---

 

IN THE HIGH COURT HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

APPEAL NO:  CA 17/2023

CASE NUMBER: RCA 103/2019

Reportable:   YES

Circulate to Judges:                                   YES

Circulate to Magistrates:                     YES

Circulate to Regional Magistrates:               YES

 

In the matter between:

 

KGOMOTSO PETRUS TSHUKUDU                                   APPELLANT

 

and

 

THE STATE                                                                           RESPONDENT

                                                                                          

 

Coram:                                Hendricks JP, Petersen ADJP

 

Heard:                                 04 August 2023

 

Delivered:                           28 September 2023

 

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 10h00AM on 28 September 2023.

 

ORDER

 

On appeal from: Regional Court, Mogwase, North West Regional Division, (Regional Magistrate Motsomane sitting as court of first instance):

 

1.     Condonation for the late noting and prosecution of the appeal is granted.

 

2.     The appeal against conviction is dismissed.

 

3.     The appeal against sentence is upheld.

 

4.     The sentence imposed is set aside and is substituted with the following sentence:

 

“Twelve (12) years imprisonment, antedated to 9 September 2012.”

 

5.     The appellant should be released immediately from prison with regard to this matter.

 

JUDGMENT 

 

PETERSEN ADJP

 

Introduction

 

[1]        The appellant was tried and charged in the Regional Court, Mogwase before Regional Magistrate Motsomane with the offence of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with section 51 and Part 2 of the Criminal Law Amendment Act 105 of 1997 (‘the CLAA’). The State alleged that the appellant on or about 10 September 2009 and at or near Lerome in the Regional Division, North West Province, unlawfully and intentionally committed an act of sexual penetration with AM (full names not disclosed to protect the identity of the complainant), a 15 year child, by inserting his penis in her vagina, without her consent.

 

[2]        The trial commenced on 6 December 2010. On 9 September 2012 the appellant was convicted and sentenced to twenty-five (25) years’ imprisonment on 19 September 2012. On 30 April 2019 leave to appeal was granted against conviction and sentence by Regional Magistrate Pako.

 

[3]        The appeal served before this Court on 4 August 2023 and was disposed of on the papers at the discretion of the Court.

 

Condonation

 

[4]     The appellant seeks condonation for the late prosecution of the appeal. The main contention in support of the application for condonation is that the appellant initially struggled to have the trial record transcribed, which was occasioned by the Clerk of Court, Mogwase. The respondent does not oppose the application for condonation solely on the basis that there is merit in the appeal against sentence.

 

[5]     In light of the view this Court takes of the matter, condonation should be granted.

 

The grounds of appeal

 

[6]   The appellant assails his conviction and sentence on the following grounds:

 

         “AD CONVICTION

 

1.    The Honourable trial court erred in finding that state proved its case beyond reasonable doubt and that the version of the appellant was false.

 

2.    The appellant did not receive a fair trial in that the trial court forced him to proceed without assistance of legal representative after state case was closed.

 

3.    The trial court committed a serious irregularity in invoking the provisions of section 342A(3)(a) of the Criminal Procedure Act 51 of 1977.

 

4.    The Honourable court failed in its duty to assist the unrepresented appellant in presenting his case.

 

           AD SENTENCE

 

5.    The Honourable regional court acted irregularly when it imposed a sentence of 25 years imprisonment on appellant for raping complainant.

 

6.    The Honourable court made a finding that the state failed to prove the complainant was less than 16 years of age at the material time and therefore, misdirected itself in purporting to act pursuant to the provisions of section 51(1) Part 1 of Schedule 2 of the Criminal Law Amendment Act 105 of 1997.”

 

Factual background

 

[7]     The only evidence adduced by the State at the trial which commenced on 06 December 2010 was that of the complainant (AM) and the principal of her school, Mrs Hope Mamaloto Mtsileng. AM who was 14 years old on 10 September 2009 according to her evidence, resided in Lerome with her stepfather (the appellant), her mother and younger sibling. According to the initial testimony of AM, her mother left for her parental home at Mogong on Thursday 10 September 2009 at around 22h00, which she later changed to earlier Monday, and added that her mother left with her younger sibling to attend a ritual ceremony. Contextually, on the Tuesday she sojourned at her uncle’s home. On the Wednesday she stayed at the home she shared with the appellant and where the rape occurred on the Thursday.  

 

[8]    On the date of the alleged rape as aforesaid, the appellant returned home from a visit to the neighbours and found AM busy with her homework for school. He told her that it was late, that she should go to sleep and complete her homework in the morning. As she was asleep the appellant called out to her. When she responded he intimated that he wanted to share some secrets with her, but whatever he shared with her, she should not disclose to her mother. In return, the appellant promised to do anything for her, including giving her money, which she should similarly not disclose to her mother. The appellant then asked her to engage in sexual intercourse with him, as he loved her. He told her that he was jealous and afraid to tell her. AM refused the proposition and told the appellant that she was still young, but he retorted that she was no longer a child, but grown up and no longer in primary school.

 

[9]    The appellant proceeded to where AM was sleeping on the floor. AM told him that she was having her menstrual cycle, which was a lie. The appellant unperturbed, proceeded to fondle her private parts, undressed her of her pyjama pants and panties, and kissed her. When he placed his penis between her thighs, she remonstrated that he would not penetrate her vagina. The appellant, however, proceeded unabated and without the use of a condom to ultimately penetrate her vagina. The penetration was accompanied by what AM described as up and down movements on top of her. The severity of the penetration occasioned her so much pain, that she was left crying. The appellant handed AM a towel and instructed her to wipe the sperm from herself. The sheet on which she was sleeping, and the towel handed to her was smeared (covered) in sperm. AM hid the sheet and towel to show to her mom, upon her return from Magong.

