S v Gaboatlhole (103/2005) [2008] ZANCHC 69 (7 November 2008)

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[2008] ZANCHC 69
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S v Gaboatlhole (103/2005) [2008] ZANCHC 69 (7 November 2008)

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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Case Nr: 103/2005
Case
Heard: 27/10/2008
Date
delivered: 07/11/2008
In
the matter between:
TTUELO
GABOATLHOLE APPELLANT
and
THE
STATE RESPONDENT
Coram:
Bosielo AJP et Olivier J et Steyn AJ
JUDGMENT
Olivier J:
The appellant appeared in the Regional Court on a
charge of the rape of a 13 year old girl, and an alternative charge
of having
had intercourse with a girl younger than 16 years in
contravention of section 14(1)(a) of Act 23 of 1957. He pleaded not
guilty.
He admitted having had intercourse with the complainant,
but stated that she had consented and that he had been unaware of
the
fact that she was younger than 16 years old.
The appellant was convicted on the
main charge of rape and the matter was referred to the High Court
where he was sentenced to
imprisonment for a period of 10 years.
With the leave of the Court
a quo
he now appeals against both his conviction and sentence.
It was common cause:
that the complainant had been 13 years old at the
time;
that intercourse had taken place; and
that the complainant and the appellant had come to
know each other through the visits of the appellant to the
complainant’s
brother Thebogo in the period of 2 to 3 months
prior to the incident.
It is trite that a Court of appeal
will not interfere with findings of fact unless they are clearly
wrong (see
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705,
S v
Hadebe and Others
1997 (2) SACR 642
(A) at 654f and
S v Monyane and
Others
2008 (1) SACR 543
(SCA) at
547j-548a).
The complainant’s version, very briefly, was as
follows:
She had on a previous occasion told the appellant that
she was in grade 8 at school and 13 years old.
The appellant arrived on the particular day, Sunday
20 March 2005, again looking for her brother, who was not
there at
the time.
The appellant asked for water. At some stage one
Thabo arrived, and a discussion took place between the appellant
and Thabo
about photographs which the appellant had to enlarge.
The complainant went to a room to apply lotion to her
hands.
The appellant came to the room, touched her breasts,
forced her onto a bed and raped her. Her screams and struggle had
been
in vain.
The appellant’s version, again very briefly, was the
following:
The complainant had earlier in the same month told him
that she was in grade 8 at school and that she was 18 years old.
The complainant had resented him for having recruited
Thebogo as a member of the church he attended, apparently alleging
that
it was a satanic church and religion. She had regarded him as
evil and had verbally abused him.
On Saturday 19 March 2005 he again went to the
particular house to look for Thebogo. The complainant once again
verbally abused
him, but as he was leaving she called him back,
apologised, hugged him and invited him to return on the Sunday,
when she would
be alone at home, and told him that she had a
surprise for him.
He found the complainant alone on the Sunday. He
asked for water. Thabo arrived and they had a discussion about
photographs.
At one stage, apparently after Thabo had left, he
asked the complainant if she had been sincere in her apology, which
she confirmed.
They started kissing, she closed the door of the
house and intercourse took place in the living room.
After a visit to the toilet the
complainant asked him if he had ejaculated inside her. When he
confirmed this, she was worried
about falling pregnant and
disappointing her family. He suggested that she used a so-called
“
twenty four hour emergency
prevention pregnancy pill
”. The
complainant asked him to leave and in fact “
chased
(him)
out
”,
stating that she was going to lay a charge of rape against him.
As a single witness and child the complainant’s
evidence had to be considered and approached with caution. The
regional magistrate
came to the conclusion:
that the complainant had made a good impression as a
witness;
that she had not had a motive to falsely implicate the
appellant;
that the report she had made to her grandmother
indicated consistency in her version that she had not consented to
intercourse;
and
that her version was corroborated by the evidence of
her grandmother that she was crying when she arrived and made the
report.
In my view there are, in the first place strong
indications of a reasonable possibility of such a motive, and the
regional magistrate
appears to have overlooked material evidence in
this regard.
The complainant admitted that she had disapproved of
the appellant’s religion and beliefs, that she had told him that
she regarded
him as evil, that she thought his eyes looked evil and
that she had verbally abused him.
The question that could immediately be asked is why she
would then not only have consented to intercourse with him, but in
fact
have initiated it.
The appellant’s version, as already mentioned, was
that the complainant had had a change of heart, had apologised to
him for
her behaviour and had then invited him to come over the next
day. It may be argued that such a sudden change of heart was
unlikely,
even for such a young child, but the question is really
whether it is, when considered as part of all the available
evidence,
necessarily not reasonably possible.
Then there was the discussion
concerning the possibility that the complainant might fall pregnant.
According to the complainant
she had asked the appellant “
what
if I become pregnant … and he said that is your responsibility
”.
It is quite clear, again on the complainant’s own
version, that she was quite anxious for the appellant to agree to
accept responsibility
should she fall pregnant, to such an extent
that she followed him outside even after he had according to her
made it clear that
it was her own responsibility to prevent that.
It appears, from the evidence of Dr
Berlyn who had examined the complainant later the same afternoon,
that the complainant had
been using an oral contraceptive and had
stopped using it five days prior to the incident. It is strange
that a 13 year old
girl, who had according to herself been a “
girl
that is
(not)
into
boys
”, would have used a
contraceptive.
The fact that she stopped using the contraceptive only
five days prior to this incident could be very significant if it was
true
that she had invited the appellant over, knowing that they
would be alone, and had blatantly seduced him into having
intercourse
with her.
The question also arises what she would have done if
the appellant had reacted by saying that he would accept
responsibility if
she fell pregnant. Would she still have laid a
charge?
It is quite clear that the
appellant’s reaction angered the complainant. That is why she
followed him when he left, this despite
having according to her just
been forcibly raped. She “
wanted him
to face his responsibilities
” and,
when he was not prepared to do so, felt that “
men
like him are not real men
”.
Her answer, when asked whether the appellant’s
reaction had made her angry, was patently false and in conflict with
her own
version:
“
I was
not angry, because I knew
that the Accused person was not able to maintain a child and I also
knew that I was going to lay a charge
against him.
Why did she so anxiously demand such an undertaking
from the appellant if she knew that he could in any event not
maintain a child
and that she was in any event going to press
charges against him? It is also not clear on what basis she could
have regarded
the appellant as unable to maintain a child.
I must also remark that I find this sort of discussion,
and the behavour and reaction on the part of the complainant,
extremely
difficult to reconcile with the scenario of a sexually
inexperienced 13 year old girl who had just been forcibly raped by
somebody
she regards as evil.
It also appears that the regional magistrate, in his
findings regarding the report and the complainant’s emotional
state at
that stage, overlooked certain inconsistencies in the
evidence in this regard.
According to the complainant she
lived with her grandmother and brothers at M. (M2.) Street in G.,
Kimberley, and that was where
the incident took place at
approximately 14:00 in the afternoon. Yet she had to run to M3.
Street in Newtown to report the incident
to her grandmother, where
she arrived (according to the grandmother) at about 15:00.
On the grandmother’s version it
would have been completely impossible for the intercourse to have
taken place in a different
neighbourhood, about an hour’s run
away. According to her the complainant had been plaiting her (the
grandmother’s) hair,
presumably at the house in M3. Street. The
complainant at some stage left and she (the grandmother) got up and
went to a mirror
to see what her hair looked like. When she turned
away from the mirror the complainant came back in, crying, and
reported the
rape.
This is simply irreconcilable with the complainant’s
version. According to her she had been sitting outside a house in a
different
neighbourhood, listening to music played by the neighbours
(not plaiting hair), when she was approached by the appellant and

some time later, after having given the appellant water and after
the discussion between the appellant and Thabo, raped.
It is also difficult to accept that the complainant
could one moment be cool, calm and collected enough to want the
appellant
to be prepared to accept responsibility if she became
pregnant, and the next moment arrive at her grandmother, crying to
such
an extent that she struggled to report the incident.
According to the doctor who examined
her a few hours later, her “
Mental
health and emotional status
” at that
stage was “
good, calm and
understanding
”.
The regional magistrate concluded
that the appellant’s version left unanswered the question why the
complainant, who “
disliked the
accused for his religious beliefs and referred to him as evil
”,
would have chosen to have intercourse with him.
This brings me back to the appellant’s evidence about
his encounter with the complainant on the Saturday and about how she
had
apparently had a change of heart and had invited him to come
over the Sunday when she would be alone.
The complainant’s reaction when this version was put
to her in cross-examination was completely unsatisfactory, but was
not
discussed by the regional magistrate in his judgment.
At first the complainant’s
reaction was that she could not remember having talked to the
appellant on the Saturday. Upon further
questioning she said: “
Gaan
aan, miskien kan ek onthou
”.
When it was thereafter put to her
that she had called back the appellant who was leaving and was
already at the gate, and that
he then returned to her, she did not
deny this and simply said: “
Carry
on
”.
When it was then put to her that,
after she had hugged the appellant he asked if she was interested in
him, her answer was “
Ek kan nie van
die Saterdag onthou nie, geen kommentaar
”.
When it was put to her that she had
then invited the appellant over for the Sunday when she would be
alone, her answer was: “
Okay, I do
not remember the Saturday, so no comment
”.
In passing it may be noted that the
record reflects that it was put to the complainant that she had said
that her “
mother
”
would not be at home on the Sunday, while the appellant’s evidence
was that she had said that her “
brother
”
would not be home. Nothing turns around this. The problem probably
arose in the transcription, because it also reflects
a statement, in
the cross-examination of the complainant, that the reason for the
visit was that the appellant was looking for
the complainant’s
“
mother
”.
This would quite clearly not be correct, because the evidence was
that the appellant always went there to visit the complainant’s

“
brother
”,
who was his friend.
In view of the complainant’s answers to these
statements regarding the events of the Saturday, and the fact that
the appellant’s
evidence in this regard could not be shaken in
cross-examination, it is reasonably possible that the complainant
had changed
her mind about him and had invited him over for the
Sunday, knowing that she would be alone. Once this is accepted as a
reasonable
possibility it is no longer improbable that she would
have agreed to have a relationship and intercourse with the
appellant on
the Sunday.
The regional magistrate conceded
that the appellant had not made “
a
bad impression
” as a witness, but
rejected his version on the basis of what the regional magistrate
perceived to have been improbabilities
in the appellant’s version.
I have already dealt with some of them.
The regional magistrate found it improbable that the
appellant would have left so soon after intercourse if he had been
invited
there and had just struck up a relationship with the
complainant. The simple answer to this is that the appellant and
the complainant
had clearly had an argument about him not wanting to
take responsibility and that she had then asked him to leave and
had, in
fact, chased him away.
The regional magistrate also could not understand why
the complainant would (on the appellant’s version) have decided to
stay
in the livingroom, rather than having intercourse in the
comfort of her bedroom. The appellant testified that the
complainant
reasoned that her uncle might come there, that the time
it would then take to come from the bedroom to open the door would
look
suspicious and that she would in any event in the livingroom be
in a better position to detect any approach by the uncle. This

evidence was not discussed by the regional magistrate, and
apparently not considered.
In my view the evidence did not
exclude the reasonable possibility that the complainant may have
consented to intercourse. Although
it may be said that there are
also improbabilities in the appellant’s version as regards the
issue of consent, I am reminded
“
that
in the search for truth it is better that guilty men should go free
than that an innocent man should be punished
”
(see
S v Kubeka
1982 (1) SA 534
(W) at 538H).
This means that the conviction on the charge of rape
and the sentence will have to be set aside. I am, however,
satisfied that
it was proved beyond reasonable doubt that the
appellant had realised that the complainant was younger than 16
years and that
it would be wrong to have intercourse with such a
person.
The rejection of the evidence of the appellant’s
witness, mr Gift Molefi, that he had overheard the complainant
telling the
appellant that she was 18 years old, was fully
justified.
Even if she has in fact told the
appellant that, it is quite clear that he would have known (or at
the very least suspected) that
she could in fact not be older than
16 years. The appellant’s own legal representative agreed, after
observing the complainant
some six months after the incident, that
“
one can not compare her with an
eighteen year old
”. Even Molefi,
while persisting in his version that the complainant had said that
she was 18 years old, conceded that he doubted
this. The
complainant’s elder brother, Thabogo, was a friend of the
appellant and he was only 15 years old at that stage.
Dr Berlyn testified that is was not reasonably possible
that anybody could have been under the impression at that stage that
the
complainant was 18 years old. He testified that the
complainant’s physical development represented a girl between the
ages
of 10 and 15 years.
In my view the appellant should
therefore have been convicted of a contravention of section 14(1)(a)
of the Sexual Offences Act
23, of 1957. Although this section has
since been repealed by the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 32 of 2007
, this only happened long after
the conclusion of the trial (see
s12
of the
Interpretation Act
,
22 of 1957).
There is no sense in remitting the matter for the
purposes of sentence. The regional magistrate has in any event
since retired.
The appellant has no previous convictions. His
personal circumstances appear from the judgment on sentence and are
favourable.
He had an income of more than R8 000,00 per month.
The complainant suffered no long term psychological effects.
For the purposes of sentence one will once again have
to accept the appellant’s version as reasonably possible, which
would
mean that the complainant had blatantly seduced him into
having intercourse with her.
I am satisfied that a fully suspended sentence would in
the circumstances have been appropriate. The reality is, however,
that
by the time the appellant was released on bail pending this
appeal, he had already served more than 2 months imprisonment, which

will have to be kept in mind in considering sentence on the
alternative count. He had also spent 17 months in custody before
he
was sentenced.
In my view it would, under these
circumstances, be unduly harsh to burden the appellant with an
unsuspended sentence (see
S v O
2003 (2) SACR 147
(C)). The time already spent in prison and in
custody cannot be undone and the only practical approach is to
substitute his
sentence with a period of imprisonment more or less
equal to the period already served (see
S
v N
2007 (2) SACR 398
(E) para [6])
and to antedate it in terms of
section 282
of the
Criminal Procedure
Act, 51 of 1977
.
The following orders are therefore made in this matter:
The appeal against the conviction on the charge of
rape succeeds and the conviction and sentence are set aside.
The appellant is convicted on the alternative charge
of having had intercourse with a girl under the age of 16 years in
contravention
of section 14(1)(a) of the Sexual Offences Act, 23 of
1957.
The appellant is sentenced to imprisonment for a
period of 2 months and 2 weeks, backdated to 22 September 2006.
________________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree:
_________________________
L O BOSIELO
ACTING JUDGE PRESIDENT
NORTHERN CAPE DIVISION
I
agree:
________________________
E J S STEYN
ACTING
JUDGE
NORTHERN CAPE DIVISION
For the Plaintiff: Adv P J Cloete
Legal Aide Centre, KIMBERLEY
For the Respondent: Adv A H van Heerden
Director
of Public Prosecutions, KIMBERLEY