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[2011] ZASCA 62
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Molema v S (555/10) [2011] ZASCA 62 (1 April 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 555/10
In the matter between:
ISAAC MOLEMA
.............................................................................
Appellant
and
THE STATE
....................................................................................
Respondent
Neutral citation:
Molema
v The State
(555/10)
[2011] ZASCA 62
(1 April 2011)
Coram:
STREICHER, SHONGWE
JJA and PETSE AJA
Heard:
18 March 2011
Delivered: 1 April 2011
Summary:
Appeal ─
Against the order of the high court refusing leave to appeal in terms
of
s 309C(7)(c)
of the
Criminal Procedure Act 51 of 1977
─
whether there are reasonable prospects of success of an appeal to the
high court against the appellant’s conviction
and sentence in
the regional court on charges of rape.
___________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg) ( Mailula J and Mabesele AJ on
appeal from the Regional Court, Krugersdorp):
The appeal is dismissed.
___________________________________________________________
JUDGMENT
PETSE AJA (STREICHER and SHONGWE
JJA concurring)
[1] This appeal served before us
pursuant to leave granted by this court against an order made in the
court a quo (Mailula J and
Mabesele AJ) refusing the appellant leave
to appeal against his conviction and sentence in the regional court,
Krugersdorp.
[2] The historical background to
the matter is briefly as follows. The appellant stood trial in the
regional court, Krugersdorp.
He was charged with two counts of rape
read with
s 51
of the
Criminal Law Amendment Act 105 of 1997
.
[3] The allegation against the
appellant was that on or about June 2006 and on 4 December 2006 he
unlawfully and intentionally had
sexual intercourse with Ziphora
Mahlangu a 38 year old female without her consent. The alleged acts
of rape were said to have occurred
at or near Krugersdorp West and at
or near Manziville respectively in the Regional Division of Gauteng.
[4] The appellant pleaded not
guilty on both counts. In his substantiation of his plea of not
guilty the appellant admitted to have
had sexual intercourse with the
complainant on the two occasions alleged in the charge sheet but
averred that such sexual intercourse
was with her consent.
[5] At the conclusion of the
adduction of evidence the appellant was convicted on both counts and
sentenced to 15 years’ imprisonment,
the counts being treated
as one for the purposes of sentence.
[6] Aggrieved by his conviction
and sentence the appellant applied for leave to appeal against his
conviction and sentence in terms
of s 309B of the Criminal Procedure
Act 51 of 1977 (the Act). The application was refused. The
appellant’s petition to the
high court, South Gauteng
(Johannesburg) and his further application for leave to appeal
against the refusal of his petition to
that court were also
unsuccessful.
[7] With that prelude I turn now
to consider whether leave to appeal to the high court against
conviction and sentence should have
been granted. The test in an
application such as the one under consideration in this appeal is
whether there is a reasonable prospect
of success in the envisaged
appeal.
[8] In deciding on the fate of
this appeal we are thus enjoined by judicial authority to reflect
dispassionately upon the judgments
sought to be appealed against, and
reach a conclusion as to whether or not there is a reasonable
prospect that the appellate court
may come to a different conclusion
to that reached by the trial court.
[9] In his endeavour to persuade
us to uphold this appeal Mr Schaefer who appeared on behalf of the
appellant deemed it advisable
to, as he put it, argue the appellant’s
case as if he were arguing the merits of the envisaged appeal against
conviction
and sentence in order to demonstrate to us that on the
facts of this appeal leave to appeal against the appellant’s
conviction
and sentence in the regional court ought to have been
granted. To that end he subjected the evidence of the complainant to
intense
criticism, most of which is encapsulated in the appellant’s
petition to this court, and contended that the complainant’s
evidence does not only not bear close scrutiny but that its entire
edifice is inherently improbable.
[10] For present purposes and for
the sake of brevity I do not propose to set out all the points that
Mr Schaefer argued before
us. I am content with summarising their
upshot in the hope that in so doing I will not do injustice to Mr
Schaefer’s submissions.
