South Africa: High Courts - Gauteng

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: A1012/99

DATE:2000-05-30

In the matter between

MAJALEFA MANAMELA...............................................................................................Appellant

and

THE STATE............................................................................................................. Respondent

JUDGMENT

WILLIS. J: The appellant Majalefa Manamela was tried in the Roodepoort regional court with the rape of Z T a young girl on 13 July 1997. He was convicted and sentenced to seven years imprisonment. Ms Muir who appeared for the appellant did not persist in her arguments with regard to the question of sentence. I may say straight away that a sentence of seven years for a crime of this nature is an extraordinary lenient one and the appellant can consider himself lucky that the alleged offence was not committed before certain recent amendments to the law relating to compulsory minimum sentencing. Certainly the sentence does not induce a sense of shock, is not disturbingly inappropriate or excessive and there was no misdirection or gross irregularity with regard to sentence.

With regard to conviction Ms Muir submitted in her able argument that there were really two issues around which the appeal centred. The first was the question of the identity of the appellant and the second was whether his alibi could reasonably possibly be true. The evidence of the medical doctor who examined the complainant a few days after the alleged incident indicates that as a matter of overwhelming probability the complainant had been raped at or about the time that she alleges.

It is also clear from the evidence as a whole that there were complaints made soon after the alleged incident concerning the rape. Although Ms Muir did not expressly concede the point it seems to me that she accepts (in any event that would be my finding) that it is clear as a matter of strong probability that the complainant was indeed raped. There are certain discrepancies in the evidence presented by the state witnesses. These have been dealt with by the learned magistrate in his judgment. A fair summary would be that there are discrepancies as to the time or date on which the alleged rape exactly occurred, in other words whether it occurred on the Saturday or the Sunday perhaps even the Monday. There are discrepancies with regard to the precise sequence of events. There are discrepancies with regard to whether a dog had been seen in the vicinity and also where the complainant went exactly after she had gone to visit the house where the complainant stayed.

These discrepancies are not in my view so great as to cast a doubt over the evidence of the state as a whole. It is quite clear from the state case as a whole that the complainant had been sent to a neighbour's house to collect a hosepipe. This fact is materially corroborated throughout. And it is also quite clear that the house to which the complainant was sent to fetch the hosepipe was the house at which the appellant resided.

The question is why indeed would the complainant have fabricated a story about the identity of the appellant. There can be no question whatsoever of mistaken identity because the appellant was known to the complainant. The appellant himself concedes that the complainant knew him and can offer no satisfactory explanation for why she should falsely implicate him. It is also quite clear from the evidence of the young girl who was in the company of the complainant at the time that they walked over to fetch the hosepipe saw the appellant at the house in question. In my view there can be no question of a mistaken identity and the state case is sufficiently strong to discount the possibility of a fabrication concerning the identity of the appellant. The learned magistrate referred to the fact that it took a long time for the police to arrest the appellant after this incident occurred. Indeed it took more than a year. It is correct as Ms Muir submitted that one has not given any evidence as to why this should be. Nevertheless I wish to record that it is in my view strange that it would have taken so long to have arrested the appellant if he was residing all this time at his ordinary residence, particularly given the fact that there was a complaint against him so soon after the particular incident. If the arrest did not occur because the appellant mysteriously was absent from his ordinary residence the immediate question is why. I accept however that this aspect cannot conclusively decide the case but it is certainly a factor that I believe properly weighed with the learned magistrate.

With regard to the alibi the essential defence is that the appellant went to the home of his father on the day in question. The appellant called his father, his brother and his wife to corroborate this particular version. The essential difficulty with this alibi defence is that it is common cause that the appellant was arrested more than a year after the alleged incident. The going home on the day in question was an entirely routine every day occurrence and there is no particularly compelling reason why it should be" remembered that on this particular day the appellant went to his father's day or even if that fact is accepted why it should be remembered with such precision as to what time precisely he arrived at his father's house. The allegation regarding the time of this incident is that it occurred sometime around midday.

It is trite that in making a decision as to whether beyond reasonable doubt a person is guilty of the offence with which he is charged one must look at the totality of the evidence. Hardly ever does it occur that there can be no criticism whatsoever of the state case. I accept as was submitted by Ms Muir that criticisms can be levelled against the state case. Nevertheless if the evidence is viewed in its totality then in my view there can be no reasonable doubt that it was indeed the appellant who raped the complainant on the day in question. For these reasons I would dismiss the appeal against conviction and sentence.

SCHABORT. J: I would just like to add that in my view even if it is to be assumed that the appellant and his family were able to pinpoint the particular day with reference to the fact that he was to commence working at a place the next day is accepted, then I still think that the magistrate is correct in his assessment of the matter which is to the effect that the incident concerning the complainant occurred before they had gone away. The appeal is dismissed in toto.