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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN

Not Reportable / Reportable
Case No: A119/2024
In the matter between:
MOEKETSI JOSEPH MONAHENG APPELLANT
And
THE STATE RESPONDENT

Neutral citation: Moeketsi Joseph Monaheng v The State (A119/2024)
Coram: Chesiwe, J et Daniso, J
Heard: 03 February 2025

Delivered: This judgment was delivered by email to the parties and release to SAFLII. It shall be deemed to have been delivered at 11 h00 on 19
May 2025



ORDER


1. The appeal against conviction and sentence is dismissed.

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JUDGMENT



Daniso, J

[1] The appellant appeared duly legally represented before the regional court
Welkom for the rape of his former partner thereby contravening the provisions of section
3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act1 read
with section 51(1) of Criminal Law Amendment Act2 (The CLAA) .

[2] The charge sheet alleged that the appellant raped the complainant more than
once for the duration of the evening of 2 January 2022. The appellant was convicted
after pleading not guilty on the basis of consensual sexual intercourse. He was
subsequently sentenced to life imprisonment as provided for in the CLAA .
[3] This opposed appeal is against both the conviction and sentence. The conviction
is assailed on the grounds that, in determining whether the State had proved the
appellant’s guilt beyond a reasonable doubt the trial court erroneously found that there
were no improbabilities in the State’s case and that the witnesses gave their evidence in
a satisfactory manner. The trial court also erred in accepting the version of the State
and rejecting the appellant’s version. With regard to sentence, the appellant submits
that the trial court erred in its finding that there were no substantial and compelling
circumstances warranting a deviation from the prescribed minimum sentence of life
imprisonment


1 Criminal Law (Sexual Offences and Related Matters) Amendment Act No, 32 of 2007.
2 Criminal Law Amendment Act No, 105 of 1997.
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[4] In the court a quo, the fact that on the date alleged in the charge sheet the
appellant and the complainant engaged in sexual intercourse was not in dispute. It was
the circumstances under which that sexual encounter occurred that was in dispute.
[5] The appellant was convicted on the testimony of the complainant and her partner
Mr. Mokoena Isaac Mokati . The summary of the State’s evidence is the following: the
appellant and the complainant were previously involved in a love relationship. The last
time they saw each other was in 1992. At the time of the incident the complainant was
dating Mr. Mokati , the appellant was in a relationship with someone else.
[6] Earlier o n the night of the incident the complainant and Mr Mokati spent the
evening together visiting relatives. Around 20h00 the complainant took Mr Mokati’s
house keys and set off to his residence to sleep. Whilst s he was at Mokati’s door
struggling to open it the appellant accosted her and pulled her out of the yard while
swearing at her calling her a whore or a bitch. When she protested he threatened to
bust her eardrum. He dragged her to his parental home where he took her to his
bedroom , ordered her to undress and raped her several times during the night . The
complainant was only able to leave in the morning when the appellant went to work.
She went to Mr Mokati’s residence and relayed the incident to him and thereafter went to the police station to report the rape.

[7] On 4 January 2022 she was taken for a medical examination. The J88 medical
report (exhibit “A”) compiled in that regard indicated no visible injuries except for semen
like substance consistent with penile penetration.

[8] Under cross -examination, she admitted that she made a mistake about the date
upon which she last saw the appellant and conceded that it could have been in the year 2021. She was adamant that the appellant took her from Mokati’s residence by force
and that s he could not scream for help because he had threatened to harm her and
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even though she could hear his parents arriving and going to their bedroom she could
not ask for their assistance because she knew that they were also scared of him.
[9] Mr. Mok ati corroborated the complainant’s first report of the rape incident. He
confirmed that the complainant took his keys and left him where they were visiting and told him she was going to sleep at his house but when he arrived later she was not
there. He had to break one of the windows in order to gain entry into the house, the
complainant only arrived in the morning. She was angry and hurt, she informed him that
she was raped by the appellant and then went to the police station to report the matter.

[10] On the other side, the appellant testified in his defence and also called his
mother Ms. Puleng Monaheng (Ms Monaheng) as a witness.

[11] He denied having taken the complainant to his parental home by force. He
explained that she went with him willingly because at the time of the incident she was
still his girlfriend . He told the court that he was on the street when he saw the
complainant struggling with M r. Mokati’s door. He called her over, she willingly went to
him, and they went to his parent al home. His mother was home and after opening the
door for them they had dinner in the kitchen and then went to his bedroom where they
engaged in consensual sexual intercourse only once. In the morning he went to work,
the complainant stayed behind and helped his mother to remove rainwater out of the
house as it had been raining heavily. He was surprised when the police later arrived and arrested him for raping the complainant.

