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[2021] ZALMPPHC 15
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Selebego and Another v S (A05/2020) [2021] ZALMPPHC 15 (26 April 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: A05/2020
In
the matter between:
DAVID
KEDIBONE SELEBEGO
FIRST
APPELLANT
RASEMATE
PETER MASINGI
SECOND
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The two appellants were arraigned in the Regional Court Mahwelereng
on one count rape read with
the provisions of section 51 (1) and
Schedule 2 of the Criminal Law Amendment Act
[1]
(CLAA). The appellants were subsequently convicted as charged and
sentenced to life imprisonment. The appellants are appealing
against
both conviction and sentence in terms of section 309 (1) (a) of the
Criminal Procedure Act
[2]
(CPA)
wherein they are having automatic right of appeal.
[2]
During trial in the court a quo the State led the evidence of the
following witnesses. The first witness
was Mapitso Victoria Ramohale
the professional nurse who examined the complainant after the alleged
rape. She testified that after
examining the complainant she
completed the J88. Her conclusions as recorded on the J88 was that
there were no physical injuries
seen to exclude violence behaviour,
vaginal and anal penetration. Under cross examination the witness
stated that even though the
appellant had told her that she did not
change her clothes or bathed after the alleged incident, she looked
clean and her clothes
were not dusty.
[3]
The State second witness was Dikobe Jacobus Phukubje the police
officer who attended to the complainant
ten months after the
incident. He testified that he was in the company of constable Mukebe
when he attended the complainant. On
arrival at the complainant’s
homestead, the witness asked the complainant the name of the
investigating officer and she told
him that it was sergeant Langa.
The witness phoned sergeant Langa who told him that he has been in
search of two suspects in the
alleged rape case, and that the case
has been hanged as he could not find the suspects. Sergeant Langa
further told him that one
of the suspect was the second appellant.
The witness and constable Mukebe proceeded to the second appellant’s
homestead where
they arrested him.
[4]
Katimone Regina Malete was the third witness to testify for the
State. She testified that she
is residing at Mmotong village in
Polokwane. On 17
th
December 2016 she went to attend a
funeral at Mahwelereng in Mokopane. Around 21h00, she and the
complainant who is her sibling,
went to a shop to buy airtime. When
they arrive at the shop a certain boy walked passed them. As the
complainant was about to enter
the shop that boy who had walked
passed them, came back and dragged the complainant. The witness
became scared and she went to
go and call her cousin who was staying
not far from the shop. When she and her cousin came back to the shop,
they did not know
which direction the complaint and that boy had
taken. The witness and her cousin went back to the funeral to report
the incident.
From there a search was conducted but they could not
find the complainant. The complainant made a call back around 4h00 in
the
early hours of the following day. They then phoned the
complainant and she told them that she was next to a school called
Hans
something. The witness saw the complainant after the complainant
was back from the clinic. She did not talk to the complainant as
she
looked emotional.
[5]
The witness was cross examined by counsel for the first appellant and
she stated that she did
not know which cell phone did the complainant
use to make a call back. The witness further stated that her phone
was in possession
of the complainant and that it did not have
airtime. The witness also stated that after she parted ways with the
complainant they
tried to contact her on several occasions, but she
was not answering the phones. The witness stated that the said boy
did not drag
the complainant in a violent manner, but that he had
hugged her.
[6]
Under cross examination by counsel for the second appellant the
witness stated that when
the complainant came back from the clinic,
she was crying. When it was pointed to the witness that in her police
statement she
had stated that when the complainant came back from
hospital for examination, she told her that an unknown man took her
away and
raped her, the witness responded by stating that the
complainant had told her that she was raped, but that the complainant
did
not give her the full details of the incident.
[7]
The State called Johanna Malete as its fourth witness. She testified
that the complainant is her
niece. That on 18
th
December
2016 in the early hours of the morning, she, Helen and Maria were
requested to go and fetch the complainant at Chris Hani
School. On
arrival at the school they found the complainant seated on a rock and
crying. They took the complainant to the clinic.
On arrival at the
clinic, they were referred to Voortrekker Hospital. At the hospital
they were referred to the police station.
Throughout their journey,
the complainant did not speak to her. The witness stated that she
heard from Aubrey and Maria when they
were requested to go and fetch
the complainant that the complainant was raped. The witness was not
cross examined.
