Raleting v S (A69/2021) [2021] ZAFSHC 198 (14 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 Magistrates: YES/NO

Appeal no: A69/2021

In the matter between:

THABO

JOB

RALETING

Appellant

and

THE STATE Respondent

CORAM: Opperman, J et Page,

AJ

HEARD ON: 30 August 2021

DELIVERED ON: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII on 14 September 2021. The date and time for hand-down is deemed to be 14 September 2021 at 15h00.

JUDGMENT BY: Opperman,

J

I INTRODUCTION

[1] The appellant enjoys an automatic right to appeal in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 (CPA). The appeal lies against conviction and sentence.

[2] He was sentenced to life imprisonment on 28 October 2019 in terms of section 51(1) of the Criminal Law Amendment Act 105 of 1997 after conviction on the contravention section 3 read with sections 1, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (SORMA) and section 51(1) of the Criminal Law Amendment Act 105 of 1997. No order was made in terms of section 103 of the Firearms and Ammunition Control Act 60 of 2000. It was ordered in terms of section 50(1)(a)(i) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 that the appellant’s name be included in the register for sexual offenders.

[3] The case turns on the alleged rape of a 12-year-old girl.[1] The case demands, foremost, a depiction of the law so as to create a foundation and atmosphere on which judgement must be based.

II

THE FUNDAMENTAL PRINCIPLES IN LAW

[4] The fundamental principle on the evaluation of evidence on appeal is that an appeal court is not inclined to disturb findings by the trial court on the evaluation of the evidence. The advantage of seeing and hearing the witnesses is difficult to surpass.

[5] The Supreme Court of Appeal reiterated this stance in its judgment on 31 July 2020 in AM and another v MEC Health, Western Cape (1258/2018) [2020] ZASCA 89:

Such findings are only overturned if there is a clear misdirection or the trial court’s findings are clearly erroneous. That has consistently been the approach of this court and the Constitutional Court as reflected recently in the following passage from ST v CT:

‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles outlined in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham Nursing Home:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judges, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.” (Accentuation added)

[6] The same was law seventy-two years ago; and it is still true in the constitutional epoch. If there was no misdirection of facts by the trial court, the point of departure is that its conclusion was correct. The general principles according to which a court of appeal should consider the case are set out in R v Dhlumayo 1948 (2) SA 677 (A). The court of appeal must bear in mind that the trial court saw the witnesses in person and could assess their demeanour.

[7] The court of appeal will only reject the trial court’s assessment of the evidence if it is convinced that the assessment is wrong. If the court is in doubt, the trial court’s judgment must remain in place (S v Robinson 1968 (1) SA 666 (A) at 675H).

[8] Courts of appeal have greater liberty to disturb findings of a court a quo when dealing with inferences and probabilities (Minister of Safety and Security v Craig 2011 (1) SACR 469 (SCA) at [58]). In casu the evidence is of a direct nature.

[9] The court of appeal does not zealously look for points upon which to contradict the trial court’s conclusions and the fact that something has not been mentioned does not necessarily mean that it has been overlooked.

[10] The case for the State is largely reliant on the evidence of a single child witness.

1. In S v Stevens (417/03) [2004] ZASCA 70; [2005] 1 All SA 1 (SCA) (2 September 2004) the Supreme Court of Appeal declared the law on single witnesses:

[1] Courts in civil or criminal cases faced with the legitimate complaints of persons who are victims of sexually inappropriate behaviour are obliged in terms of the Constitution to respond in a manner that affords the appropriate redress and protection. Vulnerable sections of the community, who often fall prey to such behaviour, are entitled to expect no less from the judiciary. However, in considering whether or not claims are justified, care should be taken to ensure that evidentiary rules and procedural safeguards are properly applied and adhered to.

[17] As indicated above, each of the complainants was a single witness in respect of the alleged indecent assault upon her. In terms of s 208 of the Criminal Procedure Act, an accused can be convicted of any offence on the single evidence of any competent witness. It is, however, a well-established judicial practice that the evidence of a single witness should be approached with caution, his or her merits as a witness being weighed against factors which militate against his or her credibility (see, for example, S v Webber 1971 (3) SA 754 (A) at 758G-H). The correct approach to the application of this so-called ‘cautionary rule’ was set out by Diemont JA in S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G as follows:

‘There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber. . .). The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in 1932 [in R v Mokoena 1932 OPD 79 at 80] may be a guide to a right decision but it does not mean “that the appeal must succeed if any criticism, however slender, of the witnesses’ evidence were well-founded” (per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569.) It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.’

2. The adjudication of a child witness demands the proverbial Wisdom of Solomon and the judgement must be given with circumspection and anxious care. A court must articulate the warning of care and the need for caution and with reference to the circumstances of the case. A court must examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material aspects. Although corroboration is not a prerequisite for a conviction, a court will in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt. In the absence of corroboration, a court will look for some feature in the evidence which gives the single child witness enough veracity to reduce the risk of mistaken reliance.[2]

3. The cautionary rule in sexual assault cases is irrational, outdated and archaic. Minor children testified in the case of Woji v Santam Insurance Company (Pty) Ltd 1981 (1) 1020 (A). The circumstances of the Woji-case were similar to the matter in hand. Two minor children testified years after the fact.

DIEMONT JA: This is an unusual and interesting case. It is unusual in that the only two eye-witnesses are two small boys testifying to an incident which had happened five years before the trial; it is interesting in that it raises the question of the weight to be given to the testimony of children in a civil action.

Despite his youth - or perhaps because of his youth - Sibonde's evidence was clear, simple and straightforward.

The judgment continued and stated that the question which the trial court must ask itself is whether the young witness' evidence is trustworthy.

1. Trustworthiness depends on factors such as the child's power of observation, his power of recollection, and his power of narration on the specific matter.

2. In each instance the capacity of the particular child is to be investigated.

3. His capacity of observation will depend on whether he appears intelligent enough to observe.

4. Whether he has the capacity of recollection will depend again on whether he has sufficient years of discretion to remember what occurs while the capacity of narration or communication raises the question whether the child has the capacity to understand the questions put and to frame and express intelligent answers.

5. There are other factors as well which the court will take into account in assessing the child's trustworthiness in the witness-box. Does he appear to be honest - is there a consciousness of the duty to speak the truth?

6. Then also the nature of the evidence given by the child may be of a simple kind and may relate to a subject-matter clearly within the field of its understanding and interest and the circumstances may be such as practically to exclude the risks arising from suggestibility.

7. At the same time the danger of believing a child where evidence stands alone must not be underrated. It is well known, however, that children often have a vivid memory of an unusual or exciting incident. A motor accident, for instance, is an occurrence that might well arrest the attention of a child, more particularly if he were directly or indirectly involved and that it would leave a clear picture on his memory would not be surprising.

III THE DISPUTE

[11] It is not in dispute that the 12-year-old complainant was raped. The identity of the perpetrator is the issue. It is trite that the incident occurred in 2016 whilst the complainant resided with her grandparents. The court a quo correctly summarised that:

The accused pleaded not guilty to the charge and offered a plea explanation that during 2016 he was very sick and had to be taken care of by his then girlfriend who is now untraceable, and in essence denied all the allegations against him.

[12] The grounds of appeal are:

1. The court erred in finding that the State proved its case beyond reasonable doubt due to inherent material contradictions in the State’s case.

2. The court erred in rejecting the evidence of the appellant and accepting the evidence of the State. The evidence of the State witnesses corroborated the evidence of the appellant in certain aspects. The appellant’s evidence indicate that he was very sick during the commission of the crime. The State’s witnesses corroborated that the appellant was in fact staying with a lady.

3. The court erred by finding that the appellant was not sick during the commission of the offence.

4. In her Heads of Argument Counsel for the appellant criticized the fact that the complainant kept on going back to the house of the appellant notwithstanding realising that she may be raped. The complainant explained the issue as follows:

He called me and every time he called me, he told me that he is going to kill me if I mentioned this to anyone or if I do not do as he tells me to.

This brings the judgment to the evidence.

IV THE WITNESSES

AND THEIR EVIDENCE

The case for the accused

[13] The accused testified and presented a medical certificate in an attempt to booster his defence. He alleged that in 2016 he was gravely ill and was diagnosed with tuberculosis. He had also contracted the human immunodeficiency virus. He was treated at the local MUCPP clinic and exhibit D was handed in to confirm this. His version is that he was weak to the extent that he was unable to walk properly and was confined to his house. He wanted for the court to believe that he only recovered in 2017. The certificate stated that he was healed six months after September 2015 and was healed by March 2016.

[14] It is his case that he knew the complainant as a child residing in the same street and that is the sum total of his connection with her. He maintained that he does not know the family very well despite him having been in a romantic relationship with the sister of the grandmother of the complainant. He denied that he frequently visited the family’s home or ever built a wardrobe at the grandparent’s place. He disputed a friendship with the grandparents.

[15] The version of the accused himself and the testimony of the witnesses for the State destroyed his defence.

1. Upon careful study of the medical certificate dated the 7th of June 2019, it is shown that the accused was not ill to the extent he avers. His health issues would have started in September 2015 and the tuberculosis was treated and would have persisted for six months. He had been cured thereafter. At least by March 2016 he had fully recovered. The medical certificate is silent on his other symptoms and state of health.

2. The state witnesses, adamant and in corroboration of each other, showed that the appellant was not ill to the extent that, at the time of the incident, he could not walk.

3. His alibi that his girlfriend nursed him and could corroborate his evidence faded into obscurity when she could not be traced and if the evidence contained in Exhibit D is regarded. Although there is no onus on the accused to prove his innocence the author of the medical certificate and the individual that treated him could have easily corroborated his defence. His medical record would have recorded his condition; that he could not walk and when the condition existed. It is clear that the author did not want to commit to the allegations of the appellant in the certificate and the fact that the author was not called to testify speaks volumes.

4. The appellant’s feeble attempt to distance himself from a family that regarded him, beyond doubt, as a close family friend tarnished the veracity of his evidence substantially and supports the inference that the medical evidence does not and could not support his version. They knew him well and knew for a fact that he was not as ill as he contended. They even doubted the existence of a girlfriend. They did not and must have seen a lady at his home that resided there from 2015 until 2017. If so and for that long a period and the fact that they lived in the same street and were friends; they would have known.

5. The manner in which the evidence of close friendship was contested is significant. It only came to light in his evidence. The fact that he would deny that he built a cupboard for the grandparents is preposterous.

6. The above is indicative of a very weak attempt to distance him from the family to create doubt with the court.

7. The question to ask is why would the complainant choose the appellant to falsely implicate. Out of all the men in the township he was pointed out to be the culprit. There existed no animosity or bias towards the appellant and none was reflected in the evidence of the witnesses. The probabilities founded on the staunch evidence of the witnesses for the State and the frail defence of the appellant brings his case to naught.

8. What stands out in the testimony of the appellant is that he adapted his version. The court described it as follows:

This leads me to conclude that his version is not only unreasonable but also unreliable if it is so easily changed or adjusted. It is more probable that the accused used his existing relationship with the complainant to call her into his yard under the auspices of purchasing cool drink on his behalf. That it was due to the familiar relationship with each other that caused her not only to enter his yard but also his house wherein she was eventually raped more than once. It is also more probable that the threat of death and his close proximity to her residence made the complainant believe that he will be able to execute his threat of killing her as he had freedom of movement at her residence due to his close relationship with her grandparents.

The case for the State

[16] The complainant, her maternal aunt and her cousin testified.

1. They were well acquainted with the appellant. He lived in close proximity to the grandparents of the complainant. The complainant resided with the grandparents at the time of the alleged rape.

2. The complainant in her evidence testified that when she was in grade 7 in 2016 the incidents occurred over a period of between two to three weeks. Reading of the record shows that her version is detailed and that the manner in which the incident came to light give credence to her evidence. Rape cases are not reported as the unenlightened public often perceives and demands. To a child of 12-years-old it is not only a traumatic and almost unreal experience; it is also embarrassing and one that instigates fear. If the perpetrator has the ability and opportunity to rape, he will also have the ability and opportunity to kill. He has already committed the unthinkable; nothing will prevent him from going further.

3. She did try to report but her courage failed. She did it anonymously when she completed the form at school and tried to do so in confidence when she told her cousin. This is the reality of the manner in which many rape cases unfold before courts and in life. It is a private and disgusting experience that creates confusions with adults what to say in the mind of a 12-year-old girl at the threshold of the confusion that puberty brings.

4. The appellant called her into his home under the pretences of him going to send her to the shop. He raped her and threatened her afterwards that he would kill her if she tells anybody and at each occasion. This also induced the subsequent rapes.

5. She reported the incident to her cousin when they were on their way to the shop. She was so scared that she paid her cousin not to report the incident.

6. After she moved to Soweto the aunt saw a document wherein the complainant had written on a questionnaire that she was raped. Again, in fear and anguish, she denied the rape and even tore the document. The aunt accepted her explanation and did not take the matter further.

7. The rape came to light when the complainant suffered from involuntary urination or uncontrolled leakage of urine. She reported the incident to her grandparents who reported it to the mother.

8. The medical report that followed on a forensic examination three years after the fact did not rule out rape of the minor.

9. The evaluation of the court a quo is exactly right when she found that the manner in which the case unfolded and the reports occurred indicates veracity. The detail in the complainant’s evidence is commendable; it could not be fabricated by any stretch of the imagination.

I thus find her testimony to be reliable in all material aspects as it is clear that such intricate detail provided could never stem from her imagination but instead stems from actual experience, and that I find that she is a credible witness.

10. The evidence of the aunt and the cousin corroborated the evidence in all material aspects and where it overlapped. There was not a hint of conspiracy or bias.

Conclusion

[17] An independent reading of the record combined with the findings and rationale of the trial court directs to the fact that the outcome a quo cannot and may not be faulted. The grounds of appeal are devoid of substance if the mosaic of evidence is regarded. The contradictions between the witnesses for the State as pointed out in the Heads of Argument of the appellant, are of negligible value and not material to the ultimate findings of the trial court. The court applied her mind with the utmost caution when she evaluated the evidence of the complainant.

V THE SENTENCE

[18] The sentence is in compliance to the decree in the prescribed Minimum Sentences Law as inscribed in the Criminal Law Amendment Act 105 of 1997.

[19] The appellant had sexual intercourse with a 12-year-old girl on more than one occasion. She forms part of the most vulnerable in society.

[20] Terblance[3] aptly stated as follows:

It is regularly stated that balance is an important consideration in sentencing. Balance, in this context, has been said to mean that the trial court should consider all the relevant facts, factors and circumstances evenly, and strive for the attainment of all the purposes of punishment.

As long as balance is understood in these terms there is little objection to its use. This is not, however, balance in the ordinary sense of the word. The seriousness of the crime may totally outweigh the mitigating factors and the personal factors of the offender. This cannot amount to balance, since the scales would be heavily weighed against the offender. It would therefore be more accurate to state, as in S v De Kock, that the three factors of the Zinn triad have to be considered in conjunction with one another and that each should be afforded a certain weight depending on the facts of the case.

[21] I must add it is here about the young victim; the triad must be squared and that is apart from the personal circumstances of the appellant, the seriousness of the crime and the interest of society. The brave girl that was put through the trauma of the trial and stigma demands special mention.

[22] The appellant was a first offender at the age of 58. He is unmarried and has a child of 4 years old. The appellant at the time of sentencing did not know the whereabouts of his child. Before his arrest he worked as a builder. Although he was initially on bail, he evaded his trial and was incarcerated from August in the year he was sentenced. He was sentenced in October 2019. The appellant disclosed to the court that he is HIV positive and on medication for this.

[23] The personal circumstances of the appellant fade into the background when the seriousness of the crime and the circumstances in which it was perpetrated are regarded. Nothing directs to compelling and substantial circumstances being present. The crimes where carefully thought out and planned and the intimidation of the complainant afterwards speaks volumes. The consequences were grave. The complainant suffered physically and mentally. The sentence is in order and this court shall not interfere with it.

VI ORDER

The appeal against the conviction and sentence is dismissed.

M. OPPERMAN, J

I concur

C PAGE, AJ

APPEARANCES

On behalf of Appellant Advocate V Abrahams

Legal Aid South Africa

Bloemfontein

On behalf of Respondent Advocate TL McPherson

Office of the Director Public Prosecutions: Free State

[1] Section 1 of SORMA: “child” means a person under the age of 18 years and “children” has a corresponding meaning; [Definition of “child” substituted by s. 1 of Act No. 5 of 2015.]

[2] Respondents’ Heads of Argument at paragraph 3.5. with reference to S v MG 2010 (2) SACR 69 (SCA).

[3] A Guide to Sentencing in South Africa, Last Updated: 2016 - Third Edition at Chapter 6 at 5, https://www.mylexisnexis.co.za/Index.aspx on 18 January 2021.