CA NO : 175\05
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
SEREKWANE OBAKENG HAROLD
APPELLANT
and
THE STATE
RESPONDENT
MMABATHO:
MOGOENG JP
LANDMAN J
MOKGOATLENG AJ
FOR THE APPELLANT
FOR THE RESPONDENT
:
:
ADV C J ZWIEGELAAR
ADV V D MDABULA
J U D G M E N T
MOKGOATLHENG AJ:
[1]
On the 27th March 2003 the Appellant who was charged with rape was convicted of attempted rape in the Regional Court sitting at Mmabatho, and sentenced to five years imprisonment.
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[2] The Appellant lodged an appeal against both his conviction and sentence.
[3]
The appeal was heard by Leeuw J and Gura AJ (as he then was) on the 20th February 2004. The conviction and sentence were confirmed.
[4]
On 20th May 2005 the Appellant lodged an application for leave to appeal to the Supreme Court of Appeal, alternatively to the Full Bench of this Court against both his conviction and sentence.
[5]
On the 13 August 2004 Leeuw J and Gura AJ (as he then was) granted the Appellant leave to appeal to the Full Bench against both the conviction and sentence.
Ad Conviction
[6]
The appeal is premised on the grounds that:
a) The State has failed to prove beyond a reasonable doubt that the Appellant’s alibi was not reasonably possibly true, in that on the day the complainant alleges she was raped, Appellant only saw the complainant after 5 p m.
b) The Learned Magistrate erred in finding that the State had 2
proved beyond a reasonable doubt that the Appellant attempted to rape the complainant.
c) The Learned Magistrate erred in finding that the State had proved beyond a reasonable doubt that the Appellant attempted to penetrate the complainant’s genitals with his sexual organ. Ad Sentence
[7]
The Appellant contends that:
(a)The sentence of five years imprisonment imposed on him is shockingly inappropriate.
b) The Learned Magistrate erred in not considering correctional supervision sentence in terms of section 276 (1)(h) or (I) of Act 51 of 1977;
c) The Learned Magistrate erred in failing to suspend a portion of the imposed sentence of five years imprisonment.
The Law
[8]
The State bears the onus to prove its case beyond a reasonable doubt. The definitive statement in regard to the 3
onus borne by the State is crisply enunciated by Olivier JA in S v Phallo and Others 1999 (2) SACR 558 (SCA) at 562G­563E. [9]
The approach adopted in determining whether the onus of proof has been discharged, is to evaluate the totality of evidence in an integrated fashion and not in a self contained manner. In this regard the remarks of Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) at 448H­J are instructive:
“In whichever form the test is expressed, it must be satisfied upon a reasonable consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether is reasonably possible that it might be true. In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might reasonably be true, Holmes AJA said the following at 340H­341B, which applies equally to any other defence which might present itself:
‘But it is important to bear in mind that in applying this test, the alibi does not have to be considered in isolation ….The correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court’s impressions of the witnesses.”. [10] In an appeal the power of the court of appeal to upset the findings of the trial court is strictly circumscribed. In the absence of a patent misdirection by the trial court, a court of appeal will rarely interfere with the conclusion arrived at, even if it is in doubt as to the correctness of the conclusion. 4
Davis AJA in R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705.
[11] To determine whether the points raised in the appeal, have merit, the evidence adduced at the trial which impacts on the questions of guilt or innocence has to be considered.
The Evidence
[12] The complainant who was born on the 28 August 1993 testified that on 9 August 2001 she was called by the Appellant to his house. On the day in question she had earlier visited the Appellant’s residence with the intention of requesting Appellant’s wife to give her 50 cents to buy chips. The complainant was advised to return later as Appellant’s wife did not have small change. At that stage the Appellant was having breakfast with his wife and their two children. [13] The complainant subsequently on the request of the Appellant returned to his residence and found him alone in the house. At the house the Appellant placed her on his thighs, then pressed and pushed her downwards on her shoulders in a manner that enabled her to bump on the Appellant’s thighs. The complainant’s legs were spread whilst she was sitting on the Appellant’s thighs.
[14] The Appellant after placing the complainant on his thighs thereafter requested her to catapult herself by placing both 5
her hands on the floor, and by lifting both her feet up in such a manner that she had to spread her legs by supporting them against the wall. [15] The complainant states that she felt something touching her genitals at that stage when she still had her transparent panties on. She thought she was touched by Appellant’s finger on the front of her genitals but on top of her panties. The Appellant at that stage was holding the complainant with both hands on her hips. The complainant’s skirt was inverted over her head and she therefore could not see what the Appellant was doing to her. [16] The complainant states that after being sexually molested by the Appellant she noticed that the former’s fly zip was undone. The Appellant thereafter gave her some money and raisins and ordered her not to tell anyone about the incident, that on her arrival at her home she must bathe herself. The complainant’s mother corroborates her evidence relating to the fact that she found her bathing. [17] In the evening the complainant initially tried to make a report to her father but he advised her to rather tell her mother about the Appellant’s conduct. The complainant was assisted to lay a charge. The following day she was medically examined by Dr Malan at Victoria Hospital. 6
[18] The Appellant is a soldier, employed at the Zeerust Military camp. He lives in the same street with the complainant and is a friend of the complainant’s father. The complainant is a friend of the Appellant’s daughter Rorisang and usually visits at the Appellant’s residence.
The Medical Evidence
[19] The State, with the concurrence of the Appellant, handed in the statutory J88 medical report. Dr Malan’s findings are that the hymen was intact with an opening of 8­10 mm; that there was a bruise on the right side of the vestibule. Dr Malan also testified that this bruise could be caused by either a finger, a penis, or a foreign object, or by sexual interference or an accident.
[20] Dr Malan’s conclusion was that the complainant’s hymen was intact, that there was no penetration as the hymen had no fresh tearing. There was possible sexual abuse but penetration was unlikely. The presence of the bruise indicates a measure of violence, but the skin was not broken indicating an injury of a lesser severity. The vestibule is the outer part inside the inner lips of the vagina on the outside of the vagina. As the hymen was not torn it is not possible to state if penetration was attempted or not.
The Appellant’s evidence
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[21] The Appellant testified that on the 9th August 2001, on Women’s Day he was at his residence. He ate breakfast with his wife and his two children. He thereafter went to the toilet, whilst there he heard his wife was talking to some children. Appellant came out of the toilet. His wife confirmed that she spoke to the complainant who had come to ask the Appellant’s wife for money to buy chips. [22] The Appellant states that at about 11 am he went to look for the complainant’s father, who was to cut his hair. He did not find the complainant’s father on two occasions . He only found the complainant’s mother. The Appellant then returned to his residence. At 2 pm the complainant’s father eventually cut the Appellant’s hair. [23] At 5 pm the Appellant after watching soccer, with the complainant’s father, and a certain John Ditlhakanyane, came across and saw the complainant in the street. It was a chilly windy day but the complainant was not wearing a jersey. The Appellant states that he was seeing the complainant for the first time on that day. He did not know her before this encounter. The Appellant denies being in the company of the Appellant before 5 pm.
[24] The complainant’s mother stated that she saw the Appellant 8
talking to the complainant at her home. The Appellant’s wife testified that on the day in question she advised him that when the Appellant was in the toilet she spoke to the complainant. According to the Appellant the only reason the complainant is falsely accusing her is because she was influenced by her parents who are jealous of his financial success.
Consideration of the Evidence
[25] In my view the version of the Appellant was correctly rejected as improbable and false beyond reasonable doubt by the Learned Magistrate. The Appellant’s submission that he did not really have the opportunity and sufficient time to commit the offence has no merit. [26] The Learned Magistrate sufficiently cautioned and warned himself of the fact that the complainant is a single witness. The Learned Magistrate properly applied the cautionary rules and procedural safeguards in the evaluation of the complainant’s evidence. [27] There is in my view sufficient supporting evidence corroborating the complainant’s version that she was sexually molested by the Appellant. The complainant’s evidence is reliable, credible and satisfactory. 9
[28] The question is whether the complainant’s evidence is sufficient to justify a conviction of attempted rape. In my view the Learned Magistrate misdirected himself in finding that the evidence proved the offence of attempted rape.
[29] The bruise on the vestibule of the complainant is consistent with something coming into contact with her genitals. Dr Malan testified that the presence of a bruise indicates that something was in the vicinity of the complainant’s genitals possibly where it should not have been. Penetration did not occur, but the bruise might be related to an attempt to commit rape. There is no evidence that the complainant was denuded of her panties. [30] It is clear from the record that the complainant had, as at the time of the medical examination, been bleeding. As a result, the panties that she was wearing had bloodstains. The State attributed the injury and the bleeding to the Appellant’s sexual assault upon the Complainant and so did the Court a quo. However, the record shows that the panties that the Complainant was wearing on the day of the incident did not have bloodstains. [31] Furthermore, the Complainant testified that she did not feel any pain whatsoever as a result of, and at the time of, being touched by something on her private parts. This militates against the Magistrate’s conclusion that the Appellant’s penis 10
caused the injury sustained by the Complainant as well as her bleeding. It is still not known what caused the injury which was observed by the doctor on her private parts.
[32] The Learned Magistrate misdirected himself in finding that something was inserted into the complainant’s private parts. And that, because the Appellant held the complainant with both his hands on her waist, this something, common sense dictated, was the Appellant’s penis and therefore that, the Appellant attempted to penetrate the complainant with his penis. [33] This conclusion according to the Learned Magistrate is corroborated by the fact that the Appellant told the complainant to bathe herself on reaching her home. This conclusion is not the only reasonable inference which can be drawn from the objective facts. A reasonable possibility cannot be excluded that the Appellant only intended to masturbate on the genitals of the complainant or to indulge so called “in external sexual intercourse”.
[34] The onus is on the State to prove the commission of the offence beyond a reasonable doubt. The evidence is not conclusive to found a conviction of attempted rape. This doubt must inure in favour of the Appellant. [35] In the result the conviction of the Appellant of attempted rape 11
is set aside and substituted by a conviction of indecent assault.
Ad Sentence
[1]
Indecent assault is less a serious offence than attempted rape and this has a bearing on sentence. The Appellant was sentenced to five years imprisonment after his conviction.
[2]
The Appellant is thirty (30) years old and a first offender. He is married and has two minor children, both attend school. The Appellant is a soldier. He earns R1800.00 per month. Appellant’s wife is unemployed. [3]
The complainant is seven years old, the injury she sustained is not serious. She sustained a bruise on her vestibule. Although there was no direct evidence led, she must have suffered some psychological trauma, as a result of this incident.
[4]
The Appellant was a friend of the complainant’s father. The complainant is a friend of Appellant’s children. There is a clamour in society that children should be protected from sexual molestation. The Courts are enjoined to impose appropriate sentences in cases involving adults sexually abusing children.
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[5]
In my view the deterrent aspect of sentence in cases involving sexual molestation is paramount. A custodial sentence is the only appropriate sentence under the circumstances as it justly indicates the court’s opprobrium to such offences. [6]
In the premises the sentence of five years imprisonment is set aside and substituted with the sentence of three years imprisonment. ___________________
R D MOKGOATLHENG
ACTING JUDGE OF THE HIGH COURT
I agree.
_______________
M T R MOGOENG
JUDGE PRESIDENT
I agree.
____________
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A A LANDMAN
JUDGE OF THE HIGH COURT
DATE OF HEARING
:
03 JUNE 2005
DATE OF JUDGMENT
: AUGUST 2005
APPELANT’S ATTORNEYS : HLAHLA MOTLHAMME RESPONDENT’S ATTORNEYS : STATE ATTORNEYS 14