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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

Criminal Judgment – Klaas Monageng

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CC 223/2004

In the matter between:

KLAAS MONAGENG APPELLANT

AND

THE STATE RESPONDENT

MMABATHO:

HENDRICKS J

LANDMAN J

TLHAPI AJ

JUDGMENT

LANDMAN J:

[1] The appellant was convicted on a count of rape on the 9^th of June 2004 by the learned Regional Court Magistrate Mr E D Mogotsi. The matter was referred to the High court for sentence. The case served before Gura J who confirmed the conviction on the 21 January 2005 and sentenced the appellant to 18 years imprisonment. The appellant was granted leave to appeal against the conviction and sentence to the Full Bench of this court.

The facts

[2] The appellant and the complainant are relatives. The appellant is the complainant's maternal uncle. The complainant went to the appellant's home in the company of her cousin to look for the appellant's wife, Joyce.

[3] The appellant then sent the complainant's cousin to borrow a bicycle somewhere. The complainant was sent to a bedroom inside the appellant’s house to look for a bucket. Both the appellant and the complainant were at some stage together in the bedroom. The respondent and the appellant's version of what transpired thereafter differ.

[4] The complainant testified that after she entered the room and took the bucket, she turned around and the appellant was already in the room and had locked the room. The appellant grabbed her, pushed her onto the bed and uttered words like he had been long waiting for her to grow up and she has grown. The appellant held her with the one hand and undressed her with the other hand whilst she was lying on the bed, took out his penis and inserted it into her vagina. The complainant was screaming and it was painful but no one came to help.

[5] The appellant says he followed him to the house, the only thing he said to her is that she is so beautiful. When the complainant asked him what he means then he apologizes and held her on her shoulder.

[6] The complainant made her first report to his brother, within a week. Her brother in turn informed his father who then summoned the family meeting. The complainant reported to her brother first and not to her mother who was leaving when she returned home. She related to her brother. Her brother confirmed the first report.

[7] The complainant's father testified that after being told that the complainant had been raped, he contacted her phone and asked the complainant if it was true that she had been raped.

[8] A family gathering, at which the Appellant's wife and other elders in the family were present, was held at which the Appellant was confronted about this rape incident and a document which was submitted to court as Exhibit "B" was compiled. It contains an agreement that seventeen (17) heads of cattle would be paid within a three (3) months period. The Appellant's signature appears on Exhibit "B" next to the number -6.

[9] When the complainant arrived with her brother, she was not asked any question about the rape. The complainant's father on being asked whether she had asked the complainant about the matter besides the telephonic communication answered that the matter was already resolved when the complainant arrived.

The conviction

The grounds of appeal regarding the conviction

[10] The appellant relies on the following grounds: -

“1. His Lordship erred in not holding that the Magistrate, Mr E D Mogotsi, had erred in convicting the Applicant, on the following grounds: -

1.1 The learned Magistrate erred in not properly holding an inquiry to establish whether the complainant, L.N., understood the meaning of and has the capacity to appreciate and accept the religious sanction of the oath;

1.2 The learned Magistrate erred in not finding that the evidence of L.N. is inadmissible because of what is said in paragraph 1.1 supra;

1.3 The learned Magistrate erred in finding that the confession of the Applicant is admissible, in that no basis was laid for the admissibility of the confession in terms of Section 217 of the Criminal Procedure Act, No 51 of 1977, more specifically no evidence was adduced that the confession was made freely and voluntarily while in sound and sober senses and without being unduly influenced;

1.4 The learned Magistrate erred in not finding that the evidence of Dr Matlhaga did not corroborate the allegations made by the complainant;

1.5 The learned Magistrate erred in not finding that the evidence of Dr Matlhaga is in fact indicative that the complainant was not raped at all;

1.6 The learned Magistrate furthermore erred in not finding that the evidence of the Applicant was credible and that his version was reasonably possibly true;

1.7 The learned Magistrate furthermore erred in not finding that the Applicant did in fact not make a confession and that the evidence of Steven Monageng in this regard was uncontested by the State and should stand as such.

