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[2017] ZAFSHC 72
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Masooa v S (A230/16) [2017] ZAFSHC 72 (11 May 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Appeal
number: A230/16
In
the matter between:
NKEJANE
ABEDNIGO
MASOOA
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J
et
MHLAMBI, J
HEARD
ON:
8 MAY 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
11 MAY 2017
[1]
On
21
October 2016
the
appellant, who was legally represented, was convicted of rape of a
mentally retarded 18 year old girl
and
sentenced to life imprisonment by the Regional Court at Bethlehem. He
feels aggrieved by both the conviction and sentence. He,
as such, now
exercises his automatic right of appeal
against
the
same.
[2]
On
returning the guilty verdict the trial court found that the
contradictions in the evidence against the appellant were not
material
and, further, concluded that state witnesses were
ad
idem
as
to his identity as the culprit. The court a
quo,
further,
found
that
it
was clear from
the
evidence of
the
victim's
mother as well as the J88 medical report admitted into evidence with
the appellant's consent that the complainant was,
in fact, a rape
victim in
that
sexual penetration did
take
place
and
she
could
not,
in law, have consented thereto because she was severely mentally
retarded.
[3]
The
trial court, further, found no cause, in the form of substantial and
compelling circumstances, to deviate from life
imprisonment
as the prescribed minimum sentence in the circumstances of the
instant matter. In this regard the court below held
that the
appellant showed no remorse and the gravity of the offence as well as
the interests of society outweighed,
by
far,
his personal circumstances.
[4]
On
the papers and in argument before us the appellant, through Ms
Kruger, submits,
inter
alia,
that
the state witnesses would not reasonably possibly have been able to
identify him as the culprit insofar as
they
did
not
see
the
face
of
the
perpetrator
at
the
scene
of the alleged crime and one of his captors, who actually apprehended
him, lost sight of the miscreant during the chase. The
three states
witnesses, further, contradicted each other on the height of the
grass at the scene of the alleged rape and on how
the victim was
dressed as well as the manner in which she was allegedly lying on the
ground after the alleged rape. In the appellant's
view
the
court
below erred in
concluding
that the
state
proved the element of sexual penetration beyond reasonable doubt when
there
existed
no
factual
basis
for
such
a
decision.
As
far as the sentence is concerned it is submitted for and on behalf of
the appellant that the trial court erred in not finding
cause to
deviate from life imprisonment as the prescribed minimum sentence
regard being had to,
inter
alia,
the
appellant's personal circumstances as well as
the
period he
spent
in
custody
awaiting finalization of
the
trial.
[5]
On
its
part
the
state supports
the
conviction
and
submits,
through Ms Nameka, that the court below evaluated the evidence
correctly and correctly found that the contradictions in
the evidence
of its witnesses were not material. Ms Nameka, however, does not
support the sentence and feels that
same
is shockingly severe and inappropriate regard being had to the
appellant's personal circumstances and the fact that the victim
sustained
no
serious injuries, among others. In
her
view
20
years
imprisonment
would be more appropriate as a sentence in the instant matter.
[6]
The
factual findings of the trial court, its acceptance of oral evidence
and conclusions thereon are presumed to be correct unless
and until
they are shown to be demonstrably wrong or wrong on adequate grounds.
(See
S
v
Francis
1991(1)
SACR 198(A)).
[7]
The
factual
basis
for
the
conviction,
as
accepted
and
found
by
the
trial court, is apparent from the oral evidence of the four witnesses
who testified for
the
state
as
well
as
the
medical report
viz.
J88,
the psychological report and the statement of the police officer, one
Sello John
Mokone,
all
admitted into evidence with the
appellant's
consent.
[8]
M. L. D.
testified
under oath to,
inter
alia,
the
effect that on the fateful day and around 12:15 she was in the
company of her fellow congregants when she coincidentally noticed
a
man on top of a girl child raping her in the open field between a
school
and
a
house.
She
alerted her
companions
and they retur
ned
and went in the direction of the scene to inspect. The appellant
stood up and pulled his trousers up as they were lying low
on his
legs and ran away when he noticed that the members of the
congregation were drawing nearer. Her companions gave chase and
one
N.
M. (N.)
and
one
T.
M. (T.)
,
who
were part of the
congregation,
eventually caught
up
with him
and
brought
him
back
to
the
scene. On her part she
proceeded to the victim and found her lying supine with both her
panty and pants on her legs. The appellant
was dressed in a yellow
ANC T-shirt, a grey jacket and brown pants. About four metres from
the scene there was an
unknown male person who
was just standing there. The victim could not speak but was angry and
trying to use her hands to say something
to her. The victim pointed
towards her (the victim) private parts
and
she
helped
her
to
dress up.
