About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 3
|
|
S v Molosi (46/2016) [2017] ZAFSHC 3 (16 January 2017)
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
Case
number: 46/2016
In
the matter between:
THE
STATE
and
JOHANNES
MOLITI PHEPENG MOLOSI
Accused
CORAM:
BOKWA,
AJ
HEARD
ON:
31
OCTOBER 2016
JUDGMENT
BY:
BOKWA,
AJ
DELIVERED
ON:
16
JANUARY 2017
A
INTRODUCTION:
[1] Accused, Mr Johannes
Moliti Phepeng Molosi, faces the following counts:
COUNT 1
1.1
Housebreaking
with intent to rape and rape (contravening the provisions of Section
3 read with Sections 1, 55, 57, 58, 59, 60 and
61 of Act 32 of 2007)
and further read with Section 51(1) of Act 105 of 1997.
COUNT
2
1.2
Rape
(contravening the provision of Section 3 read with
Sections 1, 57, 58, 59, 60 and 61 of Act 32 of 2007) and
further
read with Section 51 (1)
of Act 105 of 1997.
COUNT
3
1.3
Robbery.
COUNT
4
1.4
Rape
(contravening the provisions of Section 3 read with Sections 1,
57, 58, 59, 60 and61 of Act 32 of 2007) and further read
with Section
51 (1) of Act 105 of 1997, that the accused committed acts of sexual
penetrations with the complainant
Me S. A. M..
COUNT
5
1.5
Robbery.
[2]
The accused pleaded not guilty to all counts and gave a plea
explanation as contemplated in Section 115(1) of the CPA 51 of
1977
hereinafter called the Criminal Procedure Act. His plea
explanation in respect of count 1, was that the sexual intercourse
was with the consent of the complainant, L. M. R.. In respect
of count 2, his explanation was similar that the sexual intercourse
was with consent of the complainant, Me D. K.. Regarding count
3, he denied that he robbed the complainant in count 2.
On
count 4, his explanation was that the sexual intercourse on 7
th
November 2015, was with the consent of the complainant Me S. A. M..
In respect of count 5 he specifically denied the robbery
of the
complainant in count 4.
[3]
Initially Advocate L M Tshabalala represented the accused. On
the 2
nd
day of the trial his mandate was ended. Mr Nel came on record.
Advocate Hoffman appeared on behalf of the state.
[4]
The court informed the accused of the provisions of
section 51
of the
Criminal Law Amendment Act 105 of 1997
and the impact thereof, which
the accused understood.
[5]
A number of exhibits were handed in by consent and were marked in the
following order:
5.1
Exhibit “A” -
Photo plan with key photographs of the
Tourism Centre, Bloemfontein.
5.2
Exhibit “B” -
Photo plan, photographs and key plan Loch
Logan
Park.
5.3
Exhibit “C” -
Photographs and key photo plan of the
area near Tourism Centre and
KFC.
5.4
Exhibit “D” -
Photographs and key to sketch plan in
respect of count 1.
5.5
Exhibit “E” -
J88 in respect of count 2 (the rape of
D. K.).
5.6
Exhibit “F” -
J88 in respect of count 1 (the rape of
L. M. R.).
5.7
Exhibit “G” -
Affidavit of F. B. C..
5.8
Exhibit “H” -
Birth certificate of the complainant in
count 1.
5.9
Exhibit “I” -
J88 in respect of count 4 (rape
of S. A. M.).
5.10 Exhibit “J”
- Statement of S. A. M.
(complainant
in count 4)
SUMMARY
OF ORAL EVIDENCE
[6]
Godfrey
Motsamai Montoeli
was the first state witness. He was the security officer on
duty at the Tourism Centre on 7
th
December 2015. On that morning at around 5 am he came into the
area near the devils fork fence surrounding the Tourism Centre.
He heard a voice of a female person screaming. He went to
investigate and saw a male person running away as he approached.
He was unable to identify the person. He noticed a lady who was
in destress. The area is in an open space with small
shrubs.
The lady reported to him that she had been raped by the unknown man
who just ran away. Her clothes were covered
with sand, dust and
grass. He accompanied her to the Park Road Police Station where
a rape case was opened. Photo’s
no 2, 3, 4 and 5 on
point A and B of the sketch plan depicts the vicinity of where the
rape incident took place in annexure “A”.
[7]
His evidence related to count 4 and 5 (the rape and robbery of S. A.
M.).
[8]
D. K.
was the second state witness. On 2
nd
February 2014 she was walking from Brandwag to the taxi rank towards
town. She took a short cut and went through Loch Logan
Park.
She passed the Protea Hotel in Charles Street at about 07:00. An
unknown person approached her from the opposite direction.
Initially
she thought that the unknown person was a car guard. As she
entered the Loch Logan Park gardens gate, the
unknown person followed
her. They both went through the first gate. When she
opened the second gate she realized it
was locked. She turned
back and saw the accused behind her. He had a knife in his
hand. The accused uttered the
following words.
“
I
am going to show you that you are not clever. I am going to
rape you today.”
[9]
He instructed her to pull off her pants, which she did. He
raped her by penetrating her with his penis from behind.
She
was frozen with fear and only hoped to get out of that ordeal alive
which she estimated to have lasted for 5 minutes.
When the
accused penetrated her virginally, he was not wearing a condom and
proceeded to rob her R100.00 and her Blackberry phone.
She was
able to clearly identify him as his face reflected on the window of
the ticket sale office. She pleaded with him
to give back the
sim card which he obliged by throwing it on the floor and taking the
cell phone as he ran away.
[10]
She first reported the rape to a couple who were seated in a car near
Loch Logan Park. This couple took her to the police
station
where she formally reported the rape incident. She was taken to
hospital for medical examination and counselling.
The rape
incident took place at photo 1 in exhibit “B”. She
testified that she is currently studying electrical
engineering and
still feel traumatized by the incident.
[11]
Under cross examination a version was put to her that the accused had
approached her and asked for sex services to which she
replied in the
affirmative and requested R50.00 to provide such sexual favours. She
denied that version vehemently.
[12]
S.
A. M.
was the third state witness. On 7
th
December 2015, she was walking alone towards KFC near Small Street.
An unknown male person approached her and asked if he
could walk her
halfway. Suddenly the person asked her for her cell phone.
As she was busy conversing with him, the
cell phone rang. It
was in her jean pocket. A second unknown person, presumably in
the company of the accused, suddenly
emerged and grabbed the phone
from her. The accused pushed her, past the KFC in Small Street
towards the bushes. There,
he assaulted her. He pushed
her on the ground. She fell on her back. He asked her to
undress and he proceeded
to rape her.
[13]
When he was done, he searched her jeans and removed a wallet
containing R1 100.00. He took this cash. He also
took out a bank card of the complainant and gave it to two unknown
persons who also arrived there, requesting them to withdraw
money
from the account of the complainant. The complainant was forced
to give her bank pin.
[14]
The two unknown persons left for the bank. The accused
proceeded to rape the complainant for the second time. This
rape was interrupted when the two unknown male persons returned,
informing the accused that they could not get the cash out of
the
complainant’s bank. They gave her her card back. A
security guard appeared and the three assailants ran away.
She
reported the rape incident to the security guard and was taken to
Park Road Police station. She was able to identify
her
assailant because of the long time she spent with him throughout her
ordeal.
[15]
Under cross examination, a version was put to her by counsel for the
accused that she had asked money from the accused to buy
KFC, in
return for a sexual favour. This she denied vehemently.
[16]
L.
M. R.
was the fourth state witness. She is the complainant in count
1. She was born on [....] 2000 and was thirteen years
at the
time of the commission of the offence. She is currently in
grade 10 and lives in K. in the location called D. H..
On 22
nd
June 2013 she was at home with her younger sister and they went to
bed at 19H30 in the evening. The two were alone at home
since
their mother was in Cape Town. She heard something scratching
the window and woke up to investigate. A few minutes
later she saw a
man in the kitchen. He pushed her against the fridge, threw her
on the bed and demanded sex whilst holding
a knife.
[17]
Her assailant proceeded to raped her. When he was finished, he
put his clothes on and left her house. Before he
left he warned
her that her friends were next. The first report was to her
neighbour S..
[18]
S. accompanied her to her house to inspect the conditions. The
police were convened and took her to the clinic where
she received
medical assistance and counselling. She was able to identify
her assailant because during the rape incident
there was sufficient
light from the bulb which eliminated the room. The person was
speaking Afrikaans to her and took a long
time raping her.
Exhibit “D” is the sketch plan with photo’s no 1,
2, 3 and 4 showing the inside of the
premises after the rape
incident.
[19]
Under cross examination it was put to her that the accused was her
boyfriend for three months prior to the incident and that
they had
had sexual intercourse before. She denied that she ever had any
contact with the accused prior to the incident.
It was put to
her that they were at Baby’s house before this incident and
they drank beer with the accused and subsequently
left for her house
where they had sexual intercourse. She denied this vehemently.
[20]
P.
J.,
also
known as S. was the fifth state witness. He lives next door to
the complainant. On 22
nd
June 2013 in the morning, the complainant came into his house crying
between 4 and 5 in the morning and also informed him that
an unknown
person had raped her and had fled away. He accompanied
the complainant to her house and found clothing items
strewn all over
the house. He phoned the police and the incident was reported.
The evidence was relevant for count
1.
[21]
Phokoane
Neria Mosala
was the sixth state witness. She is a forensic nurse attached
to the Tshepong National District Hospital in Bloemfontein.
She
completed the J88 on 2
nd
February 2014 marked as Exhibit “E”. Her work
experience is on record and it was clear that she was well qualified
in that field. She examined D. K. on 2
nd
February 2014, the complainant in count 2 and 3. She confirmed
the correctness of the J88 report and its clinical findings.
Her evidence regarding the Gynaecological examination was that there
were abrasions at 4 – 8 o’clock positions on the
Fosssa
Navicularis. Her conclusions was that abrasions at 4-8 o’clock
positions indicated the probability of forceful
penetration.
[22]
Nomsa
Liza Aaron
was the seventh state witness. Her evidence was relevant to
count 1 the rape of L. M. R.. She is a professional nurse
qualified within the forensic field stationed at Thembeni Clinic at
K.. On 22
nd
June 2013 she was on duty and she examined the complainant. She
completed her findings in the J88 form and also confirmed
the
correctness thereof. It was admitted as exhibit “F”.
Her evidence and findings corroborated the version
of the complainant
that she was raped on the day in question.
[23]
F.
B. C.
was the eight state witness. He lives in K. and knew the
accused from K. where the accused use to stay. He had met
the
accused the first time in 2012 in Fauresmith prison where they were
both held in custody. After he was released he met
the accused
a number of times. The accused confided in him that he had
raped a girl in D. H.. After this confession,
he felt bad
because he knew the complainant and her mother. Although he
undertook to the accused to keep that secret, his
conscience crashed
him with the result that he told the complainant’s mother about
that confession.
[24]
The state closed its case. The accused gave his testimony in
brief that the complainant in count 1 was his girlfriend
and they had
had a love affair three months prior to the incident which also
included a sexual encounter, at least two months before
the alleged
rape incident. On the day in question he was with the
complainant at Baby’s house where they drank beer.
Subsequent thereto they left for the complainant’s house where
they first watched TV and later had sexual intercourse with
consent.
He woke up the following day at 6 am and left the complainants
house.
[25]
The complainant informed him that she was 16 year of age and as a
result, he felt comfortable to have sexual relations with
her.
[26]
In respect of count 2 and 3 he testified that he met the complainant
in the street of the Zoo. The complainant asked
for a taxi fare
of R100.00 and he only had R50.00 which he gave to her. As a
favour he asked for sex. She agreed.
They proceeded to
have sexual intercourse near the Zoo by consent.
[27]
Regarding count 4 and 5, the rape and robbery of S. A. M., similarly
to his version in respect of the first two complainants,
his evidence
was that the sexual intercourse was with her consent. On the
day in question he was selling dagga, sweets and
cigarettes.
The complainant came to purchase cigarettes and dagga from him.
The complainant also asked for money for
food. In return the
accused asked her for sex. She agreed and a sexual encounter
took place. He was surprised
to be arrested a week later.
[28]
Under cross examination he stuck to his version. The accused closed
his case.
COMMON
KNOWLEDGE AND UNDISPUTED FACTS:
[29]
It is uncontested that the accused had sexual intercourse with all
three complainants on the dates specified on the charge
sheet.
POINTS
OF DISPUTE:
[30]
The accused denies that he raped the complainants. He avers
that the sexual intercourse in all these three incidents
was with the
consent of the three complainants. The complainants dispute his
version. They alleged that they were raped.
[31]
It is a well-established principle of law that for the state to
secure a conviction it must prove the guilt of accused person
and all
the elements of the charge beyond reasonable doubt. It is of
vital importance for the state to adduce cogent evidence
linking the
accused to the commission of the offence and proving lack of consent
by the complainants.
ANALYSIS
OF STATE’S CASE AND THE LAW:
[32]
It is trite that in order for a conviction to result, the state must
have discharged its duty of proving its case beyond reasonable
doubt.
[33]
In
S v Chabalala
2003 (1) SACR 134
(SCA) at 139
(i) – 140(a) the Court had this to say:
“
The
approach is to weigh up all the elements which points 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 the 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.”
[34]
All the state witnesses which testified impressed the court. I
find that their evidence was honest and truthful in material
respects. They did not try to falsely implicate the accused.
They answered all questions without hesitation in both
the
examination in chief, cross examination and re-examination.
There were no material contradictions in their testimonies.
[35]
The only question that must be decided is whether the sexual
intercourse in respect of the three counts of rape was with the
consent of the complainants.
[36]
It is clear that all the rape incidents had the same
modus
operandi
of
violence especially the assault with a knife, which was a common
trend in all three incidents.
[37]
The complainant in respect of count 1, was 13 years of age during the
commission of this incident. In law, she was unable
to give
consent for such acts. Her evidence is also corroborated by the
J88 report regarding injuries.
[38]
Regarding the rape incident in count 2, it is inconceivable that the
complainant could consent to sex on the version of the
accused.
The two versions are mutually destructive. In my view, the
complainant’s version is more probable about
what precisely
took place on the day in question. As I see it the sexual
incident was without her consent. Furthermore,
her version is
corroborated by the J88 report and its findings.
[39]
Regarding count 4 the accused rides a dead horse by the version he
preferred. A request for money in return for a sexual
favour.
A stranger can never give consent to sexual intercourse in the
absence of a pre-existing relationship as opposed
to what the accused
wants us to believe. The complainant in count 4 was credible.
[40]
It is my view that the version of the accused is completely untenable
about how the consent to sexual intercourse was obtained
in the three
incidents. In these circumstances, the accused’s version
must be rejected because it falls significantly
short as probable in
the circumstances.
[41]
Having regard to the evidence that has been adduced and the analysis
set out above I am satisfied that the state succeeded
in proving the
guilt of the accused beyond reasonable doubt.
[42]
In the result, I make the following finding:
42.1
That the accused is guilty of count 1, the house breaking with the
intend to rape and the rape of L. M. R..
42.2
That the accused is guilty of count 2, the rape of D. K..
42.3
That the accused is guilty of count 3, the robbery of D. K..
42.4
That the accused is guilty of count 4, that the accused committed
acts of sexual penetrations with the complainant Me
S. A. M. and
without her consent.
42.5
That the accused is guilty of robbery of Me S. A. M..
[43]
I, therefore find the accused guilty of rape in contravention of the
provisions of
section 3
read with sections 1, 55, 56(1), 57, 58, 59,
60 and 61 of the Criminal Law Amendment Act 32 of 2007, read with
sections 256, 257
and 281 of the CPA 51 of 1977, and further read
with section 51(1) of Act 105 of 1997 in respect of each count.
_______________
I.R.O
BOKWA, AJ
On
behalf of the State: Adv.
Hoffman
Instructed
by:
Director of Public Prosecutions Free State
On
behalf of accused: Adv.
Nel
Instructed
by:
Justice Centre South Africa