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2023
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[2023] ZAFSHC 429
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Ramoholi v S - Appeal (A18/2023) [2023] ZAFSHC 429 (30 October 2023)
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
Case
number: A18/2023
In
the appeal between:
MOTLALEPULE
VINCENT RAMOHOLI
Appellant
And
THE
STATE
Respondent
CORAM:
REINDERS, ADJP et JORDAAN,AJ
JUDGMENT
BY:
JORDAAN, AJ
HEARD
ON:
02 OCTOBER 2023
JUDGMENT
DELIVERED ON: 30 OCTOBER 2023
This
judgment was handed down in open court and on even date circulated to
the parties’ representatives by electronic mail
communication.
[1]
The Appellant was arraigned in and convicted by the Regional Court of
this Division on a charge
of rape of a 7 year old girl in
contravention of section 3 of the Criminal Law Sexual Offences and
Related Matters Amendment Act
32 of 2007.
[2]
On the 28
th
of November 2022 the court
a quo
sentenced
the Appellant to life imprisonment.
[3]
Aggrieved with his conviction and sentence, the Appellant, who has an
automatic right of appeal
in terms of section 10 of Act 42 of 2013,
filed his notice of appeal on both conviction and sentence on the
30
th
of November 2022. I turn to deal firstly with the
conviction and thereafter with the sentence.
[4]
While in the notice of appeal and the written submissions filed on
behalf of the appellant in
this Court, the conviction was assailed on
the following grounds:
“
4.1
The Court a quo misdirected itself in finding that the State proved
its case beyond reasonable doubt;
4.2
The Court a quo erred in finding that the
contradictions in the complainant’s testimony are immaterial;
4.3
The Court a quo erred in finding that the contradictions in the
complainant’s testimony
and those in the Doctor’s J88 are
immaterial;
4.4
The Court a quo erred in accepting the evidence of the complainant,
not taking into account the
contradictions between her evidence and
the other State witnesses’ evidence;
4.5
The Court a quo erred in not considering the contradictions between
the complainant’s oral
evidence and her documentary evidence;
4.6
The Court a quo erred in accepting the evidence of the witness by the
name of Kgotso Nkoi;
4.7
The Court a quo erred in rejecting the Appellant’s version as
not reasonably possibly true;
4.8
The Court a quo erred in not giving the Appellant the benefit of
doubt and acquit him;
4.9
The Court a quo misdirected itself by allowing the State to reopen
its case as a result, subjecting
the Appellant to an unfair trial;
4.10
The Court a quo erred in accepting the J88 medical report whereas the
doctor was not available to testify
in that regard;”
Counsel having had regard
to the transcribed record and having considered it, departed from the
stated grounds as having no basis.
[5]
Counsel assailed the conviction on the ground that the trial was
rendered unfair through the comments
made by the court
a quo
when it ruled on the admission of hearsay evidence at the re-opening
of the State case as showing towards the court
a quo
having
made a finding on the guilt of the accused, while the trial was still
in progress.
[6]
This Court must determine the issue whether the comment
disclosed bias of the court
a
quo
and
that the guilt of the accused was already determined in violation of
the accused right to a fair trial as encapsulated in section
35(3)(c)
of the Constitution
[1]
.
[7]
The right to a fair trial has been described by the Constitutional
Court as a “comprehensive
and integrated right”
[2]
and is “not to be equated with what might have passed muster in
our criminal courts before the Constitution came into force”.
[3]
The “impartial adjudication of both criminal and civil cases is
a cornerstone of any fair and just legal system”
[4]
and “an impartial Judge is a fundamental prerequisite for a
fair trial”.
[5]
[8]
The test whether a judicial officer should be should be excluded from
hearing a case by reason
of a reasonable apprehension of bias was
articulated by the Constitutional Court in the case of the
President
of the Republic of South Africa v South African Rugby Football
Union
[6]
:
“
The question is
whether a reasonable, objective and informed person would on the
correct facts reasonably apprehend that the judge
has not or will not
bring an impartial mind to bear on the adjudication of the case, that
is a mind open to persuasion by the evidence
and submissions of
counsel.”
[9]
In this matter according to the applicant the court
a quo
remarked
that “
the South African Law Commission accepted that in
South Africa the existing criminal procedure and rules of evidence
made it exceedingly
difficult to convict child abusers. They referred
to a submission made by the Regional Court President of Kwazulu Natal
who stressed
that as a result of the problems regarding the rules of
evidence guilty child abusers were acquitted possibly to commit a
second
more serious…with other children. The Commissions’
report also provided details of a survey that was conducted on the
incidence of convictions in cases of child abuse which were
investigated by Addington Hospital which were investigated during the
period 1985 to 1986 and according to these results there were only
three convictions out of 42 cases where the child witness was
under
the age of six.”
The appellant described this remark as an
indication of being unfair or of bias in favour of the State.
[10]
This is however not “a remark or a comment” by the court
a quo
.
It is a quotation read into record by the court
a
quo
from
research material on what hearsay evidence is, under what
circumstances it should be allowed and what considerations a court
should take into account in deciding whether or not to allow the
hearsay evidence
.
This quotation was taken out of context. The quotation starts with
the court
a
quo
stating “
I
am going to
quote
from the work by K D Muller and Van der Merwe…..”
[7]
The court
a
quo
explained
that evidence from the J88 was already introduced by the defence
attorney and the court
a
quo
considering
everything determined that it would not be in the interest of justice
not to have all the material facts placed before
it in the same J88
which was introduced into evidence by the defence.
[11]
That, in my view, does not amount to bias or the perception of bias
when regard is had to what
transpired. I am further satisfied that
the court
a quo
was not biased against the accused nor was its
conduct of the proceedings such as to provoke a suspicion of bias.
Having regard
to the judgment, it is my view and a view that is
patently shared by Counsel in this appeal, that the court
a quo
demonstrated an ability and indeed did conduct an objective
analysis based on the facts and did not readily accept the evidence
of the State, but evaluated it.
[12]
I therefore find that there is no substance raised in the appeal on
conviction and the appeal on conviction
is accordingly dismissed.
[13]
I now turn to deal with the issue of sentence.
[14]
The Court
a quo’s
sentence was beset on the grounds
that:
14.1
The Court a quo over-emphasized the seriousness and the impact of the
offence on the complainant;
14.2
The Court a quo did not consider appropriately the Appellant’s
personal circumstances but over-emphasized
the seriousness of the
offence;
14.3
The Court a quo erred in finding that there were no substantial and
compelling factors to deviate from
the minimum sentence of life
imprisonment.
[15]
Counsel for the appellant further
submitted that
the sentence of Life imprisonment imposed is harsh, there were no
serious physical injuries as this was not the worst
kind of rape. It
was further submitted that deterrence was over emphasized, while the
appellant was a first offender, with a minor
child.
[16]
The
jurisdiction of a court of appeal to interfere with the sentence
imposed by a trial court is limited. In
S
v Bogaards
[8]
Khampepe J
stated:
‘
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences
imposed by courts
below is circumscribed. It can only do so where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.’
[17]
The offence that the appellant was convicted of
resort under Part I of Schedule two to the
Criminal Law Amendment Act
105 of 1997
and attracts the sentence of Life imprisonment as
provided for in
section 51(1)
of the
Criminal Law Amendment Act 105
of 1997
. In
S v Malgas
[2001] 3 All SA
220
(A)
, the Court held as follows:
“
Courts
are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that should
ordinarily and in the absence of weighty justification
be imposed for
the listed crimes in the specified circumstances.”
[18]
A reading of the sentence judgment reveals that
the court
a quo
had
regard to the nature and background of the case; the personal
circumstances of the appellant; his employment history; the nature
of
his familial relationships, the fact that he has a minor biological
child; his persistent denial of the crime and the fact that
he is a
first offender.
[19]
The court had regard to the impact of the rape on
the complainant who at the time of the rape was only 7years old as
well as the
incidence of rape of children and the victim impact
statement.
[20]
It
is disconcerting that notwithstanding that the absence of physical
injuries is not a factor constituting substantial and compelling
circumstances, arguments in this regard still persists as was
advanced by Counsel in this appeal which reminds this court of its
duty to restate what was stated in
S
v Chapman
[1997] ZASCA 45
and
recently quoted in the Constitutional Court case of
Tshabalala
and the State
[9]
by Mathopo AJ:
“
Rape
is
a very serious offence,
constituting as it does a
humiliating,
degrading and brutal invasion of the privacy, the dignity and the
person of the victim
.
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any defensible
civilization
.
Women
in the country are entitled to the protection of these rights
.
They have a legitimate claim to walk peacefully on the streets, to
enjoy their shopping and their entertainment, to go to and
come from
work,
and to enjoy the peace and
tranquility of their homes without the fear, the apprehension and the
insecurity which constantly diminishes
the quality and enjoyment of
their lives
.” (underlining
and bold, my own emphasis)
[21]
I can detect no misdirection in the court
a
quo’s
approach to sentence. The
offence, for the reasons cited above, is a particularly serious one.
The personal circumstances of the
appellant have been properly
weighed against the seriousness of the offence and the interests of
society. Far from inducing a sense
of shock, the carefully considered
sentence imposed by the court below strikes me as being one that is
proportionate to ‘the
crime, the criminal and the legitimate
needs of society’.
[22]
That being so, I find that no basis has been established for this
court to interfere with the sentence imposed
by the court a quo. The
appeal against sentence must therefore fail. I therefore make the
following order: `
ORDER
[23]
The appeal against both conviction
and sentence is dismissed.
JORDAAN,
AJ
I
concur and it is so ordered.
REINDERS,
ADJP
Appearances:
Counsel
for Appellant:
Mr.
Phineas Mokoena
(ATTORNEY
FOR APPELLANT)
Instructed
by:
LEGAL
AID SOUTH AFRICA
BLOEMFONTEIN
Counsel
for Respondent:
Mr. D
Pretorius
(FOR
THE RESPONDENT)
Instructed
by:
THE
DIRECTOR OF PUBLIC
PROSECUTIONS
BLOEMFONTEIN
[1]
Constitution
of the Republic of South Africa Act108 of 1996
[2]
S
v Tshilo [2000](11) BCLR 1252 (CC) at paragraph 9
[3]
S
v Zuma 1995(4) BCLR 401 (CC) paragraph 16
[4]
S
v Basson 2004 ZACC 13 (CC)
[5]
S
v Le Grange
2008 ZACC 102
;
2009 (2) SA 434
SCA at paragraph 21
[6]
1999
ZACC 9
;
199 (4) SA 147
(CC);
1999 (7) BCLR 725
(CC) SARFU
[7]
Paginated
Bundle t
ranscribed
record page 289 line 1
[8]
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41
[9]
2019
ZACC 48