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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CA 62/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

CIRCULATE TO MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:

S R                                                                                                                          Appellant

and

THE STATE                                                                                                         Respondent

 

HENDRICKS J, GUTTA J

 

DATE OF HEARING: 18 MAY 2018

DATE OF JUDGMENT: 07 JUNE 2018

COUNSEL FOR APPELLANT: MR. MADIBA

COUNSEL FOR THE RESPONDENT: ADV. MOETAESI

JUDGMENT

 

HENDRICKS J

 

Introduction

[1] The appellant is the biological father of the complainant, M, who was thirteen (13) years of age. On the evening of the 16^th April 2013 the appellant had a disagreement with his wife. He chased her away from their common home. The wife and her daughter (which is the appellant’s stepdaughter) left, leaving the complainant and her siblings at home with the appellant. The house is a two bedroom house. One bedroom was occupied by the appellant and his wife whilst the other one was the children’s bedroom. That evening the complainant and her siblings slept in their bedroom, whilst the appellant slept in his bedroom.

[2] During the evening, the appellant entered the children’s bedroom, picked up the complainant and carried her to his bedroom. She pretended to be asleep. She wanted to see what he intended to do with her. He took her into his bedroom and undressed her panty. She asked him what he was doing and he replied by saying that the reason is because her mother is not at home. She stood up, put on her panty and went back to the children’s room to sleep with her siblings.

[3] When she woke up the following morning, she found herself in the appellant’s bedroom on the bed. He was not present. She felt pains in her vagina and she had a discharge. She was also stark naked. She dressed herself. She discovered that the door of the house was open. When her sister arrived, she made a report to her. The report was repeated to her mother. The complainant, accompanied by her sister, went to the police station to lay a charge against the appellant. The appellant was arrested. The complainant went to Brits Hospital but was told by the doctor to return on the Friday for examination. This incident happened during the evening of the preceding Tuesday. The Regional Magistrate convicted the appellant on a charge of rape and sentenced him to life imprisonment.  This appeal is against conviction and sentence.

[4] In his judgment, the Regional Magistrate states:

“What we know is that even though nobody saw you raping this person, even though she could not feel you raping her, she could not feel you penetrating her, she still say it is you and her reasons are as follows: She says it was not for the first time that you were raping or you had sexually molesting her, you had done it several times and you had also promised to kill her in the event she reports that. And that is what was said by L M that a report was made to her that you had been abusing her for quite a number of times and you had also promised or threatened her with death in an event she reports. It does not end there, if you look at the medical report, particularly if you go through what the doctor said in as far as the gynaecological examination is concerned. The reasonable inference you can get from the evidence of the doctor is that this sexual intercourse was not taking place for the first time, that it had been occurring, it had been happening for quite some time.”

Much emphasis were laid by the Magistrate on the fact that this was not the first occurrence but that it happened on previous occasions that the appellant raped the complainant. However, the charge levelled against the appellant was for the rape that occurred on the 16^th April 2013 and not the ones that happened previously. This is indeed a misdirection by the Regional Magistrate.

[5] Furthermore, in the judgment, the Regional Magistrate stated:

“But then let us look at to the circumstances. She says, you had earlier on removed her from her bedroom to your bedroom and she became awake when you undressed her panty. She asked you what are you doing and then that is when you said to her that, "I am going to have sexual intercourse with you ... .", remember the previous night you had chased the mother away. You had chased the elder siblings away, you were remaining with her and the younger ones. In other words, she now became the eldest there. She was the one who was say acting as the mother taking care of the house and you were also taking care of the younger siblings and you were also taking her to bed. And then when she asked you what are you doing and you took her back.”

When the complainant was recalled by the trial court, the following appears:

“COURT: Now, remember you testified before us as to how your father sexually abused you? --- That is correct your worship.

If I may take you back for some time, you told us about the night where he chased almost everybody away and during the night he said to you that, “I am now going to sleep with you, I am now going to have sex with you because your mom and your siblings are gone”, do you remember? --- That is correct.”

This was not what the complainant initially testified. It is quite apparent that the trial court were putting words in the mouth of the complainant. Counsel for the respondent [State], quite correctly in my view, submitted that no weight should be attached to this evidence and also the evidence with regard to the alleged previous incidents of rape.

[6] The conviction of rape by the trial court is based on inferential reasoning. It is stated:

“Now the long and short of the whole thing is that if we sum up, if we look at the facts as they are, and I am saying if you sum up, I looking at what the state is saying as well as what you are saying. The inference which I then come to, the conclusion I come to is that indeed, although this kid did not tell us outright, although you are not facing many charges, the inference I then come to is that you had been molesting this child for quite some time and that is why the examination of the genitals could not reveal that she was penetrated for the first time. Everything was almost normal, it is like a person who has been penetrated, it is in line with that. So you have been abusing her for quite some time. On that particular date, it is true, because I cannot see how would, let us assume, that it is an intruder, it is somebody who comes from outside, I would not then understand why would that person remove the child from her bed, take that person to your bedroom when you were sleeping on your bed, raped that child where you are sleeping and leave. I would not understand it, because you are saying you were there until she woke up and bathed the children.

