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[2017] ZAFSHC 211
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Maimane v S (A66/2017) [2017] ZAFSHC 211 (19 October 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A66/2017
In
the matter between:
MOJALEFA
J
MAIMANE
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI, J, REINDERS, J
et
HEFER, AJ
HEARD
ON:
18 SEPTEMBER 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON
:
19 OCTOBER 2017
[1]
These were appeal proceedings. The appellant was found guilty of
rape. He was subsequently sentenced to life imprisonment.
He
was aggrieved by the conviction as well as the sentence. He came on
appeal before us with the leave of the court a
quo.
[2]
An incident took place at Thibela Village of Tseseng in Qwa-Qwa on
Saturday 2 April 2011. It was reported to Tseseng Police
shortly afterwards. The police investigation led to the arrest
of five suspects. The appellant was among them.
He was the
first suspect to be arrested.
[3]
The suspects were criminally charged in due course. There were two
charges. The first was robbery with aggravating circumstances.
The
second charge was rape as categorized in Part I of Schedule 2 to the
Criminal Law Amendment Act 105 of 1997
. According to the indictment
both offences were committed at Tseseng. The complainant was Ms M.
M., an adult female, 34 years of
age.
The
prosecution alleged that the accused contravened
sec 3
Sexual
Offences and Related Matters Act 32/2007.
[4]
The actual trial commenced at Harrismith Circuit Court on 28 April
2015. Although the 5 accused persons were supposed to be
tried
together, 4 appeared before the trial judge, my sister Van Zyl J. A
certain Matola Kenneth Lepola, who was supposed
to stand trial
as accused 2, absconded. His case was separated from the rest. The
trial proceeded against his 4 co-accused.
The appellant's remaining 3
co-accused Mr T.E Motaung, Mr T.N Dasheka and Mr
M.M Motsoane were renumbered accused
2, accused 3 and accused 4
respectively. The appellant remained accused
1. They all pleaded not guilty
to both charges.
[5]
The version of the prosecution was narrated by three witnesses,
namely:
Ms
M. M., the complainant;
Mr
T. E. N., her sister's boyfriend.
Ms
M. Doreen Mbhule, sergeant;
Mr
Daniel Maloka, warrant officer;
[6]
In the evening of Friday 1 April 2011 the complainant arrived at
Lani's Tavern aka Rainbow Tavern. She arrived there at±
20:00.
She was with her sister, Ms M. M.. She consumed Hansa beer. She left
the tavern at± 02:00 on Saturday 2 April 2011.
She was
in the company of two couples, namely:
M.
and her boyfriend T. E. N. as well as N. M. and her boyfriend K. N.
A. K..
[7]
At one stage she was walking alone some distance behind N. and K. By
then M. and T. had already gone their own way in
the opposite
direction. A group of men surprised her, lifted her up and carried
her away from the road to the veld. They then put
her down, tripped
her and undressed her. At first they vaginally penetrated her one by
one. When they were done, they started all
over again. But on that
second time around they anally penetrated her one by one again.
[8]
She identified one of the rapists as Leburu. She pointed out accused
1, now the appellant, as Leburu. She knew him before the
incident.
During the vaginal phase of the sexual penetration, the appellant
mooted out the idea that one of her
breasts
be severed. He was pinning one of her arms down at that moment.
The appellant pretended, after raping her,
that he did not recognise
her before. She dismissed his cynical excuse. She told him that he
was aware who she was all along.
[9]
From the crime scene the appellant escorted her home. On the
way they met K. She told him what the appellant and his
co-perpetrators did to her. On their arrival
at her place of residence, she lent a blanket to K. to
wrap
himself up. guess it must have been cold.
[10]
From there she proceeded to the local police station to report the
incident. She was still accompanied by K. and the appellant.
On the
way they passed a house where a night vigil was held. The appellant
excused himself and walked in there under the pretext
that he wanted
to check out if someone could give him cigarette. They waited in the
street for his return. They waited in vain.
[11]
Next she proceeded to T.'s place of residence. K. was then her sole
companion. She told T. what happened to her. She told him
that among
those who raped her was Leburu, the appellant. Her sister, M., was in
the bedroom during her conversation with T..
[12]
From T.'s she went straight to the police station. She
had two companions. K. was
still
with her. Her second companion was seemingly
T.'s acquaintance. She did not know him.
