IN THE NORTH WEST HIGH COURT, MAFIKENG CASE NO: CAF 7/10. TSHEPO BOSIELO Appellant

Transcription

1 IN THE NORTH WEST HIGH COURT, MAFIKENG In the matter between:- CASE NO: CAF 7/10 TSHEPO BOSIELO Appellant ATANG BOSIELO First Second Appellant and THE STATE Respondent FULL BENCH APPEAL HENDRICKS J; LANDMAN J; GURA J DATE OF HEARING : 29 APRIL 2011 DATE OF JUDGMENT: 13 MAY 2011 COUNSEL FOR THE APPELLANT : COUNSEL FOR THE RESPONDENT: ADV MOREMI ADV MOGOENG 1

2 JUDGMENT HENDRICKS J [A] Introduction:- [1] The two Appellants stood trial (as accused numbers one and three respectively) together with Thulaganyo Motlhamme (as accused number two) [ Motlhamme ] in the Regional Court on charges of rape and robbery. Upon conviction, the trial proceedings were stopped and the matter was transferred to the High Court for sentence in terms of the provisions of Section 51 of the Criminal Law Amendment Act 105 of [2] The court a quo (per Leeuw J, as she then was) confirmed the convictions on the rape charge (count 1) in respect of both the Appellants, but did not confirm their convictions on the robbery charge (count 2). It is only in respect of Motlhamme (accused 2) that the conviction on the robbery charge was also confirmed. An imprisonment term of eighteen (18) years was imposed on each of the Appellants and Motlhamme on the rape charge. The Appellants appeal, with leave of the court a quo, their convictions. Hence this appeal. [B] Application for postponement:- [3] On the 13 th April 2011 a notice was filed in which Motlhamme indicated his intention to apply to this Court that the appeal be

3 postponed. It was submitted that his appeal should be heard together with that of the present two Appellants. This application for postponement was opposed by the Appellants. It was contended, and rightly so, that a postponement would delay the Appellant s appeal seeing that an application for leave to appeal had to be made first. At the hearing, Adv Mokoka, who appeared on behalf of Motlhamme, abandoned the application for a postponement. [C] Re-enrolment of the appeal:- [4] On the 10 th December 2010 this appeal was struck from the roll due to non-compliance with the Rules of Court and the Practice Directives of this division. No heads of argument was filed on behalf of the Appellants. On the 23 rd March 2011 a notice of enrolment was filed with the Registrar of this Court. At the hearing of this matter on 29th April 2011 an application was made for the re-enrolment of the appeal, which was duly granted. [D] Background facts:- [5] The facts can be succinctly summarized as follows. The version of the complainant X, is to the effect that on 15 January 2006 she was in transit to Palane. At a place called Moragong, she was waiting at a bus stop for transport at approximately 20H00, when a Citi Golf motor vehicle, in which the two Appellants and Motlhamme were travelling, emerged. She hitchhiked a lift from them. She boarded the motor vehicle and was seated on the back seat between Motlhamme and the First Appellant. Appellant no 2, 3

4 being the driver of the said motor vehicle, then asked her whether she had any money. She replied that she had R4-00. Motlhamme then forcefully searched her and removed a R note from her back jean trouser pocket. [6] They drove to a tavern, where Appellant no 2 alighted and bought four beers for them with the money of the complainant. The motor vehicle was then driven up to a ditch in the bushes where Motlhamme pinned the complainant down on the back seat of the vehicle. Appellant no 2 then removed her pair of jean trousers and G-string panties and raped her. He was followed by the two Appellants who in turn raped the complainant. After raping the complainant they drove off with her. By then the complainant was seated at the back with Appellant no 1. Motlhamme sat in front with Appellant no 2. Whilst the motor vehicle was still in motion, though very slow, she managed to open the door and made her escape. She ran to the parental house of her boyfriend, Umpile, where she made a report to him. She spent the rest of the night there. The following morning she reported to Umpile s mother and to the police. She also underwent a medical examination. Her version was corroborated by her boyfriend Umpile. [7] The versions of the two Appellants and Motlhamme are diametrically opposed to that of the complainant. On their version, the three of them were together as friends on the day of the incident. They were however not driving a Citi Golf motor vehicle but a bakkie owned by the parents of Appellant no 1. The complainant did not hitchhike a lift from them. Instead, Motlhamme met the complainant at the tavern of Accused 1 s

5 parents. They conversed whereupon he proposed love to her. She accepted his proposal and he arranged with Appellant no 1 for a room where he and the complainant had some privacy. [8] After spending some time in the room, Motlhamme then took the complainant home. He returned to Appellant no 1 s place and spent the rest of the night there. The two Appellants deny that they had any sexual encounter with the complainant. Motlhamme s version is that he had consensual sexual intercourse with the complainant. Warren, a friend of the Appellants, was called as a witness to corroborate their version that the complainant was at the tavern at Appellant no 1 s place where she had consumed a Redd s cider. He could however not remember the date of the incident. [9] As a starting point, it is common cause between the complainant and the Appellants (and also Motlhamme) that they were not well known to each other. In fact, they only knew one another by sight, before the date of the incident and were not even acquaintances. Furthermore, it is common cause that all three of them were together on that particular day when they met the complainant, although under different circumstances and at a different place altogether. [10] Seeing that the versions of the complainant on the one hand and that of the Appellants and Motlhamme on the other hand are diametrically opposed to each other, the courts a quo (Regional and by implication also the High Court) looked at the probabilities to determine whether the State had succeeded in proving the guilt 5

6 of the Appellants (and Motlhamme) beyond reasonable doubt. The trial court questioned itself in the process of determining the facts, amongst others as to why would the complainant, for no rhyme or reason, sketch a total different scenario of the events to that of the Appellants (and Motlhamme), not only with regard to the time and place where the incident occurred but also with regard to the fact that all three of them and not only Motlhamme, had sexual intercourse with her. Furthermore, it defies all logic that she would, for no apparent reason, implicate the two Appellants whom she not only did not know well, but also had no ill-feelings towards them and harboured no grudge against them. [11] The complainant s actions were also consistent with that of a victim who suffered a rape ordeal. When she managed to escape from the Appellants, she made her way to her boyfriend to whom she reported at the first available opportunity the fate that she suffered. This goes against the grain of the evidence of Motlhamme who testified that the complainant expressed to him her dissatisfaction about her love relationship with Umpile. If that was indeed true, the complainant would never had made her way to Umpile in the wee-wee hours of the night (03H00 am) when she was released by her new found lover ( new boyfriend ) and complain not only to him but also to his (Umpile s) mother and lay a charge with the police. [12] It is also highly improbable, to say the least, that the complainant who was merely fifteen (15) years of age at the time, would meet a stranger at night, accept his love proposal, sleep and have sexual intercourse with him, get up and proceeded to her boyfriend and

7 report that she was raped, not only by the new boyfriend, but also gang raped by this new boyfriend s two friends. [13] Much have been made about the fact that the robbery of the R note by Motlhamme was not reported to Umpile and that it may well be an afterthought. It is not difficult to comprehend that in her traumatic state of mind, the complainant omitted to convey that to Umpile. But, be that as it may, this omission by the complainant at that stage does not materially affect her credibility as a witness. [14] It was contended on behalf of the Appellants that the learned Regional Magistrate misdirected himself by not analysing and evaluating the evidence tendered by the Appellants or did not do so appropriately. It is quite apparent from the judgment that the learned Regional Magistrate did take into account the evidence tendered by the Appellants, their co-accused and the witness Warren. In evaluating their evidence, the learned Regional Magistrate quite correctly considered the evidence tendered by the defence holistically and even considered the probabilities and improbabilities. The Regional Court made strong credibility findings in favour of the complainant, which findings cannot be faulted. [15] Applying the correct test in criminal trials, the Regional Court quite correctly concluded that the guilt of the Appellants were proven beyond reasonable doubt. The confirmation of the decision of the Regional Court Magistrate by the High Court can also not be faulted. 7

8 [E] [16] In my view, looking holistically at the proven facts, the finding of the court a quo, with regard to the rape charge cannot be faulted. The State succeeded in proving the guilt of the Appellants beyond reasonable doubt. The appeal against conviction should therefore fail. [G] Conclusion:- Order:- [17] Consequently, the following order is made:- The appeal against conviction is dismissed. R D HENDRICKS JUDGE OF THE HIGH COURT I agree. A A LANDMAN JUDGE OF THE HIGH COURT I agree. SAMKELO GURA JUDGE OF THE HIGH COURT