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Monoketsi v S (A893/2015) [2017] ZAGPPHC 92 (16 February 2017)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Identification evidence — Appellant convicted of rape and robbery — Appellant pleaded guilty to robbery but not to rape — Complainant identified appellant as part of group that attacked and raped her — Appellant's denial of involvement in rape found implausible by trial court — Appeal against conviction dismissed as evidence sufficient to support identification and conviction.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a criminal appeal in the High Court of South Africa (Gauteng Division, Pretoria) against both conviction and sentence imposed by the regional court. The appellant was Thabo Godfrey Monoketsi, and the respondent was the State.


The matter originated in the Bloemhof Regional Court, where the appellant faced two charges, namely robbery with aggravating circumstances and rape. The robbery charge was framed with reference to the statutory definition of aggravating circumstances in section 1 of the Criminal Procedure Act 51 of 1977, and the minimum-sentencing framework in section 51(2) of the Criminal Law Amendment Act 105 of 1997. The rape charge was brought under section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, and treated as falling within section 51 read with Part I of Schedule 2 to Act 105 of 1997 (life imprisonment absent substantial and compelling circumstances).


The appellant pleaded guilty to robbery with aggravating circumstances and not guilty to rape. He was ultimately convicted and sentenced on 6 October 2011 to five years’ imprisonment for robbery and life imprisonment for rape. The present appeal challenged both convictions and sentences, with the appeal court identifying the central issue as turning on identification evidence and the correctness of the regional court’s acceptance of the complainant’s version over the appellant’s denial.


The general subject-matter of the dispute concerned whether the State had proved beyond reasonable doubt that the appellant was one of the perpetrators of a gang rape following an armed robbery, and whether the imposed sentences (particularly life imprisonment) were justified under the applicable minimum sentencing regime.


2. Material Facts


The court treated as material the background that the complainant had been at Barristers Tavern near Tswelelang during the night of 31 August 2009 and left in the early hours. After being accompanied part of the way home by a person named Ronny, she continued alone.


The complainant’s account, accepted by the trial court and relied upon in the appeal judgment, was that she was then accosted by a group of four unknown males. One grabbed her while another wielded a knife, and she was robbed of her money, cell phone, and necklace. The complainant further testified that she was dragged to a dark house in a nearby stadium area, threatened with death if she screamed, stripped naked, and raped repeatedly by the group. She described that the men took turns and that the rape occurred interchangeably. After the incident she returned home and reported it; the police were contacted; and the next morning she recovered her earrings at the scene.


The investigating officer, Constable Phakedi, testified that an arrest of a suspect (accused 1, later referred to as Paballo Maruping) led to further arrests of other accused persons, including the appellant (accused 3 at trial). The appellant was found to be in possession of the complainant’s necklace, and the necklace was handed over at the appellant’s house. Another accused (accused 4) was found in possession of the complainant’s mobile phone, which was handed over and later identified by the complainant. The court recorded that no identity parade was held.


The appellant’s version, also relied upon by the appeal court insofar as it constituted admissions and denials relevant to the issues, was that he was in the company of three other males when he approached the complainant, produced a knife, and robbed her, after which he left and had no knowledge of what occurred thereafter. He denied any involvement in dragging or raping the complainant.


The trial court found certain facts to be common cause, namely that the complainant and the four males were at Barristers Tavern before the incident, that she was accosted by four men (which the appellant corroborated), and that the appellant robbed the complainant of her belongings at knifepoint. The disputed facts, central to the appeal, concerned whether the appellant was among those who dragged and raped the complainant and whether the complainant’s identification of him as a perpetrator was reliable.


3. Legal Issues


The central legal question was whether the State proved beyond reasonable doubt that the appellant was one of the persons who committed the rape, in circumstances where the appellant admitted participation in the robbery but denied participation in the rape, and where the appeal was said to “turn on the identification evidence”.


This dispute primarily involved the application of legal principles to facts, including the treatment of identification evidence and the evaluation of a single witness’s testimony in criminal proceedings. It also involved factual assessments, including whether the complainant’s version was to be accepted as truthful and reliable and whether the appellant’s denial was reasonably possibly true.


A further issue concerned sentence, namely whether the regional court correctly applied the minimum sentencing framework (life imprisonment for the rape as charged), and whether there were substantial and compelling circumstances justifying a lesser sentence. This involved a discretionary and evaluative judgment based on aggravating and mitigating factors, bounded by the statutory sentencing regime.


4. Court’s Reasoning


On conviction, the appeal court approached the matter on the basis that identification evidence must be treated with caution. It applied the cautionary approach described in S v Mthethwa 1972 (3) SA 766 (A), emphasising that honesty is insufficient and that reliability must be tested against factors such as opportunity for observation, lighting and proximity, prior knowledge, corroboration, and the totality of evidence and probabilities. The court also recorded the appellant’s reliance on the approach to single-witness evidence associated with S v Sauls 1981 (3) SA 172 (A).


The appeal court accepted that the regional court’s task was to decide between two versions—those of the complainant and the appellant—bearing in mind that the State carries the onus and that conviction must rest on the evidence as a whole. The appeal court summarised the regional court’s conclusion that the complainant was honest and that her identification evidence was reliable, and that the appellant’s version was rejected as false.


In applying these principles, the appeal court relied on connecting features which, in its assessment, rendered the appellant’s denial untenable when viewed in context. The appellant placed himself at the scene and admitted he approached the complainant as part of a group, produced a knife, threatened her, and robbed her. The court further noted that, on the evidence, he was the only one with a knife, and it treated the complainant’s description of the knife-wielder during the attack as significant in assessing identity. The court also treated as corroborative the fact that the appellant handed over the complainant’s necklace to the investigating officer.


The appeal court reasoned that if the appellant’s version were accepted, it would entail that a separate group of four unknown males emerged elsewhere and raped the complainant, despite the close connection in time and place between the robbery and rape described by the complainant and the admitted robbery by the appellant. The court described these incidents as so closely connected that the appellant’s version became “nonsensical”, and concluded that his denial could not be reasonably possibly true. On that basis, it found there was no justification to interfere with the rape conviction and dismissed the appeal against conviction.


The appeal court also commented critically on shortcomings in the police investigation, including the absence of an identity parade and incomplete DNA-related follow-up despite postponements. It described the investigating officer as having failed “dismally” at basic investigative tasks and underscored the importance of diligence in rape investigations. However, these criticisms did not translate into relief for the appellant, as the court remained satisfied on the totality of the evidence that the convictions were sound.


On sentence, the court reasoned within the framework that life imprisonment for rape (as charged under the relevant part of the minimum sentencing legislation) is compulsory unless substantial and compelling circumstances exist. It considered the mitigating evidence led by the appellant, including that he was 21 years old, had no children, depended on his parents, had schooling up to Grade 9, and was under the influence of liquor. It weighed these personal circumstances against the seriousness of the offences and the manner of their commission, including that the complainant was attacked by a group, threatened with a knife, stripped, and raped repeatedly.


In discussing the seriousness of rape and the interests of the community, the court referred to S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA) and the constitutional importance of dignity, privacy, and bodily integrity, as well as the societal harm caused by sexual violence. The court rejected the submission that life imprisonment was “shockingly harsh” and treated rehabilitation as subordinate to deterrence and retribution in light of the premeditated group attack and the appellant’s continued denial of involvement in the rape. It found no misdirection by the regional court and agreed that no substantial and compelling circumstances existed.


5. Outcome and Relief


The court dismissed the appeal against both conviction and sentence.


The convictions for rape and robbery with aggravating circumstances were confirmed, and the sentences of life imprisonment (rape) and five years’ imprisonment (robbery with aggravating circumstances) were left undisturbed.


No separate costs order was made, consistent with criminal appeal practice as reflected in the judgment’s order dismissing the appeal.


Cases Cited


S v Sauls 1981 (3) SA 172 (A)


S v Mthethwa 1972 (3) SA 766 (A)


S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 1 (definition of aggravating circumstances) and section 174


Criminal Law Amendment Act 105 of 1997, section 51(2) and section 51 read with Part I and Part II of Schedule 2


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that, applying the cautionary approach to identification evidence and considering the totality of the evidence, the complainant’s identification of the appellant as one of the perpetrators of the rape was reliable and the appellant’s denial was not reasonably possibly true. The appeal court accepted that the robbery and rape were closely connected in time and place, that the appellant placed himself at the scene, admitted robbing the complainant at knifepoint, and was linked to the complainant’s property, and it found no basis to disturb the rape conviction.


The court further held that the sentence of life imprisonment for rape was properly imposed under the minimum sentencing regime because no substantial and compelling circumstances were present. The appellant’s personal circumstances were found to be outweighed by the aggravating features of the offences and the manner of commission, and no misdirection by the regional court was shown. The appeal against sentence accordingly failed.


LEGAL PRINCIPLES


The judgment applied the principle that identification evidence must be treated with caution and evaluated for reliability, not merely sincerity, with the assessment depending on multiple interrelated factors and the totality of evidence and probabilities, as articulated in S v Mthethwa 1972 (3) SA 766 (A).


It applied the general criminal-law principle that the State bears the onus to prove guilt beyond reasonable doubt, and that where an accused’s version is reasonably possibly true, the accused is entitled to the benefit of the doubt. The court’s evaluative task was framed as a choice between competing versions assessed on the evidence as a whole, rather than on isolated features.


On sentence, the judgment applied the statutory principle that where the minimum sentencing provisions prescribe life imprisonment for rape as charged, the court must impose that sentence unless substantial and compelling circumstances justify a lesser sentence. In evaluating whether such circumstances exist, the court treated personal circumstances as potentially relevant but capable of being outweighed by aggravating features and the seriousness of the offence.


In addressing sentencing aims, the judgment applied the principle that serious sexual offences implicate constitutional values of dignity and bodily integrity and may justify emphasis on deterrence and retribution, consistent with the approach in S v Chapman [1997] ZASCA 45; 1997 (3) SA 341 (SCA).

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[2017] ZAGPPHC 92
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Monoketsi v S (A893/2015) [2017] ZAGPPHC 92 (16 February 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NO: A893/ 2015
16/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
THABO GODFREY MONOKETSI
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
DELIVERED ON 16 FEBRUARY 2017
VILAKAZL
AJ:
[1]
On 3 August 2010, appellant appeared in Bloemhof Regional Court,
facing 2 charges, one of robbery with aggravating circumstances
as
defined in section 1 of the Criminal Procedure Act 51 of 1977 (the
CPA) (read with section 51(2) of the Criminal law Amendment
Act 105
of 1997 (the "Act") and the other rape in terms of section
3 of the Sexual Offences Act 32 of 2007.
[2]
The charge of rape was subject to the provisions of section 51 read
with Part 1 of Schedule II of the "Act", in that
the
accused did unlawfully and intentionally commit an act of sexual
penetration with the complainant and the complainant was raped
by
more than one person and/or more than once. This means that upon
conviction he faces the prospect of life imprisonment unless

substantial and compelling circumstances are found to have existed. A
charge of robbery with aggravating circumstances was also
subject to
the provisions of section 51(2) read with Part 2 of Schedule II of
the "Act" which means that upon conviction
he faces the
prospect of being sentenced to 15 year imprisonment absent to finding
substantial and compelling circumstances.
[3]
The appellant tendered a plea of guilty to the charge of robbery with
aggravating circumstances, but pleaded not guilty in respect
of the
rape.
[4]
The appeal before us is against both conviction and sentence. The
central issue in this appeal turns on the identification evidence.
[5] The brief background
regarding this matter is that the appellant was accused 3 in the main
trial. He was convicted and sentenced
on 6 October 201 l to life
imprisonment for a charge of rape and 5 years imprisonment on a
charge of robbery with aggravating circumstances.
[6]
It is necessary at this stage to set out the salient facts: The
appellant, together with his erst-while 3 co­accused were
charged
with rape and robbery. At the trial court the appellant was accused 3
and his co-accused were accused 2 and 4 respectively.
Accused 2
pleaded not guilty to all charges. Both accused 2 and 3 pleaded
guilty to a charge of robbery and not guil1y of rape.
In essence they
put all the elements of this charge against them in issue. The
appellant denied that he raped the complainant.
He admitted that he
was in the company of the three co-accused when he approached the
complainant. He further admitted that he
had a knife for the purpose
of threatening the complainant to hand over her personal belongings.
After robbing the complainant
of her personal belongings he left. He
denied dragging the complainant to the scene of the rape.
[7]
I now turn to the merits of the appeal. The charges against the
appellant's co - accused 1 were
withdrawn
by the State. As far as accused 2 is concerned, he was acquitted on
all of the charges and discharged in terms of section
174 at the
conclusion of the States' case. The appellant admitted that she
robbed the complainant of her pendant.
[8]
The complainant gave evidence in relation to both charges. She
testified that on 31 August 2009 she was at Barristers tavern
near
Tswelelang until the early hours of the morning when she left for
home. She requested one Ronny to accompany her home. Ronny
walked her
half way. After they went their separate ways, she was accosted by a
group of 4 (unknown) males. One of them grabbed
her, whilst the other
one wielded a knife. She pleaded with them not to harm her. Her pleas
fell on deaf ears. She was robbed of
her money, cell phone and
necklace.
[9]
They dragged her into a dark house in a nearby stadium and instructed
her not to scream. They threatened to kill her if she
screamed. They
stripped her naked and thereafter ordered her to lie on the floor.
The appellant and his three other co-accused
gang-raped her.
Thereafter one of the assailants instructed her to put her clothes
on. Her undergarment was left at the scene.
After this ordeal 2 of
the co-accused left the scene. She left this room with one of the
accused, who ran away and she also ran
home. She testified that these
four males stared at her in Barristers Tavern. She knew one of the
accused as Dikgomo's son and
knew accused 1 as Paballo. It was her
first time seeing the other accused.
[10]
She sought refuge at home and told her cousin what had happened. Her
cousin phoned the police and the next morning she recovered
her
earrings at the scene of the crime.
[11]
Constable Phakedi, the investigating officer testified on behalf of
the State. She stated that on 2 September 2009, she arrested
Paballo
Maruping, accused 1. This arrest led to the further arrest of accused
2, 3 and 4. She testified that accused 2 associated
himself with the
commission of the offence, however this was not admissible because no
confession was made. Appellant was found
in possession of the
necklace. The necklace of the complainant was handed over by the
appellant to her at appellant' house. Accused
4 was found in
possession of the complainant's mobile phone, which he handed over to
her and was identified by the complainant
on 16 October 2010. No
identity parade was held.
[12]
The appellant testified and denied the substance of the complainant's
evidence. In particular he denied that he was party to
dragging and
raping the complainant. In cross-examination he stated that after he
robbed the complainant of her items at knifepoint,
he left and
therefore has no knowledge of what transpired after his departure.
[13]
The trial court found that the following were common cause:
a. The 4 moles and
complainant, prior to this incident were in Barristers Tavern.
b. The complainant was
accosted by 4 men and this was corroborated by appellant
c. The appellant robbed
the complainant of her belongings at knifepoint.
[14]
The trial court evaluated the evidence of the complainant and the
defence and concluded that the complainant's evidence was
truthful.
It found that four men dragged the complainant to the nearby stadium
and all raped her interchangeably. Against that,
it found the
appellant had planned to commit this crime when they starred at her
while she was at the tavern. In execution of the
plan they followed
the complainant, robbed and raped her. The trial court found it
improbable that the appellant's interest was
purely to rob the
complainant of her belongings. The trial court concluded that the
appellant associated himself with accused l
and consequently should
be held accountable "to what accused l did to the complainant."
[15]
Counsel for the appellant submitted that the State had failed to
prove that the appellant raped the complainant. Secondly,
the
appellant submitted that the trial court ought to have treated the
evidence of the complainant who was a single witness with
the
necessary caution. In support of this contention counsel relied on
S
v Sauls
1981 (3) SA 172
(A) at 180 E-G.
It was further
submitted on behalf of the appellant, that a J88 medical report was
not produced in support of the State's case.
[16]
The central issue in dispute is the identity of the people who raped
the complainant, whether the trial court was wrong in
holding that
there was proof beyond reasonable doubt that the appellant was one of
the persons who committed rape.
[17]
It is trite that evidence of identification is approached by the
courts with some caution. The cautionary approach was enunciated,
S
v Mthethwa 1972(3) SA 766 (AJ"
at
768
C"
It is not enough for the identifying witness to be honest; the
reliability of his observation must also be tested. This depends on

various factors, such as lighting, visibility, and eyesight, the
proximity of the witness, his opportunity for observation, both
as to
time and situation, the extent of his prior knowledge of the accused,
the mobility of the scene, corroboration, suggestibility:
the
accused's face, voice, build, gait, and dress, the result of the
identification parades, if any, and of course, the evidence
by or on
behalf of the accused. The list is not exhaustive. These factors, or
such of them as are applicable in a particular case,
are not
individually decisive, but must be weighed one against the other, in
the light of totality of the evidence and the probabilities.
"The
appellant's counsel attacked the complainant's lack of description of
her assailants, particularly the appellant, the
role he played in the
rape ordeal. He contended that the magistrate erred in convicting the
appellant on the basis that he associated
himself with the role
played by accused 1. He submitted that the version of the appellant
ought to have been accepted as reasonably
possibly true.
[18] The appellant's
version is that he was in the company of 3 males when he approached
the complainant in the street, threatened
her with a knife and robbed
her of her belongings and then left. He has no knowledge of the rape
and denies it.
[19]
In his judgment, the magistrate stated that although the State has a
burden to prove its case beyond a reasonable doubt, he
was of the
view that based on the evidence as a whole, the complainant was
honest and that her identification evidence was reliable.
He rejected
the version of the appellant and found it to be false.
[20]
In criminal trials the onus rests on the State to prove the accused's
guilt beyond a reasonable doubt. If at the end of the
trial the court
is left in doubt about the guilt of the accused, the latter is
entitled to the benefit of doubt and to his discharge.
The conviction
should be based on the evidence as a whole and should not be based on
a portion of evidence tendered.
[21]
It is on the basis of these principles that the trial court
determined which of the two versions, that of the complainant or
that
of the appellant, is to be accepted.
[22]
In so for as opportunity for observation was concerned the
complainant stated that she saw the appellant at the gate of the

tavern, on the second occasion when he dragged her on the soccer
field in the stadium at knifepoint. In terms of place and time,
one
of the persons who raped her is the person who wielded a knife and is
light in complexion.
[23]
Is the appellant's version reasonably possibly true? The appellant
discloses his identity and places himself at the scene of
crime. In
his own evidence, he produced a knife and threatened the complainant
and thereafter left. He subdued her, depriving the
complainant of her
personal belongings.
[24]
Against this connecting evidence in terms of time factor, the place
and situation, the appellant was at Barrister's tavern
with his co-
accused. He was the only one that had a knife. He handed over the
necklace of the complainant to Constable Phakedi.
On a conspectus of
the evidence as a whole, it is my view that the appellant's version,
which is in essence a bare denial, cannot
be reasonably possibly
true. If I accept the appellant's version as truthful, it means, 4
unknown males emerged elsewhere, pounced
upon the complainant and
raped her. In my view, if you look at the time, place and
reasonableness of the complainant's version,
these incidents are so
closely connected, it renders the appellant's version nonsensical.
Considering the totality of the evidence.
I am satisfied that there
is no basis on which to interfere with the conviction of the
appellant for the rape of the complainant.
The appellant's
explanation that he was only interested in the complainant's personal
belongings lacks persuasion and his version
is for-fetched.
[25]
The appeal against conviction is devoid of merit and must be
dismissed.
[26]
There are several crucial aspects of the complainants evidence that
called for elucidation and which were not adequately probed.
The
investigating officer, Constable Phakedi, has indeed failed dismally
in her duties in executing the necessary basic spadework,
which her
job dictates. A few examples to demonstrate this point will suffice
for present purposes. The complainant testified that
otter the
incident the police informed her not to take a bath. She was taken by
the police to hospital and examined by a doctor.
The record indicates
no results of DNA.
[27]
Firstly, Constable Phakedi failed to follow up in securing a
statement with accused 2 who appeared in court assisted by his

guardian. She was tardy and sluggish in the manner in which she
handled the investigation. Her feeble explanation in failing to

obtain a confession from accused 2 is that the accused was
uncomfortable giving a statement in the presence of his father is
rather
odd. Secondly, no explanation was proffered regarding the
incomplete DNA results, despite numerous postponements for DNA
results.
No plausible explanation was furnished regarding her failure
to conduct an identity parade.
[28]
It is noteworthy to mention that the manner in which this
investigation was conducted underscores the need for everyone
concerned,
particularly in rape incidents of this nature to be
thorough, diligent and meticulous in the collection of evidence.
[29]
I turn to the question of sentence. The appellant was sentenced to 5
years imprisonment on the count of robbery with aggravating

circumstances, life imprisonment on the charge of rape as it found
that there were no substantial and compelling circumstances

justifying imposing a lesser sentence than life imprisonment.
[30]
In counsel's heads of argument on appeal before us on behalf of the
appellant it was contended that life imprisonment in respect
of the
count of rape is "shockingly harsh" and induces a sense of
shock, in that it over-emphasises the seriousness of
the offence, the
deterrent effect of the sentence and the interests of the society
whilst under-emphasising the mitigating circumstances
relating to the
appellant and the prospects of rehabilitation. It was further
submitted on behalf of the appellant that the trial
court erred in
imposing life imprisonment; it was argued that it is not
proportionate to the offence. Appellant's counsel submits
the
sentence on its own constitute a substantial and compelling
circumstance
[31]
These submissions by appellant calls for the analysis of the evidence
that was led in the court a quo in relation to both aggravating
and
mitigating factors. The appellant testified in mitigation of
sentence, that he was 21 years old, that he has no children, depended

on both of parents. His highest standard of education is Grade 9 and
on the day of these incidents he was under the influence of
liquor.
[32]
In respect of the seriousness of this offence, as set out in the
appellant's section 112(2) statement relating to charge of
robbery
with aggravating circumstances, the following is reflected; that at
about 01h30 on 31 August 2009, amongst a group of 3
males, they
pounced upon the complainant. One of his co accused grabbed the
complainant by the neck whilst the other one pulled
out a knife. He
robbed the complainant of her pendant and accused 4 took the
complainant's mobile phone.
[33]
In relation to the interest of the community there is no doubt in my
mind that the offence of this nature is very serious and
calls for a
proper sentence to be imposed so that it send a clear message to the
would be offenders that such crime will not be
tolerated. In
S
v
Chapman
[1997] ZASCA 45
;
1997 (3) SA 341($CA)
,
Mahomed CJ stated that "the
rights to dignity, to privacy and the integrity of every person ore
basic to the ethos of the constitution
and to any defensible
civilisation. Women in this country ore entitled to the protection of
these rights. They have a legitimate
claim to walk peacefully on the
streets, to enjoy their shopping and their entertainment, to go and
come from work, and to enjoy
the peace and tranquility of their homes
without fear, the apprehension and the insecurity which constantly
diminishes the quality
and the enjoyment of their lives."
[34] I disagree. First,
the prospects of the appellant's rehabilitation is doubtful in the
light of his steadfast denial of any
involvement in the gang rape of
the complainant. This is so, not only because it involved a
premeditated attack by a group of 4
males, the rape was committed
after the commission of the crime of robbery with aggravating
circumstances. In these circumstances
the objective of rehabilitation
must clearly play a subordinate role in favour of the objectives of
retribution and deterrence.
[35]
In the case of conviction for rape, a sentence of life imprisonment
is compulsory, unless there are substantial and compelling

circumstances justifying the imposition of a less severe sentence.
The appellant was unable to point to any misdirection by the
court a
quo when he imposed the sentence of life imprisonment.
[36]
In my view, the magistrate's finding that there was no substantial
and compelling circumstances was correct. There is nothing
on record
which drives me in the slightest to a different conclusion, simply
for the following reasons:
38.1 The appellant's
personal circumstances are overshadowed by the aggravating
circumstances,
38.2 The complainant was
dragged by a group of 4 males to the soccer stadium at knifepoint,
her life was threatened, stripped naked,
one of the assailant pressed
her on the ground, while the other one forcefully kept her legs
apart. She was raped repeatedly and
interchangeably by a group of
males. The complainant in her evidence in chief explained that her
assailants took turns in raping
her, when the one climbs off, the
next one went on top of her, whilst the appellant held her at
knifepoint.
38.3 The trial court
alluded that the crime of gang rape is prevalent in their
jurisdiction and a majority of cases emanates from
taverns. The
complainant is psychologically scarred and her dignity was invaded.
[39]
In my view, I would dismiss the appeal and confirm the conviction on
the rape count and sentences.
THE
ORDER
[40]
The appeal against conviction and sentence is dismissed.
----------------------------------
T.
D. VILAKAZI
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION
I
agree it is so ordered
---------------------------------
N.V
KHUMALO
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION
DATED
AND SIGNED AT PRETORIA ON 15 DECEMBER 2016
MATIER
HEARD: 5 DECEMBER 2016
DATE
OF JUDGMENT: 16 FEBRUARY 2017
COUNSEL
FOR APPELLANT: ATTORNEY S. MOENG (Instructed by Pretoria Justice
Centre)
COUNSEL
FOR RESPONDENT: ADVOCATE P.W. COETZER (Directorate of Public
Prosecutions)

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