Mr Schaefer contended that the trial
court: (a) misconstrued the nature of the onus resting on the state
in a criminal trial; (b)
too readily branded the appellant a liar and
consequently rejected his evidence and accepted that of the
complainant without giving
due weight to its inherent improbabilities
and shortcomings; and (c) afforded little or no weight to the fact
that the complainant
had a motive to falsely implicate the appellant
as a result of her fixation on the fact that the appellant had not
used a condom
during the first rape and the complainant’s
belief that her illness was attributable to appellant’s failure
to use
a condom. Mr Schaefer contended further that the complainant’s
version should not have been accepted because: (a) the complainant
had continued to live at the shack provided to her by the appellant
even after she had been dismissed from her employment by the
appellant; (b) the complainant had denied that she had asked for
money from the appellant on 4 December 2006 which is the reason
why
the appellant visited her in her shack in the first place whereas her
brother had testified to that effect; and (c) that it
was
inconceivable that if the complainant had indeed screamed when the
appellant sexually molested her in her shack on 4 December
2006 that
no one would have responded to her cries of help considering that her
shack was on the same premises as the spaza shop.
[11] Before I deal with these
contentions I consider it apposite at this juncture to record that
although the appellant had admitted
having had consensual sexual
intercourse with the complainant on the two diverse occasions as set
fourth in the charge against
him, he for some inexplicable reason,
vehemently denied having had sexual intercourse at all with the
complainant on those dates
when he testified in his defence.
[12] In order to put the
contentions advanced by Mr Schaefer in their proper perspective it is
necessary to record a brief summary
of the evidence adduced at the
trial. The state called three witnesses and the appellant was the
only person who testified in his
defence.
[13] The complainant was formerly
employed by the appellant as a cashier at the appellant’s
‘spaza shop’ in Manziville,
Krugersdorp from February to
September 2006. When she commenced her employment she was staying
with her cousin with whom she later
had a fall out. When the
appellant got to know about the complainant’s predicament he
offered her accommodation in a shack
situated on the spaza shop
premises. This shack was, however, not in a habitable state and it
was then agreed between them that
the appellant would accommodate her
in the spare bedroom in his home whilst he fixed the shack. In June
2006 the complainant spent
the night in the appellant’s guest
bedroom in the absence of his wife. Whilst she was sleeping she was
woken up by the presence
of the appellant in her bedroom. He was
fondling her and pulling her panties down. Despite her initial
resistance she was overcome
by the appellant who then had sexual
intercourse with her without her consent. After he had finished he
returned to his bedroom.
On realising that the appellant had had
intercourse with her without using a condom she asked him as to why
he had done that without
a condom. The appellant, however, said that
he had used a condom. The next morning the appellant drove her to
work. She did not
report this incident to anyone save to tell the
appellant that what he had done to her constituted rape. The
appellant was, however,
dismissive of the rape accusation retorting
that even if she were to report it to the police the police would
dismiss it.
[14] In relation to the incident
of 4 December 2006 she testified that she was feeling sick. Because
the appellant had previously
rebuked her for telling others about her
sickness and not him, she telephoned the appellant to report her
condition to him. The
appellant then came to her shack and having
asked her what was wrong with her, she showed him pimples on her face
telling him that
she was feeling really sick. The appellant, however,
said there was nothing wrong with her and that she was merely
suffering from
a heat rash. Unexpectedly the appellant grabbed hold
of her, threw her on the bed, pulled off her tights and panties, took
off
his pair of trousers and had sexual intercourse with her against
her will. When she screamed the appellant got off her and comforted
her saying that she should not cry. He also offered her money which
she refused. She then got out of the shack in a state of
bewilderment,
puzzled as to why no one had responded to her cries for
help. She then called her brother who was in Kagiso. At that point in
time
the appellant’s sister-in-law who was by then working at
the appellant’s spaza shop came out and enquired of her as
to
what had happened. She, however, did not tell her of what had just
happened. When her brother arrived she reported both incidents
to him
and also to those persons who were present at the premises before her
brother took her to the doctor.
[15] The complainant’s
brother also testified on behalf of the state. He confirmed that on 4
December 2006 he was telephoned
by the complainant and in response to
that call he repaired to her shack. Upon arrival there she told him
what the appellant had
done to her not only on the morning of that
day but also in June 2006. She further told him that she had
telephoned the appellant
to ask for money as she was not feeling well
and thus desired to consult a doctor. On his suggestion the matter
was reported to
the police.
[16] Dr Ruwina Wadee also
testified on behalf of the state. She told the court that at 12h40 on
4 December 2006 she examined the
complainant following a complaint of
sexual assault. She did not observe any evidence of abnormality on
complainant’s genitals
apart from a ‘milky white
substance discharge’. Her clinical findings, whilst not
excluding vaginal penetration, were
not conclusive. She nevertheless
emphasised that the fact that she had found no injuries on the
complainant did not mean that no
forced penetration had taken place.
She attributed her inability to arrive at a firm conclusion in this
regard to a variety of
factors that need not be traversed in this
judgment.
[17] The appellant in his
testimony claimed that he, at all material times, had a love
relationship with the complainant and that
they had had sexual
intercourse together on diverse occasions. He, however, denied that
they had any sexual intercourse in June
2006 when the complainant was
accommodated at his home and again on 4 December 2006 as alleged by
the complainant. The essence
of his version in relation to the June
2006 incident was that pursuant to their arrangements he accommodated
the complainant in
the visitor’s bedroom at his home in
Krugersdorp West whilst he slept alone in his bedroom. During the
course of the night
the complainant came over to his bedroom saying
that she was scared of sleeping alone in the visitor’s bedroom
and wanted
to rather sleep with him on the same bed to which he
agreed. For the duration of the night they did not have sexual
intercourse
at all. Dealing with the 4 December 2006 incident the
appellant denied that he had sexual intercourse with the complainant.
He
told the trial court that the complainant had telephoned him
inviting him to come and see her because she had pimples on her face
and an infection of her genitals. She asked for R280 in order to
consult a doctor. But he told her to rather go to the clinic.
Her
response was that in that event she would call her brother and ask
him to take her to a doctor. He then left. Later on he was
confronted
by the police with the allegation that he had raped the complainant
which he denied.
[18] Once the adduction of
evidence was concluded the magistrate evaluated the totality of the
evidence having regard to the issue
of credibility given the mutually
exclusive versions of the state and the appellant and the question of
the onus resting on the
state to prove its case beyond reasonable
doubt.
[19] As it is apparent from what
is set forth in para 10 above it is not hard to see that, from the
common thread running through
the grounds of appeal, it is sought to
assail the magistrate’s findings of fact and credibility. On
this score it is necessary
to state the trite principle that a court
of appeal will not ordinarily interfere with such findings unless it
has been demonstrated
that they are vitiated by irregularity or
unless an examination of the evidence shows that such findings are
otherwise wrong. As
this court held in the oft quoted cases of
R v
Dhlumayo & another
1948 (2) SA 677
(A) at 705 et seq and
S
v Francis
1991 (1) SACR 198
(A) at 204c-f the trial court’s
findings of fact and credibility are presumed correct because the
trial court is steeped
in the atmosphere of the trial, had the
advantage of seeing and hearing the witnesses, and thus is in the
best position to determine
where the truth lies.
[20] I am not persuaded that the
criticism mounted against the magistrate’s evaluation of the
evidence is justified. In my
view the magistrate’s assessment
of the evidence is unassailable. He found that on balance the
complainant was a truthful
witness whose version was in the main
consistent and reliable. In coming to this conclusion he had regard
to the following factors:
(i) although she was a single witness in
relation to the rape incidents her version was more plausible; (ii)
the appellant had,
despite his plea explanation, denied that, on
these two critical occasions, he had sexual intercourse at all with
the complainant;
(iii) on this crucial aspect of the state’s
case the appellant’s defence was essentially a bare denial;
(iv) the complainant
was in a vulnerable position having to contend
with the appellant who was her employer and landlord who obviously
exploited this
situation to his advantage, which factors go towards
explaining why the complainant never reported the first rape incident
to the
police soon after it had occurred.
[21] Mr Schaefer also called into
aid the judgment of this court in
S v York
2002 (1) SACR 111
(SCA) para 19 in which it was held that in its evaluation of the
evidence in the context of a rape charge a court must forever
be
alive to the possibility of consent even where the accused denies
intercourse. It was thus argued that in the light of the appellant’s
plea explanation and the line of cross-examination of the complainant
adopted by the defence at the trial it cannot be argued that
he did
not have sexual intercourse with the complainant on the dates
mentioned in the charge. In my view there is a simple answer
to this
contention and it is that in this appeal there is no evidential basis
for such a possibility. Thus to postulate such a
possibility would be
no more than pure conjecture. The appellant’s version that
there was at all material times a love relationship
with the
complainant was rejected by the magistrate.
[22] It remains to deal with the
envisaged appeal against sentence. It is trite that the imposition of
sentence is pre-eminently
within the discretion of the trial court.
Thus the appellate court will only be justified in interfering with
the sentence imposed
by the trial court if one or more of the
recognised grounds warranting interference on appeal have been shown
to exist. To my mind
the magistrate properly took into account that
the appellant was: (i) 46 years of age; (ii) married with dependant
children; (iii)
gainfully employed and thus contributing to the
financial needs of his female companion, niece and mother; (iv) first
offender;
(v) his dependant children were still attending school; and
(vi) that substantial and compelling circumstances were present. As
against these mitigating factors the magistrate properly took
cognisance of the following aggravating factors: (i) that the
appellant
had abused his position of trust; (ii) took advantage of
the complainant who was vulnerable; (iii) lack of remorse; (iv) the
gravity
of the offence; and (v) the interests of society.
[23] That rape is an utterly
despicable crime that shows utter contempt for the feelings of the
victim brooks no argument to the
contrary. That this is so is evident
from an abundance of judgments of this court notably
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5a-e in which the unanimous court
expressed itself in these terms:
‘
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
civilisation.
Women in this 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 and come from
work, and to enjoy the peace and tranquillity
of their homes without
the fear, the apprehension and the insecurity which constantly
diminishes the quality and enjoyment of their
lives.
. . .
The Courts are under
a duty to send a clear message to the accused, to other potential
rapists and to the community: We are determined
to protect the
equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.’
In a more recent judgment in
S
v N
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) para 30 Maya JA had occasion to say
the following:
‘
.
. . The sense of outrage justifiably roused by the offence of rape in
the right thinking members of a South African society in
which sexual
violence is so endemic and hardly shows any sign of abating, must, in
my view, be a critical factor in the imposition
of a suitable
sentence here.’
[24] I have given anxious
consideration to the submissions advanced on behalf of the appellant
on the issue of sentence. I am, however,
unpersuaded that the
magistrate exercised his sentencing discretion otherwise than in a
proper judicial manner. See
S v Giannoulis
1975 (4) SA 867
(A)
at 868 E-H and
S v Kgosimore
1999 (2) SACR 238
(SCA) para 10.
Nor can I say that the sentence is otherwise shockingly severe or
startlingly disproportionate to the gravity of
the offences of which
the appellant was convicted.
[25] For all the aforegoing
reasons therefore the appeal must fail.
[26] In the result the following
order is made:
The appeal is dismissed.
___________________
XM Petse
Acting
Judge of Appeal
APPEARANCES
APPELLANT: JK Schaefer
Instructed by BDK Attorneys,
Johannesburg;
Symington & De Kok,
Bloemfontein.
RESPONDENT: A Simpson
Instructed by the Director of
Public Prosecutions, Johannesburg;
The Director of Public
Prosecutions, Bloemfontein.