[8]
The complainant testified as the fifth witness for the State. She
testified that on 17
th
December 2016 she was sent to the
Indian shop to go and buy airtime. When she went to the shop she was
in the company of Regina
Malete the third State witness. They arrived
at the Indian shop at 21h00. Upon arrival at the shop, a certain boy
(first appellant)
who was wearing a scot shirt came to her and
grabbed her on her hand and neck. The first appellant started walking
with her away
from the shop. At a certain corner the complainant
asked what was the problem with the first appellant, and the first
appellant
responded by telling her that the previous day the
complainant consumed his money and also took his cell phone. The
first appellant
told the complainant that they are going to a certain
homestead where they were going to enquire whether the complainant
was the
exact person or not.
[9]
On arrival at that homestead they did not enter the premises, and
when the complainant asked why they
were not entering, the first
appellant told her to shut up. The first appellant asked the
complainant what she was having in her
possession, and the
complainant told the first appellant that she was having cell phones
and cash for the airtime. The first appellant
told the complainant to
put the cell phones on the rock of which she did, and also handed
cash to him. The first appellant instructed
the complainant to
undress the jacket she was wearing, and she did that and gave the
jacket to the first appellant. The first appellant
took that jacket
and put it on. The complainant further stated that she complied with
the requests as the first appellant was assaulting
her with open
hands on her face.
[10]
After putting on the jacket they started walking. As they were
walking, another cell phone rang from
her. The first appellant
assaulted the complainant once with an open hand and asked her why
she did not tell him that she was having
3 cell phones, and she told
the first appellant that she was not aware of that. The first
appellant told the complainant to take
off all her clothes, and she
complied. The first appellant told the complainant to lie on the
ground and after lying on the ground,
the first appellant inserted
his penis into her vagina and raped her without using a condom. He
did not ejaculate and he ordered
the complainant to put on her
clothes. After putting on the clothes, the first appellant told the
complainant that they were going
to his friend’s place. The
complainant begged the first appellant to take her back where he had
picked her, and the first
appellant told the complainant that they
were going to his friend’s homestead as the place where they
were, was not safe.
The complainant started crying and told the first
appellant that she did not have parents and that all her family
members have
passed away. The complainant asked the first appellant
why he was treating her like that and that she was going to report
him.
The first appellant became scared and he gave her back all her
cell phones including her jacket. By then the first appellant was
shivering and he told the complainant that he did not know where they
were going to end up and that he was not going to let go
something
beautiful. The complainant asked the first appellant to give her back
the airtime money, and the first appellant told
her that he was going
to use that money to buy beer.
[11]
They started walking, and as they were walking, they saw people
coming from behind them. The first
appellant held the complainant by
her hand and they started running. As they were running, the first
appellant told the complainant
that the place where they were, was
dangerous. When the first appellant and the complainant looked back,
they saw the three people
who were walking behind them running
towards them. The first appellant and the complainant went to the
homestead of the first appellant’s
friend (second appellant).
As there were Apollo lights, she was able to identify the first
appellant as the person who had grabbed
her at the Indian shop. The
complainant further stated that the first appellant did not propose
to her, and that night it was for
the first time she sees him, and
she was not her girlfriend.
[12]
On arrival at the homestead of the second appellant, they found the
sibling of the second appellant.
The first appellant told the sibling
of the second appellant that she was her girlfriend. The complainant
responded by telling
the sibling of the second appellant that she was
not his girlfriend, and the first appellant told her to keep quite as
he was not
talking to her. After that the first appellant violently
requested the complainant to give him her jacket as he wanted to go
and
buy beer, and she complied. The first appellant left and the
complainant remained with the sibling of the second appellant.
[13]
In the absence of the first appellant, the complainant told the
sibling of the second appellant that
the first appellant had taken
her from a certain place where she was send to buy airtime and raped
her. The complainant requested
the sibling of the second appellant to
assist her. The sibling of the second appellant told her that he will
not be able to assist
her, and that the least he can do was to give
her a room. The complainant stayed in the room until the first
appellant came back.
[14]
On his return, the first appellant requested the complainant’s
cell phone of which she complied.
The first appellant phoned the
second appellant and asked him about his whereabouts. Later the
second appellant arrived and came
in the room she was with the first
appellant. In the presence of the second appellant, the first
appellant forced the complainant
to take off all her clothes by
threatening to struck her with a beer bottle. She took off all her
clothes and as she was lying
on the ground, the first appellant
inserted his penis into her vagina and raped her without using a
condom. According to the complainant,
there was electricity light in
the room and that the second appellant was sitting on the bed whilst
the first appellant was raping
her.
[15]
After the first appellant had finished raping the complainant, the
second appellant immediately took
off his trouser and inserted his
penis into complainant’s vagina and also raped her. The
complainant pleaded with the appellants
to let her go, but the first
appellant fell asleep on the floor. When the first appellant was
sleeping, the second appellant tried
to assist the complainant to
escape. As the second appellant was trying to open the door, the
first appellant woke up and asked
the second appellant what he was
trying to do. The first appellant pleaded with the complainant to
come back and sleep of which
she complied as she could not go
anywhere. She slept on the floor, and as the first appellant was
sleeping, the second appellant
again tried to assist the complainant
to escape. As the second appellant was opening the door, the first
appellant woke up and
called the complainant to come back of which
she complied.
[16]
In the early hours of the following day, the first appellant told the
complainant that he was escorting
her out of that homestead. On the
way they arrived at some bushes where the first appellant told the
complainant that he wanted
to have sexual intercourse with her for
the last time. The first appellant ordered the complainant to take
off her trouser and
panty, and she complied. The first appellant
inserted his penis into her vagina and had sexual intercourse with
her. After the
first appellant finished having sex with her, he
pointed to her a certain road as the road which she must take back to
the homestead
she had visited. She took that road until she saw a
school named Chris Hani. She then stopped at that school and made a
call back
to her father and told him where she was. Her uncle in the
company of her wife and another old lady unknown to her came to fetch
her. They took her to the hospital where she was examined.
[17]
Under cross examination by counsel for the first appellant the
complainant stated that the first appellant
had raped her four times
and ejaculated once. She further stated that DNA test were taken from
her, but she was never informed
of the outcome of the tests. It was
put to the complainant that the DNA tests results came negative, and
the complainant in response
stated that the first appellant did have
sexual intercourse with her. It was put to the complainant that on
16
th
December 2016 the first appellant was at the same
funeral with her and he requested some scones from the complainant
which she
gave him. The complainant denied offering the first
appellant some scones. She also denied that the first appellant had
asked her
to give him her cell phone numbers. She also denied that
she and first appellant had an appointment to meet on Saturday the
17
th
December 2016 at 20h00. The complainant denied that
at the spaza shop the first appellant had requested her to accompany
him to
the second appellant’s homestead.
[18]
The complainant stated that she was taken to the second appellant’s
homestead by force. When
the complainant was asked why she did not
escape when the first appellant had left her with the second
appellant’s sibling,
she stated that Mokopane is not a safe
area and she did not want to a risk upon another risk. It was put to
the complainant that
she and the first appellant slept on the floor
together with their clothes on, and did not have sexual intercourse,
and that they
woke up at 5h00 in the morning wherein the first
appellant accompanied her home. The complainant denied that and
stated that the
first appellant had accompanied her up to the middle
of the bushes where he left her and told her that she will see where
to go.
When it was put to the complainant that in the J88 it is
recorded that she told the nurse who examined her at the hospital
that
the first appellant had threatened her with a knife, she
responded by stating that the first appellant did not threaten her
with
a knife but with a bottle, and that what first appellant had
said was that he will stab her on her vagina with a knife. It was
further put to the complainant that the J88 does not mention being
attacked by the second person, she stated that she told the nurse
everything, or she might have forgotten about the second person.
[19]
Under cross examination by counsel for the second appellant the
complainant stated that she could not
scream for help at the spaza
shop as the first appellant was also throttling her after grabbing
her. The complainant stated that
the first appellant had assaulted
her with open hands and that she did not sustain any injuries. When
asked why she stated that
the second appellant’s sibling was
scared of the first appellant, she stated that she saw the manner in
which he had reacted
when she asked him to assist her. The
complainant stated that when the first appellant ordered her to
undress, the second appellant
had reprimanded the first appellant not
to do that. The complainant stated that the second appellant
penetrated her once without
using a condom. The complainant denied
that she agreed with the first appellant when the first appellant
introduced her to the
second appellant as his girlfriend.
[20]
April Tenga testified as the State’s sixth witness. He
testified that he is a police officer
and also an official
photographer and draughtsman. He testified about the pictures that he
took from the scene at a house where
the alleged rape took place. He
testified that the scene was pointed to him by the complainant. The
witness was cross examined
by counsel for the first appellant and he
stated that the complainant never pointed to her the big rock as the
scene where she
was also allegedly raped.
[21]
Shimane Masingi testified as the State’s seventh and last
witness. He testified that on 17
th
December 2016 he was
sleeping in the backroom when his brother’s friend came with a
certain lady (complainant). His brother’s
friend is the first
appellant and his brother is the second appellant. The first
appellant introduced the complainant to him as
his girlfriend. The
first appellant told the witness that he wanted the second appellant
to assist him by giving him his (second
appellant) key to the second
appellant’s room as it was late. The first appellant left him
in his room with the complainant.
After the first appellant had left
the room, the complainant started crying and she told him that the
first appellant had forced
her to have sexual intercourse with him.
The witness asked the complainant what kind of assistance he could
offer to her, and the
complainant said there was nothing he (witness)
could do since she was not familiar with the place, and that she was
willing to
sleep at that place, but that the witness should not allow
the first appellant to leave with her.
[22]
The first appellant came back with the key to the second appellant’s
room and asked the witness
to assist him to open the room of the
second appellant. As they were struggling to open the room, the
second appellant arrived
and opened his room. The first appellant
fetched the complainant from the witness’s room and went with
her to the second
appellant’s room. The witness told the second
appellant that the complainant had told him that the first appellant
had forced
her to have sexual intercourse with him. As the witness
was explaining to the second appellant, the complainant interjected
him
and told him that he was lying. The second appellant told the
witness not involve himself in matters that did not concern him. The
witness went to his room and slept. When he woke up in the morning,
the complainant was no longer there, and he did not know what
had
happened to her. The complainant came back to their homestead around
15h00 in the company of police officers. On arrival the
police
officers asked him about the whereabouts of the second appellant and
he told them that he last saw him the previous night.
The police
officers started taking photographs of the room.
[23]
During cross examination by counsel for the first appellant the
witness stated that when the complainant
disputed the report he was
giving to the second appellant, she said she was in a relationship
with the first appellant, and that
made him to look as if he was
lying, and he decided to go and sleep.
[24]
When cross examined by counsel for the second appellant, the witness
stated that after the first appellant
had left him with the
complainant, he had offered to open the door for the complainant to
leave the room but she refused saying
that she did not know the
place. The witness further stated that as on that date he was sick
and it was late in the evening, he
did not know how to assist the
complainant. The witness also stated that after the first appellant
had left him with the complainant,
the complainant was having cell
phones but did not think of phoning her relatives as at that stage
all that she wanted was for
her to be accommodated so that she can be
able to sleep with them. That concluded the State’s evidence
and it closed its
case.
[25]
The first appellant took the witness stand and testified under oath.
He testified that on Saturday
the 17
th
December 2016 he
was with the complainant. He further stated that he had met the
complainant the previous Friday at a funeral at
night around 24h00.
When he saw the complainant that night, he asked her for tea and
scones, which she did bring them. He asked
the complainant to give
him her cell phone numbers of which she complied. The complainant
told the first appellant that she was
still busy and that the first
appellant should phone her the following day around 20h00.
[26]
The following day around 20h00 when he was at the Indian shop, he
phoned the complainant and the complainant
came to the shop in the
company of another lady. The other lady entered the shop and he
remained with the complainant outside the
shop. When the lady who had
entered the shop came back, that lady told the complainant that she
was leaving, and the complainant
told her to leave and that she will
follow her. The first appellant requested the complainant to leave
with him and she agreed.
They went to the second appellant’s
homestead as first appellant was also not staying around that area.
[27]
On arrival at the second appellant’s homestead, they found the
second appellant’s sibling who
told him that he did not know
the whereabouts of the second appellant. He borrowed the
complainant’s cell phone and phoned
the second appellant. The
second appellant told him where he was and that he can come to
collect the key for his room. He left
the complainant with the second
appellant’s sibling and went to fetch the key for the room from
the second appellant. When
he came back he was unable to open the
second appellant’s room, and the second appellant’s
sibling refused to assist
him to open it. He phoned the second
appellant and by then the second appellant was already on his way
back home.
[28]
The second appellant arrived and opened the door of his room. After
the room was opened the first appellant
went to fetch the complainant
from the room of the second appellant’s sibling. On arrival
with the complainant, the second
appellant told them that he had
heard from his sibling that the first appellant had raped the
complainant. The complainant disputed
that and told the second
appellant that she was in a relationship with the first appellant.
The first appellant asked the second
appellant as to how they were
going to sleep as he was with the complainant. The second appellant
went to go and check the two
roomed house and found that his sister
was sleeping in that house. The first appellant and the complainant
slept on the floor whilst
the second appellant slept on his bed.
According to the first appellant, as they were three in the room,
there was nothing he could
do, and he and the complainant just slept
without doing anything.
[29]
In the morning he accompanied the complainant to her relative’s
home. The complainant looked
scared and was asking what she was going
to tell the people she was visiting, and as a visitor how are they
going to perceive him.
The first appellant suggested to the
complainant that she must tell the people she had visited that she
had slept at a friend’s
place. When they arrive at Chris Hani
School, the complainant told the first appellant to turn back, of
which he did. The first
appellant denied raping, assaulting,
threatening and taking R30.00 from the complainant. He stated that he
slept with the complainant
with their clothes on. The first appellant
further stated that as he was accompanying the complainant, she kept
on saying that
she did not know what she was going to tell those
people he had visited because she did not sleep at the place she was
supposed
to have slept.
[30]
The first appellant was cross examined and he conceded that at the
funeral it was the first time he
sees the complainant. The first
appellant conceded that he was aware that the complainant was a
stranger and did not know the area.
When asked why he did not
accompany the complainant up to the place she had visited, the first
appellant stated that the complainant
had refused and that when they
reach Chris Hani School, the complainant sat on a rock and told him
to go back. The first appellant
also conceded that after he had
parted ways with the complainant at Chris Hani School, he never
phoned her, and that he did that
as he did not have airtime. That
concluded the evidence of the first appellant and he closed his case.
[31]
The second appellant took the witness stand and testified under oath.
He testified that on 17
th
December 2016 around 1h00 in the
early hours of the morning he was at the neighbour’s party.
Whilst at the party he received
a call back from the first appellant
and he phoned him back. He told the first appellant where he was. The
first appellant came
to the party and found the second appellant
consuming alcohol. The first appellant told the second appellant that
he wanted a key
to his room as he wanted to sleep and that he was in
the company of a lady. He gave the first appellant the key to his
room and
the first appellant left.
[32]
After the first appellant had left, the second appellant also left
and went to his wife’s homestead.
On arrival at his wife’s
homestead the second appellant did not find his wife. The second
appellant decided to go to his
own homestead. On his way back home,
the second appellant got a call back from the first appellant. When
the second appellant called
back, the first appellant told him that
he was unable to open the door to his (second appellant) room. The
second appellant told
the first appellant that he did not find his
wife and he was coming back home.
[33]
On arrival at his homestead the second appellant opened his room
which the first appellant was unable
to open. After opening the room,
the first appellant asked the second appellant how they were going to
sleep. The second appellant
told the first appellant that he will use
the two roomed RDP house. The second appellant went to the room of
his sibling to go
and fetch the keys of the two roomed house. The
second appellant’s sibling told him that their sister was back
and was sleeping
in the two roomed house. The second appellant went
back to the first appellant and told him that his sister was back.
The second
appellant told the first appellant that as it was late at
night they can all sleep in the same room, but that the first
appellant
was not going to do anything. The second appellant gave the
first appellant and the complainant blankets and they prepared the
place to sleep on the floor.
[34]
The second appellant sat a chair and drank two beers which he had
brought from the party, whilst the
first appellant and the
complainant slept on the floor. As he was tired, he felt asleep
whilst sitting on the chair. When he woke
up in the morning the first
appellant and the complainant were no longer there. He climbed onto
his bed and slept. When the second
appellant woke up from the bed he
asked his sibling to clean his room and he left for work. On Monday
whilst at work, the second
appellant received a call back from his
sibling. When the second appellant phoned back, his sibling told him
that the police were
at their homestead looking for the second
appellant as the lady who was with the first appellant the previous
night had been raped.
The second appellant was surprised by the news.
[35]
The second appellant phoned the police and was told that the
complainant had opened a charge of rape
against him and the first
appellant. The second appellant told the police that he had no
knowledge of the charge. The second appellant
told the police that
the person who came with the complainant was the first appellant and
the second appellant further told the
police where the first
appellant stays. The first appellant was arrested the next day which
was on a Tuesday. The second appellant
was arrested after ten months
as he was working in Witbank. The second appellant denied that the
complainant was raped by anyone
as he had told the first appellant
that nobody was going to engage in any sexual activities in the room
they were sleeping in.
The second appellant denied that the
complainant was threatened with a beer bottle in his presence. The
second appellant also denied
that he had assisted the complainant in
trying to escape. The second appellant denied that his sibling had
told him that the complainant
reported to him that the first
appellant had raped her, and that if she had reported that to him, he
would not have allowed the
first appellant and the complainant to
sleep in his room.
[36]
The second appellant was cross examined and he stated that when his
sibling informed him that the police
were looking for him for alleged
rape, he took it lightly as he knew that he was not involved in the
allegations levelled against
him. The second appellant denied that
why it took him ten months to hand himself to the police was that he
was in hiding, but that
he was in Witbank and did not have money to
come back to Mokopane. That concluded the evidence of the second
appellant and he closed
his case.
[37]
The appellants have automatic right of appeal since they were
sentenced to life imprisonment by the
Regional Court. The appellants’
appeal is directed against both conviction and sentence. What this
court must determine is
whether in the light of the evidence adduced
at trial, the guilt of the appellants was established beyond
reasonable doubt. Should
this court find that the guilt of the
appellants was established beyond reasonable doubt, it must determine
whether the sentence
imposed on the appellants was appropriate.
[38]
It is trite that the prosecution must prove its case against the
appellants beyond reasonable doubt.
Equally trite is the observation
that in view of this standard of proof in a criminal case, a court
does not have to be convinced
that every detail of an accused version
is true. If the accused version is reasonably possibly true in
substance, the court must
decide the matter on the acceptance of that
version. An accused is not compelled to testify, but once he elects
to testify, what
the court must determine is whether the version
presented by the accused is reasonably possibly true.
[39]
The correct approach to the evaluation of evidence in a criminal case
was formulated in
S
v Chabalala
[3]
where the court said:
“
The trial court’s
approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA). The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which
are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities
on both sides and,
having done so, to decide whether the balance weigh heavingly in
favour of the State as to exclude any reasonable
doubt about the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party
(such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an ex port facto
determination and a
trial court (and counsel) should avoid the temptation to laten onto
one (apparently) obvious aspect without
assessing it in the context
of the full picture presented in evidence…”
[40]
Both appellants do not dispute that on the day of the incident they
were in the company of the complainant
and further the appellants do
not deny that they both slept in the same room with the complainant
on 17
th
December 2016. There is also uncontested evidence
that the second appellant joined the first appellant and the
complainant when
they were already at the second appellant’s
homestead. What the two appellants dispute is having sexual
intercourse with
the complainant.
[41]
The evidence of the complainant in relation to the alleged rape is
that of a single witness. It trite
that a court must apply the
cautionary rule on the evidence of a single witness. Further the
evidence of a single witness should
be clear and satisfactory. (See
S
v Saul & Others
[4]
).
[42]
According to the complainant, by the time they arrived at the second
appellant homestead, the first
appellant had already assaulted and
raped her. On arrival at the second appellant’s homestead they
found the second appellant’s
sibling and the first appellant
introduced the complainant to the second appellant’s sibling as
his girlfriend. When the
complainant tried to dispute that she was
the first appellant’s girlfriend, the first appellant told her
to keep quite as
he was not talking to her. After the first appellant
had left the complainant in the company of the second appellant’s
sibling,
the complainant told the second appellant’s sibling
that she was not the first appellant’s girlfriend and further
that
the first appellant had raped her. The second appellant’s
sibling had corroborated the complainant’s version that indeed
after the first appellant has left him and the complainant, the
complainant told him that the first appellant had raped her. The
second appellant’s sibling even went further to state that when
complainant told her that she was raped by the first appellant,
she
was also crying. In my view, the first appellant when he told the
complainant to keep quite, he wanted to supress her from
telling the
truth. The first appellant also testified that he was confronted by
the second appellant about the alleged rape, even
though the second
appellant has disputed that. The second appellant by disputing that
it was reported to him by his sibling that
the first appellant had
raped the complainant, contradict the version of his sibling and that
of the first appellant. It was not
put to the first appellant that
his version was not correct on that aspect and it therefore remained
unchallenged, and the first
appellant has also been corroborated by
the second appellant’s sibling on that aspect. The second
appellant would not have
known about the complainant been raped if
that was not reported to him by his sibling. This further
corroborates the complainant’s
version that she had reported to
the second appellant’s sibling that she was raped by the first
appellant.
[43]
The court is mindful of the evidence of the second appellant’s
sibling and that of the first
appellant that when the second
appellant confronted the first appellant about the alleged rape, the
complainant refuted that and
stated that she was the first
appellant’s girlfriend. It was late at night, there is evidence
that the first appellant had
already assaulted the complainant before
they arrived at the second appellant’s homestead and also when
the complainant tried
to correct the first appellant that she was not
her girlfriend, she was told to keep quite. The first appellant had
already installed
fear in the complainant, the first and second
appellants were friends, whilst the second appellant’s sibling
has failed to
assist the complainant in the absentia of the first
appellant as he was not feeling well that day. It was useless for the
complainant
to offer any resistance and try to put the record
straight. In my view, the complainant cannot be criticized for having
changed
his story to say she was the first appellant’s
girlfriend. She did that as a result of the circumstances she was in
and the
fear installed in her, and did that in order to protect
herself from the first appellant who had already presented himself to
the
complainant as a violent person..
[44]
The complainant can also not be criticized for not escaping whilst
the first appellant went to fetch
the key from the second appellant.
Already the first appellant had told the complainant that the area
was dangerous, not safe and
when they were walking to the second
appellant’s homestead, they were chased by unknown people. She
could not risk and try
to escape whilst she was not familiar with the
area, and that area was dangerous and not safe. The complainant was
in possession
of three cell phones, but she at no stage contacted the
people she had visited come to her rescue. The complainant testified
that
she did not know the area. Even if she had called her relatives
to come to her rescue, she would not have been able to direct them
where she was. In the morning when the complainant did a call back
she was able to direct her relatives where she was as a result
of the
school which she was able to identify.
[45]
With regard to the second appellant, I agree with the court a quo’s
finding that it was strange
for the second appellant to have slept in
the same room with the first appellant and the complainant whilst his
sibling was sleeping
alone in his room. According to the version of
the second appellant, the first appellant had already told him that
he was in the
company of a lady, and the second appellant first told
the first appellant that he will sleep in the two bedroomed house. By
telling
the first appellant that he will sleep in two bedroomed
house, he knew and understood what the first appellant intended to do
with
the complainant. When the second appellant found that the two
bedroomed house was no longer available, he could have given the
first appellant and the complainant space to do whatever they
intended to do as he had an alternative to sleep with his sibling.
In
my view, the version of the second appellant that he had told the
first appellant that the three of them were going to sleep
in the
same room and that the first appellant and the complainant must not
do anything, is not reasonably possibly true. The second
appellant
knew the intention of the first appellant and he had associated
himself with it.
[46]
The court a quo in rejecting the appellants’ versions, had also
made credibility findings against
them. The appellants in this appeal
have not demonstrated that the court a quo was wrong on the
credibility and factual findings
which it had made against them. It
is in exceptional cases where a court of appeal will interfere with
the trial’s evaluation
of evidence as the trial court has the
advantage of seeing, hearing and appraising a witness. (
See
S v Francis
[5]
)
.
The appellants in the case at hand have failed to convince this court
on adequate grounds that the court a quo was wrong in accepting
the
evidence of the witnesses for the State.
[47]
There are parts of the evidence of the State witnesses that are not
satisfactory, but there is no evidence
that witnesses have
deliberately conspired to falsely implicate the appellants. The court
a quo had taken the evidence presented
before it in its totality and
holistically, and have also taken into consideration the absence of
the DNA tests results and its
impact on the case. Whilst DNA found
deposited in the vagina of the victim will put to rest any doubt as
to penetration, and also
as to who the perpetrator was, that is not
the only way to prove penetration and identity of the perpetrator. In
the case at hand,
the issue of identity was never placed in dispute.
In fact, both appellants have placed themselves on the scene, and
only disputed
penetrating the complainant. The court a quo can
therefore not be faulted in its evaluation of the evidence presented
before it.
The appeal against conviction on both appellants has to
fail.
[48]
Turning to sentence, it is trite that sentencing is the prerogative
of the trial court, and should
not lightly be interfered with. At
appeal in which interference with the sentence will be justified is
when it is found that the
trial court has misdirected itself in some
respect or if the sentence imposed was so disturbingly
disproportionate that no reasonable
court would have imposed it. The
test is not whether the trial court was wrong, but whether it
exercised its discretion properly.
(
See
S v Romer
[6]
)
.
[49]
The appellants were charged with rape falling under section 51(1)
Part I of Schedule 2 of the CLAA
in that the complainant was raped by
more than one person and more than once. Ordinarily the trial court
was compelled to impose
life imprisonment unless it finds that
substantial and compelling circumstances exists which justify the
deviation from the prescribed
minimum sentences.
[50]
In
DPP
Gauteng Division, Pretoria v Tsotetsi
[7]
Coppin AJA said:
“
As held in Malgas,
confirmed in S v Dodo and explained in S v Vilakazi even though
‘substantial and compelling factors need
not be exceptional
they must be truly convincing reasons, or weighty justification’
for deviating from the prescribed sentence.
The minimum sentence is
not to be deviated from lightly and should ordinarily be imposed.”
[51]
A presentencing report was prepared for both appellants. With regard
to the first appellant the probation
officer testified that he was a
first offender, aged 37, single, dropped out of school in grade 12
and he is a christian. It was
further submitted that both parents of
the first appellant have passed away, with his mother passing away
whilst he was aged seven.
The first appellant was raised by his
father who was a single parent. Later the appellant was taken to be
raised by his uncle in
Gauteng. His uncle and wife raised him well.
His father later got remarried and the first appellant moved back to
stay with his
father and step-mother. Whilst staying with his father
and step-mother the first appellant felt neglected. The first
appellant
is having a seven years old minor child with his
girlfriend. The first appellant is taking care of his mentally ill
sister. The
first appellant is in good health. At the time of his
arrest, the first appellant was employed and earning between R1600.00
and
R3600.00 per month. The probation officer testified that the
first appellant did not take responsibility for the offence convicted
of as he says that he was not guilty.
[52]
With regard to the second appellant the probation officer testified
that the second appellant does
not know his father and his mother has
passed away. The second appellant was raised by his mother who was
terminally ill most of
the time. The second appellant had played the
role of a provider and protector of his mother and siblings from
early age as he
is the first born. The first appellant did not enjoy
his childhood. His late mother was maltreated by her brothers and
that led
to second appellant being a victim of the family dispute.
That when second appellant grew up he lacked basic things such
clothes
as his mother could not manage to provide for him and his
siblings. The second appellant is having four minor children aged 14,
11, 7 and 4. The second appellant is suffering from a chronic
illness. The second appellant is aged 39 and self-employed making
R1800.00 per month. The second appellant does not take responsibility
for the offence he has been convicted of as he says that
he was not
guilty.
[53]
The two appellants have been convicted of a serious offence. 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 courts are
under a duty to send a clear
message to the accused, to other potential rapists and to the
community that they are there and determined
to protect the equality
and freedom of all women and that they will not show mercy to those
who seek to invade those rights.
(See
S v Chapman
[8]
).
[54]
The two appellants did not show any slightest remorse and they
continued to deny the offence despite
the overwhelming evidence
against them. Both appellants have raped the complainant without
using a condom exposing her to infection
of all kinds of deceases.
The complainant was kept hostage for the entire night and when
accompanied home, the first appellant
left her in the middle of
nowhere well knowing that the complainant was not well acquainted
with the area. The appellants did not
have any sympathy for the
complainant that she came to attend a family bereavement and that is
when the family need each other
the most, but they chose to separate
her from her family.
[55]
In
S v
Vilakazi
[9]
Nugent JA said:
“
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 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 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.
But they are nonetheless
relevant in another respect.”
[56]
What the appellants have presented as substantial and compelling are
in my view ordinary and not truly
convincing reasons or weighty
justification for deviating from the prescribed minimum sentences.
The aggravating factors far outweigh
the mitigating factors, and the
court a quo will not be faulted for having found that there were no
substantial and compelling
reasons for justification to deviate from
the prescribed minimum sentences. It follows that on sentence the
appeal must also fail.
[57]
In the result I make the following order:
57.1 The appeal against
both conviction and sentence relating to both appellants is
dismissed.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I AGREE
G
MULLER J
OF
THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCE:
Counsel
for the Appellants
:
Ms PR Scott
Instructed
by
:
Legal Aid SA, Polokwane
Counsel
for the Respondent
:
Adv.KG Sekhukhune
Instructed
by
:
DPP Polokwane
Date
of hearing
:
26
th
February 2021
Date
of Judgment
:
26
th
April 2021
[1]
105 of 1997
[2]
51 of 1977
[3]
2003 (1) SACR 134
(SCA) at para 15
[4]
1981 (3) SA 172 (A)
[5]
1991 (1) SACR 198 (A)
[6]
2011 (2) SACR 153
(SCA) at paras 22 and 23)
[7]
2017 (2) SACR 233
(SCA) at para 27
[8]
1997 (3) SA 341 (SCA)
[9]
2009 (1) SACR 552
at para 58