S v Monageng (590/06) [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) (1 October 2008)

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[2008] ZASCA 129
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S v Monageng (590/06) [2008] ZASCA 129; [2009] 1 All SA 237 (SCA) (1 October 2008)

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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
NO PRECEDENTIAL INTEREST
Case No 590/06
KLAAS SEBETLELA MONAGENG
Appellant
and
THE STATE
Respondent
Neutral citation:
Monageng v The State
(590/06)
[2008] ZASCA 129
(01 OCTOBER 2008)
Coram:
MPATI P, BRAND, LEWIS, MAYA JJA and
MHLANTLA AJA
Heard:
29 August 2008
Delivered:
01 October
2008
Summary: Rape – appeal against conviction for child
rape and sentence of 18 years imprisonment – appellant’s version
not reasonably
possibly true and properly rejected – no material
misdirection on the part of the sentencing court and sentence imposed
not ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’
– no reason entitling the appeal court to interfere – conviction
and sentence
confirmed.
ORDER
On appeal from:
High Court,
Bophuthatswana Provincial Division (Hendricks J, Tlhapi AJ concurring
and Landman J dissenting).
The appeal against conviction and sentence is dismissed.
JUDGMENT/S
MAYA JA: (Mhlantla AJA concurring)
[1] The appellant, a 37 year old man, was convicted in
the Mogwase regional court (Mr E D Mogotse) of the rape of his 15
year old
cousin. Acting in terms of section 52(1) of the Criminal Law
Amendment Act 105 of 1997 (the Act),
1
the regional magistrate referred the matter to the high court
(Bophuthatswana Provincial Division) for sentence. The high court

(Gura J) confirmed the conviction and, having found that substantial
and compelling circumstances existed which justified the imposition

of a sentence less than the life imprisonment prescribed by the Act,
2
sentenced the appellant to 18 years’ imprisonment. The appellant
successfully sought leave to appeal to the Full Court against
the
conviction and sentence. In a split decision, the Full Court
(Hendricks J, Tlhapi AJ concurring and Landman J dissenting)
dismissed the appeal. The present appeal is with the special leave of
this court.
[2] The essential facts which led to the appellant’s
conviction are, to a large extent, common cause although it was
sometimes
difficult to follow the sequence of the events, which
occurred after the complainant reported that she had been raped, from
the
record, particularly from the defence version, mainly because of
the poor manner in which evidence was elicited from the witnesses.

The only major point of divergence in the versions of the complainant
and the appellant relates to the rape itself which the appellant

denied. The appellant and the complainant are maternal first cousins
living in the same locality. On 26 September 2003 the complainant,
a
high school student, was preparing for a church camping trip at which
she was to undergo a confirmation examination. She and
a younger
cousin went to the appellant’s house to borrow a bag from his wife.
They found the appellant preparing to do his washing
outdoors. His
wife was not home. He instructed the younger girl to fetch a bicycle
from a house in the neighbourhood – it is
not clear from the
evidence how far this homestead was from the appellant’s – and
asked the complainant to fetch a bucket from
the house.
[3] According to the complainant, she had just found the
bucket in the bedroom when the appellant came in and locked the door.
He
grabbed her and pushed her onto the bed. She screamed and
struggled to free herself but he was too strong for her to resist. He

told her that he had long been waiting for her to grow up. Holding
her down on her back, he undressed and raped her. He would not
stop
despite her screams which were induced by pain, and only withdrew
from her when she threatened to report him to her mother.
He
apologised and let her out of the room. The other child still had not
returned. On the way home she was called by the appellant’s
sister
who gave her a blouse for which she no longer had any use. Further
along she was called into her grandmother’s homestead
by an uncle
and remained there for a short while. She made no report to these
adults because she wanted to first tell her immediate
family.
[4] She said that upon her arrival at home, she found
her mother preparing to leave on a trip. She said nothing to her out
of fear,
presumably of tearing the family apart because the appellant
is her nephew. She washed herself and discovered that she was
bleeding
from her painful vagina, which felt as if it was scratched.
She left for her camping trip on the following day and, after the
weekend,
returned to school where she boarded. She still had not told
anyone about the rape incident. However, she was unable to cope with

her school work in the days that followed because the memory of the
rape haunted her and she was constantly weepy and could not
leave her
room. On 4 October, she finally phoned one of her brothers, D., in
Pretoria, with whom she shared a close relationship
and told him that
the appellant had raped her. D. said he was going to tell their
parents. Indeed, her father phoned her shortly
afterwards and asked
her to confirm D.’s report, which she did. D. and their elder
brother fetched her from school on the same
day. At home they found a
gathering of the family at which demand was made of the appellant to
pay a fine of 17 head of cattle.
On the following day she was taken
to a district surgeon who examined her.
[5] The doctor’s evidence was, in my view, not
particularly helpful and not much reliance can be placed on it by
either party.
He said that he found no evidence of trauma or
abnormality although the complainant had no hymen – the absence of
which does
not necessarily point to sexual activity – and suffered
from ‘very mild depression’. He stressed that his examination was

not meant to establish whether or not the complainant had been raped
but merely to check if she had contracted any diseases or
had been
impregnated. He said there were steps that he did not conduct in his
examination because of its purpose. He could neither
confirm nor
exclude rape in the circumstances.
[6] D.’s account of the events, subsequently
corroborated by their father, Da., tallied with the complainant’s
version. He confirmed
receiving a telephone call from the complainant
who sounded troubled and reluctantly reported that she had been raped
by the appellant.
He immediately returned home to inform their
parents who promptly dispatched him and his older brother to fetch
the complainant
from boarding school. By the time they arrived home,
the family meeting constituted by their parents, certain male elders
including
Mr Steve Monageng, the appellant, the appellant’s wife
and his sister was well in progress. Steve informed them that the
appellant
had been questioned and admitted the rape. Steve then
sought their view on a solution and they suggested legal action. A
debate
ensued because some of the other members wanted the matter to
be resolved within the family. Corporal punishment was suggested by

