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2014
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[2014] ZAFSHC 129
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Mofokeng v S (A74/2014) [2014] ZAFSHC 129 (14 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A74/2014
In
the matter between:
MOKETE
PETER MOFOKENG
….......................................................................................
Appellant
and
THE
STATE
….......................................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
WRIGHT, AJ
HEARD
ON:
4 AUGUST 2014
JUDGMENT
BY:
G.J.M. WRIGHT, AJ
DELIVERED
ON:
14 AUGUST 2014
[1]
The Appellant stood trial in the regional court at Phuthaditjhaba on
a count of rape. It was alleged that he had sexual intercourse
with
the complainant, an 11 year old girl, without her consent. He was
found guilty as charged on 7 February 2011 and was sentenced
to life
imprisonment. By exercising his automatic right of appeal, the
Appellant appeals to this court against both conviction
and sentence.
[2]
Regarding the conviction, Miss Kruger, an attorney at the Justice
Centre in Bloemfontein who represented the Appellant before
us,
informed the court that her instructions are to request the court to
uphold the appeal and set aside the conviction. She responsibly
dealt
with the various issues relevant to the identification of the
Appellant by the complainant. In short these aspects are:
(i) the
complainant’s identification of the Appellant in court during
the trial,
(ii) the pointing
out of the Appellant as her attacker at the police station after his
arrest,
(iii) a description
given by the complainant during her testimony in court and
(iv)
an independent witness who saw the complainant in the company of the
Appellant on the day in question.
[3]
In the court
a quo
the complainant testified with the assistance of an intermediary and
was not present in the actual court room while she testified.
She
explained how she was walking in her residential area when an older
man took her by the hand. She told him that she was not
allowed to
walk with unknown people, but he insisted that she accompany him.
After reaching some trees, he threatened her by saying
that he will
assault her with a screwdriver and a knife if she does not undress
herself. He proceeded to remove her pants and underwear.
He made her
lie down on the ground and proceeded to insert his penis into her
vagina and raped her.
[4]
During her examination in chief, the complainant was asked by the
prosecutor to give a description of her attacker. Before the
complainant could respond to the question however, the magistrate
interrupted the prosecutor, indicating that such a question is
unfair. The magistrate went further and indicated that the
complainant will get an opportunity to identify her attacker in
court.
[See the record p 21 lines 8 to 9] During her examination in
chief, the complainant did not identify the Appellant as her
attacker.
[5]
After the prosecutor completed the complainant’s examination in
chief, the magistrate proceeded to question the complainant.
It is
during these questions that it was placed on record that the
complainant identified her attacker at the police station. [See
the
record p 25 lines 17 to 22] The magistrate then requested for the
complainant to be brought into the courtroom. She was asked
to
indicate whether she can see the man who raped her. She pointed out
the Appellant. The record gives no indication of the conditions
in
court when she made this identification (with reference to the number
people present or the position of the Appellant and so
forth). The
interpreter did place on record that the Appellant was pointed out
without hesitation.
[6]
During cross-examination the complainant finally gave a description
of her attacker. This was done spontaneously on a question
by the
defence attorney as to whether the police arrested the correct
person. [See the record p 30 lines 20 to 22] It was never
disputed
that the description given by the complainant in fact matched that of
the Appellant. Mrs Kruger conceded as much during
argument.
[7]
Is does appear that the intervention of the magistrate in stopping
the state prosecutor from placing evidence on record regarding
a
description of the attacker could well have led to a situation where
no identifying evidence was tendered. Also, the complainant
may
not have made any identification of the Appellant in court.
Fortunately for the State the appellant’s attorney
cross-examined the complainant and thereby elicited the assailant’s
description.
[8]
This was not the only unnecessary intervention by the magistrate. He
questioned the prosecutor regarding the availability of
the
collection kit which usually accompanies the J88 medical report. This
can be found on p 32 of the record. During the testimony
of the
investigating officer, the magistrate again enquired after the DNA
evidence. At that stage the prosecutor responded that
the results
came back negative, to which the magistrate reacted by saying “then
it won’t be relevant”. This exchange
can be found on p 73
of the record. Before the State closed its case, the magistrate again
directed enquiries as to the DNA evidence.
At this point the
prosecutor indicated that no DNA material could be found in the
specimens which were analysed. [See record p
83 lines 12 to 24]
[9]
The dangers present at identification are compounded when a witness
is asked to point out an accused in court. This is especially
so in
this matter where no description was given of the perpetrator before
the pointing out and no identity parade was ever held.
It needs to be
remembered that the complainant is a young child – another
reason why her testimony should be treated with
caution. In the
present matter there are sufficient safeguards against an incorrect
identification.
[10]
It would appear that the description eventually provided by the
complainant does fit that of the Appellant. The magistrate
had an
opportunity to observe the Appellant and found that the bulge on his
forehead matches that described by the complainant,
and this is a
unique feature. The Appellant himself testified that the bulge is not
the result of an injury and that it has been
like that since an early
age. The pointing out of the Appellant at the police station shortly
after his arrest may well serve as
corroboration of the complainant’s
evidence. The identification at the police station was never attacked
by the Appellant
during cross-examination of the complainant. It was
also not argued before us that the pointing out of the Appellant
should be
disregarded in any way.
[11]
In
S v Rall
1982 (1) SA 828
(A) certain guidelines
were mentioned regarding the conduct of a presiding officer. One of
these guidelines is that a presiding
officer should conduct a trial
in such a manner that his impartiality and fairness are manifest to
all concerned. He should refrain
from questioning in such a way or to
such an extent as to lose judicial impartiality and objectivity. See
also
S v Maseko
1990 (1) SACR 107
(A) and
S
v Le Grange & Others
[2008] ZASCA 102
;
2009
(1) SACR 125
(SCA). In
S v Msithing
2006 (1) SACR 266
(N) the presiding
magistrate entered into the arena to the extent that he was virtually
prosecuting the accused. This may to some
extent also be said of the
magistrate in the present matter.
[12]
This judgment deals with only some examples of the manner in which
the magistrate acted improperly. The conduct of the magistrate
may
have resulted in a finding that the Appellant had an unfair trial.
And this may have led to an acquittal if it was not for
the testimony
of one crucial and independent witness.
Teboho
Modisenyane
testified that he knows the
Appellant and that he knows where the Appellant was staying at the
time. On the morning of 5 January
2010 (the day of the alleged
incident) he saw the Appellant walking with the complainant. The
Appellant of course denies this and
attempted to show that the
witness may have had a motive for falsely incriminating him.
Modisenyane’s evidence corroborates
the complainant’s
identification of the Appellant as the person who met her on the
street, took her away and raped her.
[13]
The Appellant testified that on the day in question he was suffering
“pains” which would have made it impossible
for him to
have intercourse. He further testified that he was asleep in his home
during the time of the alleged rape.
Nthabiseng
Mtholo
, the Appellant’s cousin,
testified in his defence. She attempted to indicate that there is
another person with a similar
name as the Appellant and who would
roughly match the description given by the complainant.
Mtholo
did not impress as a credible witness. Her testimony should not be
used to corroborate the Appellant. The trial court did not expressly
reject the Appellant’s defence. It is however clear that, in
the light of all the available evidence, the version of the
Appellant
cannot be accepted as reasonably possibly true.
[14]
Even though the judgment of the trial court comprises only of 35
lines, it cannot be said that it contains any misdirections.
This
court is satisfied that the guilt of the Appellant was proven beyond
a reasonable doubt. As a result the appeal against conviction
should
fail.
[15]
The appeal against sentence holds more merit. The magistrate spent
even less time considering the appropriate sentence. Because
of the
age of the complainant, the required sentence was that of life
imprisonment, unless substantial and compelling circumstances
could
be found. The court
a quo
failed to find any substantial and compelling circumstances.
[16]
On behalf of the Appellant it was suggested that the trial court
erred in not finding that substantial and compelling circumstances
do
exist. During argument Mrs Ferreira, acting for the State, conceded
that there are indeed substantial and compelling circumstances
that
justify the imposition of a lesser sentence.
