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2012
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[2012] ZAGPPHC 313
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S v Kgole (A108/12) [2012] ZAGPPHC 313 (22 November 2012)
NOT
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: A108/12
DATE:22/11/2012
In
the matter between:
THOMAS
MAFA KGOLE
..................................................
Appellant
and
THE
STATE
.........................................................................
Respondent
JUDGMENT
Tuchten
J:
1
The appellant was charged in a regional court with the crime of rape.
It was alleged that on or about 14 July 2007, and at or
near Soweto,
he had sexual intercourse with the 17 year old complainant without
her consent. Despite his plea of not guilty, he
was convicted as
charged and sentenced to imprisonment for 15 years. Leave to appeal
against both conviction and sentence was granted
by the court a quo.
2.
The complainant gave evidence through a closed circuit television
link. She described how she knew the appellant as her uncle’s
friend. She clearly regarded him as an authority figure. During the
evening on the day in question, she went to buy some oranges.
The
appellant encountered her and told her to walk to her destination by
a route other than that which she was using. She complied.
The route
chosen by the appellant, she said, led pasta house which turned out
to be the house in which the appellant and his mother
lived.
3.
She says that he “made me enter forcefully into that house”
and that she went in unwillingly. There, she said, he
took her into a
bedroom, closed the door and asked her if she wanted some food, to
which she replied that she did not, she wanted
to go home. The
appellant then left her in the room and, she said, when he came back
told her that if she tried to escape and unless
she pretended to be
his girlfriend, he would kill her. He then allegedly forced her to
undress, removed his own clothes and raped
her, through the night
until the morning. The next morning the appellant allegedly forced
the complainant to wash herself and then
let her go.
4.
The appellant went home, declined to take her grandmother whom she
found there into her confidence and then went to her sister,
at a
church at Baragwanath, and told her everything. She went to a clinic
and then to a police station. Then she was taken to be
examined by a
medical practitioner. She said that she had been a virgin before her
ordeal.
5.
it was put to the complainant in cross-examination that the appellant
would deny forcing her to enter into the house or committing
any
violence toward her. Strangely, in the light of the defence of the
appellant which emerged when he ultimately testified, it
was not put
to the appellant that she did not take her clothes off in the
appellant’s bedroom or that no intercourse took
place.
6.
The complainant's sister testified, confirming the report made to her
by the complainant. She said that the complainant “could
not
talk, I did not understand most of what she said but she was not
herself.” According to the complainant’s sister,
the
complainant told her that she had been raped by the appellant.
7.
The complainant was examined by Dr Bomvana, an experienced medical
practitioner. He found a deep laceration in the posterior
fourchette,
with passive bleeding. He also found bruising of the focca
navicularis and swelling of the hymen with a fresh tear.
Dr Bomvana
concluded that there had been recent traumatic medical penetration,
consistent with sexual intercourse. He also found
the complainant
appeared to be depressed.
8.
Faced with this overwhelming clinical evidence that the appellant had
either been raped or had had sexual intercourse without
lubrication,
the appellant proceeded to testify that he had come upon the
complainant in the street and proposed love to her. The
age of the
appellant was given in the charge sheet as 39 years. He proposed that
she come home with him, to which she there and
then agreed. At the
appellant’s home, he says, the complainant was greeted by his
mother and her friend. The appellant’s
niece was allegedly also
there. A social interaction allegedly took place, during which the
appellant’s mother asked the
appellant whether she was there to
spend the night, in which event they did not wish the complainant
later to say she had been
raped, to which the complainant said that
she would not do that and that the appellant was her boyfriend.
9.
Later that evening, the appellant claimed, the complainant got into
bed with him with all her clothes on and declared her desire
not to
engage in sexual intercourse, whereupon they both went to sleep. The
appellant admitted that the complainant washed herself
the next
morning but claimed that she did so of her own volition. Then they
parted on amicable terms.
10.
The appellant's mother gave evidence. The appellant had said in his
evidence that his mother and her friend were drunk that
evening. She
supported the appellant’s version. She maintained initially
that although she had consumed liquor, she had not
been drunk. Later
she admitted that she had been drunk.
11.
Counsel for the appellant criticised the evidence of the complainant
in heads of argument and in oral submissions. He submitted
that it
was improbable that she would merely have followed the appellant. I
disagree. The complainant was a naive young person
who regarded the
appellant as an authority figure. Counsel argued that it was unlikely
that the appellant would have offered her
food if his intention was
to rape the complainant. It is common cause that the complainant was
offered and refused food. It is
not in my view improbable that a
would be rapist would employ both coercion and what had falsely the
appearance of kindness to
overpower the will of his intended victim.
