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[2016] ZAGPJHC 141
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Mofokeng v S (A273/2015) [2016] ZAGPJHC 141 (7 June 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A273/2015
DATE:
07 JUNE 2016
In
the matter between:
MOFOKENG,
MBONGISENI
............................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
The Appellant was arraigned in the Regional Court, sitting in Soweto
on two counts. The first count was an offence of rape,
read with the
provisions of section 51(1) of the Criminal law Amendment Act, 105 of
1997 (“Criminal Law Amendment Act”).
The second count was
a charge of escaping, namely, a contravention of section 117(a) read
with
Section 1
of the
Correctional Services Act 111 of 1998
.
[2]
The Appellant pleaded guilty to count 2 and not guilty in respect to
count 1. The Appellant enjoyed legal representation. He
was convicted
on both counts and was sentenced to twenty (20) years imprisonment on
count one (1) and three (3) years imprisonment
in respect to count
two (2). The sentence of three (3) years imprisonment on count two
(2) was ordered to run concurrently with
the sentence imposed on
count one (1). The Appellant was also declared unfit to possess an
arm.
[3]
The appeal is directed against the Appellant’s conviction and
sentence imposed on count one (1).
AD CONVICTION
[4]
It is trite law that the onus rests on the State to prove the guilt
of the accused beyond reasonable doubt. If the version of
the
Appellant is reasonably possibly true, he must be acquitted.
[5]
In considering the judgment of the Court
a
quo
,
this court has been mindful that a Court of Appeal is not at liberty
to depart from the trial court’s findings of fact and
credibility, unless they are vitiated by irregularity, or unless an
examination of the record reveals that those findings are patently
wrong.
[1]
[6]
At issue in this appeal, is whether the Appellant raped T S, (the
“complainant”), a seven (7) year old child.
[7]
Counsel for the Appellant submitted that the court
a quo
erred
in finding the Appellant guilty on count one (1) in that;
i.
The Court
a
quo
failed to apply the cautionary rule
that applies to the evidence of a single witness, and that the
complainant was not a satisfactory
witness.
ii.
There were material contradictions as well
as inconsistencies in the State’s case
The Court
a
quo
failed to apply the
cautionary rule
[8] In the
decision of
S v Mahlangu and another
2011 (2) SACR 164
(SCA) the court held that;
“
Section
208
of the
Criminal Procedure Act 51 of 1977
provides that: 'An
accused may be convicted of any offence on the single evidence of any
competent witness.'
The
court can base its finding on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect, or if there is corroboration.”
[9]
The learned Diemont JA in
S v Sauls and Others
1981 (3)
SA 172
(A) held at page 180E-G:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness…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.”
[10] In
R
v Abdoorham
1954 (3) SA 163
(N) it was
decided that;
“
The
Court is entitled to convict on the evidence of a single witness if
it is satisfied beyond reasonable doubt that such evidence
is true.”
[11]
This Court finds that the Court
a quo
was alive to the cautionary rule and found that the complainant’s
evidence was reliable and trustworthy. There is corroboration
for the
complainant’s evidence, in that J M (“Julia”), E D
(“E”), both saw the complainant walking
with difficulty.
The medical evidence also confirmed a sexual assault took place.
[12]
Esther corroborated the complainant by stating that the complainant
was afraid to tell her what had transpired. E testified
that before
the complainant narrated the events to her, she was very emotional
and even asked E if she was going to tell that person.
It is clear to
this Court that this complainant was extremely terrified.
[13]
The Appellants version is one of a complete denial. The Appellant
averred that he had a quarrel with E as he had kicked a ball
injuring
her son and had also slapped her son. As a result of this incident, E
was falsely incriminating him. This court finds
the Court
a quo
correctly rejected the version of the Appellant as false and not
reasonably possibly true. E did not initially know that the
complainant
had been raped. She initially thought the pain to the
complainant’s gynaecological area was caused by a boil. It is
only
after Julia took the complainant to the doctor, that the doctor
informed her that she had been raped. If E had an axe to grind with
the Appellant, she would have immediately accused the Appellant of
rape, prior to the complainant being examined by the doctor.
Had E
wanted to incriminate the accused sooner, she could have laid a much
simpler charge against him than that of rape. There
is also no reason
why J would want to falsely incriminate the Appellant.
[14]
The version of the Appellant stating that the complainant was told
what to come and say in court is highly unlikely. This complainant
was very clear about the sexual intercourse that transpired. She
maintained this version during cross-examination. A child of seven
(7) years cannot vividly explain the sexual acts that transpired,
unless she witnessed them herself.
There were material
contradictions as well as inconsistencies in the State’s case
[15]
Counsel for the Appellant stated that the complainant contradicted
herself, in that initially she testified that, she and her
friend
called “T”, were present when the Appellant told her to
undress her pantie. Later, she stated her friend had
already left
when the Appellant ordered her to undress her pantie. These
contradictions, this Court does not find as being of such
a material
nature to disregard the evidence of the complainant as being false.
[16]
Counsel contended further that the complainant’s evidence was
unreliable because initially she stated it was the first
time for her
to see the Appellant on the day of the incident, yet later, it
transpired that she knew him as he was living in her
area.
[17]
It is common cause that the Appellant was the complainant’s
neighbour. The complainant remembers the day of this incident
vividly. She remembers her friend “T” was present, and
she remembers what she herself was wearing. Although she stated
that
it was the first time for her to see the Appellant, it is common
cause that the Appellant played soccer with her brothers.
The fact
that the Appellant was residing in that neighbourhood for only three
(3) weeks prior to this incident, makes it probable
that the
complainant had never spoken to him before. She knew his name was
“Coach” as her brothers played soccer with
him.
[18]
No clarity was sought from the prosecutor as to what the complainant
meant when she said “
It
was the first time to see him”.
It could mean it was the first time for her to speak to the
Appellant, or the first time to see him. The former seems more
probable,
as Esther confirmed that the Appellant confirmed he would
see the children on a daily basis. He knew “
S
[complainant’s brother]
and
T and T’s mother”
.
[2]
[my emphasis].
[19]
Counsel contended that if the complainant was raped on the 5
th
of July 2005, it was impossible that the “
rotten
meat”
smell could already have
been detected at the time that E came back from the hospital,
because, this is inconsistent with the doctor’s
evidence which
stated, that a sexually transmitted disease would take seven (7) days
to manifest. The complainant testified
that when she got home,
J informed E that she had a boil and she was taken to the doctor.
From the evidence of J, this was not
on the 5
th
of July but on the 9
th
of July. The doctor confirmed he examined the complainant on the 9
th
.
The doctor accordingly saw her four (4) days after the alleged
incident.
Whether this incident happened
four (4) days or more before the doctor examined her, the fact
remains that the doctor found that
this complainant had contracted a
sexually transmitted disease which caused the discharge and the foul
smell. The absence of a
hymen further accentuated the fact that the
complainant had been raped.
[20]
This Court cannot fault this seven (7) year old complainant who was
trying to remember the dates with clarity. It is natural
for a child
of such a young age to mix up the dates. It is possible that the
Appellant could have had sexual intercourse with her
before the 5
th
of July 2005. Counsel for the Appellant argued that there were no
fresh tears. This fact in itself, corroborates the possibility
that
this incident must have happened a lot earlier than the 5
th
of July.
[21]
After a thorough reading of this record, this Court has no doubt as
to the correctness of the Court
a quo’s
factual findings. I can find no misdirection which warrants this
Court disturbing the findings of fact or credibility that were
made
by the court
a quo
.
The State proved the guilt of the Appellant beyond reasonable doubt,
and the court
a quo
correctly rejected the version of the Appellant as not reasonably
possibly true.
AD SENTENCE
[22]
It is trite that in an appeal against sentence, the Court of Appeal
should be guided by the principle that punishment is pre-eminently
a
matter for the discretion of the trial court and the Court of Appeal
should be careful not to erode that discretion.
[23] A sentence imposed by a
lower court should only be altered if;
I.
An irregularity took place during the trial or sentencing stage.
ii. The trial
court misdirected itself in respect to the imposition of the
sentence.
iii. The
sentence imposed by the trial court could be described as
disturbingly or
Shockingly
inappropriate.
[24]
The trial court should be allowed to exercise its discretion in the
imposition of sentence within reasonable bounds.
[25] As was stated in the
decision of
S v Malgas
2001 (1) SACR 496
SCA;
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it was the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would usurp the sentencing of the trial court.”
[26] In the
case of
S v Pillay
1977 (4) SA 531
(A) at page 535 E-G, the court held that;
“
..the
essential inquiry in an appeal against sentence, …is…whether
the court in imposing it, exercised its discretion
properly and
judicially, a mere misdirection is not by itself sufficient to
entitle the Appeal Court to interfere with the sentence;
it must be
of such a nature, degree, or seriousness that it shows, directly or
inferentially, that the court did not exercise its
discretion at all
or exercised it improperly or unreasonably.”
[27]
In
S v Salzwedel
and other
1999 (2) SACR 586
(SCA) at 588a-b, the Supreme Court of
Appeal stated that an Appeal Court can only interfere with a sentence
of a trial court in
a case where the sentence imposed was
disturbingly inappropriate.
[28] The
following aggravating factors are present;
i.
The Appellant maintains he is innocent and
shows no signs of remorse.
ii.
The complainant was very young when this
happened and she was threatened that
she
would be killed if she told anyone.
iii.During
the interview with the probation officer the complainant appeared
withdrawn
and the probation officer
concluded that she was emotionally unstable. The
complainant’s
grandmother also confirmed that she became withdrawn after this rape
occurred. She would be afraid to sleep
at night. According to the
probation
officer
this child has been physically, emotionally and psychologically
traumatised by
the
incident and has not healed. Her self-esteem is poor.
iv.The
Appellant abused the trust the complainant had in him. It is clear
that a child of
this
age will not forget this incident. It will affect her in future
years.
v.The
medical report shows that the fossa navicularis was inflamed and
swollen.
