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[2016] ZAFSHC 151
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Mokoena v S (106/2016) [2016] ZAFSHC 151 (15 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. 106/2016
DATE:
15 SEPTEMBER 2016
In
the matter between:
JOHNNY JOSEPH
MOKOENA
.............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
REINDERS, J
et
HINXA, AJ
JUDGMENT
BY: HINXA, AJ
HEARD
ON: 1 AUGUST 2016
DELIVERED
ON: 15 SEPTEMBER 2016
INTRODUCTION
[1]
The appellant was convicted in the Regional Court, Phuthaditjhaba, on
three counts of rape and sentenced as follows:
“
a)
Count 1: Life imprisonment in terms of Act 105 of 1997
b)
Count 2: Ten years imprisonment in terms of Act 105 of 1997
c)
Count 3: Ten years imprisonment in terms of Act 105 of 1997
Order:
No order made in respect of Act 60 of 2000
Order:
Details of the offender to be included in register for sexual
offenders in terms of Act 32 of 2007.”
[2]
The appellant had on 13 December 2012 pleaded not guilty to all the
charges. In his plea explanation he confirmed that he was
with the
complainant on the night in question but categorically denied doing
anything to him.
FACTS
[3]
The complainant was at her home on the day in question when somebody
knocked at ±23H00. She opened since the knocker
identified
himself as the appellant whom she knew as her boyfriend’s
friend. Whilst inside, the appellant asked for the whereabouts
of one
Tsotsi who stole his radio and jacket. Complainant told the appellant
that the stolen items were not there, after which
the appellant
assaulted her with a stone three times. Complainant screamed and
fell. Thereafter the appellant prayed for the rape
he was about to
commit, inserted his tongue and then his finger into her vagina. He
then inserted his penis into her mouth. He
put R200.00 in her
trousers saying he was going to pay the prostitutes with it and the
complainant deserved it. The appellant left
at about 4:00 am. The
complainant then solicited the neighbour’s assistance. They
took her to the hospital where she was
stitched for deep wounds. The
doctor noticed two and completed a medical form (J88). Though the
wounds had healed, she was still
experiencing sporadic headaches.
[4]
The appellant testified in amplification of his defence. In brief he
averred that he was in love with the complainant. On the
day in
question she informed him that her husband would be away, and he
could visit her. He honoured the aforesaid invitation.
On his arrival
the complainant demanded R500.00 alleging she did not get her salary.
The appellant offered R200.00 which the complainant
ridiculed as
worthless. They slept without having sex. He left very early on the
following morning, only to be surprisingly arrested
at ± 10:00
of the same morning for the offences under consideration.
GROUNDS
OF APPEAL
[5]
The appeal is directed at both conviction and sentence. I will start
with the grounds of appeal against conviction.
[6]
The conviction is assailed on the following grounds:
6.1
The court had to make a credibility finding to determine which
version to accept, taking into account the totality of the evidence.
The court erred in not accepting the version of the appellant and
drawing a negative inference against him.
6.2
The court erred in finding that the complainant was a credible
witness.
6.3
The J88 does not corroborate the complainant’s testimony that
there was genital penetration.
6.4
It was clear from the complainant’s evidence that these acts
all happened at the same time and were uninterrupted although
it
lasted for long time. Those acts were confined to the same place and
happened one after each other. The court erred in finding
that these
acts contemplated separate acts of rape.
6.5
The court erred in finding that the State had proved its case beyond
reasonable doubt.
[7]
It admits of mentioning at this juncture that Adv. Maphumulo, on
behalf of the respondent, vehemently opposed the appeal against
conviction. I will only focus on the salient facts as I see them. In
brief, he premised his case on the following grounds:
7.1
The testimony of the complainant although a single witness was clear
and straightforward and could not be faltered in any material
respect.
7.2
In terms of Section 208 of Act 51 of 1977 the accused can be
convicted on the evidence of a single witness provided it is reliable
which was the case in this matter.
7.3
The complainant did not contradict herself in any material respect
and gave a good impression as a witness.
7.4
Her evidence is supported by medical evidence save for the third
injury which the doctor did not observe since it was not an
open
wound.
7.5
The injuries from the mouth and vagina could not be inspected since
the complainant was submissive and the penetration was not
rough.
7.6
The severe injuries on the complainant’s head who had just been
with the appellant were compatible with rape by the appellant.
7.7
The appellant’s version that his alleged lover could, for no
rhyme or reason, falsify him in court was not reasonably
possible
true and was correctly rejected.
7.8
The complainant’s account of events was corroborated by the
appellant who conceded being at the crime scene.
7.9
The only inference to be drawn from the complainant’s injuries
is that the appellant violently raped her.
7.10
Taking into account all the probabilities and improbabilities, the
complainant’s version is a more probable one.
THE
LEGAL POSITION
[8]
If an appeal is directed against a
court a quo
’s
findings of fact, the court of appeal must be mindful that the
court
a quo
was in a better placed position than itself to form a
judgment. When inferences from proven facts are in issue, the court
a
quo
may also be in a better placed position than the court of
appeal, because it is better able to judge what is probable in the
light
of its observation of witnesses who have testified before it.
Therefore, where there have been no misdirections of fact a court
of
appeal must assume that the
court
a quo
’s
findings are correct and will accept these findings, unless it is
convinced that they are wrong. (See
R v Dlumayo and Another
1948 (2) SA 677
(AD) at 705-6).
9]
Thus, in order to interfere with a
court
a quo
’s
findings, it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory,
or where
the record shows them to be such. See also
S v Monyane and
others
2008 (1) SACR 543
(SCA) at para [15] where the Supreme
Court of Appeal stated that it is only in exceptional cases that that
court will be entitled
to interfere with the court
a quo
’s
evaluation of oral evidence. The court stated:
“
This
court’s powers to interfere on appeal with the findings of fact
of a trial court are limited. It has not been suggested
that the
trial court misdirected itself in any respect. In the absence of
demonstrable and material misdirection by the trial court,
its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence show them to be clearly
wrong (S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f). This, in my
view, is certainly not a case in which a thorough reading of the
record leaves me in any doubt as
to the correctness of the trial
court’s factual findings. Bearing in mind the advantage that a
trial court has of seeing,
hearing and appraising a witness, it is
only in exceptional cases that this court will be entitled to
interfere with a trial court’s
evaluation of oral testimony (S
v Francis
1991 (1) SACR 198
(A) at 204E)
”.
[10] I find all the
aforegoing dicta cumulatively not only apposite but also instructive
in the circumstances obtaining in this
matter.
[11] It admits of no
doubt that the state’s case in this matter turned on the
evidence of a single witness. Consequently,
it is trite exposition of
our law that this matter cries out for a degree of cautionary
approach.
EVALUATION
OF EVIDENCE
[12]
I next turn my attention to the grounds of appeal; the evidence
adduced, and the judgment pronounced by the court with the
aforestated dicta uppermost in mind. By way of prelude, I pause to
point out that, in accepting the evidence of the complainant,
the
court a quo
(“the court”) warned itself of the
special danger besetting conviction on the evidence of a single
witness.
[13] In heeding the
cautionary rule approach the court made the following observations at
paras [5] – [10], page 32 of the
judgment,
“
The
court has got to determine as to whether the evidence of such a
nature, in this particular instance and as far as the complainant
is
concerned whether it was clear and satisfactory in every material
respect and if so, in view of the fact that she has been a
single
witness. On itself, if clear and satisfactory in every material
respect and obviously she passes the test and her evidence
can be
“accepted
”.
[14] At paras [15] –
[20] the court concluded,
“
Now the
complainant testified, she testified well. She was in nowhere
finished out by the defense. She stood her ground in as far
as the
evidence relating to the various charges, three in all, is concerned.
She was clear. She was coherent. She had an answer
for every question
and she did not in any way deviate from the version that she
presented via prosecution.
”
[15]
In analysing the defence evidence, the court observed at paragraph 20
page 32 – paragraph 10 page 33,
“
What I
cannot understand is that even though the accused states that the
complainant laughed at him, why then should she invite
him to bed.
Secondly, if she was dissatisfied with it, then that question of
going to bed would not even have arisen. Thirdly,
if she was falsely
incriminating him because he did not give her R500.00 except R200.00
then once again the question of the bed
would not have come about.
Fourthly, if she was having an affair with him, right up until the
day he was arrested, then the question
relating to the false
incrimination could never have come around
”.
[16] In dismissing
the defence contention that the appellant was the complainant’s
secret lover and an invitee on this day
the court posed the following
questions,
“
If she…
invited you, then why would she trump up such a story against you?
So, from 4:00 o’clock to 10:00 o’clock
in the morning
someone assaulted her, so seriously that she goes (sic) to the
police, the police take (sic) her to the hospital
and the doctor
notes (sic): in the state of shock and crying?”
.
The court then
concluded,
“…
and
you must remember it takes too much more to have a secret love affair
than a normal known affair. In other words, there would
be more
protection of it and favoured (sic) towards a secret lover than an
ordinary lover, a day to day lover. In the light of
the evidence, I
will reject your version as “being false
”.”
[17] At this
juncture I would venture to add that the aforesaid protection of this
love affair would be more called for in the case
of a married woman
like the complainant if she were embarking on adulterate relationship
with the appellant. A
fortiori
, perhaps not only a protection
but a watertight insulation of secrecy in view of the danger
attendant upon having an affair with
a married woman. That is all the
more so that no one had detected their “adultarate”
conduct on this night, whereupon
it might be assumed on behalf of the
appellant that the complainant was scapegoating. Whilst on this
point, it would still be inconceivable
as to how would the
complainant scapegoat by self-inflicting such serious injuries on the
delicate part of her body, to wit, a
head.
[18]
I pause at this stage to observe some material and crucial
discrepancies in the appellant’s canvass of events:
18.1
It is common cause that the appellant slept with the complainant for
the whole night in question and that the latter woke up
afflicted
with serious head injuries on the following morning. The appellant’s
testimony that he did not even notice such
injuries, let alone
causing them, is devoid of any credence. If anything, it tends to
lend credence to the appellant’s version
that the injuries were
inflicted by the appellant.
18.2
The next question that calls for consideration is the rationale
behind such infliction. Logically, the appellant could not
be drawn
into this question since he did not even see the aforesaid injuries
on the one hand. On the other, the complainant’s
account (that
the injuries were a precursor to the rape) has much to commend it.
18.3
According to the appellant, “We were
always
involved in
a love relationship…” (my underlining). The view I take
is that by “always”, appellant sought
to emphasize an
intimate relationship with the complainant, hence my underlining of
“always”. Bizarrely, this version
rang hollow when he
further stated that from 2010 to 2012 they had sex only once. I must
hasten to point out that this adds substance
to the appellant’s
evidence that they never fell in love.
[19]
I now revert to the complainant’s testimony. She withstood the
grueling cross examination by the appellant’s legal
representative (“Mr. Venter”). The hereunder “question
- answer” exchange between the complainant and Mr.
Venter
lucidly illustrates how the complainant firmly stood her ground. For
the sake of brevity, I will only advert to those pertinent,
as I see
them:
“
Q
… You asked him to come and visit… because your husband
is not home
A.
I never invited him.
Q.
He will further testify that you asked him R500.00 because you said
you did not received (sic) your salary.
A.
No, that is not true.
Q.
… He did not have R500.00 because his wife is sick
and
pregnant …
A.
No, I never asked him for anything.
Q.
… You told him that you and him must go to bed …
to sleep.
A.
No.
Q.
… he slept with you, nothing happened.
A.
… It was actually him after he had hit me with the stone who
told me to undress and go to bed, after refusing to kiss
him.
Q.
You woke him up round about three to four ….
A.
I never woke him up.
Q.
He did not see any injuries on you. You did not have
any
injuries when he was there.
A.
He is the one who caused me injuries … When he arrived
there I had no injuries.
Q.
He will testify that he did not see any injuries because your head
was covered, as it is today.
A.
I was not wearing a hat on my head.
Q.
He will deny that he hit you with a stone.
A.
He did it, he even left the stone … on the table.
Q.
He will deny that he did all this (sic) sexual things that you
testified about
A.
He did everything to me
”.
[20]
Although a vigorous attempt had been wielded during trial; in the
heads of argument; and during viva voce arguments in court
against
the credibility of the complainant, I am not persuaded that the court
erred in its assessment of the witness. The impression
produced by
the aforestated “question –answer” exchange and the
reading of the record in its entirety present
more vividly a very
credible witness in complainant.
[21]
The problems plaguing the appellant’s case regarding
credibility do not end here. One may do well to keep in mind that
Mr.
Venter who appeared on behalf of the appellant during trial conceded
that the complainant “was a good witness”
(See
paragraph 5 page 28). Almost similar sentiments were echoed in the
heads of argument that the complainant “gave her
testimony
chronologically” (See paragraph 4.1 page 5). Ironically, in the
same heads of argument, one of the main thrusts
of the argument was
that “the court erred in finding that the complainant was a
credible witness” (See paragraph 1.4.2
page 2). Adv. Kruger who
argued the appeal in court on behalf of the appellant found herself
in an invidious situation: She had
to reconcile the two diametrically
opposed submissions, yet she neither represented the appellant during
trial nor drafted the
heads of argument. She then unpersuasively
opted for the contention that the complainant was not a credible
witness.
[22]
I deal last on this topic with another ground of appeal which was
vigorously advanced viz, separate acts of penetration linked
in time
and place would be less likely to be deemed separate acts of rape.
This view resonates well with, and heavy reliance was
placed on, the
dictum of
S v Blaauw
1999 (2) SACR 295
(W). At 300
(a-d) the court reasoned as follows,
“
Mere
and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape. A rapist
who in the
course of raping his victim withdraws his penis, positions the
victim’s body differently and then again penetrates
her, will
not in my view, have committed rape twice. This is what I believe
occurred when the accused became dissatisfied with
the position he
had adopted when he stood the complainant against the tree. By
causing her to lie on the ground and penetrating
her again after she
had done so, the accused was completing the act of rape he had
commenced when they both stood against the tree.
He was not
committing another separate act of rape. Each case must be determined
on its own facts. As a general rule
the more closely
connected the separate acts of penetration
are in terms of
time (ie the intervals between them) and place, the less likely a
court will be to find that a series of separate
rapes has occurred.
But where the accused has ejaculated
and
withdrawn his penis from the victim, if he again penetrates her
thereafter, it should, in my view, be inferred that he has
formed the
intent to rape her again, even if the second rape takes place
soon
after the first and at the same place
” (my
underlinings).
[23]
I find the aforestated sentiments not only apt but also informative
on the facts obtaining
in casu
. In this connection, the
complainant merely testified as follows:
“
When
we got to the bed the accused person inserted
his tongue
into my vagina and also his finger
(my underlining). He
then told me that he
cannot ejaculate so I should open my
mouth
so that he can insert his penis in my mouth (my
further underlining). I ended opening my mouth and the accused person
inserted
his penis into my mouth
”.
[24] I now proceed
to consider the aforementioned testimony in the light of Blaauw case:
Firstly,
at the risk of stating the obvious, the complainant did not, even in
the slightest, allude to any pause between, or any
longevity of, the
penetrations of her vagina with a tongue and a finger, hence my first
underlining in her testimony above. This
leads to an irrefutable
inference of “closely connected separate acts of penetration”
envisaged in my first underlining
in Blaauw case (
supra
) which
is suggestive of a single rape.
Secondly,
the Blaauw case postulated an act of ejaculation followed by another
penetration as reminiscent of an act of a separate
rape. It is common
cause that the appellant’s separate penetration
in casu
was
expressly sparked by his non ejaculation, hence my second
underlinings in both Blaauw case and the complainant’s
testimony.
Thirdly,
it admits of no doubt that the appellant, by penetrating the
complainant’s mouth, was dissatisfied with the initial
position
of vaginal penetration as he would not ejaculate. This resonates well
with the reasoning in Blaauw case when the court
held,
“
This
is what I believe occurred when the accused became dissatisfied with
the position he had adopted when he stood the complainant
against the
tree
”.
[25]
There exist merit and substance in the appellant’s contention
that, even if the three (3) acts of penetration were proved
by the
state, there was one act of rape.
SENTENCE
[26]
In turning my attention to the appeal against sentence, I deem it
proper to hereunder reproduce the grounds advanced:
26.1
Appellant is a first offender for this type of offence.
26.2
Appellant has good potential for rehabilitation and this alone is a
mitigating factor.
26.3
There was no evidence of any lasting emotional trauma suffered by the
complainant.
26.4
The court a quo did not mention any aggravating circumstances in
getting to its conclusion that there were no compelling and
substantial circumstances present to deviate from the minimum
sentence, although the following should be considered:
a)
Appellant brutally assaulted the complainant
b)
Seriousness of the offence
c)
Community interests
26.5
If the argument mentioned in the merits is accepted by appeal court,
the applicable minimum sentence is ten years.
I
pause to mention that the argument alluded to herein is the one of a
single rape instead of three rapes, an argument which has
been found
at paragraph 25
supra
to be sustainable.
26.6
If the mentioned submission on merits is not accepted it is unclear
how the appellant was sentenced to life on the first count
of rape as
it is clear that this was a guilty finding in terms of Section 51(3)
with a minimum sentence of ten years imprisonment.
26.7
Only after the third conviction on a charge of rape the applicable
minimum sentence is life imprisonment. If this decision
is upheld the
court did not properly consider substantial and compelling
circumstances.
26.8
This instance does not constitute the most serious scenario of rape
and there has to be differentiation between degrees of
scenarios and
the court should deviate from minimum sentence.
The
submissions concluded by arguing for a sentence of twenty (20) years.
[27]
In his support for life imprisonment, Adv. Maphumulo for the
respondent premised his contention on two grounds:
27.1
Complainant was raped more than once.
27.2
Serious injuries inflicted on the complainant during the commission
of rape.
[28]
This leaves consideration of the question of sentence. Pertaining to
the sentence procedure adopted by the court, I must hasten
to point
out that there is credence in the appellant’s argument that’
“
the court did not mention any aggravating circumstances in
getting to the conclusion …
”.
I
would venture to add that the court appears to have laboured under
the misconception that if an accused has been convicted of
“one
of the more serious offences as contemplated in Act 105 of 1997”
the absence of substantial and compelling circumstances
is more
likely to follow than not. (See Page 37-38 of the record). This did
not only amount to an irregularity but it also left
out of account
the salient principle of the sentencing regime that even where the
Act prescribes a minimum sentence, the courts
must still seek to
differentiate between sentences in accordance with the dictates of
justice (See
S v GN
2011 (1) SACR 93
at 97d-e).
[29]
The full canvass
in casu
presents more vividly that the court
did not weigh any evidence in mitigation and aggravation. It simply
concluded that there were
no substantial and compelling circumstances
warranting deviation from the minimum ordained sentence. Whilst on
this point, it is
timely to advert to the sentiments of Ackerman J in
S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC). At para
[38]
he
observed,
“
To
attempt to justify any period of penal incarceration, let alone
imprisonment for life as in the present case, without enquiring
into
the proportionality between the offence and the period of
imprisonment, is to ignore, if not to deny, that which lies at the
very heart of human dignity …
”
[30]
That having been said, the first question for consideration is
whether this misdirection or technical irregularity on the part
of
the magistrate in his approach to sentencing regime dictates the
setting aside of the sentence without further ado. A
brief
overview of the authorities is necessary.
[31] 31.1 In
R
v Harmse
1906 TS 50
at 52 Innes CJ opined that it was
possible for the proceedings to be in accordance with real and
substantial justice even though
a rule of criminal procedure may not
have been observed.
31.2
In
S v Daniel Maake
, an unreported judgment of North
Gauteng Division case No. A592/86, Kriegler J, with whom Strydom J
agreed, confirmed an incompetent
sentence where the circumstances of
the case did not warrant the setting aside thereof.
31.3
One may do well to keep in mind that in the same division, Kriegler
J, with whom Van der Merwe J concurred, also refused to
set aside a
sentence of a fine, where the relevant legislation did not provide
for a fine, in the unreported case of
S v Sipeng and Nkung
,
Case No. A1125/88.
At
the risk of stating the obvious, the sentence imposed in the current
appeal is ordained in the enabling legislation.
[32]
Directly in point, is the matter of
S v Cedars
2010 (1)
SACR 75
(GNP). At 77, para [9], Hartzerberg J, relying on Harmse case
(
supra
) concluded,
“
I
am satisfied that the sentence was in accordance with real and
substantial justice although there was a technical irregularity.
”
[33]
I find the sentiments expressed by Innes CJ in Harmse’s case as
valid today as they were in 1906 (110 years ago). Whilst
the dictum
was referring to reviews, I see no reason why it cannot be applicable
to appeals also. It is unthinkable that the same
irregularity may be
condoned in reviews, yet held to be vitiating the proceedings in
appeals.
[34]
The next question is whether the sentence imposed accorded with real
and substantial justice or is shockingly excessive. It
is beyond
question that the sentencing court should impose an appropriate
sentence based on all the circumstances of the case,
and should
reflect the severity of the crime, the blameworthiness of the
offender, and serve the interests of the society. (
S v Zinn
1962 (2) SA 537
(A)).
[35]
The abuse of women in this country has assumed tremendous
proportions. As the Constitutional Court put it in
F v Minister
of Safety and Security
2012 (1) SA 536
CC in paragraph [56]:
“
The
threat of sexual violence to women is indeed as pernicious as sexual
violence itself. It is said to go to the very core of subordination
of women in society. It entrenches patriarchy as it imperils the
freedom and self-determination of women. It is deeply sad and
unacceptable that few of our women or girls dare to venture into
public spaces alone, especially when it is dark and deserted.
If
official crime statistics are anything to go by, incidents of sexual
violence against women occur with alarming regularity.
This is so
despite the fact that our Constitution, national legislation,
formations of civil society and communities across our
country have
all set their faces firmly against this horrendous invasion and
indignity imposed on our women and girl children
.”
[36]
The offence with which the appellant was convicted of is governed by
the provisions of Section 51 of the Minimum Sentence Act,
and Marais
JA reminds us in
S v Malgas
2001 (1) SACR 469
(SCA) in
paragraph 25 that,
“
Courts
are required to approach the imposition of sentence conscious that
the legislature has ordained life imprisonment as the
sentence that
should ordinarily and in the absence of weighty justification be
imposed, and that if there is sufficient basis for
deviation from
imposing the prescribed minimum sentence, account must be taken of
the fact that crime of that particular kind has
been singled out for
severe punishment and that the sentence to be imposed in lieu of the
prescribed sentence should be assessed,
paying due regard to the
bench mark which the legislature has provided
”.
[37]
In this matter the rape was accompanied by a serious attack on the
victim with a dangerous weapon (stone) on the delicate part
of the
body (head). This act on its own is punishable by life imprisonment
as it resorts under Part 1 Schedule 2 of the Act.
The
problems surrounding aggravation afflicting the appellant’s
case at the helm of the presented evidence did not end here.
The
whole saga unfolded at the complainant’s place from ±
23H00. This triggers a vexing question as to where will
the women in
this country be tightly secured if not at their places of residence.
It is despicable and disquieting that few of
our women dare to
venture alone into their residences. The appellant penetrated the
complainant three times, inclusive of a mouth
penetration with his
penis, which must have been, to put it as mildly as I can, traumatic
and must still be rekindling memories
of such trauma.
[38]
Taking into account all the circumstances of this case, I am of the
view life imprisonment would be appropriate.
[39]
In the result, I propose the following order:
1)
The appeal against convictions on three (3) counts of rape and three
(3) consequential sentences imposed succeeds.
2)
The three convictions and three sentences are set aside and
substituted with the following:
a)
The appellant is convicted on one count of rape.
b)
The appellant is sentenced to life imprisonment.
3)
Orders made in terms of Act 60 of 2000 and Act 32 of 2007 are
confirmed.
M.
D. HINXA, AJ
I
agree.
C.
REINDERS, J
On
behalf of the appellant: Adv. S Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent: Adv. RB Maphumulo
Instructed
by: Director of Public Prosecutions
BLOEMFONTEIN