About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 172
|
|
Mofokeng v S (3996/2013) [2016] ZAFSHC 172 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3996/2013
In
the matter between:
DAVID
MOFOKENG
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J et GELA, AJ
HEARD
ON:
10 OCTOBER 2016
JUDGMENT
BY:
GELA, AJ
DELIVERED
ON:
20 OCTOBER 2016
[1]
This is an appeal against both the conviction and sentence imposed by
a Regional Magistrate, in the Welkom Regional Court on
31 October
2014. The appellant was convicted on a charge of rape and
sentenced to 16 (sixteen) years imprisonment.
The appellant was
granted leave to appeal his conviction and sentence by the High
Court, Bloemfontein on 26 April 2016.
GROUNDS
OF APPEAL
[2]
It is the appellant’s case that the court
a
quo
erred in finding that (a) the case against appellant was proved
beyond reasonable doubt, (b) the trial court erred in not finding
that the version of the appellant is reasonable possible true.
[3]
The grounds of appeal relating to sentence are that the (a) sentence
imposed by the trial court is harsh and shockingly inappropriate,
(b)
the trial court misdirected itself by not excersing its discretion
judicially but did so improperly and unreasonably (c)
that the
trial court did not properly consider all the relevant factors in the
context of the case (d) the trial court paid scant
if any proper
attention to the personal circumstances of the appellant.
THE
CHARGE AND SUMMARY OF COMPLAINANT’S VERSION
[4]
The appellant faced one count of rape, that on the 25
th
January 2013 in Reitzpark, Welkom he raped the complainant, an 11
year old girl, by penetrating her vagina with his penis without
the
consent of the complainant.
[5]
The evidence of the complainant is that she was playing on the street
until about 20H00 that night when she was called by her
grandmother
and ordered to make a bed for the appellant. She went to sleep
and while asleep she was woken up by the appellant
who was undressing
her underwear and inserting his penis “on my koekie, meaning
vagina”.
[6]
Upon further clarity by the state, she explained that the appellant
had placed his penis on her vagina and made up and down
movements
which she described as being funny things. She told the
appellant about her nose which began to bleed and he let
her go.
She ran to her grandmother who was asleep in the lounge and woke her
up. She then reported to her grandmother
what the appellant had
done to her, and her version from the first report onwards was
corroborated by her grandmother.
[7]
The appellant appeared from the complainant’s bedroom, still
busy putting on his clothes and approached them in the lounge.
The police were contacted and the complainant was taken for a medical
examination. Mavis Quewba, a forensic nurse who examined
the
complainant, noted redness and erosion on the perineum the labia
majora and minora, the frenulum of the clitoris and also that
the
clitoris was bruised and swollen. She concluded that
penetration took place between the two labias. During
cross-examination
Mavis Quewba maintained that there was penetration
through the two labias until the vestibule.
THE
SUBMISSIONS on behalf of the parties:
[8]
Adv. Strauss who appeared on behalf of the state conceded in his
heads of argument that the state did not succeed to prove beyond
reasonable doubt that penetration did occur and therefore the
appellant should have been convicted of sexual assault in
contravention
of section 5 (1) of Act 32 of 2007. When the
definition of “penetration” as per section 1 of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act,
32/2007 was put to him during oral argument he ceased to maintain his
argument
with conviction. Based on an offence of section 5 he
submitted, that in respect of sentence, 5 year’s imprisonment
period antedated from the date the appellant was sentenced by the
court
a
quo
would be appropriate.
[9]
Adv. Van Rensburg drafted appellant’s heads of argument and
argued the appeal before us as well. He attacked the
reliability of the complainant and that of the forensic nurse who
examined the complainant. He emphasised that the evidence
given
by the complainant ruled out any form of penetration, i.e. even the
slightest degree of penetration.
[10]
Adv Van Rensburg submitted that due to the contradictions in the
evidence of complainant and her supporting witnesses and more
specifically that the version of accused is reasonably possibly true,
the conviction of the appellant should be set aside.
LEGAL
PRINCIPLES AND LEGISLATION RELATING TO THE CRIME
[11]
The court approaches the evidence of a child witness and a single
witness with caution, by ensuring that despite any defects,
shortcomings and contradictions, it is satisfied that the truth has
been told, and in the case of a child witness, that such evidence
is
trustworthy. (See S v Sauls and Others 1981 (3) SA 172 (AD) at
180E;
Woji
v Santam Insurance Co Ltd
1981 (1) SA 1020
(A) at 1028 and
S
v Dyira
2010 (1) SACR 78
(ECG) at para [11].
[12]
I also wish to refer to
S v Banana
2000 (2) SACR 1
(ZSC) and the following dictum:
“
Where
the evidence of the single witness was corroborated in any way
which tends to indicate that the whole story was not concocted,
the caution enjoyed may be overcome and acceptance facilitated.
But corroboration is not essential. Any other feature
which
increases the confidence of the court in the reliability of the
single witness may also overcome the caution.”
[13]
The factual findings of the trial court and its acceptance of oral
evidence are presumed to be correct unless and until they
are
demonstrably or on adequate grounds shown to be wrong. (See
S
v Francis and Others
1991 (1) SACR 198
(A)) at 204 d-e.
[14]
When confronted with conflicting versions which cannot be reconciled
the court adopts a holistic approach to available evidence
and has
regard to probabilities. (See
S
v Guess
1976 (4) SA 715
(A) at 718-9.
[15]
Where an appeal is lodged against a trial court’s findings of
fact the court of appeal must take into account that the
court
a
quo
was in a more favourable position than itself to form a judgment.
When inferences from proven facts are an issue, the court
a
quo
may also be in a more favourable position than the court of appeal
because it is better able to judge what is probable or improbable
in
the light of its observation of witnesses who appeared before it.
Therefore, where there has been no misdirection of fact,
a court of
appeal assumes that the court
a
quo’s
findings are correct and will accept these findings, unless it is
convinced that the trial court is wrong. See
R
v Dhlumayo and Others
1948 (2) SA 677
(AD) at 705-706.
[16]
It follows therefore that in order to interfere with the trial
court’s judgment, 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.
[17]
In
S v Monyane and others
2008 (1) SACR 543
(SCA) the
SCA at para 15 stated that it is only in exceptional cases that it
will be entitled to interfere with the trial court’s
evaluation
of oral evidence and concluded as follows:
“
This
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. 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 shows them to be clearly wrong (
S
v Hadebe and Others
1997
(2) SACR 641
(SCA)
at
645
e
- f
).”
[18]
The crime of rape is committed when a person unlawfully and
intentionally commits an act of penetration with another (the
complainant) without the consent of the complainant. “Sexual
penetration” as defined in section 1 of Act 32 of
2007 includes
“any act which causes penetration to any extent whatsoever by
(a) the genital organs of one person into or
beyond
the genital organ, anus or mouth of another person;” (emphasis
added.)
[19]
“Sexual assault” is defined in section 5 of Act 32 of
2007 as the crime in terms whereof a person unlawfully and
intentionally sexually violates a complainant without the consent of
the complainant. Sexual violation includes any act which
causes
(a) direct or indirect contact between the genital organs or anus of
one person …” (See section 1 of
the aforesaid
Act).
[20]
It is therefore clear that in terms of the aforesaid Act, the crime
of rape is not only committed when for example the penis
of one
person penetrates into the vaginal or anus opening of another person,
but also when the penis of that person causes penetration
to any
extent whatsoever, i.e. into or even beyond the vagina or anus of the
other person.
LEGAL
PRINCIPLES PERTAINING TO SENTENCE:
[21]
The appellant was sentenced to 16 (sixteen) year’s imprisonment
in terms of section 51(1), read with para 1 of Schedule
II of the
Criminal Law Amendment Act, 105 of 1997
and after a finding that
substantial and compelling circumstances existed. The
prescribed minimum sentence for the rape of
the complainant, an 11
year old girl and thus under the age of 16, is life imprisonment.
Although the appellant is not the
natural grandfather of the
complainant, he is old enough to be the complainant’s
grandfather.
[22]
In
S
v PB
2013 (2) SACR 533
(SCA), in line with
S
v Matyityi
2011 (1) SACR 40
(SCA) and
S
v Malgas
2001 (1) SACR 469
(SCA), the Supreme Court of Appeal emphasised that
prescribed minimum sentences should not be departed from lightly or
for flimsy
reasons.
[23]
The determination of sentence in a criminal case is a matter for the
discretion of the trial court. Our powers, sitting
as we are on
appeal, are limited when it comes to the sentence in so far as we can
only interfere with the same where the sentencing
court committed a
material misdirection or the sentence imposed is not proportionate or
such that the court did not exercise its
discretion properly or at
all. (See
S
v Pieters
1987 (3) SA 717
(A)). (See also
S
v Kibido
1998 (2) SACR 213
(SCA) at 216 g-i.
[24]
It is also settled law that the court of appeal will not alter a
sentence imposed by a trial court unless it has established
that no
reasonable person ought to have imposed such a sentence, or that the
sentence is totally out of proportion to the gravity
or magnitude of
the offence, or that the sentence evokes a feeling of shock or
outrage, or that the sentence is grossly excessive
or insufficient,
or that the trial court has not exercised its discretion properly.
See
S
v Fhetani
2007 (2) SACR 590
(SCA) at para 5 and
DPP
Kwazulu Natal v P
2006 (1) SACR 243
(SCA) at 254 c-f,
S
v Bogaards
2013 (1) SACR 1
(CC) at para 41.
FINAL
EVALUATION OF EVIDENCE
[25]
On the night of the 25 January 2013 complainant who had been sleeping
in her bedroom woke up her grandmother who had been sleeping
in the
lounge and reported what the appellant had done to her. The
appellant came out of the complainant’s bedroom
still fiddling
with his clothes and approached them. The appellant denied that
he had any form of sexual contact with the
complainant.
[26]
The medical report and the testimony of Sr Mavis Quewba corroborate
the complainant’s version in that Sr Quemba concluded
that
penetration took place between the labias as per the injuries seen.
[27]
The appellant gave an improbable version which was in many aspects
not even presented to state witnesses for comment.
His version
was correctly rejected as false with regard to the events that
occurred on 25 January 2013.
[28]
It is accepted that “full” penetration did not occur,
however the facts stated by the complainant and corroborated
by
objective facts are indicative that the crime of rape, based on the
definitions referred to above, was committed.
[29]
I am satisfied that a proper case has been made out for the
conviction of the appellant, and that the appeal in this regard
should be dismissed.
[30]
With regard to sentence, in my opinion the trial court correctly
found that there were substantial and compelling circumstances
justifying the deviation from the prescribed minimum sentence of life
imprisonment. Regarding the sentence of 16 years imprisonment,
it is trite law that this court will not interfere with the sentence
imposed by the trial court, unless it is satisfied that the
sentence
has been vitiated by misdirection or is disturbingly inappropriate.
No misdirection has been alluded to, nor can
we find any. It
also cannot be said that the sentence induces a sense of shock.
ORDER:
[31]
Consequently the following order is made:
The
appeal against both the conviction and sentence is dismissed.
The
conviction and sentence are confirmed.
___________
N.
GELA, AJ
I
concur
_____________
J.P.
DAFFUE, J
On
behalf of the appellant:
Adv. Van Rensburg
Instructed
by:
Jacques Groenewald Attorneys
Kroonstad
On
behalf of the respondent:
Adv. Strauss
Instructed
by:
Office of the Director: Public Prosecutions
Bloemfontein
/PK