S v Lefosa (296/2006) [2006] ZAFSHC 117 (30 March 2006)

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[2006] ZAFSHC 117
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S v Lefosa (296/2006) [2006] ZAFSHC 117 (30 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Special Review No. :
296/2006
In
the special review between:-
THE
STATE
and
PAPANYANE
LEFOSA
_____________________________________________________
CORAM:
C.J.
MUSI J
et
VAN
ZYL J
_____________________________________________________
JUDGMENT
BY:
VAN
ZYL J
_____________________________________________________
DELIVERED
ON:
30
MARCH 2006
_____________________________________________________
[1] The
accused was charged in the Regional Court held at Batho with the
offence of rape. He pleaded not guilty, but after the conclusion
of
evidence he was convicted of contravening section 14(1)(a) of the
Sexual Offences Act, 23 1957, being statutory rape of a girl
under
the age of 16 years.
[2] The matter was then
referred to this Court as a special review in terms of
section 304A
of the
Criminal Procedure Act, 51 of 1977
. The acting regional
magistrate who presided over the matter states the following as the
reason for his request for the special
review:
“1. The
accused was charged with the offence of Rape.
On 21 February 2006 the accused was
convicted of Contravention of
section 14(1)(a)
of Act 23 of 1957.
It is respectful submission that the
conviction is not correct because the complainant was just about to
be twelve years. She was
a girl still below the age of twelve
years.
Because the conviction is not
according to the law, I humbly request that the conviction be set
aside and the matter be referred
back to the magistrate for a
correct verdict.”
[3] It
is evident from the evidence presented in the Court
a
quo
that the incident occurred during October 2004. A birth certificate
in respect of the complainant was handed in as exhibit B, which
document reflects that the complainant was born on 5 December 1992.
She was therefore only 11 years old at the time of the incident.
The
trial magistrate, however, made the following findings in his
judgment:
“In
this matter the Court finds that complainant had some dealings with
the accused Mr Lefosa, that were secret. The Court also
finds that
she was not forced or she was, the sexual intercourse to complainant
was not without her consent, it was with her consent.
At this stage
the Court is satisfied that the State has proved the case against the
accused and in terms of Section 261 of Act 51/1977,
the accused is
found
GUILTY
to contravention of section 14(1)(a) of Act 23/1957, that is
STATUTORY
RAPE
.”
(See
judgment, p. 73 line 14 – 22.)
[4] Although
the said finding is not all that clear, it appears that the
magistrate,
inter
alia
,
came to the conclusion that the complainant consented to the
intercourse.
[5] In
terms of the common law, a girl under the age of 12 years is
conclusively presumed not to be able to consent to sexual
intercourse.
Even if she does consent, the sexual intercourse still
constitutes rape. (See
R
v Z
1960 (1) SA 739
(A) at 742 D – E.)
[6] The aforesaid finding
of the magistrate and his subsequent conviction in terms of section
14(1)(a) of Act 23 of 1957, are therefore
not in accordance with
justice and the law. The conviction should therefore be set aside as
requested.
[7] I
may add that in addition to the aforesaid misdirection, the findings
that the magistrate made in support of the conviction,
are not only
contradictory to one another but also contradictory to the evidence.
The complainant’s version is to the effect that
she did not consent
to the intercourse. The version of the accused is one of total
denial in the sense that he did not have intercourse
with the
complainant at all; in fact, according to him he did not see the
complainant on the particular day as testified by herself.
The
magistrate then made the following findings:
“
After considering the totality of
evidence and the version of the accused Mr Lefosa, the Court finds
that the evidence of the State
witnesses is probable. The Court
finds that there are no inherent improbabilities in the evidence
given by the State witnesses.
The Court finds that the evidence of
the State witnesses is reliable. The Court finds that the evidence
of the accused Mr Lefosa,
is not reasonable possible true.”
(See judgment, p. 73
lines 6 – 13.)
[8] Considering the said
findings, one would therefore have expected that he would have
concluded that the sexual intercourse was
not with the complainant’s
permission. However, despite having accepted the evidence of the
complainant, the magistrate then makes
the unfounded and
contradictory finding that the complainant consented to the
intercourse. Although I am of the view that the magistrate
correctly
accepted the State witnesses’ version, the magistrate’s finding
should have been that the complainant did not consent
to the sexual
intercourse and he should therefore have convicted the accused on a
charge of rape.
[9] The
next question that arises is how this matter should be dealt with
further in the event of the conviction being set aside.
In my view,
this matter is similar to an instance where the accused was convicted
on a competent verdict whilst the evidence proved
the guilt of the
accused on the main charge beyond reasonable doubt. When the main
charge has been proved, the Court is compelled
to convict the accused
of the main charge. (See
S
v MAKHUTLA
1969 (2) SA 490
(O) at 492 H and
S
v MMOLAWA
1979 (2) SA 644
(BH) at 646 F.)
[10] Although
it is therefore clear that this Court is entitled to substitute a
conviction for a more serious offence than the one
recorded in the
Court
a
quo
(see
S
v E
1979 (3) SA 973
(A)), I concur with the view that the accused should
be given the opportunity to argue the matter before the Court
a
quo
as to why he should not be convicted on the main charge of rape.
(See
S
v MOKOENA
1984 (1) SA 267
(O) at 269 G – 270 E.)
[11] In
the premises the following order is made:
The conviction is set
aside.
The matter is referred
back to the Regional Court where the accused should be granted the
opportunity to argue the matter before
the magistrate as to why he
should not be convicted on the main charge of rape.
The magistrate must
thereupon deliver judgment as seen appropriate by him.
____________
C.
VAN ZYL, J
I
concur.
___________
C.J. MUSI, J
/sp