About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 132
|
|
Olifant v S (A90/2022) [2023] ZAFSHC 132 (17 April 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
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
no.: A90/2022
In
the appeal between:
MOJALEFA
HAMILTON OLIFANT
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
et
DANISO,
J
HEARD
ON:
17 OCTOBER 2022
JUDGMENT
BY:
VANZYL,
J
DELIVERED
ON:
17 APRIL 2023
[1]
The appellant
was charged with 1 count of contravening
section 3
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007
,
read with,
inter
alia,
the
provisions of
section
51(1)
of
the
Criminal
Law
Amendment
Act,
105
of 1997
.
[2]
In terms
of the said
count
it
was alleged that on or about
13 - 14
November 2020 in the district of Excelsior the appellant unlawfully
and intentionally committed an act of sexual penetration
with the
complainant, S[....] G[....] M[....], 26 years of age.,by penial
penetration more than once without her consent.
[3]
The appellant
was legally represented during the trial.
[4]
The appellant
pleaded not guilty, but on 1 September 2021 he was convicted as
charged.
[5]
On 22
September 2021 the appellant was sentenced to life imprisonment.
[6]
The appellant
has an automatic right of appeal, in terms whereof the appellant's
appeal is directed against both the conviction
and sentence.
[7]
In terms of
the notice of appeal the grounds of appeal can be summarised as
follows:
Ad
conviction
:
1.
The court
erred in finding that although
the
complainant was
a
single
witness,
her
evidence
was
reliable
in
all material
respects notwithstanding the fact that her version was not
corroborated by the other state witnesses.
2.
The Court
erred in finding that the appellant was not a reliable witness,
despite corroboration for his version.
3.
The court
erred in not finding that the medical evidence can be considered to
also support the version of the appellant.
4.
The court
erred in finding that the complainant was a credible witness in all
material respects.
5.
The court
erred in not finding that the version of the appellant is reasonably
possibly true.
AD
MERITS:
Summarised
version of the evidence:
[8]
The
complainant testified that she is 26 years old (at the date of her
evidence on 17 March 2021), that she completed Grade 12,
that she
stays in W[….] and that she is unemployed.
[9]
On 13 November
2020 she was in the town of E[….] .
She was at Mr
T's tavern with her boyfriend, Mr Moferefere and a friend, Dikentsene
Motuko.
They
were consuming alcohol and according to the complainant she was
moderately under the influence.
[10]
At some stage during the night the complainant's boyfriend was banned
from the tavern and he left.
[11]
Later that evening the complainant left the tavern building and went
to the toilets, which were in a separate building, but
on the same
premises. After she relieved herself, the appellant entered the
toilet, after having opened the door which she had
closed. When she
asked him what he wants, he said "hey bitch open".
Thereafter he started assaulting her and drew a knife.
[12]
After the appellant entered the toilet, he closed the door and raped
her by means of penial penetration. After he raped
her, he assaulted
her again, where after he left.
[13]
She ran out of the toilet and reported the incident to the security
officers at the tavern. Thye were not known to her, but
they were
standing against the wall not far from the toilet. They, however,
responded by keeping quiet.
[14]
According to the complainant the appellant was not known to her and
she saw him for the first time that day.
[15]
Thereafter she
reported to a friend of her boyfriend, known as Mamelo, that
"there
is this man who just had his way with me there in the toilet and I do
not even know him,
but he
claims
that I
am
his
girlfriend".
Mamelo
then said that he would accompany her to her boyfriend's place.
On the way
when they got to the main tarred road, they saw that the appellant
was following them and the complainant
told Mamelo
that he, the appellant, is the man who did that to her.
[16]
When the
appellant got to them, Mamelo asked him what his story was and the
appellant responded that the complainant was his girlfriend.
Mamelo then
asked the complainant what exactly was going on. The complainant
testified that she responded by saying
"I
told him I do not even know this man, I only just met him today, I do
not understand why he [indistinct]".
[17]
The
complainant
immediately
thereafter testified as follows:
"And
then Mamelo just left me there and say that he had somewhere else to
go and he does not ... he said he is not getting
involved it is none
of his business and I asked him how can he leave me like this and say
it is none of your business and he said
he does not ... how can you
say that this is none of your business because I am telling you that
I do not even know this man."
[18]
However,
Mamelo then left her with the appellant and the appellant drew a
knife and said that they should go.
[19]
According to
the complainant she could not even scream, because she was scared of
the knife.
[20]
The appellant
took the complainant to the stadium where he again had sexual
intercourse with her and assaulted her.
When asked by
the prosecutor whether she consented to the sexual intercourse, the
complainant
responded that
"/
did consent,
but I
was scared
...
or because
I was scared".
[21]
The
complainant then told the appellant that she was not comfortable
at
that
spot
where
they
were,
which
remark
was only for
purposes of her planning to run away.
The appellant
believed her when she said that they should leave that particular
spot and then, as he was getting dressed, the complainant
got away
and ran towards a tavern near to the stadium, with the intention of
reporting the incident.
However, the
appellant chased after her and he managed to grab her and dragged her
back to the stadium, where he raped her again.
He also hit
her with the knife on her head before he had sexual intercourse with
her.
[22]
The
appellant
told
her
that
"[She
does]
not
want
to
have
sex
like
a
normal
person [she] should be treated like
a
bitch."
Then
he had sexual intercourse with her again.
[23]
The
complainant asked the appellant to let her go and told him that she
would not lay a charge against him, that she wants to go
to her
boyfriend's place, since she had to leave for Welkom the following
day.
[24]
The appellant
responded that they should go to his place of residence where she
should
"give
him one round at his place of residence"
and
then he would let her go to her boyfriend's place.
[25]
They then went
to the appellant's place of residence, which they entered by climbing
through the window.
When asked by
the prosecutor why they did not enter through the door, the
complainant testified that it was locked
"and
I do not know who he said he had left the key".
[26]
The appellant
had sexual intercourse with the complainant on a couch in the lounge.
The
complainant testified that she only agreed to the sexual intercourse
because she was scared and she wanted him to let her go.
[27]
She further
testified that she was scared that should she not have sexual
intercourse with him at his residence, he would stab her
to death.
[28]
After having
had sexual intercourse, the appellant told the complainant that since
she was not comfortable, they should proceed
to the bed.
She
complained, stating that he said that she should give him one round
and then he would let her go. However, he proceeded to rape
her on
the bed whilst he put the knife under the pillow.
[29]
After the said
sexual intercourse, she begged him to let her go, but he stated that
he knew that the moment she got out of the house,
she would lay a
charge against him.
The
complainant responded by stating that she would not lay a charge
against him, all she was requesting was that the appellant
let her go
so that she can go to her boyfriend.
However, the
appellant told her that she was not going anywhere and then he slept,
with the knife under the pillow, and told her
that should she try to
get away, she would see another side of him.
[30]
The
complainant woke the appellant and begged him to let her go, stating
that she would not do anything else, but to leave. The
appellant then
agreed and he let her out of the house through the window.
[31]
The
complainant went to her boyfriend's house, where she was told that he
was not at home since he went to Mamelo's house to get
his phone.
The
complainant then proceeded to Mamelo's house, but she met with her
boyfriend on his way from Mamelo's house.
He was in the
company of Mamelo.
[32]
When they got
to her boyfriend's house, she narrated the events of the previous
night, where after he called the police.
[33]
When the
police arrived, they took the complainant to the police station to
take her statement.
After they
obtained her statement, she was taken to a hospital in Thaba Nchu
where she was examined.
[34]
The
complainant testified that she sustained an injury on her left eye.
The said eye
was swollen and red.
She further
sustained bruises and scratches on her arms, which occurred when he
pulled her at the stadium and placed her on some
rocks.
In this
respect she also sustained some injuries at the back of her waist.
The appellant
was asked that since she stated that that night was the first time
she saw the appellant, how she explained to the
police as to who the
perpetrator was.
She explained
that Mamelo gave her the appellant's names.
[35]
The
complainant denied ever having had a love affair with the appellant
and testified that she saw him for the first time on the
day of the
incident.
[36]
During
cross-examination she confirmed that on Sunday, 15 November, she went
to show the investigating officer where the house was
where the rape
took place.
However, the
appellant was not at home.
The
complainant testified that since she did not know the appellant, she
did not know where he stayed.
She only
pointed out where the rape occurred at the house to where the
appellant took her.
Mamelo was the
one who provided the police with the information as to where the
appellant was residing, because the complainant
did not know.
