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[2011] ZAGPPHC 129
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Molokomme v S (A754/2009) [2011] ZAGPPHC 129 (29 July 2011)
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REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Date: 2011-07
-29
Case Number:
A754/2009
In the matter between:
JACKSON SONDI
MOLOKOMME
....................................................
Appellant
and
THE
STATE
....................................................................................
Respondent
JUDGMENT
SOUTHWOOD J
[1]
The
appellant appeals against his convictions of rape and indecent
assault and his sentence of 21 years imprisonment. (The two
offences
were taken together for purposes of sentence).
[2] On
18
October 2004 the appellant was convicted in the Pretoria Regional
Court of rape and indecent assault. Acting in terms of
section
52(1)(b)
of the
Criminal Law Amendment Act 105 of 1997
the regional
court referred the appellant to the High Court for sentence. On 2
August 2005 the Pretoria High Court (per Els J)
confirmed the
convictions and sentenced the appellant to 21 years imprisonment for
both offences, taking them together for purposes
of sentence. After
unsuccessfully applying for leave to appeal against the convictions
and sentence on 25 April 2007 the appellant
petitioned the Supreme
Court of Appeal for leave to appeal and on 5 September 2008 the
Supreme Court of Appeal granted the appellant
leave to appeal to the
full court of this division.
[3] The charge
sheet alleged that during or about 2002 and at Pretoria the appellant
raped PM (12 years) by having sexual intercourse
with her without her
consent and that during or about 2002 and at Pretoria the appellant
indecently assaulted PM (12 years) by
touching her breasts and
genitals. The charge sheet did not provide any other details of the
crimes. As will appear later the
allegations regarding the indecent
assault are of particular importance.
[4] The appellant
is the complainant’s biological father. At the time of the
alleged offences the appellant and his wife,
Diane Molokomme, and
their four children (including the complainant, then 12 years old and
PM, then 10 years old) lived together
in a two room dwelling in
Mandela Village on the outskirts of Pretoria. The complainant
testified that one night, during August
2002, when Diane Molokomme,
her biological mother, was attending a funeral in Polokwane, the
appellant came home drunk and after
beating her with a metal studded
belt, forced her to sleep on the bed with him and raped her and that
on an undetermined date thereafter,
he playfully touched her
buttocks. There was no evidence at all to support the allegations in
the charge sheet that the appellant
had touched the complainant’s
breasts and genitals and there is no explanation for these
allegations in the charge sheet.
When the appellant testified he
persisted in the contention which he advanced throughout the trial,
namely, that he had done nothing
to the complainant and that he was
the victim of a conspiracy.
[5] Sexual offences
present a number of problems not the least of which is that
allegations of sexual misconduct are easy to make
and difficult to
refute. Accordingly it is essential that the facts be carefully
investigated before a finding is made that the
accused is guilty. In
S
v Vilakazi
2009
(1) SACR 552
(SCA)
para
21 the court emphasised the care that must be taken:
‘The prosecution of rape
presents peculiar difficulties that always call for the greatest care
to be taken, and even more
so where the complainant is young. From
prosecutors it calls for thoughtful preparation, patient and
sensitive presentation of
all the available evidence, and meticulous
attention to detail. From judicial officers who try such cases it
calls for accurate
understanding and careful analysis of all the
evidence. For it is in the nature of such cases that the available
evidence is often
scant and many prosecutions fail for that reason
alone. In those circumstances each detail can be vitally important.
From those
who are called upon to sentence convicted offenders such
cases call for considerable reflection. Custodial sentences are not
merely
numbers. And familiarity with the sentence of life
imprisonment must never blunt one to the fact that its consequences
are profound.’
[6
] This
case is no different with the added difficulty for the presiding
officer that the appellant was an undefended accused who
despite
repeated warnings by the regional magistrate insisted on conducting
his own case. With regard to youthful witnesses in
Woji
v Santam Insurance Co Ltd
1981
(1) SA 1020
(A)
at
1028A-D the court said that a court must be satisfied that the young
witness’ evidence is trustworthy and this depends
upon a number
of factors which require careful consideration by the court. With
regard to the undefended witness it is clear that
the presiding
officer must assist an undefended accused in the presentation of his
case to ensure that the accused receives a fair
trial. In
S
v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO
1989
(3) SA 368
(E)
at
377D-379C the court dealt extensively with what is required from the
presiding officer. Of particular importance in the present
case are
the following:
(1) ‘At all stages of a criminal
trial the presiding judicial officer acts as the guide of the
undefended accused. The judicial
officer is obliged to inform the
accused of his basic procedural rights – the right to
cross-examine, the right to testify,
the right to call witnesses, the
right to address the court both on the merits and in respect of
sentence – and in comprehensible
language to explain to him the
purpose and significance of his rights’ (378A-B);
(2) ‘During the State case a
presiding judicial officer is at times obliged to assist a
floundering undefended accused in
his defence. Where an undefended
accused experiences difficulty in cross-examination the presiding
judicial officer is required
to assist him in (a) formulating his
questions; (b) clarifying the issues and (c) properly putting his
defence to the State witnesses’
(378C-D);
(3) ‘Where, through ignorance or
incompetence, an undefended accused fails to cross-examine a State
witness on a material
issue, the presiding judicial officer should
question – not cross-examine – the witness on the issue
so as to reduce
the risk of a possible failure of justice’
(378E-F);
(4) ‘The judicial officer should
assist an undefended accused whenever he needs assistance in the
presentation of his case’
(378J);
(5) ‘…
the presiding judicial officer in the trial of an undefended accused
is required to take a more active part
than a judicial officer is
permitted in the orthodox accusatorial system, thereby, in some
measure, redressing the disadvantage
the undefended accused may
suffer from the lack of legal representation. The value to an
undefended accused of, and the benefit
he derives from, judicial
assistance emphasises the importance of an unfaltering judicial
observance of the rules of practice intended
for the protection of
the undefended accused, but in no way minimises the importance of
legal representation’ (379A-C).
[7] In this case,
as in all criminal cases, the proper application of the onus is of
crucial importance. In
S
v Shackell
2001
(2) SACR 185
(SCA)
para
30 the court dealt with the onus in criminal proceedings as follows:
‘It
is trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a
mere preponderance
of probabilities is not enough. Equally trite is the observation
that, in view of this standard of proof in
a criminal case, a court
does not have to be convinced that every detail of an accused’s
version is true. If the accused’s
version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course
it is permissible to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because
it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it
cannot reasonably possibly be true.’
[8] In
S
v Van Aswegen
2001
(2) SACR 97
(SCA)
para
8 the court emphasised the necessity for a court hearing a criminal
case to take all the evidence into account. The court
referred with
approval to the following passage from
S
v Van der Meyden
1999
(1) SACR 447
(W)
at
450a:
‘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”. The passage seems
to suggest that the evidence is to be separated into compartments,
and the “defence case” examined in isolation, to
determine whether it is so internally contradictory or improbable
as
to be beyond the realm of reasonable possibility, failing which the
accused is entitled to be acquitted. If that is what was
meant, it
is not correct. A court does not base its conclusion, whether it be
to convict or to acquit, on only part of the evidence.
The
conclusion which it arrives at must account for all the evidence …
I
am not sure that elaboration upon a well-established test is
necessarily helpful. On the contrary, it might at times contribute
to confusion by diverting the focus of the test. The proper test is
that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt, and the logical corollary is that
he must be acquitted if it is reasonably possible that he
might be
innocent. The process of reasoning which is appropriate to the
application of that test in any particular case will depend
on the
nature of the evidence which the court has before it. What must be
borne in mind, however, is that the conclusion which
is reached
(whether it be to convict or to acquit) must account for all the
evidence. Some of the evidence might be found to be
false; some of
it might be found to be unreliable; and some of it might be found to
be only possibly false or unreliable; but
none of it may simply be
ignored.’
[9]
It
is of particular importance in this case that the complainant was a
single witness and that in order to convict on her evidence
the court
had to be satisfied that the truth had been told. In
S
v Sauls and Others
1981
(3) SA 172
(A)
at
180E-H the court said:
‘There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness
(see the remarks
of Rumpff JA in
S
v Webber
1971
(3) SA 754
(A)
at
758). 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 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.’
[10] It is clear
that the appeal against the conviction of indecent assault must
succeed. There is no evidence at all to support
the allegation in
the charge sheet that (on a different occasion from the rape) the
appellant touched the complainant’s breasts
and genitals. The
complainant testified only that on an unspecified date after the
alleged rape, the appellant approached her
while she was washing
dishes and playfully touched her on the buttocks. When he did this
the appellant did not say anything so
it is impossible to find that
he had an indecent intention. Objectively it cannot be said that
this was an indecent act. In any
event there must be doubt about
whether this is what happened. It obviously was not what the
complainant reported to the SAPS
because that is not what the
prosecutor alleged in the charge sheet.
[11] As far as the
rape is concerned the principal issue to be decided by the court in
the light of all the evidence was whether
the complainant was
trustworthy and whether the truth had been told. For the reasons
which follow I am of the view that the regional
court should not have
accepted the complainant’s evidence as trustworthy and rejected
the appellant’s version. (I
did not understand the
respondent’s representative to dispute this).
(1) There was a
glaring contradiction between the case alleged in the charge sheet
and the evidence given by the complainant. The
charge sheet alleged
that the appellant indecently assaulted the complainant by touching
her breasts and genitals. This is obviously
what the complainant
told the SAPS who must have recorded this in the statement given to
the prosecutor. The allegation that the
appellant approached her
while she was washing the dishes and playfully touched her buttocks
was clearly not conveyed to the SAPS
and the prosecutor and is
clearly an afterthought. These discrepancies should have been
investigated by the regional magistrate
and given the most careful
consideration in relation to the complainant’s credibility.
Unfortunately this did not happen.
In my view the discrepancies
seriously detract from the complainant’s credibility.
(2) The complainant
did not report the alleged rape at the earliest opportunity. It is
trite that in the case of a sexual offence
evidence is admissible to
prove that the victim of the crime made a complaint to the first
person to whom he or she could reasonably
have complained – see
Hiemstra’s
Criminal
Procedure
24-18;
R
v Kgaladi
1943
AD 255
at
261 and
R
v Lillyman
[1896]
2 QB 167.
Hiemstra
lists among the requirements for admissibility of such a complaint:
(a) The complaint
must have been made at the first possible opportunity although the
court may take all the circumstances into account.
When there has
been a delay, but an explanation is given, evidence of the complaint
can nevertheless be allowed.
(b) The complaint must be directed at
a person to whom the complainant would naturally complain, such as
the mother or another family
member. While this depends on who is
available, the complaint must take place at the first reasonable
opportunity.
(c) The complaint must be made freely.
It cannot be admitted if it was elicited by questions of a leading
or intimidating nature.
The complainant
cannot even remember who she first complained to. According to her
mother, Diane Molokomme, when she (Diane) returned
from Polokwane,
the complainant complained to her that the appellant had beaten her
with a metal studded belt. She did not mention
a sexual assault.
Diane Molokomme also testified that the complainant told her about
the rape only after she had been questioned
by her aunt, Matlodi
Madiseng. To add to the confusion, Matlodi Madiseng testified that
Diane Molokomme told her that the complainant
had told her (Diane)
that the appellant had raped her and it took some persuasion before
the complainant would speak to her. It
is therefore clear that there
was no admissible evidence of a first complaint. This also seriously
affects the complainant’s
credibility.
(3) The complainant
admitted at a meeting with members of the community that the
appellant had done nothing to her and that her
mother and aunt had
forced her to say that he had. This evidence, which is not in
dispute, supports the appellant’s defence
and at the very least
provides a basis for finding that the appellant’s defence is
reasonably possibly true. This evidence
had to be satisfactorily
explained by the state otherwise there could not be a conviction.
Yet when the complainant testified
she was not asked to explain why
she had made these statements. Diane Molokomme’s evidence that
the complainant is so afraid
of the appellant that she would not tell
the truth in his presence and that the complainant is afraid of him
because when he raped
her he threatened to kill her if she told
anyone is clearly hearsay and inadmissible. In the absence of
cross-examination by the
appellant the regional magistrate was
obliged to investigate the circumstances in which the complainant
made the statements to
establish whether she had intended to make
them
(i.e.
that they were true) or had been frightened into making them (i.e.
that they were untrue). Diane Molokomme’s evidence
about the
threat is not convincing, coming as it does only after the appellant
had elicited the evidence from her and seems to
be an afterthought.
(4) The
complainant’s evidence about the alleged rape is unconvincing.
According to the complainant the appellant came home
drunk and forced
her to sleep on the bed with him. Initially, when she refused to
sleep on the bed, the appellant beat her with
a metal studded belt.
When she complied the appellant lay on the bed next to her. After a
long while he took off her clothes,
opened her thighs and raped her.
According to the complainant he simply inserted his penis into her
vagina and then quickly withdrew
it. That is all he did. She gave
no further description of the incident. She said the appellant never
repeated this. The evidence
is improbable for a number of reasons.
The complainant also contradicted herself about how long this
penetration persisted. At
first she said he withdrew his penis
immediately and later she said penetration took place for a short
while without saying what
this meant. It is also contradicted by
other evidence. The beating with the belt, which is common cause,
took place because the
appellant said the complainant had taken his
R5 not because he was trying to get her to sleep on the bed with him.
(5) P M, who slept in the same room on
the night of the alleged incident, saw and heard nothing to indicate
that the appellant raped
the complainant. She saw the appellant beat
the complainant because he said she had taken his R5 but she simply
went to sleep
after this without noticing anything untoward. It is
beyond belief that she would simply go to sleep if the appellant was
using
force to get the complainant to sleep on the bed with him.
(6) The medical
evidence of Dr. Madiba is, at best for the state, neutral. Dr.
Madiba found no injuries and merely reported that
the complainant’s
hymen was torn and on examination could easily admit one finger. She
did not find that this was the result
of sexual intercourse although
it was consistent therewith. It is important however that Dr. Madiba
expressed the view that there
had been penetration on more than one
occasion. This means that if the hymen was torn by sexual
intercourse this took place on
more than one occasion and obviously
with a third party. This gives rise to the real possibility that the
complainant’s
hymen was torn by having sexual intercourse with
someone other than the appellant. Finally it must be noted that the
state did
not question Dr. Madiba about when the hymen was torn. It
would have been expected that the state would have been anxious to
establish
that the injury was recent and could have been caused
during August 2002.
(7) The evidence of Diane Molokomme
and Matlodi Madiseng was unsatisfactory. They were called to prove
the first report made by
the complainant. According to Diane
Molokomme, when she returned from Polokwane the complainant told her
that the appellant had
beaten her with a belt and later she told her
(Diane) that the appellant had touched her buttocks. The complainant
did not tell
her about the rape. She only heard about that after the
complainant had told Matlodi Madiseng everything. This evidence is
contradicted
by Matlodi Madiseng who testified that Diane Molokomme
told her that the complainant had reported to her (Diane) that in the
middle
of the night the appellant wanted the complainant to go and
sleep with him on the bed and that when she refused the appellant
beat
her until she got onto the bed. Armed with this information
Matlodi Madiseng confronted the complainant who initially did not
want to say anything but then told her that she had slept with her
father and that he had touched her buttocks. None of this was
further explained. The contradictions on the crucial issue are a
great concern and are an additional reason to question the
reliability
of the state’s evidence. It is also significant
that the two witnesses embellished their evidence as it progressed.
For
example, according to Diane Molokomme, the first doctor they took
the complainant to said she had been raped. Despite this evidence
the doctor was not called and it remains hearsay and it is
significant that it is not supported by Dr. Madiba’s evidence.
(8) The appellant’s evidence did
not assist the state. He was a poor witness but he did not deviate
from his version other
than to add to the number of conspirators.
Nevertheless whatever he said did not justify a finding that he was
guilty of the rape.
[12] It is a matter
of great concern that this appeal has taken three years to be heard.
(This is the first occasion on which the
appeal has been enrolled.)
We were informed from the Bar that appeals are enrolled by the
Director of Public Prosecutions and that
the record of the appeal was
filed in September 2009. Obviously the appellant has been prejudiced
by the delay and the cause of
the delay should be investigated by the
Director of Public Prosecutions to ensure that this does not occur
again.
[13] I make the following order:
I The appeal is
upheld and the convictions and sentence are set aside.
II The Director of Public Prosecutions
is requested to investigate the delay in the hearing of this appeal
in the light of the comments
in paragraph [12] of this judgment.
_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
_______________________
G. WEBSTER
JUDGE OF THE HIGH COURT
I agree
_______________________
P.
C.
VAN DER BYL
ACTING
JUDGE
OF THE HIGH COURT
CASE NO: A754/2009
HEARD
ON: 25 July 2011
FOR
THE APPELLANT: Mr. P.M. Mositsa
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. P. VORSTER
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 29 July 2011