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[2016] ZAFSHC 135
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Mahlaba v S (A109/2016) [2016] ZAFSHC 135 (19 August 2016)

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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Nr: A109/2016
In
the appeal between:
THAPELO
ISAAC
MAHLABA
..............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
C. REINDERS, J
et
MD HINXA, AJ
JUDGMENT
BY: HINXA, AJ
HEARD
ON: 1 AUGUST 2016
DELIVERED
ON: 19 AUGUST 2016
[1]
On 4 August 2011 the appellant was convicted in the Regional Court
at Harrismith on one count of rape. The state alleged that
the
provisions of
Sections 51(1)
of the
Criminal Law Amendment Act 105 of
1997
were applicable in that the victim was a 14 year old, mentally
disabled child. On the same day of conviction, he was sentenced to

life imprisonment.
[2]
The appellant, who was represented in the court a quo, pleaded not
guilty to the charge and tendered admissions in terms of
Section 220
of the
Criminal Procedure Act 51 of 1977
, which can be summarised as:
2.1
He had consensual sex with the complainant on the 23 March 2008.
2.2
He was dating with the complainant and the latter had told him she
was 20 years old.
[3]
The facts underpinning the conviction were succinctly as follows: The
complainant was a 14 year old mentally retarded child,
such
retardation being a common knowledge in the farming area of less than
50 inhabitants. In addition, the appellant would frequently
visit the
neighbours and sometimes her family since he (appellant) was working
with the father of the complainant. Pursuant to
such visits, he was
more cognisant of the complainant’s mental condition. Even the
investigating officer (Mr. Zimu) realised
at first glance that
complainant was gripped with a mentally related problem and could not
proceed with his intended consultation.
On the day in question (4
August 2011) the complainant visited her aunt within the farming
area. Her non return sent distress signals,
whereupon her mother (T
M) set out for a searching spree. She met the appellant who, on
enquiry, denied ever seeing the complainant.
In vain, she returned
home, only to find the complainant already there. On asking her where
she had been, the complainant cried.
She (the mother) solicited the
assistance of the complainant's grandmother (S M). The latter's
thorough inspection of the complainant
uncovered grass on the
complainant's panties which bore all the hallmarks of rape. Further
information elicited from the complainant
implicated the appellant of
this offence, as a result of which he was arrested. During his
subsequent bail application proceedings,
he categorically refuted any
sexual intercourse with the complainant. Bizarrely, he changed this
version to that of consensual
intercourse after the DNA results had
positively linked him to the offence. In amplification of his
defence, he contended that
they had been dating with the complainant
who assured him that she was 20 years old. Furthermore, he was not
alive to the complainant's
mental disability, continued his version.
[4]
I pause to mention that the state did not see it prudent to tender
complainant's
viva voce
testimony, ostensibly due to the aforestated mental problem. On the
contrary, the prosecutor brought the complainant before the
court for
"observation" by the court to prove that she was, at first
glance, conspicuously mentally disturbed.  However,
the court's
"observation" yielded opposite findings in that the
magistrate observed, "she looks fine to me".
I venture to
mention that this was not only irregular but also a violation of the
complainant’s rights to privacy, bodily
integrity, and dignity
(See
S v Mnguni
2014 (2) SACR 595
at 620 para [21] – [23]).  The state, in
fortification of its case, then tendered (with consent) the following
documents
it seemed pertinent: birth certificate of the complainant;
medical report from Prof. Calitz pertaining to the complainant's
mental
status; DNA results report; and medical report on complainant
regarding rape (J88).
[5]
The appellant testified in amplification of his case and called no
witness. In brief, he reiterate the contents of his
Section 220
admissions: That the complainant deceived him into believing that she
was 20 years old; that they were dating for 4-5 weeks before
the date
