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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

                                                                                                             CASE NO: CA 15/2015

In the matter between:

KANGELA THOMAS MAWELELA                                                      APPELLANT

And

THE STATE                                                                                             RESPONDENT

LANDMAN J; GUTTA J

JUDGMENT

Landman J:

Introduction

[1] K T Mawelela, the appellant, appeals against his conviction by the Regional Court for the Division of Themba on one count of rape (two acts of penetration) ie a contravention of section 3 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) Act 32 of 2007 and against the sentence of life imprisonment imposed upon him. The appeal serves before us as an automatic appeal in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977.

[2] The notice of appeal was filed late and an application for condonation has been made. The respondent does not oppose the application. However, the notice of appeal takes the form of submissions (it may have been heads of argument) so that the notice requires this court to seek the grounds amidst the submissions. The notice of appeal is defective. However, this court decided to condone these defects.

The conviction

[3] The appellant pleaded not guilty and in his plea statement he admitted having sexual intercourse with the complainant but said that this occurred with her consent.

[4] It was submitted that the court a quo should have found that the appellant and the complainant were in a relationship. The complainant said that this was not the case. The complaint resided in Turffontein, Johannesburg and returned to her parental home for the weekend. The appellant contradicted himself as regards the time of commencement of the relationship between them. He also testified that they terminated the relationship on the night in question before having sexual intercourse at a shack attached to his parental home. This was not put to the complainant. He also explained the complainant’s injuries by saying that she told him they were caused by her husband.

[5] Appellant’s witness, Peter Molaudzi, testified that he thought that the complainant and the appellant were in a relationship.

[6] The medical report on form J88 states that the complainant ‘sustained injuries on the neck, left thigh and left leg, bruises, scratches.’ It is noted that the clothing the complainant brought along with her, that she wore at the time of the incident, were dirty. No injuries were found on her private parts. The medical examiner concluded that the presence of injuries on the neck and thigh were in keeping with the possibility of an assault.

[7] The appellant’s witness, Ms Mpho Kekana, testified that at the time of the incident she was still the appellant’s girlfriend. She was at a social club at the time of the incident. She said that the complainant is his girlfriend. She said that when she was following the appellant to talk to him, the complainant pushed her saying ‘he is also my boyfriend’ and she spilt the witness’s liquor on to her. There was no further physical altercation. The complainant said that she did not recall this incident.

[8] Peter Molaudzi testified that he left the stokvel in the company of the complainant and the appellant. When they reached his turn off, the complainant and the appellant carried on walking. He said they were happy.

[9] It is common cause that the complainant and the appellant arrived at his parental home and entered into his shack. The complainant said that she had been screaming up until that point and that the appellant had throttled her on the way there. She said that after she entered the shack she again started screaming. The appellant’s sister, who was residing in the house to which his shack was attached, came into the room and saw her naked. The appellant had made her take off her clothes. She said the sister told him that he should leave her because he can see that she does ‘not want to do as he was saying.’ His sister told him to take her home. According to the complainant the appellant then said to his sister ‘it is okay, he will leave me because he can see that what I am doing is because I am under the influence of liquor and then he agreed to take me home.’

[10] They left his home but instead of taking her home the appellant forced her into another shack, which it later transpired belonged to her sister’s boyfriend. There he beat her with a rod and compelled her to undress. She had taken her panties off in his bedroom on his instructions and left them there together with her shoes. The appellant then raped her twice.

[11] The State called the appellant’s sister, Doreen Mawelela, as a witness. She testified that on the night in question she heard the appellant talking and a female screaming in his room. She heard her cry. She went there but did not enter his room. He said that he had chased Mpho, his girlfriend, away. Doreen said she advised him ‘but you just leave her’. He told her to go back to sleep. Doreen said, on being asked why the female was screaming ‘maybe in afraid of maybe being assaulted by the accused. That is what I thought.’ Under cross-examination Doreen was asked what this female had said and she replied it was like ‘trying to, you know, to tell the accused in a way that he must not try or attempt to assault her. And it was not like screaming or crying but:  ’It is like just forbidding the accused like what he was about to do, beat her.’

[12] It was submitted by counsel for the appellant that the complainant had not made a complaint to Doreen that the appellant assaulted her and forced and dragged her to the bedroom. This failure, it was submitted, is indicative that she was falsely implicating the appellant in the assault. Doreen’s evidence is clear that the female person (the complainant) was in fear of an assault by the appellant. The complainant’s evidence was that Doreen saw what was happening because she had entered the room.

[13] The appellant’s own version is that after Doreen had inquired about the noise being made, he and the complaint had consensual intercourse in his shack and slept there until morning.

[14] Kgomotso, the appellant’s niece, said that he heard the sound of an argument coming from the appellant’s room and Mpho’s name was mentioned. His mother went to reprimand them. He says that the next day he was going to the Saturday School and he saw the appellant and the complainant coming from the appellant’s bedroom and it seemed that the appellant was accompanying the complainant home. Under cross-examination he said that he was sure he had seen them. It was pointed out that the day in question was a Sunday and not a Saturday. He said he heard the sound of a door opening and when he went out he saw the appellant and the complainant in the distance; she was wearing shoes.

[15] The learned Regional Court Magistrate, with good reason, accepted the evidence of the state witnesses and the medical report. He also paid particular attention to the safeguards regarding a single witness. The learned Magistrate rejected the appellant’s evidence and although he summarized the evidence of the two defence witnesses he did not comment on them. But a judgment need not traverse every issue. It may fairly be implied that the learned Magistrate did not accept their evidence. The evidence of Kgomotso had the hallmarks of a fabrication. Molaudzi’s evidence is a neutral factor. Doreen concluded that plaintiff feared an assault by the appellant and that she was forbidding him to do something. The complainant was warding off being raped by the appellant. The complainant’s evidence that the appellant took her away from his home after his sister spoke to him is most probable and corroborates her evidence. Her injuries are consistent with her being assaulted and throttled. The court a quo did not believe the appellant. He contradicted himself in important respects. 

[16] I conclude that the state proved its case beyond reasonable doubt. The appellant’s version is not only improbable but false.

[17] It follows that the conviction must stand.

Sentence

[18] It is contended that the learned Magistrate erred in not finding that there were substantial and compelling circumstances present that would have permitted him to impose a lesser sentence. Counsel contended that the following facts and circumstances were sufficient to justify such a finding:

·        The appellant’s personal circumstances as a whole;

·        The appellant was intoxicated at the time; and

·        His moral blameworthiness was reduced.

[19] The personal circumstances of the appellant to which mention has been made consist of the following:

·        He had previous convictions (for unlawful possession of a firearm and robbery; for the latter he was sentenced to 10 years imprisonment).

·        He was born on 13 March 1972.

·        He is married and has one child. The probation officer was unable to confirm that his wife was pregnant as he alleged.

·        He has never had permanent employment. He sold sweets and cigarettes to make a living.

·        He went to school until standard 3.

[20] The following facts and circumstances also have a bearing on the matter of sentence:

·        According to the probation report he does not acknowledge his crime.

·        The complainant suffered trauma and her relationship with her family has suffered as they wished her to withdraw the charge against the appellant.

·        She is isolated and withdrawn.

·        She separated from the father of her child as a result of the rape.

·        The appellant did not use a condom.

·        She contracted a terminal illness.

·        She suffered pain and received hospital treatment.

[21] Society has an interest that women should not have their dignity and their bodily integrity infringed and that those who perpetrate such crimes should be punished appropriately.

[22] The learned Magistrate carefully considered whether there were any substantial and compelling circumstances present but found that he was even unable to find any mitigating circumstances.  I am unable to fault the Magistrate’s finding. As there were no substantial and compelling circumstances present, the learned Magistrate was compelled to impose this sentence.

Order

[23] In the result I make the following order:

1.     The application for condonation is granted.

2.     The appeal against conviction and sentence is dismissed.

 

A A Landman

Judge of the High Court

 

I agree

N Gutta

Judge of the High Court

APPEARANCES:

 

Date of hearing:                                                   26  June 2015

Date of Judgment:                                               2 July 2015

 

Counsel for the Appellant:                               Adv B Segone

                                                                                       Instructed by:

                                                                                       The Mafikeng Justice Centre

 

Counsel for the Respondent:                            Adv D G Jacobs

                                                                                       Instructed by:

                                                                                       The Director of Public Prosecutions

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