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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED.

                                                                               CASE NO: A54/2016

11/6/2019

 

In the matter between:

 

PAULUS JOHANNES BOTHA                                                                      Appellant

and

THE STATE                                                                                             Respondent

 

JUDGMENT

 

AC BASSON, J

 

[1]        The appellant pleaded not guilty in the Regional Court, Secunda to the following charges preferred against him:

 

Count 1:           Rape (2003) read with section 51(2) of the Criminal Law Amendment Act, Act 105 of 1997;

Count 2:           Indecent assault read with section 51(2) of Act 105 of 1997;

Count 3:          Indecent assault read with section 51(2) of Act 105 of 1997;

Count 4:          Assault with the intent to cause grievous bodily harm;

Count 5:          Assault with the intent to cause grievous bodily harm;

Count 6:          Assault with the intent to cause grievous bodily harm;

Count 7:          Assault with the intent to cause grievous bodily harm;

Count 8:          Rape (2004) read with section 51(2) of Act 105 of 1997.

 

[2]        Count 9 (child abuse) and count 10 (contravention of section 9(a) of the Sexual Offences Act[1]) were only put to accused no. 2. Despite the fact that the appellant was not charged with child abuse, he was nonetheless convicted and sentenced on count 9. The State and counsel on behalf of the appellant were in agreement that the conviction and sentence in respect of this charge should be set aside.

[3]       The appellant was convicted on charges 1 – 9 and on 30 January 2015, the following sentences were imposed on him:

Count 1:          Life imprisonment;

Count 2:          5 years’ imprisonment;

Count 3:          5 years’ imprisonment;

Count 4:          3 years’ imprisonment;

Count 5:          3 years’ imprisonment;

Count 6:          3 years’ imprisonment;

Count 7:          3 years’ imprisonment;

Count 8:          Life imprisonment;

Count 9:          3 years’ imprisonment.

 

[4]       The appellant has an automatic right of appeal which was noted in respect of both conviction and sentence. The appellant was legally represented throughout the trial and pleaded not guilty to all the charges.

 

Point in limine: Guilty finding on count 9.

[5]       Although count 9 was only put to accused no 2, the appellant was nonetheless convicted and sentenced to 3 years’ imprisonment on this charge.

[6]       The appellant raised a point in limine submitting that he ought not to have been convicted and sentence on charge 9. The State conceded that count 9 was only put to accused 2 and that the conviction and sentence in respect of this charge ought to be set aside.

[7]       This accords with the record and the conviction and sentence in respect of court 9 is accordingly set aside,

 

Background

[8]       The complainant is the stepdaughter of the appellant. At the time of the commission of the offences the appellant was married to her mother (accused no. 2).

[9]       The complainant painted a grim and harrowing picture of how the appellant repeatedly sexually assaulted and raped her. This happened over a lengthy period of time in her bedroom in the family home. The appellant even removed the lock from her bedroom door to allow him unhindered access to his young prey.

[10]     Initially the appellant would come to the complainant’s bedroom and inappropriately touch her breasts and private parts. The sexual assault progressed to a point where she was raped approximately three times a week and later on a daily basis. She testified that she told the appellant to stop. When she resisted his unwelcome conduct, he told her in no uncertain terms that she should keep quiet. Sometimes the appellant would also use force when she resisted him: He would hit her with a fist, pick her up and throw her against the wall and would place his hand over her mouth so that she could not scream. He also threatened that he would beat her to death if she told her mother.

[11]     Often when they were alone in his car on their way to the shops he would inappropriately touch her by placing his hand in her panty. He would also insert his fingers into her private parts. The complainant testified that on one occasion her mother walked into the room whilst he was on top of her. Her mother pushed him from the bed and stormed out of the room. The complainant then tried to tell her mother that the sexual assault had been going on for years but it appeared to her that her mother did not believe her. After this particular incident the appellant stopped coming to her bedroom only to resume raping her after a while.

[12]      The complainant testified that the sexual assault and rape commenced in 2003 when she was still 15 and ended when the turned 17. The turning point came about when she was informed that the appellant had turned his attention to her sister and that he started to sexually assault her too. The victim explained that up until then she did not report the incidents to anybody as she was too afraid to do so.

[13]     In 2004 the complainant met her husband (Shane). This, however, did not deter the appellant and he continue raping her until she told Shane and the matter was reported to the police.

