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S v Mosekwane (07/2003) [2004] ZANWHC 1 (1 January 2004)

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IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION


Case No. 07/2003


In the matter between


BENJAMIN MOSEKWANE Appellant


and


THE STATE Respondent



Judgment on Appeal




The accused, Benjamin Mosekwane, then aged 25 years, was charged and convicted of one count of rape of the complainant, an 18 year old young girl, on or about December 2001. In considering sentence, the Magistrates finding was that there were more aggravating than mitigating factors. He consequently imposed a sentence of 15 years imprisonment on the 13 August 2003.


The appellant, who had initially had some difficulty in securing the services of a legal representative, was ultimately assisted by an attorney in the conduct of his defence. Having intimated on sentence that he would be noting an appeal, he consulted his attorney and gave him a special power of attorney dated 14 August 2003 to prosecute an appeal against both conviction and sentence on his behalf.


AD CONVICTION

The grounds of appeal essentially allege a failure of justice, coupled with an unfair trial in that:

  1. The State failed to prove beyond a reasonable doubt that the perpetrator of the rape was the appellant.

  2. The court placed undue reliance on the evidence of a single witness, namely the complainant, whose evidence, it is alleged, was unsatisfactory, full of contradiction, improbabilities and deliberate distortions in material respects.

  3. The learned Magistrate misdirected himself on material procedural aspects of the trial, leading to the appellant not having a fair trial.

  4. The learned Magistrate misdirected himself with regard to a substantive matter in denying the appellant’s request for an opportunity to obtain DNA proof of his innocence.

  5. The denial of the Magistrate of the appellant’s application for an in loco inspection constituted misdirection.

  6. The version of the appellant is reasonably possibly true and he must therefore be given the benefit of doubt and be acquitted.

AD SENTENCE

The appellant submits that the learned Magistrate:

  1. Over-emphasised the seriousness of the offence, failed to find that there were substantial and compelling circumstances which justified the imposition of a lesser sentence, and failed to strike a proper balance in his assessment of the objectives and principles of sentencing.

  2. Failed to consider the mitigating factors abound in the appellant’s circumstances, leading to a sentence that was shockingly inappropriate and so severe no reasonable Court would have imposed it.


In response the State has contended that the point the appellant puts in issue is essentially whether it was proved beyond a reasonable doubt that it was the appellant who raped the complainant. The State relies on the corroboration of the complainants’ testimony by other State witnesses and the independently established medical findings.


With regard to the fairness of the trial with respect to the refusal of a postponement in order that DNA tests might be conducted, the State submits that in this instance the DNA test was being utilised as a delaying tactic. Finally, the application to go on an inspection in loco was properly refused on the basis that it was not material to the issues. The objections by the State prosecutor similarly did not lead to a miscarriage of justice, it was submitted.


On sentence the appellant took issue with the severity of the penalty, whilst the State considered the penalty neither shocking nor inappropriate.


I have given due consideration to the submissions of both parties and have formed the view that:


AD CONVICTION

The evidence of the complainant was consistent in material respects. The version that she related to Mrs. Maria Segone and Tshegofatso Shuping consisted of the same essential facts, i.e.

  1. that she had gone out with friends;

  2. that they were driven in a taxi by the accused whose name she did not know at the time;

  3. that at some point her companions alighted from the taxi and as she sought to alight, the accused drove off with her in the taxi;

  4. that the accused raped her in a bushy area;

  5. that she slept at that place until morning when she walked to the nearest settlement where she was seen by Mrs. Segone;

  6. that she was practically naked as her clothes had been torn during the rape incident;

  7. that Mrs. Segone gave her clothes to wear and taxi fare;

  8. that she found her way home where she reported on the incident to her sister

  9. that she was taken to the police station to make a report, then to a medical doctor for an examination.

I have studied the probabilities of the version of both the complainant and the accused, and have had difficulty with, inter alia, the testimony of the accused in particular as it relates to:

  1. his evidence that as a taxi driver, he demanded to be paid to ferry the group from one point to another. Yet he testified that he was prepared to drive the complainant around Mosenthal for no fee at all;

  2. his assertion that he left the complainant at Mosenthal village. Why would the complainant then decided to sleep in a bush, whereas she could simply have tried to find accommodation in that village;

  3. his evidence of what transpired at Tswara mo o ratang tavern differed in material respects when he cross examined the complainant and when she was cross examined by his legal representative who was acting on the accused’s instructions;

  4. his evidence that at one moment she refused to get out of his taxi, then a few minutes later she, he testified, opened the door whilst the vehicle was in motion.


I have accepted that there were aspects of the complainant’s testimony that disclosed errors of falsehoods. One such falsehood was the matter concerning whether she had previously had sexual intercourse. I accept that what she told the medical doctor was the truth. On the other hand, her assertion that the incident occurred on the 11th November is an obvious error, as the empirical evidence led in court, even on her own version, is that the rape incident occurred in the early hours of the morning of the 1 December 2001, the report to the police was made on the same day, as was the examination by the medical doctor.



On an analysis of the facts and circumstances that led the magistrate to convict the accused, one should have regard to the judgment of Nestadt J in S v Mkohle 1990 (1) SACR 95 (A) where the learned judge considers the effect of contradictions between the state witnesses. That court held that:


Contradictions per se do not lead to the rejection of a witnesses evidence; they may simply be indicative of an error. Not every error made by a witness affects his credibility: in each case the trier of fact has to make an evaluation, taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witnesses’ evidence.”


I furthermore share the view of Diemont JA I S v Sauls 1981 (3) SA 172 (A) as quoted by the respondents in their submissions on the credibility of a single witnesses testimony.


Finally I am in agreement with the court in S v Van Der Meyden 1999 (1) SACR 447, which court held that a court must form its view on whether to acquit or convict on the basis of the totality of the evidence led. Nugent J went on to state that:


There will be cases where the State evidence is so convincing and conclusive as to exclude the reasonable possibility that the accused might be innocent, no matter that his evidence might suggest the contrary when viewed in isolation. “


Further on considering what the proper test for establishing the guilt of an accused is, Nugent J expressed the view that :


The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and eh logical corollary is that he must be acquitted if it is reasonably possibly true that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. 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 of the evidence might 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 of unreliable; but none of it may simply be ignored.

I have, as did the court a quo, taken account of all the evidence led at the trial. Evidence led at a trial cannot be separated into compartments or silos and examined in isolation.


In R v Mthembu 1950 (1) SA 670A at 679 – 680, Schreiner JA expressed the view that he was “not satisfied that the trier of fact is obliged to isolate each piece of evidence in a criminal case and test it by the test of reasonable doubt.”


On this note, we wish to deal with the assertion that a DNA test, or alternatively, and inspection in loco, might have tipped the scales in the appellants favour by creating a reasonable doubt as to his guilt.


I am satisfied that the decision of the Magistrate to refuse to pursue these two avenues was proper in the given circumstances of delays that had already been incurred with respect to the DNA test, and further, with the relevance, almost two years later, of an inspection of the scene of the crime. Not every possible piece of evidence must be obtained in order that a just verdict is reached in a matter. The Magistrate used his discretion to weigh the value of this additional information. It is the trier of fact in the court of first instance, who is best able to assess and evaluate the facts and circumstances, both procedural and substantive, in determining what constitutes a fair hearing.


AD SENTENCE

I have given due consideration to the challenge on sentence. No substantive or compelling circumstances were placed before the Magistrate in the court a quo, justifying a departure from the minimum sentence considerations of Act 105 of 1997.


Despite this, I am of the view that there are substantive and compelling circumstances that justify a reconsideration of the sentence imposed. I have had regard to, inter alia, Rammoko v Director of Public Prosecutions 2003 (1) SACR 200 at 205 D – F where the court stated in relation to the minimum sentences legislation as it pertained to a sentence of life imprisonment:


life imprisonment is the heaviest sentence a person can legally be obliged to serve. Accordingly, where s 51 (1) applies, an accused must not be subjected to the risk that substantial and compelling circumstances are on inadequate evidence, held to be absent. At the same time, the community is entitled to expect that an offender will not escape life imprisonment which has been prescribed for a very specific reason simply because such circumstances are unwarrantedly held to be present. The Presiding officer who must satisfy himself before imposing the prescribed sentence that no substantial and compelling circumstances are present also bears some responsibility.”


The accused was gainfully employed. He has a family of 8 whom he has been supporting as the sole breadwinner. He has a minor child. In aggravation of sentence, he is not remorseful, and the rape was callous and vicious as he violated the person of the complainant and left her to fend for herself in the bush, all alone.


Having considered and weighed these factors, I am of the view that a maximum penalty in these circumstances should be a term of 10 years imprisonment.




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