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[2015] ZAFSHC 204
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Lebakeng v S (A74/2015) [2015] ZAFSHC 204 (13 October 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION,
BLOEMFONTEIN
Case
No.: A7412015
In the
matter between:
ISHMAEL
LEBAKENG
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI, J et MOHALE, AJ
HEARD
ON:
12 OCTOBER 2015
DELIVERED
ON:
13 OCTOBER 2015
MOLOI,
J
[1] The
appellant came before us on appeal against .both his conviction and
sentence on a charge of contravening
section 3 of the Criminal Law
(Sexual
Offences and
Related
Matters) Amendment
Act
No.
32
of
1997 read
with
section
51
of
the
Criminal Law
Amendment
Act
No.
105
of
1997
.
The
appellant was convicted of rape of a 5 year old female and sentenced
to life imprisonment by the Regional Court. The court a
quo
granted him leave to appeal the sentence only but by virtue of
section 309 (1) (a) of the Criminal Procedure Act No 51 of 1997 he
had an automatic right to appeal both the conviction and the sentence
imposed.
[2]
Central to the appellant's basis
of appeal against the . conviction
was the
question of identity of the perpetrator and whether or not the
complainant's private part
was
penetrated. The evidence of the complainant was that one Khiba
pulled down her panty while standing and putting
a stick
between her legs. The appellant was fully clothed. She had to
tell her grandmother what happened only when
she was beaten up
by her. First she said one P. did it to her but later when the
grandmother realised she was lying
she then said it was Khiba.
Khiba is another name the appellant is known by. The grandmother
suspected a man must have sexually
assaulted the
complainant because she noticed some fluid on
the complainant's thighs
and believed it was semen.
[3]
According to the evidence this incident happened at the complainant's
friend's, M.’s, house where she had gone to play.
P. is M.’s
elder sister. They were all in the house. According to Dr. Coetzee
when she examined the complainant she could
not find any genital
injuries on the complainant though she noticed some dried fluid on
the labia majora and some redness at five
past seven o'clock
position. According to Dr Coetzee the redness she saw could be caused
by various factors e.g. improper hygiene,
infection and
scratching by the complainant herself. The dried fluid that she
noticed could even be a discharge from the
complainant herself as it
is normal in children of her age
[4] The
evidence of the appellant was that he and his wife were visiting
another place on the day in question and that he was nowhere
near the
complainant. This evidence was corroborated by P.. The magistrate
rejected this evidence; however, without dealing with
the reasons for
his rejection thereof save for saying the appellant should have
called his wife to corroborate his
alibi.
The magistrate also allowed the gaping contradictions in
the complainant's evidence justifying them on the ground of her
tender
age.
[5]
Evidence of identification must always be treated with caution:
S
v
Mthethwa.
1972
(3) SA
766
(A)
at
768
A-C;
S
v
Shekelele
&
Another
1953
(1)
SA
636
(T).
In this matter the
complainant, when confronted by the grandmother, said it was P. that
handled her private part. Upon been given
a beating she said it was
Khiba. It was, however, not determined which Khiba she was
referring to. The appellant's evidence
is that he was not at the
scene at all and this finds corroboration in P.'s evidence but was
rejected. Evidence of the appellant
can only be rightfully rejected
if it is found to be false beyond a reasonable doubt:
Rv
. Matsoso
1950
94)
SA
178
(0)
at
185F-G.
Also
R v
Difford 1937
AD
at 373. In S v Kubeka
1982
(1)
SA 534
G12
at
537
D-H
the
following was stated:
"
.
.
.whether
I subjectively disbelieve him is, however, not the
test. I need not even reject
the state
case
in order to acquit him.
I
am
bound
to
acquit
him
if
there
exist
a
reasonable possibility that
his evidence may be true."
[6] In
the light of the aforegoing it is clear that the trial court erred in
material respect to convict the appellant of statutory
rape. The
evidence before the trial court falls far too short to constitute
proof beyond a reasonable doubt. In the light of this
finding it will
be unnecessary to deal with the sentence imposed.
[7] In
the result the following orders are made:
7.1
The appeal is upheld
7.2
The conviction on a charge of contravening
section
3
of
the
Criminal
Law
(Sexual
Offences
and
Related Matters) Amendment
Act,
No
32 of
1997
read with
section 51
of
the
Criminal
Law
Amendment
Act No. 105 of
1997
is set aside and is
substituted by an order that the Appellant is found not guilty and is
discharged.
_________________
K.
J. MOLOI, J
I concur.
_________________
MOHALE,
AJ
On
behalf
of the Appellant:
Adv.
SS
Kambi
Instructed by:
Bloemfontein Justice Centre
BLOEMFONTEIN
On behalf
of Respondent:
Adv L Bontes
Instructed by:
Director of Public Prosecutions
BLOEMFONTEIN