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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE  HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No.: A7412015

In the matter between:

ISHMAEL LEBAKENG                                                                                                Appellant

and

THE STATE                                                                                                              Respondent

CORAM:                           MOLOI, J et MOHALE, AJ

HEARD ON:                     12 OCTOBER 2015

DELIVERED ON:             13 OCTOBER 2015

MOLOI, J

[1] The appellant came before us on appeal against .both his conviction and sentence on a charge of contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act No. 32 of 1997 read with section 51 of the Criminal Law Amendment Act No. 105 of 1997. The appellant was convicted of rape of a 5 year old female and sentenced to life imprisonment by the Regional Court. The court a quo granted him leave to appeal the sentence only but by virtue of section 309 (1) (a) of the Criminal Procedure Act No 51 of 1997 he had an automatic right to appeal both the conviction and the sentence imposed.

[2] Central to   the   appellant's  basis   of  appeal against    the . conviction was the question of identity of the perpetrator and whether or  not the complainant's private  part     was penetrated. The  evidence of the complainant was that one Khiba pulled  down her panty while standing and putting a stick between  her legs. The appellant was fully clothed. She had to tell her  grandmother what happened only when she was beaten up by her. First she said one P. did it to her but later when  the grandmother  realised she was lying she then said it was  Khiba. Khiba is another name the appellant is known by. The grandmother suspected a man must have sexually  assaulted  the  complainant  because  she  noticed some fluid on the  complainant's thighs and believed it was semen.

[3] According to the evidence this incident happened at the complainant's friend's, M.’s, house where she had gone to play. P. is M.’s elder sister. They were all in the house. According to Dr. Coetzee when she examined the complainant she could not find any genital injuries on the complainant though she noticed some dried fluid on the labia majora and some redness at five past seven o'clock position. According to Dr Coetzee the redness she saw could be caused by various factors e.g. improper hygiene,  infection and scratching by the complainant herself. The dried fluid that she noticed could even be a discharge from the complainant herself as it is normal in children of her age

[4] The evidence of the appellant was that he and his wife were visiting another place on the day in question and that he was nowhere near the complainant. This evidence was corroborated by P.. The magistrate rejected this evidence; however, without dealing with the reasons for his rejection thereof save for saying the appellant should have called his wife to corroborate his alibi. The magistrate also allowed the gaping contradictions in the complainant's evidence justifying them on the ground of her tender age.

[5] Evidence of identification must always be treated with caution: S v Mthethwa. 1972 (3) SA 766 (A) at 768 A-C; S v Shekelele & Another 1953 (1) SA 636 (T). In this matter the complainant, when confronted by the grandmother, said it was P. that handled her private part. Upon been given a beating she said it was Khiba. It was, however, not determined which Khiba she  was referring to. The appellant's evidence is that he was not at the scene at all and this finds corroboration in P.'s evidence but was rejected. Evidence of the appellant can only be rightfully rejected if it is found to be false beyond a reasonable doubt: Rv . Matsoso  1950  94)  SA  178  (0)   at  185F-G.  Also

R v Difford  1937 AD at 373. In S v Kubeka 1982 (1) SA 534 G12 at 537 D-H the following was stated:

". . .whether I subjectively disbelieve him is, however, not the test. I need not even reject the state case in order to acquit him. I am bound to acquit him if there exist a reasonable possibility that his evidence may be true."

[6] In the light of the aforegoing it is clear that the trial court erred in material respect to convict the appellant of statutory rape. The evidence before the trial court falls far too short to constitute proof beyond a reasonable doubt. In the light of this finding it will be unnecessary to deal with the sentence imposed.

[7] In the result the following orders are made:

7.1     The appeal is upheld

7.2     The conviction on a charge of contravening section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No 32 of 1997 read with section 51 of the Criminal Law Amendment Act No. 105 of 1997 is set aside and is substituted by an order that the Appellant is found not guilty and is discharged.

_________________

K. J. MOLOI, J

I concur.

_________________

MOHALE, AJ

On behalf of the Appellant:              Adv. SS Kambi

                                                                     Instructed by:

                                                                     Bloemfontein Justice Centre

                                                                     BLOEMFONTEIN

On behalf of Respondent:                    Adv L Bontes

                                                                     Instructed by:

                                                                     Director of Public Prosecutions

                                                                     BLOEMFONTEIN

 

 

 

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