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[2015] ZAGPPHC 383
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Khala v S (A652/2014) [2015] ZAGPPHC 383 (11 June 2015)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No: A652/2014
DATE: 11 JUNE 2015
In the matter between:
THABANG
KHALA
….............................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
MOHLAMONYANE AJ:
[1] The Appellant was charged with
three (3) counts of rape and two (2) of assault with intent to do
grievous bodily harm in the
Regional Court for the Regional Division
of Gauteng, sitting in Pretoria. Counts 1, 2 and 4 related to rape
charges and counts
3 and 5 were those of assault. The Appellant was
convicted of the three counts of rape and acquitted on the assault
charges.
[2] The Appellant was charged with the
rape subject to
section 51
of the
Criminal Law Amendment Act, no 105
of 1997
, read with Schedule 2 thereof.
[3] The three counts of rape were taken
as one for purposes of sentence. The Appellant was sentenced to life
imprisonment. In terms
of
section 103(1)
of the
Firearms Control Act,
no 60 of 2000
, the Court a quo declared the Appellant as unfit to
possess a firearm.
[4] As at the date of sentence, namely
09 April 2009, the Appellant had been in custody for at least two and
half a years. Due
to the position that this Court had taken of the
matter, the Court ordered the immediate release of the Appellant from
prison and
indicated that the reasons would follow. The reasons are
set out below.
[5] From the record of proceedings it
is unclear as to when the Court a quo granted the Appellant leave to
appeal to this Court.
All that appears is that an application for
leave to appeal against both convictions and sentence was filed with
the Court a quo
which is dated 28 September 2008.
[6] This appeal is against the said
convictions and sentence.
[7] It is undisputed that on the night
in question, i.e. 29 October 2006, the complainant, Ms M……..
E…….
M……….. was asleep at about
02h30 with her boyfriend, one B…….., when the Appellant
burst into
the house. Two of his male friends remained outside the
house. The complainant immediately recognised the Appellant by
exclaiming,
“Chakela, what are you doing”. Chakela is the
name by which the complainant knows the Appellant. The Appellant
started
beating Bushy up with a stick. Bushy fled the scene. The
Appellant thereupon dragged the complainant outside whilst he was
assaulting
her by punching her with his fists. Whilst dragging her,
the two men approached from behind. The two men and Appellant dragged
the complainant for approximately 25 metres. One of them tripped her
and she fell to the ground.
[8] After she had fallen, the Appellant
raped her after he had undressed her. The other two men took turns to
have sexual intercourse
with her. After the third one was finished
with her, she started screaming. A security officer who came to her
rescue called the
police who came and took her to hospital. The
complainant had suffered injuries to her left leg.
[9] Susanna Patronella Marx is the
doctor who examined the complainant on 29 October 2006. Her findings
were that the complainant’s
dress was torn. The back part of
her dress was messy with semen. According to the doctor there were
definitely signs of penetration
and ejaculation. Semen was taken for
DNA analysis. The Appellant’s DNA could not be matched to that
found in the semen. It
came back negative.
[10] If indeed it is true and correct
that the Appellant had sexual intercourse with the complainant, then
the DNA test ought not
to exclude the Appellant. This fact, in my
view, raises a doubt as to whether the Appellant raped the
complainant.
[11] There is no doubt that the
complainant clearly and convincingly identified the Appellant that
morning of the incident. The
Appellant’s defence is just a bare
denial. He simply stated that he did not rape the complainant as he
was not even at the
scene of crime. Both the Appellant and
complainant know each other very well. In fact, the Appellant also
admitted that the complainant
knows him. (see S v Mtethwa
1992 (3) SA
766
AD).
[12] Counsel for the Respondent
supported the findings of the learned Magistrate, inter alia, that
the complainant had been a satisfactory
witness in all respects. When
the DNA issue was put to counsel for the Respondent by the Court, she
conceded, correctly so in my
view, that this was a problematic issue.
She supports the proposition that the only evidence implicating the
Appellant is that
of assault.
[13] With the view that I have taken of
the merits of the matter, it is unnecessary to traverse the other
issues raised in evidence
before the Court a quo.
[14] To my mind, the learned Magistrate
misdirected herself in not giving the Appellant the benefit of the
doubt as far as raping
the complainant was concerned.
[15] It follows therefore that the
counts of rape have not been proved beyond a reasonable doubt. The
Appellant assaulted the complainant
on the morning in question.
Assault being a competent verdict on a charge of rape, the Appellant
ought to have been found guilty
of assault.
[16] In the result the following order
is proposed:
16.1 The convictions of rape on counts
1, 2 and 4 are set aside.
16.2 The sentence of life imprisonment
is set aside.
16.3 In terms of
section 261(1)
(a) of
the
Criminal Procedure Act, no 51 of 1977
the following conviction is
substituted for the conviction of the court a quo:
“Accused is found guilty of
assault with intent to do grievous bodily harm’.
16.4 The Appellant is sentenced to six
(6) months’ imprisonment.
16.5 In accordance with the provisions
of
section 282
of the
Criminal Procedure Act, no 51 of 1977
the
sentence of six (6) months’ imprisonment is antedated
(backdated) to 09 April 2009.
16.6 The declaration, in terms of
section 103
(1) (g) of the
Firearms Control Act, no 60 of 2000
to be
unfit to possess a firearm, remains in force.
MD MOHLAMONYANE
[Acting Judge of the High Court of
South Africa,
Gauteng Division, Pretoria]
I agree.
M. M. JANSEN
[Judge of the High Court of South
Africa,
Gauteng Division, Pretoria]
For the Appellant Advocate L. W.
Rankapole
Instructed by Legal Aid South Africa
For the Respondent Advocate E
Leonard SC