Mokhemise v S [2008] ZAFSHC 10 (21 February 2008)

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[2008] ZAFSHC 10
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Mokhemise v S [2008] ZAFSHC 10 (21 February 2008)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No. : A338/2004
In the appeal between:
SEBATHA EDGAR
MOKHEMISE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
VAN
ZYL J
et
MOLOI
AJ
_____________________________________________________
JUDGMENT
BY:
MOLOI
AJ
_____________________________________________________
HEARD
ON:
12
FEBRUARY 2008
_____________________________________________________
DELIVERED
ON:
21
FEBRUARY 2008
_____________________________________________________
[1] This
matter came before us as an appeal against both the conviction on a
charge of rape and sentence of twelve (12) years imprisonment
imposed
by the Regional Magistrate, Bethlehem sitting at Senekal. The
appellant, a 30 year old man, had pleaded not guilty to
a charge of
rape and denied any sexual intercourse with the complainant.
[2] The
conviction was based on the evidence of the complainant that on
Saturday, 7 April 2001 at approximately 22h00 she went to
a tavern at
Matwabeng, Senekal, looking for her boyfriend. She did not find her
boyfriend there but the appellant, who then left
with her to his
residence under the pretext that he was going to wear a different
pair of shoes.
[3] When
they got to the appellant’s residence he unlocked his house and
opened the door, he grabbed her and pushed her into the
house and
told her she was going to spend the rest of the night with him, which
she resisted. The appellant ordered her to leave
using a different
door than the one they came into the house with. When she reached
the other door to exit the place, the appellant
slapped her on the
right hand side of her face in the vicinity of her eye. She
retaliated by throttling him and he let go of her.
[4] She
moved to the other door and he hit her again in her face whereupon
she grabbed his private parts and he shouted “I don’t
fight,
leave my place”. She let go of him and hurried to the nearby
telephone booth to call the police. As she was talking
to the
police, the appellant came, assaulted her once more, overpowered her
and led her into his house where he asked her if she
wanted him to
use a condom or not. He then had sexual intercourse with her after
wearing a condom. He thereafter fell asleep.
[5] She
took her clothes and left the house through the window as she could
not open the door. She again went to the telephone
booth and called
the police where after she went home where she reported the incident
to her mother who then sent children to call
the police. The police
came and the following day she was examined by the doctor. Her eye
was sore, her tooth loose but experienced
no pain in her private
parts. The sexual act took place without her consent and she could
not fight back as she was then tired.
[6] Though
she knew the appellant well as he often visited her home, she had no
relationship with him nor had he ever suggested
an amorous
relationship to her. She had no reason to incriminate him falsely.
[7] In
cross-examination the appellant suggested that the complainant found
him in the tavern sitting and drinking with other people
including a
policeman (later found to be the court orderly), that complainant
asked him for money, which he gave and the complainant
bought liquor
which they all drank. She denied these allegations. He also denied
having raped her. He alleged she fetched him
from the tavern and she
consented going to his house with him and that they slept there
without having any sexual intercourse.
He also contended that she
reported him to the police because she stole money from him as well
as two new blankets; they were
often together as the complainant
frequented his house because they have a love affair. Complainant
denied these allegations.
[8] The
State called the two policemen that received the calls made by the
complainant. They confirmed the receipt of the calls
on the 10111
number. The only discrepancy in their evidence is that the first
call received by Inspector Serahanye was alleged
to have stated that
the complainant had already been raped when she made a call whereas,
according to the complainant, she was
raped only before the second
call.
[9]
The State further presented the evidence of the complainant’s
mother P.G., who confirmed that when the complainant arrived
home she
was crying and told her what happened, her pants were not buttoned
up, her tooth was loose and there were injuries to
her nose and eye
and she was emotionally shaken. She confirmed that the complaint
frequented the appellant’s (Buti) house as
they are used to each
other. She confirmed further that the appellant (Buti) often came to
her place because she had a relationship
with the appellant’s
brother, which relationship no longer existed at the time of the
incident. She denied there was a relationship
between the
complainant and the appellant.
[10] The appellant
testified and denied having raped the complainant. He alleged the
complainant fetched him from the tavern where
he was sitting with,
among others, the court orderly and enjoyed drinks. The complainant
asked him for money to buy liquor which
he gave and after she bought
liquor she refused to give him the change and suggested they leave.
They went to his house where
they slept. He did not know what time
she left. He thought why the complainant laid a charge of rape
against him is because she
stole his money and two new blankets. He
was surprised when the police confronted him with rape allegations.
They had known each
other for some time and they had a relationship
approximately two years before the date. When they went to sleep the
night before,
there was nothing wrong with the complainant. When he
was charged, he also laid a charge of theft against her. He will,
however,
not call the policeman to whom the charge of theft was laid.
[11] The appellant called
the court orderly as a witness and he denied the appellant was
sitting with the complainant in the tavern
that evening. The
appellant also called one Joseph Mohapi who confirmed having seen the
complainant visiting the appellant’s
house previously but did not
know what she was doing there.
[12] After
considering this evidence the Regional Magistrate rejected the
appellant’s version and convicted him of rape.
[13] The appeal was based
on the grounds that the State had failed to prove a case against the
appellant beyond a reasonable doubt
in that
(a) there was no medical
evidence tendered to support the complainant’s allegation of forced
sexual intercourse;
(b) that the two police
officers did not corroborate each other and they did not corroborate
the complainant either with regard
to when the alleged rape occurred;
and
(c) the identity of Buti
who was alleged to be the perpetrator and that the appellant’s
version was wrongly rejected as false.
[14] On considering this
appeal this Court finds that there was no irregularity or
misdirection on the credibility findings of the
Regional Magistrate
to warrant a different view and that the medical evidence complained
of would not take the matter further as
the complainant testified
that she did not suffer any injuries to her private parts and that
she was an adult and matured woman.
The evidence of the two police
officers had in fact, corroborated the evidence of the complainant
and the seeming discrepancy
of the nature of her report to the first
police officer, was not material. The identity of Buti did not
actually matter as the
appellant himself confirmed having been with
the complainant at his house and both slept there for the night
though he denies having
had sexual intercourse with her. Moreover,
the complainant’s mother, when testifying about the appellant, she
referred to him
as Buti. The conviction is consequently confirmed by
this Court.
[15] The second leg of
the appeal related to the sentence of twelve (12) years imprisonment
imposed by the Regional Magistrate.
The trial court has unfettered
discretion to impose an appropriate sentence and a court of appeal
may only interfere therewith
only if there was a misdirection
committed (
S v KGOSIMORE
1999 (2) SACR 238
(SCA)) or
when the sentence is considered to be shockingly harsh and
inappropriate. For this offence the minimum sentence prescribed
in
terms of
section 51
of the
Criminal Law Amendment Act, No. 105 of
1997
, is ten (10) years imprisonment. The trial court must look,
therefore, for substantial and compelling circumstances to justify
a
deviation from the minimum prescribed sentence. It is equally true
that the substantial and compelling circumstances are not
exceptional
circumstances:
S v MALGAS
2001 (1) SACR 496.
[16] In the present case
the Regional Magistrate considered the appellant’s personal
circumstances,
viz
that he was a 30 year old unmarried and
unemployed male having no children of his own but supporting his
sister’s children.
He passed Standard 5 at school and has a
previous conviction for attempted robbery and attempted rape for
which he was duly sentenced.
These factors were balanced against the
nature and seriousness of the crime of rape and the interests of the
community to arrive
at a sentence of 12 years imprisonment which is
an upward deviation from the prescribed minimum sentence of ten
years.
[17] This
Court is of the view that the trial court did not take into
consideration other factors that could have persuaded it to
impose
the prescribed minimum sentence e.g. the fact that the complainant
did not suffer serious physical or emotional injuries
and the close
relationship the appellant had with the complainant prior to the date
of the commission of the offence. The court
must haste to add that
these factors would not constitute substantial and compelling
circumstances now after the enactment of
section 51(3)
of the
Criminal Law (Sentencing) Amendment Act, No. 38 of 2007
, which came
into operation on 31 December 2007, but did then. A further factor
not taken into account by the trial court is the
state of
intoxication the appellant was in during the commission of the
offence and the fact that he had started drinking before
the
complainant made her appearance at the tavern. This suggests that he
did not imbibe liquor in order to assault the complainant.
[18] Although the
aforesaid circumstances are not enough to constitute substantial and
compelling circumstances which necessitate
imposing a lesser sentence
than the prescribed minimum of ten years, they do constitute
mitigating factors which should have been
taken into account by the
trial court. In the circumstances this Court feels bound to interfere
with the sentencing discretion
of the court
a quo
and impose a
sentence of ten (10) years imprisonment.
[19] Accordingly the
following order is made.
The appeal against the
conviction is dismissed and the
conviction is confirmed.
2. The appeal against the
sentence succeeds. The imposed sentence is set aside and substituted
with one of 10 years imprisonment,
which sentence should be
considered to have been imposed on 6 June 2001.
_____________
K.J. MOLOI, AJ
I concur.
_____________
C.VAN ZYL, J
On behalf of
appellant: Adv. R.J. Nkhahle
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. S. Chalale
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp