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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

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

JOHANNESBURG

CASE NO: SS310/00

DATE:2000-05-22

In the matter between

THE STATE

and

MANDLA MOTHA..........................................................................................................Accused

JUDGMENT

WILLIS, J: Mandla Motha, the accused, was charged with the rape of M M on 12 December 1998- On 14 April 2000 he was convicted as charged in the Regional Court held at Roodepoort by the learned magistrate, Mr Nel.

The magistrate then referred the matter to the High Court for sentence in terms of the provisions of section 52 read together with section 51 of the Criminal Law Amendment Act No. 105 of 1997. The reason for this is that the accused had been found guilty of the rape of a person under the age of 16 years.

The matter has then come to me for sentence. Before I may sentence the accused, I must first, in terms of the Criminal Law Amendment Act aforesaid, be satisfied that the proceedings were in accordance with justice.

The accused has been represented by Ms Muller. She raised a number of criticisms of the judgment of the learned magistrate convicting the accused. I need not for purpose of this ruling deal with all these criticisms. Nevertheless, it seems to me that a doubt must exist as to whether or not the accused was correctly convicted of rape and accordingly a doubt must exist as to whether or not the proceedings were in accordance with justice.

The thrust of Ms Muller's argument is that the complainant was the only witness to testify as to the actual rape itself: in other words, the actual physical penetration of her vagina by the penis of the accused. As the learned magistrate has himself observed, there are a number of unsatisfactory aspects in the evidence of the complainant. It is unnecessary to deal with these in any great detail. I will, however, point out that there are discrepancies between the evidence which she gave in court and the evidence in the statement which she made to the police after reporting the incident. There are discrepancies between her evidence and that of her sister to whom she reported the incident. There are also discrepancies in the evidence of herself and one Jabulani in whose company she was immediately before the so-called abduction. She is a single witness. It is true that she says that the accused "net sy privaatdeel in my privaatdeel ingesteek". The question which arises is whether her evidence as a single witness is, in the light of the above, sufficiently reliable to secure the conviction of the accused beyond reasonable doubt.

In addition to what i have said, it is significant that although she was taken to a doctor after she complained of the incident and was examined by the doctor, the doctor did not testify in support of her case. She is also on the State case younger than 16 years of age and her evidence as to actual act complained of may not be sufficiently accurate to justify the drastic consequences of a conviction of rape of a woman under 16.

The evidence is, however, in my view, overwhelming that something untoward happened on the night in question. It is clear from the evidence as a whole, and indeed the evidence of the accused himself, taken together with that of other witnesses, that the complainant must have been abducted on the day in question. If I understand Ms Muller correctly, she accepts that the complainant was abducted on the day in question.

The accused's version, which was not really challenged and indeed is corroborated by the evidence as a whole, is that he was drunk on the day in question. It is clear that there had been a fair amount of drinking on the day in question. The question that arises is whether the accused was so drunk at the time that he would have been incapable of committing the actual act of physical intercourse.

If he was so drunk that he does not remember what he was doing, the question arises is whether he could have committed an act of indecent assault.

Taking everything into account, as well as the fact that it certainly cannot be found that the complainant completely fabricated events, the question arises as to whether or not the proper conviction should have been one of indecent assault which is a competent verdict on a charge of rape in terms of section 261 of the Criminal Procedure Act, No. 51 of 1977.

I would have been inclined to alter the conviction in this court from rape to indecent assault without further ado. 1 do after all have the benefit of the learned magistrate's reasons for judgment in the record that has been placed before me. Nevertheless, it seems to me that a correct reading of section 52(3)(e) read together with lb), requires that I should first obtain from the regional magistrate who presided at the trial "a statement setting forth his or her reasons for convicting the accused".

It may well be that the learned magistrate, having had the benefit of my observations at this stage, would wish to amplify further upon his reasons for judgment. Obviously it seems to me that should the regional magistrate not wish to add to his reasons, all he need do is indicate that he had nothing further to add to the reasons given in the judgment which is before me. He may even agree with my views above. Accordingly, the regional magistrate is directed to set forth his reasons for convicting the accused in terms of section 52(3)(b) of the Criminal Law Amendment Act 105 of 1997.

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