their mother but payment of the fine, which the appellant’s wife
undertook to pay, was finally agreed upon. He then drafted a
document
embodying the agreement, tendered in evidence by consent, which
everyone, including the appellant, willingly signed. The
original
text of the agreement which bore seven signatures was in seTswana and
it was translated into the record as follows:
‘
Rape
matter between [the appellant] and [the complainant] on 4 October
2003. Date of the incident 26 September 2003.
Agreement
1. A fine of 17 herd of cattle.
2. The time in which the cattle will be paid out, a
three month period ….’
[7] According to Da. the news of the rape threw him and
his wife into turmoil. They called the family meeting because they
did not
know how to handle the problem. He reported to the gathering
that the complainant alleged that she had been raped by the
appellant.
The appellant kept quiet. He was then asked by one of the
elders, Mr Alex Monageng, why he had raped the child. The appellant
initially
denied the accusation but upon persistent questioning by
Alex he said he did not rape her but merely locked her in the house
and
only suggested sexual intercourse. At this juncture Steve asked
the appellant if he knew that locking a person up in itself
constituted
a serious offence and said that the meeting could not
continue in the absence of the appellant’s wife. Alex then went to
fetch
her. On her arrival Steve informed her about the accusation.
She questioned the appellant in their presence and he admitted the

rape. At that stage D. and the complainant arrived and Steve informed
them of the events thus far. As the appellant’s guilt had
been
established, Steve proposed that he should be punished. No one was
keen to involve the police. Da. then demanded the fine
and a written
agreement which he intended to use against the appellant in a
prosecution. The appellant voluntarily signed the agreement
along
with everybody. Da. said that he did not wait for the fine to be paid
and subsequently laid a complaint with the police.
[8] The appellant’s version when he testified was that
he sent the complainant indoors to fetch a bucket which he was going
to
use to rinse his washing. He followed her because she was taking
too long. He said that he found her sitting on a bed looking at
a
photo album with the bucket next to her. He took the bucket, held her
on the shoulder and told her that ‘she was so beautiful’.
The
complainant asked him what he meant and threatened to report him to
her mother. He apologised and the complainant then left.
He denied
admitting the rape at the meeting and called Steve to corroborate his
version. He said that he agreed to pay the fine
and signed the
agreement with the intention of paying the fine and thereafter laying
a complaint with the authorities that he had
been falsely accused
once medical proof absolving him became available.
[9] Steve, clearly a critical witness, was regrettably
very poorly examined. This appears to be an unfortunate result of the
presiding
officer’s rather impatient interjections, during his
examination-in-chief, which suggested that events at the meeting were
not
in dispute. This obviously disconcerted the prosecutor such that
he all but abandoned questioning the witness. Consequently, it
seems,
Steve was not cross-examined. He did make the point, however, that
the appellant denied the rape and that after the agreement
of payment
of a fine was concluded the appellant requested medical proof on the
understanding that Steve would pursue the payment
of the fine only
after such proof became available.
[10] The trial court, having cautioned itself that the
complainant was a single, child witness, found her a satisfactory
witness
who, in its view, had no reason to falsely implicate the
appellant. It found her version credible and rejected the appellant’s

evidence on the basis that it was so improbable that it could not
reasonably possibly be true. The question for decision is whether
the
State established the appellant’s guilt beyond reasonable doubt.
[11] In argument before us, the appellant’s counsel
levelled a number of criticisms against the manner in which the trial
court
assessed the evidence – which he said was decided purely on
probabilities – and its findings which were confirmed by the
sentencing
court and the court below. He contended that the
complainant’s evidence was inherently improbable and her conduct
inconsistent
with trauma because she did not report the incident
promptly; the adults that she saw directly after the rape seem not to
have
observed anything untoward in her appearance; she was able to
attend the church camp and no physical injuries were found. It was

further contended that the written agreement, which according to the
trial court supported the State version, amounted to a confession.
In
the event, so it was argued, its admission did not comply with the
statutory provisions governing the admissibility of confessions
3
as its voluntariness had not been proved. An objection that the
complainant’s testimony had been improperly admitted because
she
had not been properly sworn as a witness was, prudently, not pursued
before us.
[12] It must be pointed out, before evaluating the
evidence, that the trial court patently misdirected itself in some
respects when
assessing the evidence. In some instances the evidence
was misstated and findings were made which were not supported by the
evidence.
It is, however, not necessary to deal with these
misdirections in any detail as they do not fundamentally impact on
the trial
court’s reasoning and conclusion. Of more importance
is its failure to record its impressions of the witnesses, except for
the
complainant, and startlingly finding, without giving any reasons,
that Steve’s evidence was irrelevant. It does appear, however,
that
its findings of facts predominantly depended not on personal
impressions of witnesses but upon inferences from the facts and
upon
probabilities. This, therefore, leaves this court at large to
reconsider the evidence and draw its own inferences from the
record.
4
[13] Turning to the submissions made on the appellant’s
behalf, it is so that the trial court tested the evidence against the
inherent probabilities. There is nothing wrong with this approach. As
was reiterated in
S v Chabalala
,
5
the proper approach to assessing evidence is
‘to weigh up all the elements which point towards the guilt of the
accused against
all those which are indicative of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and
improbabilities on both sides and, having done so,
to decide whether the balance weighs so heavily in favour of the
State as to
exclude any reasonable doubt about the accused’s
guilt’. The inherent probabilities therefore play a critical role
in the enquiry.
[14] But whilst it is entirely permissible for a court
to test an accused’s evidence against the probabilities, it is
improper
to determine his or her guilt on a balance of probabilities.
The standard of proof remains proof beyond reasonable doubt, ie
evidence
with such a high degree of probability that the ordinary
reasonable man, after mature consideration, comes to the conclusion
that
there exists no reasonable doubt that an accused has committed
the crime
charged.
6
An accused’s evidence therefore can be rejected on the basis of
probabilities only if found to be so improbable that it cannot

reasonably possibly be true.
7
[15] Motive to incriminate an accused being one of the
relevant factors for consideration, the foremost question to my mind
is why
the complainant, assisted by her father and brother, would
implicate a close relative and neighbour unless their evidence was
true.
The appellant himself confirmed that relations between him and
the complainant were normal. The grudge that he alleged Da. bore

against him is not borne out by the facts. Da. readily confirmed that
he once reprimanded the appellant after he was accused of
attempted
rape but denied any animosity towards the appellant.
[16] I have no difficulty accepting David’s version in
this regard because the record is replete with evidence which shows
that
the two families were close knit up to the day of the meeting.
For example, the complainant had visited the appellant’s wife on

the very day of the incident; D. found his mother visiting at the
appellant’s home on his return from Pretoria to relay the
complainant’s disclosure; on the appellant’s own version he was
watching television with the complainant’s parents at their
home
having gone there to borrow a lawnmower when the family members
called to the meeting, unbeknown to him, arrived. It was common
cause
that no one at the meeting, even the complainant’s mother, was keen
to have the appellant criminally charged. This includes
Da. as well
because he delayed laying a criminal charge despite his uncontested
evidence that he insisted on a written agreement
to secure evidence
to prosecute the appellant which, in my view, is borne out by the
fact that he did not wait for the appellant
to pay the fine within
the agreed
three-month period and had him arrested a mere three
weeks after the meeting.
[17] If the elaborate and similar accounts given by D.
and Da. about the chain of events which took place at the family
meeting
are untrue then it must be accepted that they conspired
together to fabricate those events. I can see no reason on the
evidence
why they would have done so. This is particularly so bearing
in mind that parts of David’s version exculpated the appellant and

that D. – who was not at all challenged in cross-examination except
to be told that the appellant denied making an admission
of guilt –
readily stated that he was not present when the appellant admitted
the rape. If their intention was to secure the
appellant’s
conviction at whatever cost, it would have been sufficient for them
simply to say that the appellant admitted the
offence. To my mind, it
is utterly improbable that they would have gone to such lengths to
incriminate the appellant. This finding
does not redound to the
credit of the defence version, including Steve’s version, in this
regard.
[18] As to the nature of the written agreement, I do not
agree that it is a confession as it clearly does not fit the
requirements
of s 217 of the Act. In my view, it bears the hallmarks
of an informal admission.
8
In view of the fact that it was tendered in evidence with the
appellant’s consent, and his own evidence which made it clear that

he signed it quite willingly, fully intending to carry it out,
contrary to what was put to Da. that he was pressured to sign, I
am
of the firm opinion that the trial court was correct in admitting it
and according it evidential weight.
[19] It may be asked how the gathering could have got to
the stage of fixing a fine as punishment if the appellant had not
admitted
to wrongdoing. Another question that arises when one
considers the value of 17 cattle, is why an innocent man, apparently
of humble
means – he was a locomotive driver in the mines earning a
measly monthly salary of R4 800 – would bind himself to pay what to

him must be a fortune for a crime he did not commit. The reason he
gave, that he planned to complain to the authorities after paying
the
fine and the matter had been investigated to show that he had been
falsely accused, simply makes no sense. Incidentally, this
evidence
does not support the scenario contended for in argument that his wife
agreed to pay the fine out of fear that he would
be imprisoned.
Similarly, the appellant’s version which was not put to Da. and D.,
that his wife actually defended him at the
meeting saying she would
have noticed if he had done something wrong and that she is the one
who demanded medical proof, is not
borne out by the evidence.
[20] I find it difficult to accept the appellant’s and
Steve’s evidence that payment of the fine was conditional upon
production
of medical proof in view of the fact, on their own
version, that the agreement which, significantly, does not reflect
this alleged
important term, was signed before it was suggested that
the complainant be taken for a medical examination. That any medical
report
might exonerate the appellant seems to me to have been an
afterthought. Not to be overlooked is the district surgeon’s
evidence
that the complainant was brought to him to be checked, not
to establish rape, but for diseases she may have contracted and any
other pathologies she may have sustained during a sexual assault. To
my mind this, coupled with the evidence corroborated by the
appellant
himself that Da. was extremely concerned at the meeting that he might
have infected her with HIV-Aids, shows that the
complainant was taken
for medical examination merely to safeguard her health and not as
part of a deal struck at the meeting.
[21] This, in my view, makes a lie of the condition
alleged by the defence. Equally, the submission made on the
appellant’s behalf
that it was unlikely that he would have insisted
on the complainant’s medical examination if he had raped her,
cannot stand.
In any event, the submission overlooks the appellant’s
own evidence that this was Steve’s suggestion, which he then
supplemented
in cross-examination by adding that he asked Steve after
the meeting to request a copy of the medical report from Da. – a
request
he said was refused, casting further doubt on the alleged
condition.
[22] The appellant’s account of the events which took
place at his home was far from convincing. As the trial court pointed
out,
it is improbable that instead of chastising the complainant for
keeping him waiting for the bucket, he would have paid her a
compliment.
If he had done no more than tell the complainant that she
was beautiful, why would she have been offended and why would the
appellant
have felt compelled to apologise to her for an innocent
remark? Sending the other child away from his house also indicates
that
he did not have an innocent purpose in mind.
[23] Much was made by the appellant’s counsel of the
complainant’s apparent ability to act normally after the rape and
her delay
in reporting it. It has been firmly established in a number
of studies on the impact of violence, including rape, against women

