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CA 243/03

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

JOB MATHULE Appellant

and

THE STATE Respondent

JUDGMENT

FULL BENCH APPEAL

MAFIKENG

MOGOENG JP, HENDRICKS J, LANDMAN AJ

DATE OF HEARING: 12 December 2003

DATE OF JUDGMENT : 19 March 2004

Counsel for Appellant:: Mr J Roothman

Counsel for Respondent:: Adv. Mogoeng

HENDRICKS J:

INTRODUCTION

The Appellant stood trial in the Regional Court on a charge of rape and was convicted. The proceedings were stopped and the matter was referred to the High Court for sentence in terms of the provisions of Section 52 (1) (b) of the Criminal Law Amendment Act, Act 105 of 1997. The complainant was a girl of 7 years of age, and therefore under the age of 16 years. The matter was heard in the High Court by Hendler J. He found that the proceedings in the court a quo were in accordance with justice and imposed a sentence of life imprisonment.

The Appellant thereafter applied for leave to appeal and Hendler J granted him leave to appeal against the conviction as well as the sentence imposed on him. This then is the appeal to the Full Bench of this Division.

THE FACTS

The Complainant, D A M, testified that on 29^th September 2001 she, together with other friends, amongst whom was R M, swam in a bath outside the house where R stays. Whilst they were swimming the Appellant who is commonly known as “Jobi” came to them and instructed the Complainant to accompany him to his place.

She was unwilling to go along with the Appellant but since she suspected that he wanted to send her to the shops, she then complied. This happened at approximately 4 pm.

The Appellant took the Complainant to his place of residence and after entering the house he locked the door. He then took her to his bedroom, instructed her to lie down on the bed. He undressed her of her panties and he also undressed his trousers. He then inserted his penis into her vagina and he then did “funny things” to her. She explained that he raped her. After being raped, she then went back to R and the others.

She could not walk properly because she experienced pain in her vagina. She was also bleeding from her vagina. She made a report to her friend R about the incident. At a later stage she also mentioned to her sister Matita what the Appellant did to her.

During the cross examination and on questions put by the Court, the Complainant said that she told the nurses at the clinic that she got injured in her vagina by a stick whilst she was swimming with her friends. The nurses did not believe her story and she then told them that it was the Appellant who raped her. She said that it was R who told her sister Boniswa, that she (Complainant) got injured by a stick.

R, the friend to Complainant who was also 7 years of age at the time, corroborates the evidence of the Complainant in material respects. She confirmed that whilst they were swimming, the Appellant came and took the Complainant by her hand and pulled her to his place. She also testified that when the Complainant came back from Appellant’s place, she was crying and she “urinated blood”.

She furthermore confirmed the report that the Complainant made to her relating to the rape incident. Her evidence is however silent about the Complainant being injured by a stick in her private parts.

THE CONVICTION

I have had the benefit of reading the judgment of my brother Landman AJ, who is of the view that the State failed to proof the guilt of the Appellant beyond reasonable doubt. It is important to deal briefly with the grounds relied on by Landman AJ for his finding that the State failed to prove the guilt of the Appellant beyond a reasonable doubt.

They are whether:-

(1) the Complainant was dressed when the Appellant took her to his parental home;

(2) the Complainant’s vagina was injured by a stick or the Appellant’s penis; and

(3) the Complainant swam on her return from the Appellant’s place. I deal with these issues below.

My Brother Landman says that “the evidence is that she (complainant) left with the appellant while naked. There is no evidence that she dressed before going with the Appellant although she says she thought he might send her somewhere. She changed her clothes after the children stopped swimming. If she was not wearing clothes, how is it that the Appellant removed her panties?”

I am in respectful disagreement with my learned Brother. There is no evidence on record that the Complainant was naked when she left with the Appellant. What happened is that the Prosecutor asked the Complainant what she was wearing as she was swimming. She replied that she was naked. The Prosecutor then immediately asked the Complainant how the Appellant took her to her home and in response the Complainant said that the Appellant pulled her (See Record: pages 33 - 34).