[17]
In considering the nature and extent of this particular instance of
rape, it needs to be remembered that the Appellant took
undue
advantage of an 11 year old girl, forcing himself on her in an
unacceptable manner. It appears as if the Appellant penetrated
the
complainant from behind and while she was forced to kneel on the
ground. He threatened her with a knife and a screwdriver,
especially
after she begged him to leave her alone. Apart from the genital
injuries noticed by the medical examiner, bruises on
her sides were
also evident. These are aggravating factors.
[18]
Rape is a very serious offence (see
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344 I – J where rape was described as “a
humiliating, degrading and brutal invasion of the privacy, the
dignity
and the person of the victim”). The circumstances of
the present matter do not however present as one of the worst cases
of rape. The complainant did not suffer any serious or permanent
injuries, either physical or psychological. Even though the Appellant
threatened to use either a knife or a screwdriver, he did not in fact
use a weapon to inflict violence.
[19]
In the present matter it does appear that a sentence of life
imprisonment is disproportionate to the crime. We agree that there
are indeed substantial and compelling circumstances. These are:
(i) the youthful
age of the Appellant (he was 21 years old at the time of sentencing),
(ii) that he is a
first offender,
(iii) the 13 months
that the Appellant spent in custody pending the finalization of the
trial,
(iv) the lack of
serious and permanent physical injuries to the complainant,
(v)
the lack of evidence as to permanent psychological damage suffered by
the complainant as a result of the incident.
In
regard to this last-mentioned factor, it is troubling that the
prosecutor did not lead proper evidence regarding the impact of
the
incident on the complainant. It can however be accepted that an
incident of this nature would definitely have had an impact
on the
complainant’s psychological well-being and sense of self. This
approach has been advocated in cases such as
S
v Mahomotsa
2002
(2) SACR 435
(SCA) and
Rammoko v
Director of Public Prosecutions
2003 (1) SACR 200
(SCA).
[20]
In the circumstances of this case the offence is deserving of a
severe punishment that should convey to the Appellant and society
at
large that our children are precious and should not be abused. The
gravity of the offence of rape should be reflected in the
sentence
while at the same time the Appellant should not be sacrificed on the
altar of deterrence and revenge.
[21]
In
S v Vilakazi
2009 (2) SACR 552
(SCA) Nugent JA
cautioned against the danger of heaping “excessive punishment .
. . . on the relatively few who are convicted
in retribution for the
crimes of those who escape or in the despairing hope that it will
arrest the scourge”. [see
Vilakazi
,
paragraph 3] The following dicta in
S
v Abrahams
2002
(1) SACR 116
(SCA) (at paragraph 29 thereof) should also be kept in
mind, namely that “some rapes are worse than others, and the
life
sentence ordained by the Legislature should be reserved for
cases devoid of substantial factors compelling the conclusion that
such a sentence is inappropriate and unjust”.
[22]
Mrs Kruger suggested that 18 to 20 years imprisonment would be an
appropriate sentence. Mrs Ferreira suggested 20 to 23 years
imprisonment. We are of the opinion that imprisonment for 18 years
will be an appropriate sentence in the circumstances.
[23]
The Appellant has been in custody since arrest on 3 January 2010. He
was sentenced on 7 February 2011. It is not evident
why it took so
long for this appeal to reach the stage of argument. The time lapse
does however mean that the Appellant has already
served some part of
his sentence. The sentence should be antedated to allow for the time
that he has been serving his sentence
after imposition thereof by the
trial court.
[24]
In the result the following orders are made:
1.
The appeal against the conviction is dismissed.
2. The appeal
against the sentence is upheld and the sentence imposed by the court
below is set aside and replaced with the following:
“
The
accused is sentenced to 18 years imprisonment.”
3. The sentence is
antedated to 7 February 2011.
_________________
G.J.M.
WRIGHT, AJ
I
concur.
_________________
M.B.
MOLEMELA, J
On
behalf of appellant: Adv J.S. Makhene
Instructed
by:
Bloemfontein
Justice Centre
41
Charlotte Maxeke Street
BLOEMFONTEIN
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Office of the
Director of Public Prosecutions
BLOEMFONTEIN