of this incident; that he never was, nor did he have any reason to
be, cognisant of the complainant’s mental state.
[6]
I interpolate at this juncture to state that the appellant also
brought to the fore new crucial issues for the first time: That
the
complainant's mother knew about her love affair; that also one T knew
about this affair and the aforesaid T would testify in
strengthening
the defence case; that he (appellant) used to give complainant money
during his pay days which would sustain her
entire family; this
evidently exuded implicit approval of the love affair by the
complainant's mother; his (appellant’s)
abrupt cessation of the
aforestated financial support elicited the family wrath, hence this
accusation against him.
[7]
It bears mentioning at this stage that the aforementioned T was not
called as a defence witness. The appellant, in closing his
case,
placed on record that T would not take his case anywhere.
[8]
In this appeal a high premium was placed basically on three questions
by Adv. Kambi on behalf of the appellant:
8.1
Whether the court a quo complied with the provisions of
section 193
and
194
of the
Criminal Procedure Act 15 of 1977
.
8.2
Whether the Appellant knew at the time of the commission of the
offence that the complainant was incapable of making informed
consent
due to her age and her mental status.
8.3
Whether the Appellant had sexual intercourse with the consent of the
complainant.
[9]
Adv. Maphumulo, on behalf of the respondent contended in respect of
questions 8.2 and 8.3
supra
that the appellant was privy to the mental retardation of the
complainant and the latter did not consent. He premised his
submissions
on a plethora of reasons which will hereunder unfold in
the course of this judgment.
[10]
It is significant to record that no contention was advanced for the
respondent as regards question 8.1 raised on behalf of
the appellant
supra
.
[11]
At this juncture I see it fitting to hereunder consider seriatim the
questions posed as grounds of appeal on behalf of the
appellant.
[12]
It may serve a useful purpose to recite both sections since they are
at the heart of the intrigue.
a)
Section 193
reads as follows:
“
The
court in which criminal proceedings are conducted shall decide any
question concerning the competency or compellability of any
witness
to give evidence”
b)
Section 194
on the other hands provides:
“
no
person appearing or proved to be afflicted with mental illness or to
be labouring under any imbecility of mind due to intoxication
or
drugs or the like, and who is thereby deprived of the proper use of
his reason, shall be competent to give evidence while so
afflicted or
disabled”.
[13]
In this connection, I see it meet to refer to
S
v Katoo
2005 (1) SACR 522.
At
527(j) – 528(b) the court held:
“
The
Trial Court had a duty properly to investigate the cause of her
imbecility before concluding that she was incompetent.
Section 193
enjoins a trial court to enquire into this issue and decide whether a
witness is in fact incompetent. This may be done by way of
an enquiry
whereby medical evidence on the mental state of the witness is led or
by allowing the witness to testify so that the
court can observe him
or her and form its own opinion on the witness’s ability to
testify. In the past the courts in this
country have permitted
persons suffering from mental disorders as well as imbeciles to
testify subject to their being competent
to do so… That
approach is in harmony with the perception contained in
S192
to the
effect that someone is a competent witness…”
[14]
I find the sentiments expressed in
Katoo
case
supra
not
only apt but also instructive on the facts obtaining in this case. It
is common cause that compliance with
Section 193
and
194
by the court
a quo, if there was any, did not conform to the requirements laid
down in
Katoo
case (
supra
).
It is further common cause as alluded at paragraph 10
supra
that there was no explanation, let alone justification, advanced for
the respondent for such glaring anomaly. It follows logically
thus
that the answer to the first question raised on behalf of the
appellant should be answered in his favour, viz, the court a
quo did
not comply with the provisions of the aforestated sections.
[15]
I turn next to consider the remaining two questions. I see it
appropriate to deal with them simultaneously since they are closely

