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[2020] ZALMPPHC 4
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S v T.N and Others (32/2019; RR 105/2014) [2020] ZALMPPHC 4; 2020 (1) SACR 633 (LP) (13 February 2020)
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REPUBLIC
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
Review case NO:
32/2019
Magistrate serial NO:
RR 105/2014
13/2/2020
In
the matter between:
THE
STATE
: APPELLANT
And
T[….]
N[…] and Others
:
RESPONDENT
JUDGMENT
SEMENYA
J:
[1]
This matter came before me on automatic review in terms of section
85(1) of the Child Justice Act 75 of 2008 (the Act) read
with chapter
30 of the Criminal Procedure Act 51 of 1977 (the CPA). The invocation
of these provisions is necessitated by the ages
of offender number 1,
2 and 4 who were children as defined in the Act, and who were
sentenced to five (5) years’ imprisonment
in terms of section
276(1)(i) of the CPA. The four accused were convicted of rape in
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
. In line with the spirit of
the Act, No1, 2 and 3 will be referred to as child offenders while
no.4 will be referred to as the
accused.
[2]
Upon consideration of the proceedings, and having formulated an
opinion that the proceedings appears not to be accordance with
justice, I directed the following queries to the regional magistrate
who presided over the trial as well as the Office of the Director
of
Public Prosecutions (the DPP) as provided for in section 304(2) of
the CPA:
“
1.1
From the answers to questions asked during cross-examination, can it
be said that the complainant was a truthful, honest and
credible
witness;
1.2
Are the inconsistencies in the evidence of the complainant and that
of the eye witnesses indeed immaterial;
1.3
From the complainant’s answers and the evidence of other state
witnesses, can it be concluded that the act of sexual penetration
between her and the accused was without her consent;
1.4
It is trite that inferences must be drawn from proven facts. Is there
any evidence from which an inference that the complainant
was the
influence of intoxicating substance can be drawn. Did she concede
that she was intoxicated (taking cognisance of the fact
that the
evidence –in-chief of the complainant is not part of the
record);
1.5
Taking into account that mens rea is an element of this offence, what
value should be attached to the evidence of the complainant
with
regard to the ‘weird behaviour’ of the accused and the
effect of the substance that they were taking during the
commission
of the offence;
2.
Should it be agreed that the State failed to prove the element of
consent:
2.1
What would be the position with regard to accused No. 1, 2 and 3 who
were below the age of 18 years as at the date of the incident;
2.2
Will the facts of this case not call for the invocation of section
15(2) (a) of the Act?
[3]
It was brought to the attention of the trial regional magistrate that
the complainant’s evidence-in chief did not form
part of the
record. Due to the sensitivity of the matter and the response
received from the regional magistrate and the DPP, I
directed that
the matter should be argued before two judges in terms of section
304(3) of the CPA. It was eventually argued on
the 30 January 2020 by
advocate Mashiane from the DPP’s office and Mr Legodi from the
Legal Aid South Africa, to whom I am
indebted. I deem it prudent to
state the version of the complainant in detail in view of the
startling discrepancies that appear
in her evidence-in-chief and her
answers to questions put to her during cross-examination and the
contradiction between her version
and that of other state witnesses.
[4]
The complainant in this matter was 13 years old as at the date of the
incident. She testified that she and her friend went to
church on the
evening of the date of the incident. Her friend left her outside the
premises of the church and returned to her home.
Child offender No.
2, who was once her boyfriend, arrived and asked her to accompany her
to his home. She agreed. Along the way
she informed child offender
No. 2 that she wants to go back to the church. He convinced her that
he is not going to be long and
that they will both return there
shortly thereafter. About four of the child offender No. 2’s
friends, two of whom testified
on behalf of the State, were found at
his home. Shortly thereafter child offender No. 1 entered into the
house whilst in possession
of dagga which he offered child offender
No.2 to smoke. Child offender No. 2 ordered her to lie on the bed and
slapped her several
times across her face when she refused. It was at
that stage that the other boys who were inside the house playing a
game of monopoly
left the room. Child offender No.1 and 2 were doing
funny things and laughing as if they were mentally unsound. Child
offender
No. 2 grabbed her by her neck, forcefully undressed her, put
her between her legs and kissed her. He then had an act of sexual
penetration with her. She was crying and trying to push the 2
nd
child offender him away from her in the process.
