Kleynhans v S (A48/2021) [2021] ZAFSHC 210 (9 September 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrate: YES/NO

APPEAL NUMBER A48/2021

n the appeal of:

JOHANNES

FRANCOIS SCHALK KLEYNHANS Appellant

and

THE

STATE Respondent

CORAM: MATHEBULA, J et I VAN RHYN, AJ

HEARD ON: 16 AUGUST 2021

DELIVERED: 9 SEPTEMBER 202

JUDGMENT BY: I VAN RHYN, AJ

INTRODUCTION.

[1] The appellant was arraigned and convicted in the Regional Court, Bloemfontein on two counts of rape (for contravening section 3) read with numerous sections of the Criminal Law (Sexual Offences and Related Matters), Amendment Act, Act 32 of 2007 ("the Sexual Offences Act"), read with sections 94, 256, and 261 of the Criminal Procedure Act 51 of 1977 ("the Act"), further read with the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997 ("the Minimum Sentence Act"),furthermore, read with sections 1 and 2 and 120 of the Children’s Act, Act 38 of 2005. The appellant was furthermore convicted on two counts of contravening section 5(1) (sexually violate a minor) and two counts of contravening section 21(1) (compelling or causing a minor to watch the commission of a sexual act) of the Sexual Offences Act.

[2] Appellant, who was duly represented, pleaded not guilty to the charges against him. The trial commenced on 29 August 2014. On 30 January 2017 he was found guilty and sentenced to life imprisonment for both counts of rape, and 5 years imprisonment on each of the contraventions relating to sections 5(1) and 21(1) of the Sexual Offences Act. The appellant enjoys an automatic right of appeal and noted an appeal against both the conviction and the sentence imposed by the court a quo.

[3] The grounds upon which the appellant’s appeal against the conviction rests are that:

(a) The court a quo erred in accepting the State’s version despite the absence of any DNA comparison linking the appellant to the said crimes;

(b) The court a quo erred in accepting the State’s version despite the J88 medico-legal examination reports not proving penetration; and

(c) The court a quo erred in accepting the Sate’s version despite material contradictions in the evidence presented at the trial.

[4] The grounds upon which the appellant’s appeal against the sentence rests are that:

(a) The sentence imposed is both harsh and inappropriate, as the court a quo did not find any substantial and compelling circumstances present for the deviation from the prescribed minimum sentences.

(b) The court a quo erred in disregarding the fact that the appellant is a first offender.

[5] The first three counts are in respect of a minor, M[…] B[…] (“M”) who was born on 5 December 1997, and relates to the crimes allegedly committed in the period from 2007 to 2012 at which stage she was between the ages of 9 to 14 years old. At the time of her testimony in court during 2015, she was in Grade 12 and was 17 years old. Counts 4, 5 and 6 are in respect of a minor, J[…] H[…] (“J”) born on 15 December 1997 and relates to the crimes allegedly committed during the period from 2007 to 2012. J was also 17 at the time when she presented her testimony during the trial. She was in Grade 11 at school.

[6] The two complainants are cousins and were born ten days apart. Both their mothers testified during the trial. Their mothers, S[…] B[…] and D[…] H[…] are sisters and the appellant is their younger brother. Thus, the appellant is the complainants’ uncle. A co-accused, the fiancée of the appellant (the “co-accused”) stood trial on counts 3, 4 and 6 as well as other charges. These charges relate to the appellant and the co-accused having sexual intercourse, while compelling or causing the complainants to witness these events and failure to report the rape of the complainants to the police. The co-accused was convicted and sentenced. This appeal only concerns the appellant.

[7] Briefly, the facts relating to the charges are that the appellant, being unemployed for most of the time relevant to these crimes, was residing with his younger sister, D[…] H[…] during 2007 whereafter he relocated to live with his oldest sister, S[…] B[…] from 2007 until 2009. During the end of 2009, beginning of 2010 he met the co-accused and moved in with her. It is evident from the testimony of the state witnesses that both the complainants were brought up in single parent homes. The appellant at times, and most probably due to his availability, often assisted his sisters to care for the complainants, for example by picking them up from school, taking them to events or looking after them while their mothers had to work or attend social commitments. At times one or both complainants stayed over at the appellant and the co-accused’s place of residence at the time when the appellant had found accommodation with her.

[8] The evidence presented during the trial, which spanned more than two years, related to several incidents that occurred at different locations and over a period of approximately 5 years. The complainants were single witnesses pertaining to the incidents which occurred when each of them was alone with the appellant. The appellant denied the allegations made against him and pleaded not guilty to all the charges. The appellant indicated that the complainants’ motives for laying false charges against him, would transpire during the trial. During two of the incidents referred to by the complainants, they were together when the appellant committed the offences. It furthermore occurred that some of the offences were committed when the co-accused participated either when both complainants were involved or only one of them.

[9] Initially the two complainants were unaware of the fact that the other cousin had been subjected to the same process and abuse until the time, most probably during 2008, when the appellant extended his modus operandi to involve both complainants simultaneously. The first incident recounted by M occurred when she was 9 years old. The appellant resided with them in a house in Brandwag, Bloemfontein. During the afternoon and while M was alone in the appellant’s care, he informed her that he was looking for a “secret friend.” He started kissing her and touching her breasts while they were in the kitchen. At the time she had a good relationship with the appellant and saw him as a father figure, her biological father having passed away when she was 8 months old. Soon after the first incident and while they were still residing in Brandwag, the appellant took her to his bedroom where he again kissed her, undressed her and progressed to touch her private parts. With time the sexual acts committed by the appellant evolved from penetration with his finger to penetration with his penis.

[10] The third incident also involved M’s cousin, J. This incident happened when the appellant cared for both the complainants while their mothers were employed at the Bloemfontein Cultural Show. M explained that her mother worked long hours until late at night. The appellant provided alcohol and cigarettes and encouraged the complainants to smoke and consume alcohol. At this stage the complainants were between the ages of 10 and 11 years of age. Both complainants testified how J became intoxicated to such a degree that she vomited and later passed out with the result that she does not have a comprehensive recollection of the extent of the violations executed by the appellant during the particular afternoon. Even though the appellant denies any acts of indecent assault or rape and disputes their evidence that he offered any liquor to the complainants, he testified that they helped themselves to his liquor on the particular day in question. The appellant confirmed the testimony presented by both complainants that J, due to intoxication, vomited on the paving in the yard. The appellant furthermore recalled how he cleaned up the mess by washing the paving down with a hosepipe. This fact was confirmed by M. M testified that she and J then went to the bedroom where the appellant sexually abused both complainants by inserting kitchen spoons with plastic handles into their vaginas.

[11] As to J, her first memory regarding incidents involving sexual advances and acts by the appellant occurred when she was 9 years old. The appellant resided with them, being herself and her mother at Elangeni Flats in Parkweg, Bloemfontein. She testified that her mother was at work and the appellant was caring for her when he introduced her to smoking cigarettes. Initially she refused, but allegedly due to ongoing encouragement by the appellant, she accepted her first cigarette. During this particular afternoon, he told her to go upstairs to the bedroom where he initially licked her private parts. Not only did the appellant touch her breasts and private parts, he continued unabated with acts of penetrating her vaginally with his fingers and/or his penis. Apparently, as a last resort he requested J to masturbate him which she then did.

[12] The third incident recalled by J occurred when she was 13 or 14 years of age. At the time the appellant resided with the co-accused. The appellant proposed that they, J, himself and the co-accused, (his fiancée) swim naked in a swimming pool in the proximity of their place of residence. Both the appellant and the co-accused swam naked while J swam with her panty on. J stayed over at the co-accused and appellant’s place of residence at Van Zyl Street in Universitas, Bloemfontein. Later during the evening, while the three of them sat in the bedroom the appellant attempted to penetrate J with his fingers. The co-accused did not reprimand the appellant in any way, but later due to J’s complaints the he was hurting her, the co-accused told him to stop his conduct.

[13] J’s testimony was to the effect that the appellant requested her permission to sexually violate her. She explained that she did not want the appellant to continue with his unabated attempts, but to avoid upsetting, him she acquiesced. The next incident to which J testified also involved M. It happened at the same residence in Van Zyl Street. The appellant proposed that the two complainants watch while he and the co-accused have sexual intercourse. According to J, she and M sat on a couch in the bedroom while they witnessed the appellant and the co-accused having sexual intercourse on the bed. M also testified about this incident but indicated that she and J were also lying on the same bed, next to the appellant and the co-accused.

[14] J recounted a further incident involving the co-accused and testified how, while the appellant attempted to insert his penis in her vagina, the co-accused encouraged her to continue with the sexual act because even though it might hurt initially, it will become pleasurable if she persisted and allowed the appellant to continue. J furthermore recounted that the appellant had shown her pornographic material. It was alleged that the appellant sexually groomed both complainants. The last incident recalled by M related to acts of sexual violation committed by the appellant when he came to their residence, at that time in Fleurdal, Bloemfontein, to fix a lamp in her bedroom. M, subsequent to the appellant touching her breasts and kissing her, resisted any further attempts by the appellant to proceed with sexual acts and told him that she will not tolerate any further indecent acts perpetrated against her. This was the last time the appellant sexually violated her in any way.

[15] During January 2014 M attended a camp for children convened by members of a church she was frequenting. The children were requested to write any problems that they may struggle with on a piece of paper whereafter they would then throw the piece of paper containing their problems into a campfire. When it was M’s turn to throw her piece of paper into the fire, she started crying. This outburst of emotion was witnessed by a state witness, Mr De Bruyn, who immediately realized that M was experiencing serious difficulties. Subsequent to his enquiries M then wrote him a letter revealing the fact that she was subjected to years of molestation and sexual violations committed by the appellant. Apart from informing the co-accused about the appellant’s acts of violations, M had refrained from making the appellant’s crimes known since the first incident occurred when she was 9 years old. Mr Du Bruyn urged her to report appellant’s behaviour after which M requested an opportunity to first inform her mother of what had happened to her. She initially resisted due to the fact that her own mother also experienced similar violations during childhood. M’s report to her mother resulted in deliberations with Js’ mother regarding the involvement of J. J, after being questioned by her mother, confirmed M’s accusations against the appellant. The initial report made to Mr De Bruyn thus eventually culminated in the prosecution of the appellant and the co-accused.

[16] It is however, not necessary, in my view to recapitulate all the evidence led at the trial apart from the concise summary already mentioned. Section 3 of the Sexual Offences Act defines rape as “an act of sexual penetration, without the consent of (the complainant)”. In terms of the section 1 definitions ‘sexual penetration’ is defined to include under subparagraph (a) “any act which causes penetration to any extent whatsoever by the genital organs of one person into or beyond the genital organs ... of another... and any part of the body of another person. ‘Consent’ is defined in the Act as ‘voluntary or uncoerced agreement’. Section 1 of the Sexual Offences Act defines a child as a person under the age of 18 years or with reference to section 15 and 16, a person 12 years or older but under the age of 16 years. The clear and unequivocal provisions of section 57(1) of the Sexual Offences Act provides that a male or female person under the age of 12 years is incapable of consenting to a sexual act.

[17] During her testimony J recounted that the appellant asked her whether he could perform sexual acts to which she consented. Any evidence indicating that a complainant consented to such conduct is deserving of further analysis. The person giving the consent is a child. The court a quo held that J’s testimony that she admitted to giving permission to the appellant to continue with sexual violating acts upon her, was an indication of her honesty and that she was not fabricating the incidents. The court a quo equated the conduct of the appellant to a clear pattern of sexual grooming. The appellant adapted his modus operandi to suit each of the complaints’ personalities. The inequalities in the relationship between the two complainants and their uncle (the appellant) are of great importance in understanding the construction, nature and scope of the complainants’ apparent consent to any sexual relations. The appellant clearly utilized and manipulated his position of trust and authority over his victims and the complainants’ willing participation or acquiescence to the continuing sexual abuse is therefore understandable.

[18] It is trite that there is no obligation upon an accused person to convince the court of his/her innocence. In S v Van der Meyden[1] the court reflected on the test for establishing an accused’s guilt:

“The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible he might be innocent…These are not separate and independent tests but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward, might be true. The two are inseparable, each being the logical corollary of the other. In which ever form the test is expressed, it must be satisfied upon consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true.”[2]

[19] Mrs Smith, who appeared for the appellant conceded that the absence of DNA linking the appellant to the offences perpetrated against both complainants cannot successfully be raised as a ground for attacking the conviction of the appellant. In any event, the evidence of M was to the effect that the last incidence of sexual contact with the appellant was approximately two years prior to her disclosure of the facts to Mr Du Bruyn. Regarding the absence of medical evidence proving any penetration as a further ground for attacking the conviction of the accused, the evidence presented by Dr J M Coetzee is relevant. During the trial, the J-88 medico legal examinations regarding the two complainants were accepted as evidence and indicated that no injuries were noted. Dr Coetzee explained the effects of estrogenization on the female child’s hymen and indicated that the hymen tissue can grow into spaces or tears and effectively mask old injuries. Furthermore, sexual penetration does not have to include penetration of the hymen to be defined as such.

