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NORTH WEST HIGH COURT, MAFIKENG

CA.: 19/2010

In the matter between:

MOTSISI SOUL RAMOKATA …..........................................................Appellant

and

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

CRIMINAL APPEAL

HENDRICKS J, KGOELE J

DATE OF HEARING : 17 September 2010

DATE OF JUDGMENT : 26 November 2010

COUNSEL FOR APPELLANT : Advocate N.L. Skibi

COUNSEL FOR RESPONDENT : Advocate R. R. Makgaga

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JUDGMENT

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KGOELE J.

A. INTRODUCTION

1. The appellant was charged with the offence of rape read with section 51 (1) of Act 105 of 1997 and section 94 of Act 51 of 1997 in that the complainant was at the time of the commission of the offence “mentally retarded”. He was subsequently convicted and sentenced to a period of fifteen (15) years imprisonment. He now appeals against both the conviction and sentence.

B. FACTS

[2] The summary of the evidence before the trial court is to the effect that on the day of the incident one Tshepo found the door of the complainant’s home locked when he had gone there to feed the dogs, as was his usual practice. He is related to the complainant and does not reside far from the complainant’s home. The complainant usually is at home as she is not attending school nor working because of her mental condition (retardation). He looked for the key where it is normally kept when there are no people at the complainant place, could not find it, and then proceeded to the neighbour’s house to enquire about the keys as well as the whereabouts of the complainant. He received a report that the keys were with the complainant and that she was last seen entering her parental home’s yard.

[3] He then called the complainant on his cellphone and the complainant replied that she was inside the house. After about five minutes, the complainant and the appellant emerged from the house. He enquired from both of them what they had been doing inside the house. They did not respond at first, but on the second occasion the appellant told him that he had merely been sleeping on the sofa. When appellant had left, Tshepo asked the complainant again what they had been doing inside the house, it is then that complainant reported to him that appellant had sexual intercourse with her. He reported the matter to the accused mother who is a nurse.

[4] The mother confronted the complainant about the report from Tshepo, and complainant confirmed the report. In addition to the report, complainant’s mother testified that complainant is mentally retarded since birth, that is why she placed her at a special school and further that she is currently not doing anything. She is neither working nor attending any normal school. She is left home always. Further that she had taken the child to the psychologist as from the age of 9 years as she had realized that she was not mentally well. She is normally sent on errands at home which are simple. She does not speak properly and her speech is also not constructive.

[5] The state further led the evidence of a psychiatrist that examined the complainant after she was allegedly raped. She stated that from the report she received the complainant had been previously diagnosed as mentally retarded. At the time of the examination the complainant could not understand the concept why she was brought for examination. Although the complainant displayed signs of a traumatic experience which had further affected her current mental status, she still could only articulate or express what had happened in a story form and that made it possible to compile a report about her.

[6] The complainant herself also testified through the use of an intermediary. She confirmed that when Tshepo came looking for the keys of the house, she was inside the house together with the appellant, having locked the house from the inside. The accused was at that time raping her.

[7] The last witness to testify was the Clinical Manager of George Steggman Hospital who just read out and handed in the medical report that was compiled by Dr Moage who examined the complainant and had since left the hospital. The report’s findings were inconclusive of forceful penetration nor alleged sexual assault because of the fact that the victim had been menstruating at the time of the examination.

[8] The appellant testified and denied having sexual intercourse with the complainant. He admitted knowing the complainant for +- 15 years and that she was mentally retarded. He admitted that Tshepo found them at the complainant’s place, but that he found them sitted on the stoep. He had gone there to make some inquiries from the complainant’s mother concerning the treatment that he was given at the local clinic. He was surprised by the fact the Tshepo just upon his arrival confronted him and accused him of having had sexual intercourse with the complainant. At no stage did he ever enter the inside of the complainant’s house.

C. SUBMISSIONS

[9] The state made an early concession to the submissions and arguments as advanced by the appellant in support for his appeal, their submission will therefore be dealt with co-jointly in this judgment.

AD CONVICTION

[10] The appellant grounds of appeal revolves around two main issues namely:-

- that the state failed to prove that the complainant was indeed mentally retarded

- that rape was not proved beyond a reasonable ground against the appellant

PROOF OF MENTAL RETARDNESS / DEFECTIVENESS

[11] The appellant argues that the trial court erred by finding that the complainant was unable to consent to sexual intercourse by relying on the following:-

- The evidence of the complainant’s mother who is clearly not an expert.

- The evidence of a psychologist whose assessment of the complainant was to determine the effect that the alleged offence had on her and not to determine whether she was mentally ill or not. Furthermore that the said psychologist conceded under cross-examination that she last assessed the complainant in 2004 and therefore her report was invalid due to lapse of time.

- The medical form J88 whose author did not even testify. The mental illness noted on the said J88 was not based on the doctor’s personal examination but based on what he was told.

- The concession by the appellant that he knows the complainant to be a slow learner and that she attended a special school.

[12] This issue was also the main crux of the appellant’s submissions in the court a quo when applying for his acquittal. It is clear from the judgment of the court a quo that it dealt with this issue thoroughly. I fully agree with the reasoning of the court a quo that the issue of the complainant being mentally retarded was proven by the evidence before it and also that it was common cause. The evidence reveals that the child attended a special school (Remedial School). There is also a finding that appears in the report given by the psychologist that she was diagnosed as mentally retarded since the age of 9 years. The psychologist also confirmed that when she compiled the report about the effect of the alleged offence on the complainant. She also could observe that she was mentally retarded, and that her cognitive ability was impaired hence the complainant could only relate as to what happened in a story form. In addition, the mother of the complainant has thirty (30) years experience as a nurse. She fully understands what is meant by mental retardation and that is why she place the complainant in a remedial school after a diagnosis was made.

[13] In addition, the appellant himself conceded to the fact that he knows that there is something wrong with the complainant’s mental capacity and that she attended Remedial School. I am of the view that it is worth mentioning that the appellant when confronted with the question during cross-examination, why he had to sit with the complainant at the stoep and not leave the message with the complainant of him wanting to see her mother, he replied that he could not do so because complainant would not be able to relate the report to the mother due to her mental capacity. The fact that Tshepo was also entrusted with the function of feeding the dogs everyday in the presence of the complainant being at home add another dimension to the fact that complainant was well known to have been mentally ill.

[15] I am of the view that the submissions by the state and the appellant cannot stand in the face of such abundance of evidence that was before the court a quo that the complainant attended a Remedial School. Remedial Schools are meant to cater for people / children who are mentally challenged, hence the name “Remedial. I come to the conclusion that further medical evidence was not necessary in this matter.

RAPE NOT PROVED

[16] The other submission made by the appellant is to the effect that the complainant was a single witness and her evidence was not clear and satisfactory in all material respect as it consisted of material contradictions. In addition to this the state submitted that Tshepo also gave contradictory versions. Despite a detailed list of these contradictions that was supplied by both counsel, I found nothing in the record that supports the submission that the said contradictions are material and that they relate to the question the court has to answer, namely:- whether sexual intercourse took place or not. I will only deal with one of the contradictions that the state alleges that it was made by Tshepo which, according to my view relates to the question in issue.

[19] The state alleges, I quote:-

“ that Tshepo said he saw the accused and the complainant emerging from the house but later changed and said that he found them just sitting on the stoep. It is important to note that the latter version is consistent with that of the accused in the sense that the accused maintained that he never entered the house but sat on the stoep. (See record p 17 lines 7-12, r/w p24 lines 7-12)

[20] With due respect, a thorough perusal of the record of the proceeding from the pages mentioned by the state, reveals that the submission is not the true reflection of the record of proceeding of the trial court.

[21] A further search on the same page up until the last sentence of the page proved futile. Instead, this court found on the same page in line 17 and 18, the following answer by Tshepo, when the version of the appellant was put to him.

“ He was not outside. He was inside the house because I saw her, - him when they excited there.” (Sic)

Surely this is not a contradiction.

[22] The accused in this matter does not deny that he was found with the complainant by Tshepo, therefore, the question that the trial court was faced with was mainly whether the appellant had sexual intercourse with the complainant or not. The appellant’s further submission in this regard is that the J88 did not prove sexual penetration. Therefore, there is no corroborating evidence to the version of the complainant in as far as sexual penetration is concerned.

[23] The evidence of the complainant about the sexual penetration is indeed that of a single witness as the report J88 does not necessarily corroborate her evidence. It only reveals a small bilateral contusion on the labia minora which appeared to be quite recent. But a critical examination of the evidence as a whole reveals that there are other corroborating evidence supporting the version of the complainant on the issue which is in dispute. Tshepo testified that he found the door locked, he had to go to the neighbours to look for the key as he did not find it where it is usually placed when there is nobody at home. He had to phone the complainant to find where she is, the complainant replied that she was in the house. Tshepo further testified that complainant and appellant emerged from the house. This is part of Tshepo’s evidence that corroborates the complainant’s evidence that the sexual intercourse took place in the house and further that the house was locked when sexual intercourse took place as she testified.

[24] I find it highly unlikely that Tshepo could fabricate so many facts about this incident when he only found the appellant seated at the stoep. Those facts are:- that the house was locked; that he had to go to the neighbours who informed him that the complainant is at her parental place with the key; that he had to phone the complainant to find out about her whereabouts; that appellant told him that he was just sleeping in the house on a sofa; above all, that the two emerged from the house. Unfortunately the appellant did not advance reasons as to why Tshepo can falsely implicate him. Besides, all of this are credible evidence which renders the complainant’s version more likely that sexual intercourse took place. It further renders the complainant’s evidence reliable.

[25] I am thus satisfied that the trial court correctly found that the state proved beyond reasonable doubt that the complainant was raped.

AD SENTENCE

[26] The appellant’s counsel conceded in his heads of argument and again during his submission that the sentence that was imposed by the trial court was appropriate in the event the appeal on conviction does not succeed. In addition the state submitted that the trial court had misdirected itself by finding that the minimum sentence prescribed for rape r/w section 51 (1) is fifteen years but that this misdirection did not prejudice the appellant since fifteen (15) years is far less than the prescribed life imprisonment.

[27] The concessions made by both counsel are in my view well made and correct. I am of the view that they need no more further emphasis than what they had alluded to this court. There is therefore no need to interfere with the sentenced imposed by the trial court safe to say that the personal circumstances of the appellant that served before the trial court are such that cumulatively taken constitute substantial and compelling circumstances that would have warranted the court a quo to have deviated from the imposition of an imprisonment that has been prescribed for the offence the appellant was convicted of, that of life imprisonment.

D. ORDER

[28] The following order is thus made:-

28.1 The appeal against both conviction and sentenced is dismissed.

A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

JUDGE OF THE HIGH COURT

For the Appellant : Legal Aid of South Africa

Mafikeng Justice Centre

Mega-City Shopping Complex

East Gallery, 3^RD Floor

MMABATHO

2735

For the Respondent : Director of Public Prosecutions

Old Standard Bank Building

Cnr, Main & Robinson Street

MAFIKENG

2745

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