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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
CASE NO: CA23/2019
In the appeal of:
CONFIDENCE POGISHO Appellant
and
THE STATE Respondent
Coram: Titus AJ et Zwiegelaar AJ
Delivered: This judgment is handed down electronically by circulation to the parties
through their legal representatives' email addresses. The date for the hand-down is
deemed to be 29 January 2026.
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NO
NO
NO
NO
ORDER
On appeal from the Regional Division of North West, Mmabatho (Regional
Magistrate Ms Leshomo sitting as the trial court).
[i] The appeal against both conviction and sentence is dismissed.
Jl.JDGMENT
TITUSAJ
INTRODUCTION
[ 1] This is an appeal against both conviction and sentence. The Appellant was
charged in the Regional Court, Mmabatho, with rape in that the accused contravened
Section 3, read with Sections 1,55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law
Amendment Act (Sexual Offences and Related Matters) 32 of2007 1 ('the CLAA')
read with Sections 256, 257 and 281 of the Criminal Procedure Act 51 of 1977 ('the
Act No. 105 of 1997.
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CPA'), further read with section 51 Schedule 2 Part 1 of the CLAA, as amended, as
well as Section 92(2) and 94 of the CPA.
[2] The State alleged that, on 11 October 2015, near Tshidilamolomo, in this
Court's area of jurisdiction, the Appellant unlawfully and intentionally committed
an act of sexual penetration of the complainant, a female aged 24 years, by inserting
his penis into her vagina without her consent. The State further alleged that Section
51, Schedule 2 Part 1 of the CLAA is applicable as the Appellant penetrated the
victim more than once.
[3] The Appellant enjoyed legal representation in the court a qua and pleaded not
guilty.
[4] On 3 July 2017, the Appellant was convicted ofrape and sentenced on26 July
2017 to life imprisonment. Further, in terms of section 103 of Act 60 of 2000 ('the
Firearms Control Act') the Appellant was declared unfit to possess a firearm.
GROUNDS FOR APPEAL
[ 5] The appeal lies against conviction and sentence and against the trial court's
direction in terms of the Firearms Control Act. The Appellant is presently
incarcerated.
[6] The Appellant contends:
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"AD CONVICTION
I. In convicting the Appellant the Court erred in making the following findings:
I. I. That the State proved the guilt of the Appellant beyond a reasonable
doubt;
1.2. That there are no improbabilities in the State's version;
1.3. That the State witness gave evidence in a satisfactory manner;
I .4. That the evidence of State witnesses can be criticized on matters of
detail only, whereas the evidence was contradictory in material
respect;
1.5. That certain evidence was proved or testified by the state witnesses.
2. In convicting the Appellant the Court erred in failing to:
2.1. Property analyse or evaluate the evidence of the State witnesses;
2.2. Property consider the improbabilities inherent in the State's version.
3. In convicting the Appellant the Court erred in in the following respects:
3.1. Rejecting the evidence of the Appellant as not being reasonably
possibly true;
3 .2. Making no comment on the evidence tendered by the Appellant;
3 .3. Accepting the state evidence as being true in all material aspects.
AD SENTENCE
4. The learned Regional Magistrate erred in not finding that there are substantial
and compelling circumstances warranting deviation from the prescribed
minimum sentence of life imprisonment.
5. The learned Magistrate failed to take or adequately take into account the
following:
5. I. Personal Circumstances
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5. I. I. The Appellant is thirty six years old and therefore stands.
good chances of rehabilitation;
5.1.2. He (the Appellant) is blessed with three (3) children aged
nine (09), six (06) and two (02) years respectively. Their
mother is unemployed;
5.1.3. At the time of the arrest he (the Appellant) was running a
tuck-shop. He was able to raise an amount of two thousand
rand (R2000-00) per month;
5.1.4. Prior to his (the Appellant) arrest, his employment partner
and three children were depending on him for financial
support;
5.1.5. His (the Appellant) father is suffering from stroke and
mother from hypertension and related diseases;
5.1.6. He (the Appellant) is responsible for taking care of the
family live-stock as he is the only male amongst female
siblings;
5. I. 7. Both the Appellant and the Complainant have mended the
fence and are now on speaking terms;
5.1.8. He (the Appellant) has three (3) previous convictions and
one (1) ofrobbery." (sic)
[7] It is trite that a comi of appeal should be slow in interfering with the findings
of a trial court unless the appeal court finds that the trial court's findings of fact and
credibility are vitiated by inegularity, or unless an examination of the record reveals
that those findings are patently wrong. The trial court's finding of fact and credibility
are presumed to be correct because the trial court, and not the court of appeal, has
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had the advantage of seeing and hearing the witnesses and it is in the best position
to detennine where the truth lies2.
CONVICTION
[8] The trial court correctly applied the test for proof beyond a reasonable doubt.
The evidence of the State witnesses, assessed in its entirety, was coherent and
consistent on material aspects. Minor discrepancies were immaterial and did not
unde1mine the overall reliability of the State's case.
[9] The improbabilities alleged by the Appellant are speculative and are not
supported by the record. The trial court was entitled to accept the State's version as
credible and probable.
[10] The trial court made sound credibility findings in respect of the State
witnesses, which are borne out by the record, particularly in regard to the evidence
of Mr Marumolo. Their evidence was not contradictory in any material respect, and
the criticisms advanced by the Appellant relate to peripheral details.
[11] The argument advanced for the Appellant that the complainant's physical
injuries do not indicate sexual assault is of no merit. The State's case does not rest
solely on the presence of these injuries, but rather on the complainant's clear and
2 S v Jackson 1998(1) SACR 470 (SCA).
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consistent testimony, corroborated by witness evidence and the surrounding
circumstances. The complainant's painful throat and scratch marks are relevant not
as conclusive proof of sexual violation, but as physical evidence consistent with her
account of being forcibly restrained and assaulted. When considered together with
the complainant's evidence and the broader factual matrix, the injuries lend weight
to the reliability of her version and cannot be dismissed as insignificant.
[12] Further, the submission that the complainant had other recent sexual partners,
and that it was not the Appellant who penetrated her, cannot avail him in the light of
the complainant's clear, consistent evidence that identifies the Appellant as the
perpetrator.
[ 13] The reasoning of the trial comi reflects a proper and balanced evaluation of
the evidence. The court weighed the probabilities, considered the contradictions, and
applied the correct legal principles.
[14] Having considered the grounds of appeal, this Court finds no misdirection in
the trial court's reasoning or its evaluation of the evidence. The conviction is firmly
supported by both the record and the law.
[15] This Court cannot fault the Regional Magistrate's judgment on conviction.
The medico-legal evidence is consistent with the complainant's account of forceful
sexual assault. By contrast, the Appellant's version is a simple bare denial. On the
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facts, his account is so far removed from the general probabilities that it cannot
reasonably be ttue.
[16] Viewed holistically, the Appellant's evidence was improbable and rightly
rejected. This Court agrees with the trial court's conclusion. The Appellant has failed
to persuade this Court to uphold his appeal against conviction.
SENTENCE
[ 17] It is trite that sentencing is inherently a balancing exercise where the
sentencing court weighs aggravating factors on the one hand against mitigating
considerations on the other. The greater the weight of aggravating factors, the more
severe the sentence should be, and the less justification there is to depart from a
prescribed minimum sentence. Conversely, where mitigating factors predominate, a
more lenient sentence may be appropriate, and the court may be inclined to deviate
from the prescribed minimum. Where the scales are evenly balanced, judicial
discretion must be exercised with due regard to the fourfold considerations of the
crime, the offender, the interests of the community, and the impact on the victim;
tempered by such mercy3 as may be warranted by the circumstances. Where a
minimum sentence is applicable, it must be imposed, and in such cases, an appellate
court should be slow to interfere with the sentence imposed.
3 S v Rabie 1975 ( 4) SA 855 (A)
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[18] This Court has carefully considered the sentence imposed by the Regional
Magistrate. Her approach was holistic, taking into account the nature of the crime,
the interests of the community, and the personal circumstances of the Appellant. The
Regional Magistrate found the particular circumstances of the Appellant neither
substantial nor compelling. The principles of prevention, retribution, rehabilitation,
and deterrence are clearly reflected in her reasoning. She properly assessed whether
the prescribed minimum sentence was proportionate to the offence. All relevant
factors were duly weighed, established legal principles were applied, and
consistency with precedent was maintained.
[19] The Regional Magistrate provided cogent justification for imposing the
prescribed minimum sentence. The Appellant spurned previous opportunities for
rehabilitation. In this case, the imposition of life imprisonment cannot be said to
induce a sense of shock. Sexual violence against women constitutes a profound
violation of their dignity, bodily integrity, and security, and, it is trite, the legislature
has, respectfully, rightly ordained that, absent compelling circumstances, the
prescribed minimum sentences must be imposed.
[20] In the present matter, the complainant was raped and assaulted in the street
by the Appellant, her former partner, then abducted by him and held captive in his
house, then repeatedly raped during the course of an evening. Such conduct reflects
a sustained and calculated disregard for the victim's autonomy and humanity.
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[21] In these circumstances, the Court cannot countenance deviation from the
statutory minimum, for to do so would undermine both the detenent and retributive
purposes of the sentencing regime and fail to reflect the seriousness with which
society views such egregious offences. This Court accordingly finds no irregularity
or misdirection in the sentence imposed by the court a quo.
[22] The Court cannot find fault with the Regional Magistrate's judgment on
conviction. The Appellant's appeal on his sentence of life imprisonment suffers the
same fate. The Court is not persuaded that the grounds raised by the Appellant
wanant any interference in the sentence imposed. The appeal must therefore fail.
[23] In the circumstances, the following order is made:
ORDER
[i] The appeal against conviction and sentence is dismissed.
TITUSAJ
ACTING JUDGE OF THE WGH COURT
NORTH WEST DIVISION
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APPEARANCES:
For Appellant:
For Respondent:
Judgment Reserved:
I concur,
ZWIEGELAARAJ
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION
Mafikeng Justice Centre
MAHIKENG
Adv Tlatsana
NDPP
MAHIKENG
1 lApril 2025
Judgment was delivered to the parties by email on 29 January 2026
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