 

Grounds for appeal

[14]       The appellant relied on the following 8 grounds of appeal in the Notice of Appeal:

 

1.        That the State did not prove its case beyond a reasonable doubt;

2.       The trial court did not properly evaluate the evidence by not taking into account improbabilities and contradictions;

3.         The failure of the trial court to consider that a medical doctor was not called to testify in respect of forceful penetration;

4.         No DNA evidence was presented;

5.         The failure of the State to call certain witnesses;

6.         The failure of the trial court to properly consider the possible motive which the complainant and accused may have had to falsely implicate him;

7.         Rejecting the version of the appellant and his defence witness;

8.         All evidence was hearsay evidence.

 

[15]     The appellant has now conceded the points raised in paragraphs 3, 4, 5 and 8 as well as the point taken that the complainant delayed reporting the matter.

[16]     The only points that remained ad conviction are: (i) whether the evidence was properly evaluated; and (ii) whether there was a motive to falsely implicate the appellant.

 

Proper evaluation of the evidence

[17]     The trial court was alive to the fact that the complainant was a single witness in respect of sexual offence and duly applied the cautionary rule in evaluating the evidence of the complainant. The learned Magistrate also took into account the demeanour of the complainant: He took into consideration that the complainant was calm when giving evidence and that she did not contradict herself. More importantly, the learned Magistrate took into account that there was corroboration for the evidence of the complainant in that of accused 2 (her mother) as well as in the report made to Mrs Nel (Clinical Psychologist).

[18]      I can find no reason to interfere with the assessment of the evidence of the complainant.  Although it is accepted that a trial court must approach the evidence of a single witness with caution[2], the Appellate Division in S v Sauls and Others[3] pointed out that “the exercise of caution must not be allowed to displace the exercise of common sense”.

[19]      I can also find no reason to interfere with the trial court’s credibility findings.  A Court of Appeal[4] will only interfere with the credibility findings of a trial court where the trial court materially misdirected itself insofar as its factual and credibility findings are concerned.  I can find no such misdirection in the present matter.  Moreover, the trial court had the advantage of seeing and hearing the witnesses.

[20]      I can also find no reason to interfere with the trial court’s finding that the complainant, her husband and accused no. 2 deliberately fabricated a story to implicate the appellant. The complainant never deviated from her version of the events. She gave a detailed statement to the police which is consistent with her evidence in court. Lastly, the evidence of Mrs Nel – the Clinical Psychologist – are also instructive in that she explains the psychological trauma and impact sexual assault has on a victim particularly at the hands of someone who was in the position of a father/stepfather to the complainant: The appellant abused the complainant from a very young age. She was only 15 when the abuse started. The abuse gradually culminated in her being systematically raped over an extensive period of time. The sexual assault was also often accompanied by violence and threats.  All of this had a traumatic impact on the complainant.

[21]      The fact that the complainant later had a relationship with a married man (who later became her husband) and the fact that the appellant did not approve of the relationship, does not cast doubt on her version of the facts. The fact that the complainant did not fall pregnant during the time the appellant raped her also does not cast doubt on her version.

[22]       I am accordingly in agreement with the finding by the trial court that no motive to implicate the appellant falsely was established.

 

Ad sentence

[23]      Counsel on behalf the appellant only took issue with the fact that, although the appellant was charged with two counts of rape as contemplated in section 51(2) of the Criminal Law Amendment,[5] the State did not allege or specify the circumstances that triggered the applicability of this section. More in particular, neither of the two charges inform the appellant that (i) the complainant was 15 at the time when the rapes started and; (ii) that the complainant was raped multiple times over the course of at least two years.

[24]      It was accordingly submitted that the court a quo misdirected itself in imposing a sentence of life imprisonment in respect of the two counts of rape (counts 1 and 8) in the absence of this information having been provided to the appellant in the charge sheet.

[25]      In support of this contention, the Court was referred to the decision of the Constitutional Court in Ndlovu v S[6] where the pertinent issue was whether the appellant’s right to a fair trial was infringed in circumstances when, after he (Ndlovu) had been charged with rape read with one minimum sentencing provision, but was sentenced pursuant to a different, harsher, minimum sentencing provision.[7] In the Ndlovu-matter, the appellant  was only charged with rape in that he unlawfully and intentionally had sexual intercourse with a female without her consent read with the provisions of section 51(2) of the Criminal Law Amendment Act.[8] Yet, the Magistrate’s Court in that matter imposed a sentence of life imprisonment in terms of section 51(1) of the Criminal Law Amendment Act despite Ndlovu having been charged in terms of section 51(2). In concluding that the Magistrate did not have the necessary jurisdiction to convict the appellant in terms of section 51(1) in circumstances where he was charged with an offence as contemplated by section 51(2) of the Criminal Law Amendment Act, the Court said the following:

 

“[45] The Magistrate was aware that the charge was “rape read with the provisions of [s]ection 51(2)” and specifically found Mr Ndlovu “guilty as charged”. This wording simply does not permit an interpretation that the Magistrate in fact convicted Mr Ndlovu of rape contemplated in section 51(1).  Nor does the evidence of the complainant’s injuries automatically cure the charge in terms of section 51(1), as posited by the state.  A defective, or incomplete, charge may be remedied by evidence in some instances by section 88 of the Criminal Procedure Act.  However, this charge was complete and not defective. Quite simply, the charge was not rape involving the infliction of grievous bodily harm and evidence alone could not make it so.

[46] In the light of this, I can do nought but conclude, inexorably, that the Regional Court did not have jurisdiction to impose life imprisonment in terms of section 51(1) of the Minimum Sentencing Act.  Mr Ndlovu was convicted of rape, read with section 51(2); accordingly, the Regional Court was required in terms of section 51(2) to impose a minimum sentence of 10 years (as he was treated as a first offender).  The Regional Court’s jurisdiction was limited in terms of section 51(2) to imposing a maximum sentence of 15 years.”

[47] In the result, because the Regional Court did not have jurisdiction to sentence Mr Ndlovu in terms of section 51(1), his application must succeed.”

 

[26]      In the present matter, similar to the matter in Ndlovu, the appellant was only charged with rape in that he “wederregtelik en opsetlik met ‘n vrouenspersson , te wete Alcicia Danielle Lewis vleeslike gemeenskap gehad het sonder haar toestemming … gelees met die bepalings van Art 51(2) van die Strafregwysigingswet 105 van 1997”. However, and similar to the Ndlovu-case, the Magistrate imposed a sentence of life imprisonment in terms of section 51(1) of the Criminal Law Amendment Act in respect of both counts 1 and 8 despite the fact that he was charged in terms of section 51(2) and not in terms of section 51(2). Moreover, the circumstances which may have given rise to the jurisdiction to sentence the appellant to life imprisonment in terms of section 51(1) of the Minimum Sentencing Act are also not referred to in counts 1 and 8.

[27]      When the charges were put to the applicant, no mention was made of the fact that the complainant was only 15 at the time nor of the fact that she was repeatedly raped. After the charges were put to the appellant the Magistrate advised him that a minimum sentence of between 10 and life imprisonment may be imposed but again without setting out the circumstances under which a sentence of imprisonment for life would have been applicable.[9]

[28]       Moreover, counts 1 and count 8 read exactly the same and despite no difference in the two charges (apart from the dates on which the rapes took place namely in 2003 and 2004), the appellant received two life sentences.

[29]      In terms of section 51(1) of the Criminal Law Amendment Act a minimum sentence is prescribed in respect of certain offences:

“Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life.”[10]

[30]     Part I of Schedule 2 includes rape in circumstances where the victim was (i) raped more than once by one or more than one person and; (ii) rape where the victim is a person under the age of 16 years.

[31]     Had the appellant been charged with an offence falling within the ambit of Part 1 of Schedule 2, the court a quo would have been able to sentence the appellant to life imprisonment provided that the appellant had been convicted of an offence referred to in Part I of Schedule 2. 

[32]     The minimum sentence that can be imposed on a person found guilty in terms of section 51(2) of the Criminal Law Amendment Act (such as rape read with read with section 51(2) of the Criminal Law Amendment Act) is 10 years’ imprisonment (in the case of a first offender). In terms of the section 51(2) the maximum term of imprisonment that a Regional Court could impose under section 51(2) is the applicable minimum sentence (10 years) plus five years (15 years).[11]

[33]     During the trial, evidence was led by the complainant that she was 15 at the time when she was first raped. This evidence was corroborated by accused no 2. Evidence was also led to the effect that the complainant was repeatedly raped during 2003 and 2004.  

[34]     Despite this evidence having been led, scant reference was made during the submissions on behalf of the State in respect of sentencing regarding the fact that evidence revealed that the complainant was 15 when she was first raped and that she was repeatedly raped thereafter.

[35]     The Magistrate did not have the jurisdiction to impose life imprisonment in terms of section 51(1) in circumstances where the appellant was charged in terms of section 52(2) of the Criminal Law Amendment Act. The fact that evidence was led to the effect that the complainant was 15 at the time when she was first rape and that she was raped repeatedly thereafter does not, in the words of the Constitutional Court in Ndlovu “automatically cure the charge in terms of section 51(1)”. 

[36]     I should also mention that in convicting the appellant the learned Magistrate convicted the appellant “soos aangekla”. If regard is had to the charge sheet, the appellant was charged with rape read with the provisions of section 51(2) of the Criminal Law Amendment Act. The conviction in respect of charges 1 and 8 was therefore in terms of section 51(2) of the Criminal Law Amendment. However, notwithstanding this conviction, the learned Magistrate sentenced the appellant in terms of section 51(1) of the Criminal Law Amendment Act.

[37]     In the result the appeal must succeed and the sentences of life imprisonment imposed in respect of the conviction on both counts 1 and 8 be set aside.

 

Should this court impose a sentence?

[38]     Although it is preferable that the trial court imposes a new sentence in terms of section 51(2) of the Criminal Law Amendment Act, I am of the view that, in this particular matter, it is in the interests of justice to determine the matter finally particularly in light of the fact that the trail took years to complete: The trial commenced in December 2006 and was only finalised on 30 January 2015 when sentence was handed down.

[39]      In terms of section 51(2) of the Criminal Law Amendment Act, the minimum sentence that could have been imposed on the appellant, having been a first offender, could have been 10 years’ imprisonment and the maximum 15 years’ imprisonment.

[40]     What cannot be ignored in considering an appropriate sentence is the fact that the appellant had been convicted of heinous crimes. The facts in this matter speak for themselves. I can put it no better than the court in S v C:[12]

 

“Rape is regarded by society as one of the most heinous of crimes, and rightly so. A rapist does not murder his victim - he murders her self-respect and destroys her feeling of physical and mental integrity and security. His monstrous deed often haunts his victim and subjects her to mental torment for the rest of her life - a fate often worse than loss of life. Serial rapists and murderers are regarded by society as inherently evil beings. They are the most feared and loathed criminals in our community. Society demands protection in the form of heavy and deterrent sentences from the courts against such atrocious crimes.”

 

[41]     See also [zRPz]S v Chapman[13] where the Court likewise verbalised the devastating effects of this terrible offence on the victim as follows:

 

“This in our view is a correct approach. 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 civilisation.

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 the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.”

 

[42]     The court a quo has already taken into account all relevant factors in deciding on an appropriate sanction albeit in the context of section 51(1) of the Act. Those same considerations apply in considering an appropriate sanction in terms of section 51(2) of the Criminal Law Amendment Act.

[43]     The offence with which the appellant was convicted of induces a sense of shock and horror and I am, in particular in agreement with the learned Magistrate’s labelling of the appellant as a “seksuele roofdier” (“sexual predator”):

 

“Die getuienis voor die hof toon baie duidelik aan dat voor die hof daar n seksuele roofdier stand wat sy situasie misbruik het om onskuldige mense uit te buit vir sy seksuele bevrediging en dit is die bevinding van hierdie hof dat hierdie hof geen ander keuse het as om die belange van die gemeenskap, die erns van hierdie misdryf, die veelvuldige voorkoms daarvan te sien as faktore wat in hierdie geval beklemtoon moet word.”

 

[44]     What makes matters even more repulsive is the fact that the appellant abused his position as a stepfather to violate a vulnerable young woman: He even removed the lock from her bedroom door so that he could have easy access to his vulnerable prey.  Although the appellant is not the complainant’s biological father, he was married to her mother for many years and as such stepped into the shoes of a father. She was entitled to his protection. Instead he repeatedly violated her trust and exerted his physical and emotional power over her for his own satisfaction. The Court in S v M[14] explains why rape with this context is particularly horrendous:

 

“[39] The accused occupied a position of power in relation to his stepdaughter. She was vulnerable to his seniority in age and familial standing, his affinity with her mother who was the only other adult in the home, his role as paterfamilias in the home and family. This was appreciated in S v Jansen  1999 (2) SACR 368 (C) where it was said at  378g - h that '(r)ape of a child is an appalling and perverse abuse of male power'; in S v Swart  2000 (2) SACR 566 (SCA) where reference is made to how the rapist 'exploited to the full the position of power which he held over them'; in S v G 2004 (2) SACR 296 (W) where the Court commented at 301c - d, 'She was raped in the safety of her own home by a person towards whom she was affectionate, and from whom she was entitled to expect protection. The accused has violated the trust which the complainant and her mother placed in him'; in S v P  2000 (2) SA 656 (SCA) at 660G where the Court commented how a grandfather had 'violated that love and abused that position of trust'.

“[40] In S v Abrahams  2002 (1) SACR 116 (SCA), the Court was concerned with the rape of a pubescent child by her father. The Court stated at 123d - e:

'Of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter. But it is a position to be exercised with reverence, in a daughter's best interests, and for her flowering as a human being. For a father to abuse that position to obtain forced sexual access to his daughter's body constitutes a deflowering in the most grievous and brutal sense. That is what occurred here, and it constituted an egregious and aggravating feature of the accused's attack upon his daughter.'  

The Court referred to a number of features applicable to rape within the home.

'First and obviously, a family member is also a member of the wider public and equally obviously as deserving as the rest of the public of protection against rapists, including those within the home. Indeed, where a rapist's victim is within his family, she constitutes the part of the public closest to, and therefore most evidently at risk of, the rapist.

Second, rape within the family has its own peculiarly reprehensible features, none of which subordinate it in the scale of abhorrence to other rapes. The present case illustrates them with acute force. The rapist may think the home offers him a safe haven for his crime, with an accessible victim, over whom he may feel (as the accused did) he can exercise a proprietary entitlement.  Though not the case here, a family victim may moreover for reasons of loyalty or necessity feel she must conceal the crime. A woman or young girl may further internalise the guilt or blame associated with the crime, with lingeringly injurious effects. This is particularly so when the victim is the rapist's own daughter, and the more so when the daughter is of tender years.”

 

[45]     In the circumstances of this matter I am therefore of the view that a minimum sentence of 10 years’ imprisonment is wholly inappropriate. I conclude that a sentence of 15 years’ imprisonment in respect of each of the two convictions of rape (charges 1 and 8) read with section 51(2) of the Criminal Law Amendment Act is appropriate.

[46]      Unfortunately, this is the point where the criminal justice system dismally failed this complainant. The evidence presented to the trial court should have alerted the Magistrate and the prosecutor that the appellant ought to have been charged with rape read together with section 51(1) of the Criminal Law Amendment Act in that the victim was 15 at the time when the rapes started and that she was raped multiple times over the period of at least two years. This was not done. It is this kind of oversight that has prompted the Constitutional Court in Ndlovu[15] to level the following criticism against those individuals and state entities who reminisced in their duty to correctly charge the appellant:[16]

 

“[58] When even the most heinous of crimes are committed against persons, the people cannot resort to self-help: they generally cannot prosecute the perpetrators of these crimes on their own behalf.  This power is reserved for the NPA.  It is therefore incumbent upon prosecutors to discharge this duty diligently and competently.  When this is not done, society suffers.  In this case the prosecutor failed to ensure that the correct charge was preferred against Mr Ndlovu.  The prosecutor was from the outset in possession of the J88 form in which the injuries sustained by the complainant were fully described.  It boggles the mind why the proper charge of rape read with the provisions of section 51(1) of the Minimum Sentencing Act was not preferred.  This can only be explained as remissness on the part of the prosecutor that, further, should have been corrected by the Court.  This error is acutely unfortunate – victims of crime rely on prosecutors performing their functions properly.  The failings of the prosecutor are directly to blame for the outcome in this matter.”

 

Order

[47]      The following order is made:

1.         The appeal against conviction and sentence imposed by the Regional Court, Secunda in respect of charges 2 – 7 is dismissed.

2.        The appeal against conviction and sentence imposed by the Regional Court, Secunda in respect of charge 9 is upheld and the appellant’s conviction and sentence are set aside.

3.        The appeal against conviction imposed by the Regional Court, Secunda in respect of charges 1 and 8 is dismissed.

4.        The appeal against the sentence of life imprisonment imposed by the Regional Court, Secunda in respect of charges 1 and 8 succeeds and is replaced by the following order:

4.1         In respect of charge 1 the appellant is sentenced to 15 years’ imprisonment antedated to 30 January 2015.

4.2         In respect of charge 8 the appellant is sentenced to 15 years’ imprisonment antedated to 30 January 2015.

5.        The sentences on counts 1- 8 are to run concurrently. The effective sentence will thus be 15 years.

 

AC BASSON, J

JUDGE OF THE HIGH COURT

 

I AGREE

   

TAN MAKHUVELE

JUDGE OF THE HIGH COURT

 

 

APPEARANCES:

 

FOR THE APPELLANT     :           ADV L A VAN WYK

INSTRUCTED BY               :           LEGAL AID SOUTH AFRICA

 

FOR THE DEFENDANT    :           ADV M J VAN VUUREN

INSTRUCTED BY               :           DIRECTOR OF PUBLIC PROSECUTIONS

 

 

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