IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:                              YES/NO
Of Interest to other Judges:   YES/NO
Circulate to Magistrates:        YES/NO	
										
Case number: A81/2021

In the matter between: 

THABO JOHANNES MACHESA						       1st Appellant 

THEMBA MFEQANE			 				      2nd Appellant

and
 
THE STATE			        				    		       Respondent

JUDGMENT BY:                         MHLAMBI J, et DE KOCK, AJ 

HEARD ON: 			         25 OCTOBER 2021		       

DELIEVERED ON: 			        11 NOVEMBER 2021       

MHLAMBI, J

Introduction 
[1]	The appellants were convicted and sentenced in the Regional Court on a charge of rape and were each sentenced to life imprisonment. Aggrieved of both the conviction and the sentence, they lodged an appeal to this court on the following grounds:

Ad Conviction: 
a)	The court erred in finding that the state proved its case beyond a reasonable doubt;
b)	The court erred in accepting the evidence of the state witnesses despite inherent material contradictions;
c)	The court erred in rejecting the evidence of the appellants as not being reasonably possibly true.

Ad Sentence:
a)	The court erred in not finding that substantial and compelling circumstances were present to enable it to deviate from imposing the prescribed minimum sentence;
b)	The rape was not of a serious nature;
c)	The court failed to take into account that the first appellant was a first offender and had no previous convictions;
d)	The sentence of life imprisonment was inappropriate in the circumstances.
  
[2]	In her judgment on conviction, the learned magistrate stated that it was not in dispute that the complainant was threatened with knives and later raped by two perpetrators inside an outside toilet. What was in dispute was whether both appellants sexually penetrated the complainant without her consent and the place where the first appellant was found at the time of his arrest: whether inside or outside the toilet. As the state and the defence presented mutually destructive versions on the points in disputes, she had to evaluate the evidence in its totality.

[3] 	As to how evidence should be evaluated, it was stated in State vs. Trainor, supra, that “A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable, the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence, of course, must be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach of the magistrate is illogical and wrong.”  

[4]	The learned magistrate found that, although the complainant was under the influence of liquor and “off balance” as a result, the complainant was still aware of what was happening in her immediate surroundings and explained with sufficient clarity what took place during that night, up to the time the police arrived and found her and the first appellant half naked in the toilet. Although the complainant reported to the police on their arrival that she was raped by both appellants, the second appellant was not found on the scene. Both the appellants’ versions were found by the learned magistrate not to be reasonably possibly true. 

[5]	The second appellant’s version was that he was not found on the scene of the crime. He stated in his testimony that he was at the tavern where the complainant was, but left earlier at about 21h00 to go home as he was tired. He denied that he threatened the complainant with a knife and that he raped her. He stuck to his version right through cross-examination and his evidence was not annihilated at all by the cross-examination. The question that arises is whether there is sufficient evidence that links the second appellant to the crime 

[6]	The second appellant’s conviction is based on the complainant’s evidence that he was the one who started to rape her, having threatened her with a knife. The anonymous report made to the police that someone was screaming and crying in the toilet made the court a quo to “I can thus only deduce that from the time frame provided from the actual report being made to the police and their arrival at the scene that accused 2 must have preceded accused 1 as if that had not been the case the police would have found accused 2 on the scene and not only accused 1. 
	
	There must thus have been a suitable time lapse in time for accused 1 to be found in the toilet and this fits in perfectly with the evidence of the complainant that accused 1 had only just started penetrating her before their arrival. I find her evidence to be satisfactory in material aspects despite her being a single witness and as her evidence is sufficiently corroborated by two police officers and the court has as per evaluating the contradictions of her evidence already applied caution to her evidence despite her also being from a tavern at that time of the night.” 

[7]	It is indeed so that the second appellant was known to the complainant and that on the night in question they were drinking liquor at the same tavern. The complainant’s evidence is the only evidence that links the second appellant to the rape. The question that arises is whether the complainant’s evidence is reliable and clear enough to lead to the second appellant’s conviction. In my view, it is not, for the reasons set out herein below. 

[8]	Contrary to the learned magistrate’s reasoning, it is not known how much time was spent by the complainant in the toilet or how long was she in the toilet before the police arrived. It is also not clear how long did it take the police to arrive at the crime scene after they received the report of what was happening in that toilet. It is also not clear for how long was she and the first appellant in the toilet before the police arrived. As regards penetration, she testified that when the police arrived on the scene, the first appellant had only just started to penetrate her. 

[9]	The J88 medical report was completed by an authorised medical practitioner who reported as follows:
	“Clinical findings:
	No visible fresh injuries noted. She reported no physical assault by two perpetrators. 

	Clinical evidence of drugs or alcohol:
	Tired, sleepy, she states that she had a lot of Castle lite. 

	Conclusions:
	Absence of injuries does not rule out the alleged assault.

	Gynaecological examination:
	…the further examination of the clitoris frenulum, of clitoris urethral orifice… all intact. Scarring nil as well as bleeding, tears or increased friability. The hymen configuration is intact imperforated with no further abnormalities.

