S v Mokoena and Others (618/2005) [2005] ZAFSHC 62 (1 September 2005)

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[2005] ZAFSHC 62
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S v Mokoena and Others (618/2005) [2005] ZAFSHC 62 (1 September 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 618/2005
In
the matter between:
THE
STATE
and
BARNEY
AUGUSTUS MOKOENA AND 5 OTHERS
_____________________________________________________
CORAM:
CILLIé
J
et
BLOEM
AJ
_____________________________________________________
JUDGMENT
BY:
BLOEM
AJ
_____________________________________________________
DELIVERED
ON:
1
SEPTEMBER 2005
_____________________________________________________
[1] The
six accused persons were charged and convicted of indecent assault in
the magistrates’ court, Kroonstad. The State was
unable to prove
that the accused had previous convictions. The accused, through
their attorney, admitted their respective previous
convictions. The
magistrate stopped the proceedings and committed all the accused for
sentence by the regional court in terms of
section 116(1)(b) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977).
[2] The
regional court magistrate to whom the matter was referred, has
expressed doubt on whether or not the proceedings before the
district
court magistrate were substantially in accordance with justice. At
the outset I express my appreciation to the regional
court magistrate
who raised the issues which I deal with hereunder. Before I do so, I
briefly set out the facts relevant to the
determination of the issues
raised by the regional court magistrate.
[3] The
six accused and the two complainants are inmates of the Medium B
Prison at Kroonstad. The first complainant testified that
on 14
January 2004 he entered his cell where the second complainant was
waiting to finish tattooing a cross on the first complainant’s
back. As he was about to close the door behind him, the accused
entered. The accused took turns to have sexual intercourse per
anum
with the complainants who were not consenting parties. The other
accused kept watch at the celldoor while other two accused
indecently
assaulted the complainants. The first complainant testified that he
was indecently assaulted by each one of the accused
persons. The
second complainant’s evidence in that regard is not so clear in
respect of some of the accused. The complainants
reported the
activities of the accused to the prison authorities who alerted the
police. Statements were taken by the police from
the complainants
who were seen by a medical practitioner three days after the accused
had had sexual intercourse with them.
[4] I
will now deal with what I believe to be the main issues raised by the
regional court magistrate.
There
were many deficiencies in the evidence of the second complainant.
[5] In
his evidence-in-chief the second complainant testified that all the
accused took turns to have sexual intercourse with him.
When he was
cross-examined, he stated on more than one occasion that neither
accused one nor accused three had sexual intercourse
with him. At
some stages during cross-examination he went so far as to state that
he did not see accused one on that day. Following
upon leading
questions by the prosecutor the second complainant testified that
both accused one and three had sexual intercourse
with him. Regard
being had to all the evidence, I am in agreement with the regional
court magistrate that the second complainant’s
evidence, insofar as
it relates to the first and third accused, was of such a poor quality
that those two accused persons should
not have been convicted of
indecent assault on the second complainant. Their conviction on the
second count should accordingly be
set aside.
[6] I agree with the
regional court magistrate that, in the absence of medical or other
expert evidence, the trial magistrate could
not justify the
deficiencies in the second complainant’s evidence on the basis that
he allegedly sustained injuries in a motor
vehicle accident which
caused him not to remember certain things clearly.
The State did not lead
medical evidence which seems to have been available.
[7] In
the case of indecent assault, unlike rape where the penetration of
the female’s sexual organ by the male’s sexual organ
is a
requirement, it is not the act but the accuseds’ intention,
manifested by words or conduct, that is important. In order to
constitute the offence of indecent assault, it is not necessary that
the complainant’s private parts should have been touched,
let alone
penetrated. Any action whereby the accused aims with some part of
his body at the private parts of the complainant is
sufficient.
REX
v CURTIS
1926 CPD 385
at 389 – 390 and
S
v M
1979 (2) SA 406
(RA).
[8] The two complainants
testified that the accused had sexual intercourse with them per anum.
Whether or not the penises of the
accused penetrated the
complainants’ anuses is, in my view, immaterial. What is of
importance is that the evidence shows that
the accused intended to
commit indecent acts when they aimed with their penises at the
complainants’ anuses. It is so that if
the medical evidence was
lead, the State might have proved the extent of the trauma to which
the complainants were subjected. The
failure to lead that evidence
does not disprove the indecent assault.
The
conviction of accused one and three on count two.
[9] I
have already dealt with this aspect above.
The
acquittal of accused two on count two.
[10] I
agree with the regional court magistrate that it is inexplicable how
the trial magistrate could have acquitted accused two
on count two.
The second complainant’s evidence was unsatisfactory insofar as
accused one and three are concerned. However, he
gave clear and
satisfactory evidence regarding the indecent assault upon himself by
accused two. All the evidence shows that accused
two is guilty on
count two. He was fortunate to have escaped a conviction on that
count. I am satisfied that the State has also
proved his guilt
beyond reasonable doubt on count one.
The
accuseds’ version were not destroyed under cross-examination, there
alibi defence and onus of proof.
[11] There
is a duty on the State to prove its case against an accused beyond
reasonable doubt. The complainants testified that the
offences were
committed in their cell and that all the accused were there. During
the cross-examination of the complainants it was
not put to them by
the attorney who represented the accused that they were either at
school or at the library when the offences were
committed. There was
no onus on the accused to prove that their alibi was true. If one
looks at the accuseds’ evidence in isolation,
one is tempted to
believe that there is a possibility that their version is reasonable.
However, when one considers all the evidence
which was adduced, such
evidence overwhelmingly establishes the guilt of the accused beyond
reasonable doubt.
S
v BRUINDERS EN ‘N ANDER
1998 (2) SACR 432
(E).
[12] In
terms of section 116(1)(b) of the Act, where the district court
magistrate is of the opinion that the previous convictions
of the
accused are such that the offence in respect of which the accused has
been convicted merits punishment in excess of the jurisdiction
of the
district court, he shall commit the accused for sentence by the
regional court having jurisdiction. A district magistrate
should
accordingly have regard to the previous convictions of the accused to
determine whether or not the accused should be committed
for sentence
by the regional court. Clearly not all previous convictions will
lead to the committal of an accused for sentence by
the regional
court. Only serious and related previous convictions will lead to
such committal. In this case the accused admitted
that they were in
custody because of the following previous convictions:
Accused one - murder and
robbery
Accused
two - housebreaking with intent to steal and theft
Accused three - rape
Accused four - theft
Accused
five - rape
Accused
six - housebreaking with intent to steal and
theft
[13] I
am of the view that only accused one, three and five who have
previous convictions of a serious nature ought to be committed
to the
regional court for sentence. The other accused should be sentenced
by the district court magistrate who, by virtue of his
first-hand
appreciation of the evidence and observation of the accused, is best
qualified to assess an appropriate sentence.
S
v CELE AND OTHERS
1994 (1) SACR 616
(N).
[14] In all the
circumstances, I am of the view that all the accused were properly
convicted in respect of count one, that accused
one and three should
not have been convicted on count two and that accused two should have
been convicted on count two. To avoid
any confusion the acquittal of
accused two on count two is confirmed. I accordingly make the
following order:
14.1 The
conviction of all the accused in respect of count one is confirmed;
14.2 The
conviction of accused four, five and six in respect of count two is
confirmed;
14.3 The
conviction of accused one and three in respect of count two is set
aside;
14.4 Accused
one, three and five are committed to the regional court for sentence;
14.5 Accused
two, four and six are to be sentenced by the trial magistrate in the
district court.
______________
G.H.
BLOEM, AJ
I
agree.
____________
C.B.
CILLIé, J
/sp