S v Suleiman
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mangcu-Lockwood J |
| Judgment Date | 15 August 2023 |
| Citation | 2023 JDR 3143 (WCC) |
| Docket Number | A45/2023 |
Mangcu-Lockwood J:
A. INTRODUCTION
This is an appeal in terms of section 309 (1)(a) of the Criminal Procedure Act 51 of 1977 (“CPA”) against both conviction and sentence of life imprisonment meted out by the Wynberg Regional Court against the appellant in respect of the rape of a 14 year-old minor boy (count 3). In fact, the appellant was also convicted and sentenced for three other counts, being two counts of sexual assault in respect of the same 14 year-old minor boy (counts 1
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and 2), and attempt to commit a sexual offence in respect of another minor male of 12 years (count 4). The appellant was sentenced to direct imprisonment on all four counts as follows: 12 months in respect of count 1; five years in respect of count 2; life imprisonment in respect of count 3; and seven years in respect of count 4. All the sentences were to run concurrently in terms of Section 280(2) of the CPA. The appellant was automatically rendered unfit to possess a firearm, and his name was added to Part B of the National Child Protection Register and in the National Register for Sex Offenders.
As already mentioned, this appeal only concerns the conviction and sentence in respect of count 3 since no leave to appeal was lodged in respect of the other convictions and sentences. The appeal was lodged out of time, and the appellant brought an application for condonation, which was not opposed. After considering the application for condonation, this Court granted it.
The charge in respect of count 3 was that on 5 January 2020 in Seawinds, which is in the District of Wynberg, the appellant unlawfully and intentionally committed an act of sexual penetration with the 14 year-old complainant by inserting his genital organ into the anus of the complainant without the consent of the complainant and thus raped him. The appellant was charged for contravening section 3 read with sections 1, 56(1), 56A, 50(2)(a), 50(2)(b), 57, 58, 59, 60, 61, and 68 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Sexual Offences Act”); read with the provisions of sections 94, 256, 261 and 281 of the CPA; further read with the provisions of sections 51(1) of the Criminal Law Amendment Act 105 of 1997 (“the CLAA”); and further read with sections 1, 2 and 120 of the Children’s Act 38 of 2005.
B. THE FACTS
The appellant is a learned scholar and teacher at the Islamic school attached to the Seawinds Mosque, as well as the leader of a youth group consisting of some 17 boys, of which the complainant became a member in 2019. The events in this matter took place
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between December 2019 and January 2020, when the youth group was having ten nightly sleepovers at the mosque, in anticipation of Eid.
The complainant’s case against the appellant concerned three incidents, which formed counts 1 to 3. He testified that, during the sleepovers, the appellant insisted that he (the complainant) should always sleep next to him. His evidence was that in December 2019, while he was sleeping next to the appellant, he woke up with his pants off, while the appellant was busy pulling and playing with his penis. He testified that he saw the hands of the appellant as well as the appellant’s face while he was performing this act. He pushed the appellant away, and got up to go to the door, which he tried to open, but it was locked. When the complainant got up the appellant followed him, and once both could see that the door was locked, the appellant instructed the complainant to go back to sleep, which the latter obeyed, although he did not go back to sleep next to the appellant but went and lay on his own, some distance from the appellant. He did not tell anyone about the first incident for fear of shame, and remained at the mosque for the remainder of the sleepovers.
The second incident also occurred during December 2019. On that occasion, the complainant was again sleeping next to the appellant, when the appellant squeezed his (complainant’s) bum and again played with his penis and kissed him. This was during the night, while everyone else was sleeping in the mosque. Again, he did not report this incident.
The third incident is the subject of the third charge against the appellant, and it occurred in the early hours of 5 January 2020. On this occasion, the complainant woke up with his pants and underwear pulled down, while the appellant’s hands were on his bum. The appellant spit in his hand, put the saliva on his (appellant’s) penis and inserted his penis into the anus of the complainant. The complainant pushed him away, got up and went to sit in the corner crying. Although the complainant did not tell anyone about the incident at the mosque, he testified that he could not take it anymore on this occasion, and decided to
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go home to report the incident to his grandfather, who had long ago invited the children in the family to report to him any incident of that nature.
Upon arrival at home, the complainant immediately reported to his grandfather that the appellant had touched him in the wrong places, but did not give details of the various incidents or how it was perpetrated. When the complainant’s mother joined the complainant and grandfather, the complainant reported to his mother that the appellant had touched and raped him, and gave her details of the three different incidents and of the penetration on the third incident.
The complainant’s grandfather immediately went to the mosque to confront the appellant. It was approximately 2pm in the afternoon of 5 January 2020. At the mosque the complainant’s grandfather asked the appellant: “How could you do things like this to the kids?” The appellant’s response was that the kids always play like that, and he did not do anything to the complainant. The appellant’s version, which was put to the grandfather, was that at this point he thought the grandfather had come to confront him about a fight that the complainant had been involved in on the previous night, involving another boy in the youth group. The grandfather disputed this, stating that he knew nothing of the alleged fight. However, he confirmed that he had only confronted the appellant about “what he was doing to the kids” and had not mentioned any sexual conduct.
After the confrontation, the complainant’s grandfather contacted the complainant’s mother to take things further because he could not stomach the detail and left that to his daughter.
The next important event was on 6 January 2020, when the complainant’s mother added the appellant to her WhatsApp and started a conversation with him. Her evidence was that she wanted to “gather evidence” and to hear his side of the story. A copy of the
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WhatsApp conversation between her and the appellant was admitted into evidence, and it included voice notes between the two. I return to the contents of the WhatsApp later.
C. THE APPEAL
In the heads of argument the appellant raised numerous alleged contradictions in the evidence presented on behalf of the complainant, in the following:
The complainant displayed uncertainty about the exact months when the three incidents allegedly took place.
The complainant’s version of the alleged rape incident relayed in the J88 medical form (J88) materially contradicts his evidence in chief.
It is highly improbable for the alleged incidents to have taken place during the fasting period of Ramadan, in the early hours of the morning, when many Muslims were sleeping in close proximity to each other in the mosque.
Leading questions by the prosecutor on material evidence were not objected to by the defence and were permitted by the presiding officer.
It is highly improbable that the complainant was prevented from reporting the first alleged incident, when his home was very close to the mosque.
It is highly improbable that the complainant did not know what to do during the time of the alleged incidents, when he was given instruction by his grandfather to report to him should anyone touch him inappropriately.
The complainant’s report to his mother was not consistent with the complainant’s evidence.
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As regards the J88, no injuries were noted on the genital organs of the complainant; the findings of the forensic nurse did not include or exclude rectal penetration; and the assessment of the forensic nurse, does not confirm any penetration.
It is well to remember the basis on which this Court may interfere with the decision of the Magistrate’s Court. That is only in circumstances where it is established that there was a material misdirection in respect of facts and/or law. [1] In the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong.
At the appeal hearing the appellant’s counsel conceded that the alleged contradictions raised in the heads of argument are not material. Nevertheless, this judgment proceeds to consider them.
It is significant that the evidence led on behalf of the complainant was not disputed in any material respect. The complainant was 16 years old when he gave evidence. His evidence was clear that the incidents occurred in December 2019 and January 2022. There is no demonstrated basis on which it can be concluded that his evidence lacked clarity or was not satisfactory in any material aspect. The detail he gave regarding how the sexual incidents were perpetrated was not seriously challenged.
The complainant’s evidence was also not disputed that, under the care of the...
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