[5]
After the act of sexual penetration, the 2
nd
child
offender told her to do the same with the 1
st
child
offender. The complainant did not respond. She instead continued to
cry. The 2
nd
child offender snatched her pants from her as
she was putting it on. The 1
st
child offender ordered her
to have an act of sexual penetration with him and she refused. He
then penetrated her sexually nonetheless.
As he was doing so, child
offender No.3, No.4 and one F[....] entered the room and switched on
the light. F[….] said shame
as if he was feeling pity for her.
Child offender No.1 jumped from her and covered her with a duvet.
Accused No. 4 told the others
that he will accompany the complainant
home and that he will go first to his home to change his torn
T-shirt. She left with child
offender No.3 and accused No.4.
[6]
Upon their arrival at accused No.4’s house, which was
approximately 500 meters away from child offender No2’ house,
accused no. 4 asked her if she thought he could accompany her for
nothing. Accused No.4 went out and whistled. He told her that
those
other boys who were at child offender No.2 were coming. Accused No.4
told her that he is begging her to do what he was asking
her to do.
At that stage, child offender No.1 arrived and undressed her. He
ordered her to engage in an act of sexual penetration
with accused
No.4. Accused No.4 then engaged in an act of sexual penetration with
her followed by child offender No.3. She stated
that she just
accepted everything that was happening to her at that stage because
she was tired. At a later stage she, accused
No.4 and child offender
No.3 proceeded back to the 2
nd
child offender’s
house. She ran to her friend N[….]’s house after the
offenders had entered into the 2
nd
child offender’s
house. She reported to her friend that she had been with Phillip who
chased her away. She was embarrassed
to tell the truth because her
friend’s boyfriend was present. She left her friend’s
place in the morning.
[7]
The complainant stated that she did not tell her mother about what
happened upon arrival at home. Her mother sent her on an
errand to
Tshosene. The next day which was a Sunday, she and her mother were at
the mealie fields when N[....] came. N[....] confronted
her about
what she heard had happened to her. She narrated to N[....] about
what had happened to her. She further told N[....]
that she was
ashamed of going to school the next day as other school children are
going to laugh at her. N[....] advised her to
arrive earlier than all
other children and to report the incident to the teachers. It is her
teachers who brought the incident
to her mother’s attention.
[8]
When cross-examination commenced, the complainant stated that she no
longer wish to proceed with the matter because it was affecting
her
studies. The trial proceeded nonetheless and the matter was postponed
when she answered most of the questions with either ‘I
do not
know’ or ‘I cannot remember’, seemingly because the
regional magistrate formulated a view that she was
not in good form.
When cross-examination resumed on the next sitting, she initially
stated that she willingly left the church with
child offender No. 2
and proceeded with him to his house. When asked why she decided to go
with him when their love relationship
had ended she said it is
because he throttled her, something that she never said in her
evidence-in-chief. When asked as to why
she did not scream when child
offender’s No. 1 and 2 were raping her, she stated that it was
because the 2
nd
child offender was pointing a knife at her. She further stated that
she was afraid to report to her mother because she always told
her to
stop walking around at night because she will not be able to deal
with what may happen to her. She stated that the only
reason she
decided to inform her friend about what happened was because she,
N[....], had already heard about the incident.
[9]
What follows is in short what transpired when the version of child
offender No.2 was put to the complainant:
“…
Accused No2 proceeded with you to
his neighbour’s house… He did not proceed with me.
Nis
neighbour’s name is one Trinity Munyela…No
Accused
No. 2 then requested a room at trinity Munyela’s homestead to
be with you. …I do not know.
The
keys were given to accused No. 2…I do not know.
You
had sexual intercourse with accused 2 on the date in question as per
your agreement before your arrival at trinity’s homestead.
…I
do not know.
After
having sexual intercourse, you then left Timothy’s homestead
and proceeded back to accused 2’s homestead. …
I do not
know.
You
then proceeded to accused 2’s homestead. … I do not
know.
After
a while, one Jafta Mabunda and Matimu Mhlongo came to accused 2’s
homestead. I cannot recall the names of the
people who came
there but there are people who came there. …
Yourself,
you remained inside the house while accused 2 and others were playing
the game of monopoly. … Correct.
Accused
1 then proceeded to enter inside where you were. …Correct.
After
a while, accused 2 came inside the house and found you having sexual
intercourse with accused 1 on the floor. …I cannot
remember as
to what is it which I was doing or what was happening.
When
the two of you saw accused 2, you then stopped to have sexual
intercourse. …I do not know.
Accused
two, as he was your boyfriend, asked you as to why you were having
sexual intercourse with accused 1. You said you are also
in love with
him. He did not ask me that. I do not know”. …
The
version of accused No.3 and 4 was put to the complainant and she
proceeded to respond to it in a similar manner.
[10]
Hope Malatji testified that on the date of the incident he was one of
the boys who were playing monopoly at child offender
2’s house.
He stated that upon his arrival there he found that somebody was
lying naked on top of a woman. He stated that
child offenders 1 and 2
were alternately engaging in acts of sexual intercourse with the said
woman. This was happening in the
presence of child offender 3 and
accused 4 were also in the house playing a game of monopoly. The
complainant was silent and not
crying during the process and never
asked for help.
[11]
Jafta Mabunda testified that he too was at child offender No.2’s
house on the date of the incident. His version is almost
identical to
that of Malatji. During questioning by the court he stated that the
complainant was a participant in that she was
fondling child offender
1’s naked body while the latter was lying on top of her. He
conceded during re-examination that he
never told the prosecutor that
he saw the complainant fondling the child offender during
consultation.
[12]
N[....] P[….] M[….] (N[....]), the complainant’s
friend, stated that the complainant arrived at her boyfriend’s
house at about 1 am. She reported to her that she was from a tavern
which is known as White House. Her boyfriend was fast asleep
and
could not hear them when they were talking. The next day she went to
the complainant after a certain boy had told her that
the complainant
has been behaving in an abhorring manner which resulted in her being
raped. The complainant confirmed that she
was indeed raped by the
four accused persons. She advised her to report the incident to the
teacher as she, the complainant was
concerned that other school
children are going to laugh at her. She further told her that she
could not tell her mother because
she had warned her on numerous
occasions not to move around at night.
[13]
The complainant’s mother, M[....] M[....], testified that she
took the complainant to the police station and the clinic
after she
received a report about the rape from her teachers. The complainant
reported to her that three of the boys raped her
at the same place.
She stated that the complainant did not find her at home because she
had already gone to the mealie fields.
She had told her father to
tell her to follow her there whenever she arrives back home. She
confirmed that she has always been
warning the complainant not to
come back home late because of the prevalence of rapes, murders and
robberies that are occurring
in that area.
[14]
Forensic nurse Molleth Munene Houmu examined the complainant and
found no visible injuries.
[15]
The four accused elected to testify in their defence. They all
admitted that they were at child offender 2’s house
and that
they engaged in acts of sexual penetration with the complainant.
Child offender 1 stated that he did this at child offender
2’s
place. Child offender No.2 on the other hand stated that with him it
happened at one Trinity’s house. This Trinity
is one of the
boys who were playing monopoly. Child offender No. 3 and accused No.4
admitted that the acts of sexual penetration
between them and the
complainant happened at accused 4’s house. All four testified
that these acts of sexual penetration
were with the complainant’s
consent.
[16]
Convictions of persons accused of committing offences always has the
potential of encroaching on fundamental human rights,
in particular
the right to freedom, that every person should enjoy in terms of the
Constitution, albeit reasonable and justifiable
under section 36 of
the Constitution. It is a well-established principle of democratic
constitutions throughout the world, inclusive
of South Africa, that
the limitation of these rights shall occur only where the State has
proved its case against the accused beyond
a reasonable doubt. In
S
v Van der Meyden 1999(1) SACR 447 (W) at 448f-i
Nugent J, as he
then was, stated as follows:
“
The
onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent (see for example.
R
v Difford
1937 AD 370
at 373 and 378).
These are not separate and independent tests, but the expression of
the same test when viewed from opposite perspectives. In order
to
convict, the evidence must establish the guilt of the accused beyond
reasonable doubt, which will be so if there is at the same
time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are inseparable,
each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon a consideration
of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to determine whether there
is proof
beyond reasonable doubt, and so too does it not look at explanatory
in isolation in order to determine whether it is reasonably
possible
that he might be innocent.”
[17]
Advocate Mashiane, who represented the DPP, and the regional
magistrate both submitted that the conviction should be confirmed
in
that it is highly improbable that the complainant, a 13 years old
girl, could consent to an act of sexual penetration with four
boys in
the presence of one another. Conversely, another proposition
proffered was that, it is highly improbable for child offenders
1 and
2, who have testified that they had a love relationship with the
complainant, to allow the others to have sexual intercourse
with the
complainant. It is evident that these submissions go against the
established principle that a verdict, be it a conviction
or an
acquittal, must be based on the evidence, direct or circumstantial,
that has been presented before the court. It is further
a
well-established principle that conjecture has no role to play in the
evaluation of the evidence. I fail to find any evidence
in this case
which supports the submissions by the regional magistrate and
advocate Mashiane in this regard. Advocate Mashiane
was unable to say
with conviction that such incidences, where people do engage in such
activities with consent of all involved,
never occur in this world.
[18]
Mr Legodi submitted that this is one of those rare rape cases that
occur in the presence of eye witnesses. Mr Legodi contended
that some
of the eye witnesses’ versions contradict that of the
complainant while corroborating the accused persons’
version
that sexual intercourse took place with the complainant’s
consent. This, the argument continued, appear from the
version that
she neither cried nor complained about what was happening to her to
those who were present and further that she was
actively involved. Mr
Legodi further contended that the regional magistrate failed to deal
with the startling contradictions and
weaknesses in the testimony of
all State witnesses in his judgment. He further submitted that had he
done so, he would have found
that the contradictions are so material
as to justify a discharge in terms of
section 174
of the
Criminal
Procedure Act 51 of 1977
.
[19]
The correct manner of evaluation of the factual disputes has been
enunciated as follows in
Stellenbosch farmers’ Winery Group
Ltd. And Another v Martell & Cie SA and Others (427/01)
[2002]
ZASCA 98
(6 September 2002) at [5]:
[
5] On the central issue, as to
what the parties actually decided, there are two irreconcilable
versions. So too on a number of peripheral areas of
dispute which may have a bearing on the probabilities.
The technique generally employed by courts in resolving factual
disputes of this nature may conveniently be summarised as follows.
To come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b) their reliability; and (c) the probabilities. As to
(a), the court’s finding on the credibility of a particular
witness will depend on its impression about the veracity of the
witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the
witness’s candour and demeanour in the witness-box, (ii)
his bias, latent and blatant, (iii) internal contradictions in his
evidence, (iv) external contradictions with what was pleaded
or put
on his behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability
of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying
about
the same incident or events. As to (b), a witness’s
reliability will depend, apart from the factors mentioned
under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to
experience or observe the event in question and (ii) the
quality,
integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation of the
probability or
improbability of each party’s version on each of the disputed
issues. In the light of its assessment
of (a), (b) and (c) the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded
in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings
compel it in one direction and its
evaluation of the general probabilities in another. The more
convincing the former, the
less convincing will be the latter.
But when all factors are equipoised probabilities prevail.
Although
the above principle was applied in a civil case, I find it useful in
the evaluation of the evidence presented in a criminal
case as well.
[20]
The absence of consent is one of the elements that the State must
prove in a criminal case. Ordinarily, evidence of the use
of force in
the form of violence or threats of violence directed at the victim
will assist the court in arriving at a conclusion
that there was no
consent. In this case the complainant initially testified that she
walked with child offender 2 freely and voluntarily
from the church
up to his house. When asked why she would go to his house with him at
that time of the night when she had testified
that she was no longer
in a relationship with him, she changed and said he throttled her
when she told him that she does not want
to go with him. This was
clearly an afterthought. Her version that child offender No.2 slapped
her several times across her face
when she refused to engage in acts
of sexual penetration is not corroborated by other state witnesses.
