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IN THE HIGH COURT OF SOUTH AFRICA

(ORANGE FREE STATE PROVINCIAL DIVISION)

Special Review No. : 296/2006

In the special review between:-

THE STATE

and

PAPANYANE LEFOSA

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CORAM: C.J. MUSI J et VAN ZYL J

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JUDGMENT BY: VAN ZYL J

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DELIVERED ON: 30 MARCH 2006

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[1] The accused was charged in the Regional Court held at Batho with the offence of rape. He pleaded not guilty, but after the conclusion of evidence he was convicted of contravening section 14(1)(a) of the Sexual Offences Act, 23 1957, being statutory rape of a girl under the age of 16 years.

[2] The matter was then referred to this Court as a special review in terms of section 304A of the Criminal Procedure Act, 51 of 1977. The acting regional magistrate who presided over the matter states the following as the reason for his request for the special review:

“1. The accused was charged with the offence of Rape.

2. On 21 February 2006 the accused was convicted of Contravention of section 14(1)(a) of Act 23 of 1957.

3. It is respectful submission that the conviction is not correct because the complainant was just about to be twelve years. She was a girl still below the age of twelve years.

4. Because the conviction is not according to the law, I humbly request that the conviction be set aside and the matter be referred back to the magistrate for a correct verdict.”

[3] It is evident from the evidence presented in the Court a quo that the incident occurred during October 2004. A birth certificate in respect of the complainant was handed in as exhibit B, which document reflects that the complainant was born on 5 December 1992. She was therefore only 11 years old at the time of the incident. The trial magistrate, however, made the following findings in his judgment:

“In this matter the Court finds that complainant had some dealings with the accused Mr Lefosa, that were secret. The Court also finds that she was not forced or she was, the sexual intercourse to complainant was not without her consent, it was with her consent. At this stage the Court is satisfied that the State has proved the case against the accused and in terms of Section 261 of Act 51/1977, the accused is found GUILTY to contravention of section 14(1)(a) of Act 23/1957, that is STATUTORY RAPE.”

(See judgment, p. 73 line 14 – 22.)

[4] Although the said finding is not all that clear, it appears that the magistrate, inter alia, came to the conclusion that the complainant consented to the intercourse.

[5] In terms of the common law, a girl under the age of 12 years is conclusively presumed not to be able to consent to sexual intercourse. Even if she does consent, the sexual intercourse still constitutes rape. (See R v Z 1960 (1) SA 739 (A) at 742 D – E.)

[6] The aforesaid finding of the magistrate and his subsequent conviction in terms of section 14(1)(a) of Act 23 of 1957, are therefore not in accordance with justice and the law. The conviction should therefore be set aside as requested.

[7] I may add that in addition to the aforesaid misdirection, the findings that the magistrate made in support of the conviction, are not only contradictory to one another but also contradictory to the evidence. The complainant’s version is to the effect that she did not consent to the intercourse. The version of the accused is one of total denial in the sense that he did not have intercourse with the complainant at all; in fact, according to him he did not see the complainant on the particular day as testified by herself. The magistrate then made the following findings:

“After considering the totality of evidence and the version of the accused Mr Lefosa, the Court finds that the evidence of the State witnesses is probable. The Court finds that there are no inherent improbabilities in the evidence given by the State witnesses. The Court finds that the evidence of the State witnesses is reliable. The Court finds that the evidence of the accused Mr Lefosa, is not reasonable possible true.”

(See judgment, p. 73 lines 6 – 13.)

[8] Considering the said findings, one would therefore have expected that he would have concluded that the sexual intercourse was not with the complainant’s permission. However, despite having accepted the evidence of the complainant, the magistrate then makes the unfounded and contradictory finding that the complainant consented to the intercourse. Although I am of the view that the magistrate correctly accepted the State witnesses’ version, the magistrate’s finding should have been that the complainant did not consent to the sexual intercourse and he should therefore have convicted the accused on a charge of rape.

[9] The next question that arises is how this matter should be dealt with further in the event of the conviction being set aside. In my view, this matter is similar to an instance where the accused was convicted on a competent verdict whilst the evidence proved the guilt of the accused on the main charge beyond reasonable doubt. When the main charge has been proved, the Court is compelled to convict the accused of the main charge. (See S v MAKHUTLA 1969 (2) SA 490 (O) at 492 H and S v MMOLAWA 1979 (2) SA 644 (BH) at 646 F.)

[10] Although it is therefore clear that this Court is entitled to substitute a conviction for a more serious offence than the one recorded in the Court a quo (see S v E 1979 (3) SA 973 (A)), I concur with the view that the accused should be given the opportunity to argue the matter before the Court a quo as to why he should not be convicted on the main charge of rape. (See S v MOKOENA 1984 (1) SA 267 (O) at 269 G – 270 E.)

[11] In the premises the following order is made:

1. The conviction is set aside.

2. The matter is referred back to the Regional Court where the accused should be granted the opportunity to argue the matter before the magistrate as to why he should not be convicted on the main charge of rape.

3. The magistrate must thereupon deliver judgment as seen appropriate by him.

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C. VAN ZYL, J

I concur.

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C.J. MUSI, J

/sp

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