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[2016] ZAGPPHC 772
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Mtsweni v S (A377/14) [2016] ZAGPPHC 772 (26 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A377/14
DATE:
26 August 2016
MANDLA
.
ISAAC
.
MTSWENI
Appellant
V
THE
.
STATE
Respondent
JUDGMENT
MABUSE
J:
[1]
This is an appeal against both conviction and sentence, leave so to
appeal having been granted on petition on 14 May 2014.
[2]
The appellant, Mr. Mandia Isaac Mtsweni, appeared before a regional
court magistrate (Mr. Ball) at Secunda where he was charged
with rape
of the complainant JM, a 22 year old woman. Despite his plea of not
guilty, he was convicted of rape and upon conviction
sentenced to ten
(10) years imprisonment. Accordingly, it is the aforementioned
conviction and sentence he is appealing against.
[3]
The appellant, who enjoyed legal representation throughout the entire
trial, pleaded not guilty to the charge against him and
made a
plea-explanation through his legal representative in terms of s 115
of the Criminal Procedure Act 51 of 1977 ("the
CPA"). In
his aforementioned plea-explanation, he admitted that he had had
sexual intercourse with the complainant but added
that such sexual
intercourse took place with the complainant's consent. Furthermore he
told the court that he and the complainant
had a love relationship.
After the appellant had made the above admission, the Public
Prosecutor informed the court that he was
in possession of a Report
by an Authorised Medical Practitioner On The Completion Of a
Medico-Legal Examination, otherwise known
as the JBB. The said JBB
was handed in as an exhibit by consent with the appellant.
[4]
The State then proceeded to lead the evidence of its only two
witnesses, the complainant, JM and her mother, RM. According to
their
evidence, the charge against the appellant arose from the following
incident.
[5]
The evidence of JM
On
31 July 2009 at approximately 20h00, the complainant proceeded to a
shop where she found the appellant. When she came out of
the shop,
the appellant approached her and started assaulting her. She asked
the appellant what he was doing but the appellant
simply told her
that she could see what he was doing. The appellant continued
assaulting her while dragging her to an open veld
just nearby.
[6]
In the open veld, the appellant ordered her to undress. She refused.
The appellant then threatened her and again ordered her
to undress
her panty. Still the complainant refused. The appellant then
undressed her of her panty and a pair of trousers forcefully
and,
having done so, had sexual intercourse with her. The complainant
screamed for help but no help came to her.
[7]
After having had sexual intercourse with her in the open veld, the
appellant took her to his home. He continued assaulting her
by
hitting her with fists and kicking her all over her body even after
they had arrived at his home. The appellant again undressed
her of
her clothes and again had sexual intercourse with her. She screamed
for help.
[8]
When they arrived at the appellant's home, two of his brothers were
present in the kitchen. At one stage one of his brothers
asked him
what he was doing after she had screamed. She spent the whole night
during which the appellant had sexual intercourse
with her until in
the morning. In the morning the appellant opened the door for her.
She walked out of the appellant's shack and
went home. In all
instances the appellant had sexual intercourse with her without her
consent.
[9]
Upon her arrival at home, she made a report about the incident to her
mother RM and sister-in-law.They then walked to the Police
Station to
report the incident. On their way to the Police Station they met the
Police. From the Police Station where the complainant
had laid a
charge against the appellant she was to a medical doctor for medical
examination.
[10]
She told the court furthermore that as a result of the assault, she
sustained injuries on her thighs. Her whole body was painful.
She had
visible injuries all over her whole body and on the left thigh. Her
left eye was swollen from being assaulted with fists.
She showed all
the injuries she had sustained to the doctor. She did not have any
love affair with the appellant.
[11]
The evidence of R
M
RM
told the court that JM was her daughter and that on 1 August 2009 she
had sent her to the shop at 07h00 but she never came back.
Ever since
she left that morning of 1 August 2009 she only saw her again the
following morning at 05h00. Around that time, she
heard a knock at
the door. She asked who it was and when she opened the door she
realised that it was the complainant. The complainant
was injured on
her face and neck and was bleeding above her left eye. She was
walking barefoot. She asked the complainant where
she was the whole
night. The complainant told her that she met a certain boy who took
her forcefully, first to an open veld, where
he raped her, and
thereafter to his shack. She continued and told her what had happened
to her in the shack. As she was relating
the incident to her, she was
crying. She told her that the boy who raped her was Somandla, the
appellant.
[12]
The appellant was known to her. She knew him from where they were
staying. The appellant and the complainant could not be a
boyfriend
and a girlfriend of each other because they were somehow related to
each other. To her knowledge, the complainant
had no love
relationship with the appellant. The night that the complainant did
not spend at home was the first night. The complainant
did not
frequent taverns.
[13]
After the complainant had made a report to her, they decided to go to
the Police Station to report the incident. On their way
to the Police
Station, they met the Police. After they had made a report to them,
the Police decided to drive to the appellant's
place. On their
arrival they knocked at the door of the appellant's shack but, though
he was present, the appellant refused to
open the door. RM was the
state's last witness after which the appellant and his brother also
testified.
[14]
The appellant's evidence
The
appellant told the court that he started dating the complainant in
September 2008. They continued with their love affair until
it was
broken by the allegations the complainant had made that he had raped
her. He continued with his evidence and told the court
that he went
to Nelspruit where he spent more than nine months. On 31 July 2009,
he had just returned from Nelspruit. Because he
did not have cash in
his possession, he proceeded to town to go and withdraw money from an
ATM. After withdrawing money he proceeded
to the tavern to go and
purchase liquor. On the day of the incident he was at a tavern in
Delmas when the complainant unexpectedly
arrived. The complainant
came to him at the tavern because she feared that he would spend the
whole money that he had.
[15]
On her arrival at the tavern the complainant told him that her mother
had sent her to go and fetch a church uniform from someone.
The
complainant told him that she had been missing him. She accused him
of not bothering to keep in touch with her despite the
fact that he
had come back. She asked him why he behaved in that manner. He then
told her that it was a mistake that he made. He
told her that he did
not have airtime and that he had left his cell phone at his place of
residence. He and the complainant kept
their relationship a secret.
He did not really love her and for that reason did not want
people to know about their relationship.
The complainant remained
with him at the tavern while he consumed liquor. Although the
complainant did not consume liquor, on that
particular day he made
her to do so. The complainant started drinking soft drinks but drank
liquor as time went by.
[16]
In the tavern the appellant and the complainant were in the company
of three females and two males. The three females were
consuming
liquor. The complainant drank one or two drinks of liquor until he
stopped her from drinking any further. He had to stop
her from doing
so because the complainant had some form of disability, like himself.
[17]
Because of the lateness of the hour, he told her that they should
leave and both of them agreed to leave. The complainant suggested
that they should first go to her parental home where she would first
had to give a report to her mother about the boys who had
returned
from the initiation school and to report to her mother again that she
did not find the person from whom she had been sent
to fetch the
church uniform, before they could proceed to his place of residence.
The complainant entered his parents' home, while
he waited for her
somewhere and emerged from her home after some time. On re-joining
him, the complainant told him that she had
reported to her mother and
had also told her mother that she would be going to a certain place
and would only return home the following
day. The complainant told
him furthermore that her mother did not have any objection.
[18]
From her home both of them walked to his home, to the shack that he
shared with his uncle and his uncle's wife. Because on
their way to
his home the complainant had complained that she was hungry and
because furthermore the shops had closed at that stage,
on their
arrival at home they walked straight into the main house where his
uncle and wife resided. Both his uncle and his wife
were surprised by
her visit as they had not seen her in a very long period. They were
not seeing her on this particular day for
the first time. The uncle
suggested that he and the complainant should go and make some eggs
and pap to eat.
[19]
After eating eggs and pap, he left the complainant behind and went to
buy some beers at the tavern close by. He had left the
complainant in
the company of his uncle and his uncle's wife. Upon his return he and
the complainant went to his room, the room
that the complainant knew.
As soon as they had entered the room, the complainant told her that
she knew that he had been away for
a very long time; that she had
heard that he had a lot of money and furthermore that they earned a
lot of money whenever they went
to the countryside. The complainant
asked him for R60.00 so that she could go and make up her hair. He
told the complainant that
of the R50.00 that he had withdrawn, he had
used R10.00 to purchase beer and that only R40.00 was left. The
complainant took the
R40.00 and tore it into pieces whereafter she
told him that she had no interest in the sum of R40.00. The
complainant demanded
instead R60.00. He suggested that they should go
and withdraw cash from an ATM the following day and the complainant
accepted the
suggestion. They then went to sleep.
[20]
In the morning, at about 06h00 he saw the complainant away. For two
reasons he did not accompany the complainant to her home.
The first
reason was that the complainant's mother did not like him and the
second reason was that he was afraid that people would
see them and
if they did they would have told the complainant's mother. Around
1OhOO and 11hOO, the complainant returned. She was
still wearing the
same clothes she had before. On her return the complainant told him
that her mother had gone to the initiates
and furthermore that she
had not discovered that she did not sleep at home the previous night.
The complainant left and he went
back to sleep. He was arrested
later.
[21]
He denied that he forcefully took the complainant when she was from
the shop. Furthermore he denied that he had assaulted her,
dragged
her to his homestead and raped her. He told the court furthermore
that there are no shops in the vicinity of the tavern.
The appellant
denied that he raped the complainant the whole night. He testified
though that they slept together. He denied furthermore
that he raped
the complainant in the bushes or open veld.
[22]
On 25 March 2011, RM was recalled to testify. On this occasion she
told the court that she was withdrawing the charge against
the
appellant because the appellant's family were begging her to do so.
She conceded though that she had no authority to withdraw
the
charges.
[23]
The evidence of Daniel
Mtsweni
In
support of his case, the appellant led the evidence of Daniel Mtsweni
("Daniel"), his brother. In his testimony Daniel
told the
court that the complainant was the appellant's girlfriend. He knew
that the complainant was the appellant's girlfriend
because she
usually visited his parents' home. He continued and testified that on
the day in question the complainant and the appellant
arrived in
happy vein at his parents' home between 19h00 and 20h00 and on their
arrival asked for food. He showed them the food
and they took both
the konka and the food into their shack.
[24]
The complainant usually came to his parents' home and when she did
she would sleep there until in the morning. On occasions
he would
find the complainant in the morning sleeping alone while the
appellant would have gone to the shop to buy cigarettes.
[25)
At the close of the appellant's case both the state and the
appellant's legal representative addressed the court. In their
addresses, the state submitted, on one hand, that it had proved its
case beyond reasonable doubt and on that basis applied for
the
conviction of the appellant as charged, while the appellant's legal
representative submitted, on the other hand, that the state
had not
succeeded in proving its case beyond reasonable doubt. For that
reason she asked for the acquittal of the appellant. The
court
a
quo
was satisfied though that the state had succeeded in
proving its case beyond reasonable doubt and on that basis convicted
the appellant
of rape.
[26]
In his grounds of appeal, the appellant has challenged the finding of
the court
a quo
that the state has proved its case beyond
reasonable doubt. Apart from being specific on this ground of appeal,
there are several
other grounds on the basis of which the appellant
challenges his conviction by the court
a quo.
I do not deem it
necessary, in this judgment, to deal with such grounds singly, save
to state that the thrust of all such grounds
is that the state has
failed to discharge its onus of proving its case against the
appellant.
[27]
In this appeal, the appellant's case was presented by Mr. Moeng of
the Local Justice Centre, while Mr. Rossouw of the office
of the
Director of Public Prosecutions here in Pretoria took care of the
respondent's case.
[28]
Evaluation
of
the
evidence
It
is a fundamental principle of our criminal law system that the state,
as the asserter, must prove its case against an accused
person beyond
reasonable doubt. Section 35(3) of the Constitution of the Republic
of South Africa Act No. 108 of 1996 ("the
Constitution")
states that:
"25(3)
Every accused person has a tight to a fair trial, which includes the
tight -
(h)
to
be presumed innocent ...
”
Enshrined
in the Constitution is the presumption of innocence in favour of the
appellant. The said section only set out what was
already a common
law principle. In
R
v
Benjamin
1883
-
1884
(3)
EDC
at
page
338
Buchanan J, as he then was, put
the presumption of innocence as follows:
"But
in
a
criminal trial
there is
a
presumption of
innocence in favour of
the
accused, which
must be rebutted Therefore there should not
be a conviction unless the crime charge has
been clearly
proved to have been committed by the accused Where evidence is not
reasonably inconsistent with the prisoner's innocence, or, where a
reasonable doubt as to his guilt exists, there
should be
an
acquittal.
"
[29]
The crucial question that the court
a
quo
had to decide
was whether, having admitted that he had sexual intercourse with the
complainant on the date and the place mentioned
above, such sexual
intercourse took place with the consent of the complainant. The duty
lay on the state, in this respect, to prove
absence of consent. It is
clear, therefore, that the state had the onus to prove a negative. On
appeal, Mr. Moeng who appeared
for the appellant, was in agreement
with my sister, Pretorius J, that the only issue that the appeal
tribunal had to deal with
was whether or not the complainant had
consented to have sexual intercourse with the appellant.
[30]
In deciding this issue, this court is obliged to search in the entire
evidence of the parties whether the complainant had expressly
given
consent to have sexual intercourse with the appellant. In the absence
of any express evidence the court must analyse the
entire evidence
and establish whether, on the basis of any such evidence, there are
any objective facts on the basis of which the
court can infer that by
her conduct the complainant had consented to having sexual
intercourse with the appellant. A court does
not look at the evidence
of the state in isolation to determine whether there is proof beyond
reasonable doubt that the appellant
has indeed committed the offence
with which he was charged nor does it look at the exculpatory
evidence of the appellant to determine
whether it is reasonably
possible that it might be true. Therefore, the conclusion that this
court arrives at must be based on
the entire evidence.
[31]
The court
a quo
was satisfied with the evidence of the
complainant despite its observation that the complainant had some
mental retardation. In
this regard the court is reminded by what
Davis, A.J.A had to say in R v Dhlumayo and Another 1948(2) SA 677
(AD) at page 705 where
he stated that:
"The
trial judge
has
advantages
-
which
the
appellate
court
cannot
have
-
in
seeing
and
hearing the witnesses and
in being
steeped in the atmosphere of the trial Not only
has he had the
opportunity
of
observing
their
demeanour,
but
also
their
appearance
and
whole
personality.
This should
never
be
overlooked.”
This
was the court
a quo
is assessment of the credibility of the
complainant. It is not possible to prescribe a formula in terms of
which every single witness'
credibility can be determined, but it is
essential to approach the evidence of a single witness with caution
and to weigh up the
good qualities of such a witness against all the
facts which may diminish the credibility of the witness. Accordingly
this court
can only reject the court
a quo's
assessment of
evidence if it should find that the court erred in doing so. The
appeal court must therefore tackle this appeal on
the basis that the
trial court's findings were correct.
[32]
In his heads of argument, Mr. Moeng conceded that the complainant was
a single witness; that she had an opportunity to think
her actions
after spending a night away from home. Firstly, the argument that the
complainant had an opportunity to think her action
after spending a
night away from home is, in my view, unmeritorious. This amount to a
conjecture or speculation. There are no objective
facts on the basis
of which one can conclude that the complainant thought her action
well after spending a night away. Mr. Moeng
was, in my view, making
an assumption instead of drawing an inference because the facts
necessary for the drawing of an inference
are lacking.
"Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference
unless there
are objective facts
from which to
infer the other facts which
it
is
sought to establish ... But if there are no
positive proved
facts from which the inference can be made, the method of inference
fails and what is left is mere speculation
or conjecture.”
See Caswell v Powell Duffyn Associated Galleries Ltd
1940 AC 152
169,
1939 3 ALL ER 722
733.
In
the second place it is trite that the trial court only convicted the
accused person on the evidence of a single witness as set
out in s
208 of the CPA. Mr. Moeng conceded this principle but argued
forcefully that such evidence must be satisfactory in all
material
respects. The trial court was at all material times aware of the
circumstances of the complainant, the merits and shortcomings
in the
evidence of the complainant. It is correct, as pointed out by Mr.
Moeng, that the court
a
quo
placed the demeanour of the
complainant on record and observed that at times she did not answer
to the relevant questions and even
remarked that the complainant
appeared to be mentally retarded.
[33]
Accordingly, the question becomes whether or not the complainant's
evidence was satisfactory in all material respects. Mr.
Moeng's view
was that it was not satisfactory and furthermore that it was not
corroborated by her mother's evidence. On the issue
that the
complainant was a single witness the court stated the following in S
v Sauls and Others
1981 (3) SA 172
A at
page 180 E-
F:
"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 testimony, he is satisfied that the truth has been told
The
cautionary
rule
referred
by De Villiers
JP,
1952
may be
a guide to
a
right decision
but
it does
not mean "that the appeal must succeed
if any criticism however slender or when the witness's evidence were
well founded.•
He continued that:
"It has been said
more than once that the
exercise
of
caution must
not
be allowed to
displace the
exercise of
common sense.”
[35]
The court
a quo
found, correctly so, that the complainant and
her mother were honest and credible witnesses, that the complainant
did not contradict
herself in any material respects. In S v Shaik and
Others
[2006] ZASCA 105
;
2007 (1) SA 240
SCA at page 274 paragraph 88 the court stated:
"The
question, then, is whether the appellants have shown that the trial
Court overlooked important evidence or materially
misconstrued the
evidence It did consider. If so, there would be a basis on which we
could endeavour to form our own conclusions
on credibility, difficult
as that exercise might be, based purely on the printed record If not,
we would at least defer to the
tactual findings of the trial Court
even if not entirely satisfied that all those findings were correct
What is stated in this
and the preceding paragraph outlines the
long-established approach to the appellate adjudication. It is all
the more to be borne
in mind where the judgment under consideration
is as comprehensive, and covers as many issues and as much evidence,
as that of
the trial Court in this matter.”
It
is accordingly trite law that a court of appeal will not lightly
interfere with the credibility findings made by a trial court.
[36]
Mr. Moeng criticized the complainant's testimony on the basis that
although she told the court
a quo
that she had been heavily
assaulted; that the assault lasted the entire night and that her
mother only noted several scratches on
her body, the medical report,
the JBS, that was handed in, showed no single injuries. On this basis
it was argued by Mr. Moeng
that the complainant was not honest with
the court. The implication by Mr. Moeng is that the complainant did
not tell the court
the truth when she testified that she was severely
assaulted. On the other hand, in his heads, Mr. Rossouw pointed out
that the
court
a
quo
was aware of this fact. For that
reason the court
a quo
found that there was no evidence with
regard to the competency of the medical doctor who completed the JBS.
It would appear that
the observation by the court
a
quo,
that no
evidence
was placed on record about the competency of the medical doctor, was
based on the unusual manner in which the JBS had been
completed by
the relevant doctor. The doctor unusually signed all the pages of the
JBS, at this stage she signed under the pictures
showing the
gynaecological examination of the complainant but inexplicably failed
to sign under the pictures showing other parts
of the body. It would
appear, in the circumstances, the doctor concentrated more on
establishing whether there were any signs of
sexual intercourse than
on visible injuries. This becomes even clearer when one considers the
uncontested evidence of the complainant,
supported by her mother's
evidence, that she had sustained an injury and that she showed the
doctor such injury. The evidence of
the complainant and her mother
with regard to the presence of the injury on her face was challenged
not because she did not have
it but because the doctor did not
indicate in the J88 that there were such injuries.
[37]
Mr. Moeng argued furthermore that the court
a quo
should not
have concluded that the complainant's version had been fully
corroborated by her mother. There is no merit in this argument.
In my
view, the evidence of the complainant's mother was crucial in certain
respects. Firstly, RM told the court that, although
this is no longer
our law, the complainant made a report to her about the incident of
rape; secondly, the complainant's mother
placed evidence before the
court about the complainant's appearance in the morning. The
complainant had no shoes and was crying
and had a visible facial
injury all of which corroborated the complainant's evidence.
[38]
The court
a quo
was unhappy with the entire evidence of the
appellant and made adverse remarks about it. In the first place, and
the court
a quo
seemed not to have picked this up in the
assessment of the appellant's evidence, the appellant's evidence was
a complete fabrication.
This is proved by the fact that his testimony
in his evidence-in-chief was not the version that was put to the
witnesses when they
testified. A completely different version, in my
view, was put to the witnesses. There was also no explanation as to
why the evidence
that he tendered was
never
put to the complainant. In Small v Smith 1954(3) SWA 3434 at p. 48
Classen J, as he then was, had the following to say:
"It
is, in my opinion, elementary and standard practice for a party to
put to its opposing witness so much of its own case
or defence as
concerns that witness and if need be to inform him, if he has not
been given notice thereof, that other witnesses
will contradict him,
so as to give him a fair warning and an opportunity of explaining the
contradictions and defending his own
character. It is grossly unfair
to let a witness' evidence go unchallenged in cross-examination and
afterwards argue that he must
be disbelieved.”
[39]
Secondly, the appellant's testimony was replete with contradictions.
To give an example, on 1 April 2011 his testimony was
that he was in
Nelspruit for a period of nine months and that he did not, during
that period, contact the complainant. But on 25
August 2011 his
version changed. On this occasion he testified that he was working in
Delmas and only went to Nelspruit during
weekends when he was not
working. In cross-examination it was put to the complainant that she
was offered food in the kitchen to
which he replied that she informed
him that she was not hungry. On the contrary the appellant testified
that the complainant complained
of hunger, that his uncle informed
them that they had had supper already and that they should cook pap
and eggs. He went further
and said that he left the complainant
behind with his uncle and wife when he went to buy beer from a tavern
just close by. This
evidence was never put to the complainant. On 25
October 2011 Daniel Mtsweni testified that he is the brother of the
appellant
and when they arrived on that evening and that he showed
them the food being pap, chicken and cabbage. They took the food and
the
konka to their room.
[40]
The appellant told the court that he had a long tern relationship
with the complainant which commenced in 2008. He was in Nelspruit
for
a period of nine months prior to the incident during which he had no
contact whatsoever with the complainant. They kept the
relationship a
secret, he did not really love her and he did not want people to know
about their love relationship. The appellant,
in my view, failed to
prove that he had any relationship with the complainant. It will be
recalled that the appellant's contention
had always been that he had
sexual intercourse with the complainant because he and the
complainant had a love relationship. According
to him, therefore, the
consent that he referred to in his evidence is based on the love
relationship that he alleges he had with
the complainant. By saying
that the complainant was his girlfriend the appellant raised a
special defence. In interpreting the
onus to prove, the court stated
in
Pillay
v
Krishna and Another
1946 AD 946
at page 952
that:
"The
onus is on the person who alleges something and not on his opponent
who merely denies it "
A
denial of a fact cannot naturally be proved. Accordingly, the duty
lay on the appellant to prove what he alleged. He was obliged
to
satisfy the court that he was entitled to succeed on his special
defence. The court continued at page 953 and stated as follows:
"The
third
point
is that
the
onus,
in
the
sense
in which
I
used the word,
can
never
shift
from the party upon whom
it
originally
rested
It
may
have
been
completely
discharged
once
and
for
all, not by any evidence which he has led, but by some admission
made by his opponent on
the pleadings
(or
even
during
the
course
of
the
case)
so
that
he
can
never
be
asked
to
do
anything more
in
regard
thereto;
but the onus which then rests upon
his
opponent
is
not
one which
has
been transferred to him: it is an entirely different onus, namely the
onus of establishing
any special
defence which
he
may have."
[41]
Now, in this regard, it was not sufficient for the appellant and his
brother to simply allege that the appellant was the complainant's
boyfriend. Having claimed that their relationship commenced in
September 2008 and only ended after the complainant had laid charges
of rape against him, it behoved the appellant to provide proof that
in between those periods he had a love relationship with the
complainant. The applicant failed dismally to show any such
relationship. The appellant could not point out to the court
a
quo,
any history or any track record of their love relationship.
He
could hardly point out to any one incident that took place during the
period of courtship that indicated conclusively that they
were a
girlfriend and a boyfriend to each other. He had nothing to support
the allegation which, in my view, was nothing more than
a mere
allegation that the complainant was his girlfriend. On the contrary
there was enough evidence to support the view that the
complainant
was not his girlfriend. As already pointed out earlier he testified
that he did not love the complainant and did not
even want the people
to see them together or to know about their relationship. Furthermore
the fact that he failed to communicate
with the complainant for a
period of nine months, while he was in Nelspruit; the fact that even
after his return from Nelspruit,
on his own version, he failed to
notify the complainant that he had come back; the fact that the
complainant's mother did not know
him as the complainant's boyfriend
but instead regarded him as a family relative; the fact that the
complainant herself had her
own boyfriend who was known to her family
and lastly, the fact that she told the court that she slept out only
once and this was
on the occasion that she had been forcibly taken to
the appellant's place, all indicate, in my view, that there was no
such relationship
between the complainant and him.
[42]
The state case in the court
a quo
was made easier by the fact
that the appellant had admitted sexual intercourse with the
complainant. In his judgment the court
a
quo
followed,
and correctly so, the approach set out in S v Trainor
2003 (1) SACR
35
SCA at page 41, paragraph 9 which is
that:
"A
conspectus of all the evidence is required. Evidence that is
reliable should be weighed alongside
such
evidence
as
may
be
found
to
be
false.
Independently verifiable
evidence,
if
any, should
be
weighed
to
see
if
it
supports
any
of
the
evidence
tendered. In
considering
whether
the evidence
is reliable, the quality of the evidence must of necessity be
evaluated, as
must corroborative
evidence,
if
any.
Evidence,
of
course,
must
be
evaluated
against
the
onus
or
any
particular
issue
or
in
respect
of
the
case
in
its
entirety.
”
[43]
In my view the court
a
quo
was correct in its finding
that the state had proved its case against the appellant beyond
reasonable doubt and in convicting the
appellant of rape. I have
found no justifiable grounds to interfere with the conviction.
Accordingly I am of the view that the
appellant's appeal against
conviction has no merit and should, for that reason, be dismissed and
that the said conviction should
be confirmed.
[44]
In conclusion, I am of the view that the appeal against sentence
should also fail. Mr. Moeng had no submissions to make in
respect of
the sentence. He was ready to concede that on the facts of the matter
the appellant was fortunate that, despite his
repeated rape of the
complainant, a heavier sentence was not imposed on him. At any rate,
having read the record, we see no reason
to interfere with the
sentence imposed on the appellant by the court
a quo.
Consequently,
1.The
appeal against both conviction and sentence is hereby dismissed.
2.The
conviction of the appellant by the court
a quo
and the
resultant sentence imposed on him
are
hereby
c
onfirmed.
________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree
_______________
M.J.
TEFFO
JUDGE
OF THE HIGH
I
agree and it is so ordered
_________________
C.
PRETORIUS
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for
the
appellant:
..................
Adv.
S
Moeng
Instructed
by:
...................................
Attomeys
– Pretoria Justice Centre
Counsel
for
the
respondent:
…
........
Adv.
AJ
Rossouw
Instructed
by:
..................................
Attomeys-
Director of Public Prosecutions
Date
Heard:
.....................................
12
August 2016
Date
of Judgment:
….......................
26
August 2016