 

[10]  AM did not sleep that night and lay crying. The following morning when the appellant woke up, he instructed AM to lock the house, and he left for work. The appellant further gave her R50.00 to go to Magong later that day. AM packed her clothing in a bag. At the time of this incident, AM would travel to school with the principal of the school. When she boarded the principal’s motor vehicle, the principal asked her where was going with a bag. AM immediately reported to the principal that she had been raped by the appellant, the previous evening. The principal asked for her mother’s contact numbers, but did not know it. AM, however, was able to provide the contact number of her uncle. The principal attempted to get hold of her mother, but to no avail, until the following day.            

 

[11]   AM, in the context of her evidence as a whole, left for Magong on the Friday following the alleged rape. When her mother found her in Magong, she observed that AM’s eyes were bloodshot and swollen. When her mother asked what happened, AM reported that the appellant raped her the previous evening. Her mother instructed her not to report the rape to anyone, on the premise that she would decide what could be done, when they leave for home on the Sunday. When AM asked her mother if she would take her to the clinic, her mother told her that she would not because she had already bathed and that there was no direct evidence against the appellant. Her mother further told her that if she reports the incident there would be evidence and the appellant would be arrested.

 

[12]   On the Sunday, AM and her mother left for Magong in the company of her uncle. Along the way, her mother asked her whether she should confront the appellant about the incident, to which AM agreed. Upon arriving home, AM overheard her mother and the appellant engaged in conversation behind the house. The conversation prompted AM to rush to her uncle’s home, where she reported the rape by the appellant to him. Her uncle proceeded to her home where he assaulted the appellant; and instructed the complainant’s mother to pack the complainant’s clothing which was to be taken to his home. He further instructed that AM was to be taken to the police station the following day, to report the incident.

 

[13]  Instead of proceeding to the police station, her mother took her to Mogwase to see the social workers. AM was instructed by her mother to change her statement, to say that the appellant only placed his penis between her thighs, but did not penetrate her vagina. The reason for this, her mother said, was that the appellant would be arrested, and they would have nobody to maintain them. Whilst at the social workers, AM was scared by the presence of her mother and relayed what her mother had instructed her to say to the social worker. The social worker nevertheless referred them to the police station, where her mother remained with her.

 

[14]   Following the assault of the appellant at the hand of her uncle, the uncle was charged with assault. As a result of a contention put to her uncle during the assault trial, that AM had reported an attempted rape and not rape against the appellant, he confronted her about this purported lie. AM informed her uncle that she did so, by order of her mother.

 

[15]  In cross examination, it emerged that the appellant had previously spoken to AM with sexual overtones. According to AM, during the year 2000, when she shared a bed with the appellant, he fondled her private parts. At that time, however, he had not said anything to her. AM went on to explain that in respect of the present charge, that she reported to the principal that the appellant first placed his penis between her thighs and ultimately penetrated her vagina.

 

[16]   The version of the appellant as relayed to AM, was a bare denial of any rape, which he contended was so because she did not report it to the principal. The version of the appellant was elaborated on as follows. That when AM returned from her uncle and aunt’s place on the Tuesday, he was surprised as she would never stay there in her mother’s absence. He, however, took no issue with it as he did not want her to feel uncomfortable. He indeed went to the neighbours’ that evening and when he returned the door was locked. Once AM opened for him, she went to sleep. The appellant consumed the food which AM had prepared for him, and he too went to sleep until he was woken up the next morning by AM’s aunt, who was accustomed to doing so every morning, as he would then prepare himself and leave with her.

 

[17]     As to the sheet and towel which AM testified she hid to show her mother, she maintained that when reported to a police officer, one Selebe, he dismissed it as being no proof that the sperm belonged to the appellant. AM conceded that among the items she packed in her bag were the towel and sheet, which she did not tell the principal about. As to why she did not show these items to her mother, it was said that her mother took her for granted. She conceded that she did not tell the court in examination in chief that she had taken these items with her. The social workers were also told about the sheet and towel, and she conceded this was also not mentioned in evidence in chief.

 

[18]  The remainder of the contentions put to AM were predicated on speculative hypotheses of the appellant on why AM would falsely implicate him. These speculative hypotheses are best summed up in the introductory words of his attorney, that “…in his fishing expedition he thinks that…”. Nothing turns of the conjecture of the appellant.

 

[19]   Ms Mtsileng confirmed that she was the principal at the school that AM attended and only knew her as a learner who started at the school in 2007 until she left in 2009. AM used to travel to school with her in her private motor vehicle. During a morning in September 2009, AM boarded her vehicle carrying a bag. She was crying. When she asked why she was crying, she reported that the appellant had raped her the previous evening.

 

[20]     The cross examination of Ms Mtsileng was very protracted and directed at questioning whether AM in fact reported the rape to her, why she did not take AM to the clinic, and why she did not report the incident to the police. Overall, Ms Mtsileng maintained that the rape was reported to her. She confirmed previous reports by AM and dismissed any contentions that she was untruthful in her evidence.    

  

[21]   As indicated above, the only evidence adduced by the State was that of AM and Ms Mtsileng. At the close of the case for the prosecution, the progression of the trial took a drastic turn resulting in the appellant conducting his own defence.

 

[22]   The appellant’s evidence, in circumstances where he was conducting his own defence, is a bare denial. The appellant initially testified about the circumstances relevant to his arrest. When guided by the Regional Magistrate that what was relevant was the allegation that he raped AM, the appellant’s evidence was essentially as follows. AM was not residing with him. The mother of AM left his residence on the Monday when the rape is alleged to have occurred. He remained at his residence with his younger sister. AM at that stage was residing at her uncle and aunt Brigette’s residence. When he arrived home from work on Tuesday, he found AM with his sister at his residence, before his sister left for Zeerust. As AM arrived with her clothing at his residence, he asked her why she was there with her clothing. The following day, Wednesday, he asked Brigitte if she had an argument with AM to cause her to move to his residence. Brigitte told him that when she went looking for him on Tuesday, she found AM seated at a table at his residence, busy with her schoolbooks and that she told her she would be coming back to her residence. AM then told her that the appellant had gone to Mr Mkhize’s place.         

 

[23]    According to the appellant when he returned from Mr Mkhize’s place on Wednesday, AM was asleep, and she was woken up by his knocking. She opened the door for him, he ate and went to sleep. On Thursday, AM arrived late at his residence. He spoke to her about arriving late from school, if in fact that is where she was from. AM told him that she was from school and when told that she could not be coming home that late from school, she insisted that is where she was from. He told her, in expletive language that he did not want shit and that if she was attending school, she needed to focus on her schoolwork. He asked her why she moved from Brigette’s place to his place and she told him that she had not moved. He questioned why she returned to his place when her mother left on Monday. On Friday, Brigette came to his place to wake him up as he did not have a phone. As he agreed with AM’s mother to give her money to go home on Friday, he gave her R50.00 on Thursday.

 

The second and third grounds of appeal (the proceedings relevant to

section 342A of the Criminal Procedure Act 51 of 1977)

 

[24]   It would be prudent before considering the appeal on the first ground in detail, to deal with the second and third grounds of appeal, and then the fourth ground, separately. The appellant here raises the issue of being denied legal representation once Mr Motshabi withdrew as his attorney of record and after several other attorneys withdrew, which he submits impacts the right to a fair trial. In this regard reliance by the Regional Magistrate on section 342A of the CPA is assailed.

 

[25]    In the Practice Note prepared by Mr Kekana for the appellant, he states as follows:

 

    “a) No need to read the whole application for leave to appeal only the judgment is relevant.

 

    b)  Record has imperfections, no original charge sheet and no SAP 69 handed

up as exhibit. It was common cause that appellant was a first offender. We have a typed charge-sheet and we are happy to accept it as a fair reflection

of the original charge-sheet and that it is in the interest of justice that the

appeal be heard and no (sic) be delayed further.

 

    c) I have argued that the court denied appellant the right to legal representation when it denied his last attorney a postponement to prepare for trial. All the issues regarding withdrawals of legal representatives does not appear on the record as such but on the typed charge-sheet. SEE Record 14-21 and  79-89 line 20-23.

 

d) And therefore the Honourable Appeal Court is requested to have regard to the typed charge-sheet and this also covers the argument about the    irregular use of section 342A of the Criminal Procedure Act 51 of 1977.”     (emphasis added)

 

 [26]    There is no original charge sheet with the entries made by the Regional Magistrate in manuscript. Whilst Mr Kekana may be happy to proceed with what purports to a typed version of the charge sheet, there is no indication where this document emanates from and who is responsible for its existence. Unless the author of the document is identified and the circumstances under which any reconstruction of that document took place, this Court, sitting as a Court of appeal, cannot rely on the document.  

 

[27]   The status of the appeal record in respect of the section 342A ground of appeal may be succinctly summarized as follows. It is incomplete in respect of how it came about that Mr Motshabi withdrew as attorney of record; and what transpired thereafter until 14 June 2012 when the accused was ordered to proceed with the trial by conducting his own defence. No reconstruction of the record has been attended to in that regard and no explanation is proffered why this has not been done. 

 

[28]   This Court cannot engage in conjecture on the alleged “irregular use of section 342A” as contended by Mr Kekana for the appellant, on the contention that the interests of justice demands such. What transpired on 14 June 2012, in the absence of a complete record, to provide a contextual background to this ground of appeal, is singularly unhelpful to consider its merits or demerits. The appellant comes before this Court more than a decade after being convicted and sentenced. The position in respect of lost records in criminal appeals is trite. However, this Court must remain  mindful that in the absence of any explanation why the missing parts of the record which now impact the main ground of appeal have not been reconstructed, that the interests of justice cannot be invoked as a proverbial magic wand. In S v Van Staden [2008] ZANCHC 45; [2008] 3 All SA 476 (NC); 2008 (2) SACR 626 (NC), the Full Court stated as follows in respect of the protectable right of appeal:

 

         “7. As already stated there can, however, only be a protectable right of appeal (or to apply for condonation) where the accused has complied with the          applicable rules and legislation or, if not, is able to furnish a sufficient explanation for such failure. It would lead to an untenable situation, where finality in criminal proceedings is indefinitely delayed, if accused persons were to be allowed to blatantly disregard the law and then still claim that a right of appeal has been frustrated by the loss of the record of the trial proceedings.

 

           8. At the same time it should be kept in mind that crime affects fundamental rights like the right to life, the right to freedom and security of the person and the right to property (see ss 11, 12 and 25 of the Constitution). South Africans have the right to “live in peace and harmony” and “to be free from fear” (see s 198(a) of the Constitution). The objects of the police service “to prevent, to combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic of their property, and to uphold and enforce the law” (see s 205(3) of the Constitution), and the effective execution thereof, are also relevant factors that should be taken into account. The interests of society, and of those responsible for the enforcement of the law, should therefore not be lost sight of.”

(emphasis added)

 

[29]     The reliance by the appellant on this ground to assail his conviction and sentence and the invitation to this Court to consider same in the interest of justice must accordingly be declined. No view is therefore pronounced on the second and third grounds of appeal.      

           

The fourth ground of appeal (assistance by the Regional Magistrate  to

an unrepresented accused)

 

[30]   The appellant assails his conviction on the fourth ground on the basis that the conduct of the Regional Magistrate demonstrates a failure to assist the appellant as an undefended accused, during the defence case. In the heads of argument prepared by Mr Kekana, only two issues are taken with the conduct of the Regional Magistrate, under this ground of appeal. The first complaint is that Mr Motshabi, before withdrawing as attorney of record for the appellant, informed the Regional Magistrate that he intended to call the mother of the complainant as a witness. Thus goes the argument, it was incumbent on the Regional Magistrate, once the appellant was conducting his own defence, to enquire from the appellant if he still wanted to call her as a witness. The second complaint under this ground is that the appellant should have been assisted in the examination of the defence witness he called, as same was ineffective and not focused.   

 

[31]     The fourth ground of appeal is much wider than the assistance the Regional Magistrate allegedly failed to give the appellant and the allegation that he should have enquired about the mother of AM as a defence witness. The allegation is very serious and merits very careful scrutiny. It is therefore imperative for this Court to have regard to the totality of what transpired in the defence case and not to latch onto aspects as Mr Kekana has, in isolation, without having regard to the proceedings in the defence case as a whole.

 

[32]   The right to a fair trial as guaranteed by section 35(3)(a) – (o) of the Constitution of the Republic of South Africa, Act 108 of 1996 is broad, and implicates, inter alia, informing the undefended accused of his procedural rights to guarantee a fair trial process. The explanation of these very important fair trial rights must appear from the record of proceedings with sufficient particularity. It should be clear on a reading of the record, to enable this Court to assess the adequacy of any explanations given to the unrepresented accused.

 

[33]    In S v Modiba 1991 (2) SACR 286 (T) at 286-287, Goldstein J in a very brief judgment with reference to S v Daniëls en ‘n ander 1983 (3) SA 275 (A) at 276, said the following in this regard:

 

           “During the course of the trial it was necessary for the magistrate to explain the  accused's rights in regard to:

 

(1)     s 4(1) of the Dangerous Weapons Act 71 of 1968;

 

(2)     his right to cross-examine;

 

 

(3)     his rights after the close of the State case;

 

(4)     his rights in regard to sentence.

 

           This explanation ought to appear on the record with sufficient particularity to enable a judgment to be made on the adequacy of the explanation. See S v Daniëls en 'n Ander  1983 (3) SA 275 (A) at 299G-H. The explanation at each of the stages referred to above does not appear on the record and when the matter came before me on review I directed a query to the magistrate to indicate what his explanation was at each of such stages. It appears that the magistrate who presided is on sick-leave and that it is not known when he will be available to deal with the queries raised.

 

            The Attorney-General submits that from the record it does not appear that the accused's rights were properly explained and that the magistrate's failure to do this amounted to so serious an irregularity that there was per se a failure of justice justifying the setting aside of the conviction and sentence. I agree with these submissions.

 

            The conviction and sentence of the accused are set aside.”

 

[34]   It is further imperative that an accused be informed of the procedural rights envisaged in section 35(3) in plain language, with avoidance of complex legal terminology. In S v Manamela 1999 (2) SA 177 (W), the court aptly stated that:

 

          “The explanation furnished to an unrepresented accused person must be given ‘carefully and in detail’ by the presiding magistrate. The accused must know the case he has to meet in its entirety.”

 

[35]   The line between the Bench which is the domain of a judicial officer   and entering the arena or fray where the parties engage, particularly in a criminal matter, is a very fine line. However, this line is tempered when dealing with an undefended accused, in that it is incumbent on the judicial officer to assist an undefended accused. In this appeal, the conduct of the Regional Magistrate is assailed in respect of his alleged failure to assist the undefended appellant in properly presenting his case.

 

[36]     Before the appellant testified, it was peremptory for the Regional Magistrate to advise him of his right to present his case, which includes the way this was to be done. Without proposing a specific precedent for such explanations, which should be dictated by the peculiar circumstances and accused in any given case, reference at the very least, should be made to the following explanatory information. The accused must be informed that he has an opportunity to present his case to the court which can be done by testifying under oath which may subject him to cross examination by the public prosecutor, and questioning by the court, if necessary. The accused must be informed of his right to remain silent and not to testify, with the consequences attached to such decision, which entails that any version put to state witnesses cannot be considered as evidence, and that the only evidence to be considered would be that of the State. It must also be highlighted to the accused that any statement made at the outset of the trial in which he disclosed the basis of his defence is not evidence, as it has not been tested by cross examination. The accused should be appraised that the decision or election not to testify does not mean that he cannot call witnesses to testify on his behalf but in the event of an election to testify, that he would be required to testify before any of his witnesses and that they are not allowed in court when he testifies.

 

[37]   It is against this background that the third ground of appeal must be considered. The following extracts relevant to the third ground of appeal reveal the following explanations and interaction with the appellant, the public prosecutor and the defence witness, by the Regional Magistrate.

 

[38]   The following appears before the appellant testified:

          

            “COURT PROCEEDINGS ON 14 JUNE 2012

 

             COURT: Rather the accused do you remember that previously, to be specific after Mr Mothshabi recused himself as attorney on 1 February 2011, the state had closed its case. Now on those bases it means that there are no witnesses to be called by the state.

 

             Now at this stage accused you are given a chance to give your version to this court as well as to call witnesses. But you should know that you are not obliged to testify under oath because you have the right to remain silent. However you must bear in mind that if you elect to remain silent and there is evidence implicating you on the part of the state, that could lead to a situation where the court may draw an adverse inference against you.

 

             In other words if you remain silent, the evidence of the state will remain unchallenged. And there will be little or no reason from this court to doubt the reliability and the credibility of witnesses who testified.  

 

ACCUSED: I understand your worship.

 

COURT:  Right again if you elect to remain silent, you should know that you still have a right of calling witnesses to come and testify on your behalf. You should as well understand that when we talk about giving evidence, it means that you are expected to get into the witness stand, take an oath and thereafter tell us what you know about this matter.

 

And you should know that the public prosecutor has the right to cross-examine you and this court may also ask you questions, the purpose being to determine the truthfulness of your story is that clear to you?

 

ACCUSED: I understand your worship.

 

COURT: At this stage what do you elect to do? Do you want to testify under oath in the witness stand or do you elect to remain silent?    

 

            ACCUSED ELECTS TO GIVE EVIDENCE UNDER OATH

            COURT: Do you have witnesses that you would like to call?

 

            ACCUSED: I am having witnesses your worship.

 

            COURT: Who are your witnesses?

 

            ACCUSED: My first witness is Richard. It is only that I forget his surname.

 

            COURT: Where does he stay?

 

            ACCUSED: Richard is staying at Lerome South, your worship.

 

            COURT: Will you be in a position to bring him to court?

 

          ACCUSED: I will go and inform my witness that he is needed in court.

 

           COURT: Who is your other witness?

 

          ACCUSED: I am only having the one witness, your worship.

 

           COURT: You may come into the witness stand.

 

           EVIDENCE FOR THE DEFENCE

         COURT: What are your full names?

 

         ACCUSED: Petrus Kgomotso Tshukudu.

 

          COURT: Please swear that the evidence you will give, will be the truth, nothing 

          else but the truth and if so, say so help me God?

 

         PETRUS KGOMOTSO TSHUKUDU: duly sworn states (through interpreter)  INTERPRETER: Accused sworn in your worship.

 

           COURT: Mr Tshukudu you may tell us what you know about this incident? Let me remind you, it is alleged that this incident happened on 10 September 2009 at Lerome South at your place. And the allegations are by your daughter or stepdaughter that you had sexual intercourse with her. And in addition to that, we heard evidence of Hope Mtsileng, who was the principal of this young girl, who testified about what she knows about the incident. Do you remember? – Yes, I recall your worship that I have seen him or her here.

 

          Okay, you may tell us what you know about the incident then? --- …”

 

[39]   The following appears during the appellant’s evidence in chief:

 

          COURT: Okay thank you. Mr Tshukudu I do not know if I understand you very well but it seems you are talking about an incident after the alleged date? Now if that is the case, please be in mind that we are here to deliberate specifically about the alleged date on which it is alleged that you raped the victim. So if it is possible, try to concentrate on the date which is alleged that you raped the victim because I believe you remember that she concentrated on the alleged date and the principal testified about two different dates. – What I am testifying about here your worship, is what I have understood on that day which led to my arrest.

 

          Prior to that day in question have you ever met the victim? – No your worship, that is not the case.

 

          You still remember what she said while testifying? – Can the court highlight me your worship? She said so many things.

 

          Right, she concentrated on rape, what happened before she was raped and what happened immediately thereafter. – In actual fact your worship the complainant by the name of AM, where I am residing she was not staying with me. The complainant’s mother your worship left on Monday. She was going to her parental place of abode, there was a ceremony….  

 

[40]     The intervention of the Regional Magistrate to correct the public prosecutor on a few occasions and to intervene on behalf of the appellant, appears as follows from the record:

 

         COURT: Calling, not phoning every morning.

           …

          COURT: Ms Prosecutor rather ask it one question at a time otherwise he may get confused and answer any of the two and we will not know which one he has answered.

           …

           COURT: Just a minute. I am just wondering whether can if not be better if he could go to the point because I think if he had a grudge with her, he must have had a grudge because of this. That will solve the problem instead of sitting her, listening to Friday, on Saturday, on Sunday then this and I was cooking. When will he really come to the real answer if that is the case.

          …

        COURT: Ms Prosecutor, just try to explain to him.

         …”

 

[41]     At the conclusion of the evidence of the appellant, the Regional Magistrate ordered the prosecution, through the investigating officer to assist the appellant to have his witness subpoenaed to court, with sufficient time to be given for such service. The trial was accordingly postponed to a date two months later, 17 August 2012. On 17 August 2012, the trial was postponed to 7 September 2012 as the appellant could not provide or point out the address of his witness, for the witness to be subpoenaed. The date was recorded as being final for the defence witness and the public prosecutor was once again instructed to ensure that the subpoena for the witness was served.  

 

[42]     On 23 August 2012, the public prosecutor informed the Regional Magistrate that a defence witness and the appellant were at court, as the witness was not available on 7 September 2012, and that the investigating officer had approached her prior to this date with the accused and the witness. The evidence of the defence witness was accordingly taken on 23 August 2012, after the Regional Magistrate confirmed with the appellant that he had an opportunity to consult with his witness. The defence witness called was one Brigette Ramamkopa and not Richard as the record reflects on 14 June 2012. The name Richard was incorrectly typed in reference to Brigette.    

 

[43]    The following appears from the record relevant to the explanation given by the Regional Magistrate to Ms Ramamkopa:

 

         COURT: Brigette, you are aware that the accused is facing a charge of rape? --- Yes.

 

           He has indicated, was that he would like to call you as his witness. Now on those basis at this stage you are given a chance to tell us what you know in respect of this matter in question. You may proceed. --- I only learnt three or four days after this incident about the incident. I had been travelling with Mr Tshukudu to and from work on a daily basis. I was always waking him up as he did not have a phone. Except from what the hearsay that I have, I know nothing about this matter.

 

           Now is that all? – That is all.

 

           All right, Mr Tshukudu, is there anything she might have left behind which you would like us to know about”

 

         ACCUSED: Yes, Your Honour.

 

          COURT: Yes, you may remind her.

 

          EXAMINATION BY ACCUSED:  On Wednesday when you were passing by works in the morning I asked you why AM left your place and came to my place. I asked as to whether you are on bad terms or not? – That is true, you did ask me that.

 

           You then said you were at my place on Tuesday evening and you found me absent and you got message I was at the next door neighbour’s place? --- That is true.

 

           You then said you found AM at my place and asked her why does not come to your place and what is the problem? --- That is true.

 

           I then said I am worried, I am actually being scared that AM should come to my place immediately after her mother had left? --- Yes, you said so.

 

           I then told you that I am worried that what is it that prompted her to leave the place where she was staying with you? ---   Yes, you said so.

 

           I then told you that AM is arriving late from school and that I scolded her, telling her that I do not want shit? --- Yes.

 

           I then said I will end up leaving because should I send her away it would appear as though I do not like her when that is actually not the case? ---  Yes, that is true.

 

            That is all, Your Honour.”

 

[44]   A careful assessment of the extracts from the record of proceedings in the defence case demonstrates substantive compliance by the Regional Magistrate in explaining all the requisite rights, an undefended accused should be appraised of. He guided the appellant in the presentation of his case and interjected when the public prosecutor misconstrued the appellant’s evidence. He ordered assistance for the appellant to secure his defence witness on completion of his evidence. When the defence witness testified, the Regional Magistrate led her evidence as an introduction and then allowed the appellant to elaborate on issues which the appellant believed the witness should testify about.

 

[45]     Nothing turns on the contention that the Regional Magistrate did nothing to enquire about the mother of AM as a witness. The appellant made an informed choice of his own as to who he wanted to call. Neither the Regional Magistrate nor the appellant were bound by the intimations of Mr Motshabi. The appellant’s right to call witnesses was explained to him and he made his own election as to who he wanted to call.

 

[46]     As to the contention that the evidence of the defence witness was ineffective and not focused, the record does not attest to this. The defence witness made it clear that all she knew about the matter was based on hearsay. Clearly, she could not advance the appellant’s case. The appellant therefore led her evidence accordingly on what transpired on the date of the alleged rape and the day thereafter, which was within the personal knowledge of the witness.  

 

[47]   The fourth ground of appeal is accordingly without merit. What remains is a consideration of the first ground of appeal in detail, and if it fails, the appeal against sentence.

 

The test on appeal on conviction

 

[48]     It is trite that a court of appeal will not lightly interfere with the factual and credibility findings of a trial court. The powers of a court of appeal to interfere with “the findings of fact of a trial court are limited… ln the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and it will only be disregarded if the recorded evidence shows them to be clearly wrong.” 

 

        See: S v Mkohle 1990 (1) SACR (A) at 100e; 

               S v Francis  1991 (1) SACR 198 (A) at 204c-e; 

               S v Monyane and Others  2008 (1) SACR 543 at paragraph [15].

 

The first ground of appeal – the honesty and reliability of the state

witnesses

 

[49]     The evidence inherent in the factual background implicates the first ground of appeal, which is very broadly stated but essentially relates to the honesty and reliability of the witnesses for the State. The credibility of AM as a both a child witness and a single witness to the rape is assailed by the appellant. It is trite that in terms of section 208 of the CPA ‘An accused may be convicted of any offence on the single evidence of any competent witness.’ AM was both a single witness and a child witness and a cautionary appraoch was called for in the evaluation of her evidence. The approach in such a case was addressed in Otto v S (A858/2014) [2016] ZAGPPHC 605 (19 April 2016), which was later confirmed by the Supreme Court of Appeal in Otto v S (988/2016) [2017] ZASCA 114; 2019 (3) SA 189 (SCA) (21 September 2017), by Petersen AJ (as he then was and Petersen ADJP), as follows:

 

         “[17] The state had to prove beyond a reasonable doubt that the appellant raped the complainant. The complainant’s evidence called for a dual approach; a cautionary approach as a single witness to the alleged rape with reference to section 208 of Act 51 of 1977; and on the basis of the cautionary rule applicable to the evidence of a child.

 

          [18] Cautionary rules are rules of practice (so called judge-made rules) calling on the adjudicator of fact to warn himself to be cautious when evaluating evidence which experience has shown to require circumspection. S v M. They are no more than guidelines in the evaluation of evidence. In S v J 1966 (1) SA 88 (LA) 89F-H and S v Snyman  1968 (2) SA 582 (A) 585H the Court remarked that: “... the exercise of caution should not be allowed to displace the exercise of common sense”. On the approach to the evidence of a single witness, the dictum of De Villiers JP in R v Mokoena, often misconstrued, is often relied upon. The dictum has its origins in the following passage: “Now the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by [the section], but in my opinion that section should only be relied on where the evidence of a single witness is clear and satisfactory in every material respect (my emphasis). Thus the section ought not to be invoked where, for instance, the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement, where he contradicts himself in the witness box, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities for observation, etc.”

 

         [19] A historical overview of the dictum highlights that a common sense approach to the dictum is called for. In R v Nhlapo the court placed the dictum in context, adding what De Villiers JP said at 17: “it does not mean . . . that an appeal must succeed if any criticism, however slender, of the witness' evidence were well-founded”. Broome JP was critical of the dictum “as a proposition of law” in R v Abdoorham, finding it “entirely unhelpful”. He accepted that a court “may be satisfied that a witness is speaking the truth notwithstanding that he is in some respects an unsatisfactory witness”. Macdonald AJP in R v J held the view that the cautionary rules are “no more than guides, albeit very valuable guides, which assist the court in deciding whether the Crown has discharged the onus resting upon it”, adding that “the exercise of caution should not be allowed to displace the exercise of common sense” and once a judicial officer has anxiously scrutinised the evidence of a single witness he should not be “swayed by fanciful an unrealistic fears”. In S v Webber, Rumpff JA at 758G-H: “dis natuurlik onmoontlik om 'n formule te skep waarvolgens elke enkele getuie se geloofwaardigheid vasgestel kan word, maar dit is noodsaaklik om met versigtigheid die getuienis van ‘n enkele getuie te benader en om die goeie eienskappe van so 'n getuie te oorweeg tesame met al die faktore wat aan die geloofwaardigheid van die getuie kan afdoen.” In S v Teixeira the court stressed that, in evaluating the evidence of a single witness, “a final evaluation can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities”. On the cautionary rule applicable to the evidence of children it was said in R v Manda: “The dangers inherent in reliance upon the uncorroborated evidence of a young child must not be underrated. The imaginativeness and suggestibility of children are only two of a number of elements that require their evidence to be scrutinised with care amounting, perhaps, to suspicion. It seems to me that the proper approach to a consideration of their evidence is to follow the lines adopted in the case of accomplices… The trial court must fully appreciate the dangers inherent in the acceptance of such evidence and where there is reason to suppose that such appreciation was absent a court of appeal may hold that the conviction should not be sustained. The best indication that there was proper appreciation of the risks is naturally to be found in the reasons furnished by the trial Court.” The complainant was a child mere months shy of her 16^th birthday. On sentence it is submitted that this factor be considered when considering deviating from the mandated sentence of life imprisonment, which would have been downgraded to 10 years imprisonment if she was 16 years old. On the same token the argument may then be that the cautionary approach to her evidence as her child should be approached only on the footing as a single witness, nothing more and nothing less.”

 

[50]   Mr Kekana in his heads of argument contends that AM was not a truthful witness as she was very calculating about what to tell and what not to tell. In this regard Mr Kekana extracts the following from the evidence of AM. When Ms Mtsileng asked for her mother’s cellular phone number, she maintained that she did not know it off by heart, but she was able to furnish her uncle’s cellular phone number. Against this AM is said to have told Ms Mtsileng that her mother left her cellular phone at home when she left for Magong.

 

[51]   Issue is taken with why AM did not plead with Ms Mtsileng to take her to a doctor for treatment to prevent HIV-Aids transmission, whilst giving the impression initially that she had pleaded with her to take her to a doctor. The contention is that this evidence is misleading.

 

[52]   The evidence of AM that she had the towel and bedsheet with her at the police station which a police officer, one Selepe refused to accept, on the basis that it was no proof that the semen on it belonged to the appellant, is said to be highly improbable. A police officer, so goes the argument further, would not refuse evidence which may incriminate the appellant. Issue is also taken with the fact that AM failed to mention these items to Ms Mtsileng or her mother, which is a lie by omission.

 

[53]   The absence of a J88 medical report and other witnesses’ testimony, such as that of AM’s mother, is questioned, on the basis that AM’s evidence calls out for corroboration. In this regard, the decision of the public prosecutor not to call AM’s mother or Selepe is questioned and contended that the State feared that such evidence would contradict that of AM. The Regional Magistrate is also challenged for not exercising his discretion to call either of these witnesses.       

 

[54]     That there are inconsistencies in the evidence of AM is apparent. The question is whether those inconsistencies in her evidence is such that it renders her evidence unreliable. It is trite that the evidence of a witness cannot simply be rejected based on purported contradictions or inconsistencies. As Nestadt JA stated in S v Mkohle  1990 (1) SACR 95 (A) at 98E-F that:

 

  “…contradictions per se do not lead to the rejection of a witness’ evidence. As   Nicholas J, as he then was, observed in S v Oosthuizen 19[....] (3) SA 571 (T) at  576B-C, they may simply be indicative of an error. And at 576G-H it is stated that  not every error made by the witness affects his credibility; in each case the trier of facts has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance and their bearing on the other parts of the witness’s evidence’. In the present case the trial as well as the court a quo did exactly that. It was simply an honest mistake from an imperfect witness.”

 

[55]     The fact that extrinsic evidence in the form of a towel and bedsheet was dismissed by a police officer, is attributed to AM as a lie. On the same token, no explanation appears from the record why AM was not taken to hospital or clinic for a compulsory medical examination which every victim of an alleged sexual assault is entitled to. An aspect which cannot be overlooked is that AM reported the alleged rape to Ms Mtsileng at the first opportunity she had, the morning after the incident. Ms Mtsileng’s evidence was never successfully challenged that, when AM boarded her motor vehicle she was crying, and her eyes were swollen. Furthermore, that she had a bag with her. The contradictions or inconsistencies in the evidence of AM and Ms Mtsileng, relied on by the appellant, are immaterial when one considers that Ms Mtsileng herself wanted to get hold of AM’s mother before reporting the matter further. That there is an obligation of Ms Mtsileng to have reported the incident in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007, either way, cannot be faulted after the fact. Sight should also not be lost of the fact that AM’s mother discouraged her to lay a charge against the appellant. 

 

[56]     Whatever inconsistencies or purported contradictions there are in the evidence of AM does not detract from her evidence that she was raped by the appellant and reported the rape at the first available opportunity. The conviction of the appellant accordingly cannot be faulted and the appeal against conviction must accordingly fail.

Sentence – appeal

 

[57]     It is trite that sentencing is pre-eminently a matter for the discretion of the trial court. In S v Malgas  2001 (2) SA 1222 Marais JA, said the following in this regard:

 

“[12] The mental process in which courts engage when considering the questions of sentence depends upon the task at hand. Subject of course to any limitations imposed by the legislature or binding judicial precedent, a trial court will consider the particular circumstances of the case in the light of the well-known triad of factors relevant to sentence and impose what it considers to be just and appropriate sentence. A court excising appellant jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellant court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellant court is large. However, even in the absence of material misdirection, an appellant court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellant court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate.” It must be emphasised that in the latter situation the appellant court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

 

[58]     The State concedes that the Regional Magistrate materially misdirected himself on sentence. The Regional Magistrate found that the State failed to prove the age of AM. This would therefore exclude the sentencing regime in section 51(1) of the Criminal Law Amendment Act 105 of 1977 (CLAA) which provides for life imprisonment. The sentence of 25 years imprisonment therefore constitutes a material misdirection insofar as the Regional Magistrate deviated from life imprisonment. This Court is therefore at large to reconsider a suitable sentence.

 

[59]   In terms of section 51(2)(b) of the CLAA read with Part III of Schedule 2, the minimum sentence for a conviction of rape under Part III of Schedule 2 ranges between 10 to 20 years, depending on whether the convicted person has previously been convicted of rape. In the present appeal, there is no proof of previous convictions and the applicable minimum sentence is therefore ten (10) years imprisonment, subject to the proviso that the maximum term of imprisonment that a regional court may impose in terms of subsection 2 shall not exceed the minimum term of imprisonment that it must impose (to wit 10 years) in terms of subsection 2 by more than five years.

 

[60]     In Ndlovu v S (CCT174/16) [2017] ZACC 19; 2017 (10) BCLR 1286 (CC); 2017 (2) SACR 305 (CC) (15 June 2017), the following was said in circumstances where the age of a child victim was not proven:

 

         “[41] It is trite that Magistrates’ Courts are creatures of statute and have no jurisdiction beyond that granted by the Magistrates’ Courts Act and other relevant statutes. Because Mr Ndlovu was treated as a first offender, under section 51(2) the sentencing jurisdiction of the Regional Court was limited to a maximum of 15 years’ imprisonment. The Regional Court, however, sentenced Mr Ndlovu to life imprisonment under section 51(1), which it would have had the power to do only if the application of the section was triggered.

 

       [42] In terms of section 51(1) of the Minimum Sentencing Act, the Regional Court would have had jurisdiction to sentence Mr Ndlovu to life imprisonment only if it had convicted him of an offence referred to in Part I of Schedule 2.  The question is thus whether Mr Ndlovu was convicted of an offence referred to in Part I of Schedule 2.

           ...

[46] In the light of this, I can do nought but conclude, inexorably, that the Regional Court did not have jurisdiction to impose life imprisonment in terms of section 51(1) of the Minimum Sentencing Act.  Mr Ndlovu was convicted of rape, read with section 51(2); accordingly, the Regional Court was required in terms of section 51(2) to impose a minimum sentence of 10 years (as he was treated as a first offender). The Regional Court’s jurisdiction was limited in terms of section 51(2) to imposing a maximum sentence of 15 years.

 

[47] In the result, because the Regional Court did not have jurisdiction to    sentence Mr Ndlovu in terms of section 51(1), his application must succeed.  In the circumstances, it is unnecessary to consider the fair trial question.”

 

[61]     In the present appeal, the Regional Magistrate was alive to the fact that the age of AM was not proven by the State, and he was therefore constrained to the sentence provisions in section 51(2) of the CLAA and a maximum term of 15 years imprisonment. The remedy in similar circumstances in Ndlovu, was stated as follows by the Constitutional Court:

 

          “[50] As Mr Ndlovu was treated as a first offender in respect of this offence, the minimum applicable sentence was 10 years’ imprisonment.  The maximum sentence that could have been imposed by the Regional Court was 15 years’ imprisonment.  Rape is a serious offence.  It is, in and of itself, a deeply destructive and dehumanising act. The circumstances of this rape were especially heinous.  Mr Ndlovu threatened to kill the victim, and then viciously and mercilessly assaulted and raped her. Following the attack, the victim was admitted to hospital for five days.

 

           [51] These circumstances elevate the seriousness of the offence so that the minimum sentence of 10 years’ imprisonment is grossly inadequate.  Indeed, the legislature has indicated in perspicuous terms, by the enactment of section 51(1) of the Minimum Sentencing Act, that a sentence of life imprisonment is most appropriate in comparable cases.

 

           [52] The appropriate and proportionate sentence to be imposed in the circumstances is the maximum sentence that the Regional Court could have imposed following the conviction of rape read with section 51(2) of the Minimum Sentencing Act: 15 years’ imprisonment.”

 

[62]     Having regard to the peculiar facts in the present appeal, I am of the view that a sentence of twelve (12) years imprisonment is accordingly suitable.

 

Order

 

[63]     In the result, the following order is made:

        

1.     Condonation for the late noting and prosecution of the appeal is granted.

 

2.     The appeal against conviction is dismissed.

 

3.     The appeal against sentence is upheld.

 

4.     The sentence imposed is set aside and is substituted with the following sentence:

 

“Twelve (12) years imprisonment, antedated to 9 September 2012.”

 

5.     The appellant should be released immediately from prison with regard to this matter.

 

 

 

A H PETERSEN

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

I agree.

 

 

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

 

Appearances:

 

For the Appellant:	Mr M V Kekana
Instructed by:	Legal Aid South Africa
	Mahikeng Justice Centre
For respondent:	Adv G R Zazo
Instructed by:	The Director of Public Prosecutions, Mahikeng

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