12.
It was argued that because the appellant was a friend of the
complainant’s uncle, he would be unlikely to commit the offence
or to have allowed the complainant to leave the house when he had
allegedly earlier prevented her from doing so. I disagree. Having
got
what he wanted from her, he had at some stage to let the complainant
go. The appellant no doubt would have considered that
it was his and
his mother’s word against that of the complainant, particularly
as the complainant could be, and was, prevailed
upon to wash away
some of the signs of intercourse.
13.
It was submitted that it was unlikely that the complainant would not
have tried to escape or enlist the aid of the appellant’s
mother. The appellant’s mother was on her own version drinking
liquor when the complainant arrived and became drunk. Her
attitude
toward the complainant was not such as to inspire confidence in the
complainant that she would come to the complainant's
aid or be
sympathetic to an accusation of rape or attempted rape against her
son.
14.
Then counsel pointed to the complainant’s evidence that when
she got home she was asked by her grandmother where she had
been but
did not tell her grandmother what had happened, preferring to tell
her sister. I see nothing worthy of criticism in this.
I do not find
it strange that a young person who had suffered such an ordeal would
prefer to confide in her sister rather than
her grandmother.
15.
Counsel criticised the complainant because only one charge of rape
was brought although the complainant said that she had been
raped
several times during the night. There was no cross-examination on the
point and, in my view, the complainant cannot be held
accountable for
the way the prosecutor drew the charge sheet.
16.
Counsel pointed to certain contradictions and discrepancies in the
complainant’s evidence. In chief, she said that she
spoke to
the appellant’s mother for the first time the morning after her
ordeal while in cross-examination she said that
the night she arrived
the complainant’s mother asked her whether she was the type of
girl who would falsely claim she had
been raped and that she
responded that she was the appellant’s girlfriend; the
complainant said that she had been scratched
on her arms and that her
arms were twisted while Dr Bomvana saw no sign of any such injury; in
chief she did not mention that the
appellant had in his possession an
object that looked like a knife while in response to questions from
the bench, she explained
her submission to the appellant partially on
the basis that she feared for her life because the appellant had in
his possession
what she thought was a weapon.
17.
Counsel submitted that while the complainant had undoubtedly had at
the very least unlubricated sexual intercourse shortly before
she was
examined by Dr Bomvana, there was no evidence to corroborate the
complainant’s evidence that it had happened the
day before the
examination and thus that the appellant was involved.
18.The
evidence must be seen holistically. The matters I have mentioned in
the previous paragraph give cause for reflection. But
the evidence of
the complainant must be weighed with the proven facts that the
complainant had undoubtedly had a sexual experience
about which she
wanted to confide in and seek the advice of her sister, that at this
early opportunity she identified the appellant
as her assailant and
that she was prepared to go through the indignity of having the law
take its course. The state case as a whole
must be weighed against
the version of the appellant to see whether it can reasonably
possibly be true.
19.
The regional magistrate believed the complainant, describing her as
very naive about the question of love affairs, and rejected
the
version of the appellant and his mother as not reasonably possibly
true. In my view that conclusion was correct. The appellant’s
version is preposterous. To suggest that this young woman, having
very recently lost her virginity, would have chosen a man more
than
twice her age whom she encountered in the street for an intimate
relationship and then repaid his kindness by making a false
accusation of rape against him flies in the face of alt human
experience. The appellant’s version cannot account for the
clinical evidence of at the least unlubricated penetration, her
identification of the appellant as the man who raped her and her
depressed mood when she spoke to her sister and Dr Bomvana. The fact
that the essence of this version, ie that the complainant
allegedly
slept fully clothed in the same bed as the appellant and that no
intercourse took place, was not even put to the complainant
reinforces this conclusion. The appeal against conviction must fail.
20.
The appellant had a previous conviction for rape, committed in 2003.
The sentence of fifteen years was a lenient one. I would
have imposed
a much harsher sentence. The appeal against sentence must also fail.
21.
I therefore make the following order:
The
appeals against both conviction and sentence are dismissed and the
conviction and sentence imposed upon the appellant are confirmed.
NB
Tuchfen Judge of the High Court 21 November 2012
M
MPHANGA Acting judge of the High Court 21 November 2012
KgoleAIOS
12