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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

APPEAL CASE NO: CA75/2019

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

TSHEPO INNOCENT CHALIMANS                   APPELLANT

and

THE STATE                                                         RESPONDENT

CORAM: HENDRICKS JP et RAMOLEFE AJ

DATE HEARD                                                          :           20 JUNE 2024

DATE HANDED DOWN                                         :           30 JULY 2024

JUDGMENT

ORDER

Consequently, the following order is made:

1. The appeal against conviction and sentence is dismissed.

JUDGMENT

RAMOLEFE AJ

Introduction

[1] This is an appeal from the Regional Court, North-West Division, Taung, against the conviction and sentence of life imprisonment in terms of Section 51(1) of Act 105 of 1997, read with Schedule 2, Part 1, handed down on 23 July 2019 by the Honourable Magistrate, Mr Brits. The conviction was in respect of two counts of rape of T[...] M[...] (“the complainant”). The incidents occurred on two separate occasions on 24 March 2016. The appellant was then 28 years old and the complainant, 19 years.

[2] The appellant was legally represented for the duration of the trial. He pleaded not guilty to both charges, and also tendered a plea explanation in terms of Section 112 of the Criminal Procedure Act 51 of 1977. Three witnesses testified on behalf of the State and two on behalf of the appellant.

Grounds of appeal

[3] The first ground of appeal is that the court a quo erred in finding that the State proved beyond a reasonable doubt the two counts of rape. It is also contended on behalf of the appellant that the court a quo under-emphasised the contradictions in the State’s case while over emphasising shortcomings in the case of the defendant. Consequently, the court a quo erred in finding that –

“…[T]he complainant and other state witnesses corroborated each other in all material aspects…” and that their evidence was “…reliable and credible…”;

The contradictions in the evidence between the complainant and Mr Mpho Seleke were immaterial;

The medical examination, as contained in the pro forma J88, provided corroboration for the complainant’s evidence; and

The appellant’s “…version is false and beyond reasonable doubt”, as well as “…inherently improbable…” and “…incredulous…”

[4] The submission is that the learned magistrate ought to have held that –

4.1 the complainant’s version of events inside the Bokamoso tavern was contradicted by the evidence of the appellant, Mr Mpho Seleke, and Mr Thabang Seokwang;

4.2 the complainant’s version of the events outside the Bokamoso tavern was uncorroborated;

4.3 the complainant’s version of the events, once she and the appellant left the premises of Bokamoso tavern, was uncorroborated;

4.4 Mr Mpho Seleke’s evidence contradicted the complainant’s evidence regarding the report of rape she made to him;

4.5 the medical examination, details of which are recorded in the pro forma J88, does not corroborate the complainant’s claim of rape; and

4.6 the appellant’s version was reasonably possibly true.

[5] The second ground of appeal, (only if the appeal against the conviction is dismissed), is that the Court a quo erred in finding that there were no substantial and compelling circumstances that justify the imposition of a lesser sentence than life imprisonment. In doing so, the Court a quo over-emphasised the seriousness of the offence and the interest of society, while under-emphasising the appellant’s personal circumstances. Consequently, the Court a quo erred in not giving proper consideration to what the Constitutional Court held in S v Dodo [2001] ZACC 16; 2001 (3) SA 382 (CC), regarding the imposition of a sentence when the provision of Section 51 of Act 105 of 1997 is applicable.

[6] The learned magistrate ought to have held that substantial and compelling circumstances justify the imposition of a lesser sentence than imprisonment for life. These substantial and compelling circumstances included the following –

6.1 the appellant was a first offender;

6.2 the appellant’s level of education was standard 5 (grade 7);

6.3 the appellant admitted having sexual intercourse with the complainant, despite not knowing that there was DNA evidence that linked him to the crime;

6.4 there was no evidence before the Court a quo regarding the impact of the offence on the complainant;

6.5 the appellant did not dispute the J88 or the DNA results, and did not waste the court’s resources in demanding that the State proves the content of these documents; and

6.6 the appellant made a statement in terms of Section 220 of Act 51 of 1977, and admitted that he had sexual intercourse with the complainant.

[7] During the day of 24 March 2016, the complainant visited the appellant at his place of employment. While there, they briefly spoke to each other. Later on that evening, both the appellant and the complainant went to Bokamoso tavern. The appellant and the complainant subsequently left the tavern and went to the appellant’s home where the appellant allegedly raped the complainant in a backroom of the appellant’s home. Following the alleged rape, the appellant and the complainant walked out of the appellant’s home towards the yard of Mr Oageng Seleke (“Mr Seleke”).

[8] As they arrived at the yard of Mr Seleke, the complainant went to the back-room in the house at the back where Mpho Seleke was sleeping. Mpho Seleke was woken up by the complainant and he let her into his room. The complainant told Mpho Seleke that the appellant raped her. Following some commotion between the appellant, the complainant and Mpho Seleke, Mr Seleke, who was sleeping in a room in the main house at the time, woke up and came outside to see what was going on.

[9] Upon arrival outside, the complainant reported to Mr Seleke that she had been raped by the appellant. Following this report, Mr Seleke placed the complainant inside his home and he immediately then drove to the complainant’s home, which is not far away from his house. Mr Seleke shortly returned with the complainant’s aunt and her grandmother. Upon arrival, the complainant informed them that she had been raped by the appellant. Following this report of rape, Mr Seleke drove the complainant, her aunt and grandmother to Taung District Hospital. Mr Seleke dropped them off at the hospital where a medical officer, Elizabeth Lopez Didinot, examined the complainant. The police then fetched the complainant from the hospital and assisted her at Taung police station to open a case docket. The appellant pleaded not guilty to both counts of rape and raised the defence of consent.

Disputed facts

[10] The following version of facts were in dispute at trial:-

10.1 Whether the complainant and boyfriend, Kaelo Moketsi, arrived together at Bokamoso Tavern on the evening of 24 March 2016, and if he later left her to go and play music as a Disc Jockey (DJ) at the tavern;

10.2 Whether the appellant had approached the complainant at the tavern while she was sitting and drinking alone and he was pestering her;

10.3 Whether the appellant forced the complainant to go to the back of the tavern with him and eventually to leave the tavern;

10.4 Whether the appellant forced the complainant to go to the graveyard where he forced her to have sex with him;

10.5 Whether the complainant sustained her injuries at the graveyard when he was forcing her to have sexual intercourse and she ran into a thorn tree;

10.6 Whether the complainant was throttled by the appellant;

10.7 Whether the appellant offered the complainant money after they had sexual intercourse at the graveyard;

10.8 Whether the appellant forced the complainant into an empty backroom at a house where he forced her to have sexual intercourse with him;

10.9 Whether the appellant threatened the complainant to bury her in an open grave; and

10.10 Whether the complainant ran away from the appellant when he was relieving himself.

Ad conviction

[11] In this matter, the State relied on the evidence of a single witness as far as the offence of rape is concerned. Section 208 of the Criminal Procedure Act provides that:

“208 Conviction may follow on evidence of single witness

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

It is trite that the State bears the onus to prove the guilt of an accused person beyond reasonable doubt. What is expected of an accused is to provide a version of facts that is reasonably possibly true. Three is however no onus on an accused person to prove his/her innocence.

[12] In the case of Shackell v S[1], Brand AJA (as he then was) stated:

“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. But it cannot be rejected merely because it is improbable, it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

It was argued by the appellant that the State’s case as well as the complainant’s evidence was not corroborated in a number of aspects.

[13] Firstly, the appellant argues that the complainant’s evidence of what happened at Bokamoso tavern and outside the tavern, constituted the evidence of a single witness which warranted the application of the cautionary rule relating to such witnesses.[2] The appellant contended that the time of the complainant’s arrival at Bokomaso tavern did not match the time that she had given the police in her statement. When the complainant was cross-examined on this aspect of her evidence, she simply responded with, “I do not know the time”.

[14] Secondly, the appellant contended that the complainant’s testimony that she went to the tavern with her boyfriend, who left her to go and play music at the tavern upon arrival, is uncorroborated. The State’s version did not place any emphasis as to why her boyfriend would leave her all alone and why he did not see her speaking with the appellant.

[15] Thirdly, the appellant contended that the complainant’s version of events inside the tavern was contradicted by the evidence of Mpho Seleke who testified that he saw the complainant being accompanied by the appellant at the tavern and that on the night in question, there was no music being played. Further, Mpho Seleke testified that he knows the complainant’s boyfriend but did not see him at the tavern that night.

[16] Fourthly, the appellant contends that there is no evidence that supports the complainant’s allegation that the appellant was pestering her at the tavern and that this version of events was not given to the police in her witness statement. When she was cross-examined on this aspect, she simply responded with “… I do not know..”.

[17] In the fifth instance, the appellant contends that the complainant’s evidence outside the tavern was uncorroborated. Specifically, her version of how the appellant twisted her arm in view of some people outside and she screamed for help, yet no one came to her aid and her boyfriend could not hear her over the alleged loud music. Yet, the evidence of Mpho Seleke indicates that no loud music was being played at the tavern that night.

[18] The appellant also contended that the complainant’s version of events about the graveyard is uncorroborated in that no mention was made to the police about an offer of R1 000.00 being made to her by the appellant and that his threat to bury her alive in the graveyard is improbable.

[19] The appellant further contends that the complainant’s first report of the rape to Mpho Seleke was not corroborated by the evidence she gave. Particularly the fact that he did not observe anything suspicious about the complainant’s appearances at the time and that she did not tell him that the appellant threatened to bury her alive, instead she only reported to him that she was raped twice by him. First in the graveyard and then at the appellant’s home in the backroom of a house.

[20] Lastly, the appellant contended that the J88 medical report did not corroborate the complainant’s claim that she was raped in that it did not support her claim of being throttled by the neck several times until she became powerless. The medical report did not make any observation or report of any neck injury or bruising to support this allegation. The J88 only recorded injuries to the side of the complainant’s face and her elbow. However, the nature of the injuries was not provided. It also concluded with “…possibility of physical injury cannot be excluded”. The appellant also submitted that the court should have drawn an adverse inference for the State’s failure to call the medical doctor who examined the complainant, to testify and give evidence on the clinical examination that was done.

[21] The complainant in this matter was a single witness. In the matter of S v Stevens[3], the following was stated regarding the evidence of a single witness:

“[17] As indicated above, each of the complainants was a single witness in respect of the alleged indecent assault upon her. In terms of s 208 of the Criminal Procedure Act, an accused can be convicted of any offence on the single evidence of any competent witness. It is, however, a well-established judicial practice that the evidence of a single witness should be approached with caution, his or her merits as a witness being weighed against factors which militate against his or her credibility (see, for example, S v Webber 1971 (3) SA 754 (A) at 758G-H). The correct approach to the application of this so-called ‘cautionary rule’ was set out by Diemont JA in S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G as follows: ‘There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber. . .). 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. The cautionary rule referred to by De Villiers JP in 1932 [in R v Mokoena 1932 OPD 79 at 80] may be a guide to a right decision but it does not mean “that the appeal must succeed if any criticism, however slender, of the witnesses’ evidence were well-founded” (per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569.) It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.”

Evaluation

[22] The totality of evidence given, viewed objectively, is mostly common cause in that the appellant and the complainant had sexual intercourse on the evening of 24 March 2016. The key issue is whether the sexual intercourse was with or without consent. On a consideration of the facts and the appellant’s plea explanation, it is not disputed that two sexual encounters took place.

[23] The complainant’s account of what transpired on the night in question, although somewhat lacking in detail, is a clear version of events which possibly occurred. Contradictions in her version of events were so remote and immaterial in so far as her witness statement to the police did not match her first report of rape to Mpho Seleke and Mr Seleke.

[24] It is trite law that a witness’ statement made to the police is not the be all and end all of one’s evidence as it was stated in the case of Mafaladiso v State[4]. It was further held that not every error or discrepancy in the statement of the witness, affects the witness’ credibility. The court quo correctly deemed the difference in the complainant’s evidence and statement as correctly being immaterial.

[25] The complainants’ reports of rape to both Mr Seleke and Mpho Seleke were corroborated. The evidence of the appellant about his aggressive behaviour towards the complainant when she reported the rape was correctly found to be consistent and both witnesses, proving to be credible and coherent.

[26] The appellant’s submission that the police, for whatever reason, did not visit the graveyard and consider it as a relevant place to look for any evidence does not warrant a court to draw a negative inference about the credibility of the complainant. This is because the complainant had clearly told the police where and when the two rape incidents took place and this was also reflected in her witness statement.

[27] The alleged contradiction about the complainant’s boyfriend being at the tavern was also resolved by the testimony of the first witness who confirmed that the complainant’s boyfriend was indeed at the tavern. The court a quo, therefore, correctly accepted this version. It was correctly found to be immaterial whether it was a jukebox playing music or the boyfriend performing as a DJ.

[28] Lastly, the J88 medical report, although not corroborated by the medical examiner, lacking in recording injuries to the neck, did not necessarily affect the credibility of the complainant as a witness, as she never alleged to have sustained any injuries to her neck and cannot be said to have been a contradiction to what is recorded in the J88. The injuries she alleged to have sustained, correctly recorded in the J88, are to her left eyebrow and her elbow.

[29] The evidence of Mr Seleke and Mpho Seleke, did not corroborate the appellant’s evidence about the complainant going to fetch her phone form Mpho Seleke, especially considering that it was late at night. This version of events was correctly accepted as being improbable. Thabang Seokwang’s evidence on behalf of the appellant did not support the appellant’s version of events. He contradicted himself in some respects and kept changing the sequence of events.

[30] Insofar as sentence is concerned, no material misdirection was committed by the learned Regional Magistrate in imposing sentence. There are no substantial and compelling circumstances present in this case that warrants a deviation from imposing life imprisonment as a sentence[5].

[31] Having considered the submissions on behalf of the appellant and the respondent, the appeal against both conviction and sentence stands to be dismissed.

Order

[32] Consequently, the following order is made:

1. The appeal against conviction and sentence is dismissed.

K D RAMOLEFE

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

I agree.

RD HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES
FOR THE APPELLANT	: E EKSTEEN
ATTORNEYS FOR APPELLANT	: SANDTON CHAMBERS
FOR THE RESPONDENT	: P MOSEGEDI
ATTORNEYS FOR RESPONDENT	: DIRECTOR OF PUBLIC PROSECUTIONS MEGA CITY COMPLEX EAST GALLERY 3139 SEKAME ROAD MMABATHO
DATE JUDGMENT RESERVED	: 20 JUNE 2024
DATE JUDGMENT HANDED DOWN	: 30 JULY 2024

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