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[2015] ZAGPPHC 718
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Khala v S (A652/2014) [2015] ZAGPPHC 718 (11 June 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: A 652/ 2014
In
the matter between:
THA
B
ANG
KHALA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOHLAMONY
ANE
AJ:
[
l] 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 1 n Pretoria.
Counts l, 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 l03( l) 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 Bushy, 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 staled 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
!lie 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
a/ia, 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.
l The convictions of rape on counts l, 2 and 4 are
set aside.
1
6.2 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.
______________________
MDMOHLA
NYANE
[Acting
Judge of the High Court of
South Africa. Gauteng
Division, Pretoria]
I
agree.
_____________________
M.
M. JANSEN
[Judge
of th 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