[9]
N.
and
T., on
their
respective parts, testified under oath
and confirmed the evidence of L. D. with
regard to how she drew the congregants' attention to the rape. They
further each testified
that
they
only saw
the
appellant stand
up
from
behind
the
high grass of about 1.5 metres and run away. They gave chase and
eventually apprehended him some
60
metres
from
the
scene after Nee tripped him. Although N.
did lose sight of the appellant during
the
chase
he
eventually saw
him
and
pursuit him until he caught up with him.
T., on his part, never lost sight of the appellant from the moment he
saw him emerge from
the grass until he was apprehended. They brought
the appellant back to
the
scene and members of
the
community assaulted him by hitting him with open hands and so did the
victim. The police eventually arrived and took both the
appellant and
the victim away.
[10]
The victim's mother
K.
A. N.
testified under oath to,
inter
alia,
the
effect that she was doing washing when
she left the victim to fetch some water from the tap. When she came
back the victim was missing
and she sent her son
to go search for her. After a while she
saw the victim in the police vehicle which was passing nearby and
she
stopped
the
same.
The
police,
however, told her to get ready as they would come later to fetch her.
She was, eventually, taken to the police station where
she met the
victim who made
a
report
to
her.
She
was allowed an opportunity by the police
to inspect the victim. She found that the victim had been raped
insofar as she bled from
her private part and there was
some grass
thereon as
well
as
at
the
back of
her
head.
They
were, thereafter, taken to the hospital where the victim was examined
and given some treatment. The victim is mentally handicapped
and
cannot speak. After the incident the victim is afraid to walk in the
street and she can, further, no longer go to the toilet
alone which
is a bit far from the house. The victim communicates with
her
by
using
her
hands.
[11]
In the medical report the doctor
concluded,
inter alia,
that
"fresh tear in posterior
fourchette and bruise to fossa navicularis suggest recent
penetration/trauma to the
area".
[12]
The psychologist deposed to an affidavit
to,
inter alia,
the
effect that she examined and evaluated the victim by a process
requiring skill and competence in human behavioural science.
That
she established that the victim is mentally retarded and
functions intellectually on severe retardation level. That the
victim is not capable of consenting to sexual intercourse and of
understanding formal court processes.
[13]
On his part police officer
Sello John
Mokone
deposed to,
inter
alia,
the effect that the appellant
stated that he was walking with the victim and made a proposal. He
placed his arm around the victim
not realizing that she was mentally
retarded. He deposed, further, that the appellant smelled of alcohol
and when he stood up he
noticed that "his belt was loose, his
trousers and zip were completely
open."
[14]
It is true, as correctly found by the trial court, that the state
'
s
witnesses contradicted one another insofar as N. and T.,
inter
alia,
testified that the grass
at the scene was 1.5
metres high while L., on her part,
testified that the grass was 50 centimetres high
.
N. testified that the victim was lying
prostrate while the version of T. and L. was to the effect that she
was lying on her back
after the appellant ran away. L. and N.
testified that the
victim's panty was
on
her
legs while T.'s version was
that
it was lying
beside
her
.
[15]
I am, however, satisfied that the court
below was correct in his finding that the contradictions in question
were not material.
The contradictions related to the scene of the
crime as well as the condition in which the victim was found. It was,
however, not
in dispute
that
the
victim
was found
where
the
state alleged
she
was
found. It was, further, not in dispute that the victim's
mother inspected her at the police station and found that she was in
fact
raped. It was, furthermore, common cause between the parties
that the doctor effectively opined in the medical report that carnal
penetration did take place. It was, further, not in dispute that the
victim could not consent to sexual intercourse.
[16]
The issue to be decided by the trial
court was whether or not carnal intercourse took place in that the
victim was penetrated vaginally
and if so, whether or not the
appellant was the perpetrator. The contradictions did
not relate to
the said questions
as effectively found by the trial court. They were, as such, not
material to the dispute before
the court a
quo
.
[17]
The evidence of the victim's mother and
the medical report as well as L.'s evidence with regard to what
caused her to blow the whistle
on the scene were sufficient to
establish sexual penetration as the required
actus
reus
.
[18]
I am, further, satisfied that the
identity of the appellant as the person who was caught
in
flagrante delicto
was established
beyond reasonable doubt insofar as N. and T. gave chase and
apprehended him. Even though N. conceded that he at
some stage lost
sight of the appellant, I am satisfied that T. never lost sight of
him and
L.
confirmed that the apprehended person was the same person
she saw
on
top of
the
victim and
the one who stood up and ran away
.
The admitted affidavit of
Sella
J. M. also confirms the
appellant's contact with the victim before his apprehension as well
as the condition of his trousers after
his apprehension.
[19]
The
appellant elected
to
exercise
his
constitutional
right
to
silence in the
face of all
the damning evidence against him which
clearly called out for some positive response from him. His choice
had consequences and
he
must,
therefore, stand
or
fall
thereby.
(See
S
v Boesak
[2000] ZACC 25
;
2001
(1)
SA
912
(CC) at
par
[24]
).
[20]
In
my
judgment the
conviction
cannot be faulted and stands to be confirmed insofar as there exists
nothing before us to suggest that the factual findings
of the trial
court, its acceptance of oral evidence and conclusions thereon are
demonstrably or clearly wrong.
[21]
The powers of the court of appeal are
limited as far as sentence is concerned insofar as it can only
interfere with the sentence
where the sentencing court failed to
exercise its discretion properly or at all by,
inter
alia,
failing to strike a healthy
balance between
the
crime committed,
the
personal
circumstances of
the accused as well as the interests of
society. (See
S v Pieters
1987
(3)
SA
717
(A)).
[22]
In the instant matter the trial court
was obliged to impose life imprisonment as the applicable
prescribed minimum
sentence
unless and until legal cause, in the
form of substantial circumstances compelling a departure therefrom,
was found to exist. Such
cause exists where the cumulative impact of
the accused's personal circumstances on aggravating circumstances,
inclusive of the
interests of the society, render such a sentence
unjust. (See
S v Malgas
2001 (1) SACR 469
(SCA)).
[23]
The personal circumstances of the
appellant were before the trial court and it,
ex
facie
the record, took same into
consideration when it determined the appropriateness of life
imprisonment as the prescribed minimum
sentence. It is true, as
correctly found by the court below, that the appellant had no remorse
for his deeds and that the crime
was indeed serious and degrading to
say the least. The fact that the victim was so angry that she
continued assaulting the appellant
even after the arrival of the
police only goes to show how bewildered and desperate the vulnerable
victim felt. Her condition after
the rape as testified to by her
mother is, further, aggravating in the circumstances of the present
matter.
[24]
That the appellant spent some
considerable time in custody awaiting finalization of the matter is
one of the factors to be taken
into account when the sentencing court
considers the appropriateness or justness of the sentence to impose
but is not,
per se,
substantial
in nature to compel deviation from prescribed minimum sentences. (See
Radebe and Another v The State
2013 (2) SACR 165
(SCA)).
[25]
Mentally retarded people like the victim in the instant matter are so
vulnerable to opportunistic predators such as the appellant
that the
legislature, in its wisdom, ordained life imprisonment as the minimum
sentence for rapes committed against them so as
to protect them.
[26]
Having said all the above, I am, however, mindful of and persuaded
by submissions by counsel on both sides that cause exists
in the
circumstances of the instant matter to deviate from life imprisonment
as the prescribed minimum sentence regard being had
to,
inter
alia,
the scant information the
trial court had before him insofar as there existed no victim
assessment report detailing the impact the
rape had on the victim,
the fact that the victim did not sustain any serious physical
injuries as well as the appellant's personal
circumstances as a 36
years old family man who,
according
to
the
arresting
officer's
admitted
statement, smelt of liquor and
maintained that he was not aware of the victim's condition as a
mentally retarded girl. (See
S
v Mahomotsa
[2002)
3
All
SA
534(A)).
[27]
In the aforegoing regard the importance of placing as much
information before the sentencing court as possible in respect of
the
perpetrator, the victim and the circumstances surrounding the crime
has been stressed by the Supreme Court of Appeal. If the
defence and
prosecution fail to adduce relevant evidence the sentencing court is
obliged to take steps to receive the same in order
to determine
whether there exists cause to deviate from
prescribed
minimum sentences. In my opinion such a duty on the part of
sentencing court is more pronounced where the accused stares
life
imprisonment in the eye. (See
S v
Olivier
2010(2) SACR 178 (SCA)
para
[8]
and
Calvin v The State
[2014] ZASCA 145).
[28]
To the extent that the trial court
failed to ensure that all the relevant information was before him he
misdirected himself materially
by effectively depriving himself of
the ability to assess the sentence properly and, thus, did not
exercise his discretion properly.
We are, as such, at large to
interfere and consider the sentence afresh regard being had to the
fact that the appellant was sentenced
more than six months ago. To
remit the matter to the trial court would, in my view, only serve to
prejudice the appellant.
[29]
In my judgment 20 years imprisonment is
appropriate as a sentence in the present matter where the appellant's
personal circumstances
turn the scales in favour of a lesser sentence
in circumstances where there is no evidence of serious physical and
lasting emotional
injuries on the victim. (See
Hlapho
v S
(2015]
ZAFSHC 68 and
S
v
Mahomotsa
(s
upra))
.
ORDER
[30]
In the result the conviction is
confirmed.
[31]
The sentence is set aside and in its
place and stead is substituted the following:
"The
accused is sentenced to 20 years imprisonment
in
terms of section 276(1)(b) of
Criminal Procedure Act 51 of 1977
."
[32]
The orders made in terms of
section 50
of
Act 32 of 2007 and section 103 of Act 60 of 2000 remain
in place.
_____________
L.J.
LEKALE, J
I
concur
_____________
J.J.
MHLAMBI, J
On
behalf of appellant: Ms S
.
Kruger
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of respondent: Adv
.
CZ
Nameka
Instructed
by:
Office
of Director of Public Prosecutions
Bloemfontein