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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

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: CA54/2018

In the matter between:

DINTLENYANE FANIE MOATSHE                       Appellant                                          

And

THE STATE                                                           Respondent

JUDGMENT.

GURA J:

Introduction

1. The appellant was charged with four counts of rape and one count of assault in the Regional Court. He was only convicted on three counts of rape (counts 1, 2 and 4) which were taken together for the purpose of sentence. Life imprisonment was imposed. His present appeal against conviction and sentence, is accompanied by an application for the late noting of an appeal.

Condonation.

2. In support of his application for condonation of his lateness in noting the appeal within the prescribed time limit, the appellant declared:

1. I am an adult male and the applicant in this matter, currently incarcerated at Rooigrond Correctional Centre, Mahikeng, and confirm that the facts deposed herein are within my personal knowledge and are to the best of my knowledge and belief both true and correct.

2. I wish to state that I stood trial on several charges of rape at Lehurutshe regional court. I was convicted on the 13^th day of February 2018 and on the 24^th day of April 2018, I was sentenced to life imprisonment. I instructed my attorney of record then to proceed with the appeal and she advised me that she will.

3. My attorney further advised me that appeal is automatic right of appeal and she will have to apply for transcription of the record. She further told me that when the records after available she will forward my case to the High Court for appeal purposes and that another legal practitioner will take over and will need transcripts to familiarise himself with the merits of the case.

4. On the 08^th day of October 2018, I was indeed consulted by my present counsel, Mr Setumu who informed me that the transcripts are now available and gave him instructions to proceed with the appeal against both the conviction and the sentence.

5. In the circumstances, I submit that the delay is not due to fault on my part, and was due to circumstances beyond my control.

6. I further submit that there are reasonable prospects of success on an appeal and another court may come to a different conclusion in this matter and it will be in the best interest of justice that the late filing of notice of appeal be condoned based on the following:

3. I have refrained from setting out the grounds of appeal because these are dealt with in the main judgment on the merits of the appeal, starting from paragraph 17.

4. It is trite law that the appellant must show good cause for his lateness in order to succeed. In S v Mantsha[1], the Court held that good or sufficient cause requirement has two elements; firstly the applicant must furnish a satisfactory and acceptable explanation for his delay. Secondly, he must show that he has a reasonable prospect of success on the merits of the appeal. In Santam case[2] the court laid down the criteria to be applied in an application such as this one. What must be considered are the following facts: the degree of lateness and the explanation thereof; the prospects of success and the importance of the case.

5.  Recently in Ndlovu v The State[3] Khampepe J, made the following remarks with reference to an application for leave       to appeal:

            [31] The explanation given by Mr Ndlovu for the gross delay in making his application to this Court is unsatisfactory. This Court takes a dim view of parties disregarding its rules, and generally requires that a reasonable explanation be given      for a delay before it will grant condonation. In Grootboom v National Prosecuting      Authority, this Court held:

            “It is now trite that condonation cannot be had for the mere asking. A party seeking             condonation must make out a case entitling it to the court’s indulgence. It must show  sufficient cause. This requires a party to give a full explanation of the non- compliance with the rules . . . . Of great significance, the explanation must be reasonable enough to excuse the default.”

            [32] However, the sufficiency of the explanation given for the delay is not wholly             determinative of whether condonation should be granted. The pertinent question to             consider is whether it would be in the interests of justice for condonation to be      granted.

            [33] In Brummer, this Court explained:

            “The interests of justice must be determined by reference to all relevant factors,   including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s   explanation for the delay or defect.”

6. The applicant was sentenced on 24 April 2018. His notice of appeal was filed with the Registrar on 02 November 2018. His appeal is therefore more than six months late. The passing of blame to the defence attorney has become too common in most applications for condonation in this court. Usually, as in this case, the attorney who is alleged to be in default of observing the time period, is no longer based at the local justice centre. As will be shown later in the judgment on the merits of the appeal itself, the applicant has failed to convince the court that there are reasonable prospects that another court (this court) may reach a different decision either on conviction or sentence. However, taking into account that the victims of rape were very small children and they testified after a number of years had elapsed, I am of the view that condonation should be granted in order for this Court to make a reassessment of the whole evidence. This is in the interest of justice. What follows now is the judgment on conviction and sentence.

Factual background

7. The evidence of the State is to the effect that the appellant was staying at the complainants’ home in 2013 and 2014. During one of the nights in 2013 he took the complainant in count 1 and count 2 (“S”) to a stoney area where he raped her. At that time S was seven years old but ten when she testified in Court.

8. In relation to the second count, in October 2014, again the appellant picked S up from a tent and raped her in the toilet. On this occasion the mud house in which they were staying had collapsed hence their temporary dwelling was now the tent.

9. Ms Francinah Mafora, a member of the local police forum who is generally known as a care giver in the community, told the Court that after receiving a report about the incident of rape of S, she took her to the clinic and to hospital. After examination by the doctor, Francinah was told that the child had been penetrated. She then took S to the police station where a case of rape was opened. Before going to the police station, whilst they were still in the hospital, Francinah asked the child if she had been raped and she confirmed that.

10.  In relation to the second count of rape Francinah received a report and subsequently she met S who was with K in 2014 as they were walking to the shop. She accompanied these two children (S and K) and bought them simba chips. She then asked S what had happened to her. She informed her (Francinah) that her uncle had raped her the previous night. Francinah informed Ms Georgina Moiloa, the principal of the school where S was attending. The principal asked S with whom did she sleep at home. Her response was that she was sleeping with her uncle, Dintlenyane. The appellant is Dintlenyane, and he is the first complainant’s (S’s) uncle. The evidence of the State is to the effect that when Francinah reported this latest incident to the principal it was on 26 October 2014.

11.  Dr Nkoana-Erasmus examined S in relation to count 1 on 18 June 2013 and found: “Hymen did not appear intact, possible previous penetration or other injuries based on indentation and cleft found on examination”. This cleft or indentation on the left side appeared old, said the doctor. Doctor Moalusi, on the other hand examined S on 27 October 2014 in connection with the second incident of rape referred to in the second count.

12.  His clinical findings are as follows:

A - Bruise noted at either left and right side at the introitus.

B - Inner aspect of labia manora also appear bruised.

C - Paraurethral folds appear bruised.

D - Hymen open appear breached but no fresh tears. Notch and bump noted at 3     o’clock position 

The doctor accordingly concluded:

“Findings suggest some sort of penetration in the past and recent times; last incident probably in the last 48hours”

13.  On count 4 the evidence of the State is to the effect that the complainant in this count (K M) was thirteen years old at the time when he testified. During this incident of rape, he was staying with the appellant and other relatives in the same homestead. On 20 March 2015 the appellant instructed him to go and fetch firewood behind the trees. The appellant went along with K for that purpose. Once they were behind the trees, the appellant ordered him to undress his (K’s) pair of trousers. The appellant then applied vaseline on his (K’s) buttocks, and subsequently he inserted his penis into his anus. When he withdrew it from K’s anus, there was a white substance on his penis which he spread on the complainant’s face.

14.  He screamed during the sexual assault but no one came to his assistance. The appellant threatened him not to tell anyone about what he had done to him. It was only after a long time that he told Ms. Suzan Dintwe what had happened but he opened up only after she (Suzan) had asked him.

15.  Suzan also testified about the report which the complainant (K) had made to her. She attended a funeral at a place called Tsetse on 07 June 2015. From there she paid a visit to an old lady’s house where she found K. At that stage she (Suzan) already knew what had happened to S (complainant in counts 1 and 2) and K (complainant in count 3). It was due to her prior knowledge that she asked K (the complainant in counts 4 and 5) if nothing had happened to him. K then told her that the uncle (the appellant) is doing the same thing to him which he was doing to the girls. He went further to state that the uncle took him to look for wood and then whilst at the trees there, he (the uncle) inserted his penis into his anus. According to K and Suzan, the complainant in counts 4 and 5 was not taken for medical examination because when he (K) told Suzan about the said rape, it was long after the incident.

