About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 141
|
|
Gotseng v S (A107/2010) [2011] ZAFSHC 141 (1 September 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: A107/2010
In
the matter between:
SHADRACK
TELEKO GOTSENG
…..........................
Appellant
and
THE
STATE
…........................................................
Respondent
CORAM:
VAN ZYL, J
et
MATHEBULA AJ
HEARD
ON
:
8 AUGUST 2011
JUDGEMENT
BY:
MATHEBULA AJ
DELIVERED
ON:
1 SEPTEMBER 2011
[1]
The
appellant was
arraigned
before the
Regional Magistrate, Bloemfontein on a charge of rape and indecent
assault. He was convicted on both charges and sentenced
as follows:-
CHARGE 1: Twenty (20)
years imprisonment of which eight (8) years is suspended for five (5)
years on condition that the appellant
is not found guilty of rape or
an offence of a sexual nature during the period of suspension.
CHARGE 2: Ten (10)
years imprisonment of which two (2) years was suspended for five (5)
years on condition that the appellant is
not found guilty of indecent
assault or an offence of a sexual nature during the period of the
suspension.
[2] The appellant was
granted leave to appeal against both conviction and sentence by Van
der Merwe and Mocumie JJ only in respect
of the question whether
there was a duplication of convictions and the sentences.
[3] The facts are briefly
as follows:-
On
the 5
th
May 2007 the appellant and the complainant had attended a family
gathering. Apart from the
relatives,
there were
other
people. Late in the night, the children went to sleep and
the
adults continued feasting.
The
complainant
woke
up some time during the
night in order to relieve
herself.
She
went to the toilet, which was
outside
,
but in the erf. It was in the
toilet
that the appellant raped her.
[4]
THE
CRIMINAL
LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT 32 OF 2007
section 3
reads as follows:-
“
Any
person (A) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (B) without the consent
of B, is
guilty of the offence of rape. Sexual penetration is defined in
section 1
, inter alia, to include any act which causes penetration to
any extent whatsoever by;
(a) The genital organs
of one person into or beyond the genital organs, anus, or mouth of
another person.”
[5] These sections
entitle the state to charge an accused person with as many charges as
possible. The section also prohibits splitting
of charges or
duplications of convictions.
[6] The court has
developed the same evidence and single intent test to deal with
issues of this nature.
See
S v GROBLER
1966 (1) SA 507
AD at 511 and in S v MANELI
2009 (1) SACR 509
(SCA)
at 512 para [8]
[7] It was submitted on
behalf of the appellant that there was a duplication of convictions
and sentences. Mr Makhene referred to
the discrepancies between the
testimony of the complainant and the medical report. He conceded that
the appellant was correctly
convicted on the charge of rape.
[8] The state represented
by Mr Mthethwa correctly conceded that the state in the court a quo
had failed to prove that there was
both vaginal and anal penetration.
If such penetration occurred, whether those two (2) acts were closely
connected to each other
or not. He submitted that the only conclusion
to be drawn was that the conduct of the appellant constituted a
single criminal transaction.
He agreed that the appellant was
correctly convicted on a charge of rape.
[9] Evaluating the
evidence in totality, I am of the view that the court a quo erred in
finding the appellant guilty of the second
charge. It is unclear
whether anal penetration took
place on
that day and, if so, when did it occur? Further, if it occurred, who
caused it? The only mention of anal penetration was
made by the
doctor who examined the complainant. The complainant did not testify
to that effect. In the absence of her testimony,
the conviction on
charge number two cannot be supported and ought to be set aside.
[10] I make the following
order:-
10.1 The conviction
and sentence on charge number one (1) is confirmed.
10.2
The appeal on charge number
two (2)
is
upheld.
10.3
The conviction and sentence
on charge
number two (2) is set aside.
_______________________
M.A. MATHEBULA, AJ
I agree.
_______________
C. VAN ZYL, J
On
behalf of the appellants: Adv JS Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv S Mthetwa
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN