed to induce an abortion. When she came back her mother enquired about her menstruation as her pads were unused. She then reported to her mother what had taken place at Appellant's place.

[8] Her mother's evidence was that the kids were used to visiting Appellant during the holidays or weekends. The complainant and her 4 year old sister visited the Appellant from 7th of July 2013 and they were brought back by the Appellant on 15 July 2013. Afterwards Appellant came back home again and suggested that she buy laxative medication called "Stameta" for the complainant. During that time she asked the complainant about the unused pads and the complainant reported to her that Appellant raped her during their recent visit to his shack. She examined the complainant's private parts and noticed that they were injured. She phoned the  Appellant  about it  but  he denied  doing anything to   the complainant. She went to report the matter to the police. The complainant was examined by a doctor who confirmed that she has been sexually penetrated.

[9] The last state witness Dr S P Lukhozi testified on the recordal he made on the J88 when he examined the complainant who was complaining of stomach pains. He confirmed that he observed a healed injury on the labia, a superficial cleft in the vaginal area that is consistent with a penetration that happened more than 72 hours ago which could have been inflicted by a blunt object. He also removed pills from her vagina which he identified as Mesoprostolen that were meant to induce an abortion. The pills were admitted into evidence as exhibit “D”.

[10] The Appellant's evidence was that the complainant and her toddler sister visited him from the 7 July 2013 and he took them back on 15 July 2013 as he was going to work. He denied doing anything to the complainant or knowing anything about the pills found in her vagina. According to him the children slept on the floor whilst he slept on the bed. He  would let them sleep on the bed only when he is bathing in the morning. He was of the view that the complainant's mother and her family fabricated the rape story to get rid of him. The mother falsely laid the charges against him in order to cheat him out of his house so that if he goes to jail, she can stay with her family.

GROUNDS OF APPEAL AD CONVICTION

[11] The question the Appeal court is to determine is whether the Appellant's allegation that the court misdirected itself in finding that the state succeeded to prove its case beyond reasonable doubt is justified. The Appellant in its heads of argument questions the failure by the complainant to report the rape to her mother on the first available time when she arrived home. Furthermore that by confirming that there is a family feud about Appellant's house in Ngoyi she corroborated Appellant's allegation that the charges were false. It is also argued that the complainant was a single witness and therefore her evidence was to be treated with caution. She was also not clear.

[12] Reliance on the evidence of a single witness for a conviction is permitted in terms of s 208 of the Act even if uncorroborated, as long as the evidence is credible and sufficient to return a conviction. The evidence is regarded as sufficient if it is clear and satisfactory in every material respect. However the danger of relying exclusively on the evidence of a single witness has evoked a judicial practice of exercising caution by treating such evidence with utmost care. A reasonable concern, especially in the instance of a child witness. In S v Mokoena 1932 OPD 79 at 80, it has been suggested as a guide not to consider a conviction on a single witness in the following instances:

[12.1] Where the witness has an interest or bias adverse to the accused,

[12.2]  where he has made a previous inconsistent statement,

[1123] where he contradicts himself in the witness box,

[12.4] where he has been found guilty of an offence involving dishonesty,

[12.5]   where he has not had proper opportunities for observation.

[13] The list is evidently not exhaustive, as it has been indicated in numerous judgments that followed on the Mokoena decision, with judicious and common sense application still required; see R v J 1966 (1) SA 88 (SRA) 90E-F R v Nhlapo 1953 (1) PH Hll (A), where the court also noted that:

" it does not mean.... that [an] appeal must succeed if any criticism however slender, of the witness' evidence were well-founded."

[14] The court a quo was very much alive to the fact that the evidence of the complainant was to be treated with caution because she was not only a single witness to the commission of the crime but also young. As a result the court noted that her evidence was not in sequence however she still clearly narrated how the rapes took place and the pills inserted into her vagina, being very direct and detailed. The pills were indeed found in her vagina and their medical effect to induce abortion confirmed by medical evidence. Her evidence of being told to bath and the rape only reported more than 3 days after it happened was corroborated by medical findings that the injuries were in line with sexual penetration and older than 72 hours.

[15] The report the complainant made to her mother indicate that the complainant's evidence was consistent. She reported exactly what she testified about in court. She said she did not volunteer or report the information sooner, as Appellant told her not to tell. However as soon as she was asked about her menstruation, she then disclosed to her mother. Her evidence was reliable and satisfactory in all material aspects to sustain a guilty verdict. The court a quo was therefore not misdirected in convicting the Appellant on her evidence as a single witness.

[16] The learned magistrate also found the evidence of the mother to be straight forward. Immediately she was informed of the rape and the pills, she examined the complainant and when she realised that she indeed might have been violated, she phoned the Appellant and thereafter reported the matter to the police. The Appellant had before then suggested to her that she administer laxatives to the complainant, which on hindsight was suspicious to her.

[17] The medical evidence was also straight forward and uncontested.  Appellant's counsel tried to argue that penetration might have been as a result of  insertion  of  the tablets in the complainant's vagina. The doctor was explicit that it was indicative of sexual penetration or by a blunt object. Therefore the trial court's finding of the state witnesses evidence to be adequate and establishing the Appellant's guilt beyond reasonable doubt was justifiable.

[18] On the other hand the Appellant's defence was a bare denial. He also accused his wife of falsely implicating him. The fact that the complainant has confirmed that there is a disagreement about the house does not authenticate the Appellant's allegations of being falsely implicated. His wife will also have to organise the rape and the insertion of the pills in the complainant's vagina. The wife has also indicated that on his arrest she moved from the house. The court a quo therefore correctly found his version far- fetched and not reasonably possibly true.

[19] Only if a court is convinced that an assessment of the evidence or a conclusion reached on a factual question by a trial court is wrong does it have a duty to reject such assessment or conclusion. In such an instance the Appeal court is at liberty to disregard the trial court's factual findings, depending on the nature of the misdirection and the circumstances of the case, and to reach its own conclusion. In 5 v Robinson 1968 (1) SACR 469 (SCA) par [58], it is suggested that if the court is in doubt, the trial court's judgment is to remain in place.

[20] The Appellant has failed to prove that such a misdirection was committed by the trial court that requires an intervention or interference with its conclusions or assessments.

AD SENTENCE

[21] By reason of the complainant's age and also the fact that she was raped twice, the provisions of s 51 (1) of the Criminal Law Amendment Act 105 of 1977 read with part 1 of schedule 2 of that Act prescribing life imprisonment applied. As a result two life term imprisonment sentences were imposed upon the Appellant.

[22] It is trite that sentencing is the prerogative of the trial court's discretion which the court must exercise judiciously, in line with valid and established governing sentencing principles (see 5 v PB 2013 (20 SACR 533 (SCA) at [19] A. The trial court is therefore in its assessment of punishment, afforded a wide discretion except in a case were a minimum sentence is set by statute as in casu, the provisions of s 51 read with Schedule 2 of the Act are applicable.

[23] However even though a court has to be conscious that the legislature has prescribed a sentence that should ordinarily be imposed for the crime specified, it is for the sentencing court to determine whether there are traditionally mitigating factors-such as age or a clean record which lessens an accused's moral blameworthiness justifying a finding that substantial and compelling circumstances are present; S v Malgas 2001(1) SACR 469 (SCA).

[24] The Appellant's ground for appealing these sentences are that the court a quo over emphasised the seriousness of the offence and failed to consider his personal surrounding circumstances, specifically that he was a 44 year old first offender, suffering from a life threatening disease and been in custody for more than two years awaiting trial. It was argued that cumulatively these factors constitute substantial and compelling circumstances.

[25] It was argued on Appellant's behalf that this is not the most severe form of rape since there is no evidence that the complainant suffered any ongoing or excessive trauma.

[26] The court a quo took into account the factors mentioned especially that the Appellant was a first offender and been in custody for 24 months and suffering from a life threatening disease. In order to assess if these factors were weighty as substantial and compelling circumstances to justify the court's deviation from the prescribed sentence, the court balanced them against what it considered to be aggravating factors. The fact that the complainant was not only young but the Appellant's daughter, she would naturally look up to him as her father, for love, guidance and protection. He took advantage of her and violated her innocence.

[27] An additional aspect that the court should have also considered was that not only did the Appellant violate the complainant's innocence but he also put her life in danger by making her consult a bogus doctor to induce the perceived pregnancy.

[28] On the allegation that there was no evidence of trauma. The court indicated that she was visibly traumatised when she gave evidence. Indeed there was no victim impact report as correctly mentioned by the Appellant's counsel, therefore any conjectures about the nature and extent of trauma she allegedly did or did not suffer from cannot be elevated to facts that the court have to consider in sentencing the Appellant and therefore counsel's submission not persuasive for the purpose of reconsideration of the sentencing.

[29] Furthermore, the court a quo took into account all the personal circumstances aforementioned, the circumstances of the victim, the seriousness of the crime and its prevalence in our communities. The court considered it aggravating that the Appellant committed the crime against his own daughter, who was vulnerable, as she had to be with his father and in the sanctity of her home. Appellant took advantage of the situation. The crime he committed and the circumstances under which the crime was committed deserve a harsher punishment as it was recognised that in such circumstances, deterrence and retribution will come to the fore (See 5 v Vilakazi 2009 (1) SACR 552 (SCA).

[30] In the circumstances I therefore make the following order:

1.      The appeal against conviction and sentence is dismissed.

____________________

N V KHUMALOJ

JUDGE OF THE HIGH COURT

GAUTENG DIVISION,  PRETORIA

I concur

_________________

T D VILAKAZI

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

For the Appellant:                R S MATLAPENG

Instructed by:                       Legal Aid South Africa

                                                   Tel: (012) 4019200/072 103 8837

                                                   Fax: (012) 324 1950

                                                   Ref: Matlapeng

For the Respondent:            P W COETZER

Instructed by:                       The Director of Public Prosecutions

                                                   Appeal section

                                                   North Gauteng: Pretoria

                                                   Tel: (012) 351-6700

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