According to
the complainant Mamelo said that the appellant is a cousin of his and
therefore he knew where the appellant was residing.
[37]
In further
cross-examination the complainant testified that her boyfriend was
asked to leave the tavern, because he was drunk, caused
a commotion
and picked a fight with the complainant.
In this regard
she explained that they pushed each other and grabbed each other by
the clothes.
[38]
She was asked
in what manner she was assaulted in the toilet. She testified that
the appellant hit her against her head with the
side of the blade of
the knife, although not with much force.
He also
slapped her with open hands on her face and she suffered one blue
eye.
[39]
The
complainant denied that she was with the appellant in the yard of the
tavern after she came out of the toilet.
[40]
The
complainant confirmed that her nickname is Slender.
It was put to
her that the appellant will testify that he met her in September 2020
and that they exchanged cell phone numbers,
which she denied.
It was further
put to her that after September she met with the appellant on
numerous occasions, but mostly over weekends.
The
complainant denied the statement.
It was further
posed to her that the first time she and the appellant
had consensual
intercourse was approximately two weeks after
they met for
the first time in September 2020.
The
complainant again denied the statement and repeated that she saw the
appellant for the first time on the day of the incident.
She first
saw him at another tavern where they were before they went to the
tavern where the incident occurred. The appellant was
selling
cigarettes there.
[41]
The appellant's version was put to the complainant during
cross-examination. According to the said version the appellant went
to the tavern with friends of his. After a while he saw the
complainant crying whilst she was talking to a male person and the
appellant approached her. The male person who she was talking to,
then left and the appellant asked her what was wrong, to which
the
complainant explained that her boyfriend had assaulted her. She
requested a cigarette from him and he gave her one. At that
stage
Solly, the tavern owner, said that the tavern was closing, where
after the appellant left. The complainant denied the aforesaid
version.
[42]
It was further
put on behalf of the accused that even after he left the tavern, the
complainant still approached him and told him
that her boyfriend left
her there and that she did not want to go home and sleep with her
boyfriend.
Thereafter the
complainant walked along with the appellant on the tarred road to his
home. Having
arrived at
home,
he
opened the door and they entered the house.
After they ate
some food, they both undressed their own clothes and got into bed
where the appellant had consensual intercourse
with the complainant.
They had
consensual intercourse about three or four times before the
complainant fell asleep.
The
complainant denied the aforesaid version.
[43]
It was
further put to the
complainant that the next morning the complainant woke the appellant
and asked him for R400.00.
He indicated
to the complainant that he only had R100.00, but she refused to take
the R100.00.
After the
complainant refused to take the R100.00, she left.
This part of
the appellant's version was also denied by the complainant.
[44]
Mr TP Mohanwe,
also known as Mamelo and to whom I shall refer as such, testified
that the night of the incident he was leaving
the tavern on
his own.
As
he was leaving the tavern, he met the complainant and the appellant.
The
complainant screamed.
Mamelo
approached them and then the complainant told him that
"this
man wanted to rape her, told her that he was going to rape her".
The
appellant, however, responded that they were actually in a
relationship as lovers. Mamelo then told them that he did not want
to
get involved in their business and he left.
[45]
The next
morning Mamelo met with his friend, Moferefere, who was with the
complainant.
The
complainant then told him that she had been raped by Mojalefa
Olifant, the appellant.
She was in
shock when she told him this.
Mamelo advised
her that she should go to the police.
[46]
During
cross-examination Mamelo confirmed that he met Moferefere at the
tavern the night of the incident.
He knew that
Moferefere and the complainant were in a relationship. Moferefere was
drunk and there was an altercation between Moferefere
and the
complainant.
When it was
put to him that Moferefere grabbed the complainant and hit her,
Mamelo testified that he did not witness that.
He did,
however, confirm that Moferefere was chased out of the tavern.
[47]
Mr Moferefere
was also called as a witness.
He testified
that the evening of the incident he was with his girlfriend, the
complainant, a friend of hers and Mamelo at the tavern.
He left before
the others, since he was too drunk and caused a commotion.
[48]
The following
morning he met Mamelo in a street.
Mamelo and Mr
Moferefere then walked to the house of Mr Moferefere.
On their way
they met the complainant.
Thereafter the
three of them walked together to the house of Mr Moferefere.
Mamelo then
said to the complainant that she should tell Mr Moferefere what had
happened.
Mr
Moferefere looked at the complainant and he was shocked to see that
her one eye was bruised, since he did not leave her in that
condition
the previous night.
The
complainant went into the shack of Mr Moferefere and got into bed.
Mr Moferefere
and Mamelo went to buy some beers, which they consumed, whereafter
Mamelo left.
The
complainant then told Mr Moferefere what had happened the previous
day at the tavern.
She told him
that she had been raped
in
the
toilet,
whereafter
she
ran
to
seek
help
from
a security
officer at the gate.
Mamelo walked
her home and as they were walking, there was a man following them.
Mamelo then
told her that he is not going to get involved.
[49]
Mr Moferefere
testified that the complainant told him that it was Mojalefa who
raped her.
Mr
Moferefere then called the police.
[50]
During
cross-examination Mr Moferefere testified that when he had an
altercation with the complainant the night at the tavern, he
grabbed
her by the clothes and pulled her.
He did not
tear her clothes.
[51]
Mr Moferefere
testified during further cross-examination that the complainant also
told him that after Mamelo left her the previous
evening, she was
also raped at the stadium.
[52]
Mr
Ramokanakhi,
also known as
Solly, testified that he runs the tavern where the incident occurred.
The night of
the incident as he was closing the tavern he saw two people in the
yard of the tavern, being Mojalefa Olifant, the
appellant and a lady
whose name is not known him, but he will be able to identify her.
The lady
reported to him that the appellant had assaulted her and that he
wanted to leave with her.
Mamelo was
close by and he indicated that he will leave with her.
At that stage
the lady was crying and she was hurt.
He testified
that he knew her as a person who would come to the tavern to drink,
but that she was not from there.
He has known
the appellant for a very long time. He has never had any problems
with him at his business.
[53]
During
cross-examination he testified that she did not report to him that
she had been raped.
[54]
Dr PM
Mofubetswana, who performed a medical examination on the complainant
on 14 November 2020 at 17h45 was also called as a state
witness.
He duly placed
his qualifications and experience on record.
[55]
The J-88
report pertaining to the aforesaid medico-legal examination was
handed in as exhibit "A".
[56]
I do not
intent dealing with the detailed evidence of Dr Mofubetswana.
I will,
however, later in the judgment refer to certain aspects of his
evidence.
[57]
The appellant
testified in his own defence.
[58]
He testified
that he met the complainant on 15 September 2020, where after they
normally
met
during weekends
at the tavern.
It was
normally at Amelia's Tavern and he once met her at Mr T's tavern.
According to
the appellant they were romantically involved.
They had
consensual sexual intercourse for the first time two weeks after 15
September 2020 at the home which he was renting.
They had
consensual intercourse twice at his rental place before the day of
the incident.
[59]
On the day of
the incident he met the complainant at Amelia's Tavern where he was
selling cigarettes.
The
complainant bought cigarettes from the appellant.
She asked him
why he is so scarce, to which he responded that he was kept busy by
his
studies,
but that he would make time for her. The complainant did not respond,
she just turned and walk away.
[60]
At around
midnight the appellant went to Mr T's Tavern with two friends of his
and after he bought liquor, he saw the complainant
crying.
She was not
inside the tavern, but inside the yard of the tavern.
She was with a
male person whom he could not recognise.
[61]
The appellant
approached the complainant, whereupon the said male person left.
The appellant
asked her why she was crying and she told him that her boyfriend had
assaulted her. He, however, could not see any
injuries.
[62]
Solly then
told them to leave the tavern, since it was closing at that stage.
The appellant
left the tavern premises, leaving the complainant behind.
[63]
After he left,
the appellant sold cigarettes outside the tavern premises.
The
complainant approached him and told him that she did not want to go
to her boyfriend, because he had assaulted her.
The appellant
told her that he would give her a place to sleep, whereupon she
agreed that she would go home with him.
When they
arrived at his residential home, he unlocked the place and she
entered voluntarily with him.
After they
entered the house, she requested a cigarette from the appellant,
whereupon he handed her one, which she smoked. Thereafter
she said
that she was hungry.
He gave her
food and after she had eaten the food, she went into the bedroom and
climbed into bed.
The appellant
followed
her and also
got into bed.
They started
touching each other, kissing and then they had consensual sexual
intercourse.
According to
the appellant they had intercourse three times that night.
Thereafter
they slept.
[64]
In the morning
the complainant woke him at around 7h00, told him that she wanted to
leave, to which he agreed.
However, she
then told him that she wanted some money.
In this regard
she told the appellant the previous night already that she needed
money to return home the following day.
According to
the appellant she requested R500.00.
He told her
that morning that he did not have that much money on him and that he
had about R100.00 with him.
In response
thereto, the complainant told him that she was going to lay a charge
against him. Thereafter the complainant left his
place.
[65]
The appellant
denied the allegations of rape which the complainant testified about.
[66]
During
cross-examination it was posed to the appellant that his attorney put
it to the complainant that she requested R400.00, whilst
the
appellant was now testifying that she demanded R500.00.
The appellant
explained that some of the aspects of the incident have since slipped
his mind.
[67]
He was
cross-examined on whether he made arrangements with the complainant
when he sold cigarettes to her at Amelia's Tavern, to
the effect that
she would be sleeping at his place that night,
to
which
the
appellant
responded
that
he
did
not
make any
arrangements.
However,
according to
the appellant
he told her that they would meet in the days to come.
Legal
principles:
[68]
The approach
to be followed in evaluating the evidence in a criminal case has been
authoritatively
set out in
S v
Mattioba
1973 (1)
PHH
24
(N):
"The
proper approach in a criminal case is to consider the totality of the
evidence, that is to say, to examine the nature
of the State case,
the nature of the defence case, the probabilities emerging from the
case as a whole, the credibility of all
the witnesses in the case
including the defence witnesses, and then to ask oneself at the end
of all this whether the guilt of
an accused has been established
beyond reasonable doubt."
See
also
S v Claassen
2012 JDR 1091 (FB) at para
[9].
[69]
With regard to
the consideration of the appellant's version, the following
dictum
in
S
v V
2000 (1)
SACR 453
(SCA) at para [3]
(i)
is applicable:
It
is trite that there is no obligation upon an accused person, where
the State bears the
onus,
'to convince the court'. If his
version is reasonably possibly true he is entitled to acquittal even
though his explanation is improbable.
A court is not entitled to
convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable
doubt, it is false. It is
permissible to look at the probabilities of the case to determine
whether the accused's version is reasonably
possibly true but whether
one subjectively believes him is not the test. As pointed out in many
judgments of this Court and other
courts the test is whether there is
a reasonable possibility that the accused's evidence may be true."
[70]
The
complainant was a single witness in relation to the alleged rape and
consequently her evidence has to be approached with caution
as set
out,
inter
alia,
in
Stevens
v S
[2005] 1
ALL SA 1
(SCA) at para [17]:
"[17]
As indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her.
In terms of
section
208
of the
Criminal Procedure Act 51 of 1977
, an accused can be
convicted of any offence on the single evidence of any competent
witness. It is, however, a well-established
judicial practice that
the evidence of a single witness should be approached with caution,
his or her merits as a witness being
weighed against factors which
militate against his or her credibility (see, for example, S
v
Webber
1971 (3) SA 754
(A) at 758GH). The correct
approach to the application of this so-called "cautionary rule"
was set out by Diemont
JA in S
v
Sauls
and
others
1981 (3) SA 172
(A) at 180E-G as follows:
'There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S
v
Webber .
..).
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 [in
R
v Mokoena
1932
OPD 79
at 80] 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.'"
[71]
Considering
that we are sitting as a court of appeal, it is important to be
mindful of the following trite principles as set out
in
S
v Mayisela
2013 (2)
SACR 129
(GMP) at para [10]:
[10]
Before I
consider the submissions in this regard, it is helpful to restate the
approach to be adopted by a court of appeal when
it deals with the
factual findings of a trial court. The proper approach is found in
the collective principles laid down in
R
v Dhlumayo and Another
by the
then Appellate Division. They are the following.
A court of
appeal will not disturb the factual finding of a trial court, unless
the latter has committed a misdirection. Where there
has been no
misdirection on fact by the trial judge, the presumption is that his
conclusion is correct. The appeal court will only
reverse it where it
is convinced that it is wrong. In such a case, if the appeal court is
merely left in doubt as to the correctness
of the conclusion, then it
will uphold it."
