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[2022] ZAFSHC 50
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S v Nkikane (69/2021) [2022] ZAFSHC 50 (10 March 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No: 69/2021
In
the matter between: -
THE
STATE
and
MPHO
ELIAS NKIKANA
ACCUSED
CORAM:
MATHEBULA, J
HEARD
ON:
7,
8 &
9 MARCH 2022
DELIVERED ON:
09 & 10 MARCH 2022
Introduction
and Plea
[1]
This is a sordid tale of a fatherâs conduct
towards his girl child. The accused, a Lesotho national, brought his
young family to
the Republic probably for better prospects in life,
only to make it a living hell for an innocent fourteen (14) year old.
Once here,
he wasted no time to violate the person of her eldest
daughter in every conceivable manner.
[2]
The accused is arraigned on a plethora of charges to
wit
rape,
attempted rape and assault. They are nine (9) in total. On eight (8)
charges, the complainant is her eldest daughter M[....]
N[....]. Only
on one (1) charge, the complainant is his wife M[....] N[....].
[3]
It was not an easy task to understand the plea entered by the
accused. Initially he
pleaded guilty to charge 1 and 2 and not guilty
on the rest of the charges. After I gave him an opportunity to
consult with the defence
counsel and I had broached the issues with
him, it became apparent that he was not admitting all elements of the
offences stipulated
on the charges. In terms of section 113 of Act 51
of 1977, I entered a plea of not guilty on his behalf.
Evidence
[4]
The first state witness namely Mabakoena Nkikana took to the stand
and testified
as follows. She is the elder sister of the accused and
a traditional healer. She stays just two (2) houses from them and was
also
a regular visitor at their house.
[5]
On 26 July 2021 she paid them a visit as always. She asked the
accused and his wife
(M[â¦.]) why the complainant looked thin. The
accused answered that its because she was pepper sprayed by the
police. After sometime
the accused left to go buy cigarettes at the
shop.
[6]
She persisted with her questions to his wife. After some persuasion,
M[â¦.]
told her that she is being abused sexually by the accused.
Apparently this matter was kept under wraps because the accused had
told
them that he will kill them should they divulge the details to
any person. At all times the complainant was within earshot and she
cried when this subject was discussed.
[7]
It seems that the main reason why he did that, is because he had
dreamt that
the complainant was plagued by a âThokolosiâ. In
order to exorcise it, he had to engage in sexual intercourse with the
complainant
(his daughter). This was some form of cleansing her. The
complainant confirmed to her that they had sexual intercourse. She
correctly
reported the matter to the local police.
[8]
The complainant testified and confirmed engaging in sexual
intercourse with the
accused. M[â¦.] confirmed being aware of one
occasion that it occurred. After the accused was arrested, the
complainant confirmed
that it happened six (6) times. These occurred
without her consent and only after the accused had coerced her into
submission. All
the sexual acts took place in their shack in the
company of her stepmother and siblings. The stepmother was aware that
the accused
was performing these acts on her.
[9]
The complainant gave details with clear particularity about how each
incident took place. On the
first occasion, which occurred in May
2021, the accused put on a condom before inserting his manhood into
her. A week later, he had
unprotected sexual intercourse with her for
the first time. She attempted to resist but it was quelled by assault
and strangulation.
[10]
The third and fourth incidents also took place marred by assaults
when she resisted. Incidentally, these
are the two (2) sexual acts
that the accused admitted to. In the light of this admission, there
is no need for further discussion.
[11]
On one occasion he was on top of the complainant assaulting and even
calling her a bitch when
he was interrupted by his brother. He even
assaulted her. The last incident occurred on 25 July 2021, a day
before the matter was
reported to the police. Again, he waited until
the wife and all the children were asleep. He took them to the bed
and surreptitiously
slid under the blankets of the complainant.
Again, he had sexual intercourse with her. This in the nutshell is
her evidence.
[12] Sergeant
Moeketsi Thabana, the investigating officer, testified that she
reduced the statement of M[â¦.] N[â¦.]
to writing. This is the
document that was handed in as exhibit âDâ. Mabohlokoa has gone
to ground and despite diligent search
he has been unable to locate
her. Apparently, she has returned to the Kingdom of Lesotho.
[13] The
accused testified in his defence and outrightly admitted to two (2)
acts of sexual misconduct. These occurred
as a result of excessive
intake of alcoholic beverages. On both occasions, words escape him in
his quest to describe his deviant
behaviour. On all others he simply
denied the version of the complainant.
Evaluation of Evidence
[14] When all
is said and done, the court must look at all evidence to make a
determination whether the State has
proved its case beyond reasonable
doubt. The correct approach of evaluating evidence was succinctly
laid out in
S v Chabalala
2003 (1) SACR 134
(SCA)
at
139I-J
.
There the court said that all elements that point towards the guilt
of the accused must be weighed against those that are indicative
of
his innocence. This means that proper accharge must be taken of
inherent strengths and weaknesses, probabilities and improbabilities
on both sides. The essence is that evidence must be considered in
totality.
[15]
I take cognisance of the fact that the State relied on the evidence
of a single witness to prove
its case. Furthermore, this is also the
evidence of a child which has its inherent dangers. It is trite in
our law that a person
may be convicted on the evidence of a single
witness if it is material in all respects. I deem the evidence for
the State to be such
evidence.
[16]
The complainant gave her evidence with clarity and absolute
chronological order of the events.
She was resolute and never
deviated from her version. Cross examination did not reveal much and
she did not depart from her evidence
in chief. Importantly, the fact
that the accused had sexual intercourse with her is corroborated by
clinical findings on exhibit
âBâ. Nevertheless, the accused
himself admit to two (2) incidents of sexual intercourse with her. I
must point out that the admission
is very dodgy. It is not consistent
with evidence led. Initially he admitted to charges one (1) and two
(2). Later he recanted and
referred to charges 3 and 4. His evidence
point to charges 5 and 6. Clearly, he was concocting a version.
[17]
The complainant testified about a particular
modus operandi
employed by the accused to sexually violate her. I alluded to it
in the summary of the evidence in the preceding paragraphs. On the
probabilities, I came to the conclusion that the accused did have
sexual intercourse with the complainant on other occasions that
she
described instead of the only two (2) that he admit to. Obviously, it
serves him better to admit to two (2) instead of six (6).
[18] The accused was
a woeful, pathetic and pitiless liar. He did not put up any version.
In any event it is not in accordance
with our law that he must prove
his innocence. His version must simply be reasonably possibly true.
However, in the face of such
formidable evidence, the accused is duty
bound to place his defence before court. On occasions where he
proffered a version, he kept
on changing it. It is safe to conclude
that his version is rejected as not reasonably possibly true.
[19]
Before concluding, I broached the subject of possible duplication of
charges to both counsel.
This concern stems from charges number six
(6) attempted rape and seven (7) assault. The evidence is simply the
following. The accused
assaulted the complainant with open hands and
even called her a bitch. Thereafter he pinned her down. There is no
evidence to the
effect that he did anything else beyond these two (2)
incidents. As state counsel, correctly conceded, there is no cogent
evidence
to prove the offence alleged on charge six (6).
[20]
It is my considered opinion that in the main the State has proved its
case beyond reasonable doubt
on all charges bar two (2).
Order
[21]
I make the following order: -
21.1. The accused is found
guilty of charges one (1), two (2), three (3), four (4), five (5),
seven (7) and eight (8).
21.2. The accused is
found not guilty on charges six (6) and nine (9).
Sentence
[22]
The accused has been found guilty of five (5) charges that attract
the minimum sentence of life
imprisonment. I can only deviate from
imposing these sentences if there are substantial and compelling
circumstances. These comprise
of any factor either examined
individually or cumulatively with others. This is the law. The
Supreme Court of Appeal has cautioned
that the trial court should not
deviate from imposing the prescribed minimum sentence for flimsy
reason(s).
[23]
It is settled law that our courts, in determining the appropriate
sentence, should consider the
gravity of the offence, the
circumstances of the offender and public interest.
[1]
I must mention that although sentencing is primarily within the
discretion of the trial court, such is limited in matters where the
minimum sentence regime is applicable.
[24]
The personal circumstances of the accused were presented as follows.
He is thirty-seven (37) years
old, married with four (4) children
aged twenty (20), fifteen (15), seven (7) and four (4). The eldest
one is a major and stays on
the farm with a relative. The complainant
is cared for by her aunt. The other two (2) are under the custody and
care of their mother
probably in the Kingdom of Lesotho. This means
that he is not a primary care giver of any child. His highest
scholastic achievement
is Grade 3. He has one previous conviction of
stock theft dating back to 2011. He eked out a living by doing odd
jobs and selling
vegetables.
[25]
There is nothing outstanding about his personal circumstances whether
they are considered individually
or cumulatively. Indeed, he repeated
a few times that he is remorseful of what he has done. However, few
sentences down the road,
he will recant and give a different version.
Despite conviction on four (4) more charges than those that he
admitted, he insisted
on his innocence. There can be no talk of
remorse in such circumstances. This is only a ploy to gain
unwarranted leniency. He is
requesting this court to warn him and not
to impose custodial sentence. His only concern is his own skin and
nothing about those
that he had wronged.
[26]
The crime of rape is by its very nature a heinous one. It rips apart
the soul of the victim and
strips her bare. What is more aggravating
in this matter is that it was perpetrated by a father. He who was
supposed to give love,
protection and comfort to someone who regarded
him as her first love. It happened in the sanctity of the home. The
accused kept her
daughter as a sex slave isolated from her peers from
enjoying her youth. The accused is a cruel masochist who satisfied
his weird
sexual desires on a defenceless and vulnerable child under
the guise of culture. I am not aware of any African culture that
practices
acts of moral turpitude. Instead, it is expected of him to
show ubuntu to women and children alike. Had it not been for
the
timely intervention by the aunt, he could still be at it. As the
complainant testified, he wanted to impregnate her. I can think
of
nothing that is so distasteful and abhorrent.
[27]
This is a gruesome offence and this society looks up to the courts to
protect women and children
from sexual predators as the accused. It
is a fact that sentences imposed by courts do result in public outcry
either as lenient
or hard. However, it is expected by this society
that the accused and his ilk must be given long and hard sentences. I
am mindful
of the fact that whatever sentence is imposed, it should
not be designed to break him.
[28]
I have looked at all factors and concluded that there is no
justification to deviate from imposing
the minimum sentence. This
matter is a textbook example where courts should send a strong
message to all that such behaviour is intolerable.
Those who prey on
the weak and vulnerable must feel the wrath of the law.
[29]
The appropriate sentence is the following: -
29.1.
Charge 1 â Rape â Life imprisonment
29.2.
Charge 2 â Rape â Life imprisonment
29.3.
Charge 3 â Rape â Life imprisonment
29.4.
Charge 4 â Rape â Life imprisonment
29.5.
Charge 5 â Rape â Life imprisonment
29.6.
Charge 7 â Assault â Two (2) years imprisonment
29.7.
Charge 8 â Rape â Life imprisonment
29.8.
It is ordered that sentences on charges 2, 3, 4, 5,
7 and 8 will run
concurrently with the sentence on charge 1.
M.A. MATHEBULA, J
For the
State:
Adv MMM Moroka
Instructed
by:
Director of Public Prosecutions
BLOEMFONTEIN
For the
accused:
Mr P Mokoena
Instructed
by:
Legal Aid Board
BLOEMFONTEIN
\TKwapa
[1]
See S
v Zinn
1969 (2) SA 537
(A).