IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO HIGH COURT, THOHOYANDOU HELD AT THOHOYANDOU

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA LIMPOPO HIGH COURT, THOHOYANDOU HELD AT THOHOYANDOU In the matter between: CASE NO: A15/2012 MPHO SIPHOLI MAKHIGI RAMULONDI KHUMBUDZO First Appellant Second Appellant and THE STATE Respondent CORAM: MAKHAFOLA J and KGANYAGO AJ MATTER HEARD ON 15 MAY 2012 JUDGMENT HANDED DOWN ON 30 MAY 2012 JUDGMENT Page 1 of 10

2 KGANYAGO AJ [1] This appeal is against the two appellants conviction and sentence of rape. The first appellant was charged with three counts of rape, whilst the second appellant was charged jointly with the first appellant on count 1. The three counts of rape were read with the provisions of section 51 of the Criminal Law Amendment Act 105 of The two appellants were found guilty on count 1 and sentenced to life imprisonment. The first appellant was found guilty on count 2 and sentenced to 10 years imprisonment. On count 3 the first appellant was found not guilty and discharged. [2] The first appellant is appealing on count 1 only wherein the sentence of life imprisonment was imposed upon him together with the second appellant. The alleged rape occurred on the 28 th February The complainant at the time of the alleged rape was seventeen years old. The trial was conducted in the Regional Court for Limpopo held at Sibasa, Thohoyandou. The appeal is placed before us after the petition for leave to appeal was granted by Ebersohn AJ and Maumela AJ on the 23 rd February [3] The two appellants are alleged to have raped a seventeen year old girl on the 28 th February 2007 at Tshisaulu Village. According to the complainant, she went to

3 make a telephone call at past 19h00. On arrival at the place where she was supposed to make a call, she found that the queue was long. She waited at the corner with two boys. [4] Whilst waiting there, the second appellant arrived with the first appellant. The second appellant requested her to accompany her, and she refused. The second appellant then hit her on the chest with a fist. After been hit by the second appellant, she ran away towards her homestead. She found the two appellants in the next street. They blocked her way. Appellant 1 told her that she can come and pass, they will not harm her. [5] When she was about to pass them, second appellant grabbed her by the hand and took her towards the dam. The second appellant had grabbed her in such a way that he had hugged her, and they walked towards the dam. The first appellant was walking on the other side next to them. She did not scream and also did not try to break loose. [6] On the way to the dam, the second appellant was proposing love to her. She did not accept the proposal. The second appellant told her that if she did accept his proposal, he is not going to assault her. She then accepted his proposal and they kissed each other. They then left the first appellant behind and walked further Page 3 of 10

4 into the bushes. When they were further in the bushes, the second appellant left her behind and went back to the first appellant to get a condom. When the second appellant came back, he took off her trousers and ordered her to take off her panty. They then had sexual intercourse. After they had finished, he ordered her to wear her clothes, and he left her behind. The first appellant did not see them when they were having sexual intercourse as he was at a distance. [7] When she was about to leave, she met first appellant who demanded to have sex with her. She refused. The first appellant harassed her and ordered her to take off her trousers. She took off her trousers. The first appellant put on a condom and inserted his penis into her vagina. After he had finished he threw away the condom and ordered her to wear her clothes. As she was about to leave, the first appellant started removing grasses on the back of her head. After that they went separate ways. [8] On her way back home she met the said two boys she was with at the phone place. She did not tell them about what has happened to her as she was afraid that they will go about gossiping. On arriving at home she reported to her aunt that she was raped by the two appellants. On arrival at home, she was bleeding as she was still a virgin.

5 [9] The aunt was called to testify. She confirmed that the complainant went to telephone her father and did not come back early. When she came back she was running and crying. She told her that she was raped by two boys. She told her to go to the clinic and the police. That was the version of the complainant in brief. [10] The two appellants have both pleaded consent. The complainant was medically examined the same day of the incident. The doctor recorded the following on the J88: There were not lacerations, tears or bruises on the body; 10.2 The clitoris was normal, but covered with blood; 10.3 There were no tears on the urethral orifice but it was covered with blood; 10.4 Labia majora, normal 10.5 Labia minora, normal, but covered with blood. The doctor came to the conclusion that there are signs of forced penetration. [11] The doctor who examined the complainant was not called in as a witness. If there were no tears on the complainant s vagina, where was the blood coming from. If there were no tears on the urethral orifice and labia minora, how did the doctor come to the conclusion that there was a forced penetration? Infact, on the gynaecological examination, the complainant vagina seemed to be normal. The Page 5 of 10

6 only abnormal thing found was the blood, and the doctor was not called to explain as to where the blood was coming from. The examining doctor has also recorded that he/she had admitted one finger into he complainant s vagina, but does not state which finger. Therefore, on the doctor s examination report, there are many discrepancies. The doctor should have been called to clarify. Without the doctor s clarification, the medical report is of no assistance to the court. [12] The evidence of the complainant as far as it relates to how she was allegedly raped, is that of a single witness and should be treated with caution. It also has some defects which cannot be ignored. When allegedly confronted by the two appellants, she did not run to her homestead which was a few paces from where the appellants found her. When she was walking with the second appellant to the direction of dam, they were hugging each other and at a certain stage they were kissing each other. At a certain stage, the second appellant went to request a condom from the first appellant who was at a distance. During that time the complainant was left alone. She had ample time to run away. She did not, but she waited for the second appellant to come back. There is no evidence that there was a struggle between the second appellant and the complainant before they had sexual intercourse. The complainant had also had time to remove her panty on her own.

7 [13] The first appellant did not see the second appellant and the complainant when they were having sexual intercourse. The first appellant ordered her to take off her clothes and she complied. She waited for the first appellant to put on the condom without running away. After they had sexual intercourse, the first appellant had time to remove the grass from the back of the complainant. If indeed she was raped, would the first appellant have had time to remove grass from the back of the complainant? That I find to raise some suspicion. [14] After the alleged rape, she met her two friends but don t tell them what has happened to her. I am mindful of the fact that a rape victim will tell whom she can confide in as to what has happened to her. But in this case, the said two friends were called in by the two appellants to come and testify and they denied ever seeing the complainant that day. That now explains why the complainant did not call them as her witness. When the complainant and the two appellants were walking towards the direction of the dam, they were from a residential area. On the way to the dam they have met several people. At no stage did the complainant scream for help. Nobody was putting a gun or knife on her, but was been hugged by the second appellant. [15] The complainant started to cry when she was about to reach her home. All along she was not crying. The only conclusion is that the complainant did not come Page 7 of 10

8 back early, and decided to falsely accuse the two appellants as she did not know what to tell her aunt. Counsel for both the state and the two appellants, have conceded that the court a quo should have given the two appellants the benefit of doubt as the state had failed to discharge the burden of proof beyond a reasonable doubt that the complainant did not consent to such sexual intercourse. Therefore, I am of the view that the conviction cannot stand and must set aside in relation to count 1. [16] Coming to sentence, it is common cause that the charge which the appellants were facing, was read with section 51(1) and (2) of Act 105 of Section 51(1) reads as follows: Notwithstanding any other law, but subject to subsection (3) and (6), a Regional Court or High Court shall sentence a person it has convicted of an offence referred to in Part I of Schedule 2 to imprisonment for life. [17] In terms of section 51(3)(a), when the court imposes a lesser sentence than imprisonment for life, it must be satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence. Imprisonment for life cannot be imposed lightly, the court must conduct a balancing exercise of all the relevant factors.

9 [18] The alleged rape was not brutal, the appellants were first offenders and the circumstances in which the alleged rape took place are also suspicious. The age of the appellants should also be taken into consideration. The court a quo has therefore, erred in failing to take into consideration the above mentioned mitigating factors by the appellants to constitute substantial and compelling circumstances. The counsel for both the State and the appellants, have conceded that the sentence of life imprisonment was excessive. [19] In the result, the appeal on count 1 is allowed. The conviction and sentence are set aside. The Head of the Prison is ordered to release second appellant with immediate effect. M F KGANYAGO ACTING JUDGE: LIMPOPO HIGH COURT, THOHOYANDOU I concur, and it is so ordered K MAKHAFOLA JUDGE : LIMPOPO HIGH COURT, THOHOYANDOU Page 9 of 10

10 APPEARANCES For Appellant: Mr M Madima Instructed by Thohoyandou Justice Centre For Respondent: Adv N R Nekhambele Instructed by Director of Public Prosecutions, Thohoyandou