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[2019] ZAFSHC 66
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Hlojane v S (A241/2018) [2019] ZAFSHC 66 (30 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to
other Judges: NO
Circulate to
Magistrates:
NO
Case
No: A241/2018
In
the matter between:
ABRAM
MOLELEKI HLOJANE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO,
J
et
MOLITSOANE
J
JUDGMENT BY:
NAIDOO
J
HEARD ON:
11 MARCH 2019
DELIVERED ON:
30 MAY 2019
INTRODUCTION
[1] The appellant was convicted
of contravening section 3, read with other relevant provisions of Act
32
of 2007 (the Sexual Offences Act) as well as the relevant
provisions of the Criminal Law Amendment Act 105 of 1997 (the Minimum
Sentences Act) on one count of Rape in the Regional Court,
Bloemfontein. He pleaded not guilty to the charge, but on 6 October
2009 was convicted thereon and sentenced on 1 June 2010 to Twenty Six
(26) years’ imprisonment. The court
a quo
granted leave,
on 21 November 2016, to appeal in respect of conviction only. Ms S
Kruger represented the appellant in this court
and Adv Roothman
represented the respondent, being the state.
[2] During 2008, nine year old
A[….] Q[….] (complainant) was subjected to three
instances
where the appellant made sexual advances to her and in the
course of one of those instances raped her. She lived with her
sickly,
bedridden grandmother at the time and it seems that an
outbuilding on the premises was used as a church at which the
appellant
was a preacher. He has been referred to as the deacon and
clearly enjoyed a position of authority. He was greatly respected by
the community and the family of the complainant.
[3] After some time (it was not
clear how long after), the complainant related to her cousin (N[….])
what had happened to her. N[….] reported the matter to the
complainant’s mother, who in turn laid a criminal charge
against the appellant. The complainant was examined by a forensic
nurse at a hospital, and the nurse completed a medical report
on her
findings, referred to as the J88. The nurse found that the hymen was
intact but that there were clefts at the 2 o’clock,
3 o’clock,
7 o’clock and 11 o’clock positions around the hymen. The
nurse who testified, said that clefts are
healed wounds and that this
was consistent with penetration.
[4] The complainant’s
mother told of three incidents related to her by
the
complainant, the first is when the appellant called her while she
was washing dishes. She went to him and he called her
into the
toilet. When he went into the
toilet, she returned home. It seems
the
next day, the appellant made the complainant touch his genitals
and
on the third occasion is when he appears to have had
sexual
intercourse with her. N[….]
related a similar version, except that
her
narrative is that the complainant said she did not touch
his
genitals, as she was asked to do.
[5] At the end of the state’s
case the appellant applied for a discharge in terms of section 174 of
the Criminal Procedure Act 51 of 1977 (CPA). The trial court
dismissed the application. The appellant thereafter testified and
denied the complainant’s version, alleging that there was never
any incident of a sexual nature involving the complainant.
He also appeared to suggest that the complainant’s
mother encouraged the complainant to fabricate this version against
him,
as the mother had a problem with his girlfriend, who is the
cousin of the complainant’s mother. The appellant further
testified
that the uncle of the complainant (V[….]) was also
involved in this conspiracy as he had a long time ago accused the
appellant
of having an affair with his (V[….]’s ) wife.
[6]
It
is trite that the state bears the onus to prove the guilt of an
accused beyond reasonable doubt and that the accused person bears
no
onus to prove his innocence. In this matter the appellant assails the
judgment of the trial court on a number of grounds the
most important
of these being that the court failed to undertake a proper analysis
and evaluation of the evidence. The appellant
also alleges that the
court erred in finding that the state proved its case beyond
reasonable doubt, especially as the complainant
was a minor child and
a single witness, and as such, the court failed to apply the
cautionary rule. The court also erred in failing
to consider the
contradictions in the complainant’s evidence, and by finding
the complainant to be a competent and credible
witness.
[7] A
n
appeal court will not lightly interfere with the findings of the
trial court especially as the latter was steeped in the atmosphere
of
the trial and had the benefit of observing witnesses. The trial court
is in the best position to make findings as to such matters
as
credibility, demeanour and reliability.
