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[2009] ZAGPPHC 275
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Mofokeng v S (A163/09) [2009] ZAGPPHC 275 (3 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH
GAUTENG
HIGH COURT, PRETORIA)
Case
No: A163/09
In
the matter between:
PETRUS
JABU
MOFOKENG
Applicant
and
THE
STATE Respondent
JUDGMENT
Judgment
reserved: 31 JULY 2009
Judgment
handed down: 03 August 2009
LEGODI
J,
1.
This is an appeal against conviction and
sentence on a charge of rape, the allegations having been that on or
about the 6 November
2003, the appellant unlawfully and intentionally
had sexual intercourse with the complainant, without her consent.
2.
The appellant was tried in the Regional
Court Pretoria. After having been convicted, he was sentenced to ten
years imprisonment.
3.
Petition to appeal against both
conviction and sentence was granted by Prinsloo J and Makgoba J, such
leave to appeal having initially
been refused by the trial court.
4.
The trial court in convicting the
appellant relied mainly on the evidence of the complainant, whose
evidence in a nutshell was to
the following effect.
5.
The appellant was well known to the
complainant. The latter was a bosom friend to the girlfriend or wife
of the appellant and they
were working together. On the evening of
the 6 November 2003, the appellant brought certain terms belonging to
the complainant.
This was at a place where the complainant was
staying. During the proceedings, her place was referred to as a
shack.
6.
A long discussion took place between the
appellant and the complainant, regarding the problems which the
appellant had with his
girlfriend. The appellant was pleading with
the complainant to talk to her friend being the appellant's
girlfriend.
7.
Late in the evening, the appellant
changed the tone of the discussion. He showed an interest in the
complainant. For example, at
one stage he inappropriately touched the
complainant on her skirt. When the complainant resisted such
advances, the appellant retorted
by saying she should not behave like
a small child.
8.
The complainant attempted to move away
from the appellant. The appellant followed and ultimately pushed her
onto a bed. He then
instructed the complainant to undress. The
complainant complied and had sexual intercourse with the appellant
against her will.
The appellant thereafter just dressed up, went out
and left.
9.
The complainant remained in her shack,
confused and not knowing what to do. She wondered who to tell and at
the same time how to
tell anybody. This was apparently on a Thursday.
The following day, she went to work. She told the appellant's
girlfriend that
there were things, which the appellant did to her the
previous night. The complainant told her that the appellant was not a
good
person. She told her friend that the things that the appellant
did to her were not good. She discouraged her friend from sharing
a
bed with the appellant. She however, did not tell her friend that the
appellant had raped her. She was still confused.
10.
Her friend then suggested that the
appellant’s mother must be phoned and be told about the bad
things the appellant did to
her. The appellant's mother was phoned.
The complainant however, did not tell the appellant's mother that the
appellant had raped
her as she was with her friend who was a
girlfriend to the appellant.
11.
Later, the appellant returned to phone
the appellant’s mother. The complainant then told the
appellant’s mother that
she was raped by the appellant. The
appellant's mother then pleaded with the complainant not to tell the
appellant's girlfriend.
The mother to the appellant also suggested to
the complainant that she must not tell her own boyfriend.
12.
She was told that should she tell her
boyfriend, the boyfriend will get rid of her. The appellant’s
mother suggested that
she will arrange for a meeting to discuss the
problem with all parties involved.
13.
The following Monday, she met the
appellant’s mother at the station. She repeated to her what the
appellant did to her. The
appellant’s mother suggested that she
should just keep quiet about the whole thing. She was very upset
after having spoken
to the appellant’s mother. When she arrived
at work, she was really in a bad mood. She went straight to the
appellant's girlfriend
and told her what the appellant did to her.
The appellant's girlfriend then suggested that the matter be reported
to the police.
Her employers then took her to the police station at
Centurion. This was on a Monday. She did not report the incident to
the police
immediately as she was afraid of her boyfriend. Her
boyfriend did not want her to be visited by people at the place where
she was
staying. She was also afraid to tell her mother who was
staying in KwaNdebele. She was afraid to tell her, as her mother did
not
want her to come and stay in the city. She was afraid that if her
mother became to know about it, she would order her to return
to
KwaNdebele. She was staying with her boyfriend, but he was not at
home all the time as he used to work far.
14.
The appellant also testified in his
defence in the court aquo. Two witnesses also testified in his
defence. These were his mother
and wife referred to during the
complainant
evidence.
I do not intend dealing with the evidence of each witness separately
and in detail. In a nutshell, the appellant’s
evidence was to
the following effect.
15.
On the evening in question the appellant
went to the place where the complainant was staying. He went there to
give her some items
belonging to her. At her place, they discussed
problems which the appellant was having with his wife or girlfriend.
He requested
the complainant to talk to his girlfriend. He then later
suggested to the complainant that they should have an affair. The
complainant
was prepared to accommodate his proposal,
but she was worried as to what the
appellant’s girlfriend who was also a friend to the complainant
would say if she was to
find out. He then told the complainant that,
that was his problem. He will see how to resolve
it with his girlfriend. The complainant
understood and later they agreed to make love.
16.
They were in the kitchen when they
started touching each other. He asked the complainant to remove her
clothes. She was shy. He
then said to the complainant she must stop
behaving like a small child. The complainant then on her own accord,
moved from the
kitchen to the bedroom. The appellant went outside to
relive himself. He then returned to the house. In the bedroom the
complainant
removed her clothes. She opened the blankets. They then
had sex. When they finished he bit her a goodbye. The following day
on
a Friday, she told the appellant’s that the appellant, had
inappropriately touched her.
17.
The following Monday, the complainant
accompanied by her boyfriend or husband arrived at the appellant’s
home. The complainant’s
boyfriend enquired as to what had
happened between the appellant and the complainant. The appellant
then told him that the two
of them, that is, the appellant and the
complainant had sex by agreement. The complainant's boyfriend then
said to the complainant
that he did not want to be involved. The
complainant then started to make noise in the house. This was after
her boyfriend had
said it was over between the two of them.
18.
He did not just start by touching her on
the skirt on the evening of the alleged commission of the offence.
They first touched each
other on the hands and thereafter he went for
the skirt. The complainant became shy because she did not expect that
the appellant
would propose love to her.
19.
Counsel for the appellant takes the view
that the trial court erred in finding the appellant guilty as
charged. In particular that
the trial court erred in finding that the
guilty of the appellant has been proved beyond reasonable doubt. The
trial court is said
to have ignored certain improbabilities in the
complainant’s evidence.
20.
Before I deal with these criticisms, I
find it necessary to refer to some aspects of the law which I find to
be relevant in the
instant case.
21.
There is no obligation on the state to
close every avenue of escape open to an accused person. It will be
sufficient for the state
to produce evidence by means of which such a
high degree of probability raised, that a reasonable man concluding
that no reasonable
doubt existing that the accused committed the
crime charged for. Benefit of doubt in favour of accused to rest upon
reasonable
and solid foundation created by positive evidence or
reasonable inference. (See S v Phahlo and others
1999 (2) SACR 558
SCA).
22.
Onus resting on state in criminal
case is to prove guilt of an accused beyond reasonable doubt, and not
beyond all shallow of doubt.
Our law does not require court to act
only upon absolute certainty, but merely upon justifiable and
reasonable convictions, nothing
more and nothing less. The court is
not required to consider every fragment of evidence individually to
determine its weight. Cumulative
impression which all fragments make
collectively, to be considered in determining whether the accused’s
guilt to be established
beyond reasonable doubt. (See S v Ntsele
1998
(2) SACR 178
(SCA).
23.
The alleged improbability in the
evidence of the complainant in my view, should be seen in the context
of the appellant's evidence.
Secondly, her evidence should be seen in
the light of the complainant just before the alleged raped and after
the rape.
24.
The appellant did not deny having had
sexual intercourse with the complainant. The conduct, reaction or
behaviour of the complainant
was therefore placed into question. If
did not look like the appellant placed many of the things said by the
complainant in issue.
According to the complainant, everything
started when the appellant put his hand into the complainant’s
skirt. To this, the
appellant did not deny. However, the appellant
suggested that the first touching was when they held each other by
hands. It appeared
to have been common cause that, the two were in
the kitchen during the initial
discussions
.
25.
The appellant suggested that the
agreement to make love there and then was taken whilst the were still
in the kitchen but the complainant
was shy. This allegation was
disputed by the complainant.
26.
