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[2023] ZAFSHC 114
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Mokoaleli v S (A81/2022) [2023] ZAFSHC 114 (20 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A81/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between: -
THABISO
MOKOALELI
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
J
et
BOONZAAIER, AJ
JUDGMENT
BY:
BOONZAAIER, AJ
HEARD
ON:
16
JANUARY 2023
DELIVERED
ON:
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII
on 20 January 2023.
The date and time for hand-down is deemed to be 14h00 on 20 January
2023.
INTRODUCTION
[1]
This
is an appeal against both conviction and sentence on a charge of
contravening
Section
3 of the Sexual Offences and Related Matters Amendment Act 32 of
2007
(rape)
read with the provisions of
section
51(1)
of
the
Criminal
Law
Amendment
Act 105 of 1997
in
the Regional Court of the Free State Division, held in Bloemfontein.
[2]
The Appellant, a
32-year- old male (at the time of the offence) pleaded not guilty to
the charge and later in his defence admitted
having had sexual
intercourse with the complainant but contended that it was
consensual.
[3]
T
he
Appellant was ultimately convicted on the testimony of the
complainant and
sentenced
to Life Imprisonment. Appellant has a right to an automatic appeal.
[4]
There are two issues to be decided
in casu
:
Firstly,
whether the Court
a quo
erred in making a credibility finding
in favour of the State and thereby accepting that the State proved
its case beyond a reasonable
doubt that Appellant raped the
complainant, and secondly, whether the Court
a quo
was correct
in finding that the State has proved beyond reasonable doubt that the
Appellant was part of the six assailants who took
turns in raping the
complainant.
FACTUAL
BACKGROUND
[5]
The complainant (at the time of the incident a
28-year-old female) testified that she was working at the farm
H[....] situated in the district of Dealesville. She knew the accused
and the other five accused`s (who were discharged after the
closure
of the State`s case) as co- workers at the farm. During the evening
on the 15
th
February 2013, the complainant was at a
drinking place (shebeen) at the farm H[....]. Complainant volunteered
the evidence
of her drunkenness herself. She consumed two litres of
ginger beer alcoholic beverage (traditional beer) that night and
became
moderately drunk. The Appellant and the erstwhile co -accused
persons arrived and bought their own liquor and drank it. At about
12
midnight she decided to go to sleep at the house where the female
employees were sleeping.
[6]
On her way to this sleeping area she was suddenly
grabbed from behind by six people, including the Appellant. They
all
raped her on the ground, taking turns. When one was raping her, the
others would kneel and pinned her down to the ground. The
whole
incident lasted for about an hour.
[7]
She was able to identify the Accused persons because it
was full moon and the perpetrators also called each other
by name
while raping her. She screamed when they started removing her clothes
but no one heard her. They covered her mouth so she
could not be
heard. The complainant hastened to her sleeping quarters and knocked
on the door where all the females were sleeping.
Susie opened the
door. She reported the rape to Susie and subsequently also to the
Police who arrived and arrested the six Accused
persons. The
complainant was taken to the hospital where she was medically
examined.
[8]
According to the complainant, she was never involved in
a romantic relationship with the Appellant. She vehemently
denied
having any consensual sexual intercourse with the Appellant. She
maintained that she only knows him from the farm when
he started
working there about two weeks before the incident.
[9]
Agnes Pongo whose nickname is Susie testified that she knows the
complainant well. They work together. That
specific night at about
one in the morning, the complainant knocked at her door and reported
to her that she was raped by six men.
Susie denied any knowledge of
the complainant having any love relationship with the Appellant.
[10]
A photo album of the scene of the rape was handed in as
Exhibit 1
.
It depicted the scene of the rape, which is basically an open space
with grass on a veld. Some of the photos showed the complainant`s
head which had some grass on it.
[11]
The DNA results were also handed in as
Exhibit A
. The
Appellant was positively linked to the crime by the DNA results. The
J88 medical report was handed in by agreement between
the parties and
accepted as evidence by the trial court, confirming that no injuries
were sustained by the complainant on her private
parts. The
conclusion however was:
“
Absence
of physical and genital injuries did not exclude forceful
penetration”
[12]
On his own version, the Appellant later admitted having consensual
sexual intercourse with the complainant. He knew the complainant
for
Susie knew about their love relationship because she saw him and
complainant being together on many occasions. They also used
to have
lunch together and ate from one plate. Erstwhile Accused 1, also knew
about this relationship. Appellant is adamant that
he engaged in
consensual sexual intercourse with the complainant the night of 15
February 2013 nearby some trees at the back of
the shebeen where they
had been drinking before.
[13]
Appellant averred that the complainant was very drunk. Appellant did
not contest the fact that Complainant was raped
by six persons. After
he consensual intercourse with the complainant he went to sleep where
he was later awakened by the Police
who arrested him. The Appellant
further denied being involved in raping the complaint or being part
of a group that raped the complainant.
[14]
The Appellant gave the following reasons why the complainant may have
laid these false charges:
a)
Appellant did not have any money when the complainant asked for it
after having had sexual intercourse.
b)
The complainant was never satisfied with anything and used to sleep
around and when Appellant reprimanded her the
complainant would tell
him that the organ that made her a women was hers;
c)
The complainant said that she was quitting her job because she cannot
see the reason in working, because she was
working for other people;
d)
That the Appellant previously had some confrontation with Susie
because she uttered words to him that he disliked
and he told her not
to talk to him in that manner.
e)
That Susie used to see complainant and himself when they go to work.
[15]
The second defence witness, Frans Thlakwena testified that he assumed
the Appellant and complainant had a love relationship
even when
Appellant and complainant were in Botshabelo before they started to
word a H[....].
[16]
Frans revealed that on the night of the incident, the complainant
told another lady presumably her sister that she wanted
to have some
time alone with her boyfriend referring to the Appellant. Frans also
saw that when they went to the tree to have sexual
intercourse the
complainant was carrying something like a blanket. He could see them
clearly from where he was sitting at the drinking
place.
[17]
Frans also testified that that after the sexual intercourse between
the Appellant and the complainant, Susie asked the
complainant where
she had been and the complainant response was that she was with
boyfriend. Susie was present at the place where
the liquor was sold.
[18]
This witness implied that the complainant was not raped at all. He
was unable to account for the fact that this evidence
was never put
to the complainant or Susie.
GROUNDS
OF APPEAL
[19]
The fundamental question that arises on appeal in respect of
conviction is whether the state had proven its case beyond
a
reasonable doubt.
The
issue in this appeal in relation to the appellant, is whether the
identification of the
appellant as the perpetrator of the rape, was both
honest and reliable.
[20]
The central thrust of the Appellant’s challenge against the
conviction lie against the Court
a quo`s
acceptance of a
single witness testimony that was riddled with contradictions and
improbabilities notwithstanding the applicable
cautionary rule.
[21]
The issue for determination on appeal with regards to sentence is
whether the trial court exercised its discretion properly
and
judicially in imposing an effective term of life imprisonment. The
court
a quo
erred in over emphasizing the seriousness of the
offence by indicating that the complainant suffered emotionally and
finding that
the Appellant is a threat to society
[22]
The central thrust of the Appellant’s challenge against the
sentence lies against the imposition of a strikingly
inappropriate
minimum sentence notwithstanding the presence of substantial and
compelling circumstances. The Appellant is a first
offender, was in
custody since he was arrested and there is a possibility for future
rehabilitation.
EVALUATION
[23]
The Court
a quo
remarked that the complainant was an honest
witness. She got confused about who raped her first. The Court
a
quo
remarked that this inconsistency was probably due to the fact
that it was dark and due to her drunken state. She remained however
steadfast in her evidence that she was raped by six men.
[24]
The Appellants initial version was that Susie knew about the
relationship but he changed his version when Susie took
to the
witness stand. He then later testified that he assumed that Susie
knew about their love relationship.
[25]
The Court
a quo
regarded the Appellant`s reasons why he was
incriminated as afterthoughts because neither the complainant nor
Susie was confronted
with this crucial evidence.
[26]
The Appellant essentially placed reliance on the failure of the trial
court to properly apply the cautionary rule in
the evaluation of the
evidence of the testimony of the complainant was perforated with
contradictions, inconsistencies and improbabilities.
[27]
The Appellant further contended that the trial court erred in finding
the contradictions and improbabilities innate in
the testimony of the
complainant inconsequential; it erred in finding the testimony of the
complainant satisfactory because she
was honest and possessed no
reason to falsely implicate the appellant and it erred in finding
that the second state witness corroborated
the evidence of the
complainant.
[28]
It was the Appellant’s contention that the trial court’s
finding on credibility was not correct and that
the various
contradictions and improbabilities was not considered properly. The
Appellant maintained that his contradictions were
not material to the
extent that it rendered his version not reasonably possibly true.
[29]
The Respondent supported both the conviction and sentence and
contended that the trial court neither erred in its verdict
nor
misdirected itself in applying its discretion with regards to
sentence.
THE
LAW
[30]
It is trite that the state bears the onus of proving the guilt of the
accused beyond a reasonable doubt.
[1]
There exists no burden on the accused to prove his version or his
innocence. The accused’s version only has to be reasonable
possibly true.
[2]
[31]
It is also accepted that a court of appeal will be extremely reticent
to interfere with the credibility findings of the trial
court as well
as the evaluation of the oral testimony, given the better position of
the trial court in hearing and appraising the
evidence of the
witnesses. It will however, interfere if it is convinced that the
credibility findings made by the trial court
are patently
incorrect.
[3]
[31]
In the case of
Norman
v S
[4]
the judge mentioned that
“
In
rape cases the most familiar scenario will be that the victim is a
single witness.
Therefore,
it is a foreseeable and generic aspect of such cases.”
[32]
It
is further trite law that the evidence of a single witness must be
approached and evaluated with the necessary caution.
[5]
However, the exercise of such caution should and ought not to
displace the exercise of common sense.
[6]
All
the contradictions, inconsistencies and probabilities must be weighed
up to arrive at a conclusion that the State has
proven its case
beyond a reasonable doubt. The Appellate court in
Texeira
[7]
stressed
that, in evaluating the evidence of a single witness, a final
evaluation can rarely if ever, be reached without considering
whether
such evidence is consistent with the probabilities.
[33]
The Court
a quo
, in applying the cautionary rule correctly
found the evidence of the complainant to be satisfactory in all
material respects. A
conspectus of the record reveals that the
complainant indeed presented a coherent and cogent account of events.
Her evidence was
forthcoming and there were no attempts at evasion.
She did not unnecessarily embellish even when provided with the
opportunity
to do so and indeed had no reason to falsely incriminate
the appellant. Notwithstanding the contradiction that existed between
her testimony and that of the second state witness or any omission in
her testimony, the trial court correctly found it to be immaterial
having regard to the totality of the evidence tendered.
[34]
The complainant readily admitted to being under the influence of
alcohol and considered herself to be moderately drunk. It
is
noteworthy that her state of sobriety was tendered by herself.
[35]
Notwithstanding her state of sobriety, her narration of the incident
evinced a vivid recollection of what transpired.
Her observations
that she was raped in an open field there was grass, is consistent
with the photos taken. The photo showed grass
in her hair as well
that the path that she was taken leads to the house where she was
returning to that night.
[36]
The record of proceedings clearly reflects the consistency in the
testimony of both state witnesses in that the complainant
was
emotional when she entered Susie`s room and gave her report which was
indeed corroborated by Susie
[37]
Given the nature and duration of the friendship between the
complainant and the Appellant, it is highly improbable that
Susie
would not have known of a romantic relationship between the Appellant
and the complainant which spanned for almost two weeks
according to
the Appellant.
[38]
Salient aspects of the complainant’s testimony remained
uncontested and were not tested. The reason why the complainant
would
choose that specific encounter to accuse the Appellant of rape also
remained uninterrogated.
[39]
The Court
a quo
correctly found that the version of the
Appellant on its own and when contrasted with the testimony of his
witness resonated with
contradictions and improbabilities. The court
a quo
held that the defence version not reasonably possibly
true.
