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[2024] ZALMPPHC 135
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Ramodike v S (A28/2023) [2024] ZALMPPHC 135 (8 October 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO:
A28/2023
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES:
(3)
REVISED:
SIGNATURE:
Naude-Odendaal J
DATE:
08/10/2024
In the matter between:
JOHANNES
RAMODIKE
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
[1]
The Appellant was charged with two counts
of Rape read with the provisions of
Section 51(1)
of the
Criminal Law
Amendment Act, 105 of 1997
in the Regional Court Seshego for the
Regional Division of Limpopo. The Appellant was found guilty as
charged and sentenced to
two terms of life imprisonment.
[2]
The Appellant was legally represented
throughout the proceedings. The Appellant pleaded not guilty to both
counts and gave a plea
explanation. No formal admissions in terms of
Section 220
of the
Criminal Procedure Act, 51 of 1977
, were made. The
Appellant appeals against both the conviction and sentence in terms
of his automatic right to appeal.
[3]
The Appellant applied for condonation for
the late filing of the appeal, which condonation application was not
opposed and consented
to by the Respondent. In the result, the
condonation application was granted.
[4]
The grounds of appeal are as per the Notice
of Appeal and will not be repeated herein.
THE LAW AD APPEAL
AGAINST CONVICTION:
[5]
It is an established principle that where
an appeal is lodged against a trial court's findings of fact the
court of appeal must
take into account that, that court was in a more
favourable position than itself to form a judgment. Even when
inferences from
proven facts are in issue the court a
quo
may also be in a more favourable
position than the court of appeal, because it is better able to judge
what is probable or improbable
in the light of its observations of
witnesses who have appeared before it. Therefore if there are no
misdirections on the facts
a court of appeal assumes that the court
a
quo's
findings are correct and will
accept these findings, unless it is convinced that these are wrong.
See
R v Dhlumayo and Another
1948 (2) SA
677
(AD) at 705-6.
[6]
Therefore in order to interfere with the
court
a
quo's
judgment
it has to be established that there were misdirections of fact,
either where reasons on their face are unsatisfactory or
where the
record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15]
where
the SCA stated that it is only in exceptional cases that it would be
entitled to interfere with the trial court's evaluation
of oral
evidence.
[7]
It is acceptable in evaluating the evidence
in totality to consider the inherent probabilities and the following
dictum
by
Heher AJA,
as
he then was, in
S v Chabalala
2003 (1)
SACR 134
(SCA) at para [15]
is
apposite:
"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 weighs so heavily in favour of the
State as to exclude any
reasonable doubt about the accused's guilt."
[8]
An accused's version cannot be rejected
merely because it is improbable. It can only be rejected on the basis
of the inherent probabilities
if it can be said to be so improbable
that it cannot reasonably possibly be true. See
S
v Shackell
2001 (2) SACR 185
(SCA) at para [30]
which
I quote:
"It is a trite
principle that in criminal proceedings the prosecution must prove its
case beyond reasonable doubt and that
a mere preponderance of
probabilities is not enough. Equally trite is the observation that,
in view of this standard of proof in
a criminal case, a court does
not have to be convinced that every detail of an accused's version is
true. If the accused's version
is reasonably possibly true in
substance the court must decide the matter on the acceptance of that
version. Of course it is permissible
to test the accused's version
against the inherent probabilities. But it cannot be rejected merely
because it is improbable; it
can only be rejected on the basis of
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly
be true."
See also
Olawale v The
State [201OJ
1 All SA 451
(SCA) at para [13].
THE EVIDENCE:
AD THE STATE'S
CASE:
[9]
The State called six witnesses in its
endeavour to establish the guilt of the Appellant beyond reasonable
doubt. The first witness
to testify was Morongwa Herminah Shoroma.
She testified that she was a teacher at M[...] School. She just
entered the Grade 5 class
when the Complainant stood up and
approached her and informed her that his grandmother said he must
inform her that Uncle Chencha
has raped him. She testified that
because they were in the classroom with other children present, she
told the Complainant to remain
quiet so that she could finish what
she was busy with, with the other children and after she finished she
took the Complainant
with her to the staffroom. Upon arrival at the
staffroom/office she asked the Complainant to tell her what he said
in the classroom.
The Complainant repeated what he told her and said
that his grandmother told him to tell her that Uncle Chencha raped
him.
[10]
Mrs. Shoroma testified that she then took her phone and called the
Complainant's grandmother
and asked her why she instructed the child
to come and report to her this kind of issue. The child's grandmother
responded by saying
that she is just finishing bathing and then she
will be on her way to school. Upon the grandmother's arrival at
school, in the
company of the Complainant's mother, she asked in the
presence of Mrs. Shoroma and the School Social Worker to leave with
the child.
Mrs. Sharma testified that she asked the grandmother when
he said did the incidents happen, whereupon she received a response
that
the Complainant's mother was informed the previous night and the
incidents happened in January and February earlier that year.
[11]
Mrs. Shoroma further testified that the
Complainant was a troublesome child at school. This started at the
beginning of the year.
He was rude to his teacher, Mr. Nakedi. The
Complainant's grandmother and mother were called to come to the
school regarding the
Complainant's behaviour. The Complainant would
dispute that he was troublesome at school.
[12]
The second state witness was M[...] H[...]
S[...]. She testified that she is the mother of the Complainant in
this matter and that
the Complainant was born on 28 November 2006.
She stated that she knew the Appellant since 1998. He was shooting
photos and doing
welding jobs.
[13]
Mrs. S[...] testified that during March
2018, whilst she was watching a soap called Skeem Saam on television,
the Complainant approached
her and told her that Uncle Chencha raped
him. The Complainant told her that it happened on the 25
th
of January inside the house. She testified that Uncle Chencha is in
fact Johannes Ramodike.
[14]
Mrs. S[...] testified that on that day it
was raining and the Appellant was at her place of residence to erect
or build a gate.
The Appellant was doing welding jobs. The Appellant
entered the house with the Complainant to fix a bicycle. The
Appellant then
instructed the Complainant to kick his legs because he
was going to teach him karate. After that he instructed him to lie
down
on the bed, with his face downwards. After lying down, the
Appellant undressed the Complainant's trousers and then raped him.
The
Complainant told her that after he was raped when he touched
himself at the back, he found white water in his hand.
[15]
After the first incident on the 25
th
of January, the Appellant came to their homestead again on the 27
th
of February. He wanted the Complainant to accompany him to Extension
71. After the Appellant shot some photo's there at Extension
71, on
their way from Extension 71, when they were busy travelling, the
bicycle broke and they stopped. They wanted to fix the
bicycle. She
testified that the Complainant told her that they went to the bush.
The Appellant once again instructed him to kick
his legs and the
Complainant complied as instructed. After that, the Appellant made
him to go down on his knees. The Appellant
undressed the Complainant
and also undressed himself and raped him. The Complainant once again
wiped himself and saw white water
in his hand. After that, the
Appellant threw a stone and instructed the Complainant to run to the
stone. The Complainant did as
instructed and then came back. They got
back on the bicycle and travelled further, together on the bicycle.
[16]
She testified that when the Complainant was
busy making a report to her, her mother (the Complainant's
grandmother) entered and
said that the Complainant must go and tell
the teacher at school. The next morning they took the Complainant to
the Police Station
to make a report. They were informed by the police
that they couldn't report the incidents without evidence. They then
left and
went to the hospital. There was a strike at the hospital.
The Complainant was taken to a Psychologist. He went twice. Mrs.
S[...]
also testified that she received several complaints from the
Complainant's school that he hated male teachers. His behaviour
changed
after these incidents, both at school and at home. She
testified that the Complainant went to school and she went to fetch
him
from school to take him to the police station.
[17]
During cross-examination, Mrs. S[...]
conceded that when the Complainant made a report to her, it was still
visible outside. She
conceded that what the Complainant told her was
serious and it had to be reported to the police. She conceded that
after the Complainant
made a report to her and her mother, neither of
them took the child to the police station and nothing prevented them
from doing
so.
[18]
Mrs. S[...], under cross-examination,
conceded that her evidence was contradictory insofar as to what
actually happened when the
Complainant reported the matter to her and
her mother. She further conceded that her police statement in respect
of the incident
of 25 January was contradictory to her evidence in
court. She further conceded that the Appellant was employed to do
wielding jobs
at her house and that he was not working alone or alone
at the house.
[19]
The State's Third Witness was R[...] S[...]
L[...]. She testified that she is the grandmother of the Complainant
and that she knows
the Appellant as Chencha. During March 2018, she
found the Complainant crying and the Complainant's mother told her
that the Complainant
has told her that Uncle Chencha raped him. The
Complainant told her personally that uncle Chencha raped him on 25
January and 27
February. She testified that the Complainant
made the report around 18h30 the evening and she told the Complainant
that it
was already late and the following day, the Complainant
should report this to his teacher and she will come fetch him at
school
to go to the police station to report the matter.
[20]
Mrs. L[...] testified further that whilst
she was busy bathing, the Complainant's teacher called her and asked
about the issue that
the Complainant reported to her. She went to the
school and reported to the teacher that the Complainant says he has
been raped
by Uncle Chencha. She testified that she took the
Complainant to the police station. They were informed at the police
station that
they cannot open a case without a hospital letter. They
went to the hospital and found that there was a strike and they then
only
on the following day opened a case.
[21]
Under cross-examination, she conceded that
the police station was only a walking distance from their homestead.
She proceeded to
explain that they could not go to the police station
because it was already late and there were other children at home who
could
not be left unattended. She however conceded that it was still
light outside and that she didn't want the Complainant to go with
his
mother to make a report because she also wanted to be involved. She
also testified that she couldn't go alone with the Complainant
to the
police station, because the Complainant's mother also wanted to be
involved.
[22]
Mrs. L[...] contradicted herself in various
aspects during cross-examination. She conceded that the Appellant was
hired to do some
work at her homestead and insisted that he was
working alone, when confronted with the evidence of the first state
witness that
the Appellant was not working alone, she said she could
not remember. She was also asked questions regarding her police
statement
and became evasive in answering questions emanating from
her police statement.
[23]
The fourth state witness to testify was
Magdeline Mmata. She testified that she is a court intermediary and
placed her qualifications
and work experience on record. She further
testified during cross-examination that she does not know the parties
to the proceedings
and that she does not have any personal interest
in the matter. Her evidence was not disputed by the Appellant.
[24]
The fifth witness to testify for the State,
was the Complainant. He testified that on the 25
th
of January, he was at home playing with his siblings. Uncle Chencha
(the Appellant) was fixing the gate. It started raining and
Uncle
Chencha asked his uncle to pick up the gate and put it inside. He
testified that his uncle assisted the Appellant to pick
up the gate
and from there they went inside the house. After the rain subsided,
the Appellant wanted to go to Extension 76 and
requested the
Complainant to go with him. When they were about to exit through the
gate, his bicycle chain came off. The Appellant
entered his uncle's
bedroom, together with the Complainant, in order for him to fix the
bicycle.
[25]
The Complainant testified that the
Appellant told him that the bicycle could not be fixed and they
should rather play karate. The
Appellant told him to make kicks with
his legs and from there he must go down on his knees. Whilst he was
on his knees the Appellant
took
off
his
clothing and undressed himself as well. The Appellant went down on
his knees and produced his penis and penetrated him anally.
The
Appellant pushed forward and backwards. He testified that he
experienced pain and started to cry. The Appellant told him that
he
was going to beat him if he did not keep quiet.
[26]
The Complainant further testified that
after the Appellant was done, he left him there. He held his buttocks
and noticed a white
liquidish thing. He walked away and took his
books and proceeded into the bedroom. He testified that whilst he was
doing his homework,
he wrote the date of the 25
th
of January 2018 inside his book. The reason to write the date down
was to inform his parents if anything bad happened to him.
[27]
The Complainant testified that he went to sleep and the Appellant
took time without
visiting his residential place. At some stage the
Appellant came to erect the gate and requested the Complainant's
grandmother
if the Complainant can go with him to Winnie at Extension
71. The Complainant's grandmother gave permission for the Complainant
to go with the Appellant. The Appellant wanted to go and collect
money at Extension 71. They went to Winnie and she gave the Appellant
money. They proceeded back home and on the way to his
residential place, they went to a bushy area. The Appellant
told the Complainant to get off the bicycle so that he could teach
the Complainant karate. The Appellant told him to make some
kicking
moves and thereafter to go down on his knees.
[28]
The Complainant further testified
that the Appellant took off his clothing and undressed himself. The
Appellant produced his penis
and penetrated the Complainant anally.
The Appellant made back and forwards movements. The Complainant stood
up, held his buttocks
and felt a white liquidish discharge. He
testified further that the Appellant picked up a stone and threw it
into the bush. He
instructed the Complainant to run towards the
stone. The Complainant complied and from there he came back and
got on to the
bicycle whereafter they preceded home.
[29]
The Complainant testified that he
experienced pain as he was riding the bicycle. Upon arrival at home,
the Appellant told the Complainant's
grandmother that they are back.
The Complainant took his books and went to do his homework. The
Complainant wrote the date 27 February
2018 as proof or evidence in
his book to inform his family of the date.
[30]
The Complainant testified that at
some stage he informed his mother and he waited for his granny who
had gone to the shops and when
she came back, he informed her. The
granny told him that he must inform his teacher the following day and
she will come and fetch
him to go to the police station. The
Complainant informed his teacher the following day as instructed and
his grandmother and mother
came to fetch him to go to the police
station. Upon arrival at the police station, they were informed that
a letter from the hospital
was needed.
[31]
The Complainant further testified that the Appellant inserted his
penis into his anus and he
felt pain. He could not walk and sit
properly for four to five days after the ordeal. He could not report
the incidents as the
Appellant threatened to kill him. The
Complainant identified the Accused/Appellant as Uncle Chencha in
court.
[32]
Under cross-examination, the Complainant
conceded that the Appellant was hired to do some welding jobs at his
home. The Complainant
insisted that the Appellant was working alone.
The Complainant confirmed that every member of his family had access
into the room
in which the Appellant raped him on the 25
th
of January 2018 and anyone could have walked in and caught the
Appellant in the act of raping him. The Complainant further conceded
that there was no threat whatsoever by the Appellant before raping
him on the 25
th
of January and the Appellant could not have known how he was going to
react before raping him.
[33]
The Complainant testified under
cross-examination that he could not tell anyone about the first
ordeal after the Appellant left
as the Appellant threatened to kill
him should he tell anyone. The Complainant further conceded under
cross-examination that despite
the fact that he was injured and could
not walk or sit properly for several days, no one noticed any
abnormality at home and/or
at school. The Complainant conceded that
he informed his mother about the incidents and his mother told him to
tell his grandmother.
He waited for his grandmother to come back and
informed her as instructed by his mother. The grandmother informed
him to tell the
teacher at school the following day and he informed
the teacher as instructed by the grandmother. The Complainant
testified that
when he informed his mother and grandmother about the
incidents, they did not want to listen to him. He only told his
mother and
grandmother that the Appellant raped him and nothing else.
[34]
The Complainant further conceded that his
mother and grandmother fabricated their other evidence as he never
informed them in detail
as they did not want to listen to him. He
further conceded that he informed his teacher in an open class in
front of everyone regarding
these incidents as he was instructed by
his grandmother to inform his teacher at school.
[35]
The State called a sixth witness, Ms.
Thsipile Bessie Rampela. Nothing material turns on her evidence and
will therefore not be
summarised herein. The State closed its case.
AD DEFENCE CASE:
[36]
The Defence called the Appellant as witness
to the stand. He testified that he knows the S[...] Family. He also
testified that he
did some work for them at their homestead during
January 2018 to 2 March 2018. He testified that he charged
R10 000.000 for
the particular work and was paid a deposit of
R3000.00. He disputed the version of the witness for the State that
he was paid in
full. He disputed the version of the Complainant that
he raped him on the 25
th
of January and 27
th
of
February, respectively.
[37]
The Appellant testified that he received a
call from the Complainant's aunt requesting him to deliver a CD he
made of a graduation
ceremony. He did not know where the aunt stayed.
He went to the S[...]'s residential place and informed them that the
aunt said
that he must bring the CD and that he did not know where
she stayed and asked for directions. He testified that they said that
he will get lost and that he should rather take the Complainant with
him to show him where the aunt resides. According to the Appellant
they went there, upon their arrival they inserted the CD in the DVD
player and viewed it. He then gave it to the aunt and she paid
him.
The Complainant was playing outside. After the Appellant received the
payment, they went back to the Complainant's home.
FINDINGS BY THE
COURT
A QUO
AND APPLICATION OF THE LAW TO THE FACTS:
[38]
In the matter of
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at 101e,
it
was stated that:
"What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must
account for all the
evidence. Some may be found to be false, some of it might be found to
be unreliable and some of it might be
found to be only possibly false
or unreliable, but none of it may simply be ignored."
[39]
In the present matter the 2
nd
and 3
rd
State Witnesses were so unreliable that there evidence cannot be
accepted as reasonably possibly true. The 2nd State Witness
contradicted
the 3rd State Witness as to why they didn't go to the
police station to report the incident the very same day the
Complainant informed
them thereof.
[40]
The 2nd and 3
rd
State Witnesses also contradicted each other as to how the
Complainant reported the incident to them. There are several
inconsistencies
in the evidence of the 2
nd
and 3
rd
State Witnesses.
[41]
The 2nd and 3
rd
State Witnesses failed to give a
reasonable explanation as to why they wanted the Complainant to first
go to school to report these
incidents to his teacher before taking
him to the police station, which was a mere walking distance from
their home and in addition
it was still daylight outside and not yet
dark. It simply does not make any sense why the 2
nd
and
3
rd
State Witnesses will want the Complainant to
specifically wait until the next day to go and report to his school
teacher, who is
not the relevant authority to report the incident to,
before taking him to the police station.
[42]
The 2
nd
and 3
rd
State Witnesses also gave contradictory and inconsistent explanations
as to why they wanted the Complainant to go to report at
the teacher
at school first. The 2
nd
and 3
rd
State Witnesses versions and motivation why they did not take the
Complainant to school to report to the teacher that he will not
be at
school, but are being taken to the police station, is also bizarre.
[43]
The Complainant's version is also stranger
than fiction. He testified that the Appellant raped him in the house
whilst there were
other people present in the house. Anybody had
access to the room and could walk in to the room. This court finds it
highly improbable
that the Appellant raped the Complainant in a house
full of people in an unlocked room, to which anybody had access to
without
anybody in the house hearing any sound or suspecting anything
untoward going on in the room.
[44]
The version of the Complainant as to how
the Appellant made him to do karate kicks and thereafter raped him on
both occasions is
also extremely bizarre and to add to the strange
facts, the fact that the Appellant made him to run after a stone into
the bush
on the second occasion without any explanation. This court
further finds it highly improbable that the Complainant would have
gone
with the Appellant for a second time if he was raped the first
time without any resistance.
[45]
The Complainant's mother also contradicted
herself in her police statement in respect of where the first
incident happened and also
demonstrated inconsistency on the report
that the complainant made to her as to where the first incident
happened.
[46]
The Complainant testified that he was
injured to the extent that he had difficulty in walking and sitting
properly for several days,
yet nobody at home or at school noticed
anything.
[47]
In this court's view, had the court
a
quo
properly evaluated the evidence, it
could not have come to a conclusion that the State proved its case
beyond reasonable doubt and
in fact the evidence of the State
Witnesses were so inconsistent and unreliable that it had to be
rejected as false beyond reasonable
doubt. The State's case was
riddled with material contradictions, inconsistencies and
improbabilities, to such an extent
that the only reasonable inference
that can be drawn is that the version of the Complainant, 2
nd
and 3
rd
State Witnesses were fabricated for some unknown reason. The Appeal
therefore stands to succeed on conviction on both counts. In
light
thereof that the appeal stands to succeed, the sentences also stand
to be set aside and is there no need to deal with the
appeal against
sentence in this judgment.
[48]
Accordingly, this court therefore makes the
following order:-
1.
The appeal against both conviction
and sentence in respect of both counts of rape, is upheld.
2.
The convictions and sentences, on
both counts, are set aside.
M. NAUDЀ-ODENDAAL
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE:
K. PILLAY ACTING JUDGE
OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
21 JUNE 2024
JUDGMENT DELIVERED
ON: 8 OCTOBER 2024
For the
Appellant:
Mrs. P.R. Scott
Instructed
by:
Legal Aid South Africa,
Polokwane
Local Office,
Polokwane
For the Respondent:
Adv. M. Maleka
Instructed
by:
The Director of Public Prosecutions
Polokwane