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2023
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[2023] ZAFSHC 360
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Motsoane v S (A178/2022) [2023] ZAFSHC 360 (15 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: A178/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TSIE
STEVANS MOTSOANE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
REINDERS, J
et
THAMAE, AJ
HEARD
ON:
04 SEPTEMBER 2023
DELIVERED
ON:
15 SEPTEMBER 2023
JUDGMENT
BY:
THAMAE, AJ
[1]
The Appellant was convicted of the
offence of rape, in contravention
of section 3 of the Criminal Law Sexual Offences and Related Matters
Amendment Act, Act 32 of
2007 by the Regional Court Bloemfontein.
Aggrieved by his conviction, the Appellant lodged this appeal after
leave to appeal was
granted by the Regional Court.
[2]
At the onset Ms. Kruger for the Appellant,
responsibly conceded that
although, the Appellant’s heads of argument stated that the
Regional Magistrate drew a negative
inference from Appellant’s
failure to testify, that, from the learned Regional Magistrate’s
judgment, it is clear that
no such negative inference was made. The
issue for determination by this court on appeal remains then, whether
the learned Regional
Magistrate’s finding that the state has
proved its case against the Appellant beyond reasonable doubt is
correct. The contention
in the main, is based on the argument that
the learned Regional Magistrate applying the principles in
R v
Blom
1939 AD 188
, should not have concluded, on the evidence
presented by the state, that the only reasonable inference is that
the Appellant had
penetrated the Complainant’s genitals.
[3]
The principles which should guide an
appeal court in an appeal purely
upon fact have been set out in
Rex v Dhlumayo and another
1948 (2) SA 677
(A). In singling out only those principles
I deem applicable to the present scenario, the court in
Dhlumayo
stated among others that:
1.
An appellant is entitled as of right to a rehearing, but with the
limitations imposed by these
principles; this right is a matter of
law and must not be made illusory.
2.
Those principles are in the main matters of common sense, flexible
and such as not to hamper the
appellate court in doing justice in the
particular case before it.
3.
The trial Judge has advantages - which the appellate court cannot
have - in seeing and hearing
the witnesses and in being steeped in
the atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour,
but also their appearance and whole
personality. This should never be overlooked.
4.
…Even in drawing inferences the trial Judge may be in a better
position than the appellate
court, in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom he has
observed at the trial.
5.
…Consequently the appellate court is very reluctant to upset
the findings of the trial Judge.
6.
Sometimes, however, the appellate court may be in as good a position
as the trial Judge to draw
inferences, where they are either drawn
from admitted facts or from the facts as found by him.
7.
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion
is correct; the appellate court
will only reverse it where it is convinced that it is wrong.
8.
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion,
then it will uphold it.
[4]
It is
common cause that based on, among others, the report filed by the
clinical psychologist Dr. Le Roux, the state did not call
the
Complainant to testify. The findings in the clinical psychologist’s
report are not relevant for this judgment thus I
will not discuss
same. It is also common cause that after the state closed its case,
the Appellant did not testify nor lead any
other evidence in his
defence. It is common cause further that the finding regarding
penetration was made by the learned Regional
Magistrate based on
circumstantial evidence presented by the state. Having been
guided by the authority in
S
v Reddy
1996 (2) SACR 1 (A)
[1]
and
having considered the principles set out in
R
v Blom
[2]
,
the relevant evidence on which the learned Regional Magistrate
relied, for her conclusion, is succinctly stated in her judgment
along the following terms
[3]
:
As far as penetration is
concerned, the court only has the evidence of an eyewitness Theresa
Ncobo who testified that she saw the
accused having sexual
intercourse with the complainant. She could not say whether there was
penetration.
And then the court has
the evidence of the forensic nurse who examined the complainant and
indicated abrasions of the fossa navicularis
the five and six o’clock
positions which were indicative of forceful penetration and this was
done on the same day of the
incident.
The DNA results thirdly
linking the DNA of the accused with the DNA sample taken from the
panty of the complainant.
The learned Regional
Magistrate continues in her judgment to state that
[4]
:
Although there could be
many explanations for abrasions on the genitals of a woman. I find
the abrasions together with all the other
factors which I have
mentioned leads to the conclusion and the only conclusion that the
accused penetrated the genitals of the
complainant on that particular
day.
[5]
The accused having not testified, the
Regional Magistrate was faced
with deciding the case before her solely on the evidence presented by
the state, which she did. From
the record before us, the heads of
argument submitted and oral submissions made in court, the Learned
Regional Magistrate’s
reasoning and findings cannot be faulted.
I thus find no reason to interfere with her findings.
In the circumstances, I
propose to make the following order:
ORDER
1.
Appeal is dismissed.
MS
THAMAE, AJ
I
concur and it is so ordered.
C
REINDERS, J
ON
BEHALF OF THE APPELLANT:
MS.
S. KRUGER
INSTRUCTED
BY:
LEGAL
AID SOUTH AFRICA,
FREE
STATE
BLOEMFONTEIN
ON
BEHALF OF THE RESPONDENT:
ADVOCATE
.M. LENCOE
INSTRUCTED
BY:
N
D P P, FREE STATE
BLOEMFONTEIN
[1]
In S v Reddy
1996 (2) SACR 1
(A) at p3 it appears that Mr
Horwitz, in the supplementary heads of argument, emphasised the
argument that the inference
of guilt drawn by the magistrate from
the circumstantial evidence led was not the only reasonable
inference to be drawn which
was consistent with the proved facts.
The court held that the fact that a number of inferences can be
drawn from a certain fact,
taken in isolation, does not mean that in
every case the State, in order to discharge the onus which rests
upon it, must indulge
in conjecture and find an answer to every
possible D inference which ingenuity may suggest any more than
the Court is called
upon to seek speculative explanations for
conduct which on the face of it is incriminating
[2]
See:
Page 124, line 18 -25 and Page 125 line 1-2 of the record.
[3]
Page 125, line 3-13 of the record.
[4]
Page 125, line 14 -18 of the record.