---

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHERS JUDGES: NO

(3)     REVISED

                                                                                         Case number: A316/2019

                                                                                           Date:

 

 

In the matter between:

 

TSHIDI GODFREY SEBAKA                                                                                 APPELLANT

And

THE STATE                                                                                                                RESPONDENT

 

JUDGMENT

 

BALOYI-MERE AJ

Introduction

[1]            The Appellant in this matter has an automatic right to appeal the conviction and the sentence, given that the Appellant was sentenced to two life imprisonments and five years. All the sentences were ordered to run concurrently in terms of section 280 of the Criminal Procedure Act 51 of 1977. The Appellant was convicted on 29^th October 2018 in the North Gauteng Regional Court held at Pretoria and was sentenced on the 28^th February 2019.

Record of Proceedings

[2]            The appeal was postponed on a number of occasions because of the incomplete record. The Counsel for both parties have now agreed that the record as reconstructed is enough and adequate for the appeal to proceed.

Brief Background of Facts

[3]            The Appellant was convicted on two counts of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 and one count of sexual assault in contravention of section 5 of the Sexual Offences and related Matters Amendment Act 32 of 2007.

[4]            The Appellant pleaded not guilty to all the charges. Appellant had legal representation throughout the trial in the court a quo. The Appellant was convicted on the 29^th October 2018 and sentenced on the 28^th February 2019 to life imprisonment on counts 1 and 2 and five years imprisonment on count 3. The sentences were ordered to run concurrently.

[5]            The facts of the case have been adequately captured by the Learned Magistrate in the court a quo and I therefore will not restate them.

Grounds of Appeal

[6]            The Appellant is appealing against both his conviction and the sentence. The Appellant’s grounds of appeal appear in the re-constructed record on pages 283 to 285[1].

[7]            In the court a quo’s judgment, the Learned Magistrate dealt with all the issues that were raised by the Appellant as grounds of appeal by way of reasons given in the judgment. In the judgment[2] the court dealt with the evaluation of the evidence.

[8]            The Learned Magistrate further relied on a number of cases which I will not restate but there are a few that deserves mention and they are S v Chabalala[3], S v Reddy[4], S v Stevens[5] and Woji v Santam Insurance[6]. All these cases should be read together with S v Jackson[7] where the cautionary rule applying to complainants in sexual cases was abolished by the Supreme Court of Appeal. Section 60 of the Criminal Law (Sexual Offences Related Matters) Amendment Act 32 of 2007 also provides that a court may not treat the evidence of a complainant in a sexual offence with caution on account of the nature of the offence. On the other hand, a court should not easily convict unless the evidence of the child has been treated with due caution.

[9]            The issue of a single witness was further considered in S v Hadebe[8] and cited with approval in the matter of S v Mbuli[9] by the SCA as follows:

“The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a 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 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 the 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 from the trees.”

[10]        The court a quo considered both the principles as set out in Woji v Santam Insurance and also in S v Chabalala supra which was the correct approach in evaluating the evidence of a single witness who is also a minor. In this instance, the minor’s evidence was corroborated by three witnesses, to wit, the sister to the Complainant, his mother and the doctor that examined him when he was eventually taken to a doctor. All the three witnesses’ evidence corroborated the minor’s evidence.

[11]        The Learned Magistrate diligently and correctly analysed the evidence in totality and came to a conclusion that was based on the facts and evidence before her.

[12]        The Appellant’s only version was that the Complainant’s mother falsely implicated him and used the Complainant to accuse him of rape. This version was volunteered by the Appellant although it is settled law that an accused does not have an onus of proving his innocence. This version was found by the learned magistrate, and correctly so, to be highly improbable in that a thirteen-year old could not be coached to an extent that he was able to give evidence on the offences that happened from 2014 to 2016. The version was also found to be improbable in that the Complainant’s mother would not deliberately put her son through the entire criminal process due to a rent dispute.

Conviction

[13]        In convicting the appellant, the Learned Magistrate considered all the evidence that was before her, and held that the Complainant’s evidence is to be believed when he said he went to the Appellant’s house regularly to watch television. The Complainant’s sister and the mother had corroborated the most crucial points of the incident and the admission by the Appellant that the sister testified about was clearly and properly brought in the court’s record and it substantiated the fact that the mother of the Complainant definitely confronted the accused and the accused admitted and said that he did not know that the incident will come out in a manner in which it did.

[14]        The complainant was also honest when asked why he went into the Appellant’s house repeated even after the first incident, where he answered that he hoped that the incident will be repeated again or that the Appellant would stop what he was doing to him.

[15]        The Learned Magistrate found that the state had proven its case beyond reasonable doubt and that the Complainant was violated sexually from 2014 to 2016.

[16]        The Learned Magistrate evaluated the evidence and correctly took into account any possible contradictions in the case for the state. As already mentioned, the Complainant was extensively cross-examined and never deviated from his version. The issue of contradiction was considered in the case of S v Mkohle[10] and the relevant paragraph has been quoted in the Respondent’s heads of argument at paragraph 5.3. I am therefore not convinced that there was any misdirection in the conviction of the Appellant by the court a quo.

[17]        The Appellant was found guilty on count 1 as charged with regards to part 1 of the scheduled section 51(1) of the Criminal Law Amendment Act, found guilty on count 2 as charged and again within part 1 of the Criminal Law Amendment Act section 51.

[18]        The Appellant, in his heads of argument before this court, argued that the evidence as presented did not prove that in fact the Appellant penetrated the Complainant. In dealing with this aspect, the Learned Magistrate considered the definition of sexual penetration with reference to the Sexual Offences and Related Matters Amendment Act and the broad definition of sexual penetration, which is:

“… include[s] any act which causes penetration to any extent whatsoever by-

(a) the genital organs of one person into or beyond the genital organs, anus, or mouth of another person;

(b) any other part of the body of one person or, any object, including any part of the body of an animal, into or beyond the genital organs or nus of another person; or

(c) the genital organs of an animal, into or beyond the mouth of another person.”

 

[19]        The evidence of the Complainant was that in the first incident that is in 2014, the Appellant tried to penetrate his anus several times but failed and when asked why does he say that the Appellant failed, his response was that because his penis was unable to penetrate the Complainant’s anus. This action falls squarely within the definition of penetration as defined in the Sexual Offences and Related Matters Amendment Act. The Complainant further explained that the incidents of 2015 would be of similar nature although at times the Appellant would put his penis in between the Complainant’s thighs and asked the Complainant to close his thighs and the Appellant would simulate sexual movement until he ejaculates. The Complainant further testified that during the 2014 incident, he bled through his anus although the blood was not that much. This is a clear indication that there was penetration to a certain degree.

[20]        The issue of partial penetration has been considered by our courts and in particular in the matter of S v H[11] where the court held as follows:

“[51] That leaves the question of what constitutes common law rape. This was well settled in our law. It was defined as the unlawful and intentional act of sexual intercourse with a female without her consent , see generally Principles of Criminal Law (3rd edition.) Johnathan Burchell at p706 and the extension of the common law in Masiya v Director of Public Prosecutions, Pretoria and Another 2007(5) SA 30 (CC) at paras 39 – 44.

Our common law held that the slightest penetration was sufficient to complete the act of sexual intercourse. Burchell (3rd edition) put it as follows at 706:

“it is thus irrelevant that the male does not emit semen, nor does it matter that the woman’s hymen is not ruptured”. See cases such as S v K 1972 (2) SA 898 (A) at 900C where rape occurred even though the woman’s hymen was not ruptured. The author cites an extract at ftn 48 from EH East in 1803 (1 Pleas of the Crown 437):

“The quick sense of honour, the pride of virtue in the female heart… is already violated past redemption and the injurious consequences to society are in every respect complete”.”

The Learned Magistrate dealt with the issue of whether the Appellant tried to penetrate the Complainant or if the issue of penetration was completed. The Learned Magistrate further considered the definition of sexual penetration and found that it includes any act which causes penetration to any extent whatsoever, I do not find any misdirection on the part of the Learned Magistrate on the convictions on counts 1 and 2.

[21]        The Learned Magistrate further, on count three, considered the evidence that the Appellant made the complainant to lie on his back and the Appellant put his penis between the Complainant’s thighs and then told the Complainant to close his legs. Appellant proceeded to make up and down movements until he ejaculated. The Learned Magistrate found that the competent verdict in this instance and found the Appellant guilty on count 3 in that he contravened section 5 of the Sexual Offences Act, Sexual Offences and Related Matters Act 32 of 2007.  I cannot find any misdirection on the part of the Learned Magistrate on this finding.

 

Sentence

[22]        The Learned Magistrate took into consideration, when considering the sentence, the Zinn[12] and Khumalo[13]. The court further considered the Appellant’s personal circumstances that he was 43 years old at that time, he is the first born of four children and his father is deceased. The court further considered that the Appellant did indeed complete his primary education and dropped out at grade 9 due to influence according to the Appellant by other people.

[23]        The Appellant was also influenced to find a job in Silverton and then he lost interest to continue his school career. The Appellant was married and has one child and at the time of the time the Appellant was unemployed and his child received a social grant of R410.00. The Learned Magistrate had regard to the fact that the Appellant’s religion and social integration as a member of the Zion Christian Church and that he was a member of the church choir.

[24]        The court also had regard to the impact that the sexual assault had on the Complainant. It was reported that the Complainant was struggling at school and that the Complainant was deeply traumatised by what happened to him. The Complainant also felt ashamed when he realised that the community members knew about the incident and were talking about it. This is an indication that the incident had a negative impact on the life of the Complainant.

[25]        The Learned Magistrate considered and applied the principle enunciated in S v Malgas[14] which was approved by the Constitutional Court in Dodo[15] where the court held as follows:

“Unless there are and can be seen to be truly convincing reasons for a different response the crimes in question are therefore required to elicit a severe standardised and consistent response from the courts.”

[26]        The Learned Magistrate held that there is no prescribed rule regarding what is substantial and compelling circumstances but found the answer as laid out in S v Mvamu[16]. The Learned Magistrate was not satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence or to depart from the prescribed minimum sentence[17].

[27]        The Learned Magistrate was also guided by S v Nkosi[18] where it was held that the court still needs to maintain a healthy and proper balance between the interest of society, the nature of the offence and the offender. The court must tirelessly balance mitigating and aggravating factors to reach an appropriate sentence. The court a quo sentenced the Appellant as follows:

27.1.     In count 1 the Appellant was sentenced to life imprisonment;

27.2.     In count 2 the Appellant was sentenced to life imprisonment; and

27.3.     In count 3 the Appellant was sentenced to 5 years imprisonment.

[28]        In light of all the above I am persuaded that there was no misdirection by the Learned Magistrate in both the conviction and the sentence.

Order

In the circumstances I propose that the following order be made:

1.    The appeal on both the conviction and sentence in all counts is dismissed.

 

EM Baloyi-Mere

Acting Judge of the High Court

 

I agree

 

A Basson

Judge of the High Court

 

 

Delivered:  This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/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 30 November 2021.

 

 

Date of hearing       : 18 November 2021

Date of Judgment  : 30 November 2021

 

APPEARANCES:

FOR THE APPLICANT                   : MG BOTHA

INSTRUCTED BY                            : PRETORIA JUSTICE CENTRE

 

FOR THE STATE                             : ADV C HARMZEN

INSTRUCTED BY                            : DIRECTOR OF PUBLIC PROSECUTION

---