There
were hymenal remants and signs of a long standing chronic infection
extending
perianally. The complainant had also contracted a sexually
transmitted
disease.
[29] The personal circumstances
of the Appellant are the following;
i.
He is a first offender and relatively young
of age. He was nineteen (19) when he
committed
the offence.
ii.
He is the third child in a family of three
children. His mother passed away and
although
he was raised by his grandmother, she too has passed away. He never
knew his father.
iii.
He has no scholastic qualifications as he
left school whilst he was doing grade
nine.
iv.He
was doing part-time work in New Castle prior to relocating to
Johannesburg in
June
2005, where he stayed with his brother. He secured a part-time job at
China
City, earning R250-00 a week.
v.He
is single with no dependants.
[30]
The charge of rape falls in the category of offences listed in
Part I
of Schedule 2 of the
Criminal
law Amendment Act. A minimum sentence of life imprisonment is
prescribed
for
a first offender.
[31]
In
S v Ndlovu
2003 (1) SACR 331
(SCA) Mpati J at paragraph [12] stated that;
“…
it is implicit in these
observations that where the State intends to rely upon the
sentencing regime created by the Act a fair trial
will generally demand that its intention
pertinently
be brought to the attention of the accused at the outset of the
trial, if not in
the charge-sheet then in
some other form, so that the accused is placed in a position to
appreciate properly in good time the charge that
he faces as well as its possible
consequences
…”
[32]
In the case of S v Makatu
2006 (2) SACR 582
(SCA) paragraph 3 and 7
the learned
Lewis JA stated that;
“
As a general rule, where the State charges
an accused with an offence governed by
section
51 (1) of the Act,…it should state this in the indictment…an
accused faced with
life imprisonment…must
from the outset know what the implications and consequences
of the charge are”.
[33]
Even though the Court
a quo
failed to bring the provisions of this Criminal Law
Amendment
Act to the attention of the Appellant at the beginning of the trial,
the charge
sheet contained the provisions
of section 51 (1) of the Criminal law Amendment Act. In
addition it is clear that the attorney
representing the Appellant was aware of the
minimum
prescribed sentence applicable, as he addressed the Court
a
quo,
requesting
that
substantial and compelling circumstances be found in order to impose
a lesser
sentence than that prescribed.
Accordingly, this Court cannot find any prejudice to the
Appellant.
[34]
The substantial and compelling circumstances alluded to by the
attorney representing
the Appellant, were
that he was young when he committed this offence. He was a
first offender and the complainant’s
performance at school was not affected in that she
was
coping well. In addition, no evidence was led which indicated that
there was
serious or physical injuries
sustained by the complainant, or that there was any
psychological damage caused.
[35]
Although the Appellant was young when the offence was committed, he
was an adult
and has to take
responsibility for his actions. In my view, an appropriate sentence
must
still be one of a long term of
imprisonment.
[36]
The Court
a quo
was at liberty to invoke the sentencing regime
created by the Criminal
Law
Amendment Act. In the present case, the Court
a
quo
found substantial and
compelling
circumstances justifying a departure from the prescribed sentence. It
imposed
twenty (20) years instead of life imprisonment.
[37]
The offence for which the Appellant has been found guilty is a
serious offence. Rape
constitutes
a humiliating, degrading and brutal invasion of the privacy, dignity
and
person
of the victim. As stated in the case of
S
v Nkunkuma and others
2014 (2)
SACR
168
(SCA) at paragraph [17];
“
Rape
must rank as the worst invasive and dehumanising violation of human
rights”.
[38]
Rape is a crime that threatens every woman and child, particularly
the poor and the
vulnerable. In this
country it occurs far too frequently and is currently aggravated by
the
grave risk of the transmission of Aids.
The Legislature and community at large,
correctly
expects our courts to punish rapists severely.
[39]
In the premises, it cannot be said that the sentence imposed is
disturbingly
inappropriate.
[40]
This Court finds no misdirection on the part of the Court
a
quo
. The sentence imposed
does
not induce a sense of shock and neither is it out of proportion to
the gravity of the
offence.
[41]
In the result, having considered all the relevant factors and the
purpose of punishment I consider twenty (20) years imprisonment
to be
an appropriate sentence.
[42] In the premises I propose
the following order;
The appeal is
dismissed both in respect to conviction and sentence.
D DOSIO
ACTING
JUDGE OF THE HIGH COURT
I agree,
and it is so ordered.
S.E. WEINER
JUDGE OF
THE HIGH COURT
Appearances:
On behalf of the Appellant :
Adv. D.C MKHWANAZI
Instructed by : Legal Aid
South Africa
Corner Fox
and Sauer Street
Johannesburg
On behalf of the Respondent :
Adv. M.T Ntlakaza
Instructed by : Director of
Public Prosecutions
Johannesburg
Date Heard : 7 June 2016
Handed down
Judgment : 7 June 2016
[1]
See
S
v Francis
1991 (1) SACR 198
(A) at 198 J – 199A and
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645 E-F
[2]
Page
89 of the transcript line 22 to 23