She
reported the incident. The police took her to
Elizabeth Ross Hospital where she was examined.
[13]
On 4 April 2011 Sergeant M.D. Mbhule interrogated the appellant at
Tseseng Police Station. She obtained a warning
statement
from him (see “exi c”) The essence of the statement was
that he admitted that he knew the complainant; that
he had sexual
intercourse with her and that he was with her when he met K. in the
street in the early hours of the morning on Sunday
2 April 2011.
Although the appellant challenged the admissibility of his warning
statement his challenge was unsuccessful.
Having heard evidence
during the course of a trial-within-a-trial, the trial judge ruled in
favour of the respondent and allowed
"exi d" as admissible
evidence it o Sec 219(a) Act No 51/1977.
[14]
The police also obtained a witness statement from T. Emmanuel
Nyeule - “exi e”.
He aligned himself with the testimony
of the complainant. He confirmed that he was at Lani's Tavern
on
Saturday 1 April 2011; that his companion was K. N. aka K., since
deceased; that his girlfriend, M. M. and her sister, M. M.
joined
them later; that M. and S. were also with them at the tavern and that
they were all drinking alcoholic beverages.
[15]
The group left the tavern together. On the way he and M. went their
own way. The complainant, K. and others went in a different
direction. Later in the early hours of the morning the complainant
and K. arrived at his place. Asked what the complainant told
him, the
witness answered:
"M.
told me that Leburu, Matala and also their friends raped her."
Asked
what K. said to him, the witness answered:
"K.
said the same thing what (sic) M. told me."
[16]
The witness noticed that the complainant's lips were swollen; that
she was bleeding from her mouth; that she was wearing a
pair of pants
inside out; that she was crying and that she was so emotional that
she could not properly explain to him what had
happened to her - T.'s
witness statement was handed up and marked "exi e".
[17]
Sergeant D Maloka's testimony was that he was the investigating
officer; that on 11 April 2011 he interviewed K. N., nicknamed
K.;
that he took a statement from him and that K. had died in the
meantime.
[18]
The important aspects of K.'s statement were as follows:
•
He was walking with M.
and M., the complainant at one stage;
•
The complainant turned
back to look for her sister, M.;
•
He and M. waited for the
complainant to rejoin them in the street;
•
Because she was gone for
some time, he decided to go look for her;
•
He heard the complainant
crying in the vicinity where he saw a group of males;
•
The members of the group
were assaulting and raping the complainant;
•
He turned away and rushed
back to his girlfriend but she was no longer there;
•
On his return from M.'s
place he met the complainant awaking with Leburu the appellant;
•
She told him that the
appellant was one of those who raped her
•
However Leburu denied the
complainant's allegation;
•
Because Leburu said he
knew the complainant's rapists, K. called upon him to accompany them
to the Tseseng Police Station to report
the incident;
•
On the way Leburu
deviated to a nearby house where a night vigil was held saying that
he wanted cigarette;
•
Leburu never returned to
them and they proceeded further to the police station without him.
[19]
K.'s statement was attacked on the ground that, since he did not
testify as the original narrator, the statement constituted
inadmissible hearsay. The trial judge considered the argument for the
inclusion of the contested statement as well as the argument
for its
exclusion. In terms of sec 3(1)(c) Act No 45/1988, the court a
quo
ruled in favour of the prosecution. K.'s statement was
accordingly allowed, handed up and labelled as "exi f'. That
then completed
the version of the prosecution against the appellant.
[20]
The version of the defence as regards accuse 3, was given by one
witness, namely: Mojalefa Jeremiah Maimane, in other
words the
appellant himself. He testified that he was asleep at the Lani's
Tavern at the time of the alleged incident. Consequently
he denied
the allegation that he was involved. He dismissed as false the
testimonies of the complainant, Ms M. Mokoena, Sergeant
M.D. Mbhule
and the extra-curial statement by the late K. N., alias K., “exi
f”. He also denied ever making
the
warning statement “exi d”. In a
nutshell, he raised the defence of an alibi.
[21]
Having heard the evidence, the court a
quo
convicted the
appellant on 20 August 2015 in connection with the charge of rape.
His 3 co-accused were acquitted. The ultimate sentence
of life
imprisonment was then imposed on him in terms of sec 51(1) Act No
105/1997 as amended.
