Modikeng v S (A33/2021) [2022] ZAFSHC 80 (18 March 2022)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 80
|

|

Modikeng v S (A33/2021) [2022] ZAFSHC 80 (18 March 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:   A33/2021
In the Appeal
between:
TEBOHO ISHMAEL
MODIKENG
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
LITHEKO,
AJ
HEARD
ON:
31 JANUARY 2022
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 12h00 on
18
MARCH 2022.
[1]
The appellant was arraigned in the Regional Court Virginia, on a
charge of rape in contravention of section
3 of the Criminal Law
Amendment Act (Sexual Offences and Related Matters) 32 of 2007.
[2]
The appellant who was legally represented and had pleaded not guilty
to the charge was convicted as charged.
Having regard to the
provisions of section 51 (1) of the Criminal Law Amendment Act 105 of
1997 (“
The CLAA
”) the court
a
quo
held that
there were no substantial and compelling reasons warranting a
deviation from the prescribed minimum sentence and sentenced
the
appellant to life imprisonment.
[3]
The appellant
is aggrieved by the conviction and sentence. He appeals to this court
by virtue of his right to automatic appeal as
provided for in s
ection
309 (1)(a) of the Criminal Procedure Act, 51 of 1977 (“the Act”).
[4]
The appeal is opposed by the State.
[5]
On the facts of this matter, the appellant was convicted on the
evidence of the complainant, Ms. M[….]
H[….] M[….], the
complainant’s mother and the medical evidence, handed in by
concurrence of the State and the defence as Exhibit
“A” and “B”
respectively.
[6]
The summary of the state’s evidence is that: the complainant was
raped by the appellant at his residence
during the year 2018. The
complainant testified that immediately before the incident she was
playing with the appellant’s five
(5) year old daughter L[....]
when the appellant sent L[....] to go and get her mother (“M[....]”)
the appellant’s girlfriend
who had left home after a quarrel with
the appellant. When the complainant wanted to leave with L[....], the
appellant said she must
remain behind and after L[....] was gone the
appellant told the complainant to sit on the bed. He asked her
whether she was in involved
in a love relationship, which grade she
was at school and how old was she.
[7]
The complainant told the appellant that she was not in any love
relationship, she was in grade 3 and that
she was nine (9) years old.
The appellant then stood up, looked out through the window and the
door to see if M[....] was coming.
He then closed the door and came
over to undress the complainant.
[8]
He removed her trousers and underwear, applied Dawn lotion on her
vagina. He also removed his pants, smeared
the same lotion on his
penis, threw her on the bed and penetrated her. When she screamed out
of pain he covered her mouth with his
hand.
[9]
The complainant ultimately managed to push the appellant off her, she
got off the bed and got dressed.
On her way out the appellant
threatened her warning her that if she ever told her mother what had
happened he will kill her and her
entire family.  He also told
her that whenever they meet she must ask him for money he will give
it to her.
[10]   As
a result of the threat, the complainant did not utter a word to her
mother about the incident until months later
when the pain in her
genitals became unbearable. She had also developed rash.
[11]   Ms.
Mutsumi corroborated the complainant’s first report of the rape
incident, she confirmed that it was in the
evening of the 14
th
June 2018 when the complainant complained to her about a rash and
pain in her private parts. On the next morning Ms. Motsumi checked
the complainant and noticed that she had a rash on the vagina and
some strange whitish discharge. She let her go to school as it
was
exam time on her return from school the pain was worse the
complainant was even crying.
[12]   Ms
Motsumi took to complainant to the clinic at least on two occasions
but the clinic was full. The complainant was
only attended to on 17
June 2018 however, as a result of the nature and severity of the
complainant’s ailment the nurse who examined
the complainant called
an ambulance to take the complainant to hospital.
[13]   At
the hospital the doctor who examined the complainant stated that the
complainant’s illness was as a result of
a sexual encounter. They
were given a prescription to be collected from a pharmacy. The
pharmacist also raised a similar concern
about the cause of the
complainant’s illness. She asked whether the complainant was raped
saying that such an illness did not just
occur.
[14]   The
complainant ultimately disclosed to Ms. Motsumi that she had been
raped by the appellant during the previous
school holidays. According
to Ms. Motsumi school holidays preceding June were in March. Ms
Motsumi then took the complainant to the
police station to lay a
charge, the complainant was taken for another medical examination at
Bongani Regional Hospital thereafter,
the appellant was arrested.
[15]
Sister Mabel Qathatsi the forensic nurse who examined the complainant
and also compiled the medical reports on 17
June 2018 and 9 July 2018
respectively. She tendered her evidence as a witness of the court
after the State and the defence closed
their respective cases.
[16]   It
was her testimony that the complainant presented with a septic rash
with puss indicating a sexually transmitted
disease. The complainant
informed her that she had been raped by a known male some months ago
during March school holidays which
information correlates to her
observations in that the rash was not fresh, the infection was not
recent but at an advanced stage
of after 28 days.
[17]
Exhibit “A” reflects that there are no visible gynaecological
injuries and this is due to the fact that on that
day she was unable
to conduct a proper examination as the rash was oozing puss all over
and the complainant was in excruciating pain
The complainant was in
so much pain she could not even sit or walk properly.
[18]   On
9 July 2018, she examined the complainant again after the charge was
laid against the appellant. There were still
no injuries detected on
the clitoris, urethra and labia majora however, the hymen was severed
indicating penal penetration. There
were also bumps and clefts at
nine (9) and three of the posterior fourchette.
[19]   It
was put to Sister Qathatsi by the defence that the complainant could
not have been infected by the appellant because
both the appellant
and his girlfriend did not have a sexually transmitted disease. Her
response was that there could be various reasons
why the appellant or
his girlfriend were not infected and one of the reasons could be that
they used protection when having intercourse.
[20]   The
appellant challenges his conviction on the grounds that: in
convicting the appellant, the trial court accepted
the State’s
evidence and rejected the appellant’s version despite the
improbabilities in the State’s case and the material
contradictions
between the complainant’s evidence and the evidence of the other
State’s witnesses.
[21]
Regarding the sentence, it is the appellant’s case that
the
sentence of life imprisonment is shockingly harsh and inappropriate
and that the trial court erred in its conclusion that there
were no
substantial and compelling circumstances warranting a deviation from
the prescribed sentence of life imprisonment. The sentence
must be
replaced with a sentence of 20 years’ imprisonment.
[22]
It is trite that a court of appeal will not interfere with or tamper
with the trial court’s judgment or decision
regarding either
conviction or sentence unless it (the court of appeal) finds that the
trial court misdirected itself as regards
its findings of facts or
the law. See
R
v Dhlumayo & Anothe
r
1948
(2) SA 677
(A).
[1]
[23]   The
complainant was a single witness to the rape and also a child
witness, the learned magistrate was clearly alive
to the cautionary
rules applicable under these circumstances in that the record
indicates that her conclusion that the complainant
had told the truth
about the rape is premised on the fact that despite her age, the
complainant was able to give a succinct and detailed
description of
where and how the rape occurred. The complainant’s accurate
description of the appellant’s room and its contents
namely that,
there was a distinctive touch case (suit case), a crate and
toiletries from which the appellant retrieved the Dawn lotion.
The
complainant was also unequivocal about what the appellant did to her
until she managed to get away. Her version remained intact
even after
cross-examination.
[2]
A child’s
veracity and ability to give a succinct version of the events is an
important consideration in applying the cautionary
rules.
[24]   The
complainant’s evidence was also corroborated by her mother to whom
the complainant reported the rape and also
the uncontested medical
evidence which determined that the complainant was not only
penetrated vaginally but was also infected with
a sexually
transmitted disease.
[25]   On
the other side, the appellant’s version that
the
charge was fabricated by the complainant’s mother, a liquor and
drug dealer who bore a grudge against him for stealing her drugs
was
dispelled by the fact that on the available evidence, the
complainant’s mother only became aware of the rape after the
complainant
fell ill with a sexually transmitted disease.
[26]
Likewise, the contradictory versions proffered by the appellant and
his witnesses, his mother (“Ms A[....] M[....]”)
and his
girlfriend
A[....] M[....]
(“M[....]”)
regarding the events of the day the offence took place affected their
credibility and cast doubt on a reasonable possibility that
the
appellant was falsely implicated.
[27]
At the commencement of his direct evidence, the appellant was adamant
that the complainant has never set her foot
at his residence and that
she could not have been there and playing with his daughter, L[....]
because L[....] lived with the appellant’s
mother. He then changed
his version and admitted that
there
were times when the complainant would visit his home with her mother
in fact even on the day that he quarrelled with M[....] the
complainant was at his residence with her mother who came to
reprimand
him and M[....] to stop fighting.
[28]
M[....], at first she confirmed the appellant’s version that the
complainant never played with L[....] at their
home as Lebo lived
with her paternal grandmother and would only visit during the week
accompanied by her grandmother.
[29]
In contrast to the appellant’s version, she testified that the
complainant used to come to their home ‘many times’
and it was
before and after the appellant was arrested. She denied that on the
day she had an argument with the appellant the complainant
was there
with her mother to
reprimand them
for quarrelling.
[30]
Ms. M[....] confirmed that she had been living with L[....]. She
stated that L[....] never played with the complainant.
She also
contradicted M[....] and the appellant by stating that L[....] only
visited her parents on weekends only, sometimes after
church on
Sunday.
[31]
It does not end there. The appellant had admitted that in his room
there was indeed a touch case as described by
the complainant whilst
M[....] vehemently denied that there was such a case.
[32]
It is in that regard that the trial court,
after
having meticulously evaluated and analysed the evidence adduced by
the State and the defence
in
its totality came to a conclusion that the appellant’s version that
he was falsely implicated for raping the complainant was
embellished
and rejected it as false. The trial court was satisfied that on the
accepted State’s evidence, the guilt of the accused
was proven
beyond a reasonable doubt. I cannot fault the trial court for its
findings in this regard.
[33]
There is nothing improbable about the complainant’s testimony as a
whole including her version that she was raped
in the appellant’s
home while M[....] and L[....] were a few houses away. The
appellant’s assertion that it would have been risky
to rape the
complainant under those circumstances as M[....] and L[....] could
have returned home and caught him out is meritless
and absurd. On the
facts germane to this matter, the appellant had made a point of
checking out of the window and out of the door
before raping the
complainant.
[34]
Except for the
complainant’s
inability to provide the exact date of the incident, which is to be
expected having regard to her young age,
I
have not detected any
material
contradictions in her evidence or between her evidence and that of
the other State witness.
[35]
There is also no merit to the appellant’s criticism of the trial
court’s rejection of the submission that he
could not have been the
perpetrator of this offence because he and his girlfriend were not
infected with a sexually transmitted disease.
Sister Qhatatsi
explained that it could be that they had used protection and except
for the say- so of the appellant, her evidence
in this regard was not
gainsaid by facts.
[36]
In the circumstances, I’m
satisfied that the appellant was correctly convicted.
[37]   As
regards sentencing, it is trite that punishment is pre-eminently a
matter for the discretion of the trial court.
The court of appeal may
only interfere where it is clear that the trial court has misdirected
itself
[3]
and imposed a sentence
that is disturbingly inappropriate having regard to the provisions of
section 51(3) (a) of the CLAA.
[4]
[38]
It is common cause that in terms of section 51(1) of the CLAA
life
imprisonment was the
prescribed sentence in respect of the
offence the appellant was convicted of unless the court found
substantial and compelling reasons
justifying a lesser sentence.
[39]
The appellant’s criticism of the trial court’s conclusion that
there were no substantial and compelling reasons
to deviate from the
prescribed sentence is meritless. As correctly pointed out by the
trial court, there is nothing exceptional about
the accused’s
personal circumstances namely: his age, that he has a child, was in a
long term relationship with the mother of his
child, did not finish
school and that at the time of the arrest he was earning a living by
doing odd jobs. These factors on their
own, they pale into
insignificance when weighed against the brutality and the repulsive
nature of the offence the appellant has been
convicted of. See
Vilakazi v The State
2009
(1) SACR 552
(SCA)
at
paragraph 58
that:
“
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is married
or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial to what
that period
should be, and those seem to me to be the kind of ‘flimsy’
grounds that Malgas said should be avoided”.
[40]
The fact that the appellant spent 10 months in custody awaiting trial
is indeed a factor that a court may take into
account as a
substantial and compelling factor under these circumstances however,
it is for the appellant to set out facts indicating
on what basis
this aspect should count in his favour in the sense that it was not
by his own design that he was held in custody pending
trial. In this
matter, except to fleetingly argue that incarceration pending trial
should be considered in the appellant’s favour
nothing was said
regarding the circumstances under which he had to remain in custody
pending trial when he had the right to apply
for bail.
[41]
The appellant’s contention that the trial court should have taken
into account the fact that he did not assault
the complainant during
the rape nor pre-planned it, is absurd. The appellant deliberately
ignores the fact that he forcefully undressed
the complainant, threw
her on the bed and subdued her by lying on top of her and covering
her mouth to stop her from screaming and
threatened to kill her and
her family if she ever disclosed what he had done to her. Rape is a
violent crime.
[42]
As to how the court
a
quo
concluded
that it was not entitled to deviate from the prescribed sentence of
life imprisonment, in the judgment
[5]
it is clear that the court
a
quo
duly
considered
the traditional sentencing factors, namely, the nature of the
offence, the personal circumstances of the accused, and the
interests
of society.
As
regards the existence of the substantial and compelling factors
warranting a lesser sentence, the learned magistrate considered
the
appellant’s personal circumstances and his incarceration pending
trial cumulatively and weighed these factors against the nature
and
the gravity of the offence, the aggravating factors including the
fact that: the offence was perpetrated on a child who felt
safe in
the appellant’s home; the appellant did not only violate the
complaint by inflicting pain on her small body but he went
further
and infected her with a sexually transmitted disease which caused her
added pain and shame; the appellant had two previous
convictions of
assault which is an indication of his propensity to commit violent
offences and that as a consequence of the appellant’s
actions, the
complainant has lost her innocence, she can no longer play with her
peers and has been left with life- long emotional
trauma. I fully
agree. The appellant’s case is devoid of substantial and compelling
circumstances life imprisonment is an appropriate
sentence in this
case.
[43]
In the result, I would make the following order:
1.
The
appeal against conviction and sentence is dismissed.
N.S.
DANISO, J
I
concur
M.S.
LITHEKO, AJ
On
behalf of appellant:
Adv. S. Kruger
Instructed
by:
Legal Aid, South Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
A.M. Ferreira
Instructed
by:
Office of the Director of Public Prosecutions
BLOEMFONTEIN
[1]
The
principle was
also
restated
in
S
v Mlumbi
1991
(1)
SACR 235
(SCA) at 247 para G.
[2]
Pages 51 to 55 of the transcribed record of the proceedings.
[3]
S v Kgosimore
1999
(2) SACR 238
SCA.
[4]
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
CC.
[5]
Pages 65 to 69 of the transcribed record of the proceedings.