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[2015] ZAGPPHC 337
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Molatlhehi v S (A576/2014) [2015] ZAGPPHC 337 (10 March 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: A576/2014
In
the matter between:
THABO
PETRUS
MOLATLHEHI
Appellant
and
THE
STATE
Respondent
JUDGMENT
POTTERILL
J
[1]
The appellant was convicted in the Klerksdorp regional court on a
count of contravening section 3 of
the Criminal Law (Sexual Offences
and Related Matters) Amendment Act, Act 32 of 2007 constituting
statutory rape. The appellant
was sentenced to life
imprisonment in terms of section 51(1) of the Criminal Law Amendment
Act, Act 105 of 1997.
[2]
The appellant had an automatic right of appeal due to the imposition
of a life sentence in the regional
court.
[3]
It was not in dispute that the complainant, D M, was on 30 September
2007 at approximately 03:00 raped
on her way home from the Blue House
Tavern where she had been drinking.
[4]
The J88 was admitted wherein 2 tears and bruises to her hymen were
reflected. To add insult to
injury there was bruising and
swelling around and above her right eye. She had to go to
hospital for stitches for a deep
4 cm laceration to her right
eyebrow. The DNA tests confirmed that the appellant’s
semen was found.
[5]
The appellant denied that he raped the complainant. The
appellant first proffered a defence of
an alibi. After the DNA
results were obtained, during the trial, the appellant ended the
mandate of his first attorney and
then obtained new legal
representation and proffered a new defence of consensual intercourse.
[6]
The court
a quo
was correct in accepting the evidence of the
complainant as reliable and truthful despite being a single witness.
Her evidence
was corroborated by the DNA results and the injuries as
reflected on the J88. She knew the appellant for many years and
went
to school with his sister. She was walking home from the
tavern with two unknown men and when the appellant and another male
offered to take her halfway home she accepted the offer because she
at least knew the appellant. The exchange of chaperones
took
place in the street, 4 metres from a street light. She could
see the appellant and had enough time to observe him.
She could
even recall the clothes that the appellant were wearing. She
was dragged to an unlit scene where the appellant
took out two
condoms, gave one to his male companion and made use of the other.
He undressed the complainant and himself
and raped her. The
other male did not rape her. She heard people approaching and
she screamed whereupon the appellant
and the other male ran away.
She informed these two unknown males that had approached them that
she had been raped.
They called the police and the police
arrived. She was thereafter taken to the doctor.
[7]
The complainant did not know the first report witness and the mere
fact that this witness was not called
did not render the
complainant’s version unreliable.
[8]
The fact that the complainant testified that the appellant wore a
condom and yet DNA results were obtained
also did not render her
version improbable. The complainant herself testified that the
condom could have torn.
[9]
The court
a quo
was correct in rejecting the version of the
appellant as not being reasonably possibly true and in fact correctly
found that his
version was untrue. The appellant’s alibi
witness simply could not corroborate his version that he was at home
with
her and her daughter at 03:00 in the morning; this was so
as she was asleep. The change of stance of the appellant after
the results of the DNA were known is more than circumspect and the
court
a quo
was correct in rejecting this as not being
reasonably true. Once he knew the DNA was found he then changed
his defence to
one of having consensual sex with the complainant.
The complainant having brought the charge because in the tavern he
chased
her away preventing her from telling his girlfriend that they
had had consensual intercourse previously, was also correctly
rejected.
[10]
In
S v Chabalala
2003 (1) SACR 134
(SCA)
the
court held as follows:
“
The
correct approach to evaluating evidence is to weigh up all the
elements which point towards the guilt of the accused against
all
those which are indicative of his innocence, taking proper account of
inherent strengths and weaknesses, probabilities and
improbabilities
on both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to
exclude any reasonable
doubt about the accused’ guilt. The result may prove that
one scrap of evidence or one defect
in the case for either party
(such as the failure to call a material witness concerning an
identity parade) was decisive but that
can only be an ex post facto
determination and a trial court (and counsel) should avoid to latch
on to one (apparently) obvious
aspect without assessing it in the
context of the full picture presented in evidence.”
In
the words of the SCA in the context of the full picture the court
a
quo
did not misdirect itself in accepting the version of the
complainant and rejecting the version of the appellant.
[11]
Ad sentence
The
only appeal against sentence lies in the fact that the charge sheet
referred to section 52 of the Criminal Law Amendment Act,
Act 105 of
1997 (“the Act”). On the 25
th
of August
2008 the prosecution warned the appellant that the provisions of
section 51(2) of the Act is applicable. Section
51(2) however
prescribes the minimum sentence of 10 years of imprisonment for a
first offender and 15 years of imprisonment for
a second offender of
rape. The court
a quo
thus erred in imposing a life
sentence. Furthermore the state did not prove that the injuries
sustained by the complainant
amount to grievous bodily harm.
Reliance was placed on
S v Makatu
2014 (2) SACR 539
(SCA)
wherein it was found that where there are deficiencies in
the charge together with the fact that no mention had been made of
the
applicable section it leads to the inevitable conclusion that the
sentence of life imprisonment was wrongly imposed.
[12]
Counsel for the state relied on
Ndlovu v The State
(204/2014)
[2014] ZASCA 149
(26 September 2014) wherein the court found as
follows:
“
This
court concluded that the fact that the charge-sheet had a defect
which was never rectified, did not of its own render the proceedings
invalid. Mbha AJA confirmed that the test is always whether or
not the accused had suffered any prejudice. Furthermore,
Mbha
AJA noted that the appellant had been sufficiently warned of the
charge he faced by virtue of the reference to the minimum
sentencing
legislation in his charge sheet, and thus the required standard of
‘sufficient detail’ contained in s 35(3)(a)
of the
Constitution was met, despite the incorrect provision being referred
to in the charge-sheet. In addition, the court
found that the
appellant was convicted on the evidence placed before the court and
‘[i]t has not been demonstrated that the
appellant would have
acted differently, had the mistake not been made in the charge
sheet’.
This
court dismissed the appeal against sentence and the sentence of life
imprisonment was confirmed. In this matter, it was
brought to
the attention of the appellant at the outset of the trial that the
state intended to rely on the minimum sentencing
regime created by
the Act, albeit that the incorrect section of the Act was referred
to. As has already been mentioned, the
appellant was advised
that if convicted, he faced the possible imposition of a minimum
sentence of 15 years’ imprisonment.
The facts of this
matter are closely akin to those of Mashinini and Kolea. The
principle emerging from Kolea is that the
imposition of a sentence of
life imprisonment in these circumstances will not in itself result in
a failure of justice which vitiates
the sentence.”
[13]
I am satisfied that the appellant had sufficient detail to inform the
appellant that the Minimum Sentence
Act was applicable and that he
had been suitably warned. No facts have been set out as to how
the appellant would have acted
differently had the mistake not been
in the charge sheet and how he had been prejudiced.
[14]
The appellant argued that for the court to impose a life sentence the
state must prove “grievous bodily
harm” and the state did
not do so. This is so because an expert did not testify that
the 4 cm laceration did constitute
grievous bodily harm.
Furthermore the time period that lapsed between the assault and the
rape is to such a degree that it
cannot constitute rape which
involved the infliction of grievous bodily harm.
[15]
On the facts at hand the appellant had the intent to inflict grievous
bodily harm. The appellant used
a
knife
to inflict a 4
cm laceration above the eyebrow requiring stitches. The nature
of the weapon and the nature of the injuries
show such intent.
The injuries need not be of a dangerous nature to constitute grievous
bodily harm;
S v Mdua
2001 (1) SACR 625
(T)
at
p627c-f. A further question must be answered; what was
the reason and object, if any, for the action of the accused
and what
caused the accused to desist. The appellant desisted because
the assault reduced the complainant helpless and he
could rape her.
The reason for the assault was to overpower and render her helpless.
The assault was not a separate
act, but an act to facilitate the
execution of the rape. The J88 was sufficient proof to set out
the nature of the injuries.
I am satisfied that the court
a
quo
was entitled to impose life imprisonment.
[16]
I accordingly propose the following order:
1.
The appeal against conviction and sentence is dismissed.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
S.A.
THOBANE
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A756/2014
HEARD
ON: 6 March 2015
FOR
THE APPELLANT: ADV. L.A. VAN WYK
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. A.P. WILSENACH
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 10 March 2015