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2024
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[2024] ZAFSHC 78
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Manko v S (A116/2023) [2024] ZAFSHC 78 (15 March 2024)
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: A116/2023
In
the matter between:
TUMELO
BOOI MANKO
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, JP
et
REINDERS, J
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
26
FEBRUARY 2024
DELIVERED
ON:
15 MARCH 2024
[1]
The appellant was arraigned in the Regional Court in Bloemfontein on
charges
of
assault with the intent to do grievous bodily harm [Count 1] and rape
(contravention of s 3 of the General Law (Sexual Offences
and Related
Matters) Amendment Act )
[1]
,
read with the provisions of
s
51 and Schedule 2 of the Criminal Law Amendment Act
[2]
[Count
2].
[2]
Appellant pleaded not guilty and tendered no
plea explanation. Having heard the evidence of the state
witnesses
and the appellant, the trial court on 9 November 2022 convicted the
appellant on Count 1 on the competent verdict of
assault, and on
Count 2 of rape as charged. The trial court took both convictions
together for purposes of sentence and sentenced
the appellant to
imprisonment for ten years. This appeal comes before us with leave
granted by the court
a quo
in respect of both the convictions
and sentence.
[3]
It is undisputed that sexual intercourse (intercourse) occurred
between the appellant and complainant
on Sunday 31 January 2021
(Sunday evening) at the back of a residence in the rural town of
Petrusburg. According to the appellant,
the intercourse was
consensual. It is common cause that both the complainant and the
appellant were present at the said residence
where a few of them
enjoyed alcoholic drinks (traditional beer – beer) that
evening. The appellant and complainant resided
in the same street and
were very well-known to each other, the complainant having grown up
before the appellant and describing
him as a bigger brother to her. A
report on a medico-legal examination (the J88), performed on the
complainant by a medical official
(a registered nurse - the nurse) on
Monday 1 February 2021 (Monday), was handed in by the State as
evidence with no objection thereto
by the defence. The content
thereof and subsequent findings shall be dealt with herein below.
[4]
The magistrate in her judgment summarised
and alluded to the evidence tendered by both the State and
the
defence. The State called the complainant two other witnesses, to wit
Mr TI Ramohlabi (referred to by the witnesses as Thuso)
and the
complainant’s father, Mr BL Mokoena. The appellant testified
and did not call any witnesses.
[5]
The nub of the state’s version of
events, as accepted by the learned magistrate, entailed the
following:
5.1 During
the course of Sunday evening (at around 21h30) the complainant was
seated next to the appellant when he
hit her between the eyes with a
plastic jar (jug) filled with beer. Hereafter, she decided to return
home to her residence just
on the opposite side of the street. As she
exited the door, the appellant followed her and constrained her from
behind with his
arm, punching her in the stomach and covering her
mouth with his hand. He dragged (pulled) her to a nearby tree in the
yard where
it was dark, where after he pushed her to the ground, put
his knee on her chest and undressed her. He proceeded having
intercourse
with her by penetrating her vagina with his penis, turned
her around on her stomach and penetrated her vagina from behind.
Although
trying to fight off the appellant, she was unable to do so
as the appellant was “very strong, fast and quick”. She
was not only threatened by the appellant that he would kill her if
she screamed for help, but also should she tell anybody about
what
had happened, and she had to act “normally” when the two
of them entered the house again. Later complainant’s
father
arrived and he accompanied her home. She made a report of the
incident to her sister-in-law and father, and called the police
informing them of the incident. Complainant was advised by the police
to lay a charge against the appellant the following day.
She did not
change her clothing of the Sunday evening nor did she wash herself
and was taken by ambulance to attend to the medical
examination.
5.2 The
evidence of Thuso and complainant’s father related only to what
had
transpired before the
intercourse and thereafter, as they were not witnesses to the
intercourse itself. The upshot thereof as alluded
to by the
magistrate in her judgment, is that Thuso confirmed the appellant
throwing
beer (an amount of about two
glasses) at the complainant, and the complainant’s father
testifying
that the complainant made a report to him, that she had a
swelling between her eyes and was full of dust on her clothing the
following
day.
[6]
Appellant denied that he had thrown any beer at the complainant or
hit her with jug –
he merely and accidentally spilled a
few drops of beer on her. According to the appellant not only was the
intercourse consensual,
but the complainant was the party initiating
the act, which he attempted to resist since the start as he was
unwilling to sexually
engage with her. After some time however, he
succumbed to her advances and they had intercourse, amongst others,
on the bonnet
of a vehicle and on the ground. During
cross-examination appellant testified that not only was he in a
secretive relationship with
the complainant, but he had been engaging
in sexual intercourse with the her for ‘a very long time’.
In fact, they
had intercourse on a Friday prior to the Sunday
evening. According to appellant there was a lawn on the place where
the intercourse
took place. When confronted therewith that the
aforementioned averments were not put to the complainant during
cross-examination
for her to respond thereto, he indicated that he
did not give such instructions to his legal representative and
eventually laid
the blame at the feet of his attorney.
[7]
Ms Kruger, on behalf of the appellant, summarised the appellant’s
grounds of appeal against
his convictions and sentence as follows:
“
1.5.1
That the Court a quo erred in finding that the evidence of the
Complainant was corroborated by the evidence of
the second and third
state witnesses.
1.5.2
That the Court a quo erred in finding that the injuries in the J88
corresponds with the viva voce evidence.
1.5.3 That
the Court a quo erred in finding that the State proved its case
beyond reasonable doubt.
1.5.4 That
the Court a quo erred in rejecting the version of the Appellant as
reasonable possible true.
1.5.5
That the Court a quo erred in finding no substantial and compelling
circumstances.”
[8]
It is trite that in the absence of an irregularity or
misdirection by the trial court, a court
of appeal is bound by the
credibility findings of that court, unless it is convinced that such
findings are clearly incorrect.
[3]
[9]
In my view a perusal of the record reveals that the State’s
case was by no means faultless.
It was, however, not hopeless. From
the magistrate’s judgment it is evident that she
comprehensively dealt with and considered
discrepancies between the
evidence of the state witnesses. She found same not to be material.
The magistrate was well aware of
the fact that the complainant was a
single witness in respect of the intercourse. She applied the
cautionary rules in her evaluation
of the complainant’s
evidence and was satisfied, having considered all the evidence
tendered before her inclusive of any
shortcomings, that the
complainant “did tell the truth”. The magistrate rejected
the version of appellant that the
intercourse was consensual, as not
being reasonably possibly true.
[10]
In the J88, the nurse recorded what the complaint had conveyed to her
during the medical examination as follows:
“…the
perpetrator hit her with a jug of bear(
sic)
on the forehead…,
the victim stood up and walked home then the perpetrator followed her
and pulled her towards a dark place
…he undressed her and
raped her…penetrated her countless times and turned her to
another position and rapped(
sic)
her further…
In the last sentence the
nurse indicated “…Victim has a small laceration on her
forehead and slight swelling.”
On inspection of the
complainant’s genitalia, she noted “tears on the
perineum” and marked it on the schematic
drawing as “cracks”.
Under the heading “Conclusions” the following is
recorded:
“
Possible sexual
assault because the victim’s body and genitalia was full of
sand and also on the head and clothes. Statement
given by the victim
is in line with injuries sustained.”
Much was made during the
trial (and in the grounds of appeal) in respect of the complainant’s
insistence that she did not
sustain a laceration on her forehead,
whilst the J88 indicated such. In my view nothing turns on this
discrepancy. The nurse noticed
both a swelling and a laceration.
[11]
The magistrate in her judgment mentioned several aspects of the state
witnesses’ evidence which lent
support to the complainant’s
version. I consider the following to be of vital importance:
“
The
other evidence that might render complainant’s version more
likely that there was no consent is the fact that the complainant
was
full of sand and even in her private parts. That also confirms the
version of the complainant.
And the other aspect is the fact that
the medical officer who examined the complainant also found some
tears or scars in her genital
area or cracks; let me put it that way.
And that is an indication that there was no cooperation from the
complainant during sexual
intercourse. And it also confirms the
version of the complainant when she said that when the accused turned
her and had sexual
intercourse with her from behind, she was
resisting. That is an indication that there was no cooperation and
that can likely cause
the tears.” [emphasis added]
[12]
In my view the magistrate was correct with this conclusion. The
strongest corroboration for the version of
the complainant (as a
single witness) that she did not give any consent to the intercourse
and that the rape took place as she
testified, is indeed to be found
in the uncontested evidence of an independent and objective third
party. As indicated, the J88
recorded the sand on the complainant’s
body and in her genitalia. The uncontroverted evidence in respect of
the rape constituted
an insurmountable hurdle for the appellant. On
the recorded clinical facts indicating the presence of sand in the
private parts
of the complainant, the version proffered by the
appellant that the intercourse took place at the insistence of the
complainant
on the bonnet of a car and on lawn cannot be reasonably
possibly true, as correctly found by the magistrate. There is no
reasonable
(nor logical) explanation how sand would then have ended
up in the private parts of the complainant. Ms Kruger
responsibly
did not attempt to convince us otherwise. On the
contrary, she had to concede same to be critical evidence in favour
of the State’s
case.
[13]
I might mention in passing that the appellant’s failure to put
up his version of a secret romantic
relationship between himself and
the complainant which involved sexual intercourse prior to the rape
“for a long time”,
also militates against the appellant’s
version that the intercourse was consensual. These allegations were
in my view of
importance to support his defence that the intercourse
was consensual. Be that as it may, even absent any denial or
admission of
such evidence by the complainant, the complainant’s
version of how the intercourse had occurred, was corroborated by the
nurse. In my view the swelling and laceration on the complainant’s
forehead likewise supported her version that she had been
hit by
appellant with a plastic jug as she had testified.
[14]
There is no indication of any misdirection by the magistrate in
respect of any relevant evidence. She took
a holistic view of all the
evidence tendered before her, applied the legal principles in
considering the matter and the appellant’s
guilt, and
comprehensively indicated her reasoning for finding the state to had
proven its case beyond a reasonable doubt. Therefore,
there is no
basis upon which we should interfere with the conviction. The result
is that the appeal against conviction should be
dismissed.
[15]
As mentioned, the appellant was charged with and
convicted of a count of rape to be read with the provisions
of Act
105 of 1997, Part III of Schedule 2. Regarding this count, it is
evident that the trial court was well aware of the principles
enunciated in
S
v Malgas
[4]
in
respect of substantial and compelling circumstances warranting a
deviation from the minimum ordained sentence of imprisonment
for ten
years. She considered same and declined to find any substantial and
compelling circumstances.
[16]
The magistrate duly applied the triad principles in
Zinn
[5]
,
the purposes of sentence and the principles to be applied in arriving
at a fair and just sentence
16.1
The personal circumstances of the appellant were dealt with by the
magistrate. She took
into account that the
appellant was 41 years of age;
the father of two minor children
who resided with his aunt;
contributed to the
financial needs of his minor children
with the money that he earned
and had spent 18 months in
custody awaiting trial.
16.2
The record reveals that the appellant had been convicted of several
crimes over a period of time, although
none on a charge of rape, as
correctly indicated by the magistrate. It would seem that she thus
considered the applicant for purposes
of sentence to be a first
offender (referring throughout to the prescribed minimum sentence of
imprisonment for a period of ten
years). She however considered
it as an aggravating factor that the appellant was arrested for the
rape whilst on parole.
Moreover, she alluded thereto that the accused
“…has been exposed to different sentence options on
previous convictions,
however that did not deter him from committing
further crimes.”
16.3 The
seriousness of the crime was stressed by the magistrate who added
that rape is “very
rife in our communities” and “the society are not
pleased by levels of violent crimes against women and children in the
country”.
[17]
It has long been established that sentencing is pre-eminently the
prerogative of the trial court
and a court of appeal should be
careful not to erode this discretion.
[6]
Interference is warranted where there has been an irregularity that
results in a failure of justice, or when the court a quo misdirected
itself to such an extent that its decision on sentencing is vitiated,
or the sentence is so disproportionate or shocking that no
court
could have imposed it.
[7]
[18]
Ms Kruger in her heads of argument invited our attention to the
judgment by the Supreme Court
of Appeal in
S
v PB
[8]
where it was held that: “It follows therefore that a proper
enquiry on appeal is whether the facts which were considered
by the
sentencing court are substantial and compelling.”
[19]
Mindful of the aforementioned principles, the submissions placed
before us for interference with
the sentence imposed by the trial
court, were considered.
[20]
The appellant filed a notice of appeal on 6 February 2023
against the imposed sentence, stating that the trial court had erred
in
finding that there are no compelling and substantial circumstances
in relation to the rape on the following basis:
“
Whereas:
The offence of rape in
which applicant was convicted, is not extra ordinary crime of rape.
Pain and suffering of complainant is
similar to complaints of
ordinary rape.
Injuries in J88 is not
gruesome injuries. It is normal in cases of rape.
Ms Kruger in her heads of
argument eloquently rephrased these two grounds in
submitting that it is her instruction
that the trial court erred in
not considering the following to be sufficient for a deviation in
relation to the rape on the following
basis:
“
4.4.1
No evidence was tendered to substantiate an argument that the
complainant suffered lasting emotional trauma.
4.4.2
The complainant did not sustain serious physical injuries and it will
be submitted that it is a relevant factor
which the Court must take
into account to arrive at an appropriate sentence, as it
is indicative of the lesser objective
gravity of the offence.”
20.1
The submission in respect
of the absence of evidence of “lasting emotional
trauma”
has no merit. The record reveals that, although no Victim Impact
Report of the complainant was filed, complainant
tendered viva voce
evidence in aggravation of sentence on the ongoing trauma and the
trauma that she had experienced. Despite
the best efforts of
appellant’s legal representative to unsettle the complainant
during cross-examination, she was steadfast
in her testimony on the
emotional trauma she had suffered. She testified that the rape
incident negatively affected her work as
she feared retaliation by
the appellant on herself or even on her children. Importantly, she
testified that the trauma is “even
worse” and “…the
emotions and the – the psychic does not heal.”
20.2
The stance taken by the appellant in respect of non-serious physical
injuries
sustained by the complainant (“not gruesome”,
“pain and suffering is similar to normal rapes”), does
not
avail the appellant to the extent that this singular factor
should have caused a deviation from the minimum imposed sentence. In
the event that serious physical injuries had been inflicted on the
complainant, the appellant would have been charged
with rape falling
under Part I of Schedule 2 […(c) involving the infliction of
grievous bodily harm…] which attracts
a minimum sentence of
imprisonment for life.
[21]
In my view the seriousness of rape can never be overemphasized. Our
courts have consistently
condemned rape in the strongest expressions
as an invasion of the dignity, privacy, integrity and personal
freedom of the
victim.
[9]
21.1
The
views expressed by the Supreme Court of Appeal in
S
v MM
[10]
are
apposite:
‘
It is necessary
to reiterate a few self-evident realities. First, rape is undeniably
a degrading, humiliating and brutal invasion
of a person’s most
intimate, private space. The very act itself, even absent any
accompanying violent assault inflicted by
the perpetrator, is a
violent and traumatic infringement of a person’s fundamental
right to be free from all forms of violence
and not to be treated in
a cruel, inhumane or degrading way.’
21.2
I fully align myself with the
sentiments expressed by the magistrate that “…the
accused showed disrespect to the complainant, starting from the house
when he poured beer on her, up until the manner in which
he committed
this crime” (the rape).
[22]
Having taken into account all of the aforementioned, the magistrate
cannot be faulted and there
are no grounds upon which we can
interfere with the sentence imposed by the trial court. I am
satisfied that, as found by the magistrate,
there are no compelling
and substantial circumstances which would warrant a deviation from
the prescribed minimum sentence of imprisonment
for ten years. The
result is that the appeal against sentence thus stands to be
dismissed.
[23]
Accordingly the following order is made:
The appeal against the
convictions and sentence is dismissed.
C
REINDERS, J
I
concur.
CJ
MUSI, JP
On
behalf of the Appellant:
Ms S
Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent:
Ms S
Tunzi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
32 of 2007.
[2]
105 of 1997.
[3]
See:
S
v Francis
1991 (1) SACR 198
(A) at 204c;
J
v S
[1998] 2 All SA 267
(A) at 271c.
[4]
2001 (SACR) 469 (SCA).
[5]
1969 (2) SA 537
(A) at 540G.
[6]
See:
S
v Rabie
1975 (4) 855 (A) at 857 at E-F.
[7]
See:
Bogaards
v S
2013
(1) SACR (CC)1 at [41].
[8]
2013 (2) SACR 533
(SCA) at [20].
[9]
See:
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at
5B-E.
[10]
2013 (2) SACR 292
(SCA) at [17].