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 190
|
|
Molete v S (A 135/2022) [2023] ZAFSHC 190 (12 May 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
Appeal
no
.
A 135/2022
In
the appeal of:
SELLO
ABRAM
MOLETE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
MHLAMBI, J
et
VAN RHYN, J
JUDGMENT
BY
VAN RHYN, J
HEARD
ON: 17
APRIL 2023
DELIVERED
ON
12 MAY 2023
[1]
On 31 May 2021 the appellant was convicted at the Regional Court
Bethlehem on a count of contravening
section 3 of Act 32 of 2007,
read with the provisions of section 51(1) of Act 105 of 1997. The
provisions of section 51 (1) of
Act 105 of 1997 were duly explained
to the appellant at the commencement of the trial.
[2]
Appellant was represented by an attorney during the trial which
commenced on 10 May 2021. The appellant
pleaded not guilty to the 6
charges of rape levelled against him and did not tender a plea
explanation. In respect of 5 of the
charges, which relate to
incidents which allegedly occurred during 2015, 2016, 2017, 2018 and
2019, the court
a quo
held that due to the complainant’s
inability to recall the facts relating to the charges, doubt existed
in respect of the
guilt of the appellant with the result that he was
acquitted on these charges. In respect of the 6
th
charge regarding the rape of the complainant on 22 September 2019,
the appellant was sentenced to life imprisonment.
Appellant has an automatic right of appeal and filed a Notice
of Appeal against his conviction and sentence on 10 June 2021.
[3]
The record reflects that before the complainant, a 16-year-old minor
girl, presented her testimony,
the trial court made a ruling in terms
of Section 170A(1) of the Criminal Procedure Act
[1]
that her evidence be presented through the assistance of an
intermediary. The defence did not raise any objections and
after
considering the qualifications and experience of the proposed
intermediary, an order was duly granted. Complainant gave
evidence
in camera. The testimony of another minor child, the 16-
year old K[…] D[…] T[…] was also presented
through
the assistance of the intermediary.
[4]
The grounds upon which the appellant’s appeal against the
conviction rest are that the court
a quo
erred in:
4.1
finding that the guilt of the appellant was proved beyond reasonable
doubt;
4.2
finding that the complainant was a credible witness;
4.3
drawing a negative inference from the appellant’s version and
failing
to find the appellant to be a credible witness;
4.4
finding that the contradictions in the complainant’s testimony
and the
contradictions between her testimony and the other state
witnesses were not material.
[5]
The facts underlying the conviction are briefly as follows: The
complainant is the
daughter of the appellant. She was born on 15
February 2006. A copy of her birth certificate was handed up as an
exhibit. At the
time of the trial she was 15 years old. Her mother
had passed away and complainant and her brother resided with the
appellant at
Bethlehem. The complainant testified that the appellant
had committed several incidents of rape since 2015. She was able to
recall
that on 23 December 2015, when she was 8 years old, the
appellant picked her up from the kitchen floor where she and her
brother
were sleeping and carried her to his bed situated in a
bedroom where he raped her.
[6]
She did not report the incident to anyone, because she was afraid.
Her brother was
sleeping at the time. The bedroom where she was raped
was separated from the kitchen, where her brother was sleeping, with
a curtain.
The complainant was unable to recall any of the other
incidents which allegedly occurred since 2015 up until the last
incident
which occurred on 22 September 2019. She testified that she
made a mistake when she reported the matter to the police, indicating
her statement, that the first incident occurred during 2014.
[7]
In respect of count 6 which count relates to the incident on 22
September 2019, she
testified that on the particular day at
approximately 20h00 she was sitting on the appellant’s bed, in
the corrugated iron
shack. She, her father and her brother were
residing in the shack. She was playing games on the appellant’s
cell phone while
he was taking a bath in her presence. The appellant
then asked to have sexual intercourse with her. She refused. He
started having
sexual intercourse with her on his bed where she was
sitting after pulling down her pants to below her knees. He then
picked her
up and took her to another bed where he had further sexual
intercourse with her. He subsequently gave her money. The
complainant’s
brother was not at home and was working at a shop
when the incident occurred.
[8]
The complainant did not report any of the incidents because she was
afraid that she
would not be believed. The following day, she was
called by the neighbour, Mrs Tsie who questioned her about what
happened inside
the house. During cross-examination it was
established that the complainant initially did not want to reveal to
Mrs Tsie what had
occurred, but she later during the discussion,
explained that she and her father had a sexual relationship.
[9]
The State presented the testimony of Mamamoiketsi Reginah Tsie (“Mrs
Tsie”)
who confirmed that she received a report from her
daughter, who in turn received a report from her brother, K[…]
D[…]
T[…] (“K[…]”) that he witnessed
how the complainant was raped by the appellant.
[10]
K[…] was 16 years old when he testified. He befriended the
complainant and used to call her
to visit him and to watch
television. However, since he was reprimanded by the appellant not to
visit the complainant, he only
called her when he knew that the
appellant was not at home. On the particular day, K[…]’s
mother requested him to
fetch water at the outside tap. He placed the
bucket underneath the tap to fill with water and then went to the
neighbours’
house where the complainant resided.
[11]
At the shack he peeped through a hole in the corrugated iron and was
able to see the bed in the corner
of the shack. He saw how the
appellant was on the bed and was lying on top of a person, whose
identity was unknown to him because
he could only see the person’s
feet. K[…] only realised that it was the complainant lying
underneath the appellant
when the appellant stood up and the
complainant raised her head. The appellant stood up and he could see
his upper body, from his
back to his head. He only observed what
happened inside the shack for about ten seconds of which about 3
seconds was spent observing
the movements made by the appellant while
lying on top of the bed. In a state of shock, he ran away, took the
bucket filled with
water and went back to his home
[12]
He reported the incident to Modupi who advised him to tell his
sister. He eventually told his sister.
During cross-examination K[…]
testified that he had been visiting the complainant many times prior
to the incident that
occurred in September 2019, but he never entered
the house, he merely stood at the door to talk to the complainant.
[13]
It is not necessary, in my view, to recapitulate
all the evidence led at the trial apart from the concise
summary
already mentioned. It is trite that the onus which rests on the State
in criminal cases is to prove the guilt of an accused
beyond
reasonable doubt. A court does not have to rely upon absolute
certainty, but merely upon justifiable and reasonable certainty.
[2]
In its ultimate analysis the court must assess the evidence presented
during the trial holistically.
[14]
I
n
S v
Phallo & Others
[3]
the Supreme Court of Appeal set out the correct approach to be
followed regarding proof in a criminal case as follows:
:
“
On
the basis of this evidence it was argued that the State had, at best,
proved its case on a balance of probabilities but not beyond
reasonable doubt. Where does one draw a line between proof beyond
reasonable doubt and proof on a balance of probabilities? In
our law,
the classic decision is that of Malan JA in
R v Mlambo
1957
(4) SA 727
(A). The learned Judge deals, at 737F-H, with an argument
(popular at the Bar then) that proof beyond reasonable doubt requires
the prosecution to eliminate every hypothesis which is inconsistent
with the accused's guilt or which, as it is also expressed,
is
consistent with his innocence. Malan JA rejected this approach,
preferring to adhere to the approach which 'at one time found
almost
universal favour and which has served the purpose so successfully for
generations' (at 738A). This approach was then formulated
by the
learned Judge as follows (at 738A- C):
'In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.'
[15]
The
approach to be adopted by a court of appeal when it deals with the
factual findings of a trial court is trite. In
S
v Naidoo & Others
[4]
the
applicable principle was explained as follows:
“
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.”
[16]
The following contradictions in the testimony of the complainant are
apparent from the record:
16.1
In her statement to the police the complainant stated that the
appellant had first raped
her during 2014. At the trial she testified
that she had made a mistake in respect of the date and that the first
incident occurred
on 23 December 2015 when she was 8 years old.
However, calculating from 15 February 2006 when she was born to 23
December 2015,
she was 9 years and 10 months old and not 8 years old.
16.2
Regarding the incident which occurred on 22 September 2019, the
complainant testified that
after the appellant had washed, he started
raping her on his bed. He then picked her up and moved her to the bed
where she and
her brother sleep, which is in another room. During
cross-examination she testified as follows: “He took me from
the bed
where we sleep Your Worship, and put me on his bed, Your
Worship.” This is in contradiction to her testimony in chief.
16.3
During her evidence in chief the complainant testified that she was
on the bed when the
appellant picked her up. When confronted during
cross-examination with the fact that she had already been sitting on
the bed, playing
games on the appellant’s cell phone why was it
necessary for the appellant to pick her up again, she changed her
version
and testified that the appellant took her to her bed. This
version also contradicts her evidence in chief that the appellant
started
having sexual intercourse with her on his bed where after he
moved her to the other bed where she and her brother sleep.
16.4
When questioned during cross-examination regarding the holes in the
corrugated iron of
the shack she testified that the inside of the
shack was covered but only at the back of the shack where she sleeps.
The section
where her father sleep was not covered. However, during
cross-examination the complainant was asked whether the holes in the
corrugated
iron sheeting were left open for anyone to look inside,
she then testified that the holes in the corrugated iron were covered
with
plaster or “patch” at the back of the shack where
the bedroom of her father is situated.
16.5
During cross-examination the complainant was confronted with the fact
that she had told
Mrs Tsie that she reported the rape by her father
to her aunt, which report the aunt apparently denied. The complainant
testified
that she did report the rape to her aunt. However, when
asked why did she then lie to Mrs Tsie that she had told her aunt if
her
aunt disputes as much, the complainant testified that she was
afraid to tell her aunt. The complainant conceded that she had lied
to Mrs Tsie about her report to her aunt for no reason.
[17]
The following contradictions in respect of the testimony presented by
K[…] are evident from the record:
17.1
When questioned during cross-examination how many times have he been
to the complainant’s house at
night, K[…] testified that
it was the first time during the evening. However, when asked how
many times has he peeped through
the holes in the shack he replied as
follows: It was now the second time when I peeped through, when it
was in the evening.”
17.2
K[…] testified that the appellant was wearing an orange
T-shirt when he observed him doing up and
down movements on the bed.
The complainant testified that the appellant was naked when he raped
her.
17.3
K[…] testified that he was only able to see the
feet of the person who was lying underneath the appellant.
He was
able to see that the legs were opened. The complainant testified that
her pants were pulled down below her knees, which
caused her legs to
be constricted by the presence of the pants.
[18]
Contradictions in respect of the
testimony presented by the complainant and Mrs Tsie are
as follows:
18.1
The complainant testified that the confrontation by Mrs Tsie followed
the day after 22 September 2019 and
that is why she told Mrs Tsie: “I
told her that my father raped me yesterday night”. According to
Mrs Tsie she only
confronted the complainant two to three days after
she received the report from her daughter about what K[…] had
witnessed
when he peeped through the hole in the corrugated iron
shack.
18.2
During cross-examination it was put to Mrs Tsie that the complainant
was unsure to what Mrs Tsie referred
to when she asked the
complainant what happened to her in the house the night before. Mrs
Tsie then replied that the person who
asked the Complainant was the
landlord. Mrs Tsie furthermore explained that she did not report the
crime to the police, the landlord
did. No evidence in this regard was
placed on record by the State and the role of the so-called
“landlord” was not
explained.
[19]
The appellant denied the allegations of having raped the complainant.
He confirmed that he prohibited K[…]
from playing with his
daughter. Mrs Tsie also confirmed the version presented by the
appellant that her son, K[…], was not
allowed to visit the
complainant. Apparently neither the complainant, nor K[…]
paid any attention to the appellant’s
instructions.
It
is evident from the record that K[…] and the accused had
previous confrontations regarding the friendship between the
complainant and K[…]. The court
a
quo
found that there was evidently no
bad blood between the complainant and her father but in my view,
failed to recognize the fact
that K[…] and the appellant
certainly had issues between them which renders K[…]’s
evidence to be treated with
caution.
[20]
In my view, the learned magistrate incorrectly
concluded that the evidence of the complainant, as corroborated by
K[…], was
satisfactory in all material respects. I am of the
view that the contradictions set out above are indeed material and
ought to
have affected the reliability and trustworthiness of the
evidence presented by the State. A further aspect, especially
considering
the age of the complainant, is the total lack of any
medical evidence presented by the prosecution during the trial.
[21]
Having regard to all the evidence presented, I am not persuaded that
the State has discharged the onus
resting upon it in relation to the
conviction of the appellant.
ORDER.
[22]
Accordingly, I propose the following order:
1.1.
The appeal succeeds;
1.2.
The conviction and sentence of the
appellant is set aside.
_______________
VAN
RHYN, J
I
agree and it is so ordered.
_______________
MHLAMBI,
J
On
behalf of the Appellant:
Mr
P L van der Merwe
Instructed
by:
BLOEMFONTEIN
JUSTICE CENTRE
On
behalf of the Respondent:
Adv.
T E Komane
Instructed
by:
DIRECTOR
PUBLIC PROSECUTIONS
BLOEMFONTEIN
[1]
Act 51 of 1997.
[2]
S v Ntsele
1998 (2) SACR 178
(SCA), headnote at 180D.
[3]
1999(2) SACR 558 (SCA) at 562 para 10.
[4]
2003
(1) SACR 347
at [26].