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[2015] ZAGPPHC 231
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Lebopa v S (A492/2014) [2015] ZAGPPHC 231 (29 April 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A492/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
RONNY
LEBOPA
..................................................................................................................
APPELLANT
and
THE
STATE
.......................................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 13
APRIL 2015
JUDGMENT ON: 29
APRIL 2015
KUBUSHI, J
[1] The appellant
was convicted in the regional court held in Giyani on charges of
contravening s 3 of the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act 32 of 1997, read with the provisions of s 51
(1) of the Criminal Law Amendment Act
105 of 2007, assault with
intent to do grievous bodily harm and robbery. He was sentenced to
life imprisonment in respect of rape,
ten years imprisonment for
assault with intent to do grievous bodily harm and robbery (the two
latter charges were taken together
for purposes of sentence).
[2] The appellant
was legally represented throughout the trial.
[3]
Having been sentenced to life imprisonment by the regional court, and
in terms of s 309 (1)
(a)
of
the Criminal Procedure Act No 51 of 1977 (the
Criminal Procedure
Act), the
appellant had an automatic right to appeal without leave to
appeal being granted. The appellant is before us on appeal against
both conviction and sentence.
[4] Due to the
nature of the offence in count 1, that of rape, the proceedings were
held in camera when the complainant in that
charge testified. The
trial court in its judgment did not refer to the complainant in count
1 by her names, but referred to her
as IM. I shall also in this
judgment refer to her as such.
[5]
As already stated, the complainant in count 1 was IM and the
complainant in count 2 and 3 was R[...] M[...] (R[...]). The
respondent
adduced the evidence of both complainants and two other
witnesses in support of its version. A DNA report was handed in in
terms
of
s 212
(4)
(a)
and
8
(a)
of
the
Criminal Procedure Act, by
the respondent. The contents thereof
were admitted by the defence.
[6] IM, a 22 year
old woman, was on 26 June 2009 walking with her boyfriend, R[...]. It
was around 20: 00. They were accosted by
four men. The four men
approached them and wanted to know where IM and R[...] were coming
from. They searched R[...] and took three
cell phones from him - two
C115 Motorolla phones and a Vodaphone. The cell phones were never
recovered. IM and R[...] were forcibly
taken to the nearby bushes.
One of the four men removed R[...]’s waist belt and shoe laces.
The four men divided themselves
into two groups. One group remained
with R[...] and the other group went deeper into the bush with IM.
The two men who were with
R[...] tied his hands with the shoe laces
and tied his feet with the belt He was assaulted with the back of a
tomahawk.
[7] IM was made to
lie down on her clothes. One of the two men who were with her took
her panties off and the two men took turns
to put their penises into
her vagina and raped her. They threatened to kill R[...] and IM had
to plead with them not to do so.
The two groups alternated and those
who were initially with R[...] also took turns to put their penises
in IM’s vagina. This
was done without I M’s consent.
[8] IM and R[...]
were admitted in hospital on the same evening of the occurrence.
R[...] sustained serious injuries as a result
of the assault. He
sustained injuries to his waist, right hand by fending off the btows;
a swollen left knee and a three centimetre
long open wound on his
left buttock which was clinically stitched. Paginal swaps were taken
from IM and referred to the forensic
science laboratory for
comparison with the appellant’s blood.
[9] Three other men
were arrested together with the appellant, one in particular being
Kenny Motsiri Monareng (Monareng). The charges
were withdrawn against
the three men. Only the appellant stood trial. A DNA mixture had been
taken from the vaginal vault, cervical
OS and body fluids of IM and
compared with the blood samples of the appellant and Monareng. The
conclusion made from the DNA analyses
was that the likelihood that
the DNA belonged to someone else other than the appellant was one in
eleven thousand thus including
the appellant as a possible donor to
the mixture. Monareng was excluded as a possible donor.
[10] The state
called Monareng to give evidence. In his testimony, Monareng conceded
to having been, together with the appellant,
part of the gang of men
who raped IM and robbed R[...] of his cell phones and assaulted
R[...] with a tomahawk. He testified that
he knew the appellant very
well, they used to be friends and according to the appellant they are
distant relatives.
[11] Both
complainants were unable to identify their assailants. They could not
even identify the appellant in court. As thus the
identity of the
appellant was the main issue at the trial.
[12] The appellant
was tied to the commission of the offences by a DNA sample taken from
the vagina of IM. The DNA results were
not in dispute. In fact the
appellant admitted that his DNA was found in the vagina of IM. He
explained this finding by alleging
consensual sexual intercourse with
IM. His evidence is that he was in a sexual relationship with IM
which was vehemently denied
by IM.
[13] The appellant’s
grounds of appeal are that the trial court erred in convicting him
because -
13.1 neither IM nor
R[...] were able to identify him;
13.2 Monareng was
not warned in terms of
s 204
of the
Criminal Procedure Act and
as
such his evidence should be rejected; and
13.3 the trial court
failed to deal with the absence of Monareng’s DNA in the
mixture.
[14] Whether or not
IM was raped and R[...] assaulted and robbed of his cell phones was
not the issue. What was in issue was the
identity of the
perpetrator(s).
[15] The issue that
was determined by the trial court, which remains an issue in this
court as well, is whether the appellant, together
with three other
men, raped IM or he had consensual sexual intercourse with IM that
day before the alleged rape and robbery incident.
[16] Although the
appellant agreed to sexual intercourse with IM on that date, he
denied raping her and alleged that they had a
sexual relationship. As
such the sexual encounter was with the consent of IM.
[17] It is common
cause that the two complainants, IM and R[...], were unable to
Identify their assailants because the incident
occurred at night and
It was dark. When convicting the appellant, the trial court, as a
result, relied on the DNA evidence which
tied the appellant to the
commission of the offence of rape and the evidence of Monareng a
co-perpetrator in the commission of
the offences.
[18] The appellant
contends that the trial court should not have convicted him due to
the fact that it should have rejected the
evidence of Monareng as
unreliable mainly because Monareng was not sworn in in terms of
s 204
of the
Criminal Procedure Act. According
to the appellant, Monareng
was a perpetrator in the incident. And, in the circumstances where a
witness is warned in terms of
s 204
of the
Criminal Procedure Act,
such
a witness is obliged to testify and give answers frankly and
honestly. Monareng was not warned to give evidence frankly and
honestly.
Monareng testified that he was one of the people who raped
IM on the night in question, yet his DNA was excluded as a donor to
the DNA mixture found on IM. The appellant submitted that the only
evidence available that would have lent credibility to Monareng’s
evidence was if his DNA was found in the DNA mixture, and yet it was
not found. One would have expected to find Monareng’s
DNA in
the mixture if his version of the events is correct, so the argument
went.
[19] On the totality
of the evidence presented, my view is that the trial court was
correct in accepting the version of the respondent
and rejecting that
of the appellant. The trial court, correctly so, found the evidence
tendered by the respondent’s witnesses
to be truthful in its
entirety. The two complainants were truthful as they did not falsely
implicate the appellant in the commission
of the offences. Their
evidence was in favour of the appellant. They both testified that
they did not know their assailants. Even
in court they still
persisted to say that they do not know the appellant at all. The
trial court’s credibility findings in
respect of the two
complainants cannot be faulted. The two complainants were reliable
witnesses, they did not contradict themselves
under cross examination
nor did they contradict each other. They told their respective
stories as they remembered it and corroborated
each other on material
issues.
[20] The evidence of
the complainants as to the commission of the offences was
corroborated by that of Monareng. Monareng did not
know the
complainants. He, however, corroborated their evidence in all
material respects. He was able, word to word, to state all
that
happened that night, from the time the four accosted the complainants
until after the commission of the offences.
[21] From the
reading of the trial court’s judgment it does not appear as if
the trial court approached Monareng’s evidence
with the caution
required in law. Monareng was the appellant’s accomplice and as
such his evidence ought to have been approached
with the necessary
caution. However, from the judgment it can be ascertained that the
trial court looked for safeguards in order
to avoid the danger of
falsely convicting the appellant. It found such safeguards in the
truthfulness of Monareng's evidence in
that it corroborated that of
the complainants as to the commission of the offences in all material
respects. In its credibility
findings in respect of Monareng, the
trial court made a finding that his evidence dove tailed with that of
the complainants and
that his evidence was never shaken. It stated,
correctly so, that Monareng gave such detailed account of the
incident that it could
hardly be believed that the evidence was made
up.
[22] The provisions
of
s 204
(1) of the
Criminal Procedure Act are
invoked in
circumstances where a witness expects to be indemnified against
prosecution on a particular charge. This, however, was
not the case
in this instance. It is common cause that Monareng was not warned in
terms of
s 204
of the
Criminal Procedure Act. The
respondent’s
submission is that it deliberately did not ask the court to warn
Monareng because the section was not applicable
in that there was
insufficient evidence against Monareng and the case against him had
already been withdrawn. Monareng gave evidence
that he did not expect
anything in return from the prosecution for his evidence -he did not
expect to be indemnified for any charge.
[23] The appellant’s
submission that the court should have rejected the evidence of
Monareng because his DNA was excluded
from the DNA mixture found on
the vagina of IM, is unfounded. There are numerous reasons why
Monareng’s DNA could have been
excluded from the mixture. The
reasons were not explored during trial and for this court to go into
them would amount to pure speculation.
[24]
Much as there is no
onus
on
the appellant to prove his innocence, however, his version must be
reasonably possibly true. The trial court found the version
of the
appellant not to be reasonably possibiy true and rejected it. The
trial court found it highly improbable that the appellant
could have
proposed love and made love to a woman the one day and after that
phoned her a couple of times and because she does
not answer delete
her telephone number. The trial court was correct.
[25] The objective
correctness of Monareng’s evidence in corroborating that of IM
and R[...] supports the truthfulness of
their evidence. It must be
remembered that Monareng and the complainants did not know each
other. Yet Monareng’s evidence
corroborated the complainants’
evidence word for word as to the commission of the offences.
[26] I am satisfied
that Monareng’s evidence constituted sufficient corroboration
to link the appellant conclusively to the
rape, assault and robbery.
When the evidence of Monareng is accepted, the appellant’s
evidence must be rejected as being
not reasonably possibly true. The
trial court was, therefore, correct to have convicted him. The appeal
on conviction stands to
be dismissed.
[27] As regards the
appeal on sentence, the appellant in his heads of argument attacked
the sentence imposed by the trial court
on the basis that the imposed
sentence was too harsh and that a shorter period of imprisonment
would have been justified given
the circumstances of the case. The
appellant’s submission being that an effective sentence of 20
years would have been an
appropriate sentence.
[28]
The charge of rape against the appellant was read with the provisions
of
s 51
(1)
(a)
and
Part I
of Schedule 2 of the
Criminal Law Amendment Act, 105 of 1997
.
In terms of the said provisions a regional court shall sentence a
person convicted of rape when committed in circumstances where
the
victim was raped more than once whether by the accused or by any
co-perpetrator or accomplice (gang rape), to imprisonment
for life.
[29] Such sentence
may not be Imposed where substantial and compelling circumstances
exist warranting the imposition of a lesser
sentence. It is clear
from the record that the trial court did not find substantial and
compelling circumstances justifying the
imposition of a sentence less
than the prescribed minimum sentence of life imprisonment. Although
at the hearing of the appeal
the appellant’s counsel argued for
a lesser sentence, he could, however, not argue that there are
substantial and compelling
circumstances with confidence. His
contention was that even though there was no evidence of trauma and
injuries suffered by IM,
he conceded that that would not tilt the
scale in favour of the appellant
[30] It is trite law
that the determination of a sentence in a criminal matter is
preeminently a matter for the discretion of the
trial court. In the
exercise of this function the trial court has a wide discretion in:
deciding which factors should be allowed
to influence the court in
determining the measure of punishment; and, in determining the value
attached to each. See S v Kibido
1998 (2) 5ACR 214 (SCA) at 216G - H
[31] I am satisfied
that the trial court when imposing sentence, took all the relevant
factors into consideration and meted out
an appropriate sentence. The
sentence imposed, is in my view, commensurate with the gravity of the
offence and does not in any
way evoke a sense of shock. The appeal on
sentence must as a result not succeed.
[32] In the premises
I make the following order:
32.1 The appeal
against both conviction and sentence is refused.
32.2 The conviction
and sentence imposed by the trial court are confirmed.
E.M. KUBUSHI
JUDGE OF THE HIGH
COURT
I agree
J.J. STRlJDOM
ACTINC JUDGE OF
THE HIGH COURT
Appearances:
On behalf of the
appellant: MR L. A VAN WYK
Instructed by:
Pretoria
Justice Centre
Second
Floor
206
Church
Street
PRETORIA
On behalf of the
respondent: Adv L A. MORE
Instructed by:
DIRECTOR OP
PUBLIC PROSECUTIONS
Presidential
Building
Pretoria