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[2019] ZAGPJHC 509
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Raphela v S (A61/2019) [2019] ZAGPJHC 509 (3 December 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Review
CASE NO
:
A61/2019
COURT
A QUO
CASE NO
:
43/657/2015
DATE
:
3
rd
December 2019
In
the matter between:
RAPHELA
:
MAROBATHOTA ABRAM
Appellant
-
and -
THE
STATE
Respondent
Coram:
Adams J
et
Ceylon AJ
Heard
on
: 21 October 2019
Delivered:
3 December 2019
Summary:
Criminal law – rape of a minor –
as a single witness, the complainant’s testimony was required
to be satisfactory
in all material respects, or there had to be
adequate corroboration for it – did the State prove appellant’s
guilt
beyond a reasonable doubt
–
Factual
findings of trial court – absent demonstrable, material
misdirections and clearly erroneous findings, an appeal court
is
bound by the trial court’s factual findings
–
discrepancies in the State’s case
–
w
eight
to be attached to defects in State’s case – appeal
dismissed and conviction confirmed.
ORDER
On
appeal from:
The
Protea Regional Court (Regional Magistrate Moleleki sitting as Court
of first instance):
(1)
The appellant’s appeal against his
conviction is dismissed.
(2)
The appellant’s conviction by the
Protea Regional Court and his sentence be and are hereby confirmed.
JUDGMENT
Adams
J (Ceylon AJ concurring):
[1].
This is an appeal by the appellant against
his conviction on a charge of rape of a ten year old minor girl
child. In the court below
the appellant was legally represented and
he had pleaded not guilty. On the 10
th
of December 2013 he was convicted on the charge of rape and sentenced
on the 16
th
of January 2014 to direct imprisonment for a period of twenty years.
This appeal is with the leave of the court
a
quo
, who granted leave to appeal the
conviction but refused the appellant’s application for leave to
appeal his sentence.
[2].
The complainant was ten years old at the
time of the rape and eleven years old when she gave evidence in the
trial court during
October and November 2013. The appeal against
conviction principally turns on the reliability of the evidence of
the complainant
and the evidence of her witnesses as contrasted
against the evidence of the appellant, who denied that he raped the
complainant
as alleged. Put differently, the main issue in this
appeal is whether the state had succeeded in proving beyond a
reasonable doubt
that the appellant was guilty on the charge of rape
of the little girl.
[3].
The conviction of the appellant was based
in essence on the evidence of the complainant, S X, an eleven year
old girl, who was ten
years old at the time of the alleged rape. Her
date of birth is […] 2002. She gave her evidence through and
with the assistance
of an intermediary.
[4].
The presiding Regional Magistrate made a
determination in terms of sections 164 & 165 of the Criminal
Procedure Act 51 of 1977
(‘the CPA’) in order to satisfy
herself that the complainant was sufficiently intelligent to
distinguish between truth
and falsehood. She found that the
complainant understood the difference between the truth and lies and
therefore ruled summarily
that the complainant had the necessary
competency and capacity to give evidence in a court of law. This
finding by the trial court
is not disputed in any way by the
appellant on appeal nor for that matter was it disputed during the
proceedings in the Soweto
Regional Court.
[5].
Thereafter, the complainant commenced with
her evidence. She confirmed that she was at court on the day the
trial commenced to testify
‘in the case involving myself and
Abram’, who she said was a friend of […] and who went by
the nickname of ‘Absa’.
On a direct question during her
examination-in-chief she testified that it was Abram Raphela who
raped her when she was ten years
old. She could not remember on which
day of the week the rape occurred, but she could recall that it was a
school day as she was
supposed to be at school on the day. She
explained however that she was not at school at the time. She was
playing truant, because
she would have been late for school in the
morning and so she had decided not to go to school rather than arrive
there late. She
had left home, dressed for school in her school
uniform, but then diverted and went and sat in a ‘scrap car’
near her
home and this, according to her evidence, is where she was
raped. Before the rape incident happened, she had been ‘hanging
out’ in this abandoned scrap vehicle parked in someone’s
yard.
[6].
At some point whilst she was sitting in the
driver’s seat of the scrap car, or as she put it, ‘hanging
out’, the
accused arrived and got into the car on the left
front passenger side. He then asked her why she had not gone to
school, whereupon
she explained that she would have arrived late at
school and decided instead to ‘bunk’ school. He then
suggested that
they play a game of cards, and she responded that that
would be difficult since he did not have cards. He in turn then
indicated
that he would go to the shop to buy playing cards,
whereafter he alighted from the vehicle and locked the doors. At that
point
during her evidence there was a disjuncture in her testimony
because at that stage the indications were that the complainant was
taking strain and appeared extremely tired, which caused the trial
court to adjourn for the day and to reconvene just more than
a month
later.
[7].
When the trial resumed her evidence
continued. From the record, there appears to be no continuity in her
evidence, because when
she continues her evidence on the second day
of the trial, it does not proceed from where she ended on the
previous occasion. This
was so despite the fact that the State
Prosecutor had attempted to get her to simply continue on from where
they had stopped on
the previous occasion. She continues thus:
‘
He
took me and then he instructed me to go to the back of the motor
vehicle. And then after that he told me to undress myself. I
did not
want to do that and then that is when he undressed me and he took of
my panties. Then thereafter he also took off his underwear.
After
that, that is when he inserted his penis into my vagina. And then
after he had finished doing that, he was on top of me and
then he
closed me with the black tape.’
[8].
The reference to the black tape, the
complainant indicated was to the fact that the appellant closed her
mouth with the black tape.
Thereafter, so her evidence went, ‘he
made an up and down movement on top of me. He was bumping’.
Later on in her evidence,
the complainant also confirmed that she
felt pain when the appellant inserted his penis into her vagina. She
could not scream because
the appellant had taped close her mouth.
After they were done, an unknown male passed by, and this person
enquired from the appellant
as to whether he had done that
(presumably referring to the raping of the complainant) before and
the accused simply ignored this
individual. Thereafter, they got
dressed and the appellant took her home. When they got to her house,
the appellant reported to
her aunt that he found her bunking school
in an abandoned scrap vehicle and the aunt agreed to him taking her
to school, where
he left her in the care of school personnel.
[9].
The evidence of the complainant was
furthermore that at some point after her arrival at school, she told
one J, who seemingly was
a member of the school’s
administration staff, that the person who had brought her to school,
meaning the appellant, had
raped her. She said that she told J in
response to a question by her as to why this person had brought her
to school. This same
J is the one who took her to the Dobsonville
Clinic, where they were instructed to go to the police station, which
they did. From
there they were referred to Discovery for a medical
examination.
[10].
During cross-examination, the complainant
testified, contrary to what she had said in her evidence-in-chief,
that she was in fact
waiting in the scrap car for her sister, who had
gone to the toilet, and on her sister’s return they would have
carried on
to school.
[11].
Under cross-examination she remained
adamant that she had been raped by the appellant. When it was put to
her that the appellant,
when he would give evidence, would deny that
he had raped her, her response was a simple: ‘I am saying it is
the truth.’
The complainant also confirmed under
cross-examination that she initially told J that nothing had
happened. She did this because,
so she testified, she was scared. J,
according to the complainant, is the one who by herself saw that
something was wrong. She
in fact saw ‘some white marks’.
She had only spilled the beans at about 13:00, after having resisted
all morning the
requests by J that she tells her everything. The
complainant also only told J that she had been raped by the appellant
after she
had explained to her (J) that on a previous occasion or
occasions she had been raped by six to nine males, who are known to
her.
Oddly enough, her evidence was that these six to nine thugs also
taped her mouth close before raping her. Towards the end of her
cross-examination she commented as follows when it was again put to
her that the appellant denies that he raped her: ‘Even
the
doctors confirm that … what he did to me … it was the
truth’. Also, when it was suggested to her that it
would have
been impossible for the appellant to rape her because he would have
been seen by passers-by as the vehicle was in plain
sight of members
of the public, her answer was again plain and simple as follows:
‘What I am saying is that he was able to
rape me on that
particular day and at that particular time’.
[12].
On a question by the court, the
complainant, with reference to the white marks on her school pants
which were noticed by J, said
that it was semen. This answer I find a
tad peculiar if regard is had to the age of the complainant. However,
it may very well
be that at age eleven she understood what this was
about.
[13].
The second witness on behalf of the State
was a Ms J M, an administrator at the […] Primary School in
[…] in Soweto,
which was the school attended by the
complainant at the time of the incident in question. She testified
that on the 16
th
of August 2013 at about 10:45 she met the complainant, who had just
been dropped off at the school by the appellant. She (the
complainant) was not in a good space – ‘… she was
frightened and shivering’. J thereupon took her to a
room, gave
her food and left her there so that she could warm up a bit and
hopefully calm down. J left her in that room and went
to run an
errant, only to return after the lunch break. The complainant still
seemed somewhat unsettled on her return and she resolved
and
instructed the other staff members that the complainant should not
attend class for the rest of the day. Instead she let the
complainant
rest and settle in the storeroom.
[14].
At some point, whilst in the storeroom, the
complainant, when asked by J what was going on, referring no doubt to
the state that
the complainant was in and to the fact that in the
storeroom the complainant bizarrely was having ‘a conversation’
with loose planks and instructing the planks to ‘open up’,
told her that six or nine men from her neighbourhood had
raped her.
Then, when J asked her about the white marks on her school trousers,
she intimated that she would rather not talk about
that, because, if
she did, the person who had brought her to school, referring to the
appellant, would kill her. J told the court
that the white marks on
the trousers to her looked suspiciously like ‘sperm’. Her
evidence was furthermore that shortly
thereafter, and after some
encouragement by her, the complainant spilled the proverbial beans
and told her that the appellant had
raped her that morning in a
scrapped motor vehicle not far from her home. Later on she took the
complainant to the clinic, where
she was examined and assessed, and
at which point it was confirmed that the complainant was in fact
raped. I shall revert to this
aspect of the matter later on in the
judgment when I discuss the Form J88 medical report by the doctor who
examined the complainant
that night at about 21:00.
[15].
The third witness for the State was the
complainant’s paternal aunt, one L N, who confirmed that at
about 11:00 on the morning
of the 16
th
of August 2012, the complainant, who was then supposed to be at
school, and the appellant arrived at their home. At that time L
and
the complainant, as well as the complainant’s father and some
other people, were all living at his house. The appellant
reported to
her that he had found the complainant sleeping in a scrap vehicle in
the area. She had covered herself with plastic.
This report,
according to her evidence, upset L, who then wanted to give the
complainant a hiding for being naughty and for bunking
school. The
appellant however persuaded her not to beat the complainant and he
agreed to accompany her to school. Importantly,
this witness also
testified that when the complainant arrived home with the appellant,
she looked like someone who had been crying
and seemed upset. She
however did not ask the complainant why she looked upset.
[16].
Under cross-examination L stated that the
complainant and her cousin, T, were in the habit of bunking school
and when they were
caught out, their explanation would be that the
school locked the gates and denied latecomers entry onto the school
premises. She
(L) even went to school once to enquire why the kids
would be denied access to the school premises and to their classes
just because
they were late. It transpired that the complainant was
lying about the gates being locked. This witness painted a picture of
mischievous
ten year old girl, who, when caught out as a
mischief-maker, would resort to telling fibs.
[17].
The medical evidence relating to the
examination of the complainant by a medical doctor, Dr N Madonsela,
was received and accepted
into evidence in the form of a Form J88
medical report and a certificate in terms of s 212(4) of the CPA. The
defence did not object
to this evidence and the contents of the
report, including the facts contained therein and opinions expressed
in the report, therefore
became common cause. According to the
medical report, the complainant was examined and assessed by the
doctor at 21:06 on the night
of the 16
th
of August 2012. The doctor recorded that the patient gave a history
that on the 16
th
August 2012 she had been raped at Bram Fischer by a man who was known
to her. At about 09:00 this male person had pulled her into
a scrap
yard because she had skipped school. He removed her trousers and
proceeded to insert his penis without a condom. The doctor
noted that
there were no signs of any physical injuries. Her health and
emotional status were reported as normal (not afraid).
The report
concluded that there was no clinical evidence of any physical
injuries.
[18].
As regards the gynaecological examination,
the findings by the doctor on examining the clitoris, the frenulum of
the clitoris, the
urethral orifice and the par urethral folds were to
the effect that these were all normal. There was no scarring, no
bleeding and
no increased fallibility of the posterior fourchette.
There were no injuries on the perineum. Importantly though there was
a bruising
of the fossa navicularis and the hymen, which had an oval
configuration, had fresh tears and was bruised. The doctor concluded
that her clinical and gynaecological findings accorded with the
history taken from the patient that she had been sexually assaulted
as evidenced by the bruising and the tears of the hymen and the
vagina.
[19].
In his testimony, the appellant denied that
he raped or attempted to rape the complainant. During his evidence in
chief, he explained
that on the day in question he was walking to a
friend to go and ask for a cigarette. On his way to the friend he
walked pass a
scrap vehicle and noticed the complainant sitting in
the vehicle. Being a concerned citizen, he approached the girl,
opened the
door and took her out of the vehicle. He then asked her
why she had not gone to school. The complainant’s response was
that
they, meaning the school, had ‘dismissed her from school’.
He then took it upon himself to take the child home and on
his
arrival at her home, he informed the aunt that the girl was playing
truant. This upset the aunt, who intended giving the complainant
a
good hiding. The appellant was able to dissuade the aunt from beating
up the child and he agreed that he would ensure that the
child gets
to school. On their way to school they came across the father of the
complainant, who, according to the appellant, was
singularly
disinterested in the fact that the child had ‘bunked’
school. The father confirmed though that the appellant
should do what
he was intending to do, namely to take the child to school.
[20].
On their arrival at school, the appellant
enquired from the security guard as to why the school was turning
children away just because
they were late. This was denied by the
security guard, whereupon the appellant requested to go and see the
principal, who also
confirmed that the school did not turn away
children who arrive after the bell had gone. This was also confirmed
by the complainant’s
class teacher, who stated that the child
usually bunks school. Thereafter, the appellant left the school
premises and returned
to the home of the complainant and reported to
the aunt what had transpired at the school
[21].
The appellant further testified that three
to four days later he got word from people in the neighbourhood that
the complainant
accused him of having raped her. Obviously concerned
about this, he went to her house and enquired from the father as to
the rumours
making the rounds. The father explained that it was his
sister who would be able to shed some light on the matter, but she
was
not home at that stage nor at the stage when he returned at about
20:00 later that evening and so he decided to wait for her to
come
home. The aunt eventually did come home, except that she was then in
the company of members of the South African Police Services
who there
and then arrested the appellant for rape.
[22].
Under cross-examination the appellant
confirmed that for the duration of his interaction with the
complainant on the day in question,
starting when he took her out of
the scrap vehicle and then accompanying her home and then to her
school, there were no issues
or disputes between the two of them. He
was the ‘good Samaritan’ and she was at the receiving end
of his good heart
and his humanity. She ought to have been grateful
for his concern, so it was put to the appellant, and not turn on him,
as she
did, and falsely accuse him of having raped her. Importantly,
at no stage during the time he was in the company of the child did
she say to him that he had been raped, which, by all accounts, had
been the case. I shall return to this aspect of the matter later
on
in the judgment when I analyse the possibility of the version of the
appellant being true. When confronted under cross-examination
with
the improbability of the complainant falsely accusing him, the
appellant’s response was as follows: ‘I do not
know what
to say about that. Maybe she is … protecting herself from
issues like bunking school and now they are looking
at her with that
belief.’
[23].
That then was the evidence before the court
a quo
.
[24].
The complainant was a single witness and
the cautionary rule was applicable to her evidence. In addition, at
the time of the incident,
she was ten years old and she was eleven
years old when giving evidence during the trial in the Soweto
Regional Court. The question
in deciding this appeal is whether the
court
a quo
applied and had regard to the cautionary rules which are applicable
in casu
.
The cautionary rules obviously relate to the fact that the
complainant, who was a minor child, was a single witness relative to
the rape.
[25].
The uncontested medical evidence in the
form of the medical report completed by Dr N Madonsela, as well as
her s 212 certificate,
irrefutably confirms that the complainant was
raped on the day in question. There were fresh tears of the hymen and
her vagina
was bruised. There can therefore be no doubt that the
complainant had been raped on the day. The question is whether it was
the
appellant who, beyond reasonable doubt, committed the rape. This
question is asked in light of apparent discrepancies in the State’s
case, not the least of which is the fact that the child possibly had
a reason to fabricate a story with a view to divert attention
from
her recalcitrant conduct on the day in question. In other words, the
tough question which the appeal court should ask is this:
Is it not
reasonably possible that the child, who found herself in a spot of
bother, made up the story of her being raped, which
would then have
meant that she would have been off the hook as far as her ‘bunking’
of school was concerned. This question
should also be asked in the
context of the admitted fib and fibs which the complainant spun when,
on a previous occasion she had
been caught out in her truancy.
[26].
There is also a concern relating to the
lack of DNA scientific evidence. The point is that, according to the
evidence, there was
semen, presumably that of the appellant, on the
pants of the complainant when she arrived at school. If this
substance had been
subjected to a DNA test and was found to be that
of the appellant, it would have linked him inextricably to the
commission of the
rape. The fact that no such evidence was presented
by the State possibly raises question marks about the guilt of the
appellant.
There could have been no better corroboration for the
complainant’s version than such scientific evidence. Then there
is
also the fact that ‘first report’ evidence suggests
that the story of the rape had been dragged out of the complainant
by
J.
[27].
What is the cumulative effect of these
discrepancies in the State’s case? Does this not mean that the
guilt of the appellant
had not been proven beyond a reasonable doubt?
[28].
As I said, the complainant was a single
witness. In
S v Sauls
1981 (3) SA 172
(A), it was held that when it comes to the
consideration of the credibility of a single witness, the trial judge
will weigh the
evidence, consider its merits and demerits, and having
done so will decide whether despite the fact that there are
shortcomings
or defects or contradictions in the testimony, he is
satisfied that the truth has been told. Furthermore, the exercise of
caution
must not be allowed to displace the exercise of common sense.
[29].
As a single witness, the complainant’s
testimony was required to be satisfactory in all material respects,
or there had to
be adequate corroboration for it. The corroboration
required is evidence implicating the appellant, not merely confirming
what
the complainant had reported. In that regard see:
S
v Hammond
[2004] 4 All SA 5
(SCA) at
paras 11 to 17. Such evidence must support the complainant’s
version and render the appellant’s conflicting
version less
probable on the issues in dispute. (
S v
Gentle
[2005] ZASCA 26
;
2005 (1) SACR
429
(SCA) para 18).
[30].
As was pointed out by Majiedt JA in
Naidoo
v S
(333/2018)
[2019] ZASCA 52
(1 April
2019), it is essential for an appeal court to remain cognisant of the
strictures on it as far as the trial court’s
factual findings
are concerned. Absent demonstrable, material misdirections and
clearly erroneous findings, an appeal court is
bound by the trial
court’s factual findings. (
S v
Hadebe & others
1997 (2) SACR 641
(SCA) at 645E-F;
S v Modiga
[2015] ZASCA 94
;
[2015] 4 All SA 13
(SCA) para 23). As was held by
the Constitutional Court in
Mashongwa v
PRASA
[2015] ZACC 36
;
2016 (3) SA 528
(CC) para 45, it is not for an appellate court ‘to second-guess
the well-reasoned factual findings of the trial court’.
We, as
the appeal court, are not the triers of fact at first instance.
[31].
I have above dealt with the two
contradictory versions of the appellant, on the one hand, and that of
the complainant, on the other
hand. I have alluded to the perceived
shortcomings in the State’s case.
[32].
The appellant’s version is a denial
that he raped the complainant. The major difficulty with the version
of the appellant
is that it does not explain the common cause fact
that the complainant was raped at or during the time when, by his own
admission,
he was in her company. There is also this very material
improbability in his version that when he met up with the complainant
she
had probably been raped shortly before then. The improbability
lies therein that the child did not say one word to him about this
rape despite the fact that he was being
uber
kind to her and demonstrated a genuine concern for her well-being.
Instead what the complainant did was to turn on her ‘good
Samaritan’ and fabricated a story that he raped her. The
inherent improbability in this narration is evident and manifest.
The
appellant’s attempt at explaining away this material
discrepancy by claiming that the child needed to protect herself
against her own mischievous behaviour by fabricating a version
against him does not hold water. If she really wanted to do that,
she
needed only to tell people, including the appellant himself, that she
had been raped.
[33].
As I have already indicated, the
appellant’s account of events glaringly leaves the
gynaecological findings of the doctor
relative to the complainant
unexplained. As I see it, the J88 medical report is decisively
against the appellant’s version.
[34].
The Regional Magistrate gave a detailed
judgment. She was mindful of the cautionary rules which applied to
the complainant’s
evidence as a single, child witness. She was
acutely aware of the shortcomings in the child’s testimony. She
enumerated the
various contradictions in her evidence, notably the
fact that she initially said that she was bunking school in the scrap
vehicle
and later changed her story and said that she was waiting for
her cousin. She nevertheless found the complainant truthful, reliable
and credible. She held as follows:
‘
Although
the complainant was a single witness, the court found her to a
truthful witness. She came across as frank and sincere and
was able
to give a step by step account of the events. She was consistent and
she stood up very well against cross-examination.
The
evidence of the State as a whole appears to be in line with all the
undisputed and proven facts of the case.’
[35].
In his Heads of Argument, Mr Musekwa,
Counsel for the appellant, subjected the Regional Magistrate to
criticism for finding that
the complainant was a truthful witness and
for not taking into account the contradictions in her evidence.
Criticism was also levelled
at the fact that the lack of scientific
evidence relating to the DNA analysis of the ‘semen’
which were reportedly
found on the pants of the complainant was not
regarded by the Regional Court as detracting from the reliability of
the case presented
on behalf of the State. However, a careful reading
of the evidence of the complainant portrays a coherent, detailed and
consistent
narration of events. There is not a single part of her
version which warrants outright rejection. Importantly, her evidence
appears
to have been given in a spontaneous manner. In that regard,
her reference to the nickname of the appellant, that being Absa, is
particularly telling. There certainly were a few contradictions and
discrepancies in her evidence. Most of these do not however,
in our
view, impact so adversely on the quality of her evidence that it
renders her testimony as a whole unreliable or untruthful.
[36].
In my view, the Regional Magistrate’s
approach in her analysis of the evidence cannot be faulted. She
rejected the appellant’s
version as false beyond reasonable
doubt. I agree with that assessment. If all of the evidence is viewed
as a whole, the court
a quo
was right in its finding that the version of the appellant does not
make sense.
[37].
As stated, the complainant gave a detailed,
coherent account of the events. And most of it, but for the crucial
fact relating to
the rape, accorded anyway with that of the
appellant. It is, as I have indicated above, highly improbable that
the complainant
would fabricate false evidence against the appellant,
who had been nothing but decent and concerned about her well-being.
The probabilities
and the inherent strengths and weaknesses of the
two conflicting versions had to be considered in weighing up the
elements which
point towards the appellant’s guilt as against
those indicative of his innocence. (
S v
Chabalala
2003 (1) SACR 134
(SCA) para
15). I am not persuaded that the trial court was wrong in accepting
the complainant’s version and rejecting that
of the appellant
as false beyond reasonable doubt. I can find no material misdirection
or clearly erroneous finding on fact in
his judgment. The medical
evidence in my view puts the matter beyond reasonable doubt.
[38].
This conclusion accords with the picture in
the matter as a whole. It is essential that one must never lose sight
of the complete,
overall picture. In
S v
Hadebe and Others
1998 (1) SACR 422
(SCA) at 426E–H Marais JA cited the following passage in
Moshepi & Others v R
(1980 –
1984) LAC 57
at 59F–H:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
[39].
The Regional Magistrate therefore correctly
rejected the appellant’s version as false beyond reasonable
doubt. In my view,
she was also correct in concluding, on the version
of the complainant, that she was raped by the appellant. The
appellant’s
appeal is devoid of merit.
[40].
I am accordingly of the view that the
appellant’s appeal against his conviction should be dismissed.
Order
Accordingly,
I make the following order:-
(1)
The appellant’s appeal against his
conviction is dismissed.
(2)
The appellant’s conviction by the
Protea Regional Court and his sentence be and are hereby confirmed.
________________________________
L R ADAMS
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
I agree,
_____________________________________
B CEYLON
Acting Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
HEARD ON:
21
st
October 2019
DATE OF JUDGMENT:
3
rd
December
2019
FOR THE APPELLANT:
Advocate L Musekwa
INSTRUCTED BY:
Legal Aid South Africa
FOR THE RESPONDENT:
Adv W Vos
INSTRUCTED BY:
The Office of the Director of
Public Prosecutions, Gauteng Local Division, Johannesburg