The
judgment of the court a
quo:
[72]
When the
judgment of the court a
quo
is
considered,
it
is evident that the crux of the issues was correctly identified by
the court to be the following:
"Whether
the accused had sexual intercourse with the complainant without her
consent and whether the accused had sexual intercourse
with the
complainant in the toilet and at the stadium."
[73]
In evaluating
the evidence in order to consider the aforesaid issues, the court
referred to the applicable principles, supported
by relevant case
law.
In
this regard the court a
quo
referred
to the approach to be followed in considering the evidence as a
whole, the caution which is to be applied considering that
the
complainant
is
a
single
witness
"on
the
crucial
aspect
of
rape
and the fact that the State bears the burden to prove its case beyond
reasonable doubt and that if there is
a
reasonable
possibility of the accused's version being true, he is entitled to be
acquitted".
[74]
Mr van der
Merwe, who appeared on behalf of the appellant, submitted that, based
on his instructions, the court a
quo
erred in
finding that there were no material contradictions in the
complainant's version.
[75]
The court a
quo
duly
dealt with the contradictions and inconsistencies between the
evidence of the complainant and that of Mamelo and Solly.
In this regard
the following was stated in the judgment at p. 179, line 9 -
p. 180, line
1:
"This
is not a natural behaviour of someone who had had consensual sexual
intercourse.
It makes even
less sense that being the one who did not want to leave with her
boyfriend, she proceeded to report immediately after
she had left the
accused's house.
The
complainant's version has been attacked on the basis that it
contradicts that of the other witnesses, who in turn also
contradicted
each other.
This is in
particular as to how the complainant, Mamelo and Solly interacted at
the tavern.
These
contradictions are inconsistencies and not material and the sort of
thing that should be expected from a honest, but imperfect,
recollection, observation and reconstruction.
If anything
the evidence of Solly and Mamelo reinforces the suggestion by the
complainant that she did not want to leave with the
accused.
Mamelo
testified that the complainant had screamed.
Solly further
testified that the complainant reported that the accused wanted to
leave with her by force and that she was crying
and hurt, that is
what he observed.
That then
re-enforces the golden thread that the complainant did not in fact
willingly leave with the accused."
[76]
Although
it is correct that there were inconsistencies in the State's case
with regard to the circumstances under which the complainant
left the
tavern, the versions of the respective witnesses do correspond with
regard to the fact that the complainant did not want
to leave with
the accused and in fact left with Mamelo.
The court
a
quo
was,
in my view, consequently correct to have made the finding with regard
to
"the
golden thread"
in
this regard.
[77]
There are also
contradictions with regard to how the complainant met up with Mamelo
and/or Moferefere the morning after she left
the appellant's house.
In my view
those contradictions are not material either.
The fact of
the matter is that the complainant reported the rape at the first
opportunity after she left the appellant's house.
[78]
Being mindful
of the fact that the complainant is a single witness and the
consequent cautionary approach with regard to her evidence,
the court
a quo
found
as follows in its judgment at p. 177, line 11 -
line 23:
"She
testified before this court in a clear manner, she gave a detailed
and a lengthy version on each of the rape incidents.
The incident in
the toilet was described in some details, so were the incident at the
stadium and the one at the house, both in
the lounge and the bedroom.
She was cross-examined by the defence at length and she did not
deviate from her version. She struck
the court as a honest witness
and an intelligent one with a near perfect recollection and
chronology. She further explained her
injuries and aligned each one
with each of the incidents. The complainant reported the rape at the
first opportunity after leaving
the accused's place, which shows
consistency on her part."
[79]
When the
medical evidence is considered, the following is evident from the
evidence of Dr Mofubetswana, considered in conjunction
with the J-88
medico-legal report, exhibit "A":
1.
The
"clinical
findings"
which were
recorded in section C of the report under
"General
Examination",
read
as follows:
"1.
Haematoma
below left eye.
2.
Linear
bruise
anterior
service
of
right
upper
arm.
3.
Bruise
anterior to
medial
service
of
left
upper
arm.
4.
Bruises
lower
back.
5.
Small
tear
vaginal
vulva."
2.
The
"conclusions"
noted at
paragraph 8 in section C of the report, are the following:
"1.
General body
examination suggestive of assault.
2.
Vaginal examination
suggestive of penetration."
3.
In section E
of the report, being the
"Gynaecological
Examination",
at
paragraph 20, the following was recorded:
"Tears
on vaginal vulva."
4.
The
"conclusion"
in section
F of the report, was recorded to be the following:
"Clinical
findings
are
suggestive
of
penetration."
5.
The aforesaid
clinical findings were also indicated on the sketches which form part
of the J-88 report.
6.
With regard to
the vaginal vulva tears, Dr Mofubetswana explained in his evidence
that with any means of penetration, the causation
of tears will
depend on whether the vagina was lubricated or not and also depending
on the size of the opening and on the size
of the penetrating object.
During
cross-examination he conceded that it is possible that such a tear
can occur as a result of consensual intercourse, but also
from non
consensual penetration.
7.
With regard to
the
"General
History''
reflected
on the J-88 report, Dr Mofubetswana testified that he concentrates on
the
"medical
history"
provided
for under the aforesaid heading on the J-88 report.
Therefore, he
does not enquire about the forensic history such as how many times
the complainant was raped, who the perpetrator
was, where it happened
and how it happened.
In his view
the last-mentioned issues form part of a forensic examination to be
done by a forensic specialist person and not by
him.
[80]
The court a
quo
found
corroboration for the complainant's version in the aforesaid medical
evidence, in my view, correctly
so.
[81]
With
regard
to
the
version
of
the
appellant,
the
court
a
quo
referred
to the fact that according to the
appellant he
had sexual
intercourse
with the complainant two or three times before the incident.
The court then
further stated as follows at p. 178, line 8 -
line 16 of the
judgment:
"Further
testified that the relationship was good to the extent that, it was
the complainant who accused him of being scarce
at Amelia's Tavern.
In all the previous encounters she never laid charges against the
accused. She never demanded money from him
before or accused him of
rape. It is obviously a strange and unnatural behaviour on the part
of the complainant to suddenly, because
accused is unable to give her
R500.00, lay a charge of rape with all the serious consequences that
flow therefrom."
[82]
It was further
stated that the accused was unable to account for the injuries on the
complainant.
In fact, he
testified that he did not observe any injuries on her.
[83]
The court
a
quo
concluded
as follows with regard to the appellant's
version in its
judgment at p.180, line 1 -
line 14:
"The
accused denies that he raped the complainant in the toilet, he
further denied that they even went to the stadium ... If
the
complainant wanted to falsely implicate the accused, it would have
been enough to sustain a rape charge to cite the incident
at the
house. It makes no sense that she would manufacture evidence, other
than what happened in the house. If the version of the
defence is
accepted, it would mean that the complainant manufactured the whole
story. Viewed holistically the version of the defence
is untenable,
the accused's version flies in the face of probabilities and I may
venture to say it is farfetched and is accordingly
rejected as not
being reasonably possibly true."
[84]
With regard to
the evidence of the complainant,
the court
a
quo
found
that it met the threshold in
section 208
of Act 51 of 1977 in that it
was satisfactory in all material respects.
It further
found that the complainant was a credible witness whose version was
corroborated by the medical evidence.
[85]
The court a
quo
consequently
found that the State proved its case beyond reasonable doubt against
the appellant to the effect that he had sexual
intercourse with the
complainant without her consent more than once.
[86]
In my view
there is no basis upon which we can interfere with the aforesaid
findings of the court a
quo.
The court
a
quo
did
not commit a misdirection with regard to its factual findings.
In fact, in my
view the factual findings made by the court a
quo
were
correct and properly substantiated by the evidence.
[87]
In addition to
the aforesaid, the court a
quo
clearly
also applied the applicable legal principles in its evaluation of the
totality of the evidence.
[88]
The appeal
against the conviction can consequently not succeed.
AD
SENTENCE:
[89]
It
is
trite
that
the
imposition
of
sentence
is
pre-eminently
a matter which
falls within the
judicious
discretion of
the
trial
court.
[90]
The
circumstances
in which a
court of appeal will interfere with the sentence imposed by a court a
quo
were
again confirmed in
S
v
Rabie
1975 (4)
SA 855
(A) at 857C -
F:
"1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge, the Court hearing the appeal –
(a)
should be
guided by the principle that punishment is 'pre-eminently a matter
for the discretion of the trial Court'; and
(b)
should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the discretion
has not
been 'judicially and properly exercised'.
2.
The test under
(b)
is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate."
[91]
In this
particular instance where the complainant was raped more than once,
life imprisonment is the prescribed minimum sentence
in terms of
section 51(1) of the General Law Amendment Act, 105 of 1997.
The court a
quo
was
consequently compelled to have imposed life imprisonment, unless it
found that there were substantial and compelling circumstances
that
justify the imposition of a lesser sentence than the prescribed
minimum.
[92]
A victim
impact statement was handed in as exhibit "D".
[93]
The court a
quo
took
the following personal circumstances of the appellant into
consideration:
1.
He was 31
years old at the time.
2.
The appellant
is not married, but he has a life partner with whom he has three
minor children.
The children
are being maintained by means of child support grant which is
received by their mother.
3.
The
appellant's highest level of education is Grade 12.
4.
At the time of
this arrest, the appellant was trying to earn a living through
various jobs for which he earned between R2 000.00
and R2 500.00 per
month.
5.
The appellant
used the aforesaid income to assist with the maintaining of the
household and the children.
6.
The appellant
has tried to improve himself by means of correspondence studies.
7.
The appellant
is a first offender.
[94]
The
court
a
quo
took
the
following
aggravating
factors
into account:
1.
The
seriousness of the offence rape and its prevalence throughout the
country.
2.
The
complainant was attacked and raped when she was in the restroom,
which is indicative of a certain degree of planning by the
appellant.
3.
The
complainant was taken at knifepoint to the stadium where she was
raped on a rocky surface and when she attempted to escape,
she was
caught and dragged back to the stadium and raped again.
4.
At the
appellant's house she was raped twice, first in the lounge and then
in the bedroom.
Thereafter she
was threatened not to attempt escaping.
5.
The appellant
had ample time to reconsider his conduct, which he failed to do,
despite the fact that the complainant was begging
to be released.
6.
The
complainant suffered physical injuries as reflected on the J-88
medico-legal report.
7.
In
terms of the victim impact report, it is evident that the complainant
needs psychological intervention as a result of the incident.
The
incident had a life changing negative effect on the complainant.
[95]
The court
a
quo
dealt
with the submission by the defence in the court
a
quo
that
the cumulative effect of the appellant's personal circumstances
constitutes substantial and compelling circumstances which
justify
the imposition of a lesser sentence that life imprisonment.
However, the
court a
quo
correctly
stated that the prescribed minimum sentence should not be deviated
from lightly or for flimsy reasons.
[96]
The court
a
quo
concluded
that there are no substantial and compelling circumstances which
justify a deviation from the prescribed minimum sentence.
The court
a
quo further
concluded
that the degree of seriousness of the present matter is indeed of
such a nature that it constitutes one of the more serious
crimes for
which life imprisonment
is reserved.
[97]
Mr van der
Merwe indicated that based on his instructions, he submits that the
court incorrectly found that there are no compelling
and substantial
circumstances present.
He contended
that in terms of the case law it is evident that there has to be a
differentiation in degrees of seriousness in rape
matters and that
the present matter cannot be considered to be one of the most serious
rape matters which necessitates life imprisonment.
In this regard
Mr Van der Merwe relied on the judgment in
S
v
SMM
2013 (2)
SACR 202
(A).
He
consequently submitted
that
based
on
his
instructions,
the
sentence
of
life
imprisonment should be reduced to 15 to 20 years imprisonment.
[98]
In my view it
is evident that the court
a
quo
duly
considered the elements of sentencing, being the personal
circumstances of the appellant, the nature and seriousness of the
offence and the interest of society. He also correctly stated that in
instances of such serious crimes as the present one, the
elements of
retribution and deterrence as two of the purposes of sentencing, come
to the fore.
[99]
In my view the
court
a quo
exercised
its discretion regarding sentencing judicially and properly and the
sentence is not disturbingly inappropriate in the
circumstances.
There is no basis upon which we can interfere with the imposed
sentence.
[100]
The appeal
against the sentence consequently stands to be dismissed.
Order:
1.
The
appeal against
the
conviction
and
the
sentence is
dismissed.
C.
VAN ZYL, J
I
concur:
N.S.
DANISO, J
On
behalf of the appellant:
Mr
P. L. van der Merwe
Instructed
by
:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
A. M. Ferreira
Instructed
by
:
Office
of Director: Public Prosecutions
BLOEMFONTEIN