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2024
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[2024] ZALMPPHC 46
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Mahwiting v S (A14/2023) [2024] ZALMPPHC 46 (16 May 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: A14/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE
SIGNATURE
In
the matter between:
MAHLODI
SHADRACK MAHWITING
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
Kganyago J
[1]
The appellant has been arraigned in the regional court for
Senwabarwana on one count
of rape of an eleven years’ old minor
child, and one count of attempted murder. The appellant had pleaded
not guilty to both
counts, and was found guilty as charged. On the
count of rape, the appellant was sentenced to life imprisonment,
whilst on the
count of attempted murder the appellant was sentenced
to 10 years imprisonment. On the count of rape, the appellant is
having automatic
right to appeal since he has been sentenced to life
imprisonment by the regional court. The appellant is appealing
against both
conviction and sentence on the count of rape. The
appellant is not appealing the conviction and sentence on the count
of attempted
murder.
[2]
The facts of the case are briefly as follows. The State first witness
was Dakalo Douglas
Mabirisa who is the medical doctor who had
examined the complainant (first minor child) who was allegedly raped
by the appellant.
He testified that on 17
th
September 2016
he was on duty at Helen Franz Hospital when he examined the first
minor child at about 20h45. Thereafter he completed
the J88 form. On
general examination he found that the clothes which the first minor
child was wearing had no bloodstains and were
not torn. On clinical
findings he found that the first minor child was stable but looked
scared. There were no obvious injuries.
On the vaginal examination he
found the peri-labial abrasion on the left and right side; a fresh
tear at seven o’clock and
five o’clock; and the hymen and
white page material. He then made a sketch of his findings. Based on
the evidence he had
collected, his conclusion was that the alleged
sexual assault could not be ruled out.
[3]
The first minor child had not yet started her menstrual period.
According to the sister
of the first minor child, she was not yet
sexually active at the time of the alleged incident. The mons pubis,
clitoris, frenulum
of the clitoris, urethral orifice, para urethral
folds, labial majora and minora were all normal. On the posterior
fourchette there
was no scarring, no tear and no increased
friability. There were abrasions around the perineum area and fresh
tears around the
hymen area. The vagina was not bleeding, no tear and
only one finger could be admitted. He did not do anal examination as
there
was no anal penetration. After examining the first minor child,
he had handed the specimens to constable Molepo.
[4]
The witness was cross-examined and he conceded that before the first
minor child was brought
to hospital for examination, her relatives
have already examined her. Since the first minor child was examined
by her relatives
before she was brought to hospital, at first he was
skeptical to examine her as he did not know the skill they have used
to examine
her. That resulted in him getting a second opinion from
his senior colleagues, who advised him to examine the first minor
child
and record whatever he finds, and that the most important thing
to record was that the first minor child was pre-examined. The
witness stated that unskilled people might cause serious injuries
when they did the examination on their own. Further that injuries
like abrasions can be caused by mere touching depending on the
pressure that was applied. The witness stated that the white page
material he had recorded on the J88, he could not tell exactly what
they were because the white patches secretions in anyone could
cause
that, more especially in females. Maybe those white patches are from
something which was used at home whilst examining her.
[5]
The first minor child was the second witness to testify and she
testified through
the intermediary. She testified that on the date of
the incident she was in the company of her friends L[...], M[...],
S[...],
S[...], K[...] and N[...] when they went to the mountain to
pick up some wild fruits. As they were on the mountain they found a
cave and decided to sit at the cave. Whilst sitting and throwing
stones into the cave, the appellant arrived. On his arrival the
appellant greeted them. The appellant asked them to borrow him a
cellphone as he wanted to send someone a call back message. S[...]
borrowed the appellant his cell phone and he did a call back. After
the appellant finished talking on the cell phone, he gave the
cell
phone back to S[...]. The appellant asked all of them that they must
go home with him.
[6]
They all left with the appellant. The route that they have taken had
a rock that they were
supposed to jump to enable them to proceed with
their journey. M[...] was unable to jump the rock, and the first
minor child asked
L[...] to assist her, but L[...] refused. The first
minor child who had already jumped the rock went back to assist
M[...]. After
assisting M[...], the appellant held the first minor
child by the hand and told M[...] to go and that she must not look
back. From
there the appellant held the first minor child by the loop
of her trouser, picked up a stone and told first minor child’s
friends to ran away and not to look back. The first minor child’s
friends ran away.
[7]
After the first minor child’s friends have ran away, the
appellant told the first
minor child to pee on herself. After the
first minor child had pee on herself, the appellant told the first
minor child to take
off her clothes, but she refused. The appellant
slapped the first minor child with an open hand three times on her
face whilst
holding the stone on the other hand. The first minor
child realized that should she continue refusing to take off her
clothes,
the appellant was going to crush her head with that stone.
The first minor child complied, but did not take off her panty and
high
waist. The appellant took off the first minor child’s
panty and high waist. After that the appellant stretched the first
minor child’s hands and put his knees on top of them. The
appellant pulled down his trouser until underneath his buttocks
and
took out his urinating thing and put it into her urinating thing.
Thereafter the appellant started doing the up and down movements.
The
first minor child started feeling pains and she screamed. As the
first minor child was screaming, the appellant closed her
mouth and
continued doing the up and down movements.
[8]
After the appellant had finished doing the up and down movements, he
told the first
minor child to bring one girl known as I[...]. The
first minor child did not respond and the appellant told the first
minor child
to get dressed. The first minor child dressed up and ran
home. As she was running home she met one Mbali but did not tell him
what
had happened to her. On arrival at home she found her uncle,
Mamola, M[...]lo and community members. Later the first minor child’s
sister arrived in the company of the police. M[...]lo told the first
minor child’s sister to take the minor child into the
room to
check if they did something to her. On arrival in the room her sister
and M[...]lo told the first minor child to take off
her clothes and
open her legs. The first minor child did as requested and they both
came closer to her, checked her private parts
and said it is true.
However, both of them did not touch the first minor child’s
private parts. From there they told the
first minor child to dress
up.
[9]
The police took the cell phone number that the appellant had phoned
from S[...]’s
cell phone. The first minor child was taken to
the police station where she made a police statement. From police
station the first
minor child was taken to hospital where she was
examined by a doctor. That day it was for the first time she saw the
appellant,
but had seen that his face looked like that of his sister
and mother from the Mahwiting family.
[10]
The first minor child was cross-examined and she conceded that she
did not know the appellant’s name,
but knew his surname because
of his resemblance to the Mahwiting family members. From the
appellant’s family she knew Mahlodi,
the appellant’s
mother and Charmaine, and the appellant’s younger brother. The
first minor child stated that the appellant’s
younger brother
is a little bit taller than the appellant. The first minor child
stated that the appellant had covered her mouth
when he laid her on
the ground. The first minor child also stated that she had undressed
herself up until her knees, and the appellant
then took off her
clothes in full, and put her to the ground. The first minor child
further stated that the appellant had unbuttoned
his trouser before
he opened her legs with his legs. The first minor child stated that
when her relatives were examining her in
the room, they were standing
about one meter from her and none of them have touched her.
[11]
The State called S[...] K[...] S[...] as its third witness. She
testified that the first minor
child is her younger sister. On the
17
th
September 2016 the first minor child told her that
she and her friends were going to pick up wild fruits at the
mountain. She went
to the saloon in Bochum to go and do her hair.
Whilst in Bochum she got a call from her aunt L[...] telling her that
the first
minor child was raped at the mountain. She laughed at her
aunt and told her that she was joking. After some few minutes she got
a call from her uncle telling her to come back home as the first
minor child has been raped at the mountain. She also did not take
her
uncle seriously. It was only when she was phoned by her aunt W[...]
telling her the same thing that she saw that it was serious,
and she
left the saloon and proceeded to go home. On the way home, she phoned
the police. The police requested her to provide them
with the first
minor child’s birth certificate.
[12]
The first minor child was at M[...]’s homestead, and on her
arrival at that homestead she found the
police who have also arrived
and she gave them the first minor child’s birth certificate.
The police told her that the first
minor child looked traumatized and
that she must take her and that the first minor child will explain to
her what had happened.
When the witness looked at the first minor
child, she was just crying. The witness took the first minor child to
another room at
M[...]’s homestead. In that room it was just
the two of them. In that room the first minor child told her that a
certain
person from Mahwiting’s family whom she did not know
his name had raped her at the mountain after he had chased her
friends
away.
[13]
The first minor child told the witness that when she arrived at that
homestead, M[...] asked her to explain
what she meant when she said a
person had raped her, and she told M[...] that the person had slept
with her without her consent.
The witness then asked the first minor
child to show the same thing that she said the person had raped her
which she had shown
M[...], and she also wanted to see that. The
first minor child took off her trouser, and the witness told her to
open her legs.
The witness looked at the first minor child’s
private parts and could see that somebody had slept with her as her
private
parts were swollen. The first minor child’s panty had
some blackish stuff and a little bit of some blood stains. The
witness
told the first minor child to dress up, and after that the
witness went to the police to tell them what he had observed. She did
not touch the first minor child’s panty and private parts. The
first minor child had merely stretched her legs and she looked
at her
without touching the first minor child. The witness explained to the
police that according to her observation, the first
minor child has
been raped. They were taken to the police station where the police
took the statement of the first minor child.
Later they were taken to
the hospital where the first minor child was examined.
[14]
The witness was cross-examined and she stated that at the hospital
she had told the doctor that she had
already checked the first minor
child, but did not take off her clothes. The first minor child took
off her clothes on her own
and she only observed her from a distance.
Further that she told the doctor that at home the first minor child
had been examined
by two people. She conceded that she was not
present when Constance Lebogo (M[...]) examined the first minor
child, but that M[...]
had told her that she had asked the first
minor child to undress so that she can check what actually happened.
The witness stated
that she was standing one meter from the first
minor child when she examined her, and that the clothing of the first
minor child
also looked dirty as they had sand, water and smelling
urine.
[15]
The State called S[...] (second minor child) who testified through an
intermediary as its fourth witness.
He testified that on 17
th
September 2016 he and his friends including the first minor child
went to the mountain, and at the mountain they rested at a certain
place. As they were resting, the appellant came and greeted them and
asked them to borrow him a cell phone. The second minor child
borrowed the appellant his cell phone. The appellant went aside and
talked on the cell phone. When he was finished talking on the
cell
phone he came back and gave the second minor child his cell phone
back.
[16]
Later they left the appellant and took another direction. As they
were walking the appellant reappeared
and grabbed the first minor
child and held her by the loop of her trouser with one hand, and on
other hand the appellant was holding
a big stick. The appellant told
the second minor child and his friends to ran away. The appellant was
also in possession of a stone
and they decided to ran away as he was
threatening to pelt them with that stone. The stone which the
appellant was in possession
of was the size of a small ball.
[17]
When he arrived home he told the community members that someone had
apprehended the first minor child at
the mountain, but did not tell
them the name of that person. The community members went to the
mountain to go and look for the
first minor child but could not find
her. Later the first minor child arrived, and some community members
asked her to take them
to mountain and show them where she was
apprehended. They took the community members to where the first minor
child was apprehended.
When they came back from the mountain they
found the policemen waiting for them. The police took their
statements. He had known
the appellant for long time before the
incident. He used to see the appellant playing snooker game. The
appellant had got a dark
mark or scar on his face underneath the
right eye.
[18]
The witness was cross-examined and he conceded that when they parted
ways with the appellant where he found
them resting, they took
different directions. The witness could not tell whether the
appellant was following them, but that he
suddenly emerged coming
from another direction. The witness stated that the appellant emerged
as they were assisting another minor
child to cross the donga. The
witness stated that from the mountain the first person that he
reported the incident to was one Sinkie,
who told them to go and
report the matter at the first minor child’s homestead. The
witness further stated that the report
that he gave to the first
minor child’s family was that she was held by a certain boy
from Mahwiting’s family whom
he had forgotten his name. The
witness conceded that he was able to mention the name of the
appellant as it was the name that was
suggested him when he was asked
by community members whether he was referring to Nchate. The witness
stated that the community
members suggested the name of the appellant
after he had told them that the boy who held the first minor child
usually plays snooker
and he stays at Mahwiting’s family.
[19]
The State called Mokgadi Constance Lebogo as its fifth witness. She
testified that on 17
th
September 2016 she did see the
first and second minor children. On that day she was at home busy
doing laundry when a passerby
told her that a certain man had
apprehended two children up in the mountain. She stopped doing her
laundry and went to G[...]’s
homestead. On arrival she found
three children seated being surrounded by a lot of people. The first
minor child was not there.
The second minor child and other children
told her that the first minor child had been apprehended by the
appellant who comes from
Mahwiting’s family. The they were
still discussing how they were going to rescue the first minor child,
when the first minor
child arrived and started crying.
[20]
The witness asked the first minor child if she knew the person she
was with her at the mountain, and she
said she knew him and he is
residing downwards. The witness took the first minor child into
M[...]’s homestead and continued
questioning her if she knew
that person, and the first minor child said the person was from
Mahwiting’s family and he is
also residing in Talane village.
The first minor child told her that the person she was with at the
mountain had assaulted her
with open hands and ended up raping her.
She asked the first minor child what she meant when she said he had
raped her. Then the
first minor child took off her trouser and panty,
and on her private parts the witness could observe some dirt which
were unusual.
She did not touch the first minor child’s private
parts or check her panty. The first minor child looked scared, and
she
did not continue asking her any further questions. When they went
outside, they found the police and S[...] the first minor child’s
sister having arrived. The police took the first minor child and her
sister to hospital.
[21]
The witness was cross-examined and she stated that the first minor
child is a niece to her sister-in-law.
The witness stated that the
first minor child started crying when she saw a lot of people having
gathered. The witness stated that
when the first minor child arrived
to where the community have gathered, she was walking properly. The
witness stated that she
did not tell the first minor child to
undress, but that she did so out of her own free will when she was
questioning her. The witness
stated that when she was observing the
colour of the substance on the first minor child’s private
parts, she concluded that
they were sperms. The witness stated that
she was seated about 2 meters from the first minor child when she out
of her own free
will undressed herself, and she did not order her to
open her legs. The witness further stated that the first minor child
had told
her that the person who had raped her had scar on his jaw.
The witness confirmed that her other name is Mamalate. The witness
also
stated that after S[...] arrived, she also took the first minor
child into the house and after that they left with the police.
[22]
The State called Jeanine Cocks as its sixth witness. She testified
that she is a warrant officer in SAPS
attached to the biology section
of the forensic science laboratory in Pretoria. She is a forensic
analyst and a reporting officer
and she is in the employment of the
State. On 20
th
December 2016 during her official duties
she received the case file pertaining to Senwabarwana cas 131/09/2016
from the administration
component of the Forensic Science Laboratory
(FSL) containing the exhibit. She subjected the samples from the
exhibit to the DNA
analysis system by a process requiring skill in
biology. Her findings were that no DNA were obtained from the
exhibits. The reasons
for that it might be amongst others that the
victim had washed herself after the sexual encounter, the perpetrator
might have used
a condom or was having a low sperm count.
[23]
The State called Mathumi James Kwenabagolo as its seventh witness. He
testified that he is the police officer
stationed at Senwabarwana
Police Station. On 18
th
September 2016 he was on duty when
he got information that the community members have apprehended a
person at Buffelshoek, Gamalebogo.
He went to that place and found
community members surrounding a person who was tied with a rope. That
person looked as if he had
been assaulted as his clothes were having
some blood stains. When checked that person further he saw that the
said person looked
like he had been injured underneath his left eye.
[24]
As the witness was still observing the said person, one of the
community members came to the witness and
introduced herself as the
victim’s sister. The victim’s sister pointed that she
knows the person who was tied with
a rope and that his name was
Ntwake Mahwiting the appellant in this matter. The victim’s
sister told the witness that a case
of rape has already been opened
against the appellant. The witness introduced himself to the
appellant and told him that he was
under arrest for rape. From there
the witness explained to the appellant his constitutional rights. The
witness was not cross-examined.
[25]
On count 2 the appellant had made some formal admissions which were
recorded in terms of section 220 of
the CPA. In his admissions, the
appellant had admitted that he had poured petrol on the body of the
complainant and set her alight.
He admitted that the complainant had
sustained some injuries on her which was as result of his actions of
setting her alight. He
admitted that prior to his actions, the
complainant did not have any injuries. His actions were as result of
jealously as he had
an intimate relationship with the complainant as
he had information that the complainant was unfaithful to him, and he
just wanted
to punish her. He had unlawfully and intentionally
attempted to kill the complainant. Based on these admissions, the
prosecution
decided not lead any evidence on this count and proceeded
to close its case.
[26]
The appellant took the witness stand and testified under oath. He
testified that on 17
th
September 2016 he had met the
complainant and her friends at the mountain. After greeting them he
asked them to borrow him their
cell phone as the battery of his cell
phone was flat. They borrowed him the cell phone and he phoned his
aunt. When he was done
talking to his aunt, he handed the cell phone
back to them. He saw that the minor children were pushing the stones
into the cave
and he warned them that the stone might hook the
clothing of one them and he/she will fell into the cave with that
stone. The minor
children stopped pushing the stones and they left
going different directions. He never met the minor children again and
dispute
raping the first minor child. The appellant stated that he
knows the first minor child by sight and does not know her names. The
appellant further stated that he had two other brothers and the three
of them looks alike even though they are not of the same
height. The
appellant conceded that he is having a scar on his cheek.
[27]
The appellant was cross-examined and he stated that on 17
th
September 2016 he went to the mountain as he was nervous about what
he did to the complainant in count 2. Whilst on the mountain
he was
busy phoning his relatives seeking advice of how to deal with the
matter as he was afraid to go home. The appellant stated
that on 17
th
September 2016 he had spent less 10 minutes with the minor children
on the mountain. The appellant conceded that the first minor
child
was correct when she testified that she looks like the people from
Mahwiting’s family as he is from that family. The
appellant
stated that he was apprehended by community members. That concluded
the evidence of the appellant and he closed his case.
[28]
The appellant’s appeal is directed against both conviction and
sentence on the count of rape only.
However, in the heads of argument
and during the appeal hearing the appellant’s counsel has also
addressed the appeal court
on sentence on count 2. The notice to
appeal was at no stage amended to include the appeal on sentence on
count 2. The appellant
must stand and fall by his papers, and this
court will therefore not entertain count 2 which was never appealed
by the appellant.
What this court must determine is whether in the
light of the evidence adduced at trial, the guilt of the appellant
was established
beyond reasonable doubt on count 1. If it is found
that the appellant was properly convicted, this court must determine
whether
the sentence meted to the appellant was appropriate.
[29]
The test in a criminal trial is whether the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that an accused person is entitled to be
acquitted if there is a reasonable possibility that an innocent
explanation which he has proffered might be true. These are not two
independent tests but rather the statement of test, viewed
from two
perspectives. In order to convict, there must be no reasonable doubt
that the evidence implicating the accused is true,
which can only be
so if there is at the same time no reasonable possibility that the
evidence exculpating him is not true. The
two conclusions go hand in
hand, each one being the corollary of the other. Thus, in order for
there to be a reasonable possibility
that an innocent explanation
which had been proffered by the accused might be true, there must at
the same time be a reasonable
possibility that the evidence which
implicates him might be false or mistaken. (See
S
v Sithole
[1]
).
[30] A
court in a criminal case does not have to be convinced that every
detail in an accused version is true.
If the accused version is
reasonably possibly true in substance, the court must decide the
matter on the acceptance of that version.
An accused person is not
compelled to testify, but if he elects to testify, what the court
must determine is whether the version
presented by the accused is
reasonably possibly true.
[31]
The correct approach to the evaluation of evidence
in a criminal case was formulated in
S
v Chabalala
[2]
where Heher AJA said:
“
The
trial court’s approach to the case was, however, holistic and
in this was undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weigh
heavingly in favour of the State as to exclude any reasonable
doubt
about the accused accused’s guilt. The result may prove that
one scrap of evidence or one defect in the case for either
party
(such as the failure to call a material witness concerning an
identity parade) was decisive but that can only be an ex port
facto
determination and a trial court (and counsel) should avoid the
temptation to latch on to one (apparently) obvious aspect
without
assessing it in the context of the full picture presented in
evidence. Once that approach is applied to the evidence in
the
present matter the solution becomes clear”.
[32]
The appellant has conceded that on 17
th
September 2016 he
had met the first minor child and her friends on the mountain. They
had talked for a few minutes and the minor
children even borrowed the
appellant their phone to make a quick call. Thereafter the appellant
parted ways with the minor children
and they took different
directions, and they never met again. According to the version of the
first minor they never parted ways
with appellant, whilst child
according to S[...], they have parted ways with appellant who later
emerged at the donga where they
were crossing. The first minor child
refers to this place as stone which they have to cross in order for
them to proceed with their
journey. There are some contradictions as
to how they have parted ways at the mountain, and in my view, these
are minor contradictions
which are not that material. However, the
first minor child and S[...] have corroborated each other as is where
the appellant had
grabbed the first minor child. They have testified
that the appellant had grabbed the first minor child at this stone or
donga.
After grabbing the first minor child the appellant chased away
her friends and later raped the first minor child. The appellant
on
the hand dispute meeting the first minor child and her friends for
the second time.
[33]
On the day of the incident, the first minor child and her friends did
not know the name of the appellant
but only knew him as coming from
the Mahwiting’s family. The appellant himself had confirmed
that he was from the Mahwiting’s
family. The report which the
second minor child had given to the members of the community on
arrival from the mountain was that
the first minor child was
kidnapped by a certain boy from the Mahwiting family. The appellant
gives the impression that there might
have been mistaken identity as
he had two other brothers whom they are identical even though they
are not of the same height. However,
these two brothers were not the
ones who were with the first minor child and her friends on the
mountain. The first minor child
was able to differentiate the
brothers as he had testified that the appellant’s younger
brother is a little bit taller than
the appellant. The appellant had
corroborated the first minor child by testifying that he and his
brothers are not of the same
height. Constance Lebogo the fifth State
witness had testified that the first minor child had told her that
the person who had
raped her had a scar on his jaw, and the appellant
had conceded that he is having a scar on his cheek. The second minor
child had
also testified that the appellant had a scar or dark mark.
The appellant did not testify that any of his brothers had a similar
scar as his.
[34]
The court is mindful of the evidence of the first State witness who
is the doctor who had examined the first
minor child. He had
testified that he was informed that the first minor child was
examined by members of the community, who according
to him might have
tampered with the evidence and might even have caused some of the
injuries to the first minor child’s private
parts. The first
minor child had denied that when the third and fifth State witness
were examining her have touch her on her private
parts, but that she
only took off her clothes and opened her legs, and they observed her
vagina from a distance of about a meter.
This version was confirmed
by both the third and fifth State witnesses. After observing her from
a distance they came to their
own conclusions. That in view, rules
out any suggestion that the third and fifth State witnesses might
have tampered with the evidence
or might have in any way caused any
injuries on the first minor child’s private parts.
[35]
The version of the State which was not challenged was that on the
date of the incident the first minor child
was not yet sexually
active. The first State witness on examining the first minor child
found abrasion around the perineum area
and fresh tears around the
hymen area. He therefore concluded that sexual assault could not be
ruled out. There is no any other
evidence to rebut these findings by
the first State witness.
[36]
What the first, third and fifth State witnesses have observed on the
first minor child might seem to contradict
each other. The third
State witness has testified that she had observed blackish white
stuff and a little bit of blood on the panty
of the first minor
child. The fifth State witness has testified that she had observed
some whitish stuff on the complainant’s
private parts which she
concluded that were the sperms. The first State witness had testified
that the clothes which the first
minor child was wearing had no
bloodstains. Both the first and fifth State witnesses have testified
that the first minor child
looked scared, whilst the third State
witness has testified that she was told by the police that the first
minor child looked traumatized.
The first minor child can only look
scared or traumatized if something terrible had happened to her. The
first State witness conclusion
did not rule out the possibility of
sexual assault which corroborate the version of the first minor child
that she had been raped.
There is overwhelming evidence that the
appellant was the last person to be seen with the first minor child
after he had forcefully
taken her away from her friends which he
thereafter chased them away.
[37]
The evidence of the first minor child in relation to the actual rape
is that of a single witness and also
of a minor child which should
treated with caution as minor children have a tendency of imaging
things. However, in this case the
evidence of the first minor child
was clear and satisfactory, and this court find her evidence to be
credible and reliable. Even
though the evidence of the State might
not have been that perfect, it was clear and reliable. Despite these
deficiencies, this
court finds that the truth has been told.
Therefore, there is nothing to fault the court
a quo
in
convicting the appellant.
[38]
Turning to sentence, it is trite that sentencing
is the prerogative of the trial court, and should not lightly
be
interfered with. At appeal in which interference with the sentence
will be justified is when it is found that the trial court
has
misdirected itself in some respect or if the sentence imposed was so
disturbingly disproportionate that no reasonable court
would have
imposed it. The test is not whether the trial court was wrong, but
whether it exercised its discretion properly. (See
S
v Romer
[3]
).
[39]
The presentence report and victim impact report were prepared and
handed in as evidence. From the presentence
report the probation
officer had stated both the mitigating and aggravation factors.
Regarding the mitigating factors the probation
officer had recorded
that the appellant was 27 years and a first offender; he acknowledges
that he had burned victim no 2, and
that he is remorseful for his
unacceptable behaviours; he had a history of mental illness and had
received medical treatment for
the illness; he was the one who was
responsible for taking care of his family livestock; and that the
appellant is in a bad physical
state that he is receiving regular
medical treatment; the appellant dropped out of school in grade 11
due to mental illness; and
the appellant is unemployed.
[40]
With regard to the aggravating factors the probation officer had
recorded that the appellant was convicted
of rape and attempted
murder; rape is a serious offence which is punishable by the law; the
rape victim was an 11 years old girl
whose virginity was stolen by
the horrendous and despicable act; the appellant did not acknowledge
committal of the act/crime of
rape; victim no 2 was seriously wounded
by the fire, and sustained lifelong scars of such a nature that
they will be a sad
reminder of the incident; the appellant
premeditated the offence involving victim no 2, which is attempted
murder; both victims
were emotionally, physically and psychologically
affected by the incidents such that they are still traumatized; and
the family
of victim no 2 also suffered financial losses due to
travelling expenses incurred whilst she was receiving medical
treatment.
[41]
The probation officer had recorded that the appellant had a history
of mental illness which led him to drop
out of school in grade 11.
That led to the court
a quo
referring the appellant for mental
observation to determine whether he was fit to stand trial. The
findings of the two psychiatrists
was that the appellant was not
mentally ill, he was fit to stand trial, and did have the capacity to
appreciate the wrongfulness
of the alleged offence, and his ability
to act in accordance with that knowledge was not impaired by the
mental illness.
[42]
The appellant had been convicted of rape of a child below the age of
16 years which is failing
under section 51(1) Part I of Schedule 2 of
the Criminal Law Amendment Act. Ordinarily the trial court was
compelled to impose
life imprisonment unless it finds that
substantial and compelling circumstances exists which justify the
deviation from the prescribed
minimum sentences.
[43]
In
DPP,
Gauteng v Tsotetsi
[4]
Coppin AJA said:
“
As
held in Malgas, confirmed in S v Dodo and explained in S v Vilakazi,
even though ‘substantial and compelling’ factors
need not
be exceptional, they must be truly and convincing reasons, or
‘weighty justification’, for deviating from
the
prescribed sentence. The minimum sentence is not to be deviated from
lightly and should ordinarily be imposed”.
[44]
The appellant history of mental illness had no bearing on the
offences which he had committed as the psychiatrists
have found that
he was not mentally ill and had the capacity to appreciate the
wrongfulness of the offences he had committed. What
counts in the
appellant’s favour is that he is a first offender, was 27 years
of age which made him to still be regarded
as a youth. However, there
is no evidence that youthfulness played role in him committing the
offence or that the appellant was
of immature age. There is no
evidence that the medical treatment he is currently receiving in
prison is inadequate.
[45]
The appellant had raped a minor child who was
defenseless and vulnerable. Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal invasion
of the privacy, the dignity and the person of the victim.
The courts
are under a duty to send a clear message to the accused, to other
potential rapists and to the community at large that
they are there
and determined to protect the equality and freedom of all women and
that they will not show any mercy to those who
seek to invade those
rights. (See
S
v
Chapman
[5]
).
The appellant did not show any slightest remorse on the rape charge.
After raping the first minor child on the mountain, he had
left the
minor child to find a way on her own back to the village despite her
age, and that shows that the appellant lacks humanity
and care.
[46]
What the appellant had presented as substantial and compelling
reasons whether cumulatively taken or not,
are in my view, not truly
and convincing reasons, or weighty justification for deviating from
the prescribed minimum sentence.
The aggravating factors far outweigh
the mitigating factors, and the court
a quo
will not be
faulted for having found that there were no substantial and
compelling reasons for justification to deviate from the
prescribed
minimum sentences. It follows that the appeal on sentence must also
fail.
[47]
In the result, the following order is made
47.1
The appeal on both conviction
and sentence is dismissed
Kganyago
J
JUDGE OF THE HIGH COURT
OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
I AGREE
MAPHELELA AJ
ACTING JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
FOR
THE APPELLANT
:
MP Legodi
INSTRUCTED
BY
:
Legal Aid of SA Polokwane Office
FOR
THE RESPONDENT
:
Adv M Mohale
INSTRUCTED
BY
:
Office of DPP Polokwane
DATE
OF HEARING
:
22
nd
March 2024
JUDGMENT
ELECTRONICALLY CIRCULATED ON:
16
th
May 2024
[1]
1999
(1) SACR 585
(W) at 590f-j
[2]
2003
(1) SACR 134
(SCA) at para 15
[3]
2011
(2) SACR 153
(SCA) at paras 22 and 23
[4]
2017
(2) SACR 233
(SCA) at para 27
[5]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA)