---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

NORTH GAUTENG DIVISION, PRETORIA

 

(1)           NOT REPORTABLE

(2)           NOT OF INTEREST TO OTHER JUDGES

(3)           REVISED.

CASE NO: A384/2016

13/4/2018

 

In the matter between:-

 

TLHORISO PETRUS MOTAUNG                                                                     APPELANT

 

versus

 

THE STATE                                                                                                            RESPONDENT

JUDGMENT

 

MSIMANG, AJ

[1]         The Appellant appeals against a conviction for rape of a 7 year old girl. He was charged on the 20^th March 2011 at Jouberton in the Regional Division of North West in that the Appellant did unlawfully and intentionally commit an act of sexual penetration with a minor child, UM, by inserting his finger into her vagina without her consent.

[2]         The Appellant pleaded not guilty to the charge and elected to remain silent. However, an agreement was reached between the State and the defence for the admission of the birth certificate of the minor child and the Form J88 being the medical report of Dr Rawat who examined the minor child. The admitted documents were marked Exhibits A and B.

[3]         Ms Dorothy Jass was used as an intermediary following an unopposed application in terms of Section 1?0(A) of the Criminal Procedure Act. She was duly qualified for the brief and assisted the minor child during her testimony.

[4]         The minor child was admonished by the court in order to make her to appreciate the meaning and the import of an oath. She testified that on the day in question she went to the tuck shop in order to ask for cake crumbs. While at the shop she met the Appellant who was known to her as "Oom Koos". He requested her to accompany him and he promised that he was going to give her R5-00 (five rand). She obliged and accompanied him. They walked into an open veld where there was grass and bushes. He undressed her by taking off her pants and her panty. He told her that she had a beautiful thing and kissed her buttocks. He then proceeded to insert his finger into her vagina. She cried, picked up her clothes, put them on and ran away whilst crying. She reported the incident to her mother.

[5]         EM, the mother of the minor child testified that she confronted Oom Koos and reported the matter to the police. The minor child was referred to a local medical facility where she was examined by Dr Rawat who compiled the J88 medical report form.

[6]         Dr Rawat's report indicated that after medical examination the nature of the minor child's injuries were a fresh perforated hymen at 7 o'clock which was consistent with a finger that was inserted in the vagina of the minor child.

[7]         The State called Lilian Kwane an adult female who testified that on the day in question she saw the Appellant walking with the complainant. She went passed them and later she saw the complainant emerge from the veld running and crying. She inquired from her what has happened and she did not reply and continued running. She then saw the Appellant coming from the very same veld.

[8]         The Appellant was initially represented by Ms Mohammed. She cross­ examined the complainant and her mother. She put it to them that the Appellant would argue that on the day in question the complainant asked him for money and he told her that he does not have it and left her. He would deny that he promised her R5-00 (five rand), took her to the veld, undressed her, kissed her buttocks and inserted his finger into her vagina.

[9]         The Appellant was later represented by Ms Odendaal. She cross-examined Lilian Kwane and led the evidence in chief of the Appellant. The Appellant testified that on the date in question he saw the complainant and her brother. They were both happy to see him. He hugged them and gave them R2-00 (two rand) each and he left. He denied the version of the complainant and all her witnesses.

[10]      In argument the State asked for the conviction of the Appellant. Ms Odendaal on behalf of the Appellant accepted the version of the complainant, her mother, Dr Rawat and Lilian Kwane. She actually conceded that her client is guilty of the charges before court.

[11]        The court summarised · the version of the State witnesses and found the testimony of the witnesses to be satisfactory. The version of the Appellant was rejected. The Appellant was found guilty and convicted as charged.

[12]        The Appellant served a notice of appeal against sentence only and subsequently served a notice of appeal wherein he now seeks to appeal against both conviction and sentence. I indicated earlier that the trial court carefully examined the evidence of the complainant and her witness and found it to be satisfactory. Same, however, cannot be said about the evidence of the Appellant. He put different versions to the witnesses and of importance Ms Odendaal conceded that the case of the defence was non-existent and that the State case was strong.

[13]        It is indeed so, as argued in the Appellant's heads of argument that the guilt of the accused must be proved beyond reasonable doubt in a criminal trial. The correct approach is to weigh up the elements which point towards the guilt of the accused against all those that are indicative of his innocence, taking proper account of probabilities and improbabilities on both sides. Having done so it must be decided whether the balance weighs so heavily in favour of the State so as to exclude any doubt about the accused's guilt. See S v Chabalala[1].

[14]        S v Francis 1991 (1) SACLR 198 at 204 c-d Smallberger JA said:

"This court's powers to interfere on appeal with the findings of a trial court are limited (R v Dhlumayo and another 1948 (2) SA 677 (A)). Accused no. 5's complaint is that the trial court failed to evaluate D's evidence properly. It is not suggested that the court misdirected itself in any respect. In the absence of any misdirection the trial court's conclusion including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused no. 5 must therefore convince us on adequate grounds that the trial court was wrong is accepting D's evidence - a reasonable doubt will not suffice to justify interference with its findings."

 

[15]       The Appellant has accordingly not been able to demonstrate why this court should interfere with the findings of the trial court particularly in view of the fact that the testimony of the State witnesses was strong and satisfactory in every material respect and the defence conceded that the State's case was beyond reproach. The court was correct in convicting the Appellant as charged and the conviction stands to be confirmed.

 

AD SENTENCE

[16]        The Appellant has appealed against the sentence imposed in terms of the provisions of section 51 and Schedule 2 of provisions Criminal Law Amendment Act 105 of 1977. The Appellant was duly warned of the provisions of the Act and the prescribed minimum sentence.

[17]        In Malgas 2001 (1) SACR 469 (SCA) it was held that:

"The courts are required to approach the imposition of sentence conscious that the legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe standardised and consistent response from the courts. These sentences are not to be departed from lightly and for flimsy reasons."

[18]       In S v Matyityi 2011 (1) SACR 40 (SCA) at page 41 (h-j) the court held that: "There was all too frequently a willingness on the part of the courts to deviate from the sentences prescribed by the Legislature for the flimsiest of reasons. Courts had a duty, despite any personal doubts about the efficacy of the policy, or aversions to it, to implement those sentences. The constitutional order could hardly survive if courts failed properly to patrol the boundaries of their own power of the other arms of State. Parliament had ordained minimum sentences for certain specified offences and these were to be imposed, unless there were truly convincing reasons for departing from them. Courts were not free to subvert the will of the Legislature by resort to vague, ii/­ defined concepts such as relative youthfulness or other equally vague and ii/­ founded hypothesis that appeared to fit the particular sentencing officer's notion of fairness. Predictable outcomes, not outcomes based on individual whim, were foundational to the rule of law that lay at the heart of the constitutional order."

[19]        The Appellant has not demonstrated that there are any substantial and compelling circumstances attendant to his person which can justify the court in deviating from the imposition of the prescribed minimum sentence.

[20]        In the result the appeal against conviction and sentence stands to be dismissed. I propose the following order:

 

ORDER:

1]         The appeal against conviction and sentence is dismissed.

 

 

 

HMS MSIMANG AJ

 ACTING JUDGE OF THE HIGH COURT

 

 

 

I agree and it is so ordered

 

 

 

MAUMELA J

JUDGE OF THE HIGH COURT

 

Date of hearing: 06/02/2018

Date of Judgement:

Counsel for the Appellant:           Adv. Mkgagara

Attorneys for the Appellant:

Counsel for the Respondent:

Attorneys for the Respondent:

---