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[2019] ZAFSHC 199
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Moteka and Another v S (A167/2019) [2019] ZAFSHC 199 (20 September 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A167/2017
In
the appeal between:
MOSALA
JOHN MOTEKA
Appellant
1
THATO
NEELS
Appellant
2
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
VOGES, AJ
JUDGEMENT:
REINDERS, J
HEARD
ON:
26
AUGUST 2019
DELIVERED
ON:
20
SEPTEMBER 2019
[1] The
appellants, who enjoyed legal representation, were arraigned before
the Regional Court on two charges, to wit:
Count 1: Rape, it
being alleged that on or about 14 May 2011 they unlawfully and
intentionally committed an act of sexual
penetration by penetrating
the vagina and anus of the complainant with their penises without her
consent.
Count 2: Robbery
with aggravating circumstances by alleging that they unlawfully and
intentionally assaulted the complainant
and took with force her
cellphone and R150 cash, the aggravating circumstances being that she
was threatened with a gun and knife.
[2]
Appellants pleaded not guilty to both charges but were convicted on
14 August 2013. On 22 August 2013 they were
sentenced to life
imprisonment on the charge of rape and 15 years imprisonment on the
charge of robbery with aggravating circumstances.
Leave to
appeal was refused by the trial court but granted on petition by this
court in respect of both the convictions and sentences.
[3] Ms Kruger
appeared on behalf of the appellants. Heads of argument were drafted
by Mr Reyneke. In respect of both
the convictions and sentences no
further arguments were relied upon in this court why the magistrate
erred.
[3] The State
supports both the convictions and sentences. Mr Khetsi contended that
the trial court did not misdirect
itself.
[4] The State
called four witnesses to prove its case. The crux of the evidence of
the prosecution, as accepted by the
trial court, entailed the
following:
The complainant testified
that she was walking from her house in [….] to meet a friend.
On her way she was accosted by three
males. She was grabbed by her
neck from behind by second appellant. First appellant grabbed her by
her hand. Second Appellant held
a knife against her neck and
threatened to use it if she made a noise. First appellant removed her
cell phone from her pocket as
well as cash and her earrings. Second
appellant suggested that she should be raped. She was taken to an
open veld where she was
made to kneel and raped by Second appellant,
vaginally en thereafter anally. Hereafter First appellant turned her
on her back and
raped her. The third male, known to her as T[….]
K[….], was present all throughout but did not participate in
the
commission of the crimes in any way. There were no people in the
vicinity and she was crying during the ordeal. When the men were
done
she ran off and met with two persons who stopped a police vehicle
that was patrolling the vicinity. She immediately made a
report on
what had happened to the female officer in the vehicle. Hereafter she
went for a medical examination. Only her
cell phone was later
recovered.
Mr K[….] confirmed
the testimony of the complainant in essence. He testified that he
refrained from assisting her as he feared
complainant or himself
being stabbed. He pointed out first appellant’s residence to
the police. He was discharged from prosecution
by the trial court in
terms of the provisions of
Section 204
of the
Criminal Procedure Act
51 of 1977
.
Constable Nomfasa
Basitetse was the female police officer to whom the complainant
directly after the incident made a report. She
confirmed the report
and testified that the complainant was crying and full of grass from
her hair down to her shoes.
Elizabeth Mokoena is a
professional nurse. She examined the complainant and filled out the
J88 medico-legal report which was handed
in as an exhibit. One of the
more important findings was that fresh multiple tears were recorded
on and surrounding the orifice
of the complainant’s anus, with
the conclusion of anal penetration.
[5] Both
appellants testified. They admitted having had sexual intercourse
with the complainant on the night in question.
They admitted having
been in the presence of Mr K[….]. According to them Mr K[….]
informed them that complainant
was a prostitute. Second appellant
negotiated a fee of R 150 in respect of both himself and First
Appellant to have sexual intercourse
with the complainant. They went
to the residence of second appellant where both had vaginal
intercourse with her on a mat that
was placed on the dirt floor. They
deny that any one of them anally penetrated the complainant or at any
stage threatened her with
a knife. When they were done they had
insufficient money to pay her. She was given R 50 and would later
return to collect the balance.
She forgot her cellphone and first
appellant decided to keep the phone until she returns. The next
morning the police came to first
appellant and arrested him for rape
and robbery and the phone was found in his possession. Second
appellant likewise testified
that he was arrested the next morning by
the police and on investigation he showed the police a panga.
[6] The trial
court accepted the evidence of Constable Basitetse and Sister
Mokoena. I find no fault therewith and the
appellants could not
dispute their evidence. As to the credibility of the complainant and
Mr K[….] they were found to be
credible and reliable
witnesses. The magistrate accepted their evidence and amongst others,
found corroboration for the complainant’s
evidence in the
evidence of Mr K[….]. Further corroboration for complainant’s
evidence was found in the first report
witness and the evidence of
Sister Mokoena.
The magistrate considered
and dealt with the aspect of Mr K[….] having been influenced
whilst in custody, to give the evidence
before court as he did. The
court a quo was satisfied with the honesty of Mr K[….]. The
magistrate considered and dealt
with the possibility that Mr K[….]
have been influenced whilst in custody, to give the evidence before
court as he did.