.
[40]
It is also noteworthy that the Appellant’s witness testified
for the first time about facts which were never canvassed
by
Appellant himself. This was correctly found by the trial court to be
both convenient and opportunistic.
[41]
The Appellant’s witness placed himself at the scene on the
night in question. He was knowledgeable about the nature
of the
relationship between the Appellant and the complainant. It is
astounding that the complainant was never confronted by the
Appellant
with such crucial evidence inimical to her allegation nor given the
opportunity to refute it.
DISCUSSION
Ad
Conviction
[42]
The evidence of the Appellant and his witness is correctly found by
the trial court to be full of contradictions and
improbabilities.
[43]
Having regard to the above, I am satisfied that the court
a quo
exercised the requisite caution and correctly found that there
existed no evidential basis to suggest that the evidence of the
complainant and her witness was untruthful and unreliable. The
Appellant’s version on its own and when coupled with that
of
his witness is riddled with contradictions, inconsistencies and
improbabilities to the extent that the correctness of the credibility
findings of the trial court cannot be doubted.
[44]
The court
a quo
gave a carefully reasoned and deliberative
judgment and was correctly persuaded with the evidence of the
complainant.
[45]
The evidence of the second defence witness constituted a poor attempt
to salvage the Appellant from the consequences
of his actions I am
satisfied that the court
a quo
correctly rejected the version
of the Appellant as false beyond a reasonable doubt.
[46]
It is apparent from the evaluation of the evidence presented that the
trial court was indeed alive to the fact that this
was single witness
testimony in respect of the rape and was alert to the danger’s
attendant thereto. The record indeed shows
that the evidence of the
complainant was properly considered and that the cautionary rule was
properly applied in the appraisal
of her evidence as a single
witness.
[47]
The weight of
the evidence in this matter was in my view, properly considered by
the court
a
quo
. The
state of sobriety of the complainant, assist the court in assessing
the objective circumstances attending the observation
by the
complainant of the identity of her attackers were considered, hence
the acquittal of the other five Accused persons.
Ad
Sentence:
[48]
The Appellant contended that the approach of the trial court
wasunbalanced and the requisite factors for consideration
in the
determination of sentence, namely the personal circumstances of the
appellant, the nature and gravity of the offence committed,
the
interests of the community as well the prevalence of the crime were
incorrectly approached. According to him, the trial
court over
emphasized the aggravating factor namely the serious of the offence
with little or no consideration to the mitigating
factors. He further
contended that several of the mitigating factors advanced were not
properly considered including his period
of incarceration awaiting
trial, the absence of any serious physical injuries or any lasting
emotional trauma sustained by the
complainant and that alcohol played
a role in the commission of the crime.
.
[49]
The Appellant further contended that all circumstances advanced
should have persuaded the court to a find the existence
of
substantial and compelling circumstances that would have enabled the
trial court to deviate from the imposition of the prescribed
minimum
sentence of a life sentence. Accordingly, the trial court erred in
finding that there were no substantial and compelling
circumstances
present to deviate from the minimum sentence.
[50]
The Respondent argued that no misdirection occurred as contended by
the Appellant and that the sentence imposed by the
trial court on the
appellant met all the sentencing demands of the time and no appellate
interference was warranted. The State
further argued the mitigating
factors tendered for consideration did not constitute substantial and
compelling circumstances.
[51]
The cardinal principle governing an appeal against sentence is that
punishment of an offender is pre-eminently a matter for
the
discretion of the trial court. It is well established that
interference by the appellate court is warranted only if the
discretion
of the trial court was not judicially and properly
exercised or if there exists a marked disparity between the sentence
imposed
by the trial court and the sentence that the court of appeal
would have imposed had it been the trial court
[8]
.
[52]
The test to be applied in every appeal against sentence is whether
the sentence is vitiated by irregularity or misdirection
or
disturbing inappropriateness.
[9]
This
was seamlessly captured in
S
v Malgas
[10]
which articulated the principle as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trail court vitiates the
exercise of
that discretion, an appellate court is off course entitled to
consider the question of sentence afresh. In doing so,
it assesses
the sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate court is at large. However, even in the absence of material
misdirection, an appellate court may yet
be justified in interfering
with the sentence imposed by the trial court. It may do so when the
disparity between the sentence
of the trial court and the sentence
which appellate court would have imposed had it been the trial court
is so marked that it can
be that it can properly be described as
‘shocking’, ‘startling’ or ‘disturbingly
inappropriate’.
It must be emphasised that in the latter
situation the appellate court is not at large in the sense in which
it is at large in
the former. In the latter situation, it may not
substitute the sentence which it thinks appropriate merely because it
does not
accord with the sentence imposed by the trial court or
because it prefers it to that sentence. It may only do so where the
difference
is so substantial that it attracts epithets of the kind I
have mentioned.”
[53]
The trial court record shows a proper consideration of the individual
circumstances of the case in the light of the renowned
triad of
factors relevant to sentence. The personal circumstances at the
disposal of the trial court included the following, namely,
that the
appellant was 32 years old at the time of the commission of the
offence, he was a first offender, he was married and had
two minor
children, he was in employment at the farm H[....] as a general
worker and earned an income of R850 every fortnight. In
the
determination of an appropriate sentence, the trial court also
considered the period of incarceration awaiting trial, the nature
of
the injuries sustained by the complainant and that alcohol played a
role in the commission of the offence.
[54]
It is trite law that the sentence of an accused person must be
balanced between the interest of society, the nature,
seriousness and
the prevalence of the offence and the personal circumstances of the
accused.
[11]
The
seriousness of the crime that the appellant has been convicted of was
given prominence in
S
v
S 1995
(1)
SASV
50 (ZS) on 61 d.
“
The
essence of the crime is an assault on the bodily integrity of a
woman’s femininity. If it is a function of the criminal
law to
protect members of society from those who would employ illegal means
to prey on those less able to defend themselves, then
rape is rightly
regarded as a crime of the utmost gravity”
[55]
In
S
v Ncheche
[12]
the
court expounded upon the gravity of the offence as follows:
“
Rape
is an appalling and utterly outrageous crime, gaining nothing of any
worth for the perpetrator and inflicting terrible and
horrific
suffering and outrage on the victim and her family. It threatens
every woman, and particularly the poor and the vulnerable.
In our
country, it occurs far too frequently and is currently aggravated by
the grave risk of the transmission of Aids. A woman’s
body is
sacrosanct and anyone who violates it does so at his peril and our
Legislature, and the community at large correctly expect
our courts
to punish rapists severely.”
[56]
The interest of the community was properly enunciated
S
v Chapman
[13]
“
Woman
in South Africa are entitled to protection of these rights. They have
a legitimate claim to walk peacefully on the streets,
to enjoy their
shopping and their entertainment, to go and come from work, and to
enjoy the peace and tranquility of their homes
without fear, the
apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives. The courts
are under a duty to
send a clear message to other potential rapists and to the community.
We are determined to protect the equality,
dignity and freedom of all
women and we shall show no mercy to those who seek to invade those
rights.”
[57]
The trial court further considered the prevalence of the crime in the
imposition of a more severe sentence for purposes
of deterrence.
[58]
The evidence of the second defence witness constituted a poor attempt
to salvage the Appellant from the consequences
of his actions.
[59]
With regards to the incarceration awaiting trial, the Appellant has
spent two and a half -years in prison awaiting trial.
It was
submitted that the accused persons are entitled to credit for this
pre-trial incarceration. I would ordinarily agree that
the least that
I should do is give the accused persons credit for the period of
their pre-trial incarceration. However, it seems
to me that, where,
as in this case, the ordinary statutory penalty is life imprisonment,
the law does not recognise that pre-trial
incarceration is, in
itself, a substantial and compelling circumstance, or a basis on
which to reduce the non-parole period that
attaches to the
penalty.
[14]
[60]
The Supreme Court of Appeal has stated, definitively, that
pre-conviction period of imprisonment is not, on its own,
a
substantial and compelling circumstance for the purposes of the
Criminal Law Amendment Act.
>
[15]
[61]
In as far as the aggravating factors are concerned, the trial court
correctly took these factors into account and rightly
so and imposed
what it considered to be a just and appropriate sentence. It
correctly too cognisance of the fact that the appellant
abused the
trust that the complainant had in him while she was under the
influence of alcohol. It also noted that in persisting
with his claim
of innocence, the appellant wasted the opportunity to show remorse
for his actions. The Appellant and his witness
tried to make a
mockery of the complainant as if she was a woman of loose morals.
This total lack of remorse impacts negatively
on his prospects for
rehabilitation.
[62]
It is also correct that a court hearing an appeal in which the
minimum sentence legislation has application does not
possess the
proverbial clean slate on which to scribble its preferred sentence.
The sentencing discretion of the trial court is
indeed circumscribed
by law. It is further required that the finding of substantial and
compelling circumstances must be able to
stand scrutiny and not be
based on the whim of the presiding officer.
[16]
[63]
The charge of rape for which the Appellant has been convicted of
clearly falls within the ambit of
section 51
of the minimum sentence
legislation. The minimum prescribed sentence for such offences is a
life sentence even for a first offender
unless the court found that
substantial and compelling circumstances existed justifying a
departure. Notwithstanding the personal
and mitigating factors
tendered for consideration, the prescribed minimum sentence, was in
the totality of the circumstances encountered
here the only fair and
just sentence. The trial court correctly found that there were no
substantial and compelling circumstances
present. I am of the view
that the manner in which the complainant was taken advantage of and
the inhumane and degrading treatment
she was subjected to under the
circumstances cannot justify a deviation from the imposition of the
applicable minimum sentence.
[64]
Having said that, I am content that the trial court did not err or
misdirect itself in any manner. Nor does there exist
a disparity
between the sentence imposed by the court
a quo
and the one
which this court would have imposed if it were the court
a quo
.
Hence there exists no reason that warrants tampering with the
sentence imposed by the court
a quo.
ORDER
[65]
In the result, I propose the following order:
1)
The appeal against both conviction and sentence is dismissed.
2)
The conviction and sentence imposed by the Regional Court on the
appellant are confirmed.
AS
BOONZAAIER, AJ
I
concur, and it so ordered
MA
MATHEBULA, J
For
the Appellant: Adv.
VC ABRAHAMS
Bloemfontein Local Office
Instructed
by: Bloemfontein
Justice Centre
32
nd
floor St
Andrews Street
BLOEMFONTEIN
For
the Respondent: Adv.
S TUNZI
Counsel for the
Respondent
Director
of Public Prosecutions
Waterfall
Building
BLOEMFONTEIN
[1]
R v Difford 1937AD 370.
[2]
S
v Sithole and Others 1999(1) SACR 585 (W); S v Van Der Meyden 1999
(2) SASV 79(W)
[3]
S
v Mkhohle
1990
(1) SACR 92
at
100 e.
[4]
(A283/2017)
[2018] ZAGJHC 131, 31 May 2018)
[5]
S
v M 1992(2) SASV 188 (W) op 194 h-I; J v S All SA 1998 (2) SA 267
(A).
[6]
Sv
Sauls
and Others 1981(3) SA 172A 180E-G; ZAFSHC/2022/138
[7]
1980(3) SA 755 (3) at 761
[8]
S
v Rabie
1975
(4) SA 855
(A)
at 857 D-F;
[9]
S
v Makondo 2002(1) SA at 431E-F (SCA); see also S v Mothibe
1977(3) SA 823 (A) 830 D.
[10]
2001(1) SACR
469(A) at 478d-e
[11]
S
v Banda and Others 1991(2) SA (BGD) on 355 A.
[12]
2005(2)
SACR 386 (W)
[13]
1997(2)
SASV 3 (A) on 5 c-e:
[14]
S v Norman Makgopa and Others
SS 87/2021[delivered
18
/7/22]
[15]
2018
(1) SACR 479 (SCA).
[16]
S
v Matyiti 2011(1) SACR 40 (SCA).