Masina v S (A05/2020) [2021] ZAMPMHC 15 (20 April 2021)

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MIDDELBURG LOCAL SEAT

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

20 April 2021

CASE NO: A05 / 2020

In the matter between:

BONGANI JOHANNES MASINA

APPELLANT

and

THE STATE

RESPONDENT

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by email, and release to SAFLI. The date and time for hand-down is deemed to be 10H00 on 20 April 2021.

Summary:

Criminal Law and Procedure – Appeal against the conviction and sentence – Life imprisonment – Rape of a child. Substantial and compelling circumstances.

Application for leave to appeal when life imprisonment was imposed by a Regional Court – Automatic right to appeal.

Duty on trial court to declare the appellant unsuitable to work with children in terms of section 120 of Act 38 of 2005 (Children’s Act).

Held – Appeal on the conviction and sentence dismissed.

Held further – No need for appellant to apply for leave to appeal.

J U D G M E N T

RATSHIBVUMO AJ:

[1] Introduction:

This is an appeal against the conviction and sentence imposed by the Regional Court sitting in Ermelo, on Mr Masina (the appellant). The appellant stood trial on two charges of rape of DM, a child aged 9 years old and a charge of assault with intent to do grievous bodily harm on TM, who is a mother to DM. He pleaded not guilty to all the charges and following a trial, he was convicted on all the charges. The two counts of rape were taken as one for purposes of sentence and he was sentenced to life imprisonment. On the charge of assault, he was cautioned.

[2] Automatic right to appeal

Despite the provisions of section 309(1)(a) of Act 51 of 1977 (the Criminal Procedure Act), the appellant still brought an application for leave to appeal both the conviction and sentence before the trial court. The trial court granted the application only in respect of the sentence and refused it in respect of the conviction.

[3] Section 309(1)(a) of the Criminal Procedure Act provides:

Subject to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any person convicted of any offence by any lower court (including a person discharged after conviction) may, subject to leave to appeal being granted in terms of section 309B or 309C,

appeal against such conviction and against any resultant sentence or order to the High Court having jurisdiction: Provided that if that person was sentenced to imprisonment for life by a regional court under section 51(1) of the Criminal Law Amendment Act, 1997 (Act 105 of 1997), he or she may note such an appeal without having to apply for leave in terms of section 309B: Provided further that the provisions of section 302(1)(b) shall apply in respect of a person who duly notes an appeal against a conviction, sentence or order as contemplated in section 302(1)(a). [My emphasis].

[4] Section 309(1)(a) was amended by the Judicial Matters Amendment Act 42 of 2013 which came into operation on 22 January 2014. Section 43 of this Act provides for the retrospective application of this provision, meaning this amendment is deemed to have come into operation from 01 April 2010. This means by the time the application for leave to appeal was heard, this provision was in operation for almost 10 years. In this section, the right to appeal is given, it is expressly stated that no leave to appeal is required and the person is directed to exercise that right by simply noting an appeal.[1] Where the appellant applies for leave to appeal for reason of being ignorant of the legal provisions in this regard, it is not expected that the trial court would refuse any such application, as this is a right the accused already has by virtue of the legislation. For this reason, we proceeded to hear the appeal in respect of both the conviction and sentence.

[5] Factual background.

Following is the summary of facts. The appellant resided with DM the complainant and her family comprising of her mother and her brother SM, then aged 22 years old. The appellant was in a love relationship with the complainant’s mother making him to be a father figure to her. It was common cause though that he was not her biological father although she shared a surname with him. DM testified how she went to where the appellant was running a tuck shop with her friends in order to buy snacks. The appellant chased her friends away and made her to pack the chips in the shop. As she was packing, the appellant undressed her and made her to lie down. He then inserted his penis into her vagina and had sexual intercourse with her until he ejaculated. She did not tell anyone about this incident because he had threatened to kill her if she did.

[6] She testified further that he again had sexual intercourse with her on another occasion when the schools had closed but this time it happened in the house they occupied at the time. She was busy sweeping when the appellant undressed her, put her on her bed and had sexual intercourse. He again did not make use of any protection. It was after the second incident that she told her brother and her mother. At the request of her mother, her brother took her to the police station where after they took her to the hospital for medical examination.

[7] The medical report, which was handed in by agreement, reflected that the complainant was observed on 18 February 2018 at 19h30 while the incident was alleged to have taken place on 16 February 2018. Dr. Mokone who observed her noted the following clinical findings:

a) Whitish vaginal discharge.

b) Abrasion between labia major and labia minor.

c) Difficult to visualise hymen properly – no comment.

d) Long hair seen on vagina and taken as evidence

[8] Under conclusion, the doctor noted that the finding was in keeping with genital irritation, which is keeping with the history of sexual assault. Unfortunately, not much turned out of the evidence material collected by the doctor in this examination as according to the statement by the forensic analyst, W/O Rambau, from the forensic laboratory, “not enough male DNA was obtained.”

[9] Evidence in support of the charge of assault with the intent to do grievous bodily was that of TM and a medical report. Her evidence was to the effect that she was assaulted by the appellant with a stick following an argument with him in 2017. By the time she was examined, by the doctor in April 2018, only a healed scar could be observed on the right thigh.

[10] The accused’s evidence was a bare denial. He denied having had sexual intercourse with the child or having assaulted her mother. He claimed that the child’s brother, SM, must have influenced her to open the case as he and SM never saw eye to eye on everything. It was common cause that SM and the appellant always had some animosity between them and that about 12 months before his arrest, the appellant called the police accusing SM of stealing his cell phone. The police left without arresting SM. Upon their departure, SM and the appellant remained fighting physically causing injuries to each other.

[11] Following is the abridged version of the grounds upon which the appeal against the conviction is premised. The conviction is attacked in that the accused’s version is probable in that it is reasonably possibly true. It was submitted by the appellant that the fact that there was a rancour between him and SM should have made the trial court to approach the complainant’s evidence with caution. The appellant further argues that there was a material contradiction in the evidence presented by the State which impacts negatively on the credibility of the witnesses who presented it. Whereas the child testified that she gave the first report to her brother SM, her mother testified that the first report was made to her. Lastly, Mr. Mavasa who appears for the appellant expounded a further ground in the heads of argument, namely, that the magistrate erred in not drawing negative inference at the failure by the State to lead the evidence of SM, the complainant’s brother.

[12] Legal principles involved.

In the words of Slomowitz AJ, “whether I subjectively disbelieve (the accused) is not the test. I need not even reject the State case in order to acquit him. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true.”[2] Just as reasoned by Nugent J, it is difficult to see how a defence can possibly be true if at the same time the State's case with which it is irreconcilable is 'completely acceptable and unshaken'.[3]

[13] 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 that 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.[4]

[14] With the above, it is unquestionable that observing the defence version in isolation is a misdirection. The appellant version should be evaluated against the State version as the trial court did. With the medical evidence that was presented, there is no doubt that the child was sexually assaulted. The question that the trial court had to answer was on the identity of the perpetrator. The victim pointed at the appellant. I do not find logic in the child leaving out the real perpetrator to identify someone else. I equally do not find any logic in the child being influenced by a brother while he could not do so around the time they had a physical brawl with the appellant, for the case was opened with the police more than 12 months after this incident.

[15] The fact that the child gave her first report to the brother and also told her mother later is not a contradiction but expansion of her evidence or flipping of the same coin in order to observe the other side. The complainant made it clear that when she told her brother, her mother was not on sight. She could not have known that the brother was told first unless this was conveyed to her.

[16] As for the State’s failure to lead the evidence of SM, both the mother and the child testified that he was no longer residing with them and they do not know where he was. It is therefore clear that such failure was not to hide evidence from the court. It also appears that SM did not give a statement to the police, or if he did, it did not contradict the evidence of the child and her mother. If he did, the defence would have brought it to the attention of the court or the witnesses during cross-examination. There was therefore no basis for the trial court to make an adverse finding based on this aspect. I find no reason to interfere with the trial court’s finding in respect of the conviction.

[17] The sentence.

The appellant submitted that the trial court erred in not finding that his personal circumstances constituted substantial and compelling

circumstances as provided in section 51(3)(a) of Act 105 of 1997, the Criminal Law Amendment Act. It was further submitted on his behalf that failure by the trial court to find that the sentence of life imprisonment was unjust and as such, constituting substantial and compelling circumstances that justify the imposition of a lesser sentence, was a misdirection. The appellant relied on S v Malgas[5] where the Supreme Court of Appeal held that ‘if the sentencing court on consideration of the circumstances of the particular case is satisfied that they 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, it is entitled to impose a lesser sentence.’

[18] The appellant took this approach in recognition of section 51(1) of the Criminal Law Amendment Act which provides,

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 1 of Schedule 2 to imprisonment for life.

Part 1 of Schedule 2 lists inter alia, rape of a person under the age of 16. Section 51(3)(a) provides,

[19] I now turn to consider the appellant’s personal circumstances placed before the trial court. He was 33 years old, single and was a father of two kids aged 10 and 5 years old respectively. These children did not reside with him. He studied up to Grade 4 at school. At the time of his arrest, he worked casually as a builder making about R2000.00 per month. He had been in custody for two years pending the finalization of this trial. Counsel for the appellant steered away from identifying anyone of these circumstances as substantial and compelling to justify the imposition of a lesser sentence than the prescribed sentence of life imprisonment. It is obvious that the reason for this is that there is nothing substantial, let alone compelling.

[20] To approach the circumstances holistically as mooted in S v Malgas[6] puts the appellant in a worse position than he is when his personal circumstances are viewed in isolation. Although the charge sheet reflected that the appellant raped a child aged 10 years, the church’s Blessing Certificate bestowed on the victim on 23 November 2008 reflects that she was born on 02 September 2008. This means the complainant only turned 10 on 02 September 2018. On 16 February 2018, when the second incident took place, this child was still 9 years old. The two charges that the appellant faced each attracted the sentence of life imprisonment because of the age of the victim.

[21] In S v Moyo[7], Opperman AJ (as she then was) dismissed an appeal against life imprisonment on a 40 year old appellant for rape of a 7 year old

victim. Opperman AJ concluded that the courts have a duty to protect children younger than 10 years and that it cannot be business as usual when it comes to their protection.[8] The younger and further the child is from the age of 16, the chances of substantial and compelling circumstances being found become remote and far-fetched. I am therefore unable to find any misdirection by the trial court in respect of the sentence.

[22] Order of suitability to work with children.

Section 120(4) of Act 38 of 2005 (Children’s Act), dealing with “Finding persons unsuitable to work with children” provides,

“4. In criminal proceedings, subject to the provisions of subsection (4A), a person must be deemed unsuitable to work with children-

(a) on conviction of murder, rape, indecent assault or any sexual offence contemplated in the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), assault with the intent to do grievous bodily harm [with regard to a child], where a child is the victim of any such offence, or any attempt to commit any such offence, or possession of child pornography as contemplated in section 24B of the Films and Publications Act, 1996 (Act No. 65 of 1996), or offences in terms of section 8, 9, 10 or 24A(5) of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013); or…”[9] [My emphasis].

[23] No such order was made by the trial court. Failure to make the necessary order must have been an oversight on its part. When it comes to protecting the children from people who have proved that they prey on the young ones, there is just no room for errors. This should be rectified.

[24] In the result the following order is made:

24.1 Appeal against the conviction and sentence is dismissed.

24.2 The appellant is deemed unsuitable to work with children.

TV RATSHIBVUMO

ACTING JUDGE OF THE HIGH COURT

I agree and it is so ordered.

SS MPHAHLELE

JUDGE OF THE HIGH COURT

FOR THE APPELLANT

: MR. MAVASA

INSTRUCTED BY

: LEGAL AID BOARD

MIDDELBURG

FOR THE RESPONDENT

: ADV MF TSHWANE

INTRUSCTED BY

: DIRECTOR OF PUBLIC

PROSECUTIONS MPUMALANGA

JUDGMENT DELIVERED

: 20 APRIL 2021

[1] The Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi 2017 (2) SACR 384 (SCA) para 36.

[2] S v Kubeka 1982 (1) SA 534 (W) at 537F-H.

[3] S v Van der Meyden 1999 (1) SACR 447 (W).

[4] S v Van der Meyden supra at 448F-H; S v Combrink 2012 (1) SACR 93 (SCA) para 15.

[5] 2001 (1) SACR 469 (SCA) para 25.

[6] Supra at para 25.

[7] (A435/2013) [2014] ZAGPJHC 204 (4 April 2014).

[8] See S v Moyo supra para 34.

[9] Subs. (4) substituted by s. 2 of Act 17/2016 w.e.f. 26 January 2018.