The appellant however, want to create
the impression that as an indication that the complainant had agreed
or consented to have
sexual intercourse, the complainant moved from
the kitchen to the bedroom where she undressed herself and got into
the blankets.
This suggestion should be seen in the context of the
complainant’s evidence. The complainant stood up after the
appellant
had tried to fondle her. She moved backwards. The appellant
aggressively grabbed and pushed her onto the bed with threatening
eyes
wide opened. The appellant was also shivering. When ordered to
undress, she obliged as she was scared of the appellant. All of this
is not consistent with the suggestion that she had voluntarily agreed
to have sexual intercourse with the appellant.
27.
During cross-examination of the
complainant, there was a further suggestion that if the complainant
was raped, she would have made
such a report at her first available
opportunity. This criticism in my view, failed to take the following
into consideration:
a)
That
after the appellant had left, the complainant did not know how to
break the news to other people, she felt ashamed to talk
about the
rape. Quite very often victims of sexual assault find it hard to talk
about their ideals, especially during an initial
stage. Firstly, such
victims sometimes feel dirty about themselves. Secondly, they fear be
rejected by those close to them. For
example, the complainant in the
instant case was scared to inform her boyfriend, particularly that
her boyfriend did not want to
be visited by people at her place.
b)
The
conduct of the complainant after the rape in my view, should be seen
in the context of a traumatised victim of rape. She was
working with
the wife or girlfriend of the perpetrator. The wife to the appellant
was very close friend to the complainant. Therefore,
the fact that
she did not tell the whole story on the first occasion when she spoke
to the appellant's wife or girlfriend in my
view, did not weaken her
case, particularly seen in the light of her explanation. She however
emphasised to her friend that the
appellant was no good and that she
should not have sexual intercourse with him. She was still uncertain
whether she should tell
the wife to the appellant.
c)
She
phoned the appellant’s mother. This was after the appellant's
wife suggested that she should be phoned. The two went to
the public
phone to phone the appellant's mother. The appellant's wife was there
with
her when she phoned. She was not
free to tell the appellant's mother in the presence of the
appellant's wife that the appellant
raped her. I find nothing wrong
with this behaviour. However, what is important is that she returned
to the public phone alone.
This time she reported to the appellant’s
mother that the appellant had raped her.
d)
Despite
the appellant's mother having attempted to persuade the complainant
not tell anyone, the complainant ultimately told the
appellant’s
wife. The complainant also told her boyfriend. A meeting was arranged
to discuss the alleged rape. The complainant
is alleged to have
became hysterical and uncontrollable. This resulted in the meeting
turning fruitless. I see nothing wrong in
this behaviour especially
with regard to a victim of rape.
28.
Lastly, one should have a look at the
appellant’s version, seen in the light of the evidence adduced
by the state. His defence
of a consensual sex is militated against
the reaction of the complainant. During her evidence it was suggested
that she behaved
in the manner she did because she was feeling sorry
or pity about herself for having agreed to have sexual intercourse
with her
best friend's boyfriend. This suggestion was denied by the
complainant and it therefore remained a speculation.
29
.
It is not like the complainant was
forced into making the report of the offence. It also cannot be said
she falsely implicated the
appellant to cause him to be arrested and
to be punished for something which he did not do. If indeed she
wanted just to put the
appellant behind bars, she could simply have
proceeded to the police the following day, after she was raped.
Instead, she spent
a weekend battling with the issue in her mind.
Some days thereafter, she just did not go to the police, but still
spoke to the
appellant's wife.
30.
Coming to sentence, I do not think that,
this rape was one of the worst. Minimal force was used. Complainant
was not injured. No
evidence of the extent of trauma was tendered.
Ten years imprisonment in my view is a bit severe. In my view, seven
years imprisonment
should have been found to be appropriate.
31.
Consequently, an order is made as follows:
31.1
Appeal against conviction is dismissed,
31.2
Appeal against sentence succeeds,
31.3
The sentence of 10 years imprisonment is hereby
set aside and
substituted as follows:
‘‘
The
appellant is sentenced to seven years imprisonment".
31.4
The seven years imprisonment is hereby
antedated to 25 January
2006 to 3 December 2008 being the date on which the appellant was
sentenced and served his sentence before
being released on bail
pending appeal
M F LEGODI
JUDGE OF THE HIGH
COURT
I, agree
V V TLHAPI
ACTING JUDGE OF THE
HIGH COURT