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[2015] ZAGPPHC 484
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Molefi v S (A887/2014) [2015] ZAGPPHC 484 (4 June 2015)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, PRETORIA
CASE NO: A887/2014
4/6/2015
In
the matter between:
MOLEFI
STEPHEN
KGOSIEMANG
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MALI
AJ
[1]
This is an appeal against conviction and sentence.
[2]
On
16
August
2011
the appellant was
convicted
of one count of rape
of a
[…..] year
old
girl in Klerksdorp Regional Court.
[3]
The sentence
was
in terms
of the
Criminal
Law Amendment
Act
105 of
1997
("The
Act").
The
appellant
was
sentenced
to
life
imprisonment.
The
court
a
quo
found
that
there
were
no compelling
circumstances
warranting
a deviation from the minimum
sentence.
[4]
The
appellant has
an
automatic
right
of
appeal
in
terms
of
section
10
of
the Judicial
Matter
Amendment
Act
42
of
2013
as
he
was
sentenced
to
imprisonment
for life
by
a regional court under
section 51(1) of
the
Act.
AD
CONVICTION
[5]
The evidence on which the appellant was convicted was of three state
witnesses.
5.1.
L. M.
The complainant's
aunt
L. M.
testified that the
complainant
was
her niece and she knew the
appellant
as
he was
her
sister's
boyfriend.
She
noticed
a
discharge
on
complainant
and
questioned
her
about
it. The
complainant
told
her that
she
slept with
the
appellant.
She
then
informed
her
mother,
complainant's
grandmother as
she
was
the person
in
the
nearest
proximity
then.
She
also testified that the mother of the complainant was taking
intoxicating liquor.
5.2.
D. M.
D. M.,
testified
that
she
was
complainant's
mother.
She
stated
that the appellant was
her
ex-boyfriend.
She
used to sleep with him
on
the
mattress
in the
same
room
with
the
complainant
and
the
complainant would
sleep on the floor.
She also testified that she
used
to
drink alcohol and that she used
to drink and pass
out as
the
appellant
provided her with dagga.
She further stated that at one
point
in time
when
she
bathed
the
complainant
she
noticed
some
strange
discharge
from her
vagina.
She
then
telephoned the appellant for
advice
and the
appellant
told
him
he was
not aware
of
it.
Thereafter
the
appellant moved back to his place.
5.3.
The
complainant
was
[……] years
old when
she testified.
She stated that
in
2008
she was
sleeping
in a room with
her
mother and the
appellant
who
was
her
mother's
boyfriend.
She was
sleeping
on the
floor
and the
appellant
and her
mother
were
sleeping on the
mattress.
The
appellant
removed
her
from
the floor and put her in mattress, put
a pillow on her face and suffocated her.
The
appellant
then
opened
her
legs
and
raped
her.
The
complainant
further
testified
that
the
appellant
raped
her
on
three
different
occasions
using
the
same
modus operandi.
All
the
time her
mother
was asleep
as
she
would always be
very drunk.
When her
aunt
questioned
her
about
the
discharge
found
on her, the complainant
informed her, that the
appellant
slept
with
her.
She
stated
that
she
always
wanted
to
report the
incidents
to
someone.
The
matter
was then reported to the police.
[6]
The
appellant
in his testimony
denied
that
he raped the
complainant.
He
testified
that
he occasionally
bought
alcohol
for
himself
and the
complainant's
mother.
He denied providing D., the
complainant's
mother
with
dagga. He
stated
that
the reason he
was accused of
raping
the complainant
is
because he was convicted for rape in 2001.
[7]
He further
testified
that when
the
complainant
was
initially confronted
by
her
mother she
indicated that
there was
a stage
she
used to
play
with
young boys.
[8]
Counsel
for
the
appellant
contended
that
the
complainant failed
to
report
the alleged rape on time
and
that she had vendetta
against
the
appellant
as
she
would
witness
the
appellant
assaulting
her
mother.
She
further
submitted
that
the
evidence of
the
complainant
is
of
a
single
witness
and
she
failed
to
report
the
alleged
rape
immediately
after
it
occurred
and
that
the
version
of
the
appellant
is
reasonable
possible
true.
[9]
The
Counsel
further submitted
that
the
medical
report
showed
that
there
were
no
injuries
noted,
other
than
a
perforated
hymen,
there
were
no signs of healed injuries in the form
of scaring bumps or clefts.
The appellant's
counsel
relied on
S
V
MM
2012
(2) SACR
18
(SCA)
p24
paragraph [15]-[16] Wallis JA found:
"[15]
As
appears
to
be
an
increasing feature of
cases
such
as
these,
the
doctor's
report
was
simply
handed in by consent and the doctor
was
not called to
give
evidence. That practice
is,
generally
speaking, to
be
deprecated. It
means
that
there
is
no
opportunity for
the
doctor
to
explain
the
frequently
subtle complexities
and nuances
of
the report;
to clarify
points
of
uncertainty
and
to
amplify
upon
its
implications
and
the
reasons
for
any
opinions
expressed
in
the report.
That may
make
the
difference
between
a
conviction
and
an acquittal, or perhaps
a
conviction on
a
lesser charge."
[10]
Appellant's counsel further referred
to S v
Shackwell
2001 (2) SACR 185
(SCA) wherein the court cautioned
against the rejection of an accused's version
solely
on
the
ground
that
it
is
i
mprobable.
Brand
AJA said
at
194
g-i:
"It
is
trite
principle
that
in
criminal proceedings the
prosecution
must
prove
its
case
beyond
reasonable
doubt
and
that
a
mere
preponderance
of
probabilities
is
not
enough.
Equally
trite
is
the
observation
that,
in view of
this
standard
of
proof
in
a
criminal
case,
a
court
does
not
have
to
be
convinced
that every detail of an accused's version
is
true.
If the accused's
version
is
reasonably
possibly true in substance the court must decide the
matter
on the acceptance of that version. Of course it
is
permissible
to test
the
accused's
version
against
the
inherent
probabilities. It
cannot
be
rejected
merely
because
it
is
improbable,
it
can
only
be
rejected
on
the
basis
of
inherent
probabilities if it
can
be
so
improbable
that that it
cannot
reasonably
possibly
be
true."
[11]
In evaluating the
evidence
of
a
single
witness,
it is not necessary
for
the
evidence of
that
witness to be
clear and
satisfactory
in
every material
respect
as
previously
stated
in
R
v
Mokoena
1932 OPD 79
and
80;
R v
Ganie
1967 (4) SA
203
(
N) 206
(H).
In S v Sauls
and Others
1981(3)
SA
172 (A) at
180
E-G,
the
appellate
division
remarked
as follows:
"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 has been told".
[12]
I am
satisfied
that
in
evaluating
the
evidence
the
court
a
quo
took
into
consideration
that
the
complainant is
a
single
witness
and
was very young
at the time of the incident and
confirmed that her evidence had
to
be
looked
at
with
caution. In
his
judgment the
Magistrate
at page page 60
of the
record
paragraph 20-25
and
page 61
paragraph 1-5
states:
"I
am
mindful
of
the
fact
that
in
this
case
I
am
dealing
with
a
child
witness and
in
addition
as
to
the
incident
of
rape,
she
is
a
single
witness.
Therefore
I
must
approach
the
evidence
of
the
complainant
in
this matter
with
caution.
As
child
witness I am mindful
of
the warnings
which
were
issued
in
R
vs
Manda
.
.
..
Among
other
reasons two were
given
as the reason
why
caution must be taken when
dealing
with
the evidence
of
the
children.
The
first
one
being
the
fact
that
children
are
imaginative.
The
other reason
being
that
children are
easily
suggested
to.
In
as
far
as
the
first
reason
of
imaginativeness
I
am
of
the
view
that
danger
is
not looming
here
in
this
case.
It
cannot be
said
that
this
child
imagined
what
happened
to
her
in
the
light
of
Exhibit
B,
J
88
which indicate that someone penetrated
her
vaginally".
[13]
The
complainant
young
as
she was
made
it clear
that
she
harboured
a
desire
to
tell
someone about
the rape
and
when the
opportunity
presented
itself
she
did
not
hesitate
to
report to
her
aunt.
The
complainant
further testified in a
satisfactory
manner,
she gave a clear account of what happened to her without any
contradictions.
[14]
The
court
a
quo
also took
into consideration
that the complainant
did
not
report the
rape
immediately.
In this
regard the
trial
court
relied on
Sexual
Offences
Act
32/2007
("the
Act")
wherein
it
was
stated
that
the
Court
cannot
draw an
adverse
inference
on
the
ground
that
the
victim
did
not report immediately.
[15]
The
appellant's version amounts to a bare
denial
and
while
there is no
onus
on him to prove his innocence, it is necessary to examine
his
version
against
the
probabilities
of
the
case
in
order
to
ascertain
whether
his version is reasonably, possibly true. I do not agree with
the
appellant's counsel
that
by
the
mere
fact
that appellant denies the
allegations,
the
incidents
of
rape
as
alleged
could
not
have
happened.
[16]
Based
on the conspectus of the evidence, I cannot find any fault with
the
reasoning
and
conclusion
of
the
Court
a
quo.
I
find
that
the
cumulative
effect of all the evidence
points
relentlessly to the
appellant
as the person who raped the complainant. Consequently I
am
satisfied that the appellant's guilt was proved beyond reasonable
doubt
and
that
the
conviction
must
stand.
AD
SENTENCE
[17]
Counsel
for the appellant submitted that that the trial court did not take
into
consideration
personal circumstances of
the
appellant; that he
was
34years
old
single
and
unemployed.
He
also
had
a daughter
who
stays
with
her
mother.
The Counsel further
submitted
that
the
complainant
suffered
no
injuries
as a result of rape. The appellant's counsel relied on S v
MM
2011 (1) SACR 510 (GNP)
wherein
the appellant was convicted on a single count
of
rape
following
his plea of guilty. He raped his 12
year
old stepdaughter in
the
family home. He threatened her not to scream and then forcing himself
(1)
upon
her. On
appeal
the
sentence of life
imprisonment
was set aside and a
sentence
of 12
years
imprisonment was imposed.
[18]
In
casu
the
facts
are
very
distinguishable;
the
appellant
raped
the
complainant
repeatedly whilst sleeping in the same room with her mother.
This
is
subsequent
to
the
appellant
having
intoxicated
and
drugged
the
complainant's
mother.
The
complainant's
mother
would
have
protected
her.
The
appellant is not remorseful and he is a repeat offender. Furthermore
in
the
normal
circumstances
the
appellant
is
expected
to
also
defend
the
complainant
as
he
would
have
been
regarded
as
her
stepfather.
[19]
Counsel
for the respondent submitted that in deviating from the prescribed
sentence,
account ought to be taken of the fact that the crime
in
casu
has
been
singled out for severe punishment and the sentence that the Court
imposed
in
lieu
of the
prescribed
sentence
is
required
to
"be
assessed
paying
due
regard
to
the
bench
mark
which
the
Legislature
has
provided".
In
this
regard the Counsel relied on
S
v
Malgas
2001 (1) SACR 469
(SCA) at
482
f
(para
[25 J.])
[20]
Counsel
for the respondent further contended that the aggravating factor in
this
matter is the fact that the appellant
repeatedly
raped the victim. The
imposition
of life imprisonment is an appropriate sentence.
[21]
It
is
trite
law that rape of a young child such as the complainant is always an
extremely
serious matter, even in
the
apparent lack of physical injury to
the
complainant.
With
respect
any
form
of
rape
is
a
serious
violation.
[22]
In S v Matyityi
2011
(1) SACR 40
(SCA)
at
53 d-g
1
the
court remarked as
follows:
"As Malgas
makes
plain, courts have a duty, despite any personal
doubts
about
the
efficacy
of
the
policy
or
personal
aversion to
it,
to
implement
those
sentences.
Our
courts
derive their
power
from the
Constitution
and,
like
other
arms
of
State,
owe
their
fealty
to
it.
Our
constitutional
order
can hardly
survive
if courts fail to properly
patrol
the
boundaries
of their own power by showing due deference to the legitimate
domains
of
power
of
the
other
arms
of
State. Here
Parliament
has
spoken.
It
has
ordained minimum sentences for
certain
specified offences. Courts
are
obliged
to
impose
those
sentences
unless
there
are
truly
convincing
reasons
for
departing
from
them.
Courts
are
not
free
to
subvert
the
will
of
the
legislature
by resort to vague, ill-defined
concepts
such
as
'relative
youthfulness'
or
other
equally
vague
and
ill-founded
hypothesis that appear
to
fit the particular
sentencing
officer's
personal
notion
of
fairness.
Predictable
outcomes,
not
outcomes based on the whim of an individual
judicial
officer, is foundational to
the
rule of
law
which lies at the
heart
of our
constitutional
order’’.
[23]
In
Sv
Mosethla
2014
JDR
1282
(GP)
2
the
court
echoed
the same
sentiments
in
S
v
Chapman
3
1997(3)
SA 341 (SCA)
that;
"The
courts
are
under
a
duty
to
send
a
clear
message
to
the
accused,
to
other
potential
rapists
and
to the community:
We
are determined
to
protect
the
equality,
dignity and freedom of all women, and we shall show no mercy to those
who
seek
to
invade
those
rights".
[24]
Having
regard
to
the
above
I
am
not
persuaded
that
the
Court
a
quo
misdirected
himself in any relevant respect in imposing the sentence of life
imprisonment.
[25]
In
the
circumstances,
I
make
the
following
order:
1.
The
appeal
against
conviction
and
sentence
is
dismissed.
________________
MALI
AJ
ACTING
JUDGE OF THE HIGH COURT
OFSOUTH AFRICA
GAUTENG
LOCAL
DIVISION,
PRETORIA
I AGREE AND IT IS SO
ORDERED
_____________________
MOLEFE
J
JUDGE
OF THE HIGH COURT OFSOUTH AFRICA
GAUTENG
LOCAL
DIVISION,
PRETORIA
APPEARANCES:
Counsel
for the Appellant
Adv. L Augustyn
I
nstructed
by
Pretoria
Justice
Centre
Counsel
for the Respondent
Adv. M.J. Nethononda
I
nstructed
by
Office of the
Director
of Public Prosecutions
Appeal
Heard
02 June 2015
Judgment
Date