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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG, PRETORIA)

 

APPEAL NO: A851-15

4/5/2018

 

In the matter between:

 

C N                                                                                                                     APPELLANT

 

and

 

THE STATE                                                                                                      RESPONDENT

JUDGMENT

Case Summary:      An appeal against conviction and sentence of life imprisonment, 5 years' imprisonment and 10 years ' imprisonment respectively for the rape, kidnapping and attempted murder of B P D, at the Regional Court for the Regional Division of Gauteng held at Benoni

Order

 

The appeal against both conviction and sentence is dismissed.

 

THE COURT

[1]          The appellant was charged in the Regional Court for the Regional Division of Gauteng held at Benoni on two counts of rape - contravention of the provisions of section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters Amendment Act), Act 32 of 2007 and further read with the provisions of sections 92(2), 94 256, 257 and 261 of the Criminal Procedure Act 51 of 1977, as amended ("the CPA") and further read with the provisions of section 51 and Schedule 2 of the Criminal Law Amendment Act 105 of 1997 as amended, one count of kidnapping and one count of attempted murder.

[2]          On 20 October 2014 the appellant pleaded not guilty to the above mentioned counts and provided the following explanation:

 

" ... the accused does not dispute sexual intercourse, save to say that it was consensual and with permission of the complainant. Also, he does admit that it happened twice and also the accused disputes that, at any stage, he kidnapped the complainant. She went with him freely and voluntarily... The plea thereto is that the accused had no knowledge by the time he had sexual intercourse with the complainant... (indistinct) plea explanation to that charge, Your worship."

 

[3]          The plea explanation was noted down in terms of section 220 of the CPA.

[4]          The appellant was convicted on 16 July 2015 on all counts as charged.

[5]          On 29 July 2015 the appellant was sentenced as follows:

[5.1] Count 1: Life imprisonment

[5.2] Count 2: Life imprisonment

[5.3] Count 3: 5 years imprisonment

[5.4] Count 4: 10 years imprisonment

[5.5] The sentence in count 2 was ordered to run concurrently with the sentence in count 1 and the sentences in counts 3 and 4 were also ordered to run concurrently with the sentence in count 1.

[5.6] The court a quo further ordered that in terms of section 103(1) of the Firearms Control Act 60 of 2000 the appellant remains unfit to possess a firearm; and in terms of section 50(1)(i)(a) of the Criminal Law amendment (Sexual Offences and related matters) Act 32 of 2007 the appellant's name is to be recorded in the national Register for Sexual Offenders.

 

[6]          The appellant was legally represented during the trial and sentencing proceedings at the court a quo.

[7]          The appellant has an automatic right of appeal in terms of section 10 of the Judicial Matters Amendment Act 42 of 2013. The appellant now approaches this court on appeal in respect of both conviction and sentence.

[8]          The State presented the evidence of the following six witnesses:

[8.1] B P D (The complainant);

[8.2] M M;

[8.3] Warrant Officer Emily Maswinyaneng; [

[8.4] Sister Nonthando Millicent Mbata;

[8.5] Warrant Officer Solomon Malebye

[8.6] Sister Nonceba Dlokolo.

[8.7] The appellant testified in his defence and called his brother M T as a defence witness.

[9]          The complainant, B P D ("D "), testified that on 23 February 2014 she was Hi years old. That on the said date [23 February 2014] she visited her friend M M at her residence. She was with M M and her/M's boyfriend until midnight. Her friend requested her to stay the night but she refused and ins is ted to go home. M and her boyfriend accompanied D halfway and thereafter they returned home.

[10]      After M and her boyfriend had turned back, and on her way home s he met the appellant. The appellant was unknown to her. She only learned his name after his arrest. The appellant told her that people are following him and they might hurt and kill her; he told her that they should take a different direction, she should go with him. She did not want to go with him voluntarily.

[11]           The appellant enquired from D where her home was, D randomly pointed to a house. Upon reaching the house the appellant raped her the first time. The occupants inside the house were already sleeping. The appellant told her that he was in possession of a firearm and she must undress. She only saw a knife; she did not see the firearm. The appellant then undressed her and pushed her down to lie on her back. He had sexual intercourse with her without her consent. Thereafter he instructed her to get dressed and he took her to a nearby veld.

[12]      When they arrived at the veld the appellant forced her to take off her clothes and he had sexual intercourse with her without her consent for a second time. After he finished raping her in the veld the appellant blindfolded her and took her to his home. He did this so that she was not able to see where they were going and where the appellant was residing. She testified that the appellant had sexual intercourse with her repeatedly during the night until around 5H00. She did not know that there were other people in the appellant' s home. She only heard someone coughing early in the morning. The appellant had sexual intercourse without her consent throughout the night. The appellant did not use a condom, and he ejaculated each time he raped her.

[13]       Around 5 o'clock in the morning the appellant took her from his home, blindfolded her by using his hands and took her into the street. D was able to see where the appellant lived. She thereafter went directly to the lady who usually braids her hair and reported to her about the rape. She also reported the rape to M and her boyfriend. They went with her to the police station to open a criminal case against the appellant. Thereafter they went to the appellant's house where D pointed him to the police.

[14]       She testified that she went to the doctor the following day. At the clinic she tested negative for pregnancy and HIV. The results for the HIV test were handed in as Exhibit " A".

[15]       D was extensively cross examined. She denied that she voluntarily went with the appellant. She also denied that in the morning she requested R300-00 from him to braid her hair but the appellant only gave her RI00-00. She denied that the appellant met her on 16 December 2013 where he proposed love to her at Hlatseka tavern. She denied ever going to Hlatseka and/or ABSA tavern. She explained that she only used the passage close to Hlatseka tavern on her way home. She denied that she was drinking with the appellant on 23 February and that they went to his home to have sexual intercourse with her consent.

[16]       The J88 of D was handed in by agreement as Exhib it "B". What is noted at paragraph 5 on 24 February 2014 , the day after the incident, accords with the evidence given by D in court.

[17]      The court a quo evaluated the evidence of D and after applying the cautionary rule found that her evidence was truthful and reliable.

[18]       The next witness that testified for the state is M M ("M" ). She confirmed that D visited her and her boyfriend on 23 February 2014 from ten o' clock in the morning until she left around midnight. She and her boyfriend tried to convince D to stay over, but she insisted on leaving. They ultimately accompanied her half way then they returned back home. They saw her again the next day when she reported to them that she was raped.

[19]       She testified that prior to the day of the incident she did not know the appellant. She was extensively cross examined. The court a quo found her evidence to be truthful and reliable.

[20]       Warrant Officer Emily Maswinyaneng ("Maswinyaneng") testified that she is the investigating officer in this matter. She arrested the appellant on 24 February 2014 after D took her to his house and pointed him as the person who committed the rape offences. The appellant was detained at Etwatwa Police cells.

[21]       She testified that she received a message that the appellant wanted to see her. She went to see the appellant at Daveyton Police Cells and the appellant told her that he could not be transferred to Modderbee Prison without his HIV medication. She went to the appellant's house where she found his brother. They were unable to locate any medication. The appellant' s brother informed her that he was not aware that the appellant has HIV.

[22]       She testified that she then decided to go to the Central Clinic at Daveyton where she enquired from sister Mbatha ("Mbatha") if she could issue HIV medication for the appellant. Mbatha informed her that she was unable to issue such medication without examining the appellant. Mbatha made arrangements with Modderbee Prison to examine the appellant and to issue the correct medication for him.

[23]       She testified that when she/Maswinyaneng enquired from the appellant when he was diagnosed with HIV he informed her that he tested positive when he was injured on his arm. They again conducted tests and found that he tested positive for HIV. She confirmed that she saw that injury and it was partially healed.

[24]       Maswinyaneng was ordered by the court to take the appellant to the district surgeon to test him for HIV. That test tested positive for HIV and the results was handed in as Exhibit "C". The appellant was taken for a second time to test his HIV status and even those results, dated 2 February 2015, tested positive for HIV. The result for 2 February 2015 was handed in as Exhibit "D".

[25]       During cross examination Maswinyaneng stated that she was on a course when she was requested to obtain the medical files of the appellant. That Warrant Officer Malebye ("Malabye") assisted in obtaining those medical files. The hospital files of Daveyton clinic and Far East Rand hospital had no records of the appellant being tested for HIV. Maswinyaneng was thereafter requested. ln obtain the appellants hospital file from Tembisa Hospital where he received his treatment for his hand . According to those hospital records the appellant was tested !'or HIV on 29 January 2013 and the results were positive.

[26]      She denied that the appellant requested her to obtain his pain medication due to the injury he had.

[27]      The court a quo evaluated her evidence and found her to be a truthful and reliable witness.

[28]      Sister Nonthundo MiIIicent Mbatha ("Mbutha" ) testified that she is a qualified nurse and she was requested to perform an HIV test on the appellant on 10 Murch 2014. That the results were handed to the investigating officer. The results for the test were positive. The form which was signed by the appellant for the said test was handed in as Exhibit “E”.

[29]      She further confirmed that Maswinyaneng requested her for ARV treatment the appellant when he was in custody. She was however unable to provide her with treatment for the appellant without examining him.

[30]      Mbatha was extensively cross examined by the defence. Put to her that the appellant did not know about his HIV status during his arrest, she stated that she received a report that the appellant was already on ARV’s at the time of his test.

[31]       The court a quo evaluated her evidence found her to be a truthful and reliable witness.

[32]       Warrant Officer Solomon Malebye ("Malebye") testified that he assisted Maswinyaneng with the investigations in this matter. He confirmed that the appellant informed them that he was HIV positive and that he wanted them to go and fetch his medication at his home. The appellant informed him that he was tested positive for HIV when he had injured his hand .

[33]      He testified that in terms of Section 205 of the CPA he applied for the hospital records of the appellant at Daveyton Clinic but it did not contain any results concerning the appellant's HIV status. He then handed the docket back to Maswinyaneng. The appellant's hospital file was handed in as Exhibit "D".

[34]       The court a quo evaluated his evidence and found him to be a truthful and reliable witness.

[35]       Nonceba Dlokolo(["Dlokolo") testified that she is not trained as a nursing sister but she was trained as a member of a non-profit organization to do HIV counselling and conducting the preliminary testing for HIV. She was working at Tembisa Hospital in 2013.

[36]     She testified that she counselled a patient named C N before she conducted an HIV test. That they further completed forms that gave her the authorization to conduct the preliminary tests and to counsel the patient. She saw this patient on 29 January 2013 at Tembisa Hospital and he indicated that he was residing [….].

[37]      She testified that both tests (including the verifying test) tested positive for HIV. She informed the appellant that more blood tests would be done where the viral load will be determined. She indicated that she is unable to recognize the face of this patient, C N. The results for the HIV testing were handed in as Exhibit "E".

[38]      During cross examination the defence challenged her qualifications to do the tests; she thereafter provided the necessary certificates to show her qualifications to do the HIV tests, which were handed in as Exhibit "F", "G", "H", and "J" respectively.

[39]      The court a quo correctly found that she was more than qualified to act as an HIV counsellor and that part of her duties were to conduct the preliminary tests of a patient to determine whether he/she is HIV positive.

[40]      The court a quo evaluated her evidence and found her to be a truthful and reliable witness.

[41]     After the close of the State's case, the appellant testified in his own defence. He testified that he knew D very well; that he met her at a tavern on a Saturday and later they left together to his home where they slept , and in the morning she left. That in the morning D demanded R300-00 and he was only able to give her R1 00-00. She left, never complaining and returned with the police whereafter he was arrested for rape.

[42]      The appellant stated that he met D around eight o'clock in the evening at ABSA tavern, not in the street as she testified. It was put to D, during her cross examination by the appellant's legal representative, that when the appellant met her on the day in question, it was at ten o'clock. The appellant denied that he told D about people that were following him and that they would also kill her.

[43]      The appellant testified that at first they used a condom and thereafter they had sexual intercourse without using a condom(s). This was never put to D at all during the cross examination of D, nor was it disputed that the appellant did not use a condom at all times during the sexual intercourse.

[44]      The appellant testified that their relationship began on 16 December 2013. That week after they started their relationship, they had sexual intercourse; that he is acquainted with the area D is residing at but that he does not know the address where she resides.

[45]       He denied raping D. He denied that he was tested for HIV at Tembisa Hospital. He denied that he requested Maswinyaneng to fetch him his HIV medication from his home; stating that he requested Maswinyaneng to bring him his pain medication for the injury he had sustained on his hand. He denied that he was tested for HIV apart from the time he was taken to Far East Hospital by the investigating officer, after his arrest.

[46]         During cross examination the appellant stated that he met D when she was with M at ABSA tavern on 16 December 2013. Further that he thought that D was 24 years old because she told him that she was 24 years old. It was put to D during her cross examination by the appellant' s legal representative that they met at Hlatseka tavern. It was never put to M that on 16 December 2013 she was present when the appellant met with and proposed to D, that she was with D at the tavern on the day of the incident.

[47]       It was never put to D during her cross examination by the appellant' s legal representative that she had informed the appellant that she was 24 years old. It was further never put to D that the appellant visited her residence on several occasions, where he met her brother. It was also never put to M that she was with D at the tavern on the day of the incident.

[48]       During cross examination of D it was put to her that they had sexual intercourse twice on the day of the incident; however when he gave evidence he/the appellant confirmed that they had sexual intercourse three times as testified by D and that on one such occasion they had sexual intercourse in the veld (bushes).

[49]       The appellant stated that he had told the investigating officer that he was in a relationship with D and that they had sexual intercourse on the day of the incident, but in his warning statement nothing is noted to this effect. Surely if the appellant had indeed informed the investigating officer about their sexual relationship the State would not have given further instructions to proceed to conduct the DNA tests at the Forensic Science Laboratory.

[50]       The court a quo found that the corroboration by his brother M T ("T") that the appellant had a relationship with D was to try to protect his brother. The court a quo evaluated his evidence and found his version and that of his brother, T, not to be reasonably possibly true.

[51]    Pertaining to count 4 the court found that the state proved that the person who went to Tembisa Hospital had the same names and address as the appellant. The medical records relating to the appellant's HIV status were ultimately found at Tembisa Hospital. The appellant was the person who had gone to Tembisa Hospital in 2013 and received the results for his HIV status. The records prove that the appellant knew about his HIV status since 29 January 2013. Maswinyaneng was requested by the appellant shortly after his arrest to fetch his HIV medication. She did not know that the appellant was HIV positive. Maswinyaneng corroborates the fact that already in 2013 [and on the date of raping D the appellant knew that he was HIV positive.

[52]       The court a quo rejected the evidence of the appellant relating to D going to his place freely and voluntarily, and further rejected that they had consensual sexual intercourse.

[53]       M T ("T") confirmed that the investigating officer/Maswinyaneng came to their residence and looked for the appellant's HIV medication. They were not able to find any medication.

[54]       He testified that he recalls the date when the appellant came with D to their house. That it was however not for the first time that D was at their home with the appellant. T testified that he was in his bedroom on the day of the incident and he does not know whether the appellant and D saw him that evening. He did not hear any noises of any kind of D until she left the next morning. He stated that D would come to their place on a regular basis and then she would sleep over. Under cross­ examination T stated that he does not know whether the Appellant raped the complainant or not because he was not in the same room as the complainant and the Appellant.

[55]       He stated that D came to their home after the appellant's arrest and apologised for what she did. That she demanded an amount of R2500.00 in order to withdraw the charges; and when that was unsuccessful she returned and demanded R5000.00. He had no explanation why this was not put to D during her cross examination.

[56]       The court a quo evaluated his evidence and found his version and that of his brother, the appellant, not to be reasonably possibly true. It is improbable that D would demand R2500.00 to withdraw charges, and when that is not successful then return to demand a higher amount of R5000.00. This smacks of a fabrication. A stated above, this was never even put to D during her cross examination.

[57]       From the evidence set out above the following facts are common cause:

[57.1]                The appellant had sexual intercourse thrice with D on the day of the incident.

[57.2]                 The appellant was arrested by Maswinyaneng, the investigating officer after D pointed him to the police.

[57.3]                 After his arrest the appellant requested Maswinyaneng to collect his medication from his home.

[57.4]                The identification of the person who had sexual intercourse with D is not in dispute.

 

[58]       The following were placed in dispute:

[58.1]                  Whether the sexual intercourse was with consent of D;

[58.2]                  Whether the appellant kidnapped D i.e. took her against her will;

[58.3]                  What time/how late the appellant met D on the day of the incident;

[58.4]                  When the appellant found out that he is HIV positive.

 

[59]       The court a quo evaluated the evidence and concluded that having regard to the totality of the evidence, it was satisfied that the state had proved its case beyond reasonable doubt and found the appellant guilty as charged.

[60]       In assessing the evidence of D the court a quo applied the cautionary rules and rules of law upon evaluating the totality of evidence, proof beyond reasonable doubt, single evidence of a competent witness, evidence of a child witness, credibility of witnesses and ultimately the evidence as a whole.

[61]       The cautionary rule is a rule of practice, not a rule of law . In applying the cautionary rule it is important to have regard to the warning of Holmes JA in S v Artman 1968 (3) SA 339 (A) at 341C where the following is stated:

 

". . . 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

…."

 

[62]       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 l 10D-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)

[63]       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. "

 

Refer also S v Van As 1991(2) SACR 74 (W).

 

[64]      In evaluating the evidence presented, the court must not decide the matter in a piece meal fashion. but all the evidence presented must be taken into account. It is trite that the court has a duty to look at the evidence as a whole in order to come to the correct conclusion. The learned judge in S v Hadebe & Others 1998 (1) SACR 422 (SCA) at 426 f-h stated the following:

 

"But in doing so, one must guard against the tendency to focus too intently upon the separate and individual part of what is, after all, a mosaic of proof Doubts about one aspect of the evidence led in a trial may arise when that aspect of the evidence is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But, once that has been done it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees. "

 

[65]       The court must also apply its mind not only to the merits or demerits of the state and the defence witnesses but also to the probabilities of the case. Refer S v Singh 1975(1) SA 227 (N); S v Guess 1976(4) SA 715(A) and S v Mhlongo 1991(4) SACR 2Q7(A)

[66]       The probabilities in this particular matter must also be tested against the proven facts that are common cause. Refer S v Abrahams 1979(1) SA 203(A).The common cause factors are set out in para [57] hereabove.

[67]       In this matter, the complainant, D, is a single witness in as far as the incident of rape is concerned, and she was a child. In evaluating her evidence, the cautionary rules of single child evidence of any competent witness apply. In terms of Section 208 of the CPA an accused may be convicted of any offence on the single evidence of any competent witness. In R v Nhlapo (AD 10November 1952) Schreiner JA stated:

 

" It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense. " 180C-G

 

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

" The question which the trial court must ask is 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 Volume II p506 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. "

 

[68]       The court in S v Stevens 2005 (1) SACR 1 (SCA) stated that the evidence of a single witness should be approached with caution, the trial judge will consider its merits and demerits and, having done so, decide whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, finds that he/she is satisfied that the truth has been told.

[69]       The approach is stipulated in S v Saulsl981 (3) SA 172 (A) as follows:

 

"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 was 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. "

 

[70]       In S v Webber 1971 (3) SA 754 (A) Rumpff JA stated:

 

"Dis natuurlik onmoontlik om ' n formule te skep waarvolgens elke enkele getuie se geloofwaardigheid vasgestel kan word, maar dit is noodsaaklik om met versigtigheid die getuienis van 'n enkele getuie te benader en om die goeie eienskappe van so 'n getuie te oorweeg tesame met al die fak:tore wat aan die geloofwaardigheid van die getuie kan afdoen."

 

[71]       In R v Abdoorham 1954 (3) SA 163 (N) E-F the court stated the following:

 

"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. "

 

Refer R v Mokoena 1956 (3) SA 81 (A), S v Snyman 1968 (2) SA 582 (A), S v Van Vreden 1969 (2) SA 524 (N)

 

[72]       The following is stated in S v Teixeira 1980 (3) SA 755 (A) at 761:

 

"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."

 

[73]       A witness would not be regarded as a witness giving "single evidence" where another witness gives evidence which, although not directly corroborative or incriminating, inferentially establishes one of the facts in issue. S v Snyman supra at 586-7, R v Mokoena supra at 85 F-G

[74]       In S v Ffrench-Beytagh 1972 (3) SA 430 (A) the court held that:

 

"...the section should only be relied upon where the evidence of the single witness is clear and satisfactory in every material respect, and that the section should therefore not be invoked where, for instance, the witness has an interest or bias adverse to the accused. "

Refer R v Mokoena 1932 OPD 79

 

[75]       The evidence of D was satisfactory in every material respect and the court a quo correctly accepted it. There were no material discrepancies to be found in her evidence. There are some contradiction between the evidence of D and that of :

[75.1] relating to the aspect whether they were drinking alcohol or not, D stated that they were not drinking liquor, whereas M stated that they were drinking liquor at her place. Further

[75.2] According to D, she reported the incident directly to the lady who braided her hair, but she reported to M that she did not tell anyone about the incident.

 

[76]       Whatever the discrepancies that were found in her evidence were not material in nature and shows to the honesty in the evidence given by the state witnesses. Such discrepancies cannot be rendered to disregard D's evidence and to influence her credibility. What this Court has to consider is whether the contradiction between the complainant and Mis material in nature taking into consideration the totality of the evidence.

 

In S v Mkhohle 1990 (1) SACR 95 (A) the court held that:

 

"Contradictions per se do not lead to the rejection of a witness; evidence, they may simply be indicative of an error. Not every error made by a witness affects his credibility; in each case the trier of facts has to make an evaluation, taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on the other parts of the witness ' evidence".

 

It does not detract from the fact that D was never with the appellant at any tavern prior the rape. The discrepancies do not take the matter further for the appellant in that whether the complainant had consumed alcohol or not, the appellant was not to have sexual intercourse with her, a minor child of 16 years old without her consent. The appellant, if anything, took advantage of a very young girl.

 

[77]        D's evidence was corroborated in material respects. The following corroborating evidence was found in respect of her evidence:

[77.1]               M testified that D was visiting them and wanted to leave around midnight, thereafter they walked with her halfway·; M corroborates D that she visited them.

[77.2]               The report made to Mbatha on 24 February 2014 [the day after the incident], noted at paragraph 5 of the J88, accords with the version given by D in court.

[77.3]                There is undisputed evidence that the appellant had sexual intercourse with D. This was corroborated by the DNA results; the appellant confirms that they had sexual intercourse three times on the day of the incident, one of which occasion was in the veld.

[77.4]                The appellant remained silent about their alleged "relationship" up until trial proceedings. Counsel for the respondent submitted that only after disclosure of the DNA results to the defence did the appellant come with the version that they were in a relationship. If the appellant was indeed as innocent as claimed it would be more probable that he would have disclosed their alleged 'relationship' at an earlier stage [immediately after his arrest, he would not have waited for the DNA results]. This version is a fabrication by the appellant.

[77.5]                M does not know the appellant and has never met him. This corroborates the version of D that the appellant is a stranger. It was never put to M that she knew the appellant.

 

[78]       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 (1) 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. "

 

[79]       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. Th.at 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. "

 

The court a quo did find that the evidence of D was reliable and that it was truthful, correctly so.

 

[80]       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.

[81]       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."

Refer S v Sauls supra

[82]       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 on appeal with the findings of fact of a trial court are limited ... In the absence of any misdirection the trial courts's conclusion, including its acceptance of D's evidence, is presumed to be correct. 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."

 

[83]       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};

 

[84]       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. "

 

[85]       The Court a quo looked at the totality of the evidence. There was no material misdirection by the trial court. The evidence of D was corroborated in all material respects and the identification and participation of the appellant cannot be faulted. On a general reading of the evidence, the case against the appellant was overwhelming, and serious credibility findings were also made against him by the court a quo. The judgement of the court a quo is detailed and well-reasoned, and the court a quo correctly found that the version of the appellant is not reasonably possibly true. In the circumstances, and in view of the trite authorities, we can find no basis for this court of appeal to interfere therewith. The trial court correctly rejected the exculpatory version of the appellant. It is, on a conspectus of the evidence, inherently improbable and clearly false. In the result the appeal against conviction is void of all merit and thus ought to be dismissed.

[86]       It is trite that sentencing remains pre-eminently within the discretion of the sentencing court. In Makela v The State 2012 (1) SACR 431 (SCA) para [9], Bosielo JA stated the following:

'This salutary principle implies that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by a sentencing court. In my view, this includes the terms and conditions imposed by a sentencing court on how or when the sentence is to be served. The limited circumstances under which an appeal court can interfere with the sentence imposed by a sentencing court have been distilled and set out in many judgments of this Court. See S v Salzwedel 1999 (2) SACR 586 (SCA) at 591F-G; S v Pieters 1987 (3) SA 717 (A) at 727F-H; S v Ma/gas 2001 (1) SACR 469 (SCA) para [12]; Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) para [11]; and S v Le Roux & others 2010 (2) SACR 11 (SCA) at 26b-d. '

 

[87]       The test enunciated in countless decisions and is an enquiry into whether the sentence is 'shockingly inappropriate' or of such a nature that no reasonable man ought to have imposed such sentence, or that the sentence is totally out of proportion to the gravity or magnitude of the offence, or that the sentence is grossly excessive when taking into consideration the circumstances and hence whether the judicial officer misdirected himself/herself. Refer S v Blignaut 2008 (1) SACR 78 (SCA) at 82b-d; S v Malgas supra. Thus the appeal court cannot alter the determination arrived at by the exercise of a discretionary power merely because it would have exercised that discretion differently except where there exists a ' striking' or ' startling' or 'disturbing' difference between the trial court's sentence and that which the appeal court would have imposed. 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. "

 

[88]       Evidently sentencing must attach due weight to the gravity of the crimes for which the appellant has been convicted of. The seriousness of the crimes must weigh heavily in deciding upon appropriate sentences. A defenceless young girl was repeatedly raped by the appellant, and was exposed to the risk of contracting IDV. The trial court was fully aware of this and largely imposed a sentence of appropriate severity. See S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA).

[89]       The court a quo found that D is still a child and that children are vulnerable to abuse. That the younger they are, the more vulnerable they are and that they are usually abused by those who think they can get away with it; see S v D_1995 (1) SACR 259 (A)

[90]       The court a quo did take into account the triad normally taken into account for purposes of sentence:- the personal circumstances, interest of justice and seriousness of offence.

[91]      

The court a quo imposed a sentence that would not just punish the appellant but would also deter would-be criminals. The Criminal Law Amendment Act, Act 105 of 1997 ("The Minimum Sentences Act") prescribes a minimum sentence of life imprisonment for rape of a child-except if substantial and compelling circumstances are found to be present.

[92]       The appellant has previous convictions of indecent assault and housebreaking. Counsel for the respondent correctly submitted that the term of imprisonment he served for these offences did not deter him from committing similar offences and therefore did he not learn to repent from his actions.

[93]       The court a quo further found that the fact that the appellant had a minor child to look after was supposed to prevent him from committing more crimes; instead he targeted a young girl of 16 years old.

[94]       The trial court found no substantial and compelling circumstances to justify the imposition of sentences less than the prescribed minimum sentences.

[95]       Counsel for the state correctly set out the following aggravating factors, which the Court a quo considered:

[95.1]              The offence was not a singular event but the appellant raped D at least on three different occasions and at different locations.

[95.2]              Rape is prevalent in the jurisdiction of the court a quo.

[95.3]              The appellant never showed remorse for his actions.

[95.4]              D was still at a tender age of 16 when she was raped.

The court a quo dealt with her as a child victim.

[95.5]              The appellant, whilst knowing his HIV status did not use a condom when he raped D, exposing her to HIV.

[95.6]              The appellant closed D's eyes when he took her to his residence and when he led her away from his residence so that she would be unable to identify his residence.

[95.7]              The appellant has previous convictions of indecent assault and housebreaking where he was convicted during June 2005. He was sentenced to 6 years direct imprisonment. He was released on parole on 4 January 2010. It is submitted that the term of imprisonment for committing those offences did not rehabilitate him or deter him for committing other offences.

[95.8]              The court a quo also considered the mitigating circumstances which were placed on record by the appellant in his heads of argument.

 

[96]       In S v Malgas supra the SCA found the following:

 

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

…."

 

[97]       Violence against women and children is rife and prevalent and has become pervasive and endemic, and sentencing in such matters must reflect the gravity of the crime, for society not to lose confidence in the criminal justice system. In The Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA) at 432, paragraph [14] the following is stated, and this in my considered view applies to children/girls and rape in general as well:

"a failure by our courts to impose appropriate sentences, in particular for violent crimes by men against women, would lead to society losing its confidence in the criminal justice system. This is so because domestic violence has become pervasive and endemic. "

 

[98]       In S v De Beer (SCA case No. 121/04, 12 November 2004) unreported judgement, par [18], as quoted in S v Matyityi 2011 (1) SACR 40 (SCA) at par [IO] it was held as follows:

"Rape is a topic that abounds with myths and misconceptions. It is a serious social problem about which, fortunately, we are at last becoming concerned. The increasing attention given to it has raised our national consciousness about what is always and foremost an aggressive act. It is a violation that is invasive and dehumanising. The consequences for the rape victim are severe and permanent. For many rape victims the process of investigation and prosecution is almost as traumatic as the rape itself."

 

[99]       In dealing with the plight of women in rape cases Mahomed CJ in the matter of S v Chapman 1997 (2) SACR (3) SCA at 5 a - c, stated:

"Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim.

The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilization.

Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment , to go and come from work, and to enjoy the peace and tranquillity of their homes without fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives".

 

[100]    The statement should find application in the present case. Every child and woman of this country has the right to freedom and security including the right to be free from all forms of violence from either public or private sources. The appellant violated all these rights against the complainant and imposed himself upon her. Rape is prevalent in our country. The needs and interests of society in regard to rape are clear. So are the interests of the victim. Rape is a horrible crime. It is a crime of violence which strikes at the heart of the right to personal integrity and self-esteem and the right to privacy. It was in fact in response to the public outcry against the number of rapes perpetrated in our country that the legislator decided to provide for minimum sentences unless substantial and compelling circumstances are present; generally, by providing for a legislative standard that requires consistently higher sentences in respect of the serious crimes mentioned in the Act. It is these kinds of offences that the legislature intended to curb by introducing severe sentences, in the present case, life imprisonment.

[101]   The imposed sentence cannot in my considered view be said to be disturbingly inappropriate, vitiated by misdirection or totally out of proportion to the gravity or magnitude of the offences the appellant has been convicted of.

[102]       We are unable to find any misdirection in the sentences imposed. In our view, the aggravating factors far outweigh the mitigating factors. When the nature of the crimes committed, the. personal circumstances of the appellant, the interest of society and the mitigating and aggravating circumstances are taken into account, the sentences imposed are appropriate and fair and proportionate to the offences the appellant has been convicted of.

[103]       The appeal against the sentence imposed can thus m our view, not succeed.

[104]   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. The sentence imposed by the court a quo is confirmed.

 

 

 

LM MOLOPA-SETHOSA

JUDGE OF THE HIGH COURT

 

I agree

 

 

 

D.B. TSHABALALA

ACTING JUDGE OF THE HIGH COURT

 

 

It is so ordered

 

Appearances:

 

For the Appellant:                            Ms M.B. Moloi

Instructed by:                                   Pretoria Justice Centre

For Respondent:                              Adv M Marriot

Instructed by:                                   Director of Public Prosecutions

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