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
(NORTH WEST DIVISION, MAHIKENG)
	
CASE NO.: CA 27/14

In the matter between:

NALEDI MOKWENA							APPELLANT

and

THE STATE									RESPONDENT

  LANDMAN J, CHWARO AJ

JUDGMENT

Landman J:

[1]	Naledi Mokwena, the appellant was convicted in Regional Court sitting at Temba on 31 March 2011 on one count of rape, read with the provisions of section 51 of Act 105 of 1997 and on 1 April 2011 he was sentenced to 15 (Fifteen) years imprisonment. The appellant appeals with the leave of the court a quo against both the conviction and sentence.

Ad conviction 

[2]	The complainant, Ms C. M., alleged that she was raped twice by the appellant on 10 July 2004. There is no need to set out what happened save to say that on her version there can be no question that she was raped twice. The appellant admitted that he had sexual intercourse once with the complainant but said it was with her consent. 

Submissions on behalf of the appellant

Mr Jonker submitted that:
(a)	The main point of dispute is whether the complainant consented to sexual intercourse.
(b)	The complainant was a single witness so that her evidence should be approached with caution.
(c)	There are two versions before court; the one of the complainant and the other that of the appellant.
(d)	Parts of the complainant’s evidence are contradicted by her friend Ms A. P. (A.); inter alia: the buying and drinking of the liquor, what led to the complainant ending up alone with the appellant in his vehicle. According to the complainant the appellant stopped on the side of the road and A. and Mr A. M. (A.) alighted from the vehicle. The appellant also alighted from his vehicle and after a while returned and told the complainant that his friend has got a partner. According to A. the appellant ordered all of them out of his vehicle. The complainant got cross with the appellant and she climb back in the vehicle. The appellant got back in the vehicle and sped off.

(e)	The court a quo showed bias in its judgment by mentioning that the mere fact that the appellant was prepared to cheat on his wife is a reflection of his integrity and honesty. It was submitted that such an averment made by the presiding officer is totally uncalled for and indicative of bias.

(f)	The court a quo erred in presuming that a young girl of 19 years would “fall” for a man of 45 years.

(g)	If the court a quo was of the view that it was in the interest of justice to hear the evidence of “Baby” and Jacobs she could and should have called them to testify in terms of section 186 of the Criminal Procedure Act 51 of 1977.

(h)	It is trite law that an accused bears no onus to prove his innocence and the state should prove his guilt beyond reasonable doubt.

(i)	The court need not believe the evidence of an accused and is bound to acquit him if there is reasonable possibility that his evidence may be true. 
See R v Difford 1937 AD 370 at 373.

(j)	The trial court is obliged to consider the evidence as a whole and such defects as there may be in the evidence of the accused do not materially assist the state in discharging its onus if the evidence of the state witnesses relied upon is open to serious criticism. See S v Jochems 1991 (1) SACR 208 (A) at 211 and S v Radebe 1991 (2) SACR 166 (T).

(k)	It is further submitted that there is no basis, on the facts or in law, on which the court a quo could have rejected the appellant’s version.

(l)	The court a quo’s reasoning for rejecting the appellant’s version is not supported or borne out by the evidence.

(m)	It cannot be said that the appellant’s version is not reasonably possibly true. Accordingly, the respondent has failed to prove its case beyond reasonable doubt. See S v V 2000 (1) SACR 453 (SCA) at 445a-c and S v Schackel 2001 (4) SA 1 SCA at 12J-13B.

(n)	The court a quo misdirected herself in the evaluation of the evidence as a whole and should have found that there was a reasonable doubt with regard to the appellant’s involvement in the rape.

(o)	The court a quo, in finding that the version of the complainant is more credible than that of the appellant, applied the wrong principles of the law of evidence.

(p)	The sexual intercourse was one action, and not multiple, as found by the court.

 Submissions by the respondent

Counsel for the respondent, inter alia, submitted that:
(a)	This is a case of a person who believed that because he had spent money on the girls he was entitled to some sexual favours.

(b)	The testimony of the complainant left nothing to the imagination it created a clear picture of what happened that night from the beginning to the end. She told the story as if it happened the previous day despite the incident occurring 6 years prior to the period they testified in court.

(c)	She was the best witness amongst all and she stood up and fought for her rights even after the matter was withdrawn due to the loss of the docket.

(d)	The evidence of the complainant was detailed and logical and even the appellant’s counsel did not find any criticisms to how she testified and withstood the cross examination.

(e)	The appellant’s evidence was ‘rattled’ with improbabilities and contradictions and it was of a poor quality. He failed to put a number of critical versions to the complainant and her witness to respond whilst still on the so that they can have an opportunity to respond to it.

(f)	The correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so heavily in favour of the state as to exclude any reasonable doubt to the accused guilt.

Evaluation

[3]	The state’s case rests on the acceptance of the credibility of the complainant and the rejection of the evidence of the appellant and in particular that the appellant’s version is not reasonably possibly true. If it is reasonably possibly true the state has not acquitted itself of the onus of proof beyond reasonable doubt.

[4]	The other evidence does little to assist in deciding the issue. The evidence of Dr Patrick Thosaga, who examined the complainant within hours of the incident, is that the complainant did not suffer any physical injuries. This does not exclude rape; it is neutral.

[5]	Counsel for the appellant submitted that the way the complainant alleged she was raped together with the absence of injuries is very suspicious and must be questioned. He also took issue with a remark by Dr Thosaga ‘that unfortunately there was no sexual or genital injury’. He submitted that such a remark is unprofessional and uncalled for. The objectivity of this witness must be questioned. These submissions does not take proper account of the pressure placed during cross-examination of the medical doctor and his remark is simply to the effect that had there been an injury he would have been able to report on it but he was very clear that he was not the judge of the consensually or lack of it. 

[6]	In evaluating the evidence one must bear in mind that he witnesses were testifying some six years after the incident.

[7]	A., the second state witness, was correctly found to be a poor witness.

[8]	The evidence of Mr A. M. (A.) is that the fact that the complainant was seated on the appellant’s lap does not seem to have been considered. On its own it does not show more that the complainant was happy to take the appellant’s money and be in his company. A. had no love interest in A.. The complainant was interested in matching him with A.. He just wanted to be dropped off at home. In fact he and A. were dropped off together a short distance from his home and both the complainant and the appellant said they would come back presumably for A.. A. wanted to go to back to Malepala’s place and he showed her the way. 

[9]	The next morning the appellant and the complainant both arrived at A.’s home. The complainant acted normally. She was concerned about A. and she gave her cellphone number to A. so that he could phone A. who was in possession of the phone. Significantly no complaint of rape was made to him by the complainant. Then both the complaint and the appellant left together. The conduct and demeanour of the complainant (after the rape) in the presence of A. is in sharp contrast to the conduct and demeanour of the complainant when she reported the incident to a police officer Bokaba who was on duty at the Mametlhake Police Station. 

[10]	The evidence of A. was put to the complainant. She denied that she and the appellant had gone there to collect A.. The state did not challenge these aspects of A.’s evidence. The court a quo did not specifically traverse this evidence, but it is clear that the court a quo did not accept his evidence.

[11]	The court a quo’s observation is that the mere fact that the appellant was prepared to cheat on his wife is a reflection of his integrity and honesty is not necessarily correct but it does not indicate bias.

[12]	The complainant was a good and plausible witness. On her version she was raped twice by the appellant when they were alone in the bush.

[13]	The appellant was not a good witness. He was an unsatisfactory witness. Important aspects of his case were not put to the complaint as they should have been. He attributes most of this failure to his attorney. But his cross-examiner, erroneously, put it to him that the complainant had not been confronted with the fact that he and the complainant had returned to A.’s place. The following are some of the aspects in question that were not put to the complainant:
(a)	That he had proposed love to her prior to intercourse. Nor was it put to A.. The appellant did not testify about the proposal during evidence in chief; it emerged during cross-examination.
(b)	That the complainant approached him and suggested that they go to Mametlhake. 
(c)	That he spent some money on the complainant buying her liquor and giving her cash. He said he could not stay longer inside Malupe’s tavern as he was troubled by ulcers and he wanted to return to and remain in the car and that the complainant took his car keys when she returned to the tavern because she said the appellant will leave them and drive away.
(d)	That the complainant came to him at the car in the company of A. and asked him to give A. a lift.
(e)	That when he was about to drop the complainant off at her home that she indicated that she had left the keys to the house with A..

[14]	The failure to put these aspects to the complainant strengthens the impression that the appellant developed his version as he went along.

[15]	The appellant’s evidence about his search for condoms at his mother’s homer smacks of a fabrication.
[16]	Whether a young girl of 19 years would, as Mr Jonker, expressed it, “fall” for a man of 45 years depends on the facts. I am satisfied that appellant did not make a proposal to the complainant. 

[17]	The court a quo correctly rejects the appellant’s version as it was false. He planned to have intercourse with the complainant and did so twice without her consent.

[18]	There is nothing on record to show that evidence by ‘Baby’ and Jacobs would have contributed to resolving the question of the alleged rape. The court a quo was not, in my view, obliged to have called them to testify in terms of section 186 of the Criminal Procedure Act 51 of 1977.

[19]	It was submitted that the court a quo in finding that the version of the complainant is more credible than that of the appellant applied the wrong principles of the law of evidence. I do not appreciate what is meant by this. If it is intended to mean that the court a quo did not apply the rule relating to the assessment of a single witness then there is no merit in it. The complainant was a single witness but her testimony was clear and reliable in all material respects.

Ad sentence

[20]	Mr Jonker submitted that:
(a)	It is trite law that a court of appeal may not interfere with a sentence merely because it would have imposed a different sentence than the one imposed by the court a quo. See S v Skenjana 1985 (3) SA 51 (A).
(b)	It is trite law that the showing of mercy by a court when imposing sentence does not indicate weakness on the part of a court. But that it is an important element of justice. See S v Rabie, supra , at 862.
(c)	The offence of rape of which the appellant has been convicted, falls within the ambit of section 51 and 52 of Act 105 of 1977 and qualifies for a minimum sentence of life imprinsonment, unless substantial and compelling circumstances exist which warrant the imposition of a lesser sentence.
(d)	Although the court a quo found that there are substantial and compelling circumstances in respect of the appellant, the lesser sentence imposed still induces a sense of shock.
(e)	While conceding that the appellant has been convicted of a very serious offence the court a quo over-emphasized the interests of the community and did not attach sufficient weight to the personal circumstances of the appellant. In fact, the court a quo merely paid lip-service to the personal circumstances of the appellant and to the concept of mercy.
(f)	This court should interfere with the sentence and a lesser sentence.

[21]	Counsel for the respondent submitted, inter alia, that:
(a)	The main issue that has to be considered is whether an effective term of 15 years imprisonment is shockingly inappropriate which might prompt another court to come to a different decision.

(b)	Women deserve to move around as they wish in this country and the presences of people like the appellant who see them as object to use for their sexual satisfaction make it difficult for them to enjoy their freedom. If anything the appellant was fortunate for receiving such a lenient sentence for such a serious offence.

(c)	  Rape is a serious offence. It breaks the pride of our women and robs them of their dignity and confidence.

Evaluation

[22]	The imposition of sentence is a matter solely within the discretion of the trial court and that a court of appeal will not interfere with that discretion unless it is satisfied that the trial court has exercised its discretion unreasonably. See S v Rabie 1975 (4) SA 855 (A). The offence is a very serious offence the court a quo correctly took this into account. There is nothing in the judgment on sentence which bears out the complaint that she over-emphasized the interests of the community and did not attach sufficient weight to the personal circumstances of the appellant. The Magistrate set out the personal circumstances of the appellant in her judgment. The averment that the court a quo merely paid lip-service to the personal circumstances of the appellant and to the concept of mercy is not borne out by the sentence that she imposed. I would have been inclined to impose a sentence of 18 years imprisonment. I am satisfied that the court a quo properly exercised her discretion and that sentence cannot be faulted.
[23]	In the result the appeal against conviction and sentence must fail. 

Order

[24]	I make the following order:
1.	The appeal against conviction and sentence is dismissed.

AA Landman
Judge of the High Court

I agree

OK Chwaro
Acting judge of the High Court

	

APPEARANCES:

Date of hearing:			 		9 October 2015

Date of Judgment:			 		15 October 2015

Counsel for the Appellant:                               Mr Jonker
Instructed by:
The Mafikeng Justice Centre

Counsel for the Respondent:                            Adv Nontenjwa
 Instructed by:
 The Director of Public Prosecutions