that victims display individualised emotional responses to the
assault.
9
Some of the immediate effects are frozen fright or cognitive
dissociation, shock, numbness and disbelief.
10
It is therefore not unusual for a victim to present a façade
of normality.
[24] It is further widely accepted that there are many
factors which may inhibit a rape victim from disclosing the assault
immediately.
Children who have been sexually abused, especially by a
family member, often do not disclose their abuse and those who
ultimately
do may wait for long periods and even until adulthood for
fear of retribution, feelings of complicity, embarrassment, guilt,
shame
and other social and familial consequences of disclosure.
11
Significantly, the newly passed
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
provides, in
s 59
, that ‘in
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only
from the length of
any delay between the alleged commission of such offence and the
reporting thereof’. Raising a hue and cry
and collapsing in a
trembling and sobbing heap is not the benchmark for determining
whether or not a woman has been raped. There
was thus nothing unusual
about the complainant’s behaviour and her explanation for not
immediately reporting the appellant is
plausible.
[25] It was argued that the complainant’s version was
not supported by the medical evidence and that absence of physical
injuries
was a further indication that there had been no rape. I find
no merit in this contention. It needs first to be pointed out that

physical injuries are not always a consequence of rape. This is so
because physical force is not necessarily used in rape – the
more
common consequences are therefore those related to reproductive and
mental health and social well-being.
12
That being said, the relevant evidence in this case needs to be
considered in its proper context. Despite its neutrality, the
doctor’s evidence did not exclude the possibility of rape in view
of the time lapse and the fact that the complainant had since
washed.
Nor did the doctor exclude the possibility that she could have
sustained minor vaginal injuries which would have healed
by the time
of the examination. The infliction of injuries to the genitalia, he
said, largely depends on the degree of force exerted
during the rape.
The complainant’s direct evidence that she felt pain in her vagina
as if it was scratched and bled must be viewed
against that
background.
[26] Other criticisms including that it is improbable
that the appellant would have stopped raping her simply because she
threatened
to tell her mother, conduct which I find entirely
reasonable, were wisely not pursued with any marked degree of
enthusiasm. No
other cogent reason was advanced against the trial
court’s credibility findings in respect of the complainant and its
assessment
of her evidence and the rest of the State version.
[27] The complainant’s version of the rape, which as
the court below pointed out was clear and straightforward, was
unshaken in
cross-examination. And in so far as the events after the
rape were concerned, she was corroborated by Da., D. and indeed the
defence
witnesses. The cogency of her evidence, its corroboration in
so far as the events following the rape are concerned, David’s
evidence
that the appellant admitted the rape hence the decision to
exact a fine from him and the agreement relating to payment of the
fine
all show that the defence version is inherently so improbable as
to be rejected as false. I am thus satisfied that the State proved

the appellant’s guilt beyond reasonable doubt. There is, therefore,
no basis to disturb the trial court’s finding of guilt.
[28] As to sentence, the high court’s finding that
there were substantial and compelling circumstances in the matter
justifying
the imposition of a lesser sentence than life imprisonment
was not in contention between the parties. Thus, the issue before us

is whether a lighter sentence should have been imposed on the
appellant.
[29] In deciding whether the sentence warrants our
interference it should be considered that this court’s power to
alter sentences
is limited as the infliction of punishment lies in
the discretion of the sentencing court. A court of appeal may not
simply substitute
a sentence because it prefers it and will be
entitled to interfere only if the sentencing court materially
misdirected itself or
the disparity between its sentence and the one
which this court would have imposed had it been the trial court is
‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
13
[30] It was contended on the appellant’s behalf that
the sentencing court had misdirected itself materially by finding
that the
appellant had raped his own child because ‘[i]n the
setting of a seTswana family, a maternal uncle … is in the same
position
as a father’ and that the sentence of 18 years’
imprisonment is too harsh.
[31] Regarding the first leg of the appellant’s
submission, the only misdirection committed by the sentencing court,
in my view,
which cannot by any stretch of the imagination be
regarded as material, was its reference to the seTswana culture. One
would reasonably
imagine that in any civilized cultural setting, a
much older male relative represents a father figure and protector to
his child
relatives. In any event, the evidence in this case amply
shows that the appellant, who the complainant and D. called ‘uncle’,

was a father figure to her. There is, further, no indication that the
sentencing court placed undue weight on this factor.
[32] As to the propriety of the sentence imposed, I do
not agree that it is so harsh that it ought to be ameliorated by this
court.
In my view, the sentencing court properly considered the
gravity and prevalence of rape, the interests of the community,
particularly
its demand for heavy sentences for child rapists, and
the appellant’s personal circumstances which, as indicated above,
it found
sufficiently weighty to warrant reduction of the prescribed
sentence of life imprisonment.
[33] As the sentencing court found, there are serious
aggravating circumstances present in the case. The appalling and
outrageous
crime committed by the appellant was worsened by the fact
that his young victim is a close blood relative whom he had a duty to

protect. In addition to the trauma which a rape victim necessarily
suffers from the brutal invasion, the young girl was burdened
with a
fear of reporting the incident because of their relationship. She was
a virgin and he robbed her of her innocence and the
wonder and joy of
experiencing womanhood when she was ready. His utterances that he
had been waiting for the complainant to grow
up show clearly that the
offence was not impulsive. He obviously planned to rape the
complainant when the opportunity, which he
craftily created by
sending the other child away, arose.
[34] Regrettably, as often happens in these cases, no
evidence of the true extent of the mental and psychological harm and
scarring
sustained by the complainant was led, bar the district
surgeon’s diagnosis of ‘very mild depression’ shortly after the
rape
and her own testimony of her disturbed emotional state before
she confided in D.. Such evidence is highly relevant for the
sentencing
process and cannot simply be assumed by a sentencing
court. I say this mindful that in the case of an emotionally
resilient victim
who, for some or the other reason, has not been
devastated by being raped, that fact should not detract from the
seriousness of
the offence. It is nonetheless undoubted in this case
that the complainant was seriously traumatised by the sexual assault.
[35] Against these aggravating factors, the sentencing
court weighed the appellant’s personal circumstances – that he
was a
first offender at the mature age of 37 years and had little
education; that he was married and had a young child; that he was in

