---

IN THE NORTH WEST HIGH COURT

(MAFIKENG)

CASE NO.: CA 27/2012

In the matter between:

PAPI PETER SENWEDI.......................................................APPELLANT

and

THE STATE.....................................................................RESPONDENT

HENDRICKS J; CHWARO AJ

DATE OF HEARING: 29 NOVEMBER 2013

DATE OF JUDGMENT: 12 DECEMBER 2013

COUNSEL FOR THE APPLICANT: ADV SKIBI

COUNSEL FOR THE RESPONDENT: ADV J VAN NIEKERK

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

HENDRICKS J:

[1] The Appellant was convicted in the Regional Court, Taung of the rape of a twelve (12) year minor and sentenced to life imprisonment on 10 May 2012.The Appellant appealed against both the conviction and the sentence which appeal was dismissed on 19 April 2013. This is an application for leave to appeal to the Supreme Court of Appeal (SCA) against the judgment of this Court dismissing the appeal against conviction and sentence.

[2] Coupled with this application for leave to appeal is also an application for condonation for the late noting and prosecution of the application for leave to appeal. The condonation application was not opposed by the Respondent. Having considered the merits of the application for condonation, the requisite condonation was granted at the hearing of the application for leave to appeal.

[3] It is trite that in an application for leave to appeal, it is incumbent upon an applicant to prove the existence of reasonable prospects of success on appeal.Put differently, the Applicant must show that a reasonable possibility exist that another court, as court of appeal, might come to a different decision based on the facts of the matter than what the trial court had arrived at.Also with regard to sentence, is it incumbent upon the Applicant to show that the sentence imposed is shockingly severe and excessive or totally out of proportion with the crime committed or vitiated by an irregularity to such an extent that it warrants interference by the Court of Appeal.

[4] The application for leave to appeal is premised on the following grounds of appeal:-

· that this Court erred in finding that the learned Regional Magistrate complied with the provisions of Section 164(1) of the Criminal Procedure Act 51 of 1977 (as amended) [CPA], even though a formal enquiry was not conducted in order to determine whether the complainant as a minor witness understands the nature and importance of the implications of taking an oath;

· that this Court erred in not finding that the learned Regional Magistrate erred in not correctly applying the cautionary rule with regard to the evidence of the complainant who was a single witness to the rape and also a minor, especially in view thereof that none of the siblings of the complainant, who were at all material times in the same room where the rapes occurred, ever witnessed any of the rapes, excluding the last encounter.The complainant is also criticized for not having reported the various rape incidents and it is contended that the complainant’s version is riddled with improbabilities;

· that the sentence imposed is shockingly severe and totally out of proportion with the crime committed and that the trial court (and also this Court) erred by not finding that there are substantial and compelling circumstances present in this case which justify the impositioning of a lesser sentence than life imprisonment.

I will deal in seriatum with these grounds of appeal.

[5] In paragraph [14] of its judgment, this Court held:-

“It is indeed correct that the trial court did not hold a formal inquiry to establish whether the minor child understands the nature and import of the oath.The Supreme Court of Appeal has on at least two occasions dealt with a set of facts similar to what the trial court did in this matter. See: S v B 2003 (1) SACR 52 (SCA); Director of Public Prosecutions, Kwa-Zulu Natal v Mekka 2003 (2) SACR (1) (SCA). A proper reading of the two cases above holds the key to answer the submission by the appellant’s counsel in this regard. It was held in these cases that an inquiry is not always necessary, the presiding officer is only expected to form an opinion that the child will/does not understand the nature and import of the oath, and can just simply admonish him/her.”

[6] It was contended by Adv Skibi on behalf of the Applicant that more questions should have been asked by the Learned Regional Magistrate to determine whether or not the complainant understood the difference between telling the truth or a lie.In this regard Adv Skibi relied on the judgment by the Supreme Court of Appeal (SCA) in S v SM 2012 JDR 0541 (SCA) where the following is stated:-

“[11] It appears that the magistrate decided that the complainant would not understand the nature and import of the oath and instead of requiring sworn testimony from her decided to admonish her in terms of s 164(1) of the Criminal Procedure Act. Before a court may admonish a witness in terms of s 164 read with s 165 of the Criminal Procedure Act, it must satisfy itself whether or not the witness understands what it means to speak the truth. To that end it must conduct an enquiry.However, in S v B 2003 (1) 552 (SCA) para 15, this court held that this is not always required. However, once the magistrate formed that view, there was one step further that he was required to take, namely to enquire whether the complainant was capable of distinguishing truth from falsehood.”

See also: S v Raghubar 2013 (1) SACR 398 (SCA).

S v Tshimbudzi 2013 (1) SACR 528 (SCA).

[7] The following appears from the record:-

“Court: How old are you now?

Witness: I am 14.

Court: Do you intend [sic attend] school?

Witness: Yes.

Court: What grade are you in?

Witness: Grade 9.

Court: Do you know the difference between the truth and a lie?

Witness: Yes.

Court: Is it right to tell a lie?

Witness: No.

Court: Is it wrong to tell lies to the Court?

Witness: Yes.

Court: You must tell the Court the truth, the whole truth and nothing but the truth.

Witness: Yes.

Court: Thank you.”

From the above quoted passage from the record of the proceeding in the Regional Court, it is quite apparent that the “one further step that was required to take, namely to enquire whether the complainant was capable of distinguishing truth from falsehood” was indeed taken by the learned Regional Magistrate.

[8]I am of the view that this Court was correct in finding that the trial court complied with the provisions of section 164 (1) of the Criminal Procedure Act. There is therefore no merit in this ground of appeal. No other court will come to a different decision than what this Court had arrived at.

[9] As far as the second ground of appeal is concerned, it was contended that because of the fact that the complainant was a minor and a single witness with regard to the rape, and the fact that her siblings who were in the same room with her, never witnessed the rapes and the complainant never raised an alarm either, much criticism can be levelled against her evidence to the extent that her evidence is doubtful and the Applicant should have been given the benefit of the doubt and be acquitted.

[10] This Court in its judgment dealt comprehensively with the evidence and in particular with the criticism of not reporting the rape incidents that occurred on so many occasions. Pertinent attention was also given to the fact that although the complainant’s siblings were in the same room where the rape incidents occurred, it went unnoticed and the complainant did not raise an alarm either. This Court concluded that it is understandable how a child such as the complainant could so easily be sworn to silence having regard to the circumstances that she and her siblings found themselves in and the remarks made by the Applicant.

[11]The complainant’s version of being raped is also supported by medical evidence, which makes her version more probable.The same cannot be said about the version of the Applicant. The evidence tendered was comprehensively dealt with by this Court and need not be repeated in this judgment. Suffice to say that it was again thoroughly considered but we remain unpersuaded that the trial court erred in finding that the guilt of the Applicant was proven beyond any reasonable doubt.

[12] Also with regard to this second ground of appeal, am I of the view that there is no merit in it.No other court will come to a different decision on the facts of this case, than what this Court had arrived at.

[13]As far as sentence is concerned, it was also comprehensively dealt with by this Court and need not be rehashed in this judgment. Adv Skibi conceded, and may I hasten to state correctly so, during argument of this application for leave to appeal that there are not substantial and compelling circumstances present in this case that warrants a deviation from the impositioning of the prescribed sentence of life imprisonment. I need to say no more.

Conclusion:-

[14] In my view, there are no prospects of success on appeal with regard to both the conviction and the sentence.The application for leave to appeal to the Supreme Court of Appeal against conviction and sentence should fail.

Order:-

[15] Consequently, the following order is made:-

[i] Condonation for the late noting and prosecution of the application for leave to appeal is granted.

[ii] The application for leave to appeal to the Supreme Court of Appeal against both the conviction as well as the sentence is dismissed.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

O K CHWARO

ACTING JUDGE OF THE HIGH COURT

---