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[2016] ZAGPPHC 523
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Memane v S (A103/2015) [2016] ZAGPPHC 523 (28 June 2016)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: A103/2015
28/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
OUPA
WILLIAM
MEMANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO,
J
:
[1]
The appellant was convicted in the regional court, Nigel, on one
count of rape of a 14 year old girl, in contravention of s
3 of the
Sexual Offences and Related Matters Act, 32 of 2007 read with the
provisions of s 51 of Schedule 2 of the Criminal Law
Amendment Act,
105 of 1997 (the Act). He was sentenced to 20 years imprisonment. He
now appeals against his conviction and sentence
with the leave of the
court a
quo.
THE
APPEAL AGAINST CONVICTION
[2]
The issues raised in the appeal against conviction were that the
trial court erred in finding that the State proved the guilt
of the
appellant beyond a reasonable doubt and that there was corroboration
in the evidence it tendered. It was argued that the
trial court did
not treat the evidence of the complainant, who was a single witness
with regard to the rape count, with caution.
According to the
appellant, the trial court's evaluation of the evidence was flawed
and misdirected.
[3]
It was pointed out that the trial court erred in rejecting the
evidence of the appellant as not being reasonably possibly true,
holding against the appellant the evidence which was not put to the
state witnesses and giving importance to minor discrepancies
between
the defence witnesses. It was further submitted that the trial court
erred in convicting the appellant on the basis that
he did not put to
the complainant the evidence that she had sexual intercourse with the
appellant the day prior to the rape at
a stage when it was not
necessary to do so because the State only later brought DNA evidence
after the appellant had already testified.
[4]
It was also argued that the trial court erred in allowing the State
to reopen its case after the appellant had already testified.
The
trial court did not afford the appellant a fair trial, so it was
argued, in that the State should have known all along that
it could
have presented DNA evidence if it wanted to but elected to proceed
with the trial without the DNA evidence. A submission
was made that
the defence prepared its case based on the evidence the State
indicated it would use, but after the appellant had
testified, the
State decided to use DNA evidence. The defence had to change its
strategy at the end of the trial and the trial
court criticised the
appellant for changing its strategy. It was pointed out that the
trial court erred in granting the State the
application to reopen its
case in order to lead DNA evidence in instances where the State was
bound by its decision not to use
this evidence.
THE
APPEAL AGAINST SENTENCE
[5]
With regard to sentence it was argued that the sentence imposed is
strikingly inappropriate as it is out of proportion to the
totality
of the accepted facts in mitigation and disregards the period of two
years that the appellant spent in custody awaiting
trial. It was
submitted that the trial court failed to take into account the
mitigating factors inherent in the facts proved, the
age of the
appellant, the fact that he was a first offender, the absence of
injuries on the complainant and the fact that the appellant
was a
breadwinner who had to support his three children. Accordingly, so it
was argued that the trial court over-emphasised the
seriousness of
the offence, the interests of society, the prevalence of the offence,
the deterrent effect of the sentence and the
retributive element of
sentencing.
[6]
The State disagreed with the submissions made on both conviction and
sentence. It was argued on behalf of the State that the
appellant was
correctly convicted and that the sentence imposed is justified and
appropriate.
THE
EVIDENCE
[7]
The State called four witnesses, namely, Mr J. T. M., Constable
Mhlongo, Constable Mlambo and Ms R. I. M. (the complainant)
in
support of its case while the appellant testified and also called Mr
Laka Sebati Mogele as his witness.
[8]
Mr J. T. M. (T.) testified that he was with the complainant, who was
his girlfriend at the time, at his parental home in his
bedroom on
the night of 13 January 2013 at approximately 21h00. Shortly after
they had supper and as they were sitting on the blankets
on the bed,
he heard a knock at the door. He asked who that was and the person
identified himself as Oupa (the appellant). He opened
the door for
him. The appellant entered the house holding a knife. He ordered the
complainant to accompany him to her friends.
He told the appellant
that the complainant said it was late in the night. The appellant
eventually ordered him and the complainant
to leave with him to the
place where he wanted to go. He and the complainant walked with him
to show him one of the complainant's
friends' homestead. On their
arrival at the complainant's friend's parental house, he pulled the
complainant and ordered her to
go and call her friend. The
complainant entered the yard and knocked at the door. As the
complainant was knocking, her friend,
J., saw the appellant and
informed her mother that he wanted to take them away by force. J.'s
mother called out a neighbour aloud
and the appellant left J.'s
parental home's yard pulling the complainant.
[9]
The appellant and the complainant walked through Lutule Street to
Nhlalo Street and he followed them. At another friend of the
complainant, Th.'s parental home, the appellant ordered the
complainant to go and call Th.. Th.'s mother peeped through the
window
and asked them what did they want in the night as Th. was
asleep. At that time because he did not have shoes on, he told the
appellant
that he was going home. The appellant threatened to stab
the complainant with a knife in case he did not go. Upon hearing what
the appellant was saying, he turned away and ran to his parental
home.
[10]
The appellant took the complainant away by force. Upon his arrival at
home, his brother asked him what was going on. He told
him what
happened. They went out (him and his brother) to look for the
complainant but did not find her. They proceeded to one
of the
appellant's friends' parental home where they requested some children
to go and knock. The appellant's friend came out and
told them that
the complainant and the appellant were not there. They went back to
J.'s parental home and J.'s mother advised them
to call the police.
[11]
The police were called and ultimately came. He and J. accompanied the
police to the parental home of one of the appellant's
friends. At
that house they called Tb.. Tb. informed them that he did not walk
with the appellant and the complainant but Tc. did.
They eventually
left with Tc. to the appellant's parental home where they found him
and the complainant. Upon their arrival at
the appellant's parental
home, the police knocked at the door. Suddenly the complainant came
out of the house. She was not wearing
a t-shirt and was without
shoes. The police came out of the house with the appellant and
handcuffed him as he tried to flee. He
was then put in the police
van. They proceeded to the police station where he made a statement.
[12]
The complainant was crying. She did not talk at the scene. She only
started talking at the police station. As and when the
police went
into the house with J. at the appellant's parental home, he remained
in the police van.
[13]
He disputed under cross-examination that the appellant was the
complainant's boyfriend and that he was her ex-boyfriend. He
also
disputed that the complainant left with the appellant freely and
voluntarily. He further disputed that when the appellant
left with
the complainant, he met her on the street and did not find her at his
parental home as he testified. He knew the appellant
by sight prior
to the incident. He heard his friends calling him, Oupa. He did not
see any police officer assaulting the appellant.
[14]
Constable Sibonjas Shitangu Mhlongo also testified. His evidence was
that he was stationed at D.za and had two years service
in the SAPS
at the time of the incident. At approximately 23h00 on 13 January
2009, while on duty, he attended a complaint in the
company of
Constable Mlambo. They received the complaint from the radio control
room. The first state witness, T. complained that
a male person came
to his parental home and took his girlfriend away forcefully while
holding a knife. They asked him to give them
directions of the place
where he was. They proceeded to the place where they found T. with J.
and he told them that he could identify
the person but did not know
where he resided. J. directed them to Tb.'s place and Tb. took them
to the appellant's parental home.
He corroborated T.'s evidence that
he entered the appellant's parental home with Constable Mlambo. They
knocked for a long time
without any response. Ultimately a certain
male person, who did not open the door for them, responded and asked
who they were.
They introduced themselves as police officers.
[15]
They told him they were looking for the appellant. He told them the
appellant was not there and also asked what did he do.
He opened the
door a little bit and they insisted that they were looking for the
appellant. As this male person was standing at
the door, talking to
them and holding the door with his two hands, the complainant who was
naked ahd crying, came out of the house
running. She passed
underneath his arms and stood outside. T. pointed her as his
girlfriend. She stood next to Constable Mlambo
and they started
talking. Constable Mlambo asked her what happened. At that time the
appellant came out of the house. He introduced
himself to the
appellant and told him that they had received a complaint that he
took the complainant away by force where she was
and that they were
arresting him for kidnapping. As he was busy explaining the charge to
the appellant and explaining his constitutional
rights, Constable
Mlambo informed them that they were not arresting him for kidnapping
only. The complainant had just informed
her that the appellant raped
her twice. He eventually handcuffed him. Suddenly the appellant
started running as they were walking
to the police van outside while
he was handcuffed. He jumped into the neighbouring yard and he fell
on his head. He pulled out
his firearm and as he was holding it, the
appellant stood up and ran towards the street. They ultimately
arrested him and proceeded
to the police station. At the time they
saw the complainant, she was wearing a mini skirt and carrying a top
in her hand.
[16]
Under cross-examination he disputed that the complainant was not
crying when she came out of the house. He testified that T.
also
pointed the appellant out when he came out of the house before he was
handcuffed and that only one shot was fired. He disputed
that there
were two female police officers present at the scene at the time of
the appellant's arrest and that the appellant was
assaulted. He also
testified that T. was standing outside with them when they were
knocking at the door of the appellant's parental
home. According to
his evidence the complainant was T. who called them and Ms M. (I.)
was the victim who was kidnapped and raped.
The male person they
found at the appellant's parental home who said the appellant was not
there and who was making noise when
they arrested the appellant, told
them that I. was the appellant's girlfriend.
[17]
Constable Victoria Thandi Mlambo testified that she had two years and
four months service in the SAPS and was stationed at
D.za police
station at the time of the incident. She corroborated the evidence of
Constable Mhlongo with regard to the receipt
of the complaint from T.
on the night of 13 January 2013 while they were on duty, how they met
with T. and J. who led them to Tb.'s
parental home and how Tb. took
them to the appellant's parental home where they ultimately found him
and the complainant. She also
corroborated Constable Mhlongo's
evidence with regard to what transpired at the appellant's parental
home, how the complainant
came running out of the house as they were
still standing at the door, how the complainant was dressed as she
came out of the house,
and how she engaged the complainant to tell
her what happened. After the complainant had told her that she was
taken forcefully
from T. 's parental home, she took her aside and she
further told her that the appellant raped her. At that time the
complainant
was shaking and shocked. She only had her skirt on and
she had placed her T-shirt on her chest. She eventually escorted the
complainant
to the police van. Nobody was injured or assaulted in her
presence. She also pointed out the appellant in court.
[18]
Under cross-examination she testified that the complainant was not
crying when she came out of the house but one could see
that she was
nervous and/or shocked. She further testified that when she saw the
complainant at the door, she jumped out of the
house, came straight
to her and immediately told her that the appellant forcefully took
her away.
[19]
The complainant also testified. She corroborated the evidence of T.
that she was with him on 13 January 2009 at his parental
home when
the appellant arrived there and knocked. He told T. to accompany him
to certain girls from the white house who took his
R100,00. T. told
him that it was late at night, he would not be able to accompany him.
The appellant said T. should accompany him
as he knew the girls who
took his R100,00. He became angry, took out a knife and insisted that
she and T. should go and show him
J.'s home. They eventually left
with him. On the way he had a knife in his hand. She corroborated the
evidence of T. about what
happened at J.'s parental home and that
before J.'s neighbour came out, the appellant told her that they
should leave. Suddenly
he said she should accompany him to Th.'s home
to look for Si..
[20]
She told him it was in the night while T. also told him that they
were turning back home as it was in the night. The appellant
did not
allow them to go back home. They ultimately went with him to Th.'s
home. He made her knock and Th.'s mother asked who it
was and what
did she want. She told her someone wanted to know if Th. was there.
She asked her what did she want from Th. in the
night. Th. came out
and told her Si. was not there, she had gone to Makuno. The appellant
then ordered her to accompany him to
the place where Si. was. T. told
him once more that they were turning back. He said nobody was turning
back. After T. told him
that he did not put on his shoes, he did not
allow him to go with them any further. He threatened to stab him with
a knife if he
persisted on going with them. At that time he was
holding a knife in his hand. He forced T. to go back home while he
took her away
forcefully. He also threatened to stab her if she did
not go with him.
[21]
She eventually accompanied him to Si.'s place where he took the bread
and told her to sit down. They did not meet people on
the way. As
they were at Si.'s place, T. came back with his friends. The
appellant's friend went to them and told them they were
not there.
From Si.'s place she and the appellant went to his parental home.
While on the way, T. came with others from the corner
and called her
but the appellant ordered her not to look back. At that time he
threatened to stab her with a knife should she look
back. They
ultimately reached the appellant's parental home. They went to the
bedroom. She told him that she was going home. He
said he would take
her home after putting the bread.
[22]
All of a sudden he took out a knife and said they should sleep. He
made her to undress while holding a knife in his hand and
ordered her
to go under the blankets. He took out his penis and inserted it into
her vagina. After raping her, T. arrived with
the police. When the
police knocked, he told her to hide under the bed. She pushed him and
went out of the bedroom. The appellant
told his brother not to open
the door. Eventually his brother opened the door. The police found
her in the house. At that time
she did not have her skirt on. She
then got dressed while the police took the appellant to the police
van. She told the police
what happened.
[23]
She corroborated the evidence of T. to the effect that the
appellant's friend accompanied the police to his parental home where
she was found. The next day she was examined by a doctor. She
sustained injuries in that her private parts were sore. She did not
have a relationship with the appellant. He had sexual intercourse
with her without her consent.
[24]
Under cross-examination she testified that she only knew the
appellant by sight and she heard people calling him Oupa in the
street. She did not tell people at J. and Th.'s parental homes that
the appellant was carrying a knife because he was threatening
her.
She only saw people at the appellant's parental home when the police
were there. Prior to the arrival of the police, she did
not see
anybody there. She explained that when the appellant ordered her to
undress, she was standing. She undressed all her clothes
including
her panty and the appellant told her to climb on the bed. She did as
ordered as the appellant was carrying a knife in
his hand and he had
sex with her. She kept on pushing him away with her hands. He did not
stop and eventually the police arrived.
[25]
She disputed that T. was her ex-boyfriend, that the appellant met him
on the street on the day of the incident and asked her
where was she
going and she told him she was going to his homestead. She also
disputed that upon their arrival at the appellant's
homestead, they
first had a meal together that night. She further disputed that the
police arrived prior to the appellant having
sexual intercourse with
her.
[26]
She further testified that she was crying when the police arrived at
the appellant's parental home, the appellant was not assaulted,
he
tried to run away after he was handcuffed and the police fired a shot
in the air.
[27]
The appellant also testified. His evidence was briefly as follows:
The victim is known to him as D.. He had a relationship
with her for
four months at the time of the incident. Their relationship was not
that serious. When he proposed love to her, she
told him that she had
a romantic relationship with one Ma.. He also knew Ma.. Ma. is T.. He
disputed that he went to his homestead
on 13 January 2009. On the day
of his arrest, he went to the shop where he met the complainant on
the way at the corner. She asked
him where was he going. He told her
he was going to the shop. He asked her to accompany him to the shop
and she agreed. They went
to the shop together where he bought her a
packet of chips and bread. From the shop they went to his parental
home.
[28]
Upon their arrival at his parental home, they had a meal, and 15
minutes later they went to the bedroom where they took off
their
clothes, had a chat and he asked her if they could have sex. At that
time his sister and brother were in the house. The complainant
asked
if he had a condom. He told her he did not have it. The complainant
said they cannot have sex without a condom. Shortly thereafter
he
heard a knock on the kitchen door. His sister opened the door. It was
the police and he overheard them telling her that they
were looking
for them, they came to arrest him for the rape of D.. He asked them
which D. because he was together with D. in the
house. Ma. was also
present and said it was D. who was in the house.
[29]
Ma. is the ex-boyfriend of D.. He pointed him out to the police and
the police arrested him. D. came out of the house. She
was normal.
She did not cry nor scream.
[30]
He maintained that the police arrived before he had sexual
intercourse with her. When asked why would T. and D. say he had
a
knife in his possession and took D. away against her will, he said D.
had earlier on told him that if T. could know about their
relationship, he would assault her. At some stage T. approached him
and told him not to continue a relationship with D. as she
was his
girlfriend. He was asked what would be T.'s motive to lie about him
in court, he said maybe he loved D. but he also loved
her. When the
police arrested him, he requested them to ask D. if she wanted to lay
charges against him. There was one female police
officer who was
drunk. She said he would explain his story in court. She slapped him
with an open hand and he jumped the fence
to a neighbouring yard.
Police fired two shots. He ran to the street where they apprehended
him and put him in the police van.
They further assaulted him in the
street.
[31]
When he arrived at his homestead with D., his brother and sister were
present. They saw D.. They also saw her when she went
out of the
house when the police were there.
[32]
Under cross-examination he testified that the first time he proposed
love to the complainant was in September 2008. She did
not accept his
proposal as she told him that she was in a relationship with T.. He
did not ask for her personal details. It could
have been an oversight
on his part not to ask her details when they first met. The
complainant told her in December 2008 when they
met that she was no
longer in a relationship with T.. He met her again on 13 January
2009. He met the complainant earlier on the
night of his arrest
before he went home with her, next to the show house. He did not know
that she was a child of 14 years at the
time. He did not have the
opportunity to know her better.
[33]
When he arrived with the complainant at his parental home his
brother, Laka was in his room while his sister was watching TV.
They
entered through the kitchen door, sat in the kitchen for a while and
left to the bedroom. His sister saw the complainant.
She opened the
door when they entered the house, they exchanged greetings and she
went to her bedroom to watch TV. They remained
sitting in the
kitchen. He saw his brother before he went to his room.
[34]
When asked as to how did T. know that he came to his parental home
with the complainant, he said T.'s neighbour saw him with
the
complainant leaving the shops. He further said he would not be able
to tell how did he know. After he was told that the complainant
testified that he took her away by force from T., he said he had
already testified that T.'s friend and neighbour saw him and the
complainant leaving the shops. The complainant was visiting him at
his parental home for the third time. Every time she visited
him, his
siblings saw her. She first came to his home in November 2008. The
second time was in December 2008 and the third time
was on the day of
his arrest. He was asked as to why on the first and second visit of
the complainant at his parental home, police
were never called but
were called on the third visit. His response was maybe T. was told
about their relationship and he decided
to call the police.
[35]
He further testified that he was also surprised as to why T. did not
call the police on the first two occasions. He was asked
as to why
did he not tell the police that the complainant was not coming to his
parental home for the first time. He said everything
happened so fast
and when he wanted to explain, the female police officer said he
would explain in court. When asked how did the
police know that he
raped the complainant before they spoke to her, he said maybe they
were told by T. because when they arrived,
T. pointed him out to the
police and said he was the person he was telling them about, who
raped. He was asked as to how did T.
know that he raped the
complainant. His response was that he did not know how that happened
and how did it come that he came to
his homestead with the police
because he did not see him going with the complainant to his parental
home. Mention of T.'s neighbour
and friend was just speculation.
[36]
When the police arrived at his parental home they knocked. His sister
opened the door for them and they told her they were
looking for him.
He left the complainant in the bedroom and went to them. He told them
he was with the complainant in the house.
The complainant was still
in the bedroom but they told him that he raped her. The female police
officer said they were tired of
the rapists. They put him in the van
and told him he would explain his story in court. When he told the
police that the complainant
was in the bedroom, she came out of
bedroom to the kitchen where they were.
[37]
He disputed that the complainant was crying when she came out of his
bedroom while the police were there and was adamant that
she was
fully dressed. According to him the only thing that she did not wear
was her jersey. The complainant did not say anything
to the police
when she came out of his bedroom but they told him they were
arresting him for rape. They only spoke to her at the
police station.
When told that the complainant also did not tell the police that she
was his girlfriend, that she came there on
her own and that he did
nothing to her, he said maybe he made a mistake by running to the
neighbouring yard after they slapped
him. He ran because he thought
they were taking advantage of him and his siblings as there was no
elderly person in the house.
He thought the neighbours would be of
assistance even when he was arrested and did not want to be
assaulted. He was asked what
did he do with the assault. He said he
was told to lay charges once he was acquitted of the rape. He
testified that he was assaulted
when his sister was telling the
police that he had a relationship with the complainant and also
asking the complainant why she
did not tell them that he was raping
her during the long time she spent in the house. He did not hear what
the complainant said
in response thereto. He was assaulted outside
the house inside the yard at the gate on his way to the police van.
[38]
He knew nothing about the complainant. He did not know her age. He
did not know her family. All what he could say was that
she was
attending some training at a satellite school. He never met
physically with T. since he had a relationship with the complainant.
T. was able to point him out to the police because they knew each by
sight. At some stage he testified that he did not know the
complainant's boyfriend.
[39]
After the accused had finished testifying but before he could call
his witness, the State made an application to reopen its
case to
introduce DNA evidence. The application was opposed but eventually
granted.
[40]
The State then called Ms Flora Selaelo Buthani who testified that she
worked for the SAPS at the biology unit at the forensic
science
laboratory. She was a warrant officer, a forensic analyst and a
reporting officer. Her duties involved mainly doing DNA
analysis, the
preliminary testing of biological evidentiary material, monitoring
and evaluation of the DNA process, DNA result
comparison and report
writing. Her qualifications were also placed on record. She made a s
212(4) statement where she recorded
her conclusions as an analyst and
reporting officer. She had 11 years experience in the field. The
laboratory received the blood
sample from the appellant under
reference number 10D4AA2581XX. It also received the sexual assault
kit on 24 June 2010 under reference
number 08D1AD3309XX. The sexual
kit was examined for preliminary testing on 21 July 2010. The
reference sample was received on
16 July 2010 and it was finally
analysed on 10 November 2011. There was a delay between the receipt
of the comparison sample in
July 2010 and the final analysis in
November 2011. The DNA result of the reference sample 10D4AA2581XX
was read into the DNA result
obtained from the vulva swab 08D13309XX.
The most consecutive occurrence for the DNA result from the vulva
swab 08D1AD3309XX for
all possible contributors to the mixture DNA
result is 1 in 4 800 people.
[41]
After the presentation of DNA evidence, the appellant made the
following formal admissions in terms of
s 220
of the
Criminal
Procedure Act 51 of 1977
: That on 13 January 2009 Dr Wiets Hermanus
Steyn took DNA evidence from the vulva swab of the complainant. That
the swabs were
properly sealed and sent to the forensic laboratory in
Pretoria together with the sexual assault kit number 08DAAD3309. That
blood
was also drawn from the appellant some time in 2010, was sealed
and also sent to the forensic laboratory in Pretoria. That the tests
were done on the vulva swab (the sexual assault kit) from the
complainant and the samples were examined by Warrant Officer, Flora
Selaelo Buthani. That the appellant's blood was also tested for DNA
analysis at the forensic science laboratory and the results
were also
handed to Warrant Officer, Flora Selaelo Buthani for forensic
analysis. That both analysis were put together in exhibits
B and C
respectively and that the DNA of the appellant was found in the
sexual assault kit (vulva swab).
[42]
The complainant was recalled at the request of the defence after the
presentation of DNA evidence. She disputed under cross-examination
that the appellant had sexual intercourse with her the day prior to
the incident at his parental home. She testified that she was
never
at the appellant's parental home on 12 January 2009. She also
disputed that at that time she was in a relationship with the
appellant for four months. When told that the appellant says he
thought she was above the age of 16, she was adamant that she and
the
appellant did not know each other at the time. She also testified
that she did not know Laka, the appellant's brother and his
sister,
Karabo before the incident.
[43]
The accused was also recalled by the defence and he testified that
prior to 13 January 2009 he could have had sexual intercourse
with
the complainant either on 11 or 12 January 2009 and it was with her
consent. The first time they used a condom but the second
and third
time they did not use it. He conceded under cross-examination that
although he testified that he had a romantic relationship
with the
complainant for about four months prior to the incident, he knew
nothing about her except her name. He stated that they
never spoke
about her age. When asked why would the complainant refuse to have
sexual intercourse with him without a condom on
13 January 2009 but
agree to have it with him without a condom on 12 January 2009, he
stated that the complainant saw him with
a certain woman of the
church and told him to use a condom.
[44]
Mr Laka Sebati Mogele (the appellant's brother) also testified. He
was present at home when the appellant arrived home with
the
complainant on the night of the 13 January 2009 between 21h30 and
22h00 and when he was arrested. He knew the complainant through
the
appellant. She was his girlfriend. He was not seeing her for the
first time. He could have been seeing her for the third time
together
with the appellant at their parental home. The complainant knocked at
the door as the appellant was in the toilet outside
the house. He
opened the door for them and they entered the house. They proceeded
to the kitchen to make food and took the food
to the bedroom while he
went to lock the door.
[45]
They sat and had their meal in the bedroom. Their bedroom door was
not closed. He also went to bed. Shortly thereafter just
after 22h30
and before 23h00 the police arrived at his homestead. He saw the
complainant again. She was calm. He disputed that
she was crying when
the police were there. The appellant at some stage ran away from the
police because at that time they were
assaulting him. They grabbed
him by his clothes and slapped him with an open hand. He warned the
police not to assault him. They
stopped assaulting him and he got the
chance to run away. He disputed that the appellant could have raped
the complainant as he
said he could have heard because his bedroom is
next to that of the appellant. When asked what did he think they were
doing in
the bedroom, he stated that he would not know.
[46]
Under cross-examination he testified that the appellant and the
complainant were going out together for some time prior to
the
incident. He spoke to the complainant on the night of the incident
when she asked for a cigarette from him. They did not talk
much. When
asked how old could she have been at the time, he testified that he
did not pay much attention about that and did not
ask her. In the
house people who were there were the appellant, the complainant, him,
his sister and their two nephews aged 15
and 7. His sister was in the
outside room. He opened the door when the police arrived at his
homestead. He was told that his evidence
differed with that of the
appellant in that the appellant testified that upon his arrival at
home with the complainant, he knocked
at the kitchen door and their
sister opened the door for them. His evidence was that it was the
complainant who knocked while the
appellant was in the outside
toilet. He opened the door and the complainant first entered and the
appellant followed. The appellant
testified that when they arrived
there, he was already asleep in his room. In response thereto he said
he was in the kitchen when
they entered the house and they were both
drunk. He was also told that it was put to the complainant by his
counsel that his sister
opened the door to the police. The
complainant testified it was him who opened the door to the police
while he also stated that
he opened the door to the police.
[47]
Section 208
of Act 51 of 1977
("the Criminal Procedure
Acf')
provides that an accused person may be convicted of any offence on
the single evidence of a competent witness. It is however,
a
well-established judicial principle that the evidence of a single
witness should be approached with caution, his or her merits
as a
witness being weighed against factors which militate against his or
her credibility (S
v Stevens
2005 (1) All SA (1) (SCA).
[48]
The correct approach to the application of the so-called
'cautionary
rule'
was set out by Diemont JA in
S v Sauls and Another
1981
(3) SA 172
(A) at 180E-G where he said the following:
"There is no rule
of thumb test or formula to apply when it comes to
a
consideration of the credibility of
a
single witness
...
The trial judge will weigh his evidence, will consider its merits
and demerits and, having done
so
will decide whether it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in
the testimony, he is satisfied that
the truth had been told. The cautionary rule referred to by De
Villiers JP in R v Mokoena
1932 OPD
79
at 80,
may be
a
guide to
a
right decision but it does not mean that 'the
appeal must succeed if any criticism, however slender, of the
witnesses'
evidence were well founded
...'
It has been
said more than once that the exercise of caution must not be allowed
to displace the exercise of common sense."
[49]
The evidence presented by the State was to the effect that the
complainant was forcefully removed from her boyfriend, T.'s
parental
home by the appellant who threatened her and her boyfriend with a
knife. She ultimately landed at the appellant's parental
home where
the appellant had sexual intercourse with her without her consent.
She was clear in her evidence that prior to the incident,
she only
knew the appellant by sight. She did not even know his name. After T.
was threatened with a knife to return home alone
without the
complainant, he returned with his brother to the streets and the
place where he thought they could be found, to look
for the
complainant, as he did not know the appellant's parental home. With
the assistance of J., the complainant's friend and
Tb., the
appellant's friend, he was able to take the police to the appellant's
parental home where the two, were found. The conduct
of the
complainant immediately she realised that the police were there, how
she ran to the door and left the appellant's parental
home, the
report she made to Constable Mlambo, the fact that she was half
dressed when she came out of the appellant's house, and
the fact that
she was crying at the time or shocked and shaking, all these show
that something irregular happened to her. This
conduct is
inconsistent with the behaviour of a person who had just visited her
boyfriend voluntarily and had frequented his place
as testified by
the appellant and his brother.
[50]
The trial court correctly found the witnesses of the State to have
been credible witnesses and that their evidence corroborated
each
other with regard to the circumstances that led to the commission of
the offence and what transpired thereafter.
[51]
The complainant was a single witness with regard to the rape. She was
adamant that she did not know the appellant prior to
the incident.
She only knew him by sight. The appellant's evidence and that of his
brother, Laka, revealed that they both knew
little about her. The
trial court correctly found that she was not shaken during
cross-examination, that her evidence was credible
and could be relied
upon. The court below further found that her evidence as to how she
landed at the appellant's parental home
was corroborated in all
material respects by T.'s evidence and the evidence of the two police
officers who found her with the appellant
at his parental home. The
trial court correctly found that her evidence with regard to the rape
was satisfactory in all material
respects.
[52]
The appellant and his brother, Laka did not impress the court a
quo
as good witnesses. The court below found them to have been poor
witnesses compared to all the state witnesses. Their evidence
materially
contradicted each other as highlighted in the summary of
the evidence
supra.
In my view the trial court correctly
rejected their evidence as not being reasonably possibly true.
[53]
Prior to the presentation of the DNA evidence the appellant's version
was that in the four months he was in a romantic relationship
with
the complainant, she came to his parental home three times, viz, in
November and December 2008 and on 13 January 2009. His
version was
that on the night of the incident he requested to have sexual
intercourse with the complainant but she refused because
he did not
have a condom. After the presentation of DNA evidence he admitted
having sexual intercourse with her without a condom.
The trial court
correctly found that it could not be probable for the complainant to
agree to sexual intercourse without a condom
on 12 January 2009 and
the subsequent night on 13 January 2009 to refuse to have sexual
intercourse without a condom.
[54]
I would like to deal with the issue of the introduction of DNA
evidence at the late stage of the proceedings, in particular
in this
matter after the State had closed its case and the appellant had
testified. Issues were raised that the appellant did not
have a fair
trial because of the introduction of DNA evidence at the late stage
of the proceedings which he did not know about
at the commencement of
the trial. The trial court was criticised for allowing the State to
reopen its case in order to allow it
to present DNA evidence.
[55]
In
Shabalala and Others v Attorney General, Transvaal and Others
[1995] ZACC 12
;
1996 (1) SA 725
(CC) the Constitutional Court dealt with s 25(3) of
the Interim Constitution in terms of which the accused persons are
guaranteed
the right to a fair trial. The court in that case applied
the section in the context of the State's claim to a blanket
privilege
against disclosure. It considered judgments from comparable
jurisdictions where an accused's right to a fair trial is guaranteed.
The Canadian case of
R v Stinchcomble
(1992) 68 CCC (3d) 1
(SCC) 18 CRR (2d) (210) was cited with approval and applied. In the
Stinchcomble
matter the Supreme Court of Canada held that an
accused person's right to make full answer and defence, which is one
of the pillars
of the criminal justice system, requires full
disclosure by the crown of all material it proposes to use at the
trial and especially
all the evidence which may assist the accused if
the crown does not propose to adduce it. A trial judge has the power
of reviewing,
should the issue be raised with him or her, a refusal
or failure to make disclosure. Courts of appeal must of course,
consider,
whether there is a reasonable possibility that such failure
or refusal has affected the outcome or impacted on the accused's
rights
to a fair trial and, when necessary, in the interests of
justice, order a new trial.
[56]
The Supreme Court of Appeal in the
Grossberg
matter
[2008] JOL
21511
SCA referred to a Canadian Supreme Court decision in
Taillefer
where the following was said at para [81]:
"First the onus
is on the accused to demonstrate that there is
a
reasonable
possibility that the verdict might have been different but for the
crown's failure to disclose all of the relevant evidence.
The accused
does not have the heavy burden of demonstrating that it is probable
or certain that the fresh evidence would have affected
the verdict
...
As this Court held in Dixon:
'In imposing
a
test based on reasonable possibility the court should strike
a
fair balance between an accused's interest in
a
fair trial
and the public's interest in the efficient administration of justice.
It recognises the difficulty of reconstructing
accurately the trial
process and avoids the undesirable effect of undermining the crown's
disclosure obligations
..."'
At
para [82] he further said:
"Second. Applying
this test requires that the appellate court should determine that
there was
a
reasonable possibility that the jury, with the
benefit of all the relevant evidence, might have had
a
reasonable
doubt
as
to the accused's guilt
...
An overall effort
must be made to reconstruct the overall picture of the evidence that
could have been presented to the jury had
it not been for the crown's
failure to disclose relevant evidence. Whether there is
a
reasonable possibility that the verdict might have been different
must be determined having regard to the evidence in its entirety."
[57]
After the appellant had testified but before his witness adduced
evidence, the State requested a postponement of the trial
in order to
obtain final results of the preliminary DNA results it had which
pertained to exhibits which were not in the docket
but were traced by
the new investigating officer. Subsequent to receipt of the final
results the State launched an application
to reopen its case to
introduce DNA evidence. From its application it was apparent that on
the J88 medical report which formed
part of record and handed in by
agreement between the parties, it was mentioned that swabs were taken
from the complainant. The
application was opposed but eventually
granted by the court a
quo.
It was clear from the explanation
by the State that the docket was at the time handled by a different
investigating officer and
that the case was postponed on various
occasions to obtain the DNA report. In my view after considering the
explanation by the
State, the granting of the application by the
State to reopen its case to introduce DNA evidence cannot be faulted
in that it was
done in the interest of justice. The non-disclosure of
DNA evidence at the commencement of the trial and its introduction at
that
late stage was not purposeful and the appellant suffered no
legally recognisable prejudice thereof. Moreover as stated above, the
J88 medical report, which indicated that the swabs were taken from
the victim, had been admitted into evidence by consent. It is
important to take into account that the appellant was not only
convicted on DNA evidence. There was overwhelming evidence against
him surrounding the circumstances that led to the commission of the
rape and the commission of rape thereof. It is therefore my
view that
the court a
quo
correctly convicted the appellant of rape. The
appeal against conviction is therefore bound to fail.
[58]
I now turn to sentence. It is trite that in every appeal against
sentence, whether imposed by a magistrate or a Judge, the
court
hearing the appeal:
"(a) should be
guided by the principle that punishment is 'pre eminently
a
matter for the discretion of the trial court', and
(b) should be careful
not to erode such discretion: hence the further principle that the
sentence should only be altered if the
discretion has not been
Judicially and properly exercised'."
(See
S v Rabie
1975 (4) SA at 857D-F.)
[59]
The court in
S v Ma/gas
2001 (1) SACR 469
(SCA) at 478E-H said
the appeal court can only interfere with the sentence imposed by the
trial court where it is vitiated by a
material misdirection or where
the disparity between the sentence of the trial court and the
sentence the appellate court would
have imposed had it been the trial
court, is so marked that it can be described as
'shocking',
'startling'
or
'disturbingly'
inappropriate. (See also
Madiba v S
[2015] JOL 33686
(SCA).
[60]
The following personal circumstances of the appellant were placed on
record in mitigation of sentence:
He
was 23 years old at the time of the commission of the offence. He was
a first offender. He spent two years in custody awaiting
trial and
was granted bail. He was employed at Oros where he earned R2 500,00
per month. He is not married but has a girlfriend
with whom he has
three children aged 5, 2 and 9 months. The mother of his children is
unemployed. He passed matric and is asthmatic.
[61]
The State made the following submissions in aggravation of sentence:
The
offence is serious and prevalent in South Africa. The complainant was
14 years old when she was raped. She was forcefully taken
away from
her boyfriend's parental home in his presence where she thought she
was safe. The appellant did not show any remorse
throughout her
trial. Even if the complainant did not suffer any injuries, rape
itself is traumatising.
[62]
The Supreme Court of Appeal in
S v SMM
2013 (2) SACR 292
(SCA)
at para [14] at 297-298d remarked as follows regarding sentence:
"Our country is
plainly facing
a
crisis of epidemic proportions in respect of
rape, particularly of young children. The rape statistics induce
a
sense of shock and disbelief. The concomitant violence in many
rape incidents engenders resentment, anger and outrage. Although
Government had introduced various programmes to stem the tide, the
sexual abuse of particularly women and children continued unabated.
There was consequently increasing pressure on the courts to impose
harsher sentences primarily,
as
far
as
the public was
concerned, to exact retribution and to deter further criminal
conduct. It was trite that retribution was but one
of the objectives
of sentencing and that in certain
cases
it played
a
more
prominent role than the other sentencing objectives. One could not
however only sentence to satisfy public
demand for revenge:
the other sentencing objectives, including rehabilitation, could
never be discarded altogether in order to attain
a
balanced
and effective sentence."
[63]
At 345C-D the Supreme Court of Appeal in
S v Chapman
1997 (3)
SACR 341
(SCA) said the following:
"Rape is a
serious offence constituting
as
it does
a
humiliating,
degrading and brutal invasion of the privacy, the dignity and the
person of the victim. The rights to the dignity,
the privacy, and the
integrity of every person are basic to the ethos of the Constitution
and to any defensible civilization. Women
in this country are
entitled to the
protection of these rights. They have
a
legitimate claim to walk
peacefully in the streets, to
enjoy their shopping and their entertainment, to go and come from
work and to enjoy the peace and
tranquillity of their homes without
fear, the apprehension and the
insecurity which constantly
diminishes the equality and enjoyment of their lives
...
The
courts are under
a
duty to send
a
clear message to the
accused, to other potential rapists and the community: We are
determined to protect the quality, dignity and
freedom of all women
and
we shall show no mercy to those who seek to invade these
rights."
[64]
The circumstances that led to the rape of the complainant, a 14 year
old girl are aggravating. The way she was forcefully taken
from her
boyfriend's parental home being threatened with a knife is to
disrespect other people's homes. She is a vulnerable, defenceless
young woman who did not deserve to be traumatised as she was and go
through what she went through. The appellant took advantage
of her
and her boyfriend. The evidence does not indicate if he used a condom
when he had sexual intercourse with the complainant.
The fact that no
visible physical injuries could be found does not mean that she did
not suffer psychologically and emotionally.
She testified that her
private parts were sore. Surely she suffered some pain as a result of
the rape. Even though she was already
sexually active, to be raped by
a man of the appellant's age young as she was at the time, will
continue to impact her psychologically
and emotionally. Her
boyfriend, T., could not even protect her because both were
threatened by the appellant with a knife. The
appellant did not take
her from the street. He took her in the sanctity of her boyfriend's
home where she thought she was safe.
The incident of rape will
continue to haunt her for the rest of her life.
[65]
The trial court correctly found that there were substantial and
compelling circumstances that justified the imposition of a
lesser
sentence and imposed a sentence of 20 years imprisonment after
looking at the totality of the evidence before it. The state's
evidence was that the complainant was raped more than once and taking
into account her age, the trial court can therefore not be
faulted
for its findings. In my view it properly considered the principles of
sentencing and the evidence before it when it imposed
the sentence of
20 years imprisonment. I am not persuaded that the sentence imposed
is shockingly inappropriate. In the result
the appeal falls to fail.
[66]
I therefore make the following order:
66.1. The appeal against
both conviction and sentence is dismissed.
________________________
M
J TEFFO
JUDGE
OF THE COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree:
________________________
S
A THOBANE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
FOR
THE APPELLANT
M B KGAGARA
INSTRUCTED
BY
PRETORIA JUSTICE CENTRE
FOR
THE RESPONDENT
J P VAN DER WESTHUYSEN
INSTRUCTED
BY
THE DIRECTOR OF PUBLIC PROSECUTIONS
HANDED
DOWN ON
28 JUNE
2016