[22]
The appellant was aggrieved by the conviction and the sentence. He
came to us on appeal with the leave of the court a
quo
granted
on 12 December 2016 to appeal against the conviction and the
sentence.
[23]
The grounds of the appellants' appeal as regards conviction are:
"1
The Court a
quo
erred by
accepting the evidence of the State
witnesses.
2.
The Court
a quo
erred by not accepting the evidence of
Appellant as reasonably and possibly true.
3.
The Court a
quo
erred by finding that the Respondent proved
its case beyond reasonable doubt."
[24]
It was the contention of the appellant that his version was
reasonably true. Consequently, it was his case that the court a
quo
erred in finding that his alibi defence was not reasonably true.
Therefore, he implored us to reverse the finding of the court a
quo,
to accept his evidence and to uphold his appeal.
[25]
As regards reliability, the court a
quo
was mindful of the
following unfavourable aspects of the complaint's identification
evidence against the appellant as one of her
rapists:
that
the incident took place at night; that the first scene where she was
first attacked as well as the second scene where was sexually
violated were in a dark street; that the moonlight did not adequately
illuminate the vicinity; that she made her observation in
very
stressful prevailing circumstances of violent acts of assault, as
well as threats of inflicting serious bodily harm on her;
that she
was confronted by a group of several males and that she was
intoxicated.
All
these aspects had an unfavourable effect on her evidence of
identification. They diminished the reliability thereof.
[26]
On the other hand, the court a
quo
was also mindful of certain
favourable aspects of the complainants' evidence of identification.
She knew the appellant very well;
she knew him by the name Leburu. In
turn the appellant knew her fairly well. He had known her for seven
years before the incident.
They lived in the same village. During the
first episode of her multiple acts of rape by different members of
the gang, each of
her arms was under a firm grip by a member of the
group. They nailed her down to facilitate her rape. At that close
proximity she
recognised one of the two facilitators as Leburu. They
spoke to each other after the series of acts of rape. He recognised
her
and wanted her to believe he did not recognise her before the
gang raped her. He then escorted her home afterwards. He walked with
her all the way from the scene of the crime to the night vigil house.
There, on the way to the police station, he vanished.
[27]
All those favourable aspects of her evidence of identification
significantly enhanced the reliability of her observation. The
court a
quo
found that the favourable aspects eclipsed the
unfavourable aspects. The unfavourable aspects of the complainants'
evidence notwithstanding,
the court a
quo
concluded that she
was a reliable identifying witness. On the facts, the finding was
justified. In my view, of all the favourable
aspects of her
identificative evidence, her prior knowledge of the appellant, the
proximity of the observation and the ample opportunity
she had to
observe him - strongly bolstered the reliability of her evidence.
[28]
As regards credibility, the version of the appellant was not
consistent. His initial version was that he was never on the crime
scene at all. He admitted that he was also at Lani's Tavern and that
he saw the complainant there. But he then alleged that he
got a
black-out at the tavern as a result of heavy drinking; that the
proprietor of the tavern woke him up and that he was the
only patron
in the tavern by then. He later changed his initial version. He
conceded that he might have been on the scene of the
crime. However,
he denied raping her. Instead he wanted the court a
quo
to
believe that he rescued her from the group of unknown rapists. His
attempt to improvise his evidence did not impress the trial
judge. He
did so to his detriment. If became clear and obvious that he was a
very untruthful witness.
[29]
The court a quo believed the version of the complainant. The trial
judge favourably evaluated her as follows:
"In
general the complainant impressed me as a good witness. She narrated
her evidence well and in an orderly and meaningful
manner. She
indicated when she was uncertain about a specific aspect and I never
got the impression that she was trying to fabricate
evidence in order
to make her case stronger."
[30]
The trial judge was alert to the dangers of incorrect identification.
S v Mthethwa
1972 (3) SA 766
(AD) at 768A. The
complainant spontaneously accused the appellant that he, knowing who
she was, participated in her multiple acts
of rape by his group. She
reported to K., at the first available opportunity that the appellant
and his group assaulted and raped
her. In his witness statement, K.
confirmed her version. It is significant to appreciate that the
appellant was present when she
openly implicated him to K.
