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2023
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[2023] ZAFSHC 92
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Mofokeng v S (A134/2022) [2023] ZAFSHC 92 (30 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A134/2022
Reportable:
YES
/NO
Of
Interest to other Judges:
YES
/NO
Circulate
to Magistrates:
YES
/NO
In
the matter between:
MKHULU
MOFOKENG
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, JP
et
CHESIWE,
J
HEARD
ON:
23 JANUARY 2023
DELIVERED
ON:
30 MARCH 2023
JUDGMENT
BY:
CHESIWE, J
[1]
The Appellant was convicted in the Regional Court: Bethlehem, of
raping a 12
year old female child in contravention of
section 3
of
the
Criminal Law (Sexual Offences and Related Matters), Amendment Act
32 of 2007
and sentenced to 25 years’ imprisonment. He
successfully applied for leave to appeal.
[2]
The Appellant was legally represented by Mr Khumalo, at the trial
court. The
Appellant was informed of the implications of
section
51(1)
read with
Part 1
of Schedule 2 of the
Criminal Law Amendment
Act 105 of 1997
, and that the relevant minimum sentence of life
imprisonment would be applicable if he were to be found guilty and
the court finds
no substantial and compelling circumstances.
[3]
The facts are briefly as follows. The Complainant testified that on
the 30
th
March 2019, she was visiting her grandmother
M[….] C[….] M[….]1 (M[….]1). At
approximately 21h00, she
prepared her blankets on the floor and
slept. While she was sleeping, she felt something heavy on top of
her. She immediately woke
up and saw that it was the Appellant. The
Complainant attempted to push the him away. The Appellant proceeded
to insert his penis
in her vagina and had sexual intercourse with
her. The Complainant then told the Appellant that she was going to
tell her grandmother
what had happened. The Appellant threatened the
Complainant that if she does tell, she will see what he will do to
her. The Complainant
testified that she did not know how the
Appellant removed her panty and pyjamas.
[4]
The next day, that is, 31 March 2019, the Complainant woke up to find
that Mokoena
and the Appellant had left her in the house. She went
back to her mother’s S[….] M[….]2 M[….]2
(M[….]2),
house. When she got home, she told M[....] what
happened and they immediately went to the police station. M[....]
corroborated
the Complainant’s testimony that the Complainant
came home early in the morning. Which, according to M[....], was
unusual,
as the Complainant usually returns a day before schools
reopen.
[5]
Appellant’s version was that the Complainant called by waving
at him on
two occasions. He refused to go to the Complainant and
instead made a sign with his thumb that it was wrong for her to wave
at
him. The Appellant denied that he had sexual intercourse with the
Complainant.
[6]
Mr. Mokoena, on behalf of the Appellant, explained that the written
heads of
argument were drafted by Mr Mokena. He intimated that he
stands by those heads and submitted that alcohol played a role in the
commission of the offence.
[7]
Adv. Ferreira, on behalf of the Respondent, submitted that the trial
court evaluated
the evidence and contradictions between the
testimonies of the Complainant and that of the grandmother and
concluded that despite
the contradictions, the Complainant was
truthful, honest and an impressive witness. She submitted that the
appeal ought to be dismissed.
AD
CONVICTION
[8]
It is trite that the state bears the onus of proving the guilt of an
accused
person beyond reasonable doubt. Indeed, the Complainant was a
single witness pertaining to the sexual violation. The trial court
evaluated her evidence in its totality and approached it with caution
because she was a single witness and a child.
Although
caution was applied to her testimony, she was found to be a
trustworthy witness who had a good recollection of the incident.
The
trial court took into account all the evidence of the State witnesses
as well as the evidence of the Appellant.
[9]
Section 208
of the
Criminal Procedure Act, 51 of 1977
, provides that
an accused may be convicted of an offence on the evidence of single
and competent witness. The court
a quo
not only referred to
the cautionary rules, but in my view, duly applied them. The trial
court cannot be faulted in that regard.
[10]
It is trite that the court must approach the question of
identification with caution, because false
identifications present a
great threat to the achievement of our ideal legal system, that no
innocent person should be convicted
and punished. The trial court
dealt with the issue of identification in its judgement. It took into
consideration the time the
Appellant was with the Complainant; and
the time the Complainant has known the Appellant before the incident.
The Appellant is
her grandmother’s partner and she has on many
occasions visited at the grandmother’s place while the
Appellant was
there. To the extent that the Complainant calls the
Appellant Mkhulu (grandfather). The Appellant admitted that he knows
the complainant
because he has a love affair with her grandmother.
The
Complainant’s testimony in respect of the identity of Appellant
was clear and logical, as she knew him well, and that
cannot be
faulted. Nor is there any evidence as to why the Complainant would
falsely implicate the Appellant for something he has
not done.
[11]
Furthermore, Mokoena’s evidence is clear that the doors were
locked the night they went to sleep.
Neither was there any evidence
that there was forced entry or someone tampered with the doors. This
excludes the possibility that
someone other than the Appellant and
Mokoena entered the house that night.
[12]
The Appellant’s version that the Complainant, who is a minor
child, waved and gestured towards
his direction, ought to be rejected
in its totality. Even if the Complainant waved at the Appellant, he
is the adult and ought
to have conducted himself as such. To have
allegedly taken the offer to sleep with a minor child is disgusting
on the part of the
Appellant. He was 64 years of age and the
grandfather of the Complainant. The trial court in its judgement
dealt with this aspect
and said:
“…
this
was a 13 year old calling him, an adult an aged man above the age of
sixty, so there was something sinister about him being
called by the
child.”
[13]
It is trite that an appeal court will only tamper with the trial
court’s credibility findings
under very limited circumstances.
The trial court with the evidence before it was satisfied in that the
State proved the Appellant’s
identity beyond reasonable doubt.
It correctly came to the inescapable conclusion that the Appellant
was the person who had sexual
intercourse with the Complainant and
correctly convicted him. There is no reason to doubt the correctness
of the credibility findings
made by the trial court. In my view, the
trial court correctly convicted the Appellant and there is no reason
to tamper with the
trial court’s findings on conviction.
AD
SENTENCE
[14]
Mr. Mokoena submitted that the trial court has already deviated from
the prescribed sentence of life
imprisonment. He urged the court to
take into consideration, the Appellant’s age; that he does not
have a criminal record;
that he has three children aged 39, 17 and 5
years and was in custody for more than one year. He submitted that
the sentence be
reduced to 15 years.
[15]
Adv. Ferreira submitted that the trial court took into consideration
the Appellant’s personal
circumstances and deviated from the
life imprisonment to 25 years’ imprisonment. She mentioned that
the trial court took
into consideration the aggravating factors,
namely, rape is not only prevalent, but a serious offence. The
Complainant was 13 years
old; she was at her grandmother’s
place, a place where she was supposed to feel safe. She further
submitted that the Appellant
showed no remorse. She contended that
that the appeal against sentence ought to be dismissed.
[16]
It is trite that sentencing is a matter of discretion by the trial
court. A court of appeal will only
interfere if the sentencing court
has failed to exercise its discretion reasonably. This will be in
situations where the trial
court misdirected itself or committed an
irregularity or the sentence is shockingly inappropriate. This means
the discretion must
have been exercised wrongly.
[17]
The Appellant was convicted of a very serious offence. Ordinarily a
sentence of life imprisonment must
be imposed unless the court finds
that there are substantial and compelling circumstances which justify
the imposition of a lesser
sentence, taking into account what was
said in
S v Malgas
2001 (1) SACR 469
(SCA)
. However, the trial
court took into consideration the Appellant’s personal
circumstances and deviated from a sentence of
life imprisonment.
[18]
The Appellant was in a position of authority and trust in respect of
the Complainant. Given the gravity
of the offence which was
committed, there is no doubt that the Appellant abused the trust the
Complainant had in him. The mere
fact that the Appellant was the
Complainant’s grandmother’s boyfriend, alone is
aggravating.
[19]
According to the testimony of Musila Rebecca Nhlapo, a Forensic
Nurse, the Complainant sustained posterior
fourchette scarring,
increased swelling and bruising of the hymen ring with increased
friability; annular swelling with two bumps.
Even though the trial
court stated in its judgment that the Complainant did not sustain any
physical injuries, she presented vaginal
injuries. The rape trauma
will be with her for the rest of her life, even if the Victim Impact
Report was not filed at the trial
court, in my view the vaginal
injuries are quiet serious.
[20]
In
S
v M
[1]
,
the court said:
“
Furthermore,
the responses of rape survivors are as surely complex and
multi-layered as are the individuals who experienced rape.
You must
therefore expect the manifestations of the impact of rape to be
varied in every respect. Some responses will be publicly
displayed
and others privately endured. Some rape survivors will collapse while
others bravely soldier on.”
[2]
[21]
Rape is a
repulsive crime. It is an invasion of the most private an intimate
zone of a woman and strikes at the core of her person
and dignity.
[3]
In
S v
Chapman
[4]
,
the court called it a ‘humiliating; degrading and brutal
invasion of the privacy and the violation of a person’s
dignity’. It further said that:
“
Women
in this country 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 tranquillity of their homes
without fear of the apprehension and the insecurity
which continually
diminishes the quality and enjoyment of their life.”
[5]
[22]
The trial court took into consideration the Appellant’s
personal circumstances, and in its view,
there was exceptional
personal circumstances. It was very generous. The question is, did
the trial court commit a misdirection
or irregularity? If none
exists, then this court is bound by the sentence imposed by the trial
court.
[23]
After careful consideration of all the relevant circumstances I could
neither find that there are circumstances
which justify the
imposition of a lesser sentence than the sentence imposed by the
trial court. There is nothing that persuades
me to impose a sentence
different from that imposed by the trial court. The sentence imposed
is just and appropriate to this particular
offence and there is no
justification to tamper with it.
[24]
Consequently, the following order is made;
1.
The appeal against the conviction and sentence is dismissed.
2.
The conviction and sentence of 25 years, imposed by the trial
court, are confirmed.
S.
CHESIWE, J
I
CONCUR
C.J.
MUSI, JP
On
behalf of the Appellant: Mr
P Mokoena
Instructed
by: Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent: Adv. AM Ferreira
Instructed
by: Director
of Public Prosecutions
BLOEMFONTEIN
[1]
S v M
2007 (2) SACR 60 (WLD).
[2]
Ibid para 99.
[3] S v Vilakazi
(567/02) [2008] 87;
[2008] 40 ALL SA 396
(SCA)
2009 (1) SACR 55
2
(SCA)
(2012) (6) SA 353
(SCA) (3 September 2008.
[4]
(345/96)
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA);
[1997] 3 ALL SA 277
(A); (22 May 1997).
[5]
Ibid para 4.