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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)         REPORTABLE: NO

(2)         OF INTEREST TO OTHER JUDGES: NO

DATE:  2 -09- 2021

CASE NUMBER: A255/2020

In the matter between:

 

LAWRENCE MTHIMKHULU                                                                              APPELLANT

and

 

THE STATE                                                                                                              RESPONDENT

JUDGMENT

 

Delivered:     This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties I their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 2 Septembert 2021.

INTRODUCTION

 

[1]                    The Appellant was convicted in the Regional Court held at Tsakane on four (4) counts of contravention of Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Sexual Offences Act”), read with Section 51(1)(a)(i) and (b)(ii) of the Criminal Law Amendment Act 105 of 1997 (“the Minimum Sentences Act”), under Part 1 of Schedule 2, in that the Appellant raped the Complainant, a minor, more than once.

[2]                    The Appellant was sentenced to a term of life imprisonment for each of the four (4) convictions. The four (4) sentences were ordered to be served consecutively. In addition to the sentences the following orders were made: the appellant was, in terms of Section 103(1) of the Firearms Control Act 60 of 2000, declared unfit to possess a firearm; in terms of section 120(1)(c) of the Children’s Act 38 of 2005, he was declared a person unsuitable to work with children; and further, in terms of section 50(2) of the Sexual Offences Act, it was ordered that the Appellant’s name and particulars be included in the national register for sexual offenders.

[3]                    The Appellant appeals against both conviction and sentence by virtue of the automatic right of appeal in terms of Section 309(1)(a) of the Criminal Procedure Act, Act 51 of 1977 (“the Criminal Procedure Act”). He enjoyed legal representation throughout the proceedings.

[4]                    The Complainant, who is the Appellant’s daughter, was between the ages of 13 and 15 years when the alleged rapes took place, which rapes occurred between 2016 and 2018. The Appellant pleaded not guilty and denied all the allegations against him, he also elected to exercise his right to remain silent and proffered no explanation.

GROUNDS OF APPEAL

[5]                    The issues that arise for determination in respect of the conviction are whether in the court a quo the trial magistrate:

 

1.                   

2.                   

3.                   

4.                   

5.1              erred in finding that the Complainant was a credible witness considering the contradictions in her testimony and her inability to provide responses without any regard to accuracy on the number of the incidents, dates, and time of every individual incident. Also, that her evidence was bereft of any sensory awareness, stating allegations in a matter of fact and had no circumspection to simply change her version;

5.2              disregarded the fact that the evidence of the Complainant had scanty corroboration and that even the medical reports could not salvage her evidence; and

5.3               ignored the normal rules of evidence by disregarding the application in adjudicating the reliability of a witness’s evidence by giving more leeway to the Complainant’s testimony who was a child and generally regarded as vulnerable to abuse.

[6]                  The issue for determination against sentence is whether the trial magistrate misdirected himself:

[6] 

6.1             in overemphasising the aggravating factors with little or no consideration to the traditional mitigating factors and disregarded the Appellant’s pre-detention period awaiting trial as a factor for consideration; and

6.2           erred in not finding the existence of substantial and compelling circumstances justifying a deviation from the prescribed sentence.

[7]                The respondent supported both the conviction and sentence and contended that:

[7] 

7.1           The trial magistrate was patently alive to the cautionary rule in its assessment of the contradictions and probabilities inherent in the Complainant’s evidence and treated such with the requisite caution and circumspection;

7.2            The trial magistrate gave a carefully reasoned and deliberative judgment and was correctly persuaded with evidence of the Complainant; and

7.3             On sentence, the trial magistrate neither erred in his verdict nor misdirected himself in meting a sentence which is befitting to the offences as no substantial and compelling circumstances were present justifying any deviation.

 

 

 

FACTUAL BACKGROUND

 

[8]                    The Complainant is one of the seven children of the Appellant and his wife. The parents were not married but stayed together with all of them. Only her mother was gainfully employed as a domestic worker. She worked throughout the weekdays and at times even on weekends. The Appellant did odd jobs as a gardener, but he was home most of the time.

[9]                    The first sexual abuse happened when the Complainant was 13 years of age in 2016 at home and continued until 2018 although she could not remember the exact dates. The modus operandi employed by the Appellant was that he made sure that the rapes took place when the Complainant’s mother was at work, and he will send her elder brother to go look for work or on errands and the younger ones to go play outside. She did not tell anyone about the sexual abuse as she was threatened with death and was not allowed to have friends.

[10]                 The Appellant was very abusive against their mother and her elder brother. They all feared him, but she and the younger ones were treated differently by him. The penetrations were vaginal and one was from behind to the vagina. The Complainant also tried to escape the ordeal by running away from home but went to the police station and was taken back home the same evening.

[11]                 The sexual abuse only stopped when on one occasion, the Complainant’s elder brother walked in on them whilst the Appellant was raping her in the bathroom after he had returned unexpectedly earlier from one of the errands of the Appellant. The Complainant later told her elder brother that the sexual abuses have been going on for some time and the reason why she did not tell her mother was because she feared for both her life and her mother’s life. Her brother told their mother and it was only then that the Complainant also related her ordeal to her mother.

[12]                 The Complainant’s elder brother confirmed that he is the eldest in the family and he was neither attending school nor employed. He confirmed the abusive conduct of the Appellant (his father) in the house even to the extent of threatening to poison them all as he was the one who was cooking for the family.

[13]                 He confirmed that he was constantly chased away from home during the day to go look for work and he just spent most of his time with friends. He further stated that the Complainant’s behaviour suddenly changed for the worst, and she became so difficult to relate to as a sibling.

[14]                 He further confirmed that he was returning from one of his father’s errands when he walked in on her father raping her sister in the bathroom.  The Complainant only then narrated the constant sexual abuses by her father, and that the Appellant threatened her not to tell anybody. The brother reported the matter to their mother and the Complainant confirmed the ordeal to her mother.

[15]                 The mother to the Complainant confirmed that she is the sole bread winner of the family, has endured untold emotional abuse at the hands of the Appellant, at some stage they separated but reconciled, and despite been together for long, they are unmarried. He even more than often referred to the Complainant as not his child.

[16]                 Though the sexual abuse occurred under her nose, she was not aware but did notice the preferential treatment the Appellant gave the Complainant to an extent that they even cooked together. The Complainant became very disrespectful towards her in all aspects, and was almost treated like a ‘wife’ in the house.

[17]                 Her intimacy with the Appellant stopped after the Appellant moved out of their bedroom and has all along been sleeping alone. She further stated that she, at one time, almost got a hint of the abuse when she saw the Appellant coming out of the bathroom fastening his zip whilst the Complainant was in the bathtub.

[18]                 She confirmed that she learnt about the sexual abuse from one of her sons, and only then did the Complainant narrate the story to her and the reasons why she never confided in her. She further confirmed that the Appellant is a drug addict. He has been on dagga ever since they met and will often use the money she gave him to buy bread for the kids to buy the dagga instead.

[19]                 Of late she suspected that he had upgraded to hard drugs like mandrax as he was more aggressive than before.  After receiving the report from her children, a plan was then devised to elude the Appellant and report the matter to the police and the Appellant was then arrested.

[20]                 The Complainant was taken for medical examinations. A gynaecological examination was done by a forensic nurse when the Complainant was fifteen (15) years old. The vaginal examination confirmed that the hymen was irregular, there were vaginal bumps indicating a healed vaginal tearing and the cleft was at 9 o’clock.

[21]                 All of these were said to be indicative of previous penetrations. According to the nurse, the Complainant confirmed that the Appellant penetrated her anally but there were no new injuries noted and it was reported that this did not exclude penetration. A blood sample was taken and she was given seven (7) pills. The J88 was taken in as an exhibit.

[22]                 The Appellant was the only witness for the defence. He testified that the Complainant is not her biological child and was staying with her maternal grandmother and only came later to join them. He further stated that he was not employed but doing odd jobs four times a week.

[23]                 He denied all the allegations against him and could not proffer a reason why his son will come and testify against him. He confirmed that generally he did not want his children to gallivant in the street and they always stayed in the yard and had no friends.  He further confirmed that the Complainant once ran away as she wanted to go live with her uncle, got lost on her way back and was brought back by the police. 

[24]                 He never asked the reasons why she ran away as he expected the mother to do that. He denied that the Complainant was attending school. He denied that his son saw them having sex in the bathroom as he was only helping the Complainant with the laundry. According to him the Complainant had no boyfriend, and he has no explanation or answers on the medical findings on the Appellant.

EVALUATION OF THE EVIDENCE

[25]                 It is trite that in criminal matters, the state bears the onus to prove the guilt of the accused beyond reasonable doubt and that an accused should be acquitted if his or her exculpatory testimony can be found to be reasonably possibly true.

[26]                 Over and above that, it is also trite, that a court of appeal or review is required to approach a trial court’s factual and credibility findings with deference, as a trial court is steeped in the atmosphere of the trial, as per S v Kebina 2010 All SA 30 (SCA) par 12. It is, therefore, prudent to look at the totality of the evidence presented in this matter to establish if the contention by Appellant holds any water.

AD CONVICTION

[27]                 Section 208 of the Criminal Procedure Act, as quoted by the trial magistrate, affirmed the legal approach that an accused can be convicted on the evidence of a single competent witness. A finding can be based on the evidence of a single witness, but such evidence must always be treated with caution and in a criminal case the evidence must be substantially satisfactory in every material respect or if there is corroboration.

[28]                 The record indeed evinces that the evidence of the Complainant was properly scrutinised and that the cautionary rule was properly applied in the appraisal of her evidence as a single witness.

[29]                 The trial court, in applying the cautionary rule correctly found that the evidence of the Complainant is satisfactory in all material respects. In S v Jackson 1998 (1) SACR 470(SCA) at 576 E-F Olivier JA stated:

“In my view the cautionary rule in sexual assault cases is based on an irrational and out-dated perception. It is unjustly stereotyping complainants in sexual cases (overwhelmingly women) as particularly unreliable. In our system of law, the burden is on the state to prove the guilt of an accused beyond reasonable doubt, no more or less. The evidence of a particular case may call for a cautionary rule.”

[30]                 The submission that the corroboration of the Complainant’s evidence is scanty as submitted is far-fetched. It is trite that young children, like the Complainant herein, are competent to give evidence if they are old enough to know what it means to tell the truth.  Their evidence should be scrutinised with great care.  The court must not convict unless the evidence of the child has been treated with caution.  There is no requirement for corroboration. However, where corroborating evidence is sought to be relied on, such evidence must connect the accused with the crime. See R v Manda 1951 (3) SA 158 (AD) 162E.

[31]                 The objective evidence of the Complainant’s elder brother and the J88 form are crucial in determining the corroboration. It is noteworthy that the Complainant’s brother once witnessed one of the instances of the sexual encounters. The medical records also confirmed that the Complainant was penetrated.

 

[32]                 The issue of contradictions on the dates and days on which the alleged sexual abuses took place are, as found by the trial magistrate, inconsequential when compared to the totality of the evidence tendered.

[33]                 In S v Oosthuizen 1982 (3) SA 571 (T) the court emphasised that:

“contradictions or errors per se made by a witness do not lead to the rejection of a witness’s evidence in totality. The trier of facts in every case must consider the nature of the contradictions, their number and importance and their bearing on the other parts of the witness’s evidence.”

[34]                 It is also prudent to mention that in S v Pistorius 2014(2) SACR 315 SCA and more particularly at paragraph 30 the court confirmed that:

“It is a time- honoured principle that once a trial court has made a finding on credibility, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conceptus of the trial court was clearly wrong.”

[35]                 The trial magistrate, in the court a quo, was correct in regarding such contradiction as inconsequential as the Complainant was able to give a detailed account on the rapes that took place. The fact that she could not state the exact dates on which the incidents occurred does not render her evidence unreliable. Further, as stated, the evidence of her brother and the medical evidence confirmed the allegations.

[36]                 The Appellant denied the whole version of the Complainant and did not offer any version except to deny all the allegations and evidence given by all the state witnesses. He even introduced new issues that were never put to the state witnesses. The state’s evidence, therefore, remains uncontroverted and the trial magistrate was not put in a position to assess a version tendered by the Appellant against the evidence of the state witnesses as there was none.

[37]                 Therefore, I am of the view that there is no need to interfere with the findings on all these issues raised on behalf of the Appellant, as the trial court correctly found them to be immaterial, having regard to the totality of the evidence.

[38]                 As a result, the verdict of guilty returned by the trial court cannot be tampered with as the state succeeded in proving its case beyond reasonable doubt.

AD SENTENCE

[39]                 The charge of rape for which the Appellant has been convicted of falls within the purview of the Minimum Sentences Act, as stated above, and the mandatory sentence is applicable. In the same breadth, the Minimum Sentences Act allows deviation from the mandatory sentence, only if the court finds that there are substantial and compelling circumstances which exist, justifying such deviation.

[40]                 There is no check list provided in the Minimum Sentences Act for trial courts to assess if there are any substantial and compelling circumstances in matters before them at the sentencing stage. However, a guideline has been set out in S v Malgas 2001 (1) SACR 469 (SCA) at 481e – f in the following terms:

‘It has been suggested that the kind of circumstances which might qualify as substantial and compelling are those which reduce the moral guilt of the offender (analogously to the circumstances considered in earlier times to be capable of extenuating circumstances in crimes which attract the sentence of death).  That will no doubt often be so but it would not be right to suppose that it is only factors diminishing moral guilt that will rank as substantial and compelling circumstances.  Such circumstances are therefore not extraordinary.’ 

[41]             In S v Malgas 2001(1) SACR 469 (A) para [25] the court stressed that deviation should not be for flimsy reasons, however it introduced the ‘determinative test’ which entails that:

“If the sentencing court on consideration of the circumstances of the particular case is satisfied that they [substantial and compelling circumstances] render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal, and the needs of society, so that an injustice would be done by imposing that sentence, is entitled to impose a lesser sentence”.

[42]             The cardinal principle governing an appeal against sentence is that punishment of an offender is pre-eminently a matter for the discretion of the trial court. It is acknowledged that the court hearing an appeal against sentence should be vigilant not to erode the sentencing discretion entrusted to the trial court.

[43]             It is well established that interference by the appellate court is warranted only if the discretion of the trial court was not judicially and properly exercised or if there exists a marked disparity between the sentence imposed by the trial court and the sentence that the court of appeal would have imposed had it been the trial court.

[44]             The test to be surmounted in every appeal against sentence is whether the sentence is vitiated by irregularity or misdirection or is disturbing, excessively shocking, or inappropriate. There is a misdirection on the sentence meted out by the trial court, in the sense that it imposed four life imprisonment sentences on each count, and ordered the sentences to be served consecutively. The effect of this order is that the Appellant will serve four (4) life sentences, one after the other.

[45]             It is trite that by operation of the law life sentences run concurrently and never consecutively. The trial court having so erred, this warrants interference by this court and for this court to look at sentence afresh.

[46]             This principle was articulated as follows in S v Malgas (supra) at 487d-e as follows:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court.  Where material misdirection by the trail court vitiates the exercise of that discretion, an appellate court is off course entitled to consider the question of sentence afresh. In doing so, it assesses the sentence as if it were a court of first instance and sentence imposed by the trial court has no relevance.”

[47]             The trial record clearly evinces a proper consideration of the traditional mitigating factors as encompassed in the pre-sentence report submitted, amongst other things, that the Appellant showed no remorse by admitting only touching the Complainant inappropriately. A custodial sentence was also not recommended. The Appellant’s brother also mitigated on his behalf and confirmed that they are orphans and were brought up by their grandmother and he does not believe the allegations against his sibling.

[48]             In aggravation of the sentence a victim impact report was handed in. It painted a picture of how the sexual abuse left the Complainant emotionally scarred. She has since developed a low self-esteem of herself, dropped out of school and regards herself as ‘dirty’ hence she was given pills to ‘clean’ herself. She now has a child, though she is emotionally detached from her partner. Also, the triad principle in sentencing, that of the gravity of the offence, was considered with the emphasis on the heinous crime the minor child had to endure in the hands of a person who was supposed to protect her.

[49]             It was submitted on the Appellant’s behalf that the court a quo disregarded the pre-sentence period as a factor, which amounts to a total misdirection. In S v Radebe & Another 2013 (2) SACR 165 (SCA) it was confirmed that any pre-sentence period, is a factor to be considered, cumulatively, with other traditional mitigating factors which must be weighed in to determine if substantial and compelling circumstances exist justifying a deviation. However, on its own, it does not constitute a substantial and compelling circumstance. [1]  

[50]             In the heads of argument, it is argued on behalf of the Appellant that the trial court ought to have considered the Appellant’s custodial period whilst awaiting trial cumulatively with the other factors that ought to be considered when determining whether substantial and compelling circumstances exist, and to find that in fact such factors exist.  However, the trial court, having considered the personal circumstances of the Appellant as contained in the pre-sentence report as against the findings in the victim impact report, found no substantial and compelling factors warranting deviation from the prescribed sentence. The trial court, correctly so, could not have found the existence of substantial and compelling circumstances since it is obvious from the evidence tendered that the personal circumstances of the Appellant are overshadowed by his moral blameworthiness. The argument that by conceding having inappropriately touched the Complainant at the pre-sentence report stage is a strong indicator that he is remorseful and thus abodes well for his prospects of rehabilitation, is unsustainable.

[51]             Therefore, although the fact that the Appellant was in custody awaiting trial since his arrest and was denied bail is a factor worth considering in order to determine if substantial and compelling circumstances do exist, however, in the light of the decision in S v Solomon Nendangwana Oupa Mashile above, that factor on its own, is of no assistance, as it does not constitute a substantial and compelling circumstance. It must be considered cumulatively with other factors. The trial court considered such other factors and did not find that substantial and compelling circumstances exist.

[52]             The sentences of life imprisonment imposed by the court a quo in respect of each conviction are correct. The court a quo erred only in ordering that the sentences be served consecutively, which this court must correct.

[53]             Consequently, for the reasons stated in paragraph [45] of this judgment, the appeal on sentence ought to be upheld.

[54]             Accordingly, I would propose that the following order be made:

(1)            The appeal against the conviction is dismissed.

(2)            The appeal against the sentence succeeds. The sentence of the court a quo is set aside and replaced with the following:

“2.1          On count 1 the Accused is sentenced to life imprisonment.

2.2           On count 2 the Accused is sentenced to life imprisonment.

2.3           On count 3 the Accused is sentenced to life imprisonment.

  2.4           On count 4 the Accused is sentenced to life imprisonment.

  2.5           By operation of the law the sentences in counts1, 2 ,3 and 4, as life sentences, will run concurrently.

   2.6            In terms of section 103 (1) of the Firearms Control Act 60 of 2000 the Accused is declared unfit to possess a firearm.

   2.7           In terms of section 120 (1) (c) of the Children’s Act 38 of 2005, the Accused is found unsuitable to work with children.

   2.8           In terms of section 50 (2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act> 32 of 2007, it is ordered that the Accused’s name and particulars be included in the national register of sexual offenders.”

1. 

2. 

 

 

 

 

T.V. RAIKANE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION

PRETORIA

I agree, and it is so ordered.

 

 

 

 

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

                                                                                GAUTENG DIVISION PRETORIA

 

Date of Hearing:       13 May 2021

 

Date of Judgment:   __ September 2021

 

 

 

Appearances:

 

 

For the Appellant    :           Advocate H L Alberts

                                            Cellphone: (073) 752-1170

                                            Email: hermana@legalaid.co.za

 

Instructed by           :           Legal Aid South Africa, Pretoria Central

                                            Locarno House, 4^th Floor

                                            317 Francis Baard Street

                                            Pretoria.

                                     

 

For the State           :           Advocate P.C.B. Luyt

                                            Cellphone: (084) 294-9070

                                            Email: pcblyt@npa.gov.za

 

Instructed by           :           The Director of Public Prosecution, Pretoria

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