[See
S v Francis 1991(1) SACR 198 (A) at 204 c-e]
The
court
a quo
in this matter undertook a comprehensive analysis of the evidence as
a whole. I pause to mention that the magistrate’s manner
of
delivering her judgment is somewhat strange. She addressed herself to
the appellant personally, and often pronounced herself
at a personal
level in respect of how she conducts herself in relation to other
similar matters. It is perhaps advisable for the
magistrate to
reconsider this method of delivering her judgments and adopt a more
general and less personal approach, lest the
impression be created
that she is not objective. It should also be borne in mind that the
judgment is not exclusively for the accused
person. The prosecution,
members of the public, whether present at the proceedings or not,
students, academics and the appeal court
are all part of the audience
that the court should seek to address. Having said that, an appeal
court will only interfere if there
is a misdirection on the part of
the trial court in the application of the law or the facts.
[8] As I indicated, the trial
court traversed and analysed the evidence extensively, albeit in a
most unconventional
fashion. The court gave proper consideration to
the discrepancies in the complainant’s evidence and to the
differences in
the evidence of her mother and N[….], and
applied the necessary caution in dealing with the evidence of the
complainant.
A long line of cases in our law have sounded a warning
for courts to be cautious in dealing with the evidence of a single
witness
and particularly that of a young child. Section 208 of the
CPA permits a conviction based on the evidence of a single witness.
The predecessor of section 208 was section 256 of the
1955 Criminal Procedure Code and referred to
“
the
single evidence of any competent and credible witness”
.
Although the reference to “credible” is absent in section
208, a single witness must nonetheless be credible
[See
S v Sauls & Another 1981(3) SA 172 (A) at 180 d-g].
With regard to the evidence of young children, the remarks of the
Dambuza JA (Shongwe JA concurring) in
Mocumi v
The State
[2015] JOL 34898
(SCA) and also 2015 JDR 2653 (SCA)
are apposite:
“
Considering
the age of the complainant, both at the time of the incident and when
she was giving evidence, the lapse of time between
the incident and
the trial, I do not think that her momentary lapse of memory was
unreasonable or that it was an indication that
she was fabricating
her evidence”
In
Mocumi, the majority dissenting judgment was penned by Navsa JA, in
which Cachalia and Tshiqi JJA concurred
.
[See also R v Manda 1951(3) SA 158 (A) at 163 c-e]
[9] In my view, the court took
proper account of the age of the complainant, the manner in which she
testified,
and correctly concluded that, given the circumstances of
the case, the complainant was raped, as defined in the Sexual
Offences
Act. This finding is supported by the objective evidence of
the clefts around the hymen of the complainant. In my view the trial
court was also correct in finding that the appellant is indeed the
perpetrator of the rape of the complainant. The discrepancies
or
contradictions were correctly treated by the trial court as being of
such a nature that they do not cast doubt on whether the
complainant
was raped by the appellant I am unable to fault the reasoning of the
magistrate in respect of the guilt of the appellant
in this matter,
and accordingly find no reason to interfere with the conviction in
this matter.
[10]
The
case of
S v Singh
1975(1) SA 227 (N)
sets out how to approach the evidence where the state and defence
versions differ from each other
.
The court said:
“…
.
it
would perhaps be wise to repeat once again how a court ought to
approach a criminal case on fact where there is a conflict
of fact
between the evidence of the State witnesses and that of an accused.
It is quite impermissible to approach such a case thus:
because the
court is satisfied as to the reliability and the credibility of the
State witnesses that, therefore, the defence witnesses,
including the
accused, must be rejected. The proper approach in a case such as this
is for the court to apply its mind not only
to the merits and the
demerits of the State and the defence witnesses but also to the
probabilities of the case. It is only after
so applying its mind that
a court would be justified in reaching a conclusion as to whether the
guilt of an accused has been established
beyond all reasonable doubt.
The best indication that a court has applied its mind in the proper
manner in the abovementioned example
is to be found in its reasons
for judgment including its reasons for the acceptance and the
rejection of the respective witnesses”.
I am
therefore of the view that the trial court did conduct an examination
of the probabilities, and the merits and demerits of
the matter in
arriving at the conclusion it did.
ORDER
[11] In the circumstances, the following order is
made:
11.1
The
appeal against the conviction is dismissed
11.2 The conviction and sentence are
confirmed
S. NAIDOO,
J
I
agree
P MOLITSOANE J
On behalf
of Appellant:
Adv. S Kruger
Instructed
by:
The Justice Centre
Bloemfontein
On
behalf of Respondent:
Adv. Roothman
Instructed
by:
The State