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 IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER:  A249/2017

In the appeal between:

MOOKI JOSIAS MOTAUNG                                                                                   Appellant

 

THE STATE                                                                                                         Respondent

JUDGMENT

Molahlehi J with Mokose AJ concurring

Introduction

[1] This is an appeal which came before us with the leave from the Regional Court, Germiston (the court below). It is against the conviction and the twenty years imprisonment sentence imposed on the appellant, Mr Motaung.

[2] Mr Motaung who at the time of the trial was 27 (twenty-seven) years of age was charged, convicted and sentenced for the rape of a 6 (six)  years old girl child. The incident occurred on 26 October 2013. He pleaded not guilty to the charge and was throughout the trial legally represented.

[3] The essence of the appellant’s defence was that he never raped the child and that the charges were framed against him by his half-brother which were motivated by the fact that he had indicated to him that he intended selling the cattle left as inheritance by their father. 

[4] At the conclusion of the debate regarding the issue of conviction the court raised with Counsel whether there was a logical connection between the sentence of 20 (twenty) years and the conviction of the rape of a five year old child. The other issue raised related to whether there was no possibility that the court below may have erred and misdirected itself with regard to the sentence.

[5] It was for the above consideration that the court on 10 May 2018 placed the appellant on notice to indicate why the sentence should not be increased. Both parties submitted heads of arguments for and against the increase of the sentence.

The case for the State

[6] The first witness of the State was the complainant, the child who testified assisted by an interpreter in camera. She testified that on the day of the incident she was playing in the yard with her cousin sister, when Mr Motaung invited them to his shack to play games on his cell phone. Upon entering the shack he instructed her to undress. She undressed, taking off her skirt and panty. He took off his trousers and underwear and placed them on top of the bed.

[7] The appellant then penetrated her by inserting his penis into what she referred to as “my thing with which I urinate with.” She demonstrated using anatomic dolls what she meant by “ my thing.”

[8] From the time they entered the shack, her cousin sister watched the entire incident standing at the door of the shack. The door remained opened throughout the ordeal. After the incident the appellant told them that he would kill them if they were to tell their mother what happened.

[9] In relation to the identity of the appellant, she testified that she knows him as Mooki and a relative of his father who was also staying in her father’s shack.

[10] During cross-examination she testified that she told the police that the appellant pulled his trousers and his underspants to his knees before raping her and as concerning the whereabouts of her parents on that day she testified that her father was not at home, the only person who was there was her mother who was in the house.

[11] The second State witness was the complainant’s cousin, who was also a minor. She essentially in her testimony confirmed the version of the complainant that on the day in question they were playing in the yard when the appellant invited them to the shack to play games on the cell phone.

[12] She testified that upon entering the shack the appellant who she did not know and was the first time to see, undressed the complainant and laid her on the floor. He also undressed and laid on top of the complainant and started “doing her.” The complainant started crying as soon as the appellant mounted her. To stop her from making noise he put his hand on her mouth. Once he had finished “doing her” he told them not to tell anyone.

[13] The cousin, testified and expressly stated that the appellant raped the complainant and when asked to describe what she meant by the word “rape” she stated that it is when someone lays on top of someone else.

[14] The third State witness was the mother of the complainant. She testified that the appellant was her husband’s relative. She further testified that on the day of the incident, the complainant and her cousin were playing in the yard when she was in the house. She went out of the house to look for them when she no longer heard their voices. She went into the street and asked the other children that normally play with them but was told that they did not see them. She went back to the yard where she found them waiting at the door.

[15] She noticed that the complainant had difficulties in walking and when she asked her what her problem was she told her she was itchy because of the soap she used for washing. She then undressed her and put Vaseline on her private parts. Her inspection of the child did not reveal anything wrong with her.

[16] The following day the children were taken to her mother who stays in Vosloorus by her sister-in-law. The children were while at Vosloorus taken to the clinic where it was revealed that the complainant was raped. Her mother-in-law then called her husband to fetch the children. On his return with the children he reported to the mother that the complainant had been raped.

[17] According to her the complainant initially would not disclose who raped her but did so after she was promised that she would not be punished if she was to disclose the name of the person who raped her. She disclosed that it was the applicant.

[18] The children were then asked to demonstrate what happened during the rape which they did by having the complainant lie down with the cousin on top of her and covering her mouth with her hand. 

[19] After that she took the complainant to a general medical practitioner, Dr Dlamini who confirmed that the child had been  raped. The rape was further confirmed by the specialist nurse at the Katlehong/ Natalspruit hospital.

[20] It would appear as part of the explanation as to why she did not discover that something was wrong with the child was because accoording to her, the children did not like being washed on their private parts and they also washed their own underwear.

[21] At the time of the incident during October 2013 the appellant was staying with his other brother known as Legoa in the shack who came to their home only during weekends. He did not stay during the week because he was working somewhere else. She could not recall the specific day when the incident occurred but was sure it was not during the weekend.

[22] At that time the children were taken to the clinic the appellant had already left and was staying at Vosloorus. She did not see the appellant on the date of the incident and had assumed that he had gone to work.

[23] She, contrary to the testimony of the complainant's cousin, stated that there was no TV in the shack and the appellant watched TV in the main house if he needed to.

[24] The matter was reported to the police and a statement was taken from the complainant.

[25] The fourth witness of the state was the complainant’s aunt –the sister to her father. She is the mother of the other child who was alleged to have been raped by an unknown person in Voslorus.

[26] During October 2013 the aunt phoned her brother, complainant’s father and requested him to take the children to their grandmother at Vosloorus. After arrival in Vosloorus she took the complainant to the clinic where it was indicated that she had been raped. The complainant would not tell her who touched her private parts. The complainant, however, when asked the same question by her grandmother stated that she was scared to disclose the identity of the person because that person would kill her. She phoned the complainant's mother and informed her about the rape.

[27] The fourfth witness for the state was the complainant’s father. He testified that at one stage while in the presence of the appellant he noticed that the complainant was walking with difficulties. The child did not respond when he equired from her what her problem was. She only told him about her problem after the appellant was no longer staying with them.

[28] His mother took the complainant to the clinic because she noticed that she had difficulties in walking. She phoned him and informed him that the complainant was raped and that if he did not believe her he should take her to the hospital. He only managed to take the child to the hospital a week after receiving the information due to work commitments.

[29] The appellant stayed with them in the shack for about three weeks before moving to Vosloorus, where he stayed with their mother. He then disappeared when he heard about the children having been taken to the clinic.

[30] After the children returned to his house, the complainant’s father  took the complainant to the bedroom and inquired from her who raped her. She mentioned it was the appellant. She informed him that the appellant called them to the shack and then laid on top of her. The impression he got from the complainant was that the appellant shifted her panty to the side and penetrated her with his penis.

[31] The fifth state witness was the complainant's grandmother. She testified that she noticed that the complainant was walking with difficulties when she visited her during the school holidays. She initially suspected that it may have been the shoes she was wearing.

[32] On the one occasion when she was washing the panties of the children she noticed something funny in her granddaughter’s underwear. When they inquired from her as to what happened, she mentioned that she was touched on her private parts by the appellant. She then phoned the complainant’s father and requested that he bring both the complainant and her cousin to Vosloorus.

[33] After that, the aunt took her to the clinic. On return from the clinic, the aunt phoned her brother and requested him to come to Vosloorus. On his arrival, he was given documents from the clinic confirming that the complainant was raped. They inquired from the children as to what happened but did not respond as they kept crying.  She was later informed that the children finally disclosed that it was the appellant that had raped the complainant.

[34] At the time she discovered that something was wrong with her granddaughter’s panty, the appellant had moved from complaint’s parents’ home and was staying with them in Vosloorus.

[35] The aunt further testified that on the day after the children came to Vosloorus the appellant contacted her mother and requested money for transport to go to Qwaqwa. He left a week after the children were taken to the clinic.

[36] The sixth State witness was Ms. Popo, the nurse registered as a sexual care practitioner. She conducted the medical test on the complainant and concluded that she was raped.

The case of the appellant.

[37] The appellant testified in his defence and confirmed having stayed with the complainant's parents during September 2013 at Nobuhle Park. He stayed in the shack while the complainant's parents stayed in the main house. He also testified that he stayed in the shack with his other brother known as Lekgoa.

[38] He did not dispute that he was well known to the complainant, who at the times called him Mkhulu as a sign of respect and at times by his first name, Mooki.

[39] He had a good relationship with the complainant’s family, and in fact, it was the complainant’s father who encouraged him to go and look for work in Vosloorus because he had a driver’s license.

[40] The allegation that he had raped a child reached him after he had left Vosloorus for Qwaqwa. He attributed the motive for the alleged rape to the fact that he had informed his brothers, in particular, the complainant’s father that he intended selling their deceased father's cattle. Although the complainant’s father did not oppose the idea, he said that there was a need to hold a meeting to discuss the matter.

[41] The second witness for the defence was Mr Thapelo Motaung, the appellant's half-brother. In his testimony, he confirmed that the appellant stayed with the complainant's parents before moving to Vosloorus. He confirmed that the appellant had indicated to him his intention to sell the cattle so that he could buy a car, which he would use as a taxi to earn a leaving.

Evaluation and analysis

[42] As appears from above the version of the complainant is that she together with her cousin sister were invited to a shack by the appellant to play games on the cell phone. She was raped whilst she was with her cousin, who at the time, stood at the door, which had remained open during the ordeal.

[43] It is common cause that the complainant was raped. The appellant, however, disputes that he is responsible.

[44] The appellant further contends that the charges against him were motivated by the anger of the complainant’s father who wanted to get at him for wanting to sell the family cattle. The other complaint by the appellant was that the court below failed to apply the cautionary rule relating to child witness evidence.

[45] The issue for determination was correctly identified by the court below