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[2017] ZAFSHC 32
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Maduna and Another v S (A86/2016) [2017] ZAFSHC 32 (23 February 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A86/2016
In the
matter between:
NTLAKANISO
MADUNA
1
st
Appellant
MPHO
MOSES
KHOTLE
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J, BOKWA, AJ
et
CHESIWE, AJ
HEARD
ON:
14 November 2016
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
23 FEBRUARY 2017
[1] This
is an Appeal against conviction and
sentence. The two appellants
were convicted of rape
by a Regional Court sitting at Bloemfontein on
25th
August
2015
and were each sentenced to life imprisonment on
25
August
2015.
Appellants have an automatic right to appeal.
[2] The
appellants feel aggrieved by both conviction and
sentence and now approach this court on appeal against
the same.
[3] In
the notice of appeal, heads of argument as well as arguments before
us the appellants assail the conviction on the grounds
that the
Regional Magistrate erred in finding that the complainant as a single
witness satisfied the requirements of section
208
of the Criminal Procedure Act
51
of
1977,
that the court erred in finding that the medical evidence is
not indicative of consensual intercourse and that the vehicle
movement
report is not conclusive evidence despite the findings
thereof being put to the complainant in cross examination.
[4] The
facts that led to the appellants' conviction were that on
29
August
2012
the
complainant, a female detainee at Kroonstad prison, was transported
by the appellants from Botshabelo Court to Kroonstad correctional
centre with a marked police van. The first appellant was the driver
of the relevant vehicle. When she left Botshabelo court she
was on
the back of the police van and just after the vehicle left Botshabelo
she was asked to join the appellants in the front
seat. She sat
between the appellants up until a few kilometres before Windburg
where the vehicle stopped for her and the second
appellant to
discharge urine. The vehicle veered off the N1 to the side road
leading to Brandfort. On her way back to the vehicle
after urinating,
she found the doors at the back of the van open and the first
appellant standing at the door directing her to
go to the back of the
van. As soon as she jumped into the back of the van she was joined by
the first appellant and the second
appellant locked the door from
outside. The first appellant took out a blanket which was in her bag,
spread it on the floor inside
the van and ordered her to lie thereon.
He strangled her, took off her denim pants, spread her legs and
penetrated her vaginally
without he·r consent. He tried to
wear a condom before penetrating but struggled due to his huge penis,
he then penetrated
her without a condom. The first appellant called
the second appellant and asked him to increase speed. After the
second appellant
finished having sex with her he offered her a blue
cloth to wipe herself with which she did not use and opted for a
piece of toilet
paper. The first appellant called the second
appellant and told him to stop the vehicle so they could go back to
the front. The
first appellant took over as the driver while the
complainant sat in front between the appellants. The vehicle stopped
at Ventersburg
filling station where she was left alone while the
appellants went to the toilet. The first appellant threatened to kill
her should
she divulge that he raped her. He gave her his cell phone
numbers and told her to call him should she decide to lay charges.
The
appellants handed her over to the authorities at Kroonstad
prison. On her arrival at Kroonstad prison, she reported the matter
to a nurse who did observations on her before she could be booked in.
She was referred to hospital on the same day where she was
examined
by Dr. Thagane and DNA samples were obtained.
[5]
Nomvula Elizabeth Melamu, a professional nurse at the
Kroonstad Correctional facility, testified to the effect
that she was
called from home to do a routine examination on the complainant as it
was the normal procedure that all inmates must
be examined before
being admitted into the facility. During examination she enquired
from the complainant if she was abused in
any manner. She responded
that she was raped by a police officer who transported her from
Botshabelo Court to Kroonstad prison.
She immediately referred the
complainant to Boitumelo hospital for further examination. When she
observed her she was calm.
[6] Dr.
Gungunyane William Thakgane examined the complainant on 29th August
2012. He found no evidence of forceful penetration but
did not rule
out the possibility of forceful penetration. The complainant's age,
number of deliveries are factors that may have
influenced the
findings. He opined that if the complainant was raped by a man with a
huge penis, in a moving vehicle one would
expect to find tears on the
posterior fourchette or vagina. One would also expect to see bruises
on her body if she fought back
while the vehicle was moving. There
was no evidence to support the complainant's version that she was
strangled by the first appellant.
[7]
Arthur Paulus Pearce Mokoena, a forensic nurse at Botshabelo
Hospital, collected blood samples from the first appellant. He
was
accompanied by Nankie Motloung who used to be a senior investigator
at the Independent Police Investigation Directorate. He
received a
sexual offences Kit from Motloung and upon its receipt he noticed
that the kit had expired in 2008. He informed
Motloung
that she would need to replace the kit but she refused and ordered
him to proceed anyway. He drew blood from the first
appellant and
sealed the kit accordingly.
[8]
Nankie Motloung, an erstwhile senior investigator at
IPID
confirmed
that she took first appellant to Botshabelo hospital to obtain his
DNA samples. Mokoena told him that the kit she brought
was no longer
in use but he would assist him because it had not expired. She denied
that the kit had expired.
[9] Elisa
Machitje a field worker at the Local Criminal Record Centre at the
SAPS arrived at Botshabelo Police Station on 30 August
at around
15h49. She was informed by Motloung that a rape took place in the
police van with registration numbers [B...]
.
Motloung, Mokgobo
and Colonel Xele opened the van and she noticed a condom, a piece of
toilet paper and some Shoprite paper on the
floor of the van. She
took pictures and collected all items she found on the back of the
van. She sealed them in a bag and forwarded
them to Forensic Science
Laboratory on 12 September 2012.
[10]
Mathukudu Samuel Mashegoane is a Captain at the SAPS and stationed at
the biology section of the Forensic Science Laboratory
in Pretoria.
He compared the samples obtained from the complainant's vestibule
perineum swabs and panty with the reference samples
obtained from the
first appellant. The DNA results obtained from the complainant's
vestibule perineum swab and panty matched the
DNA results obtained
from the first appellant. When asked about the impact of
an expired kit, his response was
it may affect the quality of
the results. He understands that there is a reason the kits
have a shelf life but not certain
of the effects of the usage of the
expired kit. In the current matter the DNA was obtained and he was
certain that the expired
kit did not affect the quality of the
results.
[11] The
appellants simply denied that the first appellant ever had sexual
intercourse with the complainant. Their version was that
their
vehicle never stopped on the N1 for the complainant and the second
appellant to urinate. When they left Botshabelo with the
complainant
she was sitting in front with them because the canvass covering the
windows at the back were torn and the complainant
would freeze if she
were to sit at the back. They stopped at Shell garage in
Bloemfontein, Verkeerdevlei plaza and Ventersburg.
Their last stop
was Kroonstad prison where they handed the complainant to prison
authorities. The first appellant denied ever threatening
to kill the
complainant and have her children raped should she report the rape.
He was insistent that the complainant had previously
accused him of
being a party to ID fraud.
[12] Mr.
Vorster on behalf of the appellants submitted that the
trial court was correct in finding that sexual intercourse
did occur
between the complainant and the first appellant but erred in
finding that the complainant 's narration of the events
was correct.
He, painstakingly, contended that the rejection of the vehicle
movement report was without basis as it was thoroughly
canvassed
during cross examination of the complainant. He, further contended
that the complainant's version is not supported by
the medical report
and should have been rejected by the trial court. He advanced a new
argument that was not raised during trial.
He argues that the state
failed to prove that the sexual intercourse was without consent. He
relied on an unreported judgment of
the Eastern Cape High Court in
Makhaya
Ntini v the State
where Jansen, J found
as follows:
'the
complainant's own evidence, even if accepted, puts in doubt both the
existence of lack of consent and question of
mens rea'
.
[13] Mr.
Botha, on behalf of the respondent, contended that both the
complainant and appellants' version create nor room for consensual
intercourse. He further contended that the
2nd
appellant was aware of the first appellant's conduct and
protected him.
[14]
The trial court rejected the appellants' version as not
reasonably possibly true. The court below, further, found that the
medical
evidence does not negate the complainant's version that she
was forcefully penetrated. The court below, further, found that the
contradictions in the complainant's version are immaterial when one
looks at the evidence in totality.
[15] It
is trite that factual findings of the trial court are presumed to be
correct unless they are shown to be wrong with reference
to recorded
evidence. The acceptance by trial court of oral evidence and
conclusions thereon are presumed to be correct, absent
misdirection.
(See
S
v
Francis
1991 (1) SACR 198
SCA at
204
e-d.)
[16] In
the current matter, the complainant's evidence shows that she did not
consent to the sexual intercourse. The complainant
was in custody of
the appellants who held positions of authority. The first appellant
threatened to shoot her if she reported the
matter to anyone and make
it look like she was shot while trying to escape. I have no doubt
that the trial court correctly found
that the first appellant
penetrated the complainant vaginally with his penis without her
consent.
[17] The
trial court found that the second appellant acted in pursuance of the
common purpose. In
R
v
Garnsworthy
1923 WLD
17
the doctrine of common purpose was defined with
reference to the common purpose to achieve a shared unlawful purpose.
The court
held as follows:
'Where
two or more persons combine in an undertaking for an illegal purpose,
each of them is liable for anything done by the other
or others of
the combination, in the furtherance of their object, if
what was done was what they
knew or ought to have known ,
would be a probable result of their endeavouring to achieve their
object.'
[18] It
is now settled that an accused can be convicted of murder in terms of
the doctrine of common purpose if he had the intention
(direct
intention) to kill. See
S
V
Malinga
1
963
(1) SA
692
(A)
at 694
where the following was held:
'Now the
liability of a
socius criminis
is not vicarious but is based
on his
mens rea.
The test is whether he foresaw (not
merely ought to have foreseen) the possibility that his
socius
would commit the act in question in the prosecution of their
common purpose.'
[19] In
the current matter, it is important to establish whether the State
proved beyond reasonable doubt that the second appellant
did foresee
that the first appellant would rape the complainant. Rape is an
offence that requires intention. There is no evidence
to show that
the second appellant knew that when the first appellant got into the
back of the police van with the complainant the
end result would be
rape. The fact that the second appellant remarked that the
complainant was not a child and she could clearly
see the reason the
first appellant wanted to be alone with her in the back of the van is
not sufficient enough to prove that he
knew that the first
appellant's action would result in the rape of the complainant. The
complainant could not say with certainty
that she did report the rape
to the second appellant.
[20] The
mere presence at the scene of crime is not sufficient to prove
liability. See (
S v Mgedezi and
Others
1989
(1)
SA 687
(A)
) where the following was
said:
'Inherent
in the concept of imputing to an accused the act of another on the
basis of common purpose is the indispensable notion
of an acting in
concert. From the point of view of the accused, the common purpose
must be one that he shares consciously with
the other person. A
common purpose which is merely coincidentally and independently the
same in the case of the perpetrator of
the deed and the accused is
not sufficient to render the latter liable for the act of the
former'.
[21] In
line of the above I am of the view that the trial court misdirected
itself when it found that the second appellant
assisted
the first appellant in the commission of rape. The second appellant's
appeal against conviction and sentence must
succeed.
[22] We
have to take into account the first appellant's personal
circumstances when considering his sentence.
The
appellant was 47 years of age at the time of sentencing. He is
married with 3 children. Their ages were 21, 16 and 9 years
respectively. His wife is a professional nurse at Botshabelo
Hospital. His children are still dependent on him. He was employed
as
a police officer and he got dismissed as a result of this offence. He
committed a very serious offence. As pointed out by the
trial court,
he took advantage of the complainant who was a detainee and had no
means to run away and escape the ordeal. She was
in a dilemma and had
to endure whatever treatment was meted out to her by those entrusted
with her safety. What makes this offence
even more serious is that
the police officer who was entrusted with the responsibility to guard
the complainant violated her and
used his position and authority as a
tool to accomplish his knaveries.
[23] The
first appellant was sentenced to life imprisonment. The trial court
found no substantial and compelling circumstances to
justify a
departure from the prescribed sentence. The first appellant was
sentenced in terms of Section 51 (1) of the Criminal
Law amendment
Act 105 of 1997.
[24]
Sentencing is pre- eminently in the discretion of a trial court. The
sentence can only be interfered with
if
the sentencing court exercised its discretion
unreasonably or in circumstances where the sentence
is
adversely disproportionate.
(See
S
v
Pieters
1987 (3) SA 717
of 727)
[25] The
minimum sentence of 10 years imprisonment is applicable in this
matter.
[26] Mr.
Vaster submits that there are substantial and compelling
circumstances justifying a departure from the minimum sentence
prescribed by the Act. The test for existence of substantial and
compelling circumstances warranting deviation from the prescribed
minimum sentence, is whether or not the cumulative effect of
mitigating factors on the gravity of the offence, the general
aggravating
factors and the interest of community render the relevant
prescribed sentence unjust. (See
S
v
Malgas
2001 (1) SACR 469
SCA.
[27] When
weighing up the mitigating factors against the aggravating
circumstances, this matter as well as the interest of community,
I am
of the view, that there is no justifying cause to deviate from the
prescribed minimum sentence
ORDER
[28] In
view of the above, I make the following order:
-
Appeal against conviction fails in respect of the first appellant;
-
Conviction is confirmed in respect of the first appellant;
-
Appeal against sentence
succeeds in respect
of the first
appellant;
-
The first appellant's sentence is set aside and, in its place and
stead, the following order is
made;
-
The first appellant is sentenced to 10 years imprisonment;
-
Appeal against conviction and sentence succeeds in respect of the
second appellant;
-
Conviction and sentence are set aside in respect of the second
appellant;
-
The first appellant's sentence is antedated to 20 August 2015.
_____________________
N.M.
MBHELE, J
I concur
_____________________
I.R.O.BOKWA,
AJ
I concur
_____________________
S.
CHESIWE, AJ
On behalf
of applicant:
Mr. VORSTER
CALLIS
I
NC.
184 NELSON MANDELA DRIVE
PROVEDEAMUS BUILDING
3RD
FLOOR
WESTDENE
BLOEMFONTEIN
JA CALLIS/csl/C5AK001
On behalf
of respondent:
Adv. BOTHA
Instructed by:
Office of the Director: Public
Prosecutions
BLOEMFONTEIN