THE WESTERN CAPE HIGH COURT

									CASE NO: A683/09

In the matter between

and

For the Appellant Adv. P.J. Burgers
For the Respondent Adv. S. Raphels

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A683/09

In the matter between: .

and

Judgment handed down on 31 May 2011
1. On 18 March 2008 the appellant was convicted in the Mossel Bay Regional Court on a charge of the rape of a minor which took place in January 2001. The State relied upon the provisions of section 51(2) as well as schedule 2 to the Criminal Law Amendment Act, 105 of 1997, which provides for the imposition of minimum sentences (“the Minimum Sentence Act") and the appellant was sentenced to 15 years imprisonment on 20 March 2008. The appellant applied for leave to appeal his conviction and sentence, which leave was refused. The appellant thereafter petitioned this court successfully.
2. In both the application for leave to appeal and in the petition, but not before us, reliance was placed upon an infringement of the appellant’s right to a speedy trial. The factual basis for this submission requires to be addressed nonetheless as I would be remiss in my duties was 1 not to comment on the inordinate delays which occurred during the trial.

3. The appellant was arrested on 29 January 2001 on a charge of rape. The complainant, born on 28 April 1992, underwent a medical examination on 1 February 2001. At a date unknown to us the trial commenced in the regional court and, subsequently thereto, this court set those proceedings aside, apparently due to a problem with the translator, and the matter was remitted to the regional, court for trial. We do not have a copy of the record or the order granted by this court.

4. The first appearance after the remittal to the regional court was on 21 June 2003. The trial only commenced on 26 March 2007' when the appellant pleaded, that is nearly four years after the matter was first called after it had been remitted, and more than six years after the events themselves had taken place. It then also took a further year to complete the trial. Judgment was delivered on 18 March 2008 and sentencing took place two days later, on 20 March 2008.
5. The following needs to be said about these postponements - on ten occasions the State requested a postponement, variously because the complainant’s presence at court had not been secured, an intermediary was not available, an interpreter had not been arranged, or because the prosecutor would not be available for the duration of the trial. There were three occasions on which the appellant failed to appear. On two occasions the appellant requested a postponement On eight occasions the legal:: representative of the accused requested a postponement, either to obtain legal aid, or because he had just been briefed, or because the appellant was advised to obtain legal representation.

(my emphasis, but no doubt also emphasised by the learned magistrate)
7. No one heeded the admonishments by the presiding magistrate.

9. That, however does not undo the injustice of what had taken place here. The right to a speedy trial is a right which not only accrues to the accused; it is also of importance to the complainant and the witnesses - and the more so where the complainant is, as in this case, a minor suffering a disability. The complainant, as appears from psychological evaluation, is mildly retarded and she found herself living with her grandmother who, so it appears, is an alcoholic, and who left her to her own devices. The evidence and the report by the psychologist, Ms Hetta van Niekerk, underlines the additional trauma and anxiety that the complainant had suffered in being brought to court and then not to testifying.

11. The first and the third interests clearly also impact upon the complainant, particularly in a rape;case. The anxiety, concern and stigma which attaches to being a witness as a complainant in a rape trial is well known and well documented. It is also confirmed by what the psychologist testified to in the instant case. The complainant was unnecessarily and for a prolonged period of time exposed to the anxiety and concern of having to testify. She was also called upon to testify at a particularly difficult stage in her own development as an adolescent. Had the trial been concluded speedily, she need not have suffered those indignations at a stage when she was facilitating between the worlds of child and adult.

Delay cannot be allowed to debase the presumption of innocence, and become in itsdf a form of extra-curial punishment. A person's time has a profound value, and it should not become the plaything of the State or of society.

(my emphasis)

13. We do not know what, occurred during the first trial, how many postponements there were and whether she had testified or not. If there were postponements, as there very well may have been, and if she did testify, as she probably did, it will all only add to the aggravation of the injury that she has suffered.

15. In my view special care should have been taken of the complainant, in particular, by the prosecution. This unfortunately did not happen. She was forced to come back to court and to relive, at a very crucial time in her own development as a young woman, about a series of terrible events she by then should have put well behind her.
16. The appellant worked and lived in a tuck shop ciose to the house where the complainant and her grandmother stayed. The complainant was clear in her recollection of events so many years later. The alleged rapes took place on Fridays, when her grandmother was not around. She could recall that the appellant had on the first occasion invited her into his room and told her to undress. The following occasion was when he asked her to wash the dishes. He gave her money which led to her grandmother giving her a hiding. With so much money at school the next day the school/principal also became involved.

4. An expert witness should make it clear when a ;. particular question or issue falls outside his expertise.
5.. If an expert opinion is not properly .researched because he considers that insufficient data is available then. this must be stated with an indication that, the opinion, is no. more than a provisional one. In cases where-, an. expert. witness who has prepared a report could not assert- that the report contained the : truth the whole truths and nothing but the truth without some qualification,' that qualification should be stated in the report.'

22. Ms van Niekerk had indeed consulted with Ms Nigel, as one would have expected, and recorded that Ms Nigel served as confirmation for the conclusions drawn in her own report. She was extensively cross-examined on the results of the tests administered by Ms Nigel and the conclusions the witness drew therefrom. An important feature was the drawing made by the complainant - Ms van ;Niekerk had access to the drawing and furnished her own interpretation thereof. Ms Hewu’s observations were confirmed by what Ms van Niekerk had established. In my view, the expert witness was obliged to have regard to both the reports.

24. The fact that the expert drew inferences, also as to veracity and truthfulness, does not by itseif make the evidence inadmissible - a court is bound to itself examine the facts - which may include the expert opinion of the witness - and to draw its own conclusions. This, in my view, is what the learned magistrate did.
25. Ms van Niekerk gave important evidence with the regard to the perception of events by the complainant, both at the time they took place as well - and the fact that she may conflate events - as at the time when she testified. In my view this evidence was important and the learned magistrate had proper regard thereto. He was at all times mindful of the circumspection with which he was required to approach the testimony of the complainant,
26. It seems to me that there are a number of facts set out in the report and adduced in evidence by the psychologist to sustain not only the conclusion that the complainant was a competent witness, but also that she was truthful with regard to the rape itself. Moreover, there is sufficient factual matefiarin the complainant’s own evidence to sustain the conclusion that she was speaking the truth. Her. evidence is consistent and corroborated by the evidence of her grandmother, the medical evidence and, importantly, the evidence of the appellant himseif. The appellant in his evidence testified that the complainant had pointed him out as the rapist, as both she and her grandmother had testified she had done, and had identified the room in which the rape had occurred - without being prompted - whidh he testified she had done, and that it was indeed his room. He could give : no explanation as to why she had pointed out that room and, in addition, that the room was not yet in existence when, on his version, she had done some; washing up. On his version, that was the only contact he had with the complainant until the confrontation, a month later, when she pointed him out On his version she couid not have known about the room as St had not yet been constructed.
27. In the premises I am satisfied that a proper case had been, made out and that the learned magistrate correctly concluded that the rape had been proved beyond reasonable doubt.
Sentence
28. Part 1 of schedule 2 to the Minimum Sentence Act provides that in the case of rape, where the victim is a person under the age of 16 years or is a person who is mentally disabled then, in. terms of section 51(1) of the Minimum Sentence Act, a person who is convicted shall be imprisoned for life.
29. It is not in dispute that section 51 (1) of the Minimum Sentence Act found application. The appellant, however, was charged under section 51 (2) which ' provides for a maximum sentence of 15 years imprisonment.

30. The learned magistrate did not impose a life sentence, but a sentencie of 15 years imprisonment. In arriving at that finding that there were substantial and compelling circumstances, the learned magistrate found that, having regard to the age of the appellant, 28years, the fact that he; was, for sentencing purposes, a first offender and that he has been in custody for a two and a half years constituted substantial and compelling circumstances not to impose a sentence of imprisonment for life.

'The elements of the triad contain an equilibrium, and a tension.

“

"This epidemic is reflective of the kind of society which our past has shaped and which must be transformed in order for South Africa to become a truly open and democratic. society based on freedom, dignity and equality” (at 335d-e).

...............

36. In the case before Davis J, the complainant was 9 years old, the accused who had a ciean record, was convicted of a crime which lies at the borderline of the classification of rape. Davis J sentenced him to 18 years imprisonment.

38. Eighteen years imprisonment was imposed by Borchers J.

The sentence of life imprisonment required by the Legislature is the. most serious that can be imposed. It effectively denies the appellant the possibility of rehabilitation. Moreover, the mitigating factors are not speculative or flimsy, in my view, life imprisonment is not a just

40. The learned magistrate had, correctly in my view found that there wefe substantial and compelling circumstances present, and he had not erred in this regard. 1 am not satisfied that sentence of fifteen years imprisonment imposed is at all discordant.with a sentence which would otherwise - that is but for the minimum sentence legislation - have been imposed.

42. In the premises I would confirm the conviction and the sentence of 15 years imprisonment.

43. In the result I would therefore make the following order:

The conviction and sentence of 15 years imprisonment is confirmed. The
conviction and sentence is dismissed.

Sven Olivier, AJ

I agree.

A le Grange J