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2024
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[2024] ZAFSHC 245
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Matheatsie v S (A12/2024) [2024] ZAFSHC 245 (20 August 2024)
FLYNOTES:
CRIMINAL – Rape –
Sentence
–
Role
of alcohol – Where older persons provide alcohol to
socialising youngsters and harm follows – Appellant was
28
years old and appears to have deliberately preyed on 17-year-old
complainant – Appellant’s sobriety could
be
aggravating circumstance – Demanding sexual favours after
providing free alcohol – Voluntarily over-indulging
in
liquor not to be used to secure lenient sentence – Appeals
against conviction and life sentence dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
No:
A12/2024
In
the appeal between:
THAPELO
JOHANNES MATHEATSIE
Appellant
and
THE
STATE
Respondent
CORAM:
NAIDOO, J
et
REINDERS, J
JUDGEMENT:
REINDERS, J
HEARD
ON:
20 MAY 2024
DELIVERED
ON:
20
AUGUST 2024
This
judgment was handed down in open court and circulated to the parties’
representatives by email.
[1]
The appellant, who was legally represented, was arraigned before the
Regional Court at Bloemfontein
on a charge of contravening s 3 of the
Sexual Offences and Related Matters Amendment Act
[1]
(rape) read with the provisions of s 51(1) of the Criminal Law
Amendment Act.
[2]
The
prosecution alleged that on or about 27 and 28 July 2019 the
appellant unlawfully and intentionally committed acts of sexual
penetration with M.M. (17 years old) by penetrating her vagina with
his penis without her consent (more than once). The appellant
pleaded not guilty to the charge but was subsequently convicted on 27
February 2023 and sentenced to life imprisonment on even
date. This
appeal against both conviction and sentence comes before us by virtue
of the appellant’s automatic right of appeal
in accordance with
the first proviso of s 309(1)
(a)
of the Criminal Procedure
Act.
[3]
[2]
Mr. P Mokoena appearing on behalf of the appellant, contended that
the trial court erred by:
(i)
finding that the state has proved its case beyond a reasonable doubt
;
(ii)
finding that the evidence of a single witness was satisfactory in all
respects;
(iii)
not placing enough weight on the lengthy period that lapsed since the
incident before complainant
laid any charges;
(iv)
not taking into account the conduct of the complainant after she was
allegedly raped by
not informing her
friends immediately thereof; and
(v)
rejecting the appellant’s version and
not
taking into account the possible motive appellant had placed on
record.
In respect of the
sentence of imprisonment for life it was submitted that the court
a
quo
had erred in finding that there
exist no substantial and compelling circumstances to deviate from the
minimum prescribed sentence,
more specifically by not taking into
account ‘factors such as appellant’s age, his dependants
and the assets he owns’.
[3]
The State, for its part, supports both the conviction and the
sentence. Ms Tunzi, representing
the prosecution, contended that the
trial court did not misdirect itself in any way, either in convicting
the appellant or in imposing
a sentence of life imprisonment. A
synopsis of the State’s version, as accepted by the trial
court, reveals the following
(reference to the appellant shall be
‘the accused’):
(i) As held by the
learned magistrate, it is not in dispute that the complainant and her
three girlfriends decided to visit a tavern
in the suburb of
Turflaagte at 20:00 on the day in question. While on their way,
they were approached by four unknown males,
one of whom was the
accused. Realising they were going to the same tavern, the two groups
proceeded in walking there. Upon arrival
the men initially bought
twelve bottles of beer, later another twelve and still later some
more, which were consumed by all of
them. The group stayed there for
a long time, and shortly before closure time in the early morning
hours, the group of females
decided to return home. It is further
common cause that the complainant laid a charge of rape against the
accused only some weeks
after the alleged rape had taken place.
(ii) According to the
complainant, upon deciding to leave, the four males they had met
earlier remained at the tavern, and two of
their own male friends
indicated that they would accompany them home. When they reached the
spot where they had earlier met the
four males, they were accosted by
a group of men from behind who were throwing stones at them. In fact,
one of their male friends
was hit with a brick on his ear and struck
to the ground. The complainant was grabbed by the accused who
informed her that she
had a choice between him raping or killing her,
whereupon he took her to an outside toilet near a house and had
sexual intercourse
with her without her consent. Apart from slapping
her in the face, she was threatened that, even if she would open a
case against
him, he would kill her. Hereafter, he grabbed her by the
hand and made her to walk for hours. She did not know the area where
they
arrived at dawn, but he took her inside one of the shacks behind
a RDP house. She was very scared at that stage because he had already
raped her and repeated his threat of killing her, so she complied
with his order that they were going to sleep in the bed.
There
was a knock at the door, the appellant spoke with a lady and he later
returned with food, which she refused to eat. The appellant
then told
her if she gives him ‘another round’ he would let her go,
and in that belief of her being able to gain her
freedom the
appellant had sexual intercourse with her again. He informed her that
he would accompany her home, and upon them exiting,
she saw two
people sitting in front of the RDP house. They then walked in a
different direction. Whilst walking, the accused instructed
her to
walk in front of him when he saw his girlfriend approaching. She then
went in another direction and started crying when
she realised the
area was unknown to her. A group of soccer players approached her,
and one of them introduced himself as Max and
asked her what was
wrong. Upon his insistence, she told him that she had been raped. He
told her the area
she was in and
enquired where she lived, whether she knew the rapist, and after
describing the appellant, Max asked her whether
it was one Thapelo,
but she was unsure of the name. Max then asked her to accompany him
to get taxi fare for her to return home.
On their way they met with a
friend of Max, and upon request she also told the friend of her
ordeal. With the money so obtained,
she
could return home with a taxi. She requested her friends via social
media to wait upon her arriving with the taxi, but did not
inform
them of the ordeal that she had gone through. Some time thereafter
she informed her sister of what had happened. She pointed
out to the
police the toilet and shack where she was raped.
(iii)
The complainant denied any suggestion of a false motive (in respect
of certain gang related
animosity) to lay a charge against the
accused, stating that she decided to do so because the ordeal had
impacted her very negatively
and she wanted to get closure regarding
the ordeal.
(iv) The complainant’s
older sister testified that she was the one assisting the complainant
to lay a charge early in September
2019 after the complainant
confided in her what had happened some weeks prior. She (the sister)
did in fact notice that in the
weeks prior thereto, the complainant
was ‘not herself and not happy’. The complainant looked
scared and started crying
when relaying what had happened to her.
(v)
Two of the complainant’s female friends (Ms B.S.S and K.E.M)
who accompanied her to the
tavern that Saturday evening, corroborated
the complainant on going to the tavern, the fight that occurred after
they had left,
when bricks and stones were thrown at them from
behind, the complainant being taken away by the accused and the
complainant’s
lack of informing them what exactly had happened
to her. Ms B.S.S testified that she could identify the accused
as one of
their assailants. When she saw the complainant again later
on that Sunday, her face was swollen and she was ‘a bit down as
she was crying’. Ms K.E.M testified that whilst running away
from their assailants, she managed to run into the yard of her
home.
She observed the complainant calling her, and saw one person grabbing
the complainant’s wrist, whilst the other slapped
the
complainant whereafter they left with the complainant. She did not
see where they went. Later that Sunday afternoon, they met
the
complainant when she arrived in a taxi. The complainant did not
inform them what had happened to her but her eyes were reddish,
she
looked sad and her face was swollen.
(vi) In respect of Max
and his friend, the version of the complainant was corroborated by
both witnesses in all material respects,
from the point where Max had
found her up to where she departed for home in a taxi. Of importance
is the testimony by Max that
the complainant was crying when he
encountered her and that she made a report to him on what had
transpired. In relaying her story
to him, she told him that that
there was an altercation upon leaving the tavern when her assailant
told her that she must leave
with him as he was the one who had
provided the alcohol. She refused to accompany him where after he
pulled her with force to walk
with him.
(vii)
The aunt of the accused confirmed seeing a lady sitting on the bed
when she went to the shack of the
accused and managed to peek through
the slightly ajar, yet chained, door. The accused then exited the
shack and followed her (the
aunt) to the house where he requested
some food. She was asked by the accused not to tell anyone about his
girlfriend as he was
a married man with a wife and a child.
(viii) Captain Cilliers
attended to the identification parade which was done by showing the
complainant an album of 22 photos of
male faces. He testified that,
when the complainant reached the photo of the accused, she identified
him as the perpetrator. According
to him, the complainant was
initially calm but upon identifying the appellant, she was ‘shocked
and tense.’ The complainant
informed him that she was raped
twice by the accused and he took down a statement from her.
[4]
The defence put up by the appellant initially entailed that sexual
intercourse between him and
the complainant indeed took place at a
shack of a family member. According to him, upon leaving the tavern
he proposed love to
the complainant, and she freely agreed not only
to accompany him to the shack, but also to have sexual intercourse
with him. As
indicated by the learned magistrate, the appellant, in
his evidence in chief, was able to furnish vivid details of the
sequence
of events from the tavern, arriving at the shack (even
describing the bedding), the food and the like. During
cross-examination
when confronted by the prosecution with several
important aspects not put to the state witnesses by appellant’s
legal representative,
the appellant attempted to justify the same by
blaming his attorney. This included his testimony that he and the
complainant, on
their way to his place, had met with the police and
community members, that his aunt had spoken to the complainant and
most importantly,
that due to his level of intoxication at the time
(being ‘too drunk’), he was unable to recall whether he
even as a
fact had sexual intercourse with the complainant.
[5]
When confronted with conflicting versions which cannot be reconciled,
the court adopts a holistic
approach to all the evidence available
and has regard to probabilities.
[4]
[6]
In argument before us Mr. P Mokoena responsibly conceded that the
appellant’s evidence was
problematic. Of vital importance is
that it was put to the complainant that the sexual intercourse was
with her consent, whilst
the appellant eventually testified that he
cannot even remember if he had sexual intercourse with the
complainant at all, as he
was too drunk to remember what had happened
that night.
[7]
The main attack by the appellant against the judgment of the
magistrate is focused on the court’s
finding that the evidence
of the complainant as a single witness, is credible. Mr. P Mokoena
pointed towards what he viewed as
being improbabilities in the
version of the complainant, namely that she did not draw the
attention of the appellant’s aunt
when she was at the door of
the shack, or request the people sitting in front of the house for
assistance. He also alluded to the
discrepancy between the date
testified by the complainant and that testified by other state
witnesses. Ms Tunzi submitted that
the appellant did not rely on an
alibi, and thus the importance of the date is not material. I am in
agreement with her. Moreover,
the matter was proceeded with on the
basis of the date as alleged by the state, and specifically the
testimony of the soccer player
Max.
[9]
It would seem that the appellant’s main attack for the court’s
credibility finding
is the failure of the complainant to make a
report of the rape to her friends or sister shortly after it had
happened and having
waited some time to lay a charge of rape against
the appellant. The magistrate in his judgment dealt comprehensively
with the aforesaid
issue. He alluded thereto that the complainant
reported to Max and his friend ‘almost immediately’ after
the second
rape had occurred. He held that ‘. . . she then got
on a taxi and went home. Her grandmother was not there. She was
afraid
of speaking with her friends about what had happened to her,
because she was afraid they would judge her’ and stressed the
complainant’s testimony that ‘it is not a good thing to
report to your friends because they are gossiping and you are
actually placing yourself in a very strange situation.’ He was
satisfied with the complainant’s explanation as to
why she did not make a report to people other than those
unknown people at Bergman Square.
[10]
Recently, in
Maila
v The State
[5]
the Supreme Court of Appeal by mouth of Mocumie JA referred to the
adverse emotional experience by a victim of sexual violence
of
‘a profound sense of shame, stigma and violation’. In
para 28, the Court held:
‘
. . . Authors and
experts in the field of psychology and criminology state that “[e]ach
victim reacts differently after a
violent act… [They] may only
decide to report once [they are] supported by a family member or when
a friend confirms that
this behaviour is indeed wrong
. . . Sexual violence
victims often experience a profound sense of shame, stigma and
violation”.
What
is important is that the first report is made at the first
opportunity available to the victim of sexual violence . . . Failure
of the complainant to report an alleged rape as soon as possible
cannot be ‘the benchmark for determining whether or not
a woman
has been raped’.
[6]
In my view therefore the
magistrate did not err in finding the complainant’s evidence in
this regard, credible.
[11]
It is evident from the record that the complainant was a single
witness on what transpired in the public
toilet and appellant’s
house behind closed doors. It is trite that an application of the
necessary caution requires, in essence,
that the court satisfy itself
that despite the defects, shortcomings and contradictions in such
evidence the truth has been told
and that the complainant’s
evidence is trustworthy.
[7]
[12]
The court
a
quo
found
the evidence of the complainant to be logical and chronological, and
accordingly, credible. It is trite that in the absence
of an
irregularity or misdirection by the trial court, a court of appeal is
bound by credibility findings thereof, unless it is
convinced that
such findings are clearly incorrect. In order to succeed on appeal,
the appellant must convince us, on adequate
grounds, that the trial
court was wrong in accepting the evidence of the complainant. Bearing
in mind the advantage which the learned
magistrate had of seeing,
hearing and appraising witnesses, it is only in exceptional cases
that an appeal court will be entitled
to interfere with a trial
court’s evaluation of oral testimony.
[8]
[13]
The learned magistrate was satisfied from the totality of evidence
before him that the truth had been told
and properly rejected the
appellant’s version as not being reasonably possibly true,
regard being had especially to his turnaround,
from indeed having had
sexual intercourse with the complainant, to not remembering any such
act having taken place. On returning
the guilty verdict, the trial
court in my view, correctly rejected as not reasonably possibly true,
the appellant’s version
on what had transpired. The conviction
by the trial court can, in my opinion, not be faulted insofar as the
trial court undertook
a holistic consideration of the evidence and
was, correctly, satisfied that the appellant’s guilt had been
established beyond
reasonable doubt.
[15]
The next enquiry is whether or not the sentence imposed is just,
regard being had to the cumulative impact
of mitigating and
aggravating factors inclusive of the interests of society. It is
trite that the powers of a court of appeal to
interfere with the
sentence imposed, are limited insofar as it can only interfere where
the sentence is disproportionate, harsh
or the sentencing court
committed a material misdirection or did not exercise its discretion
properly or at all.
[9]
[16]
The magistrate was well aware of and applied the principles in
S
v Malgas
[10]
in respect of the imposition of a prescribed minimum sentence. The
trial court had regard to the appellant’s personal
circumstances,
the gravity of the offence and the interest of the
public. The magistrate considered the interests of the victim and
dealt with
the victim impact assessment report of the complainant’s
sister which demonstrated the collateral damage that was done after
complainant was raped. One of the aggravating factors considered by
the magistrate was the fact that the appellant not only had
a
previous conviction for rape for which he had been sentenced to 10
years’ imprisonment, but he was in fact out on parole
when the
rape occurred. The magistrate ultimately declined to find that there
were substantial and compelling circumstances which
would cause him
to deviate from the prescribed sentence of imprisonment for life.
[17]
Mr. P Mokoena responsibly did not attempt to convince us that
appellant’s commission of the crime whilst
on parole, was not
an aggravating factor weighing heavily against the appellant.
However, he urged us to take into account that
the complainant did
not sustain any serious physical injuries on the basis of the
acceptance by our courts that there are degrees
of seriousness in
rape cases. Moreover, he invited our attention thereto that liquor
played an important role on that evening as
a lot of beer was
consumed. He alluded to the absence of a victim impact report by the
victim herself (and only by her sister)
which would have indicated
any emotional trauma suffered by the complainant. In addition, so the
argument went, there is no indication
on the record that the court
a
quo
took into account the three years that the appellant had
spent in custody awaiting trial.
[18]
In my view it is evident that the trial court properly considered the
factors as alluded to in reaching the
conclusion that there are no
compelling and substantial
factors which
would cause him to deviate from the prescribed sentence. Our courts
have consistently stressed the gravity of rape
and held it to be a
humiliating, degrading and brutal invasion of the dignity of the
victim which is gender specific.
[11]
.
I align myself with the sentiments expressed on a rape victim by
Olivier JA in
J
v S
:
[12]
“
Few things may be
more difficult and humiliating for a woman than to cry rape: she is
often, within certain communities, considered
to have lost her
credibility; she may be seen as unchaste and unworthy of respect; she
has to undergo the most harrowing cross-examination
in court, where
the intimate details of the crime are traversed ad
nauseam
…”
[19]
The role that alcohol had played in the commission of the rape, was
never vigorously pursued by the appellant,
and appears to have been
raised, almost as an afterthought, by Mr. P Mokoena in argument as a
mitigatory factor. The appellant’s
state of sobriety cannot
lead to a conclusion that the appellant should therefore be pardoned
by imposing a lesser custodial sentence.
In fact, in my view it might
even be more aggravating, in instances where youngsters who socialise
in public, are lured or enticed
by the provision of free alcohol by
older persons, and harm follows. The appellant, who was 28 years old
(and a mature man) at
the time of the commission of the offence,
appears to have deliberately preyed on the complainant, who was a
mere 17 years old
at the time, with the idea that, in return for the
provision of free alcohol to the complainant, he could and would be
entitled
to demand sexual favours from her afterwards. It was
specifically mentioned in the evidence that the appellant uttered
words to
this effect when he accosted the complainant as she and her
friends left the tavern. Departing from the sentence imposed by the
court
a quo
would be treading on dangerous ground where a
message would be sent out by the courts that over-indulging in
liquor, willingly
and voluntarily, will ultimately be an excuse for
crimes committed, more specifically so in instances of rape, and be
used as a
ploy to secure the imposition of lesser or more lenient
sentences.
[20]
It follows that I am satisfied that the sentence imposed by the trial
court cannot be faulted in any way.
Consequently, I make the
following order:
The appeal against both
conviction and sentence is dismissed.
C.
REINDERS, J
I
concur.
S.
NAIDOO, J
It
is so ordered.
On
behalf of the appellant:
Mr. P
Mokoena
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
S. Tunzi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
[1]
Sexual Offences and Related Matters Amendment Act
32
of 2007.
[2]
Criminal Law Amendment Act
105
of 1997
.
[3]
Criminal Procedure Act
51
of 1977
[4]
S v
Guess
1976
(4) SA 715 (A).
[5]
Maila v
S
[2023]
ZASCA 3.
[6]
UNODC Handbook for the
Judiciary on Effective Justice Responses to Gender-based Violence
against Women and Girls at 25, as quoted
ibid. See also
Monageng
v S
[2008]
ZASCA 129
;
[2009] 1 All SA 237
(SCA) para 24.
[7]
S v
Sauls
1981
(3) SA 180 (A).
[8]
S v
Francis
1991
(1) SACR 198
(A) at 204c-e.
J
v S
[1998]
2 All SA 267
(A) at 271c.
[9]
S v
Pieters
1987(3)
SA 717 (A). See also
S
v Makondo
2002
(1) All SA 431 (A).
[10]
S v
Malgas
2001
(1) SACR 469 (A).
[11]
S v
Chapman
1997
(2) SACR3 (SCA). See also
Masiya
v Director of Public Prosecutions, Pretoria and Another
2007 (5) SA 30
(CC).
[12]
Footnote 9.