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[2014] ZAFSHC 6
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Molalhehi v S (A33/2010) [2014] ZAFSHC 6 (13 February 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A33/2010
In
the appeal between:-
MOLALHLWE
MOLALHEHI
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
DER MERWE, J
et
MOTLOUNG,
AJ
HEARD
ON:
10
FEBRUARY 2014
JUDGMENT
BY:
VAN
DER MERWE, J
DELIVERED
ON:
13
FEBRUARY 2014
[1]
The appellant was convicted in the regional court of rape and
sentenced to life imprisonment. He appeals against the
conviction and sentence. As the appellant was sentenced between
1 January 2008 and 1 April 2010, he did not require leave
to appeal.
See
S v Alam
2011 (2) SACR 553
(WCC), approved in
Chake
v S
(824/2012)
[2013] ZASCA 141
(30 September 2013).
[2]
The appellant and the mother of the complainant lived together as
[……..] for a number of years. The complainant
was
born on the [……]. In June 2008 she was therefore
[….] years of age. The appellant and the
complainant’s
mother had two younger children together.
[3]
According to the complainant she was raped by the appellant on many
occasions. The trial court, however, convicted the
appellant
only of rape that took place on either 11 or 12 June 2008.
[4]
It is common cause that on the morning of 12 June 2008 the appellant
accused the complainant of being involved in a housebreaking
that
took place at the house where the family resided. This resulted
in an altercation between the appellant and the complainant.
Later that same morning the complainant visited a mobile clinic and
was then sent for forensic examination which commenced at 16h45
on
the same day. The examiner found superficial abrasions of the
fossa navicularis at the five o’ clock and six o’
clock
positions. The hymen was intact with no swelling, bruising or
injury whatsoever.
[5]
The complainant was a single witness. The essential question
therefore is whether despite the shortcomings, defects or
contradictions in her testimony, the trial court should have been
satisfied that the truth had been told. The evidence of
the
complainant contains serious defects. The most important
illustration hereof is that in her initial evidence the complainant
made it very clear that her mother had no knowledge of the alleged
continuous rapes at all. In later evidence however, she
testified that on these occasions her mother in fact encouraged the
appellant to have sexual intercourse with her and that on occasion
her mother held her down and opened her legs to enable the appellant
to rape her as well as closed her mouth to prevent her from
screaming. This and other defects in her evidence were not
satisfactory explained.
[6]
Relying on the evidence of the forensic examination, the trial court
nevertheless convicted the appellant. In my judgment
the trial
court erred. The regional magistrate said that expert evidence
given in other cases indicated that normally injuries
would not be
noted where a person had been raped more than 72 hours before the
time of the examination and that it can therefore
be safely assumed
that the injuries were inflicted within 72 hours before 16h45 on 12
June 2008. This is not permissible.
It is trite that
unless judicial notice can be taken of a fact, a court can only rely
on the evidentiary material in the specific
case before it. The
exact nature of the injuries and the time of infliction thereof
certainly are not notorious facts of
which judicial notice could be
taken. It is also trite that the verdict in a criminal case
must account for all the evidence
in the matter. In this regard
the trial court failed to take into account that despite the
allegation of the complainant
that she had been raped on several
occasions and that there had been deep penetration, there was no
injury to the hymen at all.
This casts considerable doubt on
her evidence. In addition, on her own evidence, the complainant
was clearly not raped on
either the 11
th
of the 12
th
June 2008. It appears from the evidence that during the week
the appellant stayed on another farm. According to the
complainant the appellant arrived at home early on the morning of
Thursday 12 June 2008 whereafter the said altercation took place
and
no sexual intercourse took place.
[7]
In the result, whatever the merits or demerits of the appellant’s
denial of the charge against him, the trial court should
have at
least entertained a reasonable doubt as to the appellant’s
guilt.
[8]
In the result the following order is issued:
1.
The appeal is upheld.
2.
The conviction and sentence are set aside.
________________________
C.H.G.
VAN DER MERWE, J
I concur.
__________________
S.E.
MOTLOUNG, AJ
On behalf
of appellant:
Mr P.L. Nel
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On behalf
of respondent: Adv S. Mthethwa
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/spieterse