2. His Lordship erred in: -

2.1 confirming the conviction;

2.2 taking into account the evidence of L.N. whilst she was not properly administrated the oath and her evidence therefore was inadmissible;

2.3 finding that the Applicant had to place evidence before the Court that the document signed by the Applicant was done under duress and not freely, while the onus is throughout on the State to prove the admissibility of the confession, including the fact that it was made freely and voluntarily without being unduly influenced thereto and while the Applicant was in his sober and sound senses;

2.4 not finding that the evidence of Steven Monageng was uncontradicted and uncontested by the State and that the Applicant therefore did not make any confessions;

2.5 not finding that the evidence of the Applicant was consistent throughout and that the Applicant was a credible witness and that his version was reasonably possibly true.”

General rules

[11] It is always for the prosecution to prove the guilty of the accused person, which proof must be beyond reasonable doubt. See S v Zuma and Others [1995] ZACC 1; 1995 (1) SACR 568 (CC) at paragraph 25. In Rex v Differt 1937 AD 370 at 373, Watermeyer AJA stated as follows:

"It is equally clear that no onus rests on the accused to convince the Court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of the explanation being true, then he is entitled to his acquittal.”

[12] An accused person is not required to advance reasons why a State witness will adduce false evidence against him. It is furthermore incorrect to accept the evidence of a State witness solely on the grounds that there is no motive why the witness would falsely incriminate the accused. See: R v Mthembu 1956(4) SA 334 (T) at 335H - 336D and S v Lesito 1996(2) SACR 682 (0) at 687i - 688a.

[13] Mr Combrink submitted that it is clear from the questioning by the learned Regional Magistrate that the Magistrate was at least unsure whether the complainant understood the nature and the importance of the oath. The Magistrate nonetheless administered the oath before Ms L.N. testified. It was submitted that the leading questioning of the Magistrate could not assist the Magistrate in making a finding whether the witness indeed understood the nature and import of the oath. The mere fact that the witness answered in the affirmative that she would be severely punished if she would lie and that she would not lie, is no indication that she understood the import and the nature of the oath. Mr Combrink referred me to Seymour 1998 (1) SACR 67 (N) at 69f –I and S v N 1996(2) SACR 225 (C) at 229d – g.

[14] N.Mr Combrink contended that the evidence of Ndlovu is therefore not admissible and should accordingly be disregarded. There is no indication to be found on the record that the complaint did not understand the import of the oath. Mr Combrink endeavoured to find support for his submissions in the few passages in the evidence of the complaint marked inaudible. This does not avail him. It is the appellant’s duty to place the record before court and to attempt to rectify any deficiency in the record.

[15] Mr Combrink pointed out that the State relied on the evidence of a single witness in the commission of the offence. This is correct.

[16] Section 208 of Act 51 of 1977 provides that:

"An accused may be convicted of any offence on the single evidence of any competent witness."

[17] In R v Mokoena 1932 OPD 79 at 80 De Villiers JP remarked as follows:

"Now the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by section 208, but in my opinion that section should only be relied on where the evidence of a single witness is clear and satisfactory in every material respect. Thus the section ought not to be invoked where, for instance, the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement, where he contradicts himself in the witness box, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities for observation, etc."

[18] It was concluded as follows in S v Webber 1971 (3) SA 754 (A): -

“Dit is natuurlik onmoonlik om ʼn formule te skep waarvolgens elke enkele getuie se geloofwaardigheid vasgestel kan word, maardit is noodsaaklik om met versigtigheid die getuienis van ʼn enkelgetuie te benader en om die goeie eienskappe van so ʼn getuie te oorweeg tesame met al die faktore wat aan die geloofwaardigheid van die getuie kan afdoen.”

[19] The learned magistrate was alive to the fact that the complaint was single witness. She was however unshaken by cross-examination. She answered all the questions fully and without exaggeration. Moreover as Mr Maema submitted her evidence was satisfactory in all material respects. She testified in a simple and straightforward manner and the magistrate was correct in accepting her evidence as trustworthy. The magistrate also considered s 208 and concluded that the complainant to be not only a competent witness but also a credible one.

[20] In S v Saul 1981 (3) SA 172 (AD) at 173 Diemont J A remarked that:

"there is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of a single witness...The trial judge will weigh his evidence, 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."

[21] Mr Combrink submitted that the statement signed by the appellant is not admissible, if it was a confession, because the State failed to prove all the elements required in terms of Section 217 of the Criminal Procedure Act, No 51 of 1977, in order to adduce evidence of an admission. This section reads:

“Evidence of any confession made by any person in relation to the commission of any offence shall, if such confessions is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence.”

[22] Mr Combrink pointed out that the State only led evidence that the admission was made freely. He submitted that no evidence was led whether the confession was made while the accused was in his sober senses and without being unduly influenced thereto as required in terms of s 217. It was furthermore contended that the statement signed by the appellant was in any event a statement by the appellant's wife, as “she was the one agreeing to the document and not necessarily the appellant”. The Appellant denied his involvement in this crime throughout the meeting. A Defence witness, Mr Monageng, testified that the Appellant told him at the meeting that he did not rape the child. TOLD ONLY HIM? See: Record: p 72, lines 9-10. The evidence of Monageng was not challenged by the State and it was submitted that his evidence stands and should be accepted. See: S v Manicum 1998(2) SACR 400 (N); President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000(1) SA 1 (CC).

[23] Mr Maema submitted that the admission that the Appellant made during the family gathering should be treated the same as an admission made to a third party. The only admission requirements are that the admission must be made freely and voluntarily. The evidence, which was led relating to the admission, is that of the complainant's father and her brother. The Appellant initially denied the allegations but when his wife was called in, he agreed to have raped the complainant. When his wife asked him again, he did not reply. The Appellant also put his signature on Exhibit "B", the agreement. The Appellant also testified in chief that an agreement was reached.

[24] It is argued that the reason why the complainant was not asked anything when she ultimately arrived at the family gathering was precisely because the Appellant had agreed to the allegations already. There would not even have been any talk or even agreement about the fine of seventeen heads of cattle if there were a dispute about the rape incident.

[25] It was put to the complainant's father that the Appellant would testify that the only reason why he had agreed to the allegations was because of pressure. At no stage did the Appellant testily about any such pressure on him. He denied having agreed until medical evidence would be produced to him.

[26] Mr Combrink submitted that the evidence of Dr Matlhaga did not corroborate the allegations made by the complainant and in fact indicated that the complainant was not raped at all. Dr Matlhaga was not asked by the complaint’s family to confirm whether the complaint had been raped. He was asked to examine her to ascertain whether she had been infected by the accused. However it may be safely said that the evidence of Dr Matlhaga does not confirm that the complainant was raped. In the circumstances of the case it cannot be expected that he would be able to do so. The complainant reported the matter to her brother after a lapse of a week after the complainant had been from camp and had had bathed in the meantime.

[27] The learned Magistrate explanation why Dr Matlhaga did not find any physical proof of rape (that body cells of young child would probably multiply quicker and the healing process would depend on the seriousness of the bruises) is not supported by any evidence.

[28] Mr Combrink submitted that the learned Magistrate rejected the Appellant's version without giving any reasons for doing so, or criticising the evidence of the Appellant.

[29] Was the Appellant a poor witness? Could his version be reasonably possibly true in the circumstances?

[30] He also submitted that neither the evidence of the Appellant, nor the evidence of Steven Monageng was seriously challenged by the State and it should be accepted as being true. In assessing the evidence of the State, the Magistrate erred in not applying the correct test, being that the State should prove the guilt of the Appellant beyond reasonable doubt.

[31] It was submitted that the Magistrate throughout applied a test of probabilities when weighing up the evidence, which is incorrect. In the circumstances, it was submitted that the Magistrate misdirected himself, as set out hereinabove, and that the appeal should succeed on the merits.

“the version that was put to the complainant's father that the Appellant would testily that he signed Exhibit "B" under pressure was false because the Appellant never testified about it and has denied ever admitting the rape allegations”.

Record Page 41 lines 16-18

Sentence

[32] The appellant relies on the following grounds of appeal as regards the sentence imposed by the court a quo:

“3. His Lordship failed to take into account, alternatively adequately take into account, that: -

3.1 the Applicant was a first offender;

3.2 the Applicant is married and is the father of one child;

3.3 the Applicant was incarcerated for a period of approximately seven months;

3.4 the complainant did not suffer any physical injuries;

3.5 the complainant did not suffer any emotional or psychological scars as a result of the incident;

3.6 the appellant did not employ any violence and therefore did not inflict any physical injuries to the complainant;

3.7 the commission of the offence was not premeditated but happened on the spur of the moment when the complainant visited the Applicant.

