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[2021] ZALMPPHC 76
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Matsimela and Another v S (A16/2021) [2021] ZALMPPHC 76 (26 October 2021)
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF
SOUTH
AFRICA
LIMPOPO
DIVISION,
POLOKWANE
CASE
NO: A16/2021
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: YES
REVISED
In
the
matter
between:
BEN
MALESELA
MATSIMELA FIRST
APPELLANT
MANKWE
STEVEN
KEKANA SECOND
APPELLANT
And
THE
ST
ATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The two appellants appeared before Motubatse MJ in the regional court
Mokerong on one count of rape read with the provisions of
section
51(1) and Part I of Schedule 2 of the
Criminal
Law Amendment Act
[1]
(CLM)
in that it is alleged that the complainant was raped by more one
person. Both appellants were found guilty as charged and each
sentenced to life imprisonment. The appellants have automatic right
of appeal by virtue of the fact that they were sentenced to life
imprisonment in the regional court. The appellants are appealing
against both conviction and sentence.
[2]
On conviction,
the
appellants
grounds
of appeal are that the court a quo erred in failing to properly
analyse and evaluate the evidence of the State witnesses;
properly
considering the improbabilities inherent in the State
'
s
version; rejecting the appellants
'
version as not being reasonably possibly
true
;
accepting
the evidence of the State witnesses and rejecting that of the
defense; by holding against the appellants minor contradictions
in
their evidence
;
and
giving importance to minor discrepancies between the defense
evidence
.
[3]
On sentence the appellants grounds of
appeal are that the sentences of life
imprisonment
on each of the appellants
is
harsh and disproportionate under the
circumstances
,
and
that it induces a sense of shock; that it disregarded the fact that
the
appellants
are still youth
;
that
it
is
out
of proportion to the totality of the accepted facts
in
mitigation
;
that the court a quo over emphasised the
interest
of
society and failed to strike a balance
;
that the court a quo over emphasised the
crime, seriousness and
its
impact
on the complainant
;
that
the court a quo
over
emphasised the prevalence of the offence
,
the deterrent effect and retributive
element of sentencing
;
and
that the
court
a
quo erred in not finding
that there are
substantial and compelling circumstances to justify a deviation from
the prescribed minimum sentence.
[4]
The State version is that the
complainant was gang raped by the appellants and also more than once
,
whilst the appellants
'
version is that they had consensual
sexual intercourse with the complainant. The complainant testified
that on 16
th
December 2018 she was on her way from her uncle
'
s
place at about 19h00 to 20h00 when she met eight boys who were
unknown to her. As the complainant was about to pass the eight boys,
they blocked her way. One of the appellants held the complainant by
her hand and tried to kiss her. She resisted and tried
to scream
,
but one of the appellants took out a
knife
.
The
two appellants took
the
complainant to a shack where they took turns in raping her
.
[5]
After they finished raping her
,
the first appellant said they must go
and look for water so that the complainant can bath
.
The two appellants took the complainant
to a certain house where the second appellant prepared water and also
brought a soap for the
complainant to bath
.
She was told not to bath the
whole
body
,
but only her private parts. After she
finished bathing
,
the
complainant told the two appellants that she wanted to go home
,
but the two appellants pushed her on top
of a bed
,
undressed
her
,
and
again took turns in raping her for the second time. After both of
them have finished raping the complainant
,
they told her to bath. After that they
all slept. The complainant slept with the second appellant on the
bed, whilst the first appellant
slept on the couch
.
The appellants were in possession of the
complainant's
two
cell phones.
[5]
As they were
sleeping
,
one
of the complainant's cell phone rang
.
The complainant saw that the two
appellants were deep in their sleep
,
and
took one of her cell phone and send a message to her brother about
her whereabouts
.
She
did not know the area well, but it was in the area where her brother
was dating a certain lady
.
In
her message she told her brother not to
phone as the appellants have told her that they could rather be
arrested for murder than rape
.
She
also told her brother that he should not enter the house as
it
has burglar proofs and
she was
afraid that she will
be
killed
.
After
sending the
message she
deleted
it.
A few minutes later the complainant's
brother arrived with other people and the appellants released her
.
When the two appellants released the
complainan
,
t
they told her not to tell her brother what they did to her
,
but that
they were just sitting and she agreed
.
[6]
On being released
,
her brother told her that they should go
to the police station
,
but her uncle
'
s
wife said they should go to the clinic. They went to the clinic
,
and at the clinic they referred them to
the hospital. However, they went to the
police station where they opened a
criminal case
,
and
later the police took the
complainant
to the hospital. The complainant denied that she had consensual
sexual intercourse with the two
appellants
,
and
further that it was for the first time she sees the appellants
.
[7]
The complainant's brother also
testified. He testified that on 16th December 2018 at about 22h1O he
was a DJ at a
certain
village
,
when
he
received a
call
from his father tell
i
ng
him that the complainant and her younger sibling had met eight boys
.
He went home to find out what was
happening
.
On
arrival at home he tried to phone the complainant but she did not
answer her phone
.
Later
the complainant
sent
him
an sms telling him not to phone her
.
However
,
he
phoned her
,
and
the complainant picked up the phone and told him that she was locked
in
a house
that had burglar proofs next to Thembe
'
s
house
.
Thembe
is name
of the girlfriend of the
complainant
'
s
brother. Thembe reside next to the second appellant's homestead
.
[8]
The complainant's brother sent an sms to
the complainant telling her that he was coming to that homestead. The
complainant sent him
an sms telling him that if he comes and make a
noise
,
the
appellants will kill her. The complainant's brother
,
his uncle and others went to the second
appellant's homestead where they rescued the complainant. At that
house they found the complainant
in the company of the two
appellants. When the complainant saw his brother she started crying
,
and he advised her that they should go
to the clinic. The complainant's brother further testified that he
knew the two appellants
before the incident. Andries also testified
and corroborated the evidence of the complainant
'
s
brother
.
[9]
The first appellant testified in his
defence
.
He
testified that on 16
th
December
2018 he was walking with the second
appellant when they met the complainant. The first appellant knew the
complainant to be a prostitute
and he became interested in the
services of the complainant. The first appellant talked to the
complainant and asked her how much
does she charge for two rounds
,
and the complainant told him that she
charges R300.00
.
The
first appellant and the complainant agreed on that amount. From there
both appellants left with the complainant and went to Magadi
'
s
tavern where the second appellant bought
them alcohol.
[10]
Whilst at the tavern
,
the first appellant told the complainant
that he was having
R200
.
00
and
that
the balance of R100
.
00
he
will pay
her the following day after doing some odd jobs and they agreed
.
The first appellant then told the
complainant that they should go to the second appellant's homestead.
They
agreed and left the second
appellant behind and went to the second appellant's homestead. At the
second appellant's homestead
,
the
first appellant and the complainant had consensual sex intercourse
where he had two rounds. After
they
finished having sex
,
the
first appellant paid the complainant R200.00. At
that moment the second appellant
arrived
,
and
the first appellant told the complainant and the second appellant
that he was going to attend to a braai and he left both of them
at
the second appellant
'
s
homestead. The first appellant was surprised when the police arrested
him the following day.
[11]
The first appellant denies that he was
in the company of eight people when they met the complainant
,
but that it was only he and the second
appellant. The first appellant denies that either of them was having
a knife, and also of ever
going
to
a shack with the complainant and the second appellant. The first
appellant
denies
raping the complainant but that it was as per agreement.
[12]
The second appellant also
testified in his defence
,
and
he corroborated the version of the first appellant. The second
appellant further testified that he also talked to the complainant
when they met about her services, and they agreed
on an amount of R500.00 for three
rounds.
Further
that
after the first appellant and the complainant left him at the tavern
,
he continued drinking his beer. After he
finished drinking his last beer he went home
.
When he arrived at his homestead he met
the first appellant who
was
leaving.
The first appellant told
him
that he was going to attend a braai. The second appellant went inside
the house where he found the complainant. The second appellant
agreed
with complainant to have sexual intercourse
,
and after they finished having sex
,
he
paid
the complainant.
[13]
After that the second appellant sat
together with the complainant
,
and
as he was failing asleep
,
he
saw the complainant pressing her phone
.
Around 2h00 whilst asleep he heard a
knock at the door from the complainant's uncle
.
The second appellant went outside to go
and find out what was happening
,
and
the complainant
'
s
uncle
told
him
that they were
looking
for
the complainant. The complainant
'
s
uncle was in the company of other people and they were five in
number armed with knives and pangas
.
The second appellant pleaded with them
not to kill
him
,
and that he will give them the
complainant. Amongst the five people was also the complainant's
brother who was in a love relationship
with the second appellant's sister
.
The complainant's brother told the
second appellant that he got him exactly where he wanted him
.
After that the complainants brother and
his company
left
with
the complainant. The second
appellant
was surprised when he was arrested the following day
.
[14]
The appellants are appealing
against both conviction and sentence
.
Both appellants have pleaded consent and
have also conceded that they both had
sexual intercourse with the complainant
and more than once
.
It
is trite that the
onus
rest
on
the
State
to prove all
the
elements of
the
offence of
rape
,
including the absence of consent and
intention
.
The
fi
r
st issue
which this court must determine is whether the complainant had not
consented to sexual intercourse with the appellants
,
and also whether the necessary intention
on the part of the appellants had been proved
.
[15]
In
terms of section 3 of the
Criminal
Law (Se
x
ual
Offences
and Related Matters
)
Amendment
Act
[2]
(CLA
),
any
person who unlawfully and intentionally commits
an
act
of
se
x
ual
penetration
with
a
complainant
without
the
consent
of
the
complainant
is guilty of the offence of rape. In
Otto
v The State
[3]
Plasket AJA said:
"
In
terms of s 1(2)
,
consent
for purposes
,
inter
alia, of the offence created by s 3 means
'
voluntary
or uncoerced agreement'. Section 1
(3)
provides that the circumstances
in
respect of
which a complainant
'does
not voluntarily or without coercion
agree to an act of sexual penetration include, but are not limited to
'
situation'where
there are abuse of power or authority by
A
to the extent that B is inh
i
bited
from indicating his or her unwillingness or
resistance
to sexual act
,
or unwillingness to participate in such
a sexual act.
"
[16]
The two appellants by pleading consent
have placed themselves on the scene, and therefore the issue identity
and penetration
is
no
longer in dispute. The complainant has testified that after the
appellants have finished raping her
,
the
two appellants fell into a deep sleep, and that is when she got an
opportunity to send an sms to her brother notifying him of
her
whereabouts
.
This
version was
corroborated
by the complainant's brother
,
and
the second appellants also seems to corroborate this version as he
testified that as he was about fall asleep he saw the complainant
pressing her cell phone and later the complainant's uncle
in
the company of the complainant
'
s
brother and others arrived at his homestead looking for the
complainant.
[17]
In relation to the actual rape
,
the complainant was a single witness
,
and therefore her evidence must be clear
and satisfactory. The appellants
'
version is that the complainant is
prostitute and that they both have agreed to have sex with her
for a fee
.
In my view, if the sexual
encounter
was a financial transaction which the
complainant and the appellants have agreed upon
,
the complainant would
not have waited for the appellants to
fell asleep
,
and
secretly notified her brother
about her
whereabouts and that she was locked in house with burglar proofs. The
complainant had given her evidence in a clear and
satisfactory
manner
,
and
counsel for the appellants had correctly conceded that the appeal on
both conviction and sentence had no merit. The appellants'
version is
false beyond
reasonable
doubt
,
and
the court a quo has correctly rejected it. The court a quo has
correctly accepted the version of the complainant that she did
not
give consent to have sexual intercourse with the appellants
.
On conviction, there is
nothing to fault the court a quo, and
therefore, the appeal stands to fail.
[18]
Turning
to sentence
,
it
is trite
that
sentencing is the prerogative of
the
trial court
,
and
should not lightly be interfered with
.
At
an 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
[4]
).
[19]
The appellants were charged with rape
falling under section 51
(1)
Part
I of the
CLAA
in that the complainant was raped by more than one person
.
From the appellants own
version
,
they both
had sexual penetration with the
complainant
,
and
both of them did so more than once. Beside the complainant being
raped
by
more than one person, they both raped her more than once. Ordinarily
the
court a
quo was compelled to impose
life
imprisonment unless it finds that
substantial
and
compelling
circumstances
exists
which justifies the deviation from the prescribed minimum sentences
.
[20]
The first appellant had previous convictions of rape and robbery with
aggravating
circumstances
,
whilst the second appellant was a first
offender
.
According
to the pre-sentencing report of the first appellant, he was raised by
his mother and grandmother
,
and
he also had a relationship with his father who was not married to his
mother; and he was raised well until he started residing
with his
brother and uncle after their mother got married
.
The first appellant's aunt felt
that the first appellant lacked parental
guidance
,
hence
he was easily influenced by friends. The first appellant was not
married; did not have a child
;
was
never employed
;
has
dropped out of school in grade 9
;
and
was said to be troublesome in the community. The first appellant was
aged 23 years of age at the time of the commission of the
offence.
[21]
According to the presentencing report of
the second appellant
,
he
is having one minor child; he is not married
;
he does not know his father
,
and was raised by
her mother together with his four
siblings
;
her
mother was employed as a domestic servant
,
and tried her best to meet the needs of
her family
.
The
second appellant
'
s
mother described him as a humble person
,
further that the second appellant was
exposed to violence in his upbringing. The second appellant's mother
had before the incident
warned the second appellant about
his relationship with the first
appellant. The second appellant was 25 years of
age when he committed this offence
.
[22]
According to the victim impact report
,
the complainant and her brother are
being raised by their maternal grandmother as their mothe
r
has passed away
,
and she does not have information about
her father
.
The
complainant was diagnosed with depression after the incident
,
and she is currently taking chronic
medication
;
she
does
not feel
safe
around
male
people
;
and after she
was
raped,
she has no desire to have sexual intercourse anymore. The complainant
is currently seeing a psychologist to help her deal with
her ordeal.
She cannot
cope
academically
as
she is always crying whenever she thinks about what had happened to
her. The complainant started experienc
i
ng
nightmares after she
was
raped.
[23]
The
quest
i
on
is whether the court a quo was correct in finding that there were
no
substantial and compelling circumstances justifying a deviation from
the prescribed
minimum
sentences.
In
OPP
,
Gauteng
v Tsotetsi
[5]
Coppin
AJA said:
"
As
held in Malgas, confirmed in S v Dodo
,
and explained in S v Vilakaz
,
i
even though
'
substantial
and compelling' factors need not be exceptiona
,
l
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
"
.
[24]
The appellants have been
convicted of a serious offence. From what was conveyed to the
probation officer by the second appellants
mother, the two appellants
were troublesome, hence the second appellant's mother had to warn the
second appellant about his association
with the first appellant. The
first appellant had a previous conviction of rape
,
and does not seem to have learned from
his previous error with the law. The second appellant had failed to
heed to the wise words
of advice from her mother
,
and therefore had himself to blame.
The second appellant is older than the
first appellant, and it can therefore not be said that he was unduly
influenced by the first
appellant. Even though the appellants were
still within the age group which they are regarded as youth at
the time of the commission of the
offence
,
there
is no evidence presented that they
were
both
of
immature
age.
The
appellants
did
not
show
any
slight
remorse
at all. In my view
,
what
the appellants had presented
,
do
neither singularly nor cumulatively constitute substantial and
compelling circumstances justifying a deviation from the prescribed
minimum sentence
.
The
court a quo
can
therefore, not be faulted for finding that there were no substantial
and compelling circumstances justifying a deviation from
the
prescribed minimum
sentence
.
The appeal on sentence therefore stands
to fail.
[25]
In the result I
make the following
order
:
25.1
The appeal on both conviction
and
sentence
is
dismissed.
KGANYAGO
J
JUDGE
OF
THE IDGH
COURT
OF
SOUTH
AFRICA,
LIMPOPO
DIVISION
,
POLOKWANE
I
AGREE
SEMENYA
DJP
JUDGE
OF THE IDGH COURT
OF
SO
U
TH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellants
:
Scott PR
Instructed
by
:
Legal Aid SA Polokwane Office
For
respondent
:Adv
Magoda P
Instructed
by
:
Office of the DPP Polokwane
Date
heard
:
8th October 2021
Electronically
delivered on
:
26th October 2021
[1]
105 of 1997
[2]
32 of 2007
[3]
[2
017]
ZASCA
114
(21
September
2017) at
para
1
5
[4]
2011
(
2)
SACR
153
(SCA)
at
paras
22
and
23
[5]
2017
(2)
SACR
233
(SCA)
at
para
27