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[2021] ZALMPPHC 68
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S v Mosehla (Rev 03/2021) [2021] ZALMPPHC 68 (30 September 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE.
REPORTABLE:
YES/
NO
OF
INTEREST TO OTHER JUDGES: YES/
NO
REVISED
DATE:
30/09/2021
CASE
NO: REV 03/2021
In
the matter between:
THE
STATE
and
T[…]
M[…]
JUDGMENT
SEMENYA
DJP:
[1]
This matter came before us on automatic review in accordance with the
provisions of section 85
of the Child Justice Act
[1]
(the Act), read with section 304 of the Criminal Procedure Act
[2]
(the
CPA). The child offender
was
convicted in the Regional Court, Mokopane, on a charge of robbery
with
aggravating circumstances as intended in section 1 of the CPA
pursuant to a guilty plea. He was
subsequently
sentenced
to three (3) years' imprisonment which was wholly suspended for a
period of five (5)
years
on condition he is not convicted of robbery with aggravating
circumstances, robbery or assault with intent to do grievous
bodily
harm,
committed
during the period of suspension. The child offender was acquitted on
a further charge of rape in contravention of section
3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
[3]
.
[2]
I forwarded
the
record
of the proceedings to the Office of the Director
of Public
Prosecution (the OPP) and the Legal Aid South Africa (LASA) for their
comments. I am indebted to the remarks of Advocates
Chauke and
Mohlala of the OPP and Ms Mohlaka from the LASA. I am in agreement
with the view that the conviction of the child offender
on the charge
of robbery with aggravating circumstances and the resultant sentence
are in accordance with justice and should be
confirmed.
I
am however
concerned with the acquittal of the child offender for the reasons
that follow hereunder.
[3]
The child
offender pleaded not guilty to a rape charge and raised a defence
that the complainant consented to the act of sexual
penetration.
The following
was stated in a statement tendered in terms of section 112(2) of the
CPA on the robbery charge:
"I
admit that I was with 3 friends, Pandas, Maleven, and Benny when we
met the complainant ltumeleng Maluleke along the street.
I admit that
Bandas hit him with a beer bottle and he fell down. I searched him
and took the R320, 00 while Bandas took the phones,
shoes and the
jersey and we left.
The
prosecutor accepted the plea and Court thereafter convicted him in
accordance with his plea. The prosecutor proceeded to call
witnesses
in
an endeavour
to prove
the
charge of
rape.
[4]
K[...] C[...]
S[...], the complainant in the rape count, testified that on the 27
August 2020 at about 21
:00
she was
in
the street
at Mookgopong
with her boyfriend ltumeleng Maluleke, her namesake K[...] and Thabo.
A group of about six boys emerged and walked
past them. She
identified Pangas amongst the boys. The said Pangas pointed at her
and said
"this
one is M[…]'s sister''.
The
boys continued to
walk
up to a certain corner and returned to them. They grabbed ltumeleng
and attacked him. K[...] and Thabo ran away. The child
offender in
this matter, whom she only knew by sight, grabbed her when she was
trying to run away and told her that he is leaving
with her. The
other boys
were hitting
ltumeleng at that stage. They also robbed ltumeleng of two
cellphones, a jersey and a watch. One of the phones was
hers.
ltumeleng eventually managed to break loose and ran away, leaving her
behind with the with the child offender and his companions.
[5]
The child
offender took her to an empty yard where he hit her and ordered her
to obey his instructions. He ordered her to undress
and she did so
out of fright because she had witnessed the others when they were
hitting ltumeleng. This was exacerbated by the
fact
that the child
offender
was
also armed with a knife. She stated that the child offender sexually
penetrated her in that empty stand. He refused to let her
go even
after she knelt down, begging him to set her free. She had to fight
with him in vain
in an
endeavour to free herself. The other boys were simply watching the
event as it
was unfolding. The child offender told her that he is taking her
to his home.
[6]
The entire
group proceeded to the child offender's home. Upon their arrival
there the other boys remained in the street whilst the
child offender
took her inside the house. The complainant stated that the child
offender
undressed her
and had an act of sexual penetration with her again without her
consent. When they heard somebody opening the door
from the main
house, the child offender threatened her and told her to keep quiet.
He left the room and went out to the toilet.
Seeing that the child
offender was outside, she grabbed the key to the gate, put on her
cycling shots, grabbed her other clothes
and ran out of the house.
She threw the gate keys back
into the house
before running away on the basis that they were not he child
offender's property. The child offender pursued her
up to the street
of her home
.
He turned back
when he heard her screaming calling her mother. It was already 23:00
by then. Her mother opened for her and she
reported to
her that she was raped. Her mother told her that K[...]
was at her
house and reported that they were robbed.
She reported
the matter to the police the following day and took the police to the
child offender's home.
[7]
The
comp
l
ainant's
mother
,
P[…]
A[…] S[...], testified that K[...] P[…] (the
complainant's namesake), came to her house to inform her
that she has
been robbed. She proceeded to the toilet to look for the complainant
but could not find her. She went to look for
her in the
street but she
still could not find her. The complainant returned home at about
23:15. She was terrified, crying and her clothes
were dirty. She
reported that she was raped. She told her that they will go and
report to the police later as it was in the middle
of the night. She
advised her not to
take a bath
.
[8]
Whilst the
defence did not cross-examine the witness, the Court asked her
questions about the clothes that the complainant was wearing
upon
arrival and the state in which they were. The mother replied that the
complainant was wearing a T-shirt and a jean without
a bra when she
arrived. She stated that she would have noticed if she came in
wearing a
bra
and tights (cycling shorts) only.
[9]
The State
handed in form J88 as exhibit with the consent of the defence.
Forensic nurse Selwana (Selwana) had recorded the following
injuries on
it:
Swe
l
ling
around the urethral orifice, fresh abrasions on the labia minora,
bleeding from the vagina, the cervix was eroded and bleeding,
the
hymen was
swollen at 12
O'clock, fresh abrasions in the left vestibule."
The
State closed
its
case
after placing
it on record
that other potential State
witnesses
cannot be traced.
[10]
The Court called the investigating officer in the matter and brought
the anomalies between what was recorded
on the J88 form and the
section 212 (4) affidavit. According to the section 212 (4)
affidavit, the commissioning thereof was done
at Modimolle, whist the
deponent, Selwane, examined the complainant at Voortrekker hospital
in Mokopane. The investigating officer
stated that the section 212(4)
affidavit was commissioned by Warrant Officer van der Bergh whereas
the typed full names under the
signature are those of Warrant Officer
van der Merwe.
[11]
The
application for the discharge of the accused at the close of the
State case was dismissed. The child offender elected to testify
under
oath and stated that he met with the complainant at a tavern at
around 20:00 on the night of the incident. They agreed that
they will
keep each other company and enjoy liquor together. They went to his
house together when the tavern closed at 2:00. Upon
their arrival he
proceeded to the toilet and found the complainant busy undressing
when he came back to the bedroom. They thereafter
engaged in an act
of sexual penetration once.
He accompanied
her to her
home at about
5:00.
He denied that
he was
in
possession of
a knife
and
that the
complainant ran away
.
He maintained
that the
sexual intercourse was with the complainant's consent.
[12]
During
cross-examination the child offender stated that he left the tavern
in the company of the complainant, Maleven, Pandasi and
Benny
.
The prosecutor
referred the chid offender to paragraph 10 of the section
112(2)
statement when he denied that he knew the complainant's boyfriend,
ltumeleng. It was put to him that he admitted in that
statement
that he met
with the complainant (in the robbery charge) ltumeleng Maluleke along
the street. He answered that the police are the
ones who
told them
about the name ltumeleng
.
The prosecutor
showed the child offender the consistencies between the version of
the complainant and that of the of the child offender
as contained in
the section 112 (2) statement. Among the said consistencies are that
the complainant knew
that the child
offender and his companions assaulted ltumeleng, robbed him of money,
two cellphones and shoes. The child offender
agreed that
the
complainant's version, which is compatible with what he has stated in
the section
112(2)
statement, is
indeed inconsistent with his evidence in chief. It was put to him
that it could not be correct that he met with the
complainant at a
tavern. It was further put to him that it is incorrect that he
accompanied the complainant home at 5:00 on the
basis that her mother
confirmed
that
she returned
home in the
middle
of
the night,
hence the
advice that
they will report the matter to the police the next day.
[13]
The last
question that the prosecutor put to the child offender in cross
examination was that he had an act of sexual penetration
with the
complainant without her consent. In
answer the
child offender stated that
the
complainant agreed to go with him to his house. The prosecutor
reminded him that the question that he asked was whether the
complainant agreed to have an act of sexual penetration with him and
not whether she agreed to go with him to his house
.
The child
offender responded by saying the complainant
did
not agree
(my
own emphasis)
to engage in
acts of sexual penetration with him. During re-examination the child
offender's legal representative asked him whether
the complainant
consented to the act of sexual penetration with him and he repeated
that
she
did not consent.
The
question was repeated twice and the answer
remained the
same.
[14]
The Court
invoked the provisions of section 186 of the Act to call forensic
nurse Selwana. Selwana testified that she has an advanced
Diploma in
General Nursing and a Diploma in Forensic Nursing which she obtained
from the University of the Free State. She confirmed
that she is the
person who completed form J88 which was handed in as an exhibit and
the signature thereon. The trial Court took
sister Selwana through
the contents of the J88, in particular, the history section and the
injuries noted on it. It was noted in
the history part that the
complainant was lured into an empty yard by an unknown man who
threatened her with a knife, pushed her
to the ground, undressed her
and raped her once without a condom. After the rape the unknown man
took her to his home but that
upon their arrival she fought the man
and ran away. The Court questioned her about the absence of injuries
on the complainant's
face despite having been slapped across the face
with open hands. Selwana explained that the complainant visited the
hospital after
twelve hours and this explains why injuries were no
longer visible. She confirmed the entries on the J88
regarding the
genital injuries that she observed on the complainant.
[15]
The Court
correctly identified the issues between the parties as being whether
the act of sexual penetration between the child offender
and the
compla
i
nant
was with or without consent. This was in view of the common cause
facts that an act of sexual penetration did take place between
the
two. The Court
correctly stated that the evidence of the complainant was
to be
approached with caution in that she was the only State witness who
deposed
to
the events
as
they
unfolded
at the
scene
of
the incident.
It
appears
from the judgment that the trial Court acquitted the child offender
solely on the basis of the contradictions in the complainant
and her
mother's versions as well
as
the
inconsistencies between her evidence in- chief and what was
recorded in the J88. The trial Court further took issue with
the
prosecution's failure to call ltumeleng as a witness.
[16]
Ms Mohlaka of
the LASA contended strongly in her written heads of
argument that
the trial court was correct in taking issue with the fact that
the
complainant's version regarding the events as they unfolded in the
street, where she allegedly met with the child offender and
his
companions, remained uncorroborated. She further contended that the
trial Court correctly found that the discrepancies in the
evidence of
the complainant,
that
of her mother
and the forensic nurse are material and render
the
State's
version unbelievable
.
It is Ms
Mohlaka's submission
that
there is no
consistency between the version of the complainant and
the
admissions
made in section 112(2) statement. The basis for the submission
is
said to be
that
there
is no evidence to suggest a connection between
the
complainants
in the rape and the robbery charges. Furthermore,
that
there is
no evidence
regarding the specific time frames
as to when
either of the offences took place.
[17]
I
t
seems
t
o
me that the trial Court
igno
r
ed
the principle
l
aid
down
i
n
S
v
V
a
n
D
e
r
M
eyden
[4]
and
all other cases that followed it in its eva
l
ua
ti
o
n
o
f
the
evidence
presented
before
it.
In
that
case,
Nugent
J
stated
the
following:
'The
proper test is that an accused is bound
to
be convicted
if the evidence establishes his guilt beyond reasonable doubt, and
the logical corollary is that he must be acquitted
if
it
is reasonably
possible that he might be innocent. The
process of
reasoning which is appropriate to the application of the test in any
particular case will depend on
the
nature of the
evidence which the court has before it. What must be borne in mind
,
however, is
that
the
conclusion which
is
reached
(whether it
be
to convict or to acquit) must account for all the evidence. Some of
the evidence
might
be found to be
false;
some
of it might be found to
be
unreliable;
and some of
it
might be found
to be only possibly false or unreliable; but none of it may simply be
ignored
.
"
[18]
The
criticism
levelled
against the
prosecution's failure
to
lead the
evidence
of
ltumeleng is without merit. It was the Court's view that the evidence
of ltumeleng
was
necessary
to provide
corroboration
to
the
complainant's
version that
he
was with her
when they came across the child offender
and his
companions
.
The evidence
of
ltumeleng
was not
crucial and
was unnecessary in my view
.
The
complainant's version was
shown to be
consistent with what the child offender had stated in his section
112(2) statement. He admitted that the person whom
he and his
companion robbed on the date on which the complainant was raped was
ltumeleng
Maluleka. The complainant testified that she was with her boyfriend
ltumeleng Maluleke when he was robbed and that one
of the two
cellphones he was robbed of was hers. Despite the fact that he
admitted that he robbed ltumeleng in his section 112(2)
statement, he
omitted to mention this fact in his evidence in chief. He instead
stated that he went straight to his home with the
complainant
after they
left the tavern. It seems as if he had forgotten about the robbery
when he was testifying
in chief. The
argument that there is no correlation between the rape and the
robbery is without merit. There is evidence that the
offences were
committed on the same date and during the night. The child offender
and the complainant could not have been at two
different places at
the same
time,
that is
,
at
the tavern and in the street where the ltumeleng was robbed.
[19]
Advocate
Chauke argued, with reference to
S
v Mafaladiso en Andere,
[5]
that
the contradictions in this matter do not go to the core of the
dispute between the parties. It was submitted that the main
issue was
whether the act of sexual penetration was with or without consent.
This submission is correct in my view. The child offender
admitted on
three occasions that it was not consensual. To my mind this admission
is tantamount to a change of plea from one of
not guilty to one of
guilty. In so doing, the child offender has in effect simply
abandoned his basis of defence. The absence of
consent
is
further
consistent with the injuries observed by the Selwana on the
complainant's genitalia. The complainant was never cross-examined
with regard to what the Court regarded as inconsistencies between her
version in court and what she told Selwana
.
She
was therefore denied the opportunity to explain the differences in
the two statements.
I
find
the adverse inference drawn by the Court to be
unwarranted
.
[20]
One
purpose of cross-examination is
"to
elicit
facts favourable or advantageous to
the
cross-examiner's
side. The results of examination in chief
is
often
that
a
one-sided or incomplete picture of events is provided
.
As
already shown, cross examination,
then
,
is
expected
to
indicate
that
certain points
have
been
omitted
or
underemphasize
[6]
”
Furthermore
,
the
purpose of re-examination is to clear up any point or
misunderstanding which might have occurred during cross-examination;
to corr
e
ct
wrong impr
e
ssions
or false perceptions which might
have
b
ee
n
c
reated
in the cours
e
of
cross-examination; to give a witness a fair opportunity to explain
answers given by him under cross
examination,
which
,
if
unexplained, may create a wrong impression or be
used
to
arrive
at
false deductions
[7]
.
[21]
The child
offender's version was completely destroyed during cross
examination. The prosecutor must be commended for using
cross
examination fo
r
the purpose
for which it was intended
,
namely, to
sift the truth out of the lies. The absence of consent was repeated
during re examination
.
This in itself
rules out any possibility that the child offender may have mistakenly
adm
i
tted
the absence of consent during cross examination
.
The trial
Court misdirected itself in ignoring this fact contrary to the
principle laid down Van Der Meyden
above
.
[22]
The
contradictions
in the
complainant's
version
,
which
relate
to the number
of times she was penetrated by the child offender is immaterial when
viewed against the backdrop that the child offender
admitted at the
end that she did not consent
to
the act. The
issue whether she was fully clad or
not
on her arrival
at home does not make the complainant a liar. Advocate Chauke
correctly argued that it relates to what happened after
the
rape
.
The
complainant's
mother corroborates her version that she
arrived
home
at 23:00
and not at 5:00 as deposed
to
by the child
offender.
The
mother's
version
that
the
complainant's
namesake came to her
house
and
reported
to
her that
they
were
robbed
is
consistent with the complainant
'
s
version that
they
were
together
when they met
with
the
child
offender.
[23]
The Court in
the
present
case was at pains to find grounds on which
it
can
rely
to
acquit
the
child
offender
.
This
is concerning
if
one
has regard
to
the prevalence
of
the
gender
based violent crimes
in
this country.
It
is
quiet
disheartening
to
find presiding officers, who are expected to play a
substantial
role in
reducing
this
level
of crime
through
judicial
activism
,
to
instead try
and find
unconvincing reasons to disbelieve complainants in rape cases
.
[24]
Having
said that, I am nonetheless alive
to
numerous
court decisions
[8]
in
which
it was h
e
ld
that the High Court has neither statutory nor inherent review powers
to
set
a
s
ide
an
acquittal
of
an
accused
person by
the
magistrate and to sub
s
titute
it with a conviction
.
In
S
v Chauke
[9]
it
was held that:
"[15]
Indeed,
s
35(
3
)(m)
of
the
Con
s
titution
of
the
Republic
of
South
Africa,
1996
,
provides:
"
(3)
Every accused person has a right to a fair trial, which
includes
the
right
-
(m)
not
to
be tried for
an offence in respect of an act or omission which
that
person
was
previously either acquitted or convicted'
.
In
S
v
Basson
[2004]
ZACC 13
;
2005
(1)
SA
171
(CC), the
Constitutional Court
had
the
opportunity to consider
,
inter
alia,
this right. At para [66] Ackerman J said
:
'
In McIntyre
en Andere v
Pietersen en
'n
Ander it was
held that the
purpose
of
the
right
contained
in s 35(3)(m)
was to protect
citizens against the
possibility
of
repeated
prosecutions
for the same conduct. The Court held
that
such
protection
was
necessary in
the interests of fairness and also because of the
public
interest in
the
finality of judgments
.
"'
[25]
The Court in
Chauke went further to state that the setting aside of the acquittal
and the replacement thereof with a conviction
will vitiate the
principle of
audi
alteram partem
rule.
I am in agreement with this statement. It would not do any justice to
remit the matter back to the Regional Court for a trial
de
nova
in
that it will go against the provisions of section 35 (3) (m) of the
Constitution. Section 310 of the CPA has expressly created
a
mechanism in which the prosecution may correct judicial misdirection
which may have resulted in an acquittal. It is on this basis
that I
find that my jurisdiction to set aside an acquittal on review is,
by
implication,
excluded On
the other hand, section 302, 303 and 304 are, in my view
,
designed to
cater for convictions and sentences only
.
[21]
In the result
the following
order
is
made.
i.
The conviction
on
robbery
with
aggravating
circumstances
and
the
resultant
sentence
is
confirmed.
M
V SEMENYA
DEPUTY
JUDGE
PRESIDENT;
LIMPOPO
DIVISION;
POLOKWANE.
EM
MAKGOBA
JUDGE
PRESIDENT OF THE
HIGH
COURT; LIMPOPO DIVISION;
POLOKWANE.
[1]
75
of 2008
[2]
51
of 1977
[3]
32
of
2007
[4]
1999(1)
SACR 447 (W)
[5]
2
003
(1
)
SACR
583
at
593E
-
594H
[6]
Dr
PJ Pretorius: Cross-examination in South African Law, page 90-91
[7]
Principles
of Evidence by PJ Schwikkard and SE Van Der Merwe at 188.
[8]
S
v Aronstam
1966
(3) SA 780
(T); S v Masia
1983 (4) SA 242
; S v Makriel and Others
1986(3) SA 932
[9]
2010
(1) SACR 287
(GSJ) at
[15]