4. His Lordship erred in over-emphasizing the seriousness of the offence and the interest of society.

5. His Lordship furthermore erred in finding that in the setting of the Setswana family, a maternal uncle is a very important figure on the niece, and is in the same position as the father, while no evidence was led in this regard.

6. His Lordship furthermore erred in finding that because of the setting of the Setswana family, the Applicant turned against his child and raped her.

7. The sentence imposed by His Lordship induces a sense of shock and no reasonable Court would have imposed it.”

[33] The appellant complains that the court a quo did not take into account or adequately take into account the matters listed in the notice of appeal. It should be pointed out that in considering what an appropriate sentence is a court is obliged to take into account all the relevant facts and circumstances as well as the policy considerations applicable to sentencing. The court a quo was persuaded that there were substantial and compelling circumstances present which entitled the court to impose a lesser sentence than the prescribed sentence.

[34] It was submitted that the court a quo over-emphasized the seriousness of the offence and the interest of society. The court a quo was alert to the need to balance the interests of the appellant and those of society and to take into consideration the nature of the crime. Gura J said in his judgment:

“Law abiding citizens, the community at large, expects protection from Courts against rapists. Especially where 20 victims of rape are young children as complainant in this case, a 14 year old.

The community expects Courts to treat offenders of this type with heavy sentences. Because otherwise lenient sentence for such serious crimes may lead to disrespect for the law courts and the legal order and people may tend to take the law into their own hands.

But whilst taking into account the dictates of the community, I have also and I will also take into account your personal circumstances which tend to reduce the severity of the sentence.”

[35] Furthermore the court, correctly took into account the prevalence of the rape of young minor girls in this province.

[36] It cannot be said that the court a quo over-emphasized the interests of society or the nature of the crime.

[37] It was submitted that the court a quo in passing sentence erred in finding that in the setting of the Setswana family, a maternal uncle (being the Appellant in this case) is a very important figure and is in the same position as the father, that the appellant turned against his child and raped her. It was pointed out, correctly, that no evidence in this regard was led.

[38] Was the court a quo entitled to make any findings in this regard? The presiding officer has a duty to inform the parties of his intention to make use of personal knowledge or to take judicial notice of a fact especially where the use of such a fact will adversely affect one of the parties so that they are afforded an opportunity to address the court on such a fact or to lead such evidence as he deems necessary. S v H 1977 (2) S A 954 (A) at 960G-H. In all likelihood the court was correct in this assumption. But as it was not communicated to the appellant, it cannot be taken into account. The fact that the appellant was an adult uncle of the complainant and she his niece is a fact which can rightly be taken into account.

[39] Mr Combrink submitted that this is not one of the worst cases of rape. He refeerd to the remarks in S v Abrahams 2002(1) SACR 116 (SCA) at 127d:

“I agree with Foxcroft J that this is not one of the worst cases of rape. That is not to say that rape can ever be condoned. But some rapes are worst that others, and the light sentence prescribed by the legislature should be reserved for cases devoid of substantial facts compelling the conclusion that such a sentence is inappropriate and unjust."

[40] In S v Mahomotsa 2000(2) SACR 435 (SCA) at 205d the following was stated: -

“The objective gravity of the crime therefore plays a role, indeed an important role."

[41] Finally Mr Combrink submitted that taking into account the personal circumstances of the appellant, the gravity of the offence and the interests of the community, a sentence of 18 years imprisonment is shockingly inappropriate in the circumstances. He suggested that taking into account the sentences passed in S v Abrahams (supra), S v Mahomotsa (supra) and S v V 2004(2) SACR 296 (W), that a sentence of 12 years imprisonment would have been the appropriate sentence in the circumstances.

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A A LANDMAN

JUDGE OF THE HIGH COURT

I agree.

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R HENDRICKS

JUDGE OF THE HIGH COURT

I agree

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VV TLHAPI

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING: 09 SEPTEMBER 2005

DATE OF JUDGMENT: -- SEPTEMBER 2005

FOR THE APPELLANT: ADV D J COMBRINK

FOR THE RESPONDENT: ADV G S MAEMA

APPELLANT’S ATTORNEY: MAFIKENG JUSTICE CENTRE

RESPONDENT’S ATTORNEY: THE DIRECTOR OF PUBLIC PROSECUTIONS

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