16.  After the close of the State’s case, the appellant in his evidence denied having committed any of the crimes envisaged in count 1 to 5. At no stage during his life has he ever stayed in the same home with any of the three complainants. These three children, including the complainant in count 3 were staying with the appellant’s aunt, Babupi. At one stage, the complainants stayed at the appellant’s mother’s parental home. The appellant himself was staying at his father’s parental home. He admitted that the complainant in the first two counts (S) was his sister’s daughter.

Grounds of appeal on conviction

17.  The following are the grounds of appeal

1.    In convicting the Applicant the Court erred in making the following findings:

1.1  That the State proved the guilt of the Applicant beyond a reasonable doubt.

1.2  That the contradictions in the State’s version are not material.

1.3  That the State witness gave evidence in a satisfactory manner.

2.    In convicting the Applicant, the Court erred in failing to:

2.1  Properly analyse or evaluate the evidence of the Sate witnesses.

3.    In convicting the Applicant, the Court further erred in the following respects:

3.1  Rejecting the evidence of the Applicant as not being reasonably possibly true.

3.2  Accepting the evidence of the State witnesses and rejecting that of the Applicant.

18.  During cross-examination, the complainant in counts 1 and 2 (S) was confronted with two statements which she had made to the police. She indicated that she could not recall whether or not the statements were read back to her by the police. Both statements were handed in as evidential material before court as Exhibit E and F for the 2013 and 2014 rape incidents respectively.

19.  In Exhibit E she told the police of her first sexual violation by the appellant, at Doornhoek. She testified that she reported this first incident to her mother who just shouted at her and warned her not to talk about that again. In exhibit E she alluded to the second rape incident by the appellant which took place at Nyetse. Again she informed her mother about this. The latter did not do anything about it. In Exhibit F, (which is also her statement to the police) she made an exposition of the 2014, October month, rape incident by the appellant. She told the police that in respect of this incident, the appellant took her to the mountain where he raped her. The two of them spent that whole night on the mountain until the next day. She did not inform anyone about this. Apart from the rape encounter of October 2014, again in that very same year (says her statement), her uncle (the appellant) raped her at the toilet whilst her family was sitting by the fire. She did not tell anyone about this second unlawful sexual intercourse, however when Mabupi bathed her she began to question her (S). She then told Mabupi.

The trial court’s approach

20.  In relation to the evidence of S, the trial court did acknowledge that there is a number of discrepancies in respect of the complainant’s testimony viewed against her two statements to the police (E and F). It concluded however that S’s evidence had been corroborated by other independent evidence from the doctor who examined her. Apart from that, the court a quo was satisfied that notwithstanding the contradictions, which the court elaborately pointed out, it was satisfied that the truth had been told by S.

21.  As regards to counts 4 and 5, the court a quo found that K (the complainant) did not contradict himself. He was however contracted by one witness on a non-material aspect.

The approach of court to contradictions.

22.  In S v Mafaladiso[4] Olivier AJ laid down the correct approach as follows:

“The juridical approach to contradictions between two witnesses and contradictions between the versions of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the version s correct, but to satisfy oneself that the witness could err, either because of defective recollection or because of dishonesty. The mere fact that it is evident that there are self-contradictions must be approached with caution by the court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what is the precise nature thereof. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witnesses and the person taking down the statement which can stand in the way of what precisely was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain their statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reason for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions – and the quality of the explanations – and the connection between the contradictions and the rest of the witness’ evidence, amongst other factors, to be taken into consideration and weighed up. Lastly, there is the final task of the trail judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings”.

23.  About three years after the Mafaladiso judgment supra, in S v de Vries and Others[5] the court expressed almost similar sentiments from paragraph 58:

    “In regard to the criticism of Aspeling’s evidence based on alleged omissions in and discrepancies between his affidavits and his evidence in court, it should first be noted that defence counsel chose to prove only one of Aspeling’s three affidavits. It is not possible therefore for the Court to properly evaluate such alleged discrepancies or omissions within the context of the entire picture. Secondly, Aspeling’s own explanation for some omissions, namely, that he and his attorney envisaged that he would flesh out the affidavits in viva voce evidence, has both common sense and judicial approval in its favour. The courts have repeatedly emphasized that discrediting a witness on the basis of minor discrepancies in his/her prior statement/s is unjustified given that the purpose of an affidavit is to obtain the details of an offence, so that it can be decided whether a prosecution should be instituted against the accused or, in this case, to determine whether Aspeling would be an appropriate s 204 witness. It was not the purpose of such affidavits to anticipate the witness’s evidence in court to the last detail and it is absurd to expect of a witness to furnish precisely the same account in his statement as he would in his evidence in open court”.

Evaluation of evidence by this Court

24.  As far as credibility finding by the trial court is concerned, it was held by the Supreme Court of Appeal[6] that:

“It is a time-honoured principle that once the trial court has made credibility findings, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of evidence that the trial court was clearly wrong.”

25.  When the complainant in the first two counts of rape (S) started to testify she was ten years old. This was on 22 November 2016. The case was adjourned after she had concluded her evidence. The real reason for the postponement on the first day of trial was that in the opinion of the trial court, this child appeared to be tired of giving evidence. Cross-examination by the defence started on the subsequent day, 23 November 2016. At the end of the second day of trial the case was postponed and cross-examination continued more than four months later on 12 April 2017. The cross-examination of this witness was finalised on the same day (12 April 2017) and it was on that day that she was confronted with her two statements to the police (Exhibit E and F). It is worthy to note that when S testified in 2016 and when she was cross-examined in April 2017, it was more than two and a half years after the 2013 and 2014 rape incidents.

26.  S was born on 29 August 2006 and during the 2013 and 2014 rape incidents she was seven and eight years old respectively. In my view, a child of that tender age does not have the capacity of good recollection after such a lengthy period. I am not surprised therefore that when she was cross-examined in 2017, she had a vague idea about some of the incidents. I must point out however that the contradictions in her evidence as against her previous statements to the police are not material. Most of the inconsistencies relate to whether she reported a particular rape incident and to whom did she complain; whether or not her family was asleep or seated by the fire when the appellant took her out at  night to rape her; whether or not her mother was present at home during any of the rape incidents, etc.

27.  There is one aspect in the complainant’s statements to the police (Exhibit E and F) which the trial court, the public prosecutor and the attorney for the appellant all seem to have overlooked. Whereas in each of the two statements she told the police of two separate rape incidents by the appellant, the state preferred two counts of rape against him. Why the state decided to omit other two possible counts of rape is to me unknown. The prosecutor led evidence of this complainant on one count in 2013 and one count in 2014. When it came to cross-examination, the complainant (S) had a difficult task to know, for instance, about which incident in 2013 was she being asked about, for she had said (in Exhibit E and F) that she had been raped twice (in 2013 and twice in 2014). In her response to some of the defence’s questions, she would give an answer which relates to the second incident of rape in 2013 for example something which she had never testified about in her evidence in chief. I have read some of her responses under cross-examination carefully and this confusion became clear to me.

28.  It is interesting to note that at one stage, she told the court in response to the  defence’s question that in 2013 the appellant did not rape her only once. Neither the regional court magistrate, the prosecutor nor the defence attorney made any follow-up on this last response. It is therefore to me unfair that the appellant’s counsel should criticise S’s evidence when the prosecutor did not lead evidence on other rape incidents. The attorney who conducted the defence of the appellant also deliberately avoided to make a follow-up on S’s comment that during 2013 the appellant raped her more than once.

29.  I am satisfied that S was an honest and reliable witness. I cannot fault the   findings of the trial court in that regard. There was medical evidence which corroborated her version. In relation to counts 4 and 5, the complainant, K Mo, was 13 years old when he testified about an incident which had occurred on 20 March 2015. He gave evidence and was cross-examined in one day, being 14 September 2017. Again in respect of these latter two counts (4 and 5) the reasoning and finding of the court cannot be faulted.

30.  The appellant denied all wrong doing on his part and stated that at no stage did he stay in the same place (homestead) with any of the complainants. Under cross-examination of all state witnesses by his attorney it was never suggested to anyone of them that the appellant never stayed with them in a mud house and later in a tent. The trial court found that his version was not reasonably possibly true. I cannot imagine how these teenagers would falsely impute to their own uncle these allegations of sexual assault if they knew that he never stayed with them in one house. I am satisfied that the appellant’s defence is false.

Sentence.

31.  The personal circumstances of the appellant are the following: His age was 28 and 31 years at the time of commission of the offences and at sentence respectively. He was gainfully employed with a salary of about R800-00 per month and he is a first offender. I approach the sentence keeping in mind the remarks by Marais JA, in S v Malgas[7].

“A court exercising appellate jurisdiction cannot, in the absence of material       misdirection by the trial court, approach the question of sentence as if it were the             trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an         appellate court is of course entitled to consider the question of sentence afresh. In doing so, it assess sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. At it is said, an appellate court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do    so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as ‘shocking’, ‘startling’ or ‘disturbingly inappropriate’. It must be emphasised that in the latter situation the appellate court     is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned”.

32.  In the present case a paternal uncle has raped his niece and nephew. Judicial notice is taken of the fact that in Setswana culture a paternal uncle occupies a special and important position in relation to his niece or nephew. He is, in effect, regarded as a parent to his niece or nephew. The appellant was in a position of trust vis-à-vis these children. He was staying at their home and they regarded him with respect. He abused that position of trust and became an abuser. It is for this reason that he deserves to pay dearly with his liberty.

33. Where a parent or a person who is in loco parentis with a child rapes her/him, such as in this case, his sentence must display the displeasure of the community about his disgraceful behaviour. In S v Abrahams[8] the court emphasised this aspect as follows:

“This attitude reflects an approach to women and to daughters in particular, as objects or chattels, not merely to be used at will, but once the first entitlement has been exercised, to be further discarded for further similar use by others. Of all the grievous violations of the family bond the case manifests, this is the most complex, since a parent, including a father, is indeed in a position of authority and command over a daughter. But it is a position to be exercised with reverence, in a daughter’s best interests, and for her flowering as a human being. For a father to abuse that position to obtain forced sexual access to her daughters’ body constitutes a deflowering in the most grievous and brutal sense. That is what occurred here, and it constituted an egregious and aggravating feature of the accused’s attack upon his daughter. The judgment on sentence accords it no mention. The sentencing judge in my view thus misdirected himself in failing to take into account a most material aspect of the crime.”

Later in the same judgment, Cameron JA[9] (as he then was) voiced his further views: 

“Second, rape within the family has its own peculiarly reprehensible features, none of which subordinate it in the scale of abhorrence to other rapes. The present case illustrates them with acute force. The rapist may think the home offers him a safe haven for his crime, with an accessible victim, over whom he may feel (as accused did) he can exercise a proprietary entitlement. Though not the case here, a family victim moreover for reasons of loyalty or necessity feel she must conceal the crime. A woman or young girl may further internalise the guilt or blame associated with the crime, with lingeringly injurious effects. This is particularly so when the victim is the rapists’ own daughter, and the more so when the daughter is of tender age”.

34.  The appellant carnally knew children of tender age, not only once but more than that. His libido propelled him to a level where he could hardly make a difference between male and female. He raped across the gender divide. His dark and evil deeds are by no means excusable. He has been convicted of rape where the mandatory minimum sentence is imprisonment for life. This Court finds no reason to justify the interference with the sentence which was imposed by the trial court. This is a proper case where imprisonment for life should not be avoided. Instead of imposing three life sentences, the court aquo took all counts of rape as one for the purpose of sentence. The end result is the same. His appeal on sentence also, should fail.

Order

35.  In the premises the following order is made:

1.    The application for condonation is granted;

2.    The appeal against conviction and sentence on both counts is dismissed; and

3.    The convictions and resultant sentence imposed by the regional court are confirmed.

             SAMKELO GURA

            JUDGE OF THE HIGH COURT.

            I concur

            LEEUW JP

            JUDGE OF THE HIGH COURT.

APPEARANCES:

DATE OF HEARING:                             30 NOVEMBER 2018         

DATE OF JUDGMENT:                           18 APRIL 2019

COUNSEL FOR APPELLANT:                 MR M.E SETUMU

COUNSEL FOR RESPONDENT:         ADV RASAKANYA

ATTORNEYS FOR APPELLANT:         LEGAL AID SOUTH AFRICA

ATTORNEYS FOR RESPONDENT:  NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

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