So for her to land on your bed, there should have been somebody removing her from her bedroom, taking her to your bedroom, having sex with her in your presence, in your bedroom, on your bed when you are there. And I say that did not happen. Looking at the evidence, it could not happen. Now the minute I say it cannot happen and it did not happen, it leaves only one inference which one can draw, is that you are the one who did like you wanted to do the previous night, who removed her from where she was, took her to your bedroom and had sexual intercourse with her, just like you wanted to do the night before. And that is why I come to the conclusion then that there is overwhelming evidence of you having raped this child on that particular night and I return a verdict of GUILTY AS CHARGED.”

[7] The onus on the State is to prove the guilt of an accused person beyond reasonable doubt. There is no onus on an accused person to prove his / her innocence. In my view, the State failed to prove the guilt of the appellant beyond reasonable doubt. It is common cause that there is no gate on the premise and that access can easily be obtained. The complainant does not know who raped her and if she was indeed raped. She did not feel any penetration. The medical evidence tendered does not assist in this regard. It cannot be conclusively said that the complainant was indeed raped. This much is conceded by counsel for the respondent, Adv. Moetaesi.

[8] Adv. Moetaesi submitted that the conviction of rape should be set aside and be replaced with attempted rape. Reliance for this submission is placed on Section 55 of the Sexual Offences and Related Matters Act No 32 of 2007, which reads thus:

"Any person who -

(a)attempts

(b)conspires with any other person; or

(c )aids, abets, induces, incites, instigates, instructs, commands, counsels, or procures another person, to commit a sexual offence in terms of this Act , is guilty of an offence and maybe liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable."

[9] In S v Agliotti 2011 (2) SACR 437 (GST), the following is stated:

“[10]

10.1 Murder is the unlawful and intentional causing of the death of another human being. The elements thereof are – (a) causing the death; (b) of another person; (c) unlawfully; and (d) intentionally. Murder may be caused through an act or omission which causes that death.

10.2 Attempted murder is an attempt to do or commit the above. A person is guilty of attempting to commit a crime if, he/she intending to do so, unlawfully engages in conduct that is not merely preparatory but has also reached at least the commencement of the execution of the intended crime. A person is equally guilty of attempting to commit a crime even though the commission of the crime is impossible, if it would have been possible in the factual circumstances which he/she believes exist or will exist at the relevant time. A person will also be guilty of an attempt even when he/she voluntarily withdraws from its commission after his/her conduct has reached the commencement of the execution of the intended crime. The stage of commencement of execution is also called the stage of consummation. Once this stage is reached, “attempt” as a crime is complete.”

[10] Adv. Moetaesi, submitted that the acts of the appellant were not merely acts of preparation but were indeed acts of consummation. The fact that the appellant chased his wife (the mother of complainant) and stepdaughter away from the house but ordered the complainant and her small siblings to stay with him at the house; he waited until the complainant was asleep in the children’s bedroom, picked her up and carried her to his bedroom; she was awake but pretended to be asleep in order to see what the appellant intended to do with her; he undressed the complainant of her panty; the complainant asked him what he was doing whereupon he replied that he is taking her because her mother is not at home. These facts, so it was contended, were not acts in preparation but were acts of the commencement of the execution of the intended rape. I am in full agreement with this submission by Adv. Moetaesi. The appellant should be found guilty of attempted rape.

[11] Insofar as sentence is concerned, it was contended by Adv. Moetaesi that the sentence of life imprisonment is appropriate under the circumstances of this case. This submission is based on the prescripts of Section 55 of the Sexual Offences and Related Matters Act 32 of 2007 which provides that if a person is convicted of attempt to commit a sexual offence in terms of this Act, (s)he may be liable to the punishment to which a person convicted of actually committing that offence would be liable. I am holding a different view. Each case must be decided on its own merits.

[11] The following personal circumstances of appellant were placed on record:

“He was 49 years of age; unmarried but cohabitating with the mother of the complainant; he was temporary employed as a builder; he was incarcerated for almost a year and a half awaiting the finalization of this case; he attended school up to standard five (5) and had to drop out due to financial constrains; he is suffering from tuberculosis for more than six (6) years; he is a first offender; and liquor played a role;

[12] The following aggravating facts and circumstances are present in this case: The appellant attempted to rape a young child, his own child. This act on the part of the appellant seem to have been planned as the appellant chased away the mother and the older sibling so that he can have the complainant all to himself. The complainant was attending a special (mental) school. This, the appellant must have been aware of since he is the father. The complainant was stigmatized because when she told the teachers what happened to her, she was told to stop coming to school. Appellant showed no remorse. Complainant is still hurt. She told the probation officer that if she can see her father, she would kill him. In my view, an appropriate sentence will be a term of five (5) years imprisonment.

 

Order

[13] Consequently, the following order is made:

(i) The appeal against conviction and sentence is upheld.

(ii) The conviction of rape is set aside and substituted with the following:

“Guilty of attempted rape.”

(iii) The sentence of life imprisonment is set aside and is substituted with the following sentence:

“Five (5) years imprisonment.”

 

 

___________________

R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

I agree

 

 

___________________

GUTTA J

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

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