At no stage did either the Prosecutor, counsel for the Defence or the Court ask the Complainant or even R whether or not the Complainant was still naked when she went with the Appellant to the latter’s home. Her testimony regarding being undressed by the Appellant at the time of the rape, clearly shows that she must have put on her clothes before she left with the Appellant. Although she is very young, it is inconceivable that she could have thought that the Appellant wanted to send her to the shops (as he used to do) while she was naked. I am satisfied, therefore, that the criticism of the Complainant’s evidence, based on this ground, is with respect without substance.

Upon the return of the Complainant, she told R about the funny things that the Appellant did to her in the bedroom. The Complainant was then bleeding from her private parts and crying. Apart from what transpired under the Complainant’s cross-examination, there is no suggestion by any of the witnesses called by the State or the Defence that the Complainant was bleeding in her private parts before she was taken away by the Appellant. Accordingly, the finding by my Brother Landman, that the guilt of the Appellant was not proved beyond a reasonable doubt is premised on a single aberration in her evidence relating to the stick. There is absolutely nothing on record to support, even remotely, the possibility that there was a stick in or near the bath tub in which the Complainant and her friends were playing, let alone that any such mysterious stick could have injured the Complainant.

It is therefore highly improbable that the stick which NOBODY claims to have seen and which even the Complainant denies that it caused her to bleed, could have been responsible for the Complainant’s bleeding. On the totality of the evidence, it is probable that the Appellant raped the Complainant.

It is important to bear in mind that the onus which rested upon the State in this matter was to prove the guilt of the accused beyond a reasonable doubt but not beyond all shadow of a doubt. Our law does not require that a Court has to act only upon absolute certainty, but merely upon justifiable and reasonable convictions, nothing more and nothing less. (See S v Ntsele 1998 (2) SACR 178 (SCA). Whether or not the Complainant swam on her return from the Appellant’s place is neither here nor there. There is indeed a contradiction between the version of the Complainant and of R in this regard. It is however an insignificant contradiction.

The Complainant is of course a single witness with regard to whether or not she was raped. The evidence must therefore be approached with caution in this regard.

All that was expected of the trial Court was to weigh the evidence of the Complainant, consider its merits and demerits and, having done so, to decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, it is satisfied that the truth has been told. (See S v Sauls and Others 1981 (3) SA 172 (AD) at 180D-F). This, the trial Court did and satisfied itself that the truth has been told. I can find no basis for interfering with this finding.

After careful consideration of the evidence as a whole I am satisfied that the guilt of the Appellant was indeed proven beyond reasonable doubt. The appeal against the conviction should therefore fail.

SENTENCE

In imposing sentence, Hendler J. said:-

“ ..... my hands are tied and I must pass a sentence which the Government says I must”.

See record:- Paginated page 115

“[12] For the rape of a girl under the age of 16 years (as in the present case) the prescribed sentence is life imprisonment. However, the Court’s discretion to impose a different sentence has not been eliminated by the Act, but in the absence of weighty justification the prescribed sentence must be imposed.”

And further on page 205 e-f:-

“[13] Life imprisonment is the heaviest sentence a person can be legally 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. In the present matter evidence relating to the extent to which the complainant has been affected by the rape and will be affected in future is relevant, and indeed important. Such evidence could have been led from the complainant’s mother, her school teacher or a psychologist. No attempt was made to do so.”

Having taken into account the mitigating features and personal circumstances of the Appellant as a whole, I am of the opinion that they do constitute substantial and compelling circumstances that justify a departure for the impositioning of the prescribed sentence of life imprisonment.

I am of the opinion that the appeal against the sentence should succeed and that the sentence of life imprisonment should be set aside.

I am of the view that a sentence of eighteen (18) years imprisonment would be appropriate under the circumstances of this case.

CONCLUSION

In the premises I will make the following order:-

1. The appeal against the conviction is dismissed.

2. The appeal against the sentence is upheld and the sentence of life imprisonment is set aside and substituted with the following sentence:-

“Eighteen (18) years imprisonment”.

R.D. HENDRICKS

JUDGE OF THE HIGH COURT

I agree, and it is so ordered

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

DATED: 19 MARCH 2004

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