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[2006] ZAFSHC 11
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Ratefane v S [2006] ZAFSHC 11 (1 June 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A274/2005
In the appeal between:-
MOTSEKI JOSHUA
RATEFANE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI
J
et
MATHEBULA AJ
_____________________________________________________
HEARD
ON:
15 MAY 2005
_____________________________________________________
JUDGMENT
BY:
MATHEBULA AJ
_____________________________________________________
DELIVERED
ON:
1 JUNE 2006
_____________________________________________________
[1] The appeal lies
against both conviction and sentence imposed by the regional
magistrate, Bloemfontein. The appellant was convicted
and sentenced
to 10 (ten) years imprisonment on 28 January 2004 for rape.
[2] The complainant,
J.A.M., testified that on 15 December 2001 she was on her way to
attend a graduation party hosted by Pastor Lamane
at a community
hall. She was accompanied by her younger sister, M.P.M. (âM.â).
On arrival at the community hall, they found
no-one and decided to go
and while away time at the house of one of the members of the
congregation.
[3] They met with the
appellant, who requested to have a word with her, which she spurned.
Then the appellant grabbed her and pulled
her away down the street.
Her sister who was walking behind them asked the appellant where was
he taking her to and she was ignored
by him. As they passed a public
phone M. attempted to make a call to the police but was warded off by
the appellant. He threw a
stone at her. She returned to the safety
of other congregants.
[4] The appellant dragged
her by the neck until they reached his shack. At this time she was
still crying as they were walking along.
The appellant unlocked the
door, pulled her in and locked her inside. He ordered her to take of
her panty and lie on the bed, which
she refused while still crying.
He took out a fire-arm and threatened to shoot her. He grabbed her
and pulled down her panty and
in the process her dress was torn. He
took out a condom, put it on and later removed it. He had sexual
intercourse with her.
[5] After the sexual
intercourse when both of them were dressed, Thuso knocked at the
door. The appellant asked him what he wanted.
He replied that he
wanted the complainant. The appellant told him that she was not
there to which she replied that she was there.
Thuso left and said
he was going to report the matter to the pastor. The appellant
opened the door and she left his shack.
[6] On the way to the
community hall she met Sekgola and Mafa. Almost at the time Pastor
Mojaje arrived and she told him that the
appellant had raped her.
She was still crying. He contacted the police and she was later
taken to Zastron Hospital for medical
examination.
[7] Under
cross-examination she testified that she knew the appellant before
that day. They were attending the same church before
she joined the
present one. They did not have a love affair. At the time that the
appellant was dragging and pulling her she was
crying hard and no-one
came to her rescue. She sustained a minor abrasion.
[8] The second State
witness was her younger sister, M.P.M.. Her testimony was that on 15
December 2001 she was accompanying the
complainant to the community
hall to attend the graduation party. They met with the appellant who
requested the complainant to come
to him. The complainant refused.
The appellant just grabbed and started pulling her and she started
crying.
[9] As they passed a
telephone booth she wanted to make a call to the police. The
appellant removed the handset from her and threw
stones at her. She
ran away and told him that she was going to report the matter to the
pastor.
[10] At the house of a
church member, Thabiso, she reported the matter to Sekgola and Thuso.
She told them that the appellant was
pulling the complainant by the
neck. She was not willing to go with him. She does not know if the
two had a love affair or not.
Thuso and Sekgola spurred into action
to look for the complainant.
[11] The third State
witness was Sabata Paulus Mojaje. He testified that the complainant
was a member of his church and the appellant
was known to him as a
community member.
[12] On 15 December 2001
he was attending a graduation party hosted by Pastor Lamane at the
community hall. While waiting for the
party to begin, M. and Thuso
came to report to him that the appellant was pulling the complainant
to his shack. He went to investigate.
Along the way he met the
complainant who was crying and she reported to him that the appellant
had raped her. The hair of the complainant
was unkept and her
clothes were wrinkled. He reported the matter to the police.
Cross-examination did not elicit any new facts.
[13] The fourth witness,
Mbosilo Sekgola Sejali, briefly testified that on 15 December 2001 he
was told by the complainant that the
appellant had raped her. She
was in tears. This witness did not testify on other aspects.
[14] The fifth State
witness, Mafa Michael Lepine, testified that he was requested by
Pastor Mojaje to accompany the complainant to
her home. On the way
the complainant informed him that the appellant had raped her.
During that process the appellant had threatened
her with a fire-arm
into submission.
[15] The sixth State
witness, Thuso Lepine, testified that M. reported to him that the
appellant was pulling the complainant away.
He went out to
investigate and when he could not see them in the street he proceeded
to the shack of the appellant. He knocked
at the door and the
appellant answered. He asked him whether the complainant was in
there and his answer was in the negative. Immediately
afterwards,
the complainant answered and said she was inside. She told him that
the appellant is pointing a fire-arm at her and
that he is raping
her. He told him that he is going to report to the pastor to which
the appellant replied that he does not give
a dam. He later saw the
complainant who was crying. Cross-examination did not reveal any new
facts.
[16] The appellant
testified that on 15 December 2001 he met the complainant who was
with her younger sister. They briefly spoke
about their love affair
and when are they going to meet as he was going to leave for
Bloemfontein where he was attending school.
The younger sister
interfered in their conversation and he reprimanded her. She left
and told them that she was going to report
the matter to the pastor.
[17] Together with the
complainant they went to his shack away from the sight of other
church members. On arrival there, he went
out to the shop to buy her
some refreshments. They consumed them and thereafter decided to have
sexual intercourse.
[18] A short while
thereafter he heard a knock at the door. On enquiry, he found out
that it was Thuso who was looking for the complainant.
He told him
that she was not there. He left and said that he is going to report
the matter to the pastor. He then asked the complainant
that they
have to hatch a plan seeing that their secret has been revealed.
Complainant told him not to worry as she will take care
of the
situation.
[19] She opened the door
and walked the complainant up to the church. He returned to his
shack and later went to the tavern. While
at the tavern the police
arrived in the company of the complainant, M., and their brother.
The brother accused him of having raped
the complainant. His reply
was that if that was the case then he must be arrested. He denied
having raped the complainant and being
in possession of a fire-arm.
[20] Under
cross-examination he testified that sexual intercourse lasted for
about 20 minutes. Their love affair has been in existence
for about
three months and this was the first time that they had sexual
intercourse. On the way to the shack they had passed other
people
who were at a stokvel. The complainant has laid this false charge
against him because of influence from the church members.
The church
strictly forbids sexual relations before marriage.
[21] At the time when
Thuso knocked at the door, the complainant only answered that she is
inside and did not mention anything about
rape. When she left his
shack, she was not crying and said that she was neat and presentable.
[22] The State,
represented by Adv. Giorgi, and appellant by Adv. Kenny Pretorius
submitted detailed heads of argument. On the day
of the hearing,
Adv. Pretorius conceded that the appeal has no merits on both
conviction and sentence. He submitted that the court
a quo
had erred in that the standard of proof is beyond reasonable doubt
and not on a balance of probabilities as it appears on page 147
of
the record. The State submitted that the court
a quo
did use
the correct test even though not in so many words as per p. 148 of
the record. This, in my view, is the correct submission
as Mr.
Pretorius also conceded that even taken that into consideration the
court
a quo
has correctly convicted the appellant. In my
view, the court
a quo
did not err or misdirect itself in that
regard.
[23] On the issue of
sentence it is trite law that the court of appeal will only interfere
with the sentence if it is of opinion that
such sentence is
unreasonable, unjust or is vitiated by irregularities or the court
a
quo
has misdirected itself. See
S v DE JAGER AND ANOTHER
1965 (2) SA 616
(AD) and
S v PILLAY
1977 (4) SA 531
(AD) at 535 E â F.
[24] In this matter the
appellant committed a heinous crime. He violated the bodily
integrity of the complainant without remorse.
It is clear that he
preyed on the defenceless complainant. The community is looking at
the courts to deal firmly and decisively
with individuals in the ilk
of the appellant. See
S v MOHASE
1998 (1) SACR 185
at
193. Women and children like men are equal before the law. They
must be protected. In my view, the court
a quo
was correct in
imposing the sentence of ten years. The appeal ought to fail.
[25] Accordingly my order
is the following:
The appeal is
dismissed.
The conviction and
sentence are confirmed.
___________________
M.A. MATHEBULA, AJ
I
concur.
______________
M.H. RAMPAI, J
On
behalf of appellant: Adv. K. Pretorius
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Giorgi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp