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[2024] ZANCHC 74
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Kaotsane v S (CA & R 25/2023) [2024] ZANCHC 74 (28 June 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: CA & R
25/2023
Heard on: 06/05/2024
Delivered on:
28/06/2024
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
STEVEN
KAOTSANE
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Williams ADJP et Mamosebo J
JUDGMENT
MAMOSEBO
J
[1]
The appellant appealed against his conviction of rape by the Kuruman
Regional Court,
Mr L Mdoda, on 03 December 2021, and the sentence of
life imprisonment imposed on him on 22 February 2022. He enjoys
an automatic
right of appeal as contemplated in s309(1)(a) of the
Criminal Procedure Act 51 of 1977 (the CPA).
The merits on
conviction
[2]
The appellant was legally represented when he pleaded not guilty to a
charge of rape.
In his plea explanation he admitted formally in
terms of s 220 of the CPA, to having been the driver of
the Toyota
Ford Ranger; that he met the complainant and her friends
at Biker’s Joint; that the complainant and her friends needed a
lift to Obama and that he gave them the lift; that he had consensual
sexual intercourse with the complainant. Therefore, the
only
element that the State needed to prove was whether there was consent
or not.
[3]
Mr Steynberg, for the appellant, and Ms Stellenberg for the
respondent, agreed that
although a portion of the record was
interrupted, it is not necessary for it to be reconstructed. This
Court is in a position
to adjudicate the appeal on the available
record.
[4]
The State led the evidence of the complainant Ms M[...] J[...]
M[...], Mr B[...] M[...],
the complainant’s boyfriend, Ms
K[...] M[...], complainant’s younger sister, and Dr Nezingu
Lengo whose completed J88
report of the medico legal examination was
also handed in by the prosecutor. The appellant testified in
his defence but closed
his case without calling any witnesses.
[5]
The background facts are the following. 16 December 2019 was
the birthday of
K[...] M[...], the complainant’s younger
sister. They arranged to celebrate it with their friends in
town namely, M[...]
S[...], M[...] S[...]2, N[...] K[...], K[...] and
R[...]. They later went to a pub known as ‘The Bikers’
Joint’
in Mothibistad where they stayed until late. They
met the appellant who offered them a lift. Mpho drove the
appellant’s
vehicle to Obama after the appellant had indicated
to them that he was not in a condition to drive.
[6]
All the friends including her sister alighted the vehicle at Obama
and, surprisingly,
the accused took charge of the driving again. It
could be around 22:00 to 23:00 when appellant and the complainant
left Obama.
He offered to take her home at Magwanyane Village
but took the opposite direction instead, to Promised Land, and
stopped
at a bushy area where he had sexual intercourse with her on
the car seat without using a condom. He returned to the
driver’s
seat but the engine would not start. Her
evidence is that he pushed her causing her to fall on the shrubs
sustaining scratch
marks on her thighs, neck and cheeks. The
appellant again pulled off her underwear and had sexual intercourse
with her in
the open veld.
[7]
They subsequently walked to his shack where they further had sexual
intercourse throughout
the night which caused her to have vaginal
bleeding. She did not scream at any point because he threatened
her with a knife.
The following morning, she fled to a nearby
house and sought help. Her boyfriend, Mr B[...] M[...], arrived
with the
police who, after their preliminary investigations, took her
for medical treatment. The appellant was later arrested.
[8]
Mr Steynberg contended that the trial Court erred in not applying the
cautionary rule
to the evidence of the complainant who was a single
witness in the trial proceedings in respect of the rape itself. The
trial
Court further erred in convicting the appellant amidst all the
contradictions in the evidence of the State.
[9]
The first issue in this appeal is whether the sexual intercourse was
consensual or
not. Although the complainant was a single
witness regarding the rape, her testimony was clear and coherent.
She was
corroborated by K[...] that the appellant offered to
take the complainant home. A further corroboration is found in
her condition
as testified to by her boyfriend and K[...] that she
cried continuously, has abstained from sexual intercourse with her
boyfriend
and that she was still traumatised when they met her in
hospital. The doctor explained that she was bleeding from her
vagina
and it was outside her menstrual cycle.
[10]
The apparent contradictions pertaining to the evidence of the State
pertaining to whether or
not she escaped from the appellant’s
home only in her panties, t-shirt and skirt or only in her skirt and
bra is to me immaterial.
What is noteworthy is that she escaped
to the neighbours and sought help therefrom and the doctor found
multiple scratches
on her cheek, anterior side of her neck, lateral
outer side of right thigh, inner side of left thigh, both elbows on
the posterior
side and blood on the vulva and vagina. The
doctor explained that the complainant may not have suffered any tears
because
of her compliant hymen.
[11]
The appellant’s version was not without contradictions which
were conceded by the defence.
He seemed to suggest in his
evidence that the complainant fell from the vehicle into shrubs when
she alighted because of
the height of the vehicle
[1]
.
However, later during cross-examination, he claims that she
fell from the vehicle because she was drunk.
[2]
He says he had put his arm around the complainant when they sat
at the back but this was not put to the complainant. Despite
being aware of the complainant’s injuries he withheld them from
his attorney because he did not think it was important to
tell his
attorney.
[3]
According to
the appellant, as they were driving around, they ended up sitting
next to each other and he put his arm around
her and they were
attracted to each other. He describes their so-called
attraction as ‘
being
charmed’
.
The complainant disagreed with him.
[12]
The appellant testified that the complainant said the following at a
tavern at Wrenchville about
him
[4]
“
when
I was requesting them to buy me beer as well, then Motshidisi then
shout[ed] at me, saying that I do not have money, I am penniless,
my
car is not even in a good condition and I am now being a parasite,
dependent on women.”
Her testimony was that
she had a boyfriend and did not entertain the thought of having
sexual intercourse with a stranger. The
aforementioned
utterances made at Wrenchville negates, in my view, the suggestion by
the appellant that she was attracted to him.
On the suggestion
by the appellant that she demanded R500.00 from him as compensation
the following morning after the sexual
intercourse, she explained
that it was actually the appellant who sent people to her offering
her money to withdraw the charges.
She told the appellant that
she was not destitute and did not need his money. K[...] and
her boyfriend have corroborated
her version regarding her financial
position. It is untenable that she would ask for money from him
when she had already
assessed him not being in a strong financial
standing within a few hours of their interaction at Bikers Joint.
His version
in that regard is therefore not persuasive. I
should add that the contradictions in the testimony of the
complainant did
not, in my view, affect her credibility. See
S
v Mkohle
1990 (1) SACR 95
(A) at 98f-h and
S v Mafaladiso en
andere
2003 (1) SACR 583
(SCA) at 593e – 594h.
[13]
The approach to be followed in assessing evidence is suggested by
Nugent JA in
S v Mbuli
2003 (1) SACR 97
(SCA) at para 57 where
the Court held:
“
[57]
It is trite that the State bears the onus of establishing the guilt
of the appellant beyond reasonable
doubt, and the converse is that he
is entitled to be acquitted if there is a reasonable possibility that
he might be innocent (R
v Difford
1937 AD 370
at 373, 383). In
S v Van der Meyden
1999 (2) SA 79
(W), which was adopted and affirmed
by this Court in S v Van Aswegen
2001 (2) SACR 97
(SCA), I had
occasion to reiterate that in whichever form the test is applied it
must be satisfied upon a consideration of all
the evidence. Just
as a court does not look at the evidence implicating the accused in
isolation to determine whether there
is proof beyond reasonable
doubt, so too does it not look at the exculpatory evidence in
isolation to determine whether it is reasonably
possible that it
might be true. In similar vein the following was said in
Moshephi and Others v R LAC (1980 - 1984) 57 at
59F – H, which
was cited with approval in S v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426f - h:
'The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into
its component parts is obviously a useful
aid to a proper
understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently
upon the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led
in a trial may arise when that
aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again
together with all the other available
evidence. That is not to say that a broad and indulgent
approach is appropriate when
evaluating evidence. Far from it.
There is no substitute for a detailed and critical examination
of each and every
component in a body of evidence. But, once
that has been done, it is necessary to step back a pace and consider
the mosaic
as a whole. If that is not done, one may fail to see
the wood for the trees.'”
[14]
As alluded to earlier, the appellant has formally admitted to having
sexual intercourse with
the complainant. Where they differ is
that he says it was consensual while the complainant refutes that
contention. The
Regional Magistrate was alive to the sentiments
expressed by Olivier JA
[5]
in
S
v J
1998
(2) SA 984
(SCA) where the Court held:
“
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden
is on
the State to prove the guilt of an accused beyond reasonable doubt -
no more and no less. The evidence in a particular
case may call
for a cautionary approach, but that is a far cry from the application
of a general cautionary rule.”
[15]
The trial Court was also mindful that the complainant was a single
witness and hence approached
her evidence with caution. It was
contended that the trial Court erred in their evaluation of the
evidence and had wrongly
concluded that the guilt of the accused had
been proved beyond reasonable doubt. The discrepancy regarding
the time when
they left Biker’s Joint, that the complainant did
not mention that they also went to Obama were taken into
consideration
by the trial Court and not regarded as material to
render her evidence unreliable. The trial Court found that the
complainant’s
evidence was corroborated by K[...] and Mpho.
The trial Court should weigh the evidence of the single witness
and consider
its merits and demerits and having done so, should
decide whether it is satisfied that the truth has been told despite
the shortcomings
or defects in the evidence. See
S v Sauls
1981 (3) SA 172
(A) at 180E – G.
[16]
The actions of the complainant were consistent with her allegations.
Her injuries as testified
to by Dr Lengo were compatible with
her evidence that she was penetrated without her consent and
difficult to reconcile with the
version of the appellant. His
explanation of the multiple scratches on her body being caused by her
fall from his vehicle
were uncorroborated. Furthermore, on both
versions, the complainant fled from the deceased’s shack to an
unknown neighbour’s
house with shoes in her hands. This
is incompatible with the accused's version of consensual love-making.
If the sex
was consensual why would she escape to an unknown
neighbour’s house? When the complainant reached the
neighbour’s
place, she was upset and immediately complained of
having been raped and asked for a phone to seek further help.
[17]
There appears, from the evidence, to be no reason why the complainant
would have lied to the
unknown neighbour, her boyfriend, sister and
father, Dr Lengo, the police and the trial Court that she was raped.
Although
the complainant was seeing the appellant for the first
time, she trusted him to take her home. I am not convinced that
the
trial Court misdirected itself on the evidence before it, nor
that its decision was wrong. On the contrary, the guilt of the
appellant was proved beyond reasonable doubt. It is
inconceivable in this day and age that women are still predisposed to
be unreliable, and require absolutely that their evidence be
corroborated in every case. See
S v Jackson
1998 (1)
SACR 470
(SCA) at 476c – 477e. The defence by the
appellant that the sexual intercourse was consensual is blatantly
false and
without merit. In my view, the State had discharged
the
onus
of proving that the appellant had raped the
complainant and the trial Court has correctly convicted him. It
follows therefore
that the appeal against the conviction must fail.
On sentence
[18]
Sentencing is a matter pre-eminently within the discretion of the
trial Court and a Court of
Appeal will only interfere if there is a
clear misdirection on the part of the trial Court, or the sentence is
shockingly severe.
See
Haarhoff and Another v Director of
Public Prosecutions, Eastern Cape
2019 (1) SACR 371
(SCA). In
this instance, where the offence is coupled with the provisions of s
51(1) of the CLAA, the prescribed minimum
sentence is applicable
unless the court finds substantial or compelling circumstances to
deviate from the prescribed minimum sentence.
[19]
Majiedt JA, then, made the following salutary remarks in
S v SMM
2013 (2) SACR 292
(SCA) at para 17:
“
[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading,
humiliating and brutal invasion of a
person's most intimate, private space. The very act itself,
even absent any accompanying
violent assault inflicted by the
perpetrator, is a violent and traumatic infringement of a person's
fundamental right to be free
from all forms of violence and not to be
treated in a cruel, inhumane or degrading way. In S v Vilakazi
Nugent JA referred
to the study done by Rachel Jewkes and Naeema
Abrahams on the epidemiology of rape which concluded on the available
evidence that
'women's right to give or withhold consent to sexual
intercourse is one of the most commonly violated of all human rights
in South
Africa'.”
[20]
The prescribed minimum sentence in this regard is life imprisonment
which the trial Court imposed.
The question that stands for
determination is whether there were substantial and compelling
circumstances which warranted
a deviation
in casu.
[21]
It remains unclear to this Court why prosecution continues to
disregard the many admonitions
by the Courts for a necessity of a
victim impact report. The trauma that the complainant sustained
ought to have been placed
before Court by way of a professional
opinion. It further boggles one’s mind why the State did
not call the first report,
being the occupant of the home to which
the complainant fled as that person would have also shed more light
in as far as the condition
in which the complainant was upon arrival
and the report made to him or her.
[22]
In every rape case the objective evidence of the medical doctor is
crucial and helpful to determine
a just sentence. Dr Lengo’s
report, particularly regarding the penetration and the nature of the
injuries, could be
more helpful but was, in my view, economic with
the professional opinion as required. Despite being a qualified
doctor holding
an MBChB degree and having practiced since 2007, and
in South Africa since 2013, he described the external injuries
(abrasions)
and confirmed that the bleeding from the vagina was not
due to a menstrual cycle. However, on the J88 he wrote the
following
conclusion:
“…
blood
on vulva and vagina specimen collected for forensic no way to give
conclusion.”
It is necessary, in my
view, for the medical doctors to appreciate the role they play in
sexual offences cases and the nature of
the evidence required by the
Courts in order for the courts to arrive at a just outcome.
[23]
It is settled that the Court views the offence of rape in a very
serious light. We are
mindful that the only physical injuries
during the rape itself were the multiple scratches on her body with
no actual injuries
on her private parts. This should, however,
not be construed as a clean slate without consequences because the
act of rape
itself goes beyond physical injuries. It would have
been ideal for a social worker or psychologist to have recorded the
trauma
that the complainant experienced. The State continues to
contribute towards this sad state of affairs. The Regional
Magistrate, agreeing with the State, found that there were no
substantial and compelling circumstances to warrant a deviation from
the prescribed sentence of life imprisonment.
[24]
In
S v Malgas
2001 (1) SACR 469
(SCA) at 482e Marais JA
remarked:
“
I.
If the sentencing court on consideration of the circumstances of the
particular
case is satisfied that they render the prescribed sentence
unjust in that it would be disproportionate to the crime, the
criminal
and the needs of society, so that an injustice would be done
by imposing that sentence, it is entitled to impose a lesser
sentence,”
[25]
Bosielo JA in
S v PB
2013 (2) SACR 533
(SCA) at para 21
remarked:
“
[21]
The most difficult question to answer is always: What are substantial
and compelling circumstances?
The term is so elastic that it
can accommodate even ordinary mitigating circumstances. All I
am prepared to say is
that it involves a value judgment on the part
of the sentencing court. I have, however, found the following
definition in
S v Malgas (above) para 22 to be both illuminating and
helpful:
'The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hastened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust, or as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
it is the result of a
consideration of circumstances the court is entitled to characterise
them as substantial and compelling and
such as to justify the
imposition of a lesser sentence.'”
[26]
In
casu
the trial Court has overlooked not only the favourable
personal circumstances of the appellant with fixed employment and a
number
of dependants but also that he is a candidate for
rehabilitation. We are therefore at large to assess the
evidence relating
to sentence afresh and come to our own conclusion.
[27]
The appellant was born on 27 May 1982 and was 39 years old when
sentenced. He is not married
but has three children aged 8 and
5 years old and the youngest was born in 2020 while he was already
incarcerated and was therefore
unsure of the child’s exact
age. He was not the primary caregiver since the children
resided with their mothers. However,
he took care of his
siblings and nephew because their parents are late. Before his
arrest he was employed at Adonai Mine
at Kolomela, Postmasburg
earning between R18,000.00 – R19,000.00 per month. He
paid R700.00 per month per child towards
their maintenance. He
dropped out of school in Standard 6. He has a valid driver’s
licence and received training
in operating mining machinery at CAT.
[28]
The appellant’s sister, Didimalang Susan Kaotsane, testified in
his mitigation. She
confirmed that he was not only looking
after his siblings but also their asthmatic uncle and diabetic aunt.
His legal representative
had further placed the following on record:
that his previous conviction of reckless and or negligent driving and
Housebreaking
with intent to steal and theft were imposed in 2006 and
they had not only lapsed but were also unrelated to the offence of
rape.
The age of the previous convictions makes him a suitable
candidate for rehabilitation. It was further contended that
the
injuries sustained by the complainant in the commission of the rape
were not severe.
[29]
Regard being had to the cumulative effect of the mitigating and
personal circumstances of the
appellant, a sentence of life
imprisonment under these circumstances would not be competent. It
follows that the appeal against
sentence must succeed.
[30]
In the result the following order is made:
1.
The appeal against the conviction is
dismissed.
2.
The appeal against sentence succeeds.
3.
The order of the trial Court in respect of
sentence is set aside and replaced with the following:
“
The
accused is sentenced to 25 years’ imprisonment.
MAMOSEBO J
NORTHERN CAPE HIGH
COURT
I concur
WILLIAMS ADJP
NORTHERN CAPE HIGH
COURT
Appearances:
For the Appellant:
Mr H Steynberg
Instructed by:
Justice Centre,
Kimberley
For the Respondent:
Adv A Stellenberg
Instructed by:
Office of the Director
of Public Prosecutions
[1]
Record
page 209 line 8
[2]
Record
page 245 line 8
[3]
Record
page 249 lines 12 -15
[4]
Page
203 of the record
[5]
Record
page 294