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[2023] ZAFSHC 344
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Seleke v S - Appeal (A64/2023) [2023] ZAFSHC 344 (29 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No:
A64/2023
In
the appeal between:
MOJALEFA
LEBOGANG SELEKE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
DANISO, J
JUDGMENT
BY:
REINDERS,
J
HEARD
ON:
21 AUGUST 2023
DELIVERED
ON:
29 AUGUST
2023
This
judgment was handed down in open court and on even date circulated to
the parties’ representatives by electronic mail
communication.
[1] On
8 October 2020 the appellant was convicted of two counts of the rapes
of minors (contravention of sec 3
of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 32 of 2007, read with
the provisions of
sec 51(1)
of the
Criminal Law Amendment Act, 105 of
1997
) in the Regional Court sitting in Brandfort. He was sentenced to
imprisonment for life on both counts.
[2]
The appellant makes use of his automatic right to appeal in
accordance with the first proviso of
s 309(1)(a)
of the
Criminal
Procedure Act
51 of 1977
and appeals both
his convictions and sentences. The appellant’s grounds for
appeal entails that the court erred in finding
that the complainants
were credible witnesses, in drawing a negative inference from the
appellant’s version by not making
a credibility finding in his
favour and in finding that the state had proved its case beyond a
reasonable doubt.
[3] The
appellant was legally represented throughout the trial and tendered a
plea of not guilty. He elected not
to proffer a plea-explanation. As
the trial progressed however, the appellant’s defence
gravitated towards an alibi, in essence
that he was not in Brandfort
during spring from September to October 2010 (the time and place of
the counts of rape of which he
stood accused) and could therefore not
have committed the crimes. He alleged that he had been falsely
implicated by the complainants
who were jealous of the fact that he
had secured employment in Bloemfontein.
[4]
Three witnesses, two of them being the complainants on count 1 and 2
respectively, testified on behalf of
the state. Certified copies of
the birth certificates of the two complainants were handed in as
exhibits and confirmed that the
complainant in count 1 (hereafter
“Z”) and count 2 (hereafter “K) were respectively 8
and 10 years old when the
crimes were committed according to the
charge sheets. The cousins were respectively 15 and 17 years old when
they testified.
[5]
Both Z and K testified that the place where the rapes had occurred to
be at the Anglican Church in Brandfort
where appellant had sexual
intercourse with them on a table top.
5.1 The
upshot of the evidence tendered by K was that she was on her way from
a shop with a girl who resided close to
them at the accused’s
parental home and with whom she used to play, one Estelle, when the
accused met up with them. He had
sent Estelle to the shop and
requested her (K) to go with him where after the appellant undressed
her, covered her mouth, raped
her and told her not to tell anyone,
giving her some yoghurt as consolation. She refrained from telling
anyone at the time as she
was still a child, afraid that people would
laugh or make fun and her and did not even know at the time that the
deed constituted
rape. She only shared her secret in 2011 with a
friend, and in the company of Z. Hereafter she gathered the courage
to inform her
family of the rape by writing a letter and handing it
to her aunt, who testified and confirmed the circumstances of the
letter
being revealed. K denied that Estelle had left Brandfort at
the time of the incidents as Estelle was in grade 1 at the time and
she in grade 3, attending the same school.
5.2 The
evidence of Z entailed that she was playing with Estelle when they
were called by the appellant and on his request
sent to a shop to buy
some items with the instruction to return the items to him at the
church. Upon their return appellant sent
Estelle away and requested
her (Z) to stay behind. Hereafter he undressed and raped her, told
her not to cry or mention the incident
to anybody, and gave her some
cookies. She did not reveal this secret until 2011 when K spoke
out in the presence of her
(K’s) friend.
[6] The
appellant testified and called his elderly mother as a witness. He
did not deny having known the complainants
or that Estelle used to
live with him at his parental home. According to him, however,
Estelle had already left Brandfort at the
time of the alleged
incidents. Although it was put to K during cross-examination that the
appellant did not have access to the
church but his grandfather (as
custodian of the church) kept the keys to the church, it was put to Z
that it was not his grandfather
but “actually another gentleman
who lived in the neighbourhood” who kept the keys. The
appellant testified that he
did not visit Brandfort at all after
leaving the town in 2007 up until his return in 2011. Appellant’s
mother testified
that both she and the appellant were devout members
of the church. Appellant attended church regularly, wearing a robe.
[7] The
learned magistrate in her judgment found it not to be disputed that
both complainants knew the plaintiff
well as they, the appellant and
their respective families resided in the same neighbourhood and the
families were at least on greeting
terms. She deemed it common cause
that the appellant attended the church concerned and “had some
role therein”.
[8] On
a reading of the magistrate’s judgment it is evident that the
magistrate was well apprised that both
complainants were not only
single witnesses but also child witnesses, referencing the applicable
case law. In applying the cautionary
rules, the magistrate considered
the evidence and found both complainants’ testimonies to be
satisfactory in all material
respects. She was satisfied that the
complainants gave detailed and clear accounts of the incidents and
that they did not deviate
from their versions. She considered the
complainants to be intelligent and honest witnesses.
[9] The
magistrate alluded thereto that the appellant presented conflicting
versions on his alibi. According to
the initial version put to the
complainants he had not been to Brandfort from 2007 to 2010 as he was
employed in Bloemfontein and
returned only in 2011. It was put to the
complainants that appellant’s sister would at the time collect
money, as assistance
to the family, from him in Bloemfontein. The
appellant’s version was changed again to entail that he would
visit Brandfort
for two to three hours only at a time after having
been employed in Bloemfontein. According to appellant he never
returned to Brandfort
in 2010 (at the alleged time of the rapes
during the months of spring) as he was rendering security services
with the Soccer World
Cup. When confronted therewith that the World
Cup was during June and July, appellant changed his version of not
visiting Brandfort
at the time as he “did not like the place”.
In an attempt to prove that he was not in Brandfort at the time of
the
incidents, the appellant handed in a document of his membership
to a provident fund. However, the magistrate found that the document
did not assist the appellant as it merely recorded that during 2010
contributions were paid, but with no reference to the appellant’s
whereabouts at the time. She found the evidence tendered by
appellant’s mother to be unreliable and of no assistance to the
appellant regarding his alleged absence from Brandfort in 2010. The
magistrate considered the aforementioned conflicting versions
tendered by the appellant, the common cause facts, the credibility
and reliability of the witnesses and concluded that the appellant’s
version cannot be reasonably possibly true.
[10]
It has been a long-established principle that a court of appeal must
take into account that the court a quo was in a more favourable
position to form a judgment, and will not interfere with a trial
court’s findings if there is no misdirection, unless it
is
convinced that the findings are wrong.
[1]
[11]
In
S
v Francis
[2]
it
was reiterated that a court of appeal’s power to interfere is
limited as the trial court has the advantage of seeing,
hearing and
appraising witnesses. We are not at liberty to depart from the trial
court’s findings of fact and credibility
unless it is vitiated
by irregularity or upon an examination of the record of evidence it
is revealed that those findings are patently
wrong.
[3]
[12] I am not
convinced on any grounds that the magistrate erred or misdirected
herself as was contended on behalf of the
appellant in this court. In
my view the appeal against the conviction cannot be sustained.
[13]
The appellant appealed the sentences, relying on the grounds that the
sentences are shockingly inappropriate
(inducing a sense of shock),
the severity of the offences were over emphasised at the cost of his
personal circumstances and the
court had erred in finding no
compelling and substantial circumstances to cause a deviation from
the minimum prescribed sentences.
[14]
It is trite law that the power of this court sitting on appeal, are
limited when it comes to an imposed sentence
in so far as
interference with same is only warranted where the sentencing court
committed a material misdirection, or the sentence
imposed is not
proportionate, or such a court did not exercise its discretion
properly or at all.
[4]
[15]
Appellant was convicted of having raped the complainants
(Part 1
of
Schedule 2) and accordingly the crime was to be read with the
provisions of
sec 51(1)
of Act 105 of 1997. It is evident that the
magistrate was well aware of and alluded to the guidelines enunciated
in
S
v Malgas
[5]
in respect of the imposition of or deviation from the prescribed
minimum sentence for the offences of which appellant was convicted,
namely imprisonment for life. The trial court had proper regard to
the personal circumstances of the appellant, including his age
of 41
years, his level of education grade11, being married and father to a
one-year old. She considered that the appellant’s
wife was
pregnant and unemployed, whilst he was employed as a security guard
earning R 4 000-00 monthly. The magistrate took
into account
that the appellant was a first offender.
[16] The
seriousness of the offence of rape, with reference to trite case law,
was alluded to by the magistrate. She emphasized
that the
complainants grew up in front of the appellant, they had an adult and
child relationship and the appellant used to send
them to do some
errands at the shop. The magistrate stressed that the appellant took
advantage of the complainants “by ripping
off their dignity as
well as taking their virginity in the worst possible way”, yet
showing no remorse. The magistrate
dealt with the prevalence of
the crimes, the interest of the community and society’s outcry
for the courts in imposing proper
and meaningful sentences. The
magistrate alluded to the victim statement of Z, adding that she
cannot proceed on the basis that
the complainants would not have had
psychological harm caused by the rapes as young children. Having
assessed the aforementioned
factors and having weighed the mitigating
and aggravating factors, the magistrate concluded that she had not
been convinced that
compelling and substantial circumstances existed
that would cause her to deviate from the prescribed minimum sentence.
[17]
Taking into account the principles enunciated in the case law above,
it is clear that sentencing is the prerogative of
the trial court. I
am unable to find that the magistrate had misdirected herself in any
way in finding no compelling and substantial
circumstances to move
her to deviate from the prescribed minimum sentence and imposing
imprisonment for life. In fact, this appeal
came before us during
August, the month when women are celebrated in our country. The rapes
of the two complainants at the vulnerable
and innocent ages of 8 and
10, leave a bitter aftertaste. Upon a calculation the appellant was a
grown man of just over 30 years
at the time. Instead of owing up to
his atrocities committed against budding girl children, the appellant
chose to show no remorse
for the lasting emotional scars of which he
was the author. Recently, in
Maila
v The State
[6]
the Supreme Court of Appeal in dealing with the effect of absence of
physical injuries to a victim of rape, held as follows (per
Mocumie,
JA)
[7]
“…
because
apart from this minimising the traumatic effects of rape on any
victim and more so a child, it is well documented that ‘irrespective
of the presence of physical injuries or lack thereof, rape always
causes its victims severe harm’.”
[18] I do not find
any reason to interfere with the imposed sentences. It follows that
the appeal against the sentences also
stands to be dismissed.
[19] Having reached
the conclusions as I did, the following order will issue:
The appeal against both
convictions and sentences are dismissed.
C. REINDERS, J
I concur.
N. S. DANISO, J
On
behalf of the appellant:
Ms
S Kruger
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent:
Adv
S Tunzi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
R
v Dhlumayo and Another
1948
(2) SA 677
(AD) at 705-6.
See also:
Director
of Public Prosecutions, Gauteng v Pistorius
2016 (2) SA 317
(SCA).
[2]
1991
(2) SACR 198
(A)
(at 204 c-e).
[3]
S
v Hadebe
1979
(2) SA
(
at
654 e-f).
[4]
S
v Rabie
1975(4)
SA 855 (A)
at
857 D-F;
S
v Makondo
2002 (1) All SA 431 (A).
[5]
2001
(1) SACR 469
(A)
.
[6]
(429/2022)
[2023] ZASCA 3
(delivered on 23 January 2023).
[7]
At para [47].