[20] The court a quo considered Dr Coetzee’s as an expert witness with many years of experience pertaining to cases of rape and sexual violations perpetrated against young girls. In child rape cases the perpetrators are usually very careful not to cause injuries that might lead to prosecution. Her evidence in this regard is substantiated by the testimony presented by both complainants that the appellant usually refrained from further attempts of penetrations when they complained of experiencing pain or being hurt. The trial court was satisfied with Dr Coetzee’s expertise and accepted her findings as undisputed. I am not persuaded of any misdirections in this regard.

[21] The third ground of appeal relates to contradictions in the evidence presented by the state witnesses. Apart from the appellant’s bald statement, no further indication of any specific contradiction was mentioned. Mrs Smith indicated that she was able to find one instance where M and J contradicted each other and it related to the incident that took place when both complainants were watching the appellant and the co-accused having sexual intercourse. While M recounted that they were also lying on the bed with the appellant and the co-accused, J’s testimony was that she and M were seated on a couch in the bedroom while the appellant and the co-accused were lying on the bed. During cross examination J was confronted with the apparent discrepancy pertaining to the specific incident. She indicated that she remembers the couch in the bedroom. She could not recall whether they perhaps moved to the bed. To my mind the contradiction in their testimony is not to such an extent as to cause concern. It is evident that they witnessed the same incident. They obviously had different recollections and perceptions of the traumatic experience. The gist is however that they were present in the room during the particular incident. The court a quo found the discrepancy in their testimonies to be an indication that they did not collude as to what the contents of their evidence during the trial would entail. The court a quo’s finding in this regard cannot be faulted.

[22] It is trite that a court of appeal will rarely interfere with findings of fact of the trial court, including credibility findings with regard to witnesses. In the absence of demonstratable and material misdirection by the trial court, its findings of fact are presumed to be correct, and would be disregarded only if the recorded evidence shows them to be clearly wrong. Mrs. Ferreira, on behalf of the respondent contended that the court a quo, in assessing the evidence, viewed the evidence holistically in order to determine whether the guilt of the appellant is proven beyond reasonable doubt and did not err or misdirect itself in this regard. I agree. The court a quo approached the evidence of the complainants, who were both still minors when they testified, with caution and applied common sense to assess whether they told the truth.

[23] There was overwhelming evidence of sexually inappropriate assaults regularly perpetrated by the appellant in respect of both complainants. The court a quo properly cautioned itself regarding the assessment of the evidence of minor victims and in weighing the complainants’ evidence, was satisfied that their accounts of the events, that spanned numerous events and several years, could be accepted as trustworthy and reliable. Both complainants had provided in-depth details of the molestations as well as clear accounts of the various acts of sexual abuse, where they occurred at several different locations and who participated during each occasion. M clearly indicated that numerous other incidents did in fact occur, but that she does not have a clear recollection of all the facts pertaining to each incident. She refrained from testifying about those incidents of which she was unable to present a credible and trustworthy account.

I am convinced that the appeal against each of the convictions should fail.

SENTENCE.

[24] In his judgment on sentence the court a quo followed the correct approach in considering the imposition of a just sentence and duly considered the nature of the crime, the offender and the interest of society. In S v D[3] Van den Heever JA held as follows in regard to the vulnerability of young children:

“Children are vulnerable to abuse, and the younger they are, the more vulnerable they are. They are usually abused by those who think they can get away with it, and all too often do”

and further: “Appellant’s conduct in my view was sufficiently reprehensible to fall within the category of offences calling for a sentence both reflecting the Court’s strong disapproval and hopefully acting as a deterrent to others minded to satisfy their carnal desires with helpless children”

[25] Over a period of approximately five years, the appellant abused both complainants. The appellant’s behaviour constitutes an abuse of power and trust, when he should have nurtured and protected the complainants while they were growing up. They were innocent children when they were drawn into his web of horrific sexual exploitation and molestation. He engendered in M a sense of fear and self-loathing by playing on her vulnerability by suggesting that she may be taken away from her mother. He blackmailed the complainants by introducing them to the habit of smoking and abusing alcohol, more specifically J, and then threatened them with exposure if they considered reporting his crimes. The appellant manipulated the complainants and their evidence confirmed their feelings of guilt and shame which led to their silence. Cameron JA, in a dissenting judgment, in the matter of S v M[4] held that the failure to appreciate properly how feelings of guilt, complicity, fear and shame in cases such as the present, may entrap a victim could lead to injustice:

“The phenomenon of domestic sexual predation - of which this case, in my view, is a distressful example - requires like any other crime especial understanding, appropriate to its distinct characteristics. The domestic or familial predator’s means are not violence or physical assault; his weapons not the knife or firearm; his means of subordination not the terror of the victim. He exploits the opportunities that intimate engagement offers, and the physical spaces the home affords, to prey upon his victim. And he uses the ties that bind him to her – often both emotional and material – to secure both compliance and concealment.

When the victim is less than half his age, as here, and subject to his influence and authority as an elder, these factors operate with acute force. When she is a child craving affection and attention as the complainant was, her peculiar susceptibility to abuse and exploitation must be appreciated to determine fairly and justly whether all the elements of her account are truthful, even if she failed to denounce him promptly or to remove herself from his proximity thereafter”.[5]

[26] This is not the case of a single rape, but multiple rapes and sexual violations committed within, what should have been, the sanctuary of a family environment. The court a quo took the appellant’s personal circumstances into account in arriving at an appropriate sentence. He was born on 1 November 1976 and was 40 years old at the time of sentencing. The appellant was between the ages of 32 and 37 when the crimes were committed. He was not married but engaged to the co-accused. He obtained a Grade 10 qualification at school and later worked at a family business where he earned R600.00 per month. He has no children of his own. He assisted both his parents but remained financially dependent on the co-accused. The appellant is a first offender.

[27] Both complainants suffered from emotional damage due to the ordeal with the appellant. M’s mother testified about the changes in her daughter’s behaviour and periods of deep depression and unhappiness. The contents of Exhibit “E”, the letter written by M to Mr Du Bruyn is further confirmation of the severe emotional and psychological impact that the exploitation and sexual abuse had on her. During her testimony J provided a significant insight into the effects and trauma caused by the appellant’s behaviour.

[28] The imposition of sentence is pre-eminently a matter within the judicious discretion of a trial court. Courts strive to balance various factors in order to arrive at a sentence that is just. In the careful consideration of the relevant factors, the public interest must be an omnipresent concern. The prescribed sentences for particular crimes were set by the legislature in response to public outcry due to the prevalence of rape and the prolonged impact on the victims. When deviating from these sentences the public interest cannot be ignored due to the risk of confidence in the judicial system being destabilized. The regional magistrate was correct in his assessment that the court should not deviate from imposing the minimum sentence for flimsy or unconvincing reasons as stated in S v Malgas[6] and correctly found that there was no justification for deviation from the prescribed minimum sentence of life imprisonment. The seriousness of the offence and the interests of society far outweighed the personal circumstances of the appellant. In the context of the circumstances of this appeal, the appellant’s moral blameworthiness is of a grave nature. In my view the imposition of the life sentences does not induce a sense of shock nor is it disproportionate particularly having regard to seriousness of the offence and the humiliating, brutal invasion of the dignity of children. The appellant is an extremely dangerous person that is best removed from society for a long period of time. There is no reason to interfere with the sentence imposed.

The appeal ought to be dismissed. I accordingly propose the following order:

ORDER.

1. The appeal is dismissed.

I. VAN RHYN. AJ

I concur and it is so ordered

M.A. MATHEBULA, J

On behalf of the Appellant: ADV. L SMITH

Instructed by:

BLOEMFONTEIN JUSTICE CENTRE

On behalf of the Respondent: ADV. A M FERREIRA

Instructed by: DIRECTOR: PUBLIC PROSECUTIONS,

BLOEMFONTEIN

[1] 1999 (1) SACR 447 (WLD).

[2] At 448 f-i.

[3] 1995 (1) SACR 259 (A) at 260 F-I

[4] 2006 (1) SACR 135 at [204].

[5] Marx v S [2005] 4 All SA 267 (SCA) paras 203-204.

[6] 2001 (2) SACR 469 (SCA).