related.
[16]
In its judgment, the court
a quo
summarised its findings as
regards the two questions in issue as follows:
“
Uit
die getuienis wat aangebied is, is dit duidelik dat die klaagster ‘n
geestesgestremde of ‘n … ja, ‘n
geestesgestremde
persoon is en dat sy ook ‘n kind was ten tyde die pleging van
die misdryf. Die beskuldigde voer aan dat
hy onder die indruk was dat
die klagster heeltemal normaal is en wel tot geslagsgemeenskap kon
toestem. Volgens die getuienis wat
aangebied is deur die Staat blyk
dit egter dat die klaagster nie tot geslagsgemeenskap kon toestem
nie. Na oorweging van die getuienis
as ‘n geheel aanvaar die
Hof die getuienis wat deur die Staat aangebied is as bewys bo
redelike twyfel. Volgens die Klaagster
se moeder asook kapt. Zimu kan
‘n mens duidelik agterkom dat die klaagster geestesgestremd is
waneer daar met haar gesprekke
gevoer word. Volgens die kind se
moeder moes die beskuldigde daarvan bewus gewees het, want hy het
gereeld besoek afgelê
by hulle aan huis en hy het ook
vriendskapverhouding met die kind se pa.”
[17]
Adv. Maphumulo for the respondent, in support of the judgment,
persuasively argued the two points in issue placing heavy reliance
on
the following facts:
i)
The appellant first denied sexual intercourse during bail
application, only to change to consensual intercourse when the
positive
DNA results linking him were on hand.
ii)
It is incomprehensible how the appellant would not know the
complainant’s mental condition and her tender age yet he
(appellant) was staying in the neighbouring farm with not so many
inhabitants. This contention was further bolstered by the fact
that
the appellant used to occasionally visit the complainant’s
father and he (appellant) would not be oblivious to the complainant’s

plight, continued the submission.
iii)
The constant reference by the appellant to the complainant as a
“child” during cross examination was also an indication

that the appellant was fully aware that the complainant was a minor.
iv)
If Captain Zimu at first encounter with the complainant for
consultation purposes could immediately grasp that she was not
mentally capacitated, it was quite strange how the appellant would
not have realised this when he had conversation with the complainant

to secure sexual intercourse.
[18]
It follows on the view that I take of this matter that the findings
by the court a quo on the two issues cannot be faulted.
The findings
are properly premised on,
inter alia
,
the persuasive reasons advanced by Adv. Maphumulo for the respondent.
[19]
Whilst on this point, it behoves me to record some observations
underscoring the improbability of the appellant’s version
on
the two issues under review. What one sees here is excessively
innovatory versions by the appellant whenever he realized that
the
odds were heavily stacked against him. The hereunder are in addition
to those already raised at paragraph 17
supra
:
a)
Before his evidence in chief, he never divulged a crucial issue that
one T was privy to their love affair with the complainant.
At the
risk of stating the obvious, he only mentioned this in his evidence
in chief.
b)
Before cross examination by the prosecutor, he did not see it fit to
mention that the complainant’s mother was also aware
of, and
implicitly approved, the affair.
c]
It only unfolded under cross examination that the appellant had been
financially maintaining complainant’s family and that
he was
only falsified for rape when he desisted from such.
[20]
The aforegoing ineluctably drives one to an inescapable conclusion
that the appellant’s account of events is bordering
absurd and
palpably false. Consequently, it is my finding that the appellant was
fully cognisant of the complainant’s mental
disability and
there was no consensual intercourse between them.
[21]
However, this is not the end of the matter. Another crucial issue has
to be determined viz whether the conviction can still
prevail despite
the failure of the court a quo to comply with
Sections 193
and
194
.
In
this regard I can do no better than refer to the case of
S
v Chabalala
2003 (1) SACR 134
(SCA)
at 139 i-j where the court held,
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of the inherent strengths and
weakness, probabilities and improbabilities on both sides
and having
done so, to decide whether the balance weighs in favour of State so
as to exclude any reasonable doubt about the accused’s
guilt”
[22]
The question that, however, stands to be asked
in
casu
is whether applying the
aforementioned test there remains any reasonable doubt about the
appellant’s guilt pursuant to the
trial court erring in regard
to the provisions of facts 193 and 194.
[23]
In my view the evidence against the appellant is so overwhelming, and
his version so inconsumable, as demonstrated above, that
compliance
with
Sections 193
and
194
would, by no strength of imagination,
strengthen his case. Though non-compliance therewith was, and still
remains, an irregularity,
the latter was not so gross as to vitiate
the propriety of the conviction. There can thus be no prejudice to
the appellant sparked
exclusively by non-compliance with
Sections 193
and
194
by the court a quo.
I
am accordingly satisfied that the conviction cannot be faulted.
[24]
I now turn to deal with the appeal against sentence. It was contended
on behalf of the complainant that there was no attempt
by the state
to elicit any evidence on the emotional impact of the offence to the
complainant; there was no victim impact report
and such report was
relevant to cast some light on the impact of the offence to the
complainant, continued the submission. In this
regard reliance was
placed in a substantial measure on
S v Thato Victorious Ntepe
(A151-2015)
(2016) ZAFSHC 52
(22 March 2016) paragraph 8; the
complainant did not suffer any injuries or serious injuries during
the incident; the attack was
not breathtakingly and brazenly brutal
as envisaged in
S v Matyityi
2011 (1) SACR 40
SCA.
In
conclusion, it was submitted that the cumulative effect of the
following factors constituted compelling and substantial
circumstances:
Appellant was a first offender; he was relatively
young; he spent 12 months in custody pending finalisation of the
case; the state
did not submit victim impact report; the rape does
not fall under the categories of the worse rape.
[25]
In considering an appropriate sentence to impose on the appellant in
casu
, the
court a quo took into account the appellant’s personal
circumstances; the gravity of the offence, and the interests
of the
community. It admits of a finding that the court a quo adopted a well
balanced approach in the determination of what it
deemed to be a
proper punishment, considering all the pertinent factors without
under-or overemphasizing one at the expense of
the other.
[26]
The personal circumstances of the appellant alluded to at paragraph
24
supra
are
indubitably relevant factors in determination of sentence. That is
all the more so that he furthermore spent 12 months in custody

pending finalization of the trial. Whilst on its point, it is timely
to refer to
S v Fortune
2014 (2) SACR 178
(WCC) at 188 e-f where the court held that the
question that was to be asked is:
“
Whether
its effect, (time spent awaiting trial - my addition) taken together
with the prescribed minimum sentence, would render
a sentence so
disproportionate to the offence of which the accused had been
convicted as to amount in the context of all the relevant
factors to
substantial and compelling circumstances, warranting the imposition
of a lesser sentence”.
[27]
It is not open to doubt that aggravating circumstances are also
extant in this matter:
The complainant was
not only a child but also mentally retarded, facts which call for a
minimum sentence of life imprisonment each;
the appellant betrayed
the trust implicitly bestowed by the complainant’s parents
since he (appellant) was a co-worker of
the complainant’s
father and an occasional visitor to the latter; the rampant scourge
of these types of offences in our country
has reached not only
astronomical but also alarming proportion; vulnerable groups of the
complainant’s calibre herein deserve
utmost protection and
their ultimate protectors are the counts.
[28]
Weighing all the circumstances of this case, I am not persuaded that
the sentence is shockingly disproportionate to the nature
of the
offences so that it can be typified as gross and thus
constitutionally offensive (See
S v
Vilakazi
2009 (1) SACR 552
SCA).
If
anything, the court
a quo
correctly
concluded that there were no substantial and compelling circumstances
justifying imposition of a sentence lesser than
the one ordained by
the legislature on the count of rape of a mentally disabled minor.
[29]
Consequently, the following order is made:
“
The
appeal against conviction and sentence is dismissed”.
M.
D. HINXA, AJ
I agree.
C.
REINDERS, J
On
behalf of the appellant: Miss. S. Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On behalf of the
respondent: Adv. R. B. Maphumulo
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN