About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 108
|
|
Moloto v S (A559/14) [2015] ZAGPPHC 108 (9 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A559/14
DATE: 9 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MOEKETSI
JACOB
MOLOTO
............................................................................................
Appellant
and
THE
STATE
..........................................................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1. The appellant was
convicted on one count of housebreaking with intent to rape and rape
and sentenced to imprisonment for life.
Under
s 309B
of the
Criminal
Procedure Act, 51 of 1977
, as amended by
s 11
of Act 42 of 2013, the
appellant has an automatic right of appeal against both his
conviction and sentence. The appeal is against
both conviction and
sentence.
2.
The evidence of the plaintiff proved that on 21 February 2010,
between 2h00 and 3h00 while she and her brother
1
were
in their house in Sebokeng, two men broke into the complainant’s
house. The complainant was awake and watching television
because she
was suffering from toothache. The complainant was born on 27 January
1995 and was therefore 15 years old at the time.
Her brother was
about 21.
3. The complainant
woke her brother and the two of them took refuge in the bathroom. The
attackers broke down the bathroom door.
They did not find the
complainant’s brother because he had hidden himself behind a
washing machine in the bathroom. The complainant
was ordered to
undress, which she did. She was raped twice by one of the men and
once by the other man. One of the rapists had
dreadlocks. He was the
first to rape the complainant and took the precaution of covering his
face with a piece of drapery he found
in the house.. However, the
complainant had seen this rapist’s face after he entered the
bathroom and before he covered his
face. The uncontradicted evidence
of the complainant was that she was a virgin at the time of the
attack. No condoms were used
by the attackers.
4. During the first
of the rapes, the complainant was forced to hold a tap with one hand
and balance herself on the washing machine
with the other.
5. The complainant
identified the appellant as one of her attackers. She said she knew
him well by sight, although she did not know
his name, and that she
had last seen the appellant at a carwash, when the complainant was in
company with a lady, later identified
as Ms B[...]. On that occasion,
the complainant said, the appellant had remarked that she was grown
up and fit and that he would
buy her a Coca Cola. After her ordeal,
the complainant reported the attack upon her to Ms B[...] and told Ms
B[...] that the appellant
had been one of her attackers but could not
identify the other.
6. The evidence of
the complainant was that the scene was illuminated by means of a
torch one of the attackers wore on his head.
The scene was thus
illuminated sufficiently to enable the identification to take place.
7. Despite the
ordeal she had been through, the complainant was able to identify the
vehicle in which the attackers left as a red
Golf. The appellant
admitted that he drove a red Golf.
8. Both the
complainant’s brother and Ms B[...] gave evidence. They
corroborated the complainant in all material respects.
The
complainant’s brother independently identified the appellant in
court as one of the attackers. The appellant was well
known to the
complainant’s brother. In the brother’s statement to the
police, he said that he would be able to identify
the attacker who
had dreadlocks. The statement, made on 29 February 2010, shows that
although the brother was hiding behind the
washing machine, he could
see what was taking place in the bathroom.
9. The fingerprints
of the appellant were found at the scene. The appellant formally
admitted the contents of two statements by
fingerprint experts. These
show that the fingerprints of the appellant were found on the
refrigerator in the kitchen and on the
washing machine in the
bathroom.
10.
The appellant denied being one of the complainant’s attackers.
He explained the fingerprints by asserting that he had
been in the
complainant’s house to perform electrical work to fix the
refrigerator on 21 January 2010 and that he had been
given the work
by a person he called Buda. The complainant’s mother testified
that any electrical work which fell to be done
in the house was the
responsibility of her elder sister,
2
Jeminah
Ramakao, who stayed in the house in question. The complainant’s
mother resided elsewhere.. Ms Ramakao testified that
the appellant
had not come to the house to do electrical work, that she had not
requested that electrical work be done at the house
and that she did
not know the person called Buda. Both the complainant and her brother
denied that the appellant had ever been
in the house to do electrical
work.
11. The appellant
sought the assistance of the authorities to trace Buda and bring him
to court. But after consultation, the appellant’s
legal
representative elected not to call Buda, who was then called as a
witness by the court. It emerged that Buda’s full
name was
Simon Moroe and that he was a taxi driver. Moroe denied having
instructed the appellant to do any work at the complainant’s
home.
12. The regional
magistrate found that the appellant had indeed been one of the
attackers. Implicit in this finding is that the
regional magistrate
believed the witnesses for the state and Mr Moroe and disbelieved the
appellant. There were ample grounds for
this finding. The evidence of
the complainant and her brother implicating the appellant was
convincing. There was strong corroboration
for their identification
in the fingerprint evidence and the evidence of Mr Moroe denying
having sent the appellant to fix the
refrigerator in the
complainant’s home.
13. I think it is
decisive against the appellant that his fingerprints were found on
the washing machine in the bathroom. The refrigerator
was in the
kitchen and the washing machine was in the bathroom. The appellant
gave no acceptable reason how, on his version, his
fingerprints came
to be on the washing machine. He said that when he had visited the
house to do electrical work, the washing machine
was in the passage
and that his fingerprints may have come onto the washing machine when
he passed by it in the passage. This version
was never put to any of
the three state witnesses who lived in the house and there is no
suggestion from their evidence that the
washing machine had been in
the passage at the time in question. The appellant’s version in
this regard was clearly an afterthought,
made up in an effort to
explain away the evidence against him.
14. Against the
version of the appellant is the evidence of the complainant that
during one of the acts of rape she was forced to
hold onto the
washing machine. This version places the appellant near the washing
machine. It is probable that while the complainant
was being violated
as she held onto the washing machine, the attacker’s hand would
have touched the washing machine.
15. I find further
corroboration for the complainant’s identification in her
evidence that when the appellant saw the complainant
at the carwash,
the appellant made a remark that implied that he considered her old
and desirable enough to be the object of his
sexual attentions, that
one of the attackers had dreadlocks (as did the appellant) and that
the attackers drove off in a red Golf
(the kind of vehicle driven by
the appellant).
16. The evidence of
the appellant denying being one of the attackers could therefore not
be reasonably possibly true and fell to
be rejected. The purpose of
the attackers in breaking into the complainant’s house was
proved to be to rape the complainant.
Nothing was taken from the
house and the attackers broke open the bathroom door to get to the
complainant. After they had raped
her, they left.
17. The appellant
was one of two gang rapists who raped this young girl. It is dreadful
that her first experience of sexual intercourse
should have taken
place in these circumstances. She was violated in her own home, by
two men who broke open a door to get at her.
The attack displayed
utter contempt for the complainant as a human being.
18. The appellant
was warned that he faced a life sentence under the minimum sentence
regime. He showed no remorse. The appellant
was HIV positive when he
raped the complainant and took no precautions to prevent this life
threatening virus from infecting the
complainant.
19. At the time of
the offence, the appellant was some 33 years old, in a relationship
and supporting himself, his children and
family by doing jobs as a
mechanic and electrician.
20. On these facts
the regional magistrate found no substantial and compelling
circumstances to justify a sentence other than the
minimum
prescribed, ie life imprisonment. I fully agree with this finding.
Indeed, I would go further. If, unconstrained by the
minimum sentence
regime, I had been required to sentence the appellant, I would have
sent the appellant to prison for life. Although
this was not one of
the worst rapes, it is sufficiently abhorrent to justify the most
severe sentence our law permits.
21. I make the
following order: The appeal against conviction and sentence is
dismissed and the conviction and sentence are confirmed.
NB Tuchten
Judge of the High
Court
9 February 2015
I agree.
EM Kubushi
Judge of the High
Court
9 February 2015
1
More
correctly, her cousin.
2
Referred
to by the complainant as her grandmother.