[12] It was his testimony that u pon being released on bail there was no
communication between him and the complainant even when they met at a drinking
place they did not speak to each other . Inexplicably, he also told the court a quo that he
was informed by the complaint that the reason she laid the rape charge against him was because of the argument she had with Mr. Mokati for taking his house keys , causing
him to break his window. When this version was tested under cross -examination he
stated that it was actually the complainant’s sibling who inf ormed him about the
complainant’s reason for accusing him of rape.
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[13] Ms Monaheng testified that she was aware of the love relationship between the
appellant and complainant. She testified that on the night of the incident she was home
when the appellant and the complainant arrived. They went straight to the appellant’s
bedroom and al l looked well between them , they were laughing and the complainant
also greeted her. In the morning the complainant left whilst she (Ms Monaheng) was still
in bed because she only wakes up late in the afternoon.

[14] When it was put to her that the appellant had testified that he and the
complainant ate dinner in the kitchen before going to the bedroom she changed her
version and stated that indeed they did dish up and eat before going to the bedroom .
She also said she dis see the complainant leaving in the morning though they did not
speak to each other . Regarding the weather condition, at first she was adamant that
except for the small wind it had not rained when the complainant was at their home. Her
other version was that it had actually rained and the house was indeed flooded. The
three of them (Ms Monaheng, her live in partner and the complainant) removed the
water from the house.
[15] It is settled that the appeal court will not interfere with or tamper with a trial
court’s judgment or decision regarding either conviction or sentence unless, it (the court
of appeal) finds that the trial court misdirected itself as regards its findings of facts or the law.
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[16] It is the appellant’s case that the complainant was a single witness to the rape
therefore her evidence had to be evaluated with caution instead, the trial court accepted

3 See R v Dhlumayo & Another 1948 (2) SA 677 (A). The principle was also restated in AM & Another v
MEC Health, Western Cape 2021(3) SA 337 (SCA) at paragraph 8.

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her version as the truth despite the fact that she contradicted herself with regard to
whether upon arrival at the appellant’s parental home she did see his parents or not and
whether she first sat in the kitchen or the appellant took her straight to the bedroom.

[17] It is further argued that her version that she last saw the appellant in 1992 is
improbable as the appellant was only two (2) years old at that time and it i s also
improbable that the she did not did not seek help from the appellant’s parents who were
present in the house during the alleged rape. She did not try to leave when the
appellant was sleeping, she did not report the rape to Mr Mokati until he asked her
about her whereabouts the night before, she also did not inform him that the appellant
was her ex -boyfriend and she could not even tell the court how many times she was
penetrated vaginally by the appellant.

[18] According to the appellant, the fact that the J88 medical report does not show
any gynaecological injuries supports the appellant’s version that the sexual intercourse
was consensual and that it occurred once. The absence of wrist or other bodily injuries
also puts paid to the complainant’s allegations that she was pulled by the appellant. Based on all these reasons, the appellant contends that his conviction should be set aside.

[19] There is no merit to the appellant’s complaints. I t is clear from the record of the
proceedings that the trial court meticulously evaluated all the evidence proffered by both
the State and the defence and having appropriately applied the cautionary rule to the
complainant’s evidence as a single witness to the rape, the trial court was satisfied that
it could rely on her evidence. The trial court was satisfied that the complainant had no reason to falsely implicate the appellant because, at all material times hereto she and
Mr. Mokati were not living together but visiting each other therefore she had no reason
to lie and cry rape when he asked about her whereabouts the night before. If she was two timing him as the appellant averred, she could have easily said she was home at
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her parental home where she lived. Furthermore, it was improbable that the
complainant would take Mr Mokati’s house keys and then proceed to go spend the night with the appellant. Her version was also corroborated by her first report Mr. Mokati who only relayed what the complainant told him without any exaggeration of the facts or indication of malice towards the appellant. I cannot fault the trial court for accepting the
complainant’s evidence. She indeed told the truth of how she was violated by the
appellant .
[20] The contradictions complained about are also immaterial to the determination of
whether the appellant raped the complainant or not. The fact that the trial court did not
specifically mention them does not mean that they were not duly considered as “ no
judgment can be all -embracing.”
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[21] There is nothing improbable about the complainant’s failure to call for help when
she was dragged by the appellant from Mr Mokati’s yard and when he raped her at his
parental home. H er version that the appellant threatened her and that even his parents
feared him was not gainsaid by evidence to the contrary. Her fear of the appellant was also noticed by the court a quo when she testified.

[22] The substance of the appellant’s testimony namely that: the complainant told her
that she had fabricated the rape charge was clearly an afterthought devised to suit the circumstances of the case as it was not put to the complainant whilst she was under cross- examination to give her an opportunity for an explanation. It is highly irregular to
let a witness’ evidence go unchallenged in cross -examination and afterwards argue that
they must be disbelieved. That aside, in his direct evidence he testified that after he was released on bail there was no communication between him and the complainant. Under cross- examination h e went further and contradicted himself by stating that he was
actually informed by the complainant ’s sibling that the complainant laid the rape charge
because Mr. Mokati quarrelled with her (the complainant) for taking his house keys with
the result that he had to break his window.

4 S v Francis 1991 (1) SACR 198 (A) at 204.
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[23] It did not end there, it was expected of the appellant’s mother to support the
appellant’s version regarding the complainant’s voluntary presence at their home
instead, her evidence was contradictory and also riddled with inconsistencies. As
correctly pointed out by the trial court, the inconsistencies in her testimony was a clear
indicator that she was coached to tailor her evidence to align with the appellant’s
version of consensual intercourse.

[24] It is a trite principle that there is no obligation on an accused to prove his
innocence. H aving elected to provide a version of his defence, the appellant’s version
ought to have been reasonably possibly true to warrant an acquittal. In this matter, the
appellant’s version did not pass muster. The contradictions existing in his version and between his version and that of his witness had a bearing on the issue of whether he took the complainant to his home by force and also raped or not . I cannot fault the trial
court’s finding that the defence version when weighed against the State’s overwhelming evidence to determine which version was probable and acceptable, the State’s
accepted version proved the appellant’s guilt beyond a reasonable doubt.

[25] Regarding sentence, in the court a quo it was common cause that section 51(1)
of the CLAA read with Part I of Schedule 2 prescribes a minimum sentence of life
imprisonment for the offence the appellant was convicted of unless there were
substantial and compelling circumstances warranting a deviation from the prescribed sentence.

[26] The appellant is aggrieved that the following factors were not taken into account
by the court a quo as factors warranting a deviation from the prescribed sentence of life
imprisonment namely , his personal circumstances: that at the time of sentencing he was
32 years old, he had passed grade 9, was an unmarried father of four minor children.
He lived with his parents, his children lived with their mother and he worked as a
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gardener earning R2 000.00 every second week ; he was in custody awaiting trial for
eighteen (18) months and that the complainant did not sustain any injuries. It is the
appellant’s case that the trial court also did not mention or consider the element of rehabilitation.
[27] In argument, it is conceded on behalf of the appellant that the offence that he has
been convicted of is deserving of severe punishment it is however contended that life
imprisonment is shockingly inappropriate, a lesser sentence would still meet the
objectives of sentencing that would fit the crime, the appellant and the needs of the society.
[28] The appellant against whom the State proved two previous convictions involving
violence did not testify or lead evidence in mitigation of sentence. On 21 May 2013 he
was sentenced to ten (10) years’ imprisonment for rape. In the same year on 4 September 2013, he was sentenced to two years’ imprisonment for housebreaking with intent to commit an offence unknown to the State. On the other side, the State relied on the complainant’s victim impact statement in aggravation of sentence (Exhibit “D”).
[29] The trial court found that there was nothing exceptional about the appellant’s
personal circumstances to warrant a deviation from the prescribed minimum sentence, they were far outweighed by the aggravating factors prevailing in this matter which
include the degrading manner in which the appellant treated the appellant . He dragged
her to his home whilst insulting her calling her a bitch, he threatened her with violence
when she resisted then subjected her to rape several times during the entire night .

[30] The trial court can also not be faulted for this reasoning, the gravity and
prevalence of gender -based related offences cannot be overemphasized. The appellant
has shown no remorse. The previous sentence for committing a similar offence has also
not deterred him as he committed the present rape whilst on parole.

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[31] These offences cause an outrage in the society which looks up to the courts to
impose sentences which speak to their plight by placing more emphasis on retribution
and deterrence. It is for that reason that the age of the appellant, his employment background and family structure is irrelevant when sentence is considered in the circumstances where the crime is deserving of a prescribed minimum sentence.

[32] It is a gross distortion of facts that the appellant was detained pending trial. The
examination of the record of the proceedings reveal that the appellant was on bail.

[33] The absence of physical injuries does not make rape less heinous. Rape leaves
the victims with life -long emotional and psychological scars. In Maila v The State
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Supreme Court of Appeal quoting A manda Spies ‘Perpetuating Harm: Sentencing of
Rape Offenders Under South African Law’ (2016) (2) SALJ 389 at 399 held that:

“[48] The Legislature has specifically amended the Criminal Law Amendment Act to provide
categorically that the fact that a complainant was not injured during a rape cannot be
considered as compelling or substantial. In terms of s 51(3) (a A) of Act 105 of 1997,
which came into operation in December 2007:

‘When imposing a sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances justifying the imposition of a
lesser sentence:
….
(ii) an apparent lack of physical injury to the complainant;
….
(iv) any relationship between the accused person and the complainant prior
to the offence being committed.”


5 (429/2022) [2023] ZASCA 3 delivered (23 January 2023 ).

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[34] In this matter, the emotional and psychological effects resulting from the
appellant’s actions are set out in the complainant’s victim impact statement. The
incident has impacted her self -esteem and freedom of movement. She was also left
traumatized and her dignity was impaired.

[35] Based on all these reasons, I am of the view that in sentencing the appellant to
life imprisonment, the trial court exercised its discretion properly and judicially. There is
no reason to tamper with the trial court’s judgment regarding the conviction and
sentence. In the result, I would make the following order:

Order

(1) The appeal against conviction and sentence is dismissed.

_____________
NS DANISO, J

I concur

______________
S CHESIWE, J


On behalf of Appellant: Ms S Kruger
Instructed by: Legal Aid South Africa

BLOEMFONTEIN


On behalf of respondent: Adv. L Mkhabela
Instructed by: The Director of Public Prosecutions

BLOEMFONTEIN
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