Mabunda testified that the
complainant was an active participant who
was busy fondling the child offender. He further stated that she did
not cry nor ask
for help despite the presence of the boys who were
there to play a game of monopoly. The regional magistrate and
advocate Mashiane’s
submissions that the complainant’s
silence should not be misconstrued as consent but that she simply
submitted to the accused’s
demands. It is unfortunate that
there is no evidence to support this conclusion.
[21]
A conviction of an accused person must follow on the evidence of
truthful, reliable, trustworthy and credible witnesses. On
the
contradictions in the complainant’s evidence, the regional
magistrate submitted, in line with
S v Mkhohle
1990 (1) SACR 95
(A) at 98e-f,
that the court must not reject a witness’
evidence simply because he/she has self-contradicted. It should
rather look at
the number of such contradictions, their nature and
importance. However, it cannot be overlooked that the complainant’s
evidence-in-chief
differs materially with what she said during
cross-examination. During argument I stated that it appears to me
that the evidence-in-chief
goes to the East whilst answer to
cross-examination go to the West. On evaluation of contradictions and
inconsistencies see also
S v Mafaladiso en Andere
2003 (1) SACR
583
(HHA) at 584h -j.
The extract of what transpired during
cross-examination as quoted above is evidence to the above reasoning.
When taken through
what she stated in-chief she simply avoided the
question by either stating that she does not know anything about what
she is being
asked or could not remember what she had stated or what
had transpired. She continued in that way with regard to crucial
questions
relating to who had an act of sexual penetration with her
and where. I am of the view that these are the sort of
inconsistencies
which according to Mkhohle, should persuade the court
into rejecting a witness’ evidence in its totality. More so
after evaluating
in the light of other evidence presented before it.
[22]
The regional magistrate submitted that this court should remind
itself that Mabunda and Malatji were the offenders’ friends
and
that they were inclined to protect them. The best person to know
about this would, in my view, be the prosecutor. He or she
would make
use of the mechanisms at his/her disposal in the CPA in order to
avoid any adverse effect on the State’s case.
The State failed
to show, by way of re-examination that the two witnesses were lying
or that they have fabricated a story in order
to exonerate the
accused. All the prosecutor did was to state that the witness did not
bring certain facts to her attention during
the interview.
[23]
The accused’s attorney dwelt much on the complainant’s
failure to report the incident to N[....] and to her mother.
The
regional magistrate and advocate Mashiane submitted that this court
should accept the explanation that she was too embarrassed
to report
to N[....] in the presence of her boyfriend. With the mother, the
submission was that the explanation that she could
not tell her
mother because she, the mother, has been warning her that such a
thing will happen to her if she continues to come
back home late is
reasonable. Mr Legodi on the other hand argued that the complainant
was not embarrassed by what the accused allegedly
did to her, but by
her abominable conduct as alluded to by the boy who reported to
N[....]. Be that as it may, the lies that the
complainant told are
what concerns me in this matter. She stated that she told N[....]
that she was with Phillip. On the contrary,
N[....] testified that
she informed her that she was coming from the White House tavern. Mr
Legodi contended that the court should
accept the version of N[....]
particularly because she testified that her boyfriend was fast asleep
and could not hear what they
were saying. I agree with this
submission. With regard to the mother, the complainant testified that
her mother was at home when
she arrived in the morning and that she
further sent her on an errand. The mother’s version was that
she was already at the
mealie fields when the complainant arrived and
had informed her father to tell her to follow her there. These
contradictions negatively
impact on the credibility of the
complainant.
[24]
Section 58
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
provides as follows:
“
58 Evidence of previous
consistent statements
Evidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged
commission
of a sexual offence: Provided that the court may not draw any
inference only from the absence of such consistent statements.
This
section is stated in a way that grants courts discretion to draw an
adverse inference in certain instances, depending on the
reasons
furnished by the witness for his/her failure to report and the
circumstances of each case. I agree with Mr Legodi’s
submission
that the complainant was ashamed of her behaviour and reported the
matter only because many other people were already
aware of it. The
lies in her version, that I have alluded to above, are such that any
court would be justified in drawing an adverse
inference against her.
She simply did not want her friend and her mother to know the truth.
[25]
The advocate Mashiane submitted, on the basis of
S v B 1996(2)
SACR 543 (C)
that it is improbable that the complainant would
have ran away if she consented to the sexual encounters. Mr Legodi
contended that
this submission should be rejected in that had she
intended to run away she would have done so when she realised that
accused 4
was lying to her and would not have proceeded with them
back to child offender No.2’s house. I am of the view that the
complainant’s
version on this aspect did not take the matter
further.
[26]
In application of the principle laid down in
Stellenbosch Farmers
Wineries
above, it is evident that the complainant is not a
truthful, reliable and trustworthy witness. Her evidence
differs vastly
from that of other witnesses and is
self-contradictory. The version of other state witnesses corroborates
that of the accused persons.
It cannot be said that the State has
discharged its onus of proving the guilt of the accused/ child
offenders beyond reasonable
doubt. I tend to agree that this case
should not have gone beyond
section 174
of the CPA. It would appear
that the regional magistrate convicted the offenders in this matter
simply because he did not believe
their version. This aspect was
dealt with as follows in
R v Difford
(see paragraph 16 above):
“…
It
is equally clear that no onus rests on the accused to convince the
Court of the truth of any explanation he gives. If he gives
an
explanation, even if the explanation is improbable, the Court is not
entitled to convict unless it is satisfied, not only that
the
explanation is improbable, but that beyond any doubt it is false. If
there is a reasonable possibility of his explanation being
true, then
he is entitled to his acquittal…”
I
am unable to find that the explanation given by the offenders in this
matter is not reasonably possibly true when it is corroborated
by the
version of other State witnesses and further in the light of the
finding that I have already made with regard to the complainant’s
credibility.
[27]
It is indeed desirable that sexual offence cases in general, and
where victims are children in particular, should be prioritised
and
be accorded the sensitivity that they deserve. It is equally
established that courts should play an active role in curbing
their
escalation. However, in doing so, courts should guard against going
beyond what is legally acceptable and established principles
governing evaluation of the evidence presented before them. Doing so
will undeniably bring the administration of justice into disrepute.
I
am alive to the fact that there is a thin line between what is
legally wrong and what is morally unacceptable. The conduct of
the
accused and the complainant in this matter is clearly abominable,
however, I find it to be discriminatory to punish the offenders
alone, who themselves are children, when the complainant was also a
willing party in what had happened. The moral blameworthiness
of the
offenders in this matter does not necessarily translate into
criminality.
[28]
One other aspect that I raised with the regional magistrate is
whether section 15 (2) of the Sexual Offences Act is not applicable.
I agree with the submissions made by the regional magistrate,
advocate Mashiane and Mr Legodi that it is not applicable. I will
leave it at that. Furthermore, although the complainant testified
that child offenders were smoking dagga which made them to behave
as
if they were insane, the trial court as well as the parties did not
take this version further. The issue of
mens rea
was therefore
not dealt with. The submissions by the advocate Mashiane that the
defence did not raise this issue as a defence and
as such the court
has no basis on which to find that the accused were not criminally
liable.
[29]
It is my finding that the regional magistrate misdirected himself
with regard to his factual findings. It is further my view
that the
facts of this case do not support the legal conclusions arrived at by
the trial court. The proceedings in the trial court
are resultantly
not in accordance with justice and stands to be set aside.
[30]
In the result I make the following order:
The
conviction of the four accused / child offenders and the sentences
imposed pursuant thereto by the trial court are set aside.
M.V SEMENYA
JUDGE OF THE HIGH
COURT
I agree
M.F KGANYAGO
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS
FOR THE CHILD OFFENDERS : LEGAL AID SOUTH AFRICA
COUNSEL
FOR THE CHILD OFFENDERS : MP LEGODI
ATTORNEY
FOR THE STATE
:
DPP
COUNSEL
FOR THE STATE
: ADV.
L MASHIANE
DATE
OF HEARING
: 30 JANUARY 2020
DATE
OF JUDGMENT
: 13 FEBRUARY
2020