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[2019] ZAFSHC 254
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Motloung v S (A22/2019) [2019] ZAFSHC 254 (29 April 2019)
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A22/2019
In
the matter between:
SIMON
MOTLOUNG
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
J et CHESIWE, J
HEARD
ON:
29 APRIL 2019
REASONS
BY:
MATHEBULA, J
[1]
On 29 April 2019 we granted the following order:-
“
1. The appeal is
upheld
2. Both convictions and
sentences are set aside.
Hereunder
follows the reasons thereof.
[2]
The appellant was tried before the Regional Magistrate,
Phuthaditjhaba. He was convicted on two (2) counts of rape.
Following
his convictions he was sentenced to life imprisonment on
each count. The appeal came before us as of right.
[3]
Although the State has indicated throughout that it was supporting
both convictions and sentences, on the day of the hearing
Mr Strauss
correctly conceded that the opposition was without merit and the
appeal should succeed. We agree with him.
[4]
The evidence for the State was narrated by a little girl aged six
years named S. According to her they were playing outside
with
her eighteen month old sibling P when they were lured by the
appellant to enter his house under the pretext that he will give
them
chocolates. Instead of doing that he undressed and penetrated
both of them with his manhood. It is unclear on
which date did
this occurrence take place. Both children were examined by
Health Care Practitioners who also prepared Medico-Legal
Examination
Reports. The conclusions on both children was that there was
“no physical injuries noted on examination
consistent with
history given.” Other witnesses namely Puseletso Motloung
(grandmother), Maki Motloung (mother) and M Bolofo
(Professional
Nurse) also testified for the State.
[5]
On charge 1, the evidence of S was used as a basis to convict the
appellant. The grandmother did notice a blood clot on the
private
parts of the toddler. Nothing strange or suspect was identified
before noticing the clot. Even the J88 medical report
does not
point towards any physical injuries. No DNA was found linking the
accused to any offence. S also did not at that stage
report anything
that the appellant did rape the child. No charge was laid to the
police to that effect. The grandmother contradicts
the evidence
of S that anything was reported to her.
[6]
The contradictions thickened in the evidence of Maki regarding the
chronology of the events. In her oral testimony she
testified
that she took the child to the hospital and it was confirmed to her
that the child was raped. It was at this point
that the child
reported to her that the appellant raped them. In her written
statement made to the police handed in as exhibit
“A”, it
was the traditional healer who revealed to her that the children were
raped by a close male relative.
It was then at this point that
she took S to the hospital to be examined as well. Thereafter S
related to her that the appellant
had raped her. It is
important to note that the medical examination on S took place about
seven (7) weeks after P’s
examination. There is no
precise day pertaining to when these alleged rapes took place.
Neither did S report to anyone
on the same day or few days
thereafter.
[7]
It is trite that a court of appeal will ordinarily accept the factual
findings of the trial court unless there is an indication
of material
misdirection or are shown by the record to be wrong. The
approach of the appellate court was succinctly stated
that it is at
liberty to disregard these findings of fact even though based on
credibility.
[1]
We hold
the view that the trial court committed a serious misdirection by
accepting the versions of S and Maki as the truth
disregarding the
contradictions in their versions.
[8]
Section 208 of Act 51 of 1977 provides that an accused person may be
convicted on the offence he is charged with based on the
evidence of
a single witness. The only requirement is that such evidence
must be satisfying in all material respects.
We have already
alluded to the contradictions in the evidence of the two (2) key
witnesses and the improbabilities of their testimonies.
It is
also on this basis that the state counsel conceded that conviction
cannot be sustained.
[9]
The learned magistrate was alive to the necessary caution when
dealing with the evidence of a child. He was also conversant
with the principle that the accused only had to advance a version
that was reasonably possibly true to be entitled to an acquittal.
It is in the application of these principles that the learned
magistrate fell short. There is no evidence in the J88 that
confirms that the child was penetrated. The Health Care
Practitioner conceded that the injuries could have occurred a week
or
so prior to the examination. The most important aspect is the
concession that they may even have been self-inflicted.
This
evidence was overlooked by the court. The learned magistrate was
swayed by the demonstration of S of what was interpreted
as a sexual
act. On this aspect the learned magistrate concluded that the
child was correct it has happened. I do not
agree, with
respect, that it is the only inference to draw from this conduct.
Taking this as an isolated event confirming
that indeed the children
were raped will create a problem particularly in the face of many
other contradictions and impossibilities
in the matter.
[10]
These led us to the conclusion that the appeal ought to succeed.
__________________
M.
A. MATHEBULA, J
I
concur
_____________
S.
CHESIWE, J
On
behalf of the appellant: Mr P. van der Merwe
Instructed
by: Legal Aid
BLOEMFONTEIN
On
behalf of respondent: Adv. M Strauss
Instructed
by:
Director Public Prosecutions
BLOEMFONTEIN
[1]
R
v Dhlumayo and another
1948 (2) SA 677
(AD) at 706