	Conclusions:
	No signs of penile virginal penetration. All structures are intact. Still virgin.

	Findings: 
	Does not rule out the alleged penetration by two perpetrators. When asked what happened she said she cannot remember because she was drunk. Then her friend told her that two perpetrators raped her.” 

[9]	The complainant in her evidence gave two tales. She testified in her evidence in chief that, as she was “exiting the gate” and leaving the tavern, she was called by the two appellants as they came out of the tavern. She had walked slowly to wait for them and had no problem walking with them. They walked for a distance when, three houses from the tavern she, got pressed and wanted to go back to the tavern to relieve herself. The appellants told her that the tavern was too far and she should go to a house nearby and she could see the toilet from the gate. The toilet was a brick structure separate from the main house. She decided to go to this toilet. When she was about to close the door of the toilet, she realised that the appellants had followed her. On asking the second appellant why he was entering the toilet, an argument started and he pulled out a knife, tore her belt, undressed and raped her. 

[10]	During cross-examination she confirmed the contents of her written statement to the police that the appellants, after she had declined their offer to buy her liquor, “came back and used force, threatening me with knives and took me with them to a house nearby, house number 823, Slotha and they took me in the toilet.” They forced her to go with them to the toilet. She also testified that whilst she was smoking outside the tavern, it is when they came and started forcing her to come along with them to the toilet. “Themba..(the second appellant) pulled out a knife, saying to me that we should go to a certain white house, but then he saw a toilet, then they change and said we should enter at that yard where the toilet was… I was walking in front as they were behind me, forcing me to go with them to the toilet.” 

[11]	Her evidence is to the effect that the second appellant penetrated her and had sex with her. When he was finished, the first appellant also had sexual relations with her. In my view, the findings in the medical report militate against the complainant’s evidence that she was sexually penetrated by two individuals as she described. Furthermore, her evidence cannot be relied upon as she testified that she was drunk and staggering. On being confronted with the statement in the medical report that she did not know the perpetrators according to her friends, she responded by saying “no comment.” She was asked what influence did her consumption of liquor that day have on the case, she responded that “When somebody had consumed alcohol in most cases they do not remember as to what happened… I was drunk and I was staggering, however my mind was not staggering, I could see. I was drunk to a point that I was staggering, Your Worship, but my mind was not staggering I was able to see.”

[12]	The complainant was a single witness and her evidence should be approached with caution, more especially as she herself stated that she was drunk and staggering. The contradictions and inconsistencies in her evidence make her not to be a reliable witness. The second appellant’s version cannot, in the circumstances, be rejected as not being reasonably possibly true. I find that the second appellant’s version is reasonably possibly true and that the state failed to prove a case against him beyond reasonable doubt. Consequently, the second appellant is entitled to the benefit of the doubt. His appeal against conviction should succeed and he is therefore entitled to an acquittal. 

[13]	The first appellant’s evidence was shaky and improbable as he could not explain his presence in the toilet with the complainant, both being half naked when the police arrived. His evidence is also strange in the sense that he testified that the complainant warned him about the approaching police whilst she was in the toilet and he stood outside. How the complainant could have seen the police at that juncture is mind-boggling. Why should the complainant have warned him of the police when he innocently stood by outside the toilet? His explanation that the police were looking for him before his arrest is also far-fetched. I agree with the learned magistrate that the police gave a good account of the events at the toilet. Their evidence remained intact as they related how they arrived on the scene where they found the second appellant and the complainant half naked in the toilet. The court was therefore justified in dismissing his version as not being reasonably possibly true. The conviction should therefore stand. 

[14]	The second appellant knew that the complainant was a lesbian and, that notwithstanding, he proceeded to penetrate her. The complainant was terrified and frightened so much so that she screamed. She was at the time a virgin. There is therefore no justification for him to have subjected the complainant to the torture and torment in the toilet. However, the sentence of life imprisonment is inappropriate in the circumstances as the discretionary minimum sentence for rape in terms of section 51 (2)(b)(i) of Act 32 of 2007 is imprisonment for a period of not less than ten (10) years. I am satisfied that the court a quo duly considered the first appellant’s personal circumstances and other factors in mitigation of sentence. 

[15]	Consequently, the following order is made:

Order

1.	The first appellant’s appeal succeeds in as far as the sentence is concerned. The conviction stands and the sentence of life imprisonment is set aside and substituted with the following sentence:
1.1	First appellant is sentenced to ten (10) years’ imprisonment which is antedated to 31 May 2019. 
2.	The second appellant’s appeal succeeds. Both the conviction and the sentence of life imprisonment are set aside and the second appellant is acquitted on the charge of rape.      

_______________
J.J MHLAMBI, J

I concur, 

_______________
D. DE KOCK, AJ

Counsel for the appellant:          Adv. V Abrahams 
Instructed by: 			        Legal Aid SA 
			        49 Charlotte Maxeke Street 
			        Bloemfontein 

Counsel for the respondent:       Adv.M Moroka	
Instructed by: 			        Director of Public Prosecutions
			        Waterfall Building
			        Bloemfontein