The court a quo was satisfied that Mr K[….]
did not to fabricate his testimony.
The
appellants’ evidence did not impress the magistrate. The
magistrate referred to and thoroughly alluded to all the
discrepancies
in their evidence, contradictions and their evasiveness
in answering questions. On a conspectus of all the evidence the
magistrate
found their versions to be improbable and rejected their
versions.
[7]
It is trite that in the absence of an irregularity or misdirection by
the trial court, a court of appeal
is bound by credibility findings
thereof, unless it is convinced that such findings are clearly
incorrect. In order to succeed
on appeal the appellants must convince
us, on adequate grounds, that the trial court was wrong in accepting
the evidence of the
state.
It is only in exceptional
cases that an appeal court will be entitled to interfere with a trial
court’s evaluation of oral
testimony bearing in mind the
advantage which the magistrate had of seeing, hearing and
appraising witnesses.
See:
S v
Francis
1991 (1) SACR 198
(A) at 204c-e.
J v S
[1998] 2 All SA 267
(A) at 271c.
[8] Having
considered the magistrate’s findings and reasons I am not
convinced that the magistrate misdirected
herself in any manner. On
the contrary, she made no factual misdirections, considered all the
relevant factors in evaluating the
evidence and came to the correct
conclusions. She rejected the versions of the appellants for sound
reasons in respect of both
the charges of rape and robbery with
aggravating circumstances. I agree with her findings. Although
criticism can be levelled
at the magistrate for her finding that the
complainant was raped by more than one person and also raped more
than once (with reference
to the penetration of complainant’s
vagina and anus by second appellant), the provisions of
Sec 51(1)
of
Act 105 of 1997 read with Part 1 of Schedule II is applicable in
respect of complainant being raped by more than one person.
Multiple penetrations do
not constitute multiple rapes.
See:
S v Blaauw
1999 (2) SACR 295
(W) at 300
“…
mere and repeated acts
of penetration cannot, without more, in my mind be equated with
repeated and separate acts of rape. A rapist
who in the course of
raping his victim, withdraws his penis, positions the victim’s
body differently and then again penetrates
her, will not, in my view,
have committed rape twice.
”
In casu complainant was
specific that second appellant
“…
raped
me for a while. After a while he took it out from the vagina and then
inserted it in my anal (
sic)
…
”
The evidence of the rape
by two persons however triggered the provisions of Sec 51(1) and the
incorrect legal conclusion by the
magistrate becomes academic.
It follows that the
appeals against the convictions stands to be dismissed.
AD SENTENCE
[9]
Having found that the convictions were in order, it must be
determined if the sentences imposed are
just, regard being had to the
cumulative impact of mitigating and aggravating factors inclusive of
the interests of society. It
is trite that the powers of a court of
appeal to interfere with the sentence imposed, are limited insofar as
it can only interfere
where the sentence is disproportionate, harsh
or the sentencing court committed a material misdirection or did not
exercise its
discretion properly or at all.
See:
S v Pieters
1987(3) SA 717 (A); and
S v Hewitt 2017(1)
SACR 309 (SCA)
.
[10] The
trial court had regard to both appellant’s personal
circumstances. They are both first offenders, spend
22 months in
custody awaiting trial and each one have a minor child. They
displayed no remorse. First appellant is 19 years old
and second
appellant is 20 years old. The court dealt with the age of the first
appellant and concluded that his actions did not
display that he was
acting immaturely. Although admitting that no evidence was lead in
the court a quo regarding the youthfulness
of both appellants, we
were requested by counsel for appellants (with reference to several
case law) to find same to be a factor
warranting a deviation from the
prescribed sentence of life imprisonment. In my view the trial court
was correct in finding, on
the evidence before her which included the
brutal way in which the complainant was robbed and raped, that the
ages of the appellants
did not cause her to deviate from the minimum
prescribed sentences in respect of the convictions on both counts.
[11] The
magistrate in following the guidelines in
S v Malgas
2001 (1)
SACR 469
(SCA) did not find any substantial and compelling
circumstances in respect of the rape charges and invoked the
prescribed minimum
sentence of life imprisonment as prescribed in
Section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
read
with
Part I
of Schedule 2. The same finding was made as to the
robbery with aggravating circumstances as described in
Part II
of
Schedule 2, and she invoked the prescribed sentences of 15 years
imprisonment.
[12]
Complainant testified in aggravation of sentence that she suffered
emotional trauma as a result of the incident
and felt humiliated and
ashamed. The trial court noticed that she was very emotional and
cried during her testimony in this regard.
[13] In
stressing the seriousness of rape and indeed the facts in casu, the
trial court referred to
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA). The
magistrate alluded to the interest of the community at large to be
protected by rapists and the courts’ duty to
send out a clear
message of non-tolerance in its sentence.
[14] I find
no fault with the reasoning of the magistrate and I am likewise
satisfied that no substantial and compelling
circumstances exists
which required consideration of different sentences than those
prescribed by the legislature.
[15] I
accordingly make the following order:
The appeals of both the
appellants against their convictions and sentences are dismissed.
C. REINDERS, J
I concur.
M. VOGES, AJ
On behalf of the
appellants: Ms S Kruger
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv R Khetsi
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN