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

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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, PRETORIA

CASE NO: A887/201 4

REPORTABLE: YES /NO		

OF INTEREST TO OTHER JUDGES:YES/NO  REVISED

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:..4/6/2015......... .

NA URE	DATE

In the matter between:
MOLEFI STEPHEN KGOSIEMANG			APPELLANT

and

THE STATE	RESPONDENT

J U D G M E N T

MALI AJ

[1]	This is an appeal against conviction and sentence.

[2]		On 16 August 2011 the appellant was convicted of one count of rape of  a […..] year old girl in Klerksdorp Regional Court.
[3]	The sentence was in terms of the Criminal Law Amendment Act 105

of 1997 ("The Act"). The appellant was sentenced to life imprisonment. The court a quo found that there were no compelling circumstances warranting a deviation from the minimum sentence.
[4]	The appellant has an automatic right of appeal in terms of section 10 of the

Judicial Matter Amendment Act 42 of 2013 as he was sentenced to imprisonment for life by a regional court under section 51(1) of the Act.

AD CONVICTION

[5]	The evidence on which the appellant was convicted was of three state witnesses.

5.1.	L. M.

The complainant's aunt L. M. testified that the complainant was her niece and she knew the appellant as he was her sister's boyfriend. She noticed a discharge on complainant and questioned her about it. The complainant told her that she slept with the appellant. She then informed her mother, complainant's grandmother as she was the  person in the nearest proximity then. She also testified that the mother of the complainant was taking intoxicating liquor.

5.2.	D. M.

D. M., testified that she was complainant's mother. She stated that the appellant was her ex-boyfriend. She used to sleep with him on the mattress in the same room with the complainant and the

complainant would sleep on the floor. She also testified that she used to drink alcohol and that she used to drink and pass out as the appellant provided her with dagga. She further stated that at one point in time when she bathed the complainant she noticed some strange discharge from her vagina. She then telephoned the appellant for advice and the appellant told him he was not aware of it. Thereafter the appellant moved back to his place.

5.3.	The complainant was [……] years old when she testified. She stated that in 2008 she was sleeping in a room with her mother and the appellant who was her mother's boyfriend. She was sleeping on the floor and the appellant and her mother were sleeping on the mattress. The appellant removed her  from the floor and put her in mattress, put a pillow on her face and suffocated her. The appellant then opened her legs and raped her. The complainant further testified that the appellant raped her on three different occasions using the same modus  operandi. All the time her mother was asleep as she would always be very drunk. When her aunt questioned her about the discharge found on her, the complainant informed her, that the appellant slept with her. She stated that she always wanted to report the incidents to someone. The matter was then reported to the police.

[6]     The appellant in his testimony denied that he raped the complainant. He testified that he occasionally bought alcohol for himself and the complainant's mother. He denied providing D., the complainant's mother with dagga. He stated that the reason he was accused of raping the complainant is because he was convicted for rape in 2001.

[7]      He further testified that when the complainant was initially confronted by her mother she indicated that there was a stage she used to play with young boys.
[8] 	Counsel for the appellant contended that the complainant failed to report the alleged rape on time and that she had vendetta against the appellant as she would witness the appellant assaulting her mother. She further submitted that the evidence of the complainant is of a single witness and she failed to report the alleged rape immediately after it occurred and that the version of the appellant is reasonable possible true.
[9] 	The Counsel further submitted that the medical report showed that there were no injuries noted, other than a perforated hymen, there were no signs of healed injuries in the form of scaring bumps or clefts. The appellant's counsel relied on S V MM 2012 (2) SACR 18 (SCA) p24 paragraph [15]-[16] Wallis JA found:
"[15] As appears to be an increasing feature of cases such as these, the doctor's report was simply handed in by consent and the doctor was not called to give evidence. That practice is, generally speaking, to be deprecated. It means that there is no opportunity for the doctor to explain the frequently subtle complexities and nuances of the report; to clarify points of uncertainty and to amplify upon its implications and the reasons for any opinions expressed in the report. That may make the difference between a conviction
and an acquittal, or perhaps a conviction on a lesser charge."

[10] Appellant's counsel further referred to S v Shackwell 2001 (2) SACR 185 (SCA) wherein the court cautioned against the rejection of an accused's

version solely on the ground that it is improbable. Brand AJA said at 194 g-i: "It is trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version is true. If the accused's version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused's version against the inherent probabilities. It cannot be rejected merely because it is improbable, it can only be rejected on the basis of inherent probabilities if it can be so improbable that that it cannot reasonably possibly be true."

[11] 	In evaluating the evidence of a single witness, it is not necessary for the evidence of that witness to be clear and satisfactory in every material respect as previously stated in R v Mokoena 1932 OPD 79 and 80; R  v Ganie 1967 (4) SA 203 ( N) 206 (H). In S v Sauls and
Others 1981(3) SA 172 (A) at 180 E-G, the appellate division remarked as follows:
"The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told".

[12]   I am satisfied that in evaluating the evidence the court a quo   took into consideration that the complainant  is a single witness and was

very young at the time of the incident and confirmed that her evidence had to be looked at with caution. In his judgment the Magistrate at page page 60 of the record paragraph 20-25 and page 61 paragraph 1-5 states:
"I am mindful of the fact that in this case I am dealing with a child
witness and in addition as to the incident of rape, she is a single witness. Therefore I must approach the evidence of the complainant in  this  matter  with caution.  As child witness I am mindful of the

warnings which were issued in R vs Manda . . .. Among other reasons two were given as the reason why caution must be taken when dealing with the evidence of the children. The first one being the fact that children are imaginative. The other reason being that children are easily suggested to. In as far as the first reason of imaginativeness I am of the view that danger is not looming here in this case. It cannot be said that this child imagined what happened to her in the light of Exhibit B, J 88 which indicate that someone penetrated her vaginally".

[13]     The complainant young as she was made it clear that she harboured a desire to tell someone about the rape and when the opportunity presented itself she did not hesitate to report to her aunt. The complainant further testified in a satisfactory manner, she gave a clear account of what happened to her without any contradictions.
[14]    The court a quo also took into consideration that the complainant did not report the rape immediately. In this regard the trial court relied on

Sexual Offences Act 32/2007 ("the Act") wherein it was stated that the Court cannot draw an adverse inference on the ground that the victim did not report immediately.
[15]    The appellant's version amounts to a bare denial and while there is no onus on him to prove his innocence, it is necessary to examine his version against the probabilities of the case in order to ascertain whether his version is reasonably, possibly true. I do not agree with the appellant's counsel that by the mere fact that appellant denies the allegations, the incidents of rape as alleged could not have happened.
[16]   Based on the conspectus of the evidence, I cannot find any fault with the reasoning and conclusion of the Court a quo. I find that the cumulative effect of all the evidence points relentlessly to the appellant as the person who raped the complainant. Consequently I am satisfied that the appellant's guilt was proved beyond reasonable doubt and that the conviction must stand.

AD SENTENCE

[17]     Counsel for the appellant submitted that that the trial court did not take into consideration personal circumstances of the appellant; that he was 34years old single and unemployed. He also had a daughter who stays with her mother. The Counsel further submitted that the complainant suffered no injuries as a result of rape. The appellant's counsel relied on S v MM 2011
(1)	SACR 510 (GNP) wherein the appellant was convicted on a single count of rape following his plea of guilty. He raped his 12 year old stepdaughter in the family home. He threatened her not to scream and then forcing himself
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upon her. On appeal the sentence of life imprisonment was set aside and a sentence of 12 years imprisonment was imposed.
[18] In casu the facts are very distinguishable; the appellant raped the complainant repeatedly whilst sleeping in the same room with her mother. This is subsequent to the appellant having intoxicated and drugged the complainant's mother. The complainant's mother would have protected her. The appellant is not remorseful and he is a repeat offender. Furthermore in the normal circumstances the appellant is expected to also defend the complainant as he would have been regarded as her stepfather.
[19]   Counsel for the respondent submitted that in deviating from the prescribed sentence, account ought to be taken of the fact that the crime in casu has been singled out for severe punishment and the sentence that the Court imposed in lieu of the prescribed sentence is required to "be assessed paying due regard to the bench mark which the Legislature has provided". In this regard the Counsel relied on S v Malgas 2001 (1) SACR 469 (SCA) at 482 f (para [25 J.])
[20]    Counsel for the respondent further contended that the aggravating factor in this matter is the fact that the appellant repeatedly raped the victim. The imposition of life imprisonment is an appropriate sentence.
[21] 	It is trite law that rape of a young child such as the complainant is always an extremely serious matter, even in the apparent lack of physical injury to the complainant. With respect any form of rape is a serious violation.
[22] 	In S v Matyityi 2011 (1) SACR 40 (SCA) at 53 d-g1 the court remarked as follows: "As Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of State, owe their fealty to it. Our

constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypothesis that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order’’.
[23] 	In Sv Mosethla 2014 JDR 1282 (GP)2 the court echoed the same sentiments in S v Chapman3 1997(3) SA 341 (SCA) that;
"The courts are under a duty to send a clear message to the accused, to other potential rapists and to the community: We are determined to protect the equality, dignity and freedom of all women, and we shall show no mercy to
those who seek to invade those rights".

[24] 	Having regard to the above I am not persuaded that the Court a quo misdirected himself in any relevant respect in imposing the sentence of life imprisonment.
[25]	In the circumstances, I make the following order:

1. The appeal against conviction and sentence is dismissed.

MALI AJ

ACTING JUDGE OF THE HIGH COURT OFSOUTH AFRICA

GAUTENG LOCAL DIVISION,

PRETORIA

	

JUDGE OF THE HIGH COURT OFSOUTH AFRICA

GAUTENG LOCAL DIVISION,

PRETORIA

APPEARANCES:

Counsel for the Appellant

Instructed by

Counsel for the Respondent

Instructed by

Appeal Heard

Judgment Date

Adv. L Augustyn

Pretoria Justice Centre

Adv. M.J. Nethononda

Office of the Director of Public Prosecutions

02 June 2015