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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 HIGH COURT OF SOUTH AFRICA

NORTH GAUTENG, PRETORIA

 

(1)      NOT REPORTABLE

(2)      NOT INTEREST TO OTHER JUDGES

(3)      REVISED.

 

Case No. A229/16

4/5/2018

 

In the matter between:

 

R W                                                                                                                                   Appellant

 

and

 
THE STATE                                                                                                                    Respondent

 
JUDGMENT

TSHABALALA AJ

1.          The Appellant, who was legally represented during the trial proceedings, was convicted on 19 March 2012 of two counts of rape and sentenced to two life imprisonment terms by the Magistrate in the Regional Court for the Regional Division of Gauteng, held at Benoni. The court a quo further ordered that in terms of section 103(1) of the Firearms Control Act 60 of 2000 the appellant is unfit to possess a firearm and in terms of section 50(1)(i)(a) of the Criminal Law amendment (Sexual Offences and related matter) Act 32 of 2007 the appellant’s name to be recorded in the national Register for Sexual offenders.

2.          The charges of rape are based on the contravention of section 3 read with sections 1, 56(1), 57, 58, 59, 60 and 61 of the Sexual Offences and Related Matters Amendment Act, 32 of 2007 (Read with the provisions of section 51 and Schedule 2 of the Criminal Law Amendment Act, 105 of 1997 as amended).

3.          The Appellant has an automatic right of appeal in terms of section 10 of the Judicial Matters Amendment Act, 42 of 2013. He approaches this Court by virtue of the automatic right of appeal and appeals against both conviction and sentence.

4.          The Appellant has filed an application for condonation for the late filing of his notice of appeal. The State did not oppose this application. Condonation is thus granted.

5.          The Court has to consider the following issues in this matter:

5.1.       Whether the Appellant had a fair trial having regard to the qualification and experience of the attorney who represented the Appellant in the Court a quo. Whether Ms G B corroborated the evidence of M W.

5.2.        Whether the evidence of M W is improbable having regard to the fact that Ms W and J were not sleeping far from her room.

5.3.       Whether the evidence of the complainants was satisfactory considering that they were single witnesses in respect of each count of rape in this matter.

 

6.         The testimony of each witness is summarized below. The evidence of M W and J W were reconstructed. Their mother's evidence is only referred to in the judgment. Mr Kathrada, the legal representative of the appellant during the trial and sentencing proceedings, placed on record that he went through the entire reconstruction which included the notes of the court a quo. He confirmed that it is a true reflection of the evidence lead in court. The appellant confirmed that he could recall some of the evidence and other evidence he could not recall. It was submitted by counsel for the respondent that the best evidence available is placed before this court for consideration, and this was not disputed by the appellant's counsel. This court thus accepts the evidence on the record to be a true reflection of the evidence led at the court a quo.

7.          The State called four witnesses, M W, J W, Mrs W and G B. The Appellant testified in his own defence. There was no other witness called for the defence.

8.          Michaela testified that on the day of the rape incident the Appellant had an argument with his wife, Mrs W. This has been corroborated by the evidence of Mrs W. M went to sleep, she felt someone lying behind her when she was asleep. M realised that it was the Appellant. The Appellant touched her breasts and turned her around to lie on her back. He undressed her pants and underwear. M tried to close her legs but the Appellant forcefully opened them and inserted his penis inside her vagina. The Appellant had sexual intercourse with her without her consent; he closed her mouth with his hands to prevent her from screaming. She was unable to call out for help.

9.          M told the Appellant that he was hurting her whilst he was having sexual intercourse with her. The Appellant did not stop until he ejaculated. He got dressed and walked out of the room after he had finished. M told him that she would report the incident to her mother. The Appellant told her that no-one will believe her, that it will be her word against his. M went to the bathroom to wash after the Appellant had left her room because she was bleeding.

10.       She testified that she met G B ("B") during June 2010. She felt comfortable with B and reported the rape to her. The matter was eventually reported to the police. M was sent for medical examination after the docket had been opened.

11.        Michaela testified that she did not have any boyfriend during the period she was raped. She denied having a relationship with G. Michaela further testified that G stayed with them during January to December 2004 and that he was not present when she was raped: The incident took place between 20 and 22 December 2009.

12.        The Court a quo concluded that the complainant's evidence was corroborated by B and Ms W, the complainant's mother in certain respects. The Court a quo also found that M was a good witness and that she testified in a sensible and logical manner and did not contradict herself on material issues. The Court a quo further decided that M had no apparent motive to implicate her father. The Court also found that Michaela's evidence was credible and reliable.

13.        B confirmed that M reported to her that the Appellant had raped her three times. B also testified that she and M met on a school camp during June 2010. B and M started discussing about their families when M started crying, M thereafter made the report. The Court concluded that there was no reason to criticize the testimony of B.

14.        J W was 7 years old when she testified. J testified that the Appellant inserted his penis inside her vagina twice. The first time it happened it was at night on the stoep. The Appellant took off her clothes. She lied on her back when he raped her. The Appellant threw her clothes and bedding away after he had raped her for the second time around. M and Ms W were at aunt L when the incident occurred. J testified that she told aunt L about the incident. J also testified that she reported the incident to Aunt S at lthemba in Boksburg.

15.        J drew pictures to explain the rape incident during her testimony. She depicted the Appellant's penis as black, the cello tape he placed over her mouth was blue, and her feet were red because they were full of blood. J testified that no-one told her what to say. Mrs W confirmed that some of J's clothing and a duvet had disappeared. J denied that she injured herself whilst riding a bicycle. She denied that R touched her vagina; she does not even know a person called R. J also denied fabricating evidence against the Appellant.

16.        The Court a quo concluded that J was a good witness. The Court a quo found her to be an intelligent witness. The Court also concluded that she did not contradict herself on material issues and that Ms W corroborated her evidence relating to the disappearance of her clothing and the duvet. The Court a quo believed that the events took place in the manner that J testified. The Court found her to be a credible and reliable witness after applying the cautionary rules.

17.        The Appellant testified that he had a good relationship with the complainants. He stated that M had a relationship with G. The Appellant testified that he took his family and G to the dam on 22 December 2009 when he returned from work. The Appellant alleged that the reason M was implicating him is because he was strict. He blamed G for the rape or another boy she visited until late, according to his testimony.

18.        The Appellant denied raping Jocelyn, he testified that the security guard would have seen him on the stoep if he raped J. The Appellant could not give a reason why J was implicating him. The Appellant testified that J could draw a penis because she used to bath with him until she was 5.

19.        The Court a quo found that the Appellant's version was improbable, and not reasonably possibly true. The Court rejected his evidence.

19.1.      Counsel for the Appellant argued that the Appellant did not have a fair trial because his attorney was either not properly qualified or experienced.

 

20.        Counsel for the Respondent has submitted that the following issues are common cause:

20.1.     The Appellant is the biological father of the two complainants.

20.2.      The first complainant was born on 23 September 1995. She was 14 years old when the incident took place.

20.3.      The second complainant was born on 27 May 2004. She was 5 years and 6 months old when the incident took place.

20.4.      The Appellant worked away from home, he returned home for the period 20 to 22 December 2009.

20.5.       J drew two sketches which were handed in as Exhibit "A1" and "A2".

 

21.       Counsel for the Respondent also argued that the Appellant was a poor and evasive witness. When one reads the evidence of the appellant it is clear that he is evasive to all questions, even those asked by his own counsel. It was submitted by counsel for the Respondent that the defence counsel did his best with the type of witness the appellant turned out to be. The appellant at every opportunity blames other people for what had occurred. First he stated that he is the father who knows what is happening in the household and he has a good relationship with everyone. After being cross examined on that version he changed his version to be uninformed and working away from home.

22.        The Appellant's counsel had difficulty to place the appellant's version on record through his evidence. Thus it is submitted that the appellant was not cross examined as such, but that it was the only way the representative could get the appellant focused to answer to the relevant questions.

23.        From the record it is apparent that the appellant was evasive, did not answer questions that were asked and did not focus his answers to important aspects. The appellant provided irrelevant and nonsensical answers to important questions. Counsel for the stat correctly submitted that he was a poor witness whose evidence was not credible and not reliable.

24.        Counsel for the Appellant submitted that the Magistrate accepted the version and evidence of the complainants and rejected the version of the Appellant. Counsel for the Appellant also argued that the Magistrate erred in doing so. He also referred to material differences between the evidence of M and G B, and that the Magistrate did not deal with these material differences.

25.        Counsel for appellant submitted that the version of M is improbable because her mother and sister were sleeping not far from her room.

26.        The Magistrate stated that he was to take the evidence in the case in its totality instead of piecemeal. Also that the State has the onus to prove the guilt of the accused beyond reasonable doubt. The learned Magistrate considered that both complainants are single witnesses in respect of each count of rape. He was aware that he has to take precautions in evaluating their evidence, especially because of their age.

27.       The Court a quo found that it could not criticize the evidence of B. B testified about the report that M made to her without criticism. The Court a quo found the two complainants to be credible witnesses, and also concluded that the events unfolded as they had testified. The Magistrate concluded that the evidence of the Appellant was false, and not reasonably possibly true. He also concluded that the Appellant raped both complainants.

28.       Having regard to caution, this Court is satisfied that the Magistrate was aware of the caution he had to exercise due to the circumstances in this matter.

 

See: S v Artman 1968(3) SA 339 (A) at 341B - C

 

".. .while there is always need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts must guard against their reasoning tending to become stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense..."

 

29.        Zeffert and Paizes at 974 remark as follows regarding the approach of the courts to a child witness:

"A new and more specific approach, according to S v S (1995) SACR 50 (ZS)), was called for in cases involving children. The Zimbabwe Supreme Court in that case warned that to approach cases with a "single-minded eye towards seeking corroboration" was, sometimes, to lose sight of the reasons for seeking it. What was needed was a proper analysis of the possible shortcomings in the particular child's evidence, in which one applied a certain amount of psychology and remained aware of recent advances in that discipline."

 

30.        The question is whether the witness was trustworthy despite her age and whether the truth has been told. In S v Artman and Another (supra) at 341A-C_the court stated:

"She was, however, a single witness in the implication of the appellants. That fact however does not require the existence of implicatory corroboration: indeed, in that event she would not be single witness. What was required was that her testimony should be clear and satisfactory in all material respects; see R v Mokoena 1956 (3) SA 81 (A) at 85-6. The trial Court unanimously found that her evidence passed the test. I would add that, while there is always need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts must guard against their reasoning tending to become stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense."

 

31.       There is no problem with identity of the perpetrator in this matter in the sense that the complainants have implicated someone they know very well, their father. The issue here is that the complainants are single witnesses in their respective cases. The Court a quo has found the complainants to be credible and reliable witnesses. The Court also rejected the evidence of the Appellant; it found his version not to be reasonably possibly true. An accused may be convicted of any offence on the single evidence of any competent witness. If the Court is satisfied beyond reasonable doubt that such evidence is true. The Court is satisfied that the evidence of the complainants is true and that the State has proved its case against the Appellant beyond reasonable doubt.

 

See: R v Abdoorham 1954(3) SA 163 (N) at 165E - F

 

"The court is entitled to convict on the evidence of a single witness if it is satisfied beyond reasonable doubt that such evidence is true. The Court may be satisfied that the witness is speaking the truth notwithstanding that in some respects he is an unsatisfactory witness".

 

In S v Teixeira 1980 (3) SA 755 (A) at 761 the court found that:

 

"I think I am stating the obvious in saying that, in evaluating the evidence of a single witness, a final evaluation can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities."

 

In S v Sauls and Others 1981 (3) SA172 (A) the appellate division stipulates it clearly that:

 

"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness...The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so will decide whether it is trustworthy and whether despite the fact that there are shortcomings or defects or contradictions in his testimony, he is satisfied that the truth has been told. The cautionary rule ... may be a guide to a right decision but it does not mean 'that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded... It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."

 

32.       The evidence of M and J were correctly found to be satisfactory in every material respect. The evidence of both complainants was therefore accepted as such. It is submitted the court a quo found that there were no material discrepancies to be found in their evidence.

33.        The following corroborating evidence was found in respect of their evidence:

31.1     The fact that the complainants were raped was not placed in dispute;

31.2     Upon consideration of the medical evidence the injuries that they sustained proves that there was indeed forceful penetration that took place prior to their examinations;

31.3     Their mother corroborates that M requested to stay a bit longer at a friend's place, but the delay was ultimately caused by the her/Mrs W who got lost on the way to fetch M;

31.4     The mother/Mrs W further corroborates J that her sleepwear and duvets cover went missing;

31.5     Lastly the reports that both complainants made corroborates that the appellant is the person who raped them;

31.6     Counsel for the respondent submitted that there was no opportunity for other people to commit these offences.

 

34.       The complainants are single witnesses as far as the incident is concerned. Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2) 566 (A) at 569 the court stated the following:

 

"It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense." 1BOC-G

 

35.        In WOJI v Santam Insurance 1981 (1) SA 1020 (A) the court held at 1028A-E that:

"The question which the trial/ court must ask itself is whether the young witness' evidence is trustworthy. Trustworthiness, as pointed out by Wigmore in his Code of Evidence para 568 at 128, depends on factors such as the child's power of observation, his power of recollection, and his power of narration on the specific matter he testified. In each instance the capacity of the particular child is to be investigated. His capacity of observation will depend on whether he appears "intelligent enough to observe". Whether he has the capacity of recollection will depend again on whether he has sufficient years of discretion "to remember what occurs" while the capacity of narration or communication raises the question whether the child has "the capacity to understand the questions put, and to frame and express intelligent answers" (Wigmore on Evidence vol II papa 506 at 569). There are other factors as well which the Court will take into account in assessing the child's trustworthiness in the witness-box. Does he appear to be honest-is there a consciousness of the duty to speak the truth."

 

36.        In S v Artman and Another supra at 341A-C the following is stated:

"She was, however, a single witness in the implication of the appellants. That fact, however does not require the existence of implicatory corroboration: indeed, in that event she would not be single witness. What was required was that her testimony should be clear and satisfactory in all material respects; see R v Mokoena 1956 (3) SA 81 (A) at 85-6. The trial Court unanimously found that her evidence passed the test. I would add that, while there is always need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts must guard against their reasoning tending to become stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense."

 

Refer supra.

 

37.       The question is whether the witness was trustworthy despite her age and whether the truth has been told. The court a quo found that both complainants' evidence was reliable and truthful.

38.       Counsel for the appellant raised various complaints/issues in his heads of argument,· contending that the appellant did not have a fair trial at the court a quo.

39.       The Appellant's counsel raised the issue of a fair trial pertaining to the competence of the appellant's counsel at the court a quo. The gist of the complaint is that the Appellant's attorney was not experienced or was not properly skilled in running a trial. Examples of questions posed by the attorney have been given. This Court is of the view that if one reads the transcript, though reconstructed, the Appellant's attorney did his best to represent his client. From the submissions by the appellant's counsel one can discern that his view and/or contention is that if he was the one who had conducted the trial initially [at the court a quo] he would have done it differently. The fact that the appellant’s counsel at the court a quo did not conduct the trial in the manner and/or style as appellant's current counsel, and/or did not ask questions which the appellant's current counsel thinks he would have asked, does not make the proceedings unfair. The initial counsel did his best under difficult circumstances.

See: S v Tandwa & Others 2008(1) SACR 613 (SCA) at 621a - b

"When an accused therefore complains about the quality of legal representation, the focus is no longer, as before the Constitution, only on the nature of the mandate the accused conferred on his legal representative or only on whether an irregularity occurred that vitiated the proceedings - the enquiry is into the quality of the representation afforded". [emphasis added]

 

40.       The test to determine whether the incompetency of the defence rendered the trial unfair is a factual question. The assessment must be objective, usually, if not invariably, without the benefit of hindsight.

41.       In Seedat v S [2015] 5AII SA 93 (GP) at para [18]-[21] Mavundla J (Strauss AJ concurring) found as follows:

 

"The question of whether the appellant had a fair trial is a value judgment, to be arrived at by looking through the trial record. Perusal of the trial record, in my view, shows that the State witnesses,· in particular, the complainant, were subjected to intensive cross examination by the defence counsel. It can hardly be said, in my view, that the then legal representative of the appellant was incompetent. Neither can it be said that the appellant did not have a fair trial due to the alleged incompetence on the part of his counsel. On the contrary, in my view, the counsel for the appellant demonstrated through his intensive cross examination of the State witnesses that he was a well-grounded and seasoned practitioner, who is far from incompetence. He can only be faulted on choice of strategy, but this does not help the appellant."

 

42.        The allegation that the representative of the appellant during the trial proceedings at the court a quo did not conduct cross examination in a proper manner is groundless-According to the reconstruction it is clear that all necessary questions were asked. Counsel for the appellant demonstrated through his intensive cross examination of the State witnesses that he was a well-grounded and seasoned practitioner, who is far from incompetence. The appellant never informed the court a quo that he was dissatisfied with his legal representative for the trial and sentencing proceedings. He even used the same counsel throughout the trial and sentencing proceedings. The appellant did not even raise this issue in his Notice of Appeal. Counsel for the respondent correctly submitted that the appellant was properly represented. The record shows that the proceedings at the court a quo were fair.

43.       The court a quo further had regard and properly assessed the evidence, including real evidence in the form of the drawings by Jocelyn. In S v M 2002 (2) SACR 411 (SCA) at 432 C-E Heher AJA found that:

"Real evidence is an object which, upon proper identification, becomes, of itself, evidence (such as a knife, photograph, voice recording, letter or even the appearance of a witness in the witness box) Scmidt Bewysreg 4^th ed at 326, Hoffmann & Zeffertt The South African Law of Evidence 8^th ed at 48. The letter was identified as having been written by the appellant. It was produced and admissible as an object for examination by the magistrate in order to establish that it provided the origin of the evidence given by the witness, irrespective of the truth of its contents."

 

44.        In Newell v Cronje 1985 (4) SA 692 (E) the court found that real evidence may include anything, person or place which is observed by the court in order that a conclusion may be drawn as to any fact in issue.

45.        Counsel for the respondent submitted that once the truth of the contents needs to be proven this item becomes a private document and then the originality, authenticity and truth of contents must be proven; that this was done by calling the author of the drawings, namely the second complainant, J W. The person who can best describe what is depicted in the drawings is the artist, J W herself. If an expert would be called to interpret these drawings it would have constituted speculation, which would have most probably be inadmissible, and/or hearsay for which no application was made. These documents were handed in as exhibits and they do not seem to have been placed in dispute at the court a quo. The appellant has also not even raised this issue in his notice of appeal.

46.       Pertaining to the complaint that the court a quo did not grant the appellant a further postponement-From the record it appears that the matter was postponed several times [from 26 June 2010 to 9 March 2012 postponed about 10 times]; at times postponed in the appellant's absentia. The defence agreed to the final postponement. Prior to conviction the appellant was on bail. Counsel for the respondent correctly submitted that the appellant had ample opportunity to trace his witness. The learned magistrate cannot be faulted when the postponement was not granted. Everyone, the victims, the State and the appellant have a right to speedy trial.

47.       

It is trite law that the State must prove its case beyond reasonable doubt and if the appellant's version is reasonably possibly true, he is entitled to his acquittal even though his explanation is improbable. Refer S v Mbuli 2003 (1) SACR 97 (SCA) at 110D-F, S v Selebi 2012 (1) SA 487 (SCA), S v Van As

 1991(2) SACR 74 (W) at 82D-H, S v Jackson 1998 (1) SACR 470 (SCA) and S v Schackell 2001 (4) SACR 279 (SCA)

48.        It is not necessary for the State to prove its case beyond all doubt. In S v Pallo and others 1999 (2) SACR 558 (SCA), Olivier JA at para [10] at 562 followed the approach that was taken in R v Mlambo 1957 (4) SA 727 (A) at 738A-C the following is stated:

 

"In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration comes to the conclusion that there exist no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case."

 

49.         It is trite that a court of appeal should be slow to interfere with the findings of fact of the trial court in the absence of material misdirection. See R v Dhlumayo & Another 1948 (2) SA 677 (A) at 705-706. An appeal court's powers to interfere on appeal with the findings of fact of a trial court are limited. 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.

50.         In S v Chabalala 2003 (1) SACR 134 (SCA) at [15] the court stated the following:

"The correct approach is to weigh up all the elements ' which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.”

 

51.       In S v Francis 1991 (1) SACR 198 (A) at 204 c-e the learned Judge of appeal, also with reference to Dhlumayo, said the following

"This Court's powers to interfere with on appeal with the findings of fact of a trial court are limit... In ed absence of any misdirection the trial courts's conclusion, including its acceptance of D's evidence, is presumed to be correc.t In order to succeed on appeal accused no. 5 must convince us on adequate grounds that the trial court was wrong in accepting this evidence - a reasonable doubt will not suffice to justify interference with its findings ... Bearing in mind the advantage which the trial court has of seeing , hearing and appraising a witness it is only in exceptional cases that this Court will be entitled to interfere with a trial court's evaluation of oral testimony.”

 

52.         In S. v Hadebe & Others (supra), at 645 e-f the Learned Judge of Appeal held:

“In absence of demonstrable and material misdirection by the trial court, his findings of the fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate courts to factually findings of the trial court are so well-known that restatement is unnecessary.”

[Emphasis added;}

 

53.       In S. v. Monyane & Others 2008(1) SARC 543 (SCA) at paragraph [15] the Court expressed more or less the same sentiments and added:

"Bearing in mind the advantage that a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial court's evaluation of oral testimony."

 

54.       The Court a quo looked at the totality of the evidence. There was no material misdirection by the court a quo. The evidence of the state witnesses was corroborated in all material respect and the identification and participation of the appellant cannot be faulted. The learned regional magistrate's favourable finding about the children as witnesses can, on the totality of the evidence, not be faulted. I am not persuaded that in convicting the appellant the trial court misdirected itself in any material respect in its assessment of the evidence. The totality of the evidence justifies the trial court's findings and conclusions that the exculpatory version of the appellant was not reasonably possibly true and that the guilt of the appellant was proved beyond reasonable doubt. The trial court treated the complainant's evidence with caution. The appellant was correctly convicted of the rape of his daughters, M and J. The appeal on conviction must therefore be dismissed.

55.        The imposition of a sentence is pre-eminently for the sentencing court. It is trite that a court of appeal does not lightly interfere with a sentence imposed by the court of first instance; see R v Lindley 1957 (2) SA 235 (N). A court of appeal will interfere with the sentence only if there is a material misdirection or if the court could not, in the circumstances of the case, reasonably have imposed the particular sentence. In S v Salzwedel 1999 (2) SACR 586 (SCA) at 591F-G it was held that:

“ A court of appeal was entitled to interfere with a sentence imposed by a trial court in a case where the sentence is 'disturbingly inappropriate', or totally out of proportion to the gravity or magnitude of the .offence, or sufficiently disparate, or vitiated by misdirection of a nature which shows that the trial court did not exercise its discretion reasonably”.

 

55.        The general approach to be followed by a Court of Appeal with regards to sentence is set out as follows in S v Pieters 1987 (3) SA 717 (A) at 727:

" Met betrekking tot appelle teen vonnis in die algemeen is daar herhaaldelik in talle uitsprake van hierdie Hof beklemtoon dat vonnis-oplegging berus by die diskresie van die Verhoorregter. Juis omdat dit so is, kan en sal hierdie Hof nie ingryp en die vonnis van 'n Verhoorregter verander nie, tensy dit blyk dat hy die diskresie wat aan horn toevertrou is nie op 'n behoorlike of redelike wyse uitgeoefen het nie. Om dit andersom te stel: daar is ruimte vir hierdie Hof om 'n Verhoorregter se vonnis te verander al/eenlik as dit b/yk dat hy sy diskresie op 'n onbehoorlike of onredelike wyse uitgeoefen het. Dit is die grondbeginsel wat a/le appelle teen vonnis beheers."

 

56         Therefore the issue of sentence is always a matter for the discretion of the trial court. In Kgosimore v S 1999 (2) SACR 238 (SCA) at par [1O]. the Supreme Court of Appeal held that:

“lt is trite law that sentence is a matter for the discretion of the court burdened with the task of imposing the sentence. Various tests have been formulated as to when a court of appeal may interfere. These include, whether the reasoning of the trial court is vitiated by misdirection or whether the sentence imposed can be said to be startlingly inappropriate or to induce a sense of shock or whether there is a striking disparity between the sentence imposed and the sentence the court of appeal would have imposed. All these formulations, however, are aimed at determining the same thing; viz. whether there was a proper and reasonable exercise of the discretion bestowed upon the court imposing sentence. In the ultimate analysis this is the true inquiry.... Either the discretion was properly and reasonably exercised or it was not. If it was, a court of appeal has no power to interfere; if it was not, it is free to do so. I can accordingly see no juridical basis for the stricter test suggested by counsel; nor is there anything in section 3168 of the Criminal Procedure Act, or for that matter section 31OA, to suggest otherwise... It follows that, in my view, whether it is the attorney - general (now the Director of Public Prosecutions) or an accused who appeals against a sentence, the power of a court of appeal to interfere is the same."

 

57        The Appellant was convicted of two counts of rape being the contravention of section 3 of the Sexual Offences and Related Matters Amendment Act, 32 of 2007 read with the provisions of section 51 and Schedule 2 of the Criminal Law Amendment Act, 105 of 1997 as amended. The victims, his biological daughters, were 14 and 7 years old when they testified. The aforegoing legislation makes provision for a minimum sentence of life imprisonment unless there are substantial and compelling circumstances proven by the Appellant.

58         The Psychosocial Reports prepared by Ms Annette Vergeer and Ms MM Mothwa indicate that the Appellant has abused alcohol and drugs at various stages of his life. The Appellant also reported that he was physically, emotionally and sexually abused throughout his childhood. The Appellant was very close to his daughters before the rape incidents. He destroyed the family bonds. Having been abused as a child, he knew the pain and destruction this kind of act causes. This should have equipped him to protect his daughters, not to rape them.

59         The Court a quo found that there are no substantial and compelling circumstances in this case. The Court agrees with the sentence imposed by the Magistrate and the submissions made by the Respondent. The sentence is not- shocking having regard to the nature of the crime. This Court does not find any reason to temper with the sentence.

 

See: S v Malgas 2001(1) SACR 469 (SCA)

 

"D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, a version to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances .. ."

 

60         In sentencing the appellant the trial court exercised its discretion judicially and the sentence of life imprisonment is not inappropriate and does not induce a sense of shock. The relevant factors and circumstances were properly considered and taken into account by the trial court. The rape of a 14 years old and 7 years old children is dreadful. It is an enormous and heinous crime. This is an aggravating circumstance of substance and the commission of this type of offence against innocent children undoubtedly demands the imposition of long term imprisonment. The sentence imposed upon the appellant was proportional to the offences. It must also be accepted that a child would not be left unscathed by sexual assault. Interference with the imposed sentence is in all the circumstances of this case not warranted.

61         The appeal against sentence must accordingly also fail.

62         In the result the following order is made:

1.       The appeal against conviction is dismissed and the conviction of the appellant is confirmed.

2.       The appeal against sentence is dismissed and the sentence imposed by the court a quo is confirmed.

 

 

D.B. TSHABALALA

ACTING JUDGE OF THE HIGH COURT

 

I agree

 

 

L M MOLOPA-SETHOSA

JUDGE OF THE HIGH COURT

 

 

It is so ordered

 

 

Appearances:

For the Appellant:                                                   Adv Van Wyngaard

For Respondent:                                                      Adv M Marriot

Instructed by:                                                          Director of Public Prosecutions

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