[31]
The appellant denied the complainants' allegation. However, in his
exculpatory statement, he mentioned six names of the persons
whom he
said had raped the complainant. For that reason, K. invited him to
accompany them to the police station to give the names
of the
culprits to the police. At first the appellant tacitly agreed
to do so. But he disappeared on the way. He chickened
out. His
conduct was not consistent with that of an innocent man. His
disappearance tended to give credence to the complainant's
version
that he also participated in raping her. It also weaked his
exculpatory statement. He must have realized that his denial
was
unlikely to impress the police which was why he vanished on the way
to the police station. Of course, the guilty are afraid,
- See
-"exi d".
[32]
Unlike the appellant, whose evidence vacillated from a total denial
of involvement which was very remote to the truth - to
a qualified
admission which was closer to the truth, the complainant consistently
asserted that the appellant also raped her. She
repeated that
accusation to T.. Absolutely no ulterior motive was shown why she
would have falsely accused an innocent man.
[33]
The complainant's gaenocological examination showed that she
sustained injuries in her vagina and in her anus. Such medical
evidence strengthened her evidence that the appellant, like all his
friends, had penally penetrated her per vagina and per anus.
[34]
In his warning statement, the appellant admitted that he had sexual
intercourse with the complainant. In his testimony he denied,
admitted and again denied having had sexual intercourse w:th her on
the day in question, being 2 April 2011. Obviously, his early
admission outside court was irreconcilable with his later denials in
his testimony. That the appellant was a pathetically
untruthful witness became even more evident during his post
conviction evidence in mitigation.
[35]
Needless to say that his extra-curial admission was completely at
odds with his alibi. The court a
quo
was alive to the
principles that no onus rested on the appellant to prove his
alibi and that his alibi could only be rejected
if the prosecution
evidence against him as an accused was overwhelming -
A Kruger:
Hiemstra's Criminal Procedure page
14/32.
[36]
In my view all those aspects materially corroborated the
complainant's evidence. They provided strong corroborative safeguards
which
significantly reduced the risk of a wrong conviction.
S
v Mthethwa,
supra.
[37]
As regards the question of probabilities, the evidence of the
complainant was not impaired by improbabilities. There was no
previous history of animosity between her and the appellant. She had
no score to settle with him. It seemed improbable to me that
she
would, for no apparent reason, have falsely accused an innocent man
by painting him - with the same brush as the guilty men.
[38]
It has to be borne in mind that, if the version of the appellant is
true, he was not just an innocent man. Over and above that,
he
claimed that he rescued her from the violent rapists, whom he named.
It seemed highly improbable that a rape victim would be
that
ungrateful to her good Samaritan.
[39]
Moreover, it was also very unlikely that an innocent man would have
admitted to the police that he had sex with the rape victim
unless,
of course, the admission was true. An innocent man would not
have been afraid to accompany a victim to a police station
to tell
the police, as he told K., who the actual perpetrators were. An
innocent man with nothing to fear would probably not have
behaved as
the appellant did. He would not have vanished on the way to the
police station. He would not have made a pact with guilty
men to
mislead the court.
[40]
There is no doubt that the version of the appellant was seriously
tarnished by a number of improbabilities. On the contrary,
the
version of the complainant was not. Consequently the probabilities
and improbabilities, of the evidence as a whole, weighed
heavily in
favour of the complainants' version.
[41]
The court a
quo
came to the following conclusion:
"When
looking at the evidence as a whole, I conclude that in the
circumstances the state's evidence against accused 1 is indeed
overwhelming. The version of accused 1 can in the circumstances not
be reasonably possibly true and is rejected as false. The
complainant specifically testified that accused 1 had raped her. As
already mentioned, he himself admitted having had sexual intercourse
with her. In my view the identity of accused 1, as well as his deed
of rape itself, have therefore been proved beyond reasonable
doubt."
[42]
I am in respectful agreement. The prosecution evidence against
accused 1, in other words the appellant, was indeed overwhelming.
The crucial findings relative to the three issues, to
'hit:
credibility, reliability and probabilities strongly militated against
the evidence or version of the appellant. Consequent
I am of the firm
view that such version, with all its various shades of adaptations,
was correctly rejected. It was not only improbable,
unreliable and
incredible but it was beyond a reasonable doubt false, as the court a
quo
ultimately concluded.
[43]
On the proven facts the following factual findings were justified:
•
The complainant visited
Rainbow Tavern at Thibela Village of Tseseng in Qwa-Qwa in the
evening of Friday 1 April 2011 with some
friends;
•
She left the tavern at ±
02:00 on Saturday 2 April 2011 with her friends;
•
On her way home she was
ambushed, surprised and attacked by a group of approximately 7 or so
men;
•
She was violently
assaulted, seriously threatened and gang raped;
•
During the course of the
sexual incident with multiple episodes, each member of the gang raped
her twice;
•
She was initially
vaginally penetrated by each member of the gang;
•
She was subsequently
turned around and anally penetrated by each member of the gang;
•
The appellant was a
member of the gang and also actively participated in the
complainants' vaginal and anal penetration.
[44]
Although the court a
quo
did not expressly make the findings
as listed in the preceding paragraph, such findings were implicit in
the acceptance of the complainant's
evidence and the corresponding
rejection of the appellant's.
[45]
The unlawful actions of the appellant as an individual offender
considered in isolation from the gang - amounted to
contravention of sec 3(1) Act No 32/2007 read with Part I Schedule 2
to Act No 105/1997. He raped the complainant twice
-
one act of sexual penetration through the vagina and one act of
sexual penetration through the anus. Among others, the section
provides that the crime of rape is committed:
"(i)
in circumstances where the victim was raped more than once
whether by the accused or by
any co-perpetrator or accomplice;"
[46]
In the circumstances, I am not persuaded that the trial judge
committed any material and appealable misdirection as alleged
or at
all. I could find no substance in any of the appellant's grounds of
appeal. In the absence of such misdirection, we are not
at liberty to
interfere, I would, therefore, dismiss the appeal as regards
conviction. I may add that in coming to this conclusion,
I was
fortified by the attitude of the appellant's counsel.
[47]
Now I turn to the second leg of the appeal, the sentence. The
personal circumstances of the appellant were as follows:
He
was born on [….] 1986. He was 35 years of age at the time he
committed the offence on 2 April 201. He was 29 years of
age on 21
August 2015 when he was sentenced. He passed
matric, in other words, grade 12. He was an unmarried
man.
He had no dependent minor children. However, his father and his 5
year old niece, depended on him for subsistence. He
was gainfully
occupied as a bricklayer. On average he generated an income of
approximately R4000 per month. To a certain extent,
he was
intoxicated at the time he committed the offence.
[48]
In sentencing the appellant, the court a
quo
took into
account the following as aggravating factors:
that
rape is a serious crime. That he participated in the assault of the
victim; that she sustained multiple injuries; that he
shamelessly continued to openly humiliate her even after the verdict;
that he showed total disrespect towards the victim as a woman
and for
her physical integrity; that he threatened to cut off one of her
breasts; that he did not care to wear a condom;
that his
conduct was indicative of a complete lack of remorse; that there were
poor prospect of having him rehabilitated; that
he was privy to an
immoral pact to mislead the court; that the abuse of women by men was
prevalent in our society; that the interests
of society demanded
meaningful protection of women from abusive men and that the incident
had adverse emotional impact on the victim.
[49]
In sentencing the appellant, the trial judge took into account the
following as mitigating factors:
His
personal profile as previously alluded to and his status as a first
rape offender.
[50]
The court a quo concluded that there were no substantial and
compelling circumstances to justify any deviation from the prescribed
minimum sentence of life. That conclusion is one which, on appeal, I
cannot hold to be wrong. In an appeal against sentence, the
essence
of the enquiry is not whether the sentence was right or wrong, but
whether the court entrusted with the sentencing discretion
exercised
its discretion properly or judiciously.
S v Pillay
1977
(4) SA 531
(A) per Trollip JA.
[51]
In this instance, the appellant's grounds of appeal against sentence
were unmeritorious. I am not persuaded that it can be
objectively
argued and submitted with conviction of conscience that the court a
quo
committed a misdirection so material that it vitiates its
decision on sentence. It being the case, no appellate interference is
warranted, in my view. Therefore, I am inclined to confirm the
sentence and dismiss the appeal as regards sentence as well.
[52]
Accordingly I make the following order:
52.1
The appeal fails in toto.
52.2
The conviction and the sentence are confirmed.
____________________
MH
RAMPAl,J
I
concur
____________________
C
REINDERS, J
I
concur
____________________
JJ
HEFER, AJ
On
behalf of appellant:
Adv PW
Nel
Instructed
by:
Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent:
Adv KE Lesie-Shale
Instructed
by:
Director of Public Prosecutions
Bloemfontein