steady employment and had been in custody for seven months before his
sentence. The sentencing court found in his favour that the

complainant did not seem to have suffered serious physical injuries
from the assault and that the violence involved in the commission
of
the rape was no more than that inherent in the crime of rape.
[36] I am not
persuaded that the sentencing court misdirected itself in any
significant respect. Bearing in mind that the Legislature
has
ordained life imprisonment as the sentence that should ordinarily and
in the absence of weighty justification be imposed for
the offence
committed by the appellant and the courts’ obligation to respect
and not pay mere lip service to that view,
14
it hardly seems to me a sentence of 18 years’ imprisonment is
disproportionate in the circumstances of this case. Any sentence
that
I might have imposed had I been in the sentencing court’s position
is, in my view, not sufficiently disparate from the sentence
imposed
by the high court to warrant interference on appeal.
The
appeal against sentence must, therefore, fail.
[37] For all these reasons, the appeal against
conviction and sentence is dismissed.
_______________________
MML MAYA
JUDGE OF APPEAL
LEWIS JA (concurring in part in this judgment)
[38] I have read the judgments of my colleagues Mpati, Brand and
Maya. I agree with Maya JA that the appeal against conviction
should
be dismissed for the reasons that she has given. However, I consider
that Mpati P’s view on sentence must be followed.
A sentence of 18
years’ imprisonment would, for the reasons that the President
gives, be disproportionate to the crime committed,
and therefore
unjust. I would impose a sentence of 12 years’ imprisonment.
________________
C H LEWIS
JUDGE OF APPEAL
MPATI P (dissenting )
[39] I have had the privilege of reading the judgements of my
colleagues Brand and Maya. I agree with Brand JA that the appeal

should succeed and that the appellant’s conviction and sentence
should be set aside. Brand JA however agrees with Maya JA that
in
the event of the appeal against conviction being dismissed this court
would not be entitled to interfere with the sentence of
18 years’
imprisonment imposed by Gura J. I disagree. In my view the
sentencing court omitted to consider at least two important
aspects,
which, to my mind, should have served as a basis for ameliorating the
sentence imposed. As things presently stand, the
sentence is, in my
view, disproportionate to the offence.
[40] I must, from the outset, associate myself
with the views expressed by Nugent JA in
Bongani
Phillip Vilakazi
v
The State
15
that rape ‘is a repulsive crime’, ‘an invasion of the most
private and intimate zone of a woman and strikes at the core of
her
personhood and dignity’.
16
As such, persons who make themselves guilty of it must be punished
accordingly. Courts are therefore expected to give effect
to the
legislative intent as expressed in the minimum sentencing provisions
of the Criminal Law Amendment Act 105 of 1997 (the
Act) and should
not proceed as if it was ‘business as usual’.
17
[41] In the present matter I must, for purposes of
this judgment, accept the factual findings of my colleague Maya, hers
being the
judgment of the majority, except for one aspect in her
summation of the complainant’s testimony, which is in my view
incorrect.
I deal with it below (para 4). Although the complainant
testified before the trial court that she was fifteen years old (at
the
time of the trial) she was in fact sixteen. She was born,
according to her own evidence, on 19 December 1987.
18
But whether the difference of one year would have had any impact in
the sentencing court’s assessment of an appropriate sentence
is
difficult to tell. I do think, though, that it was something to be
taken into consideration. In his judgment on sentence Gura
J
consistently referred to the complainant as a 14 year old. At one
point he says the following:
‘
Law abiding citizens, the community at large, expects
protection from Courts against rapists. Especially where victims of
rape
are young children as complainant in this case, a 14 year old.’
An important factor, however, is that the
complainant was under the age of 16 years when she was violated. In
such a case, s 51(1)
of the Act ordains a sentence of life
imprisonment unless there are substantial and compelling
circumstances which would justify
the imposition of a sentence less
than life imprisonment.
19
[42] That there were substantial and compelling circumstances
justifying the imposition of a sentence which is less than the life

imprisonment ordained by the Legislature in this case is not in
issue. And I agree with my colleague Maya that the misdirection

referred to by her (para 30) is not as material as would by itself
warrant an interference with the sentencing court’s exercise
of its
discretion. I also have no quarrel with the aggravating features as
set out by her (para 33). But there is an aspect which
my colleague
mentions earlier in her judgment with which I do not entirely agree.
In setting out the complainant’s evidence
she says (para 3):
‘
Holding her down on her back, he (appellant)
undressed and raped her. He would not stop despite her screams . . .
and only withdrew
from her when she threatened to report him to her
mother.’
The complainant did not testify that the appellant ‘would not stop
despite her screams’. Her evidence was that after he had
undressed
her around her private parts the appellant ‘then started to rape’
her. When asked why she said the appellant raped
her she said ‘[h]e
took his penis and inserted it inside my vagina . . . and I screamed
and cried . . .’. She then testified
that she told him that she
was going to tell her mother, whereafter ‘he then alighted from me’
and said he was sorry.
[43] It is not clear from the complainant’s
testimony whether she threatened to tell her mother immediately after
the appellant
had penetrated her or whether this was after some time
thereafter. As was the case in
Vilakazi
20
the evidence in this case was led in a casual manner with the result
that very important aspects were left unexplained. The
cross-examination
of witnesses was no exception. But as the evidence
stands, it is susceptible to an interpretation that favours the
appellant,
which is that he withdrew from the complainant when she
threatened to report him to her mother, which may have been
immediately
after he had penetrated her. This, to my mind, is a
factor to be considered in the overall assessment of an appropriate
sentence.
The appellant did not continue when she screamed and
threatened to report him to her mother. This the sentencing court
overlooked.
[44] A second and perhaps more important factor which the sentencing
court overlooked is the following: During his testimony the

complainant’s father was asked what made him conclude that the
appellant be fined 17 cattle and how he had arrived at that figure.

His answer is recorded thus:
‘
Because of the complainant saying he is a relative
and I was not supposed to cause him to be in prison your worship.’
It is clear from this that the complainant,
despite the trauma and all other unpleasant and humiliating
experiences a rape victim
has to go through, she did not wish the
appellant to be visited with imprisonment. This attitude on the part
of the complainant,
taken together with what I have said in para 5,
the fact that she did not sustain any serious physical injuries and
the fact that
the appellant, at 37 years of age, is a first offender,
lead me to conclude that the sentence of 18 years’ imprisonment
imposed
by Gura J is disproportionate to the offence. It is also
important to remember that but for the fact that the complainant was
a mere three months (in fact less that three months) away from her
16
th
birthday, the appellant, being a first offender, would have faced the
minimum sentence of 10 years’ imprisonment.
[45] Taking all these factors into consideration,
I am of the view that a sentence of 12 years’ imprisonment would
have been appropriate
in the circumstances. I would accordingly have
allowed the appeal on sentence.
___________
L MPATI
PRESIDENT
BRAND JA (dissenting)
[46] I have had the benefit of reading the judgment of
my colleague, Maya JA, ('the main judgment'), but I regret that I
cannot
agree with her approach to the evidence or with her
conclusions that the appeal against conviction should fail. My
evaluation of
the evidence leaves me with a lingering sense of
disquiet as to the appellant's guilt and it is this sense of disquiet
– technically
described as reasonable doubt – which compels me to
disagree.
[47] In evaluating the evidence a general difficulty I
experienced was that the case had been so badly presented on both
sides that
in some instances it is virtually impossible to determine
what the witness was trying to say. Moreover, on occasion, there
appears
to have been some lack of communication between the witness
and the interpreter. I do not say that to cast any aspersions. What
I
am saying is that because I sometimes do not understand what the
witness said, my hesitancy to convict is enhanced.
[48] Central to the judgment of my colleague Maya
appears to be her finding that the appellant admitted the rape at the
family meeting
which was held on 4 October 2003. This finding clearly
rests on the testimony of the complainant's father, Da.. As is
pointed out
in the main judgment (para 17) the complainant's brother,
D., expressly stated that he was not present when the appellant was
supposed
to have made the admission. Nor did the complainant herself
give any evidence to this effect. Da. is therefore the only witness

who gave evidence supporting the admission.
[49] Now it goes without saying that an admission by the
appellant would lend vital support to the State case. My problem is
that
the admission is denied by the appellant and, as I see it, not
borne out by the evidence of Da.. It is true that according to
David's
original version under examination in chief, the appellant
initially denied that he had raped the complainant, but then admitted

that he had done so. In cross-examination, however, he qualified his
evidence as follows:
'And at no stage did the accused admit his guilt? –
The time when he admitted or the stage when he admitted the guilt was
when
he signed that document your worship, that is when he admitted
for the first time.
That is the first time? – That is when he had agreed
or rather when he had admitted the guilt and we were signing when he
had
just admitted the guilt your worship.'
[50] This leaves me with the distinct impression that
Da. was not relying on an express admission, but an admission implied
by the
conduct of the appellant in signing the document in which he
undertook to pay seventeen cattle. On the face of it, the inference

is quite understandable. The obvious implication of the undertaking
by itself and without more would indeed be that the appellant

admitted his guilt. But there is more. The appellant's evidence,
which cannot really be controverted and which is not inherently

improbable, is that it was his wife who suggested that he should pay
the cattle, because, so she said, even if he did not commit
the rape,
the possibility of a conviction could not be excluded. The notion
that the undertaking was inspired by the appellant's
wife is
supported to an extent by the following evidence of D.:
'Yes, how many cattle [was suggested]? – Seventeen
your worship.
What was the accused's response to this? – He did not
say anything your worship I only remember his wife replying that it
was
OK.'
Later on he said:
'And it was then agreed that the accused should pay 17 head of
cattle? – It was . . . his wife that agreed to that your worship.

His wife your worship.
'
[51] What is more, according to the appellant, his
undertaking to pay the cattle was then expressly made subject to the
condition
that the fact of rape be borne out by a medical certificate
following upon a medical examination of the complainant. The
suspensive
condition to the undertaking, as it were, of a medical
examination bearing out that the complainant was indeed raped, is
specifically
confirmed by the evidence of Steve. In the main judgment
(para 20) my colleague Maya appears to reject this part of Steve's
evidence
out of hand (see also para 17). I can see no possible basis
for doing so. During the course of the State case it was intimated
that Steve would testify on behalf of the State. He appears to have
played the leading role at the meeting. No reason is suggested
why he
would perjure himself. In fact, he was not even cross-examined by the
prosecutor at all. It is true, as my colleague Maya
explains (in
para 9) that the prosecutor may have been influenced by the
clear misdirection on the part of the trial magistrate
that his
evidence was not relevant. But this misdirection cannot possibly be
held against Steve. Nor can it be held against the
appellant that his
witness was interfered with by the court while giving testimony on an
aspect of vital importance. It follows
that in my view, Steve's
evidence must be accepted as a beacon on which we can take our
bearing.
[52] To the extent that Steve's evidence was allowed on
this subject, he seems to suggest that the inconclusive nature of the
medical
certificate which was eventually obtained was the reason why
the seventeen cattle were not delivered, which in turn led to the
matter being reported to the police. This is supported by the
evidence that as a fact, the matter was only reported to the police

after the inconclusive medical report had been obtained. David's
explanation in this regard that he required an undertaking by
the
appellant solely as proof of rape, is difficult to accept.
[53] The suggestion in the main judgment (paras 20 and
21) that the condition of a medical certificate was merely an
afterthought
was never made in cross-examination to either the
appellant or Steve. Nor is it based on any factual foundation laid at
the trial.
And as Cloete JA pointed out in
S v
Heslop
2007 (4) SA 38
(SCA) para 22:
'It goes without saying that it is a requirement of the
fair trial guaranteed by s 35(3) of the Constitution . . . that
if
a court intends drawing an adverse inference against an accused,
the facts upon which this inference is based must be properly
ventilated during the trial before the inference can be drawn.'
[54] Once it is accepted that the appellant's
undertaking was made subject to the stated condition, as in my view
it must, certain
consequences seem to follow. One of these is that
the inference of an implied admission, which my colleague Maya draws
from the
undertaking (para 19), would no longer be valid. The answer
to the rhetorical question she raises as to why an innocent man,
apparently
of humble means, would bind himself to pay what to him
must be a fortune for a crime he did not commit, could very well be
this:
he believed, as he said, that he would not have to pay.
[55] This immediately leads to the further consequence
derived from the condition of a medical examination, namely, that the
appellant
must have thought, as he said, that the outcome of the
medical examination would be in his favour. And that he therefore
thought,
as he said, that the complainant was not raped. To this
inference, which appears to me both inevitable and destructive of the
State's
case, I find no answer in the main judgment.
[56] As to the complainant's delay in reporting the
alleged rape and the reference by my colleague Maya (para 23) to the
extensive
research done on the reaction of rape victims in general, I
am mindful of the caution sounded by Nugent JA in
S
v M
2006 (1) SACR 135
(SCA) para 278 about
the 'imprinting of behavioural stereotypes or conceptual models' upon
the evidence in a particular case. As
I understand it, it means, in
short, that we must be careful not to replace old stereotypes with
new ones. I respectfully agree.
Nonetheless, I share the view of my
colleague Maya that on the facts of this case, the apparent lack of
an immediate response on
the part of the complainant would by no
means justify the inference that she had not been raped. What I do
say, however, is that
evidence of distress or emotional agitation on
the part of the complainant, immediately after the event, could
perhaps have served
to tip the scales in favour of the State (see eg
S v Hammond
2004 (2)
SACR 303
(SCA) para 22. Absent any the evidence of this kind, the
position is thus no different from the role played by the medical
evidence
in this case (for which see para 25 of the main judgment).
It is neutral. It does not support either version. There is no
objective
fact to tip the scales in favour of the complainant's
version.
[57] My colleague Maya finds support for the
complainant's version in the testimony of D. and Da. (para 16 and
17). For purposes
of my evaluation, I accept the evidence of D.
without qualifications. But as I see it, there is very little
difference of any consequence
between his version and that of the
appellant. For that matter, it may therefore just as well be said
that he corroborated the
appellant's version. The same essentially
holds true of Da., save for the dispute between him and the appellant
as to whether the
undertaking by the latter was subject to the
condition of a medical certificate or not. On this aspect the
appellant is supported,
as I have said, by the evidence of Steve,
which we have to accept. In this light, I find no foundation for the
proposition in the
main judgment (para 17) that it is 'utterly
improbable that they [D. and Da.] would have gone to such lengths to
incriminate the
appellant'. In short, I do not believe they went to
any lengths at all.
[58] I have the same difficulty with my colleague Maya's
more general statement in the same vein (para 27) that:
'In so far as the events after the rape were concerned,
she [the complainant] was corroborated by Da., D. and indeed the
defence
witnesses.'
As is pointed out earlier in the main
judgment (para 2) the only major point of divergence in the versions
of the complainant and
the appellant relates to the rape itself which
the appellant denied. The complainant's version as to what happened
after the event
was not in dispute. But how can one refer to
'corroboration' with regard to that which is common cause? As was
said in
S v Gentle
2005 (1) SACR 420
(SCA) para 18:
'[B]y corroboration is meant other evidence which
supports the evidence of the complainant . . .
on
issues in dispute
. . . [T]he fact that
the complainant's evidence accords with the evidence of other State
witnesses on issues not in dispute does
not provide corroboration.'
[59] Moreover, and more significantly, there is nothing
in the complainant's own version – as 'corroborated' by the other
evidence
– as to what happened after the event which supports her
allegation that she was raped. And that underscores my ultimate
problem
in this case, namely, that there is nothing in the objective
facts nor in the evidence of other witnesses – apart from the
complainant
– which corroborates her version in so far as it is in
dispute.
[60] Another consideration in favour of the State's case
referred to by my colleague Maya (para 15) relates to the absence of
any
apparent motive on the part of the complainant to implicate an
innocent close relative. In my view this is self-evidently a
consideration
against the acceptance of the appellant's version.
Equally self-evident, however, is the fact that this consideration on
its own
cannot justify a conviction. There is no reverse onus, as it
were, on the accused in a rape case to show cause why he would be
falsely accused.
[61] Finally, my colleague Maya finds support for the
State case in what she regards as improbabilities in the appellant's
version
as to what took place at his home on that day (para 22).
Though I am not convinced that all these suggested improbabilities
rightfully
qualify as such, I do not find it necessary to dwell on
each of them in detail. Suffice it, in my view, to say that even if
all
these were to be accepted as improbabilities, they do not even
come close to the standard required for the rejection of an accused's

version in a criminal case, namely, that it is so improbable that it
cannot reasonably possibly be true.
[62] These are essentially the reasons why I cannot
support the conclusion arrived at by my colleague Maya that the
appeal against
the conviction should fail. Lest there be any
misunderstanding, let me make myself clear. I believe that our courts
are duty-bound
to do everything in their power to protect the
vulnerable sections of the community who fall prey to sexually
inappropriate behaviour.
I therefore share the view of those who
believe that rapists, and particularly rapists of young children,
should be punished severely.
But this does not mean that we can
disregard or diminish the time honoured safeguards of our criminal
law that are aimed at protecting
the rights of an accused person.
This must be so, for the mere thought of sending an innocent man to
prison fills one with trepidation.
[63] As to the appeal against sentence, I agree with my
colleague Maya that if the conviction of the appellant were to stand,
this
court would not be entitled to interfere with the sentence of
eighteen years' imprisonment imposed by the trial court.
[64] It follows that in my view the appeal should be
upheld and that the appellant's conviction and sentence should be set
aside.
_________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For Appellant: D J Combrink
Instructed by: Du Toit Attorneys, Mmabatho
Lovius Block Attorneys, Bloemfontein
For Respondent: G S Maema
Instructed by:
The DPP, Mmabatho
The DPP, Bloemfontein
1
Section 52 (1) provides:
‘
If
a regional court, following on –
a
plea of guilty; or
a
plea of not guilty,
has
convicted an accused of an offence referred to in –
Part
1 of Schedule 2; or
Part
II, III or IV of Schedule 2 and the court is of the opinion that
the offence concerned merits punishment in excess of the

jurisdiction of a regional court in terms of section 51 (2),
the
court shall stop the proceedings and commit the accused for sentence
as contemplated in section 51 (1) or (2), as the case
may be, by a
High Court having jurisdiction.’
Rape
of a girl under the age of 16 years is one of the offences listed in
Part I of Schedule 2 of the Act for which a sentence
of life
imprisonment is competent.
2
Section 51 provides:
‘
(1)
Notwithstanding any other law but subject to subsections (3) and
(6), a High Court shall –
if
it has convicted a person of an offence referred to in Part I of
Schedule 2; or
if
the matter has been referred to it under section 52 (1) for
sentence after the person concerned has been convicted of an

offence referred to in Part I of Schedule 2, sentence the person to
imprisonment for life.
…
(a) If any court referred to in subsection (1) or (2)
is satisfied that substantial and compelling circumstances exist
which
justify the imposition of a lesser sentence than the
sentence prescribed in those subsections, it shall enter those
circumstances
on the record of the proceedings and may thereupon
impose such lesser sentence. ’
3
Section 217(1) of the Criminal Procedure Act 51 of
1977 (the Act) provides:
Evidence
of any confession made by any person in relation to the commission
of any offence shall, if such confession is proved
to have been
freely and voluntarily made by such person in his sound and sober
senses and without having been unduly influenced
thereto, be
admissible in evidence against such person at criminal proceedings
relating to such offence: Provided –
(a)
that a confession made to a peace officer, other than a magistrate
or justice, or, in the case of a peace officer referred
to in
section 334, a confession made to such peace officer which relates
to an offence with reference to which such peace officer
is
authorised to exercise any power conferred upon him under that
section, shall not be admissible in evidence unless confirmed
and
reduced to writing in the presence of a magistrate or justice; and
(b)
that where the confession is made to a magistrate and reduced to
writing by him, or is confirmed and reduced to writing in
the
presence of a magistrate, the confession shall, upon the mere
production thereof at the proceedings in question-
(i)
be admissible in evidence against such person ….’
4
R v Dhlumayo
1948 (2) SA 677
(A) at 698;
Louwrens v Oldwage
2006 (2) SA 161
(SCA)
para 14;
Union Spinning Mills (Pty) Ltd
v Paltex Dye House (Pty) Ltd
2002 (4)
SA 408
(SCA) para 24.
5
2003 (1) SACR 134
(SCA) para 15.
6
R v Mlambo
1957 (4) SA 727
(A) at 738A;
S v Phallo
1999 (2) SACR 558
(SCA) paras 10 and
11.
7
S v Shackell
2001 (2) SACR 185
(SCA) para 30;
S v V
2000 (1) SACR 453
(SCA) para 3.
8
In terms of s
219A of the Act
‘[e]vidence of any admission made extra-judicially by any person
in relation to the commission of an offence
shall, if such admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that
person, be admissible in evidence
against him at criminal proceedings relating to that offence….’
9
S Bollen et al ‘
Violence
Against Women in Metropolitan South Africa: A study on impact and
service delivery
’ Institute for
Security Studies (1999) Monograph No 41.
10
S Ullman & R A Knight ‘Women’s Resistance
Strategies to Different Rapist Types’ (1995) 22 No 3
Criminal
Justice & Behaviour
263, 280; S
Katz & M A Mazur
Understanding the
Rape Victim: A Synthesis of Research Findings
(1979)
172, 173. M Symonds ‘Victims of Violence: Psychological effects
and after-effects’ (1975) 35 (1)
American
Journal of Psychoanalysis
19 - 726,
22.
11
T B Goodman-Brown et al ‘Why
Children Tell: A Model of Children’s Disclosure of Sexual Abuse’
Child Abuse & Neglect
27 (2003)
525-540.
12
E Krug et al ‘
Sexual Violence,
World Report on Violence and Health
’
World Health Organisation, (2002).
13
S v Malgas
2001 (1) SACR 469
(SCA) para 12.
14
S v Malgas
para
25.
15
Vilakazi v The State
(576/07)
[2008] ZASCA 87
(2 September 2008)
.
16
At para 1. See too
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
345A-B.
17
S v Malgas
2001
(1) SACR 469
SCA.
18
A birth certificate was handed in
to Gura J which seemed to prove that the complainant was 16 years
old as at the date of trial
on 9 June 2004. She was in fact 15
years 9 months when she was raped on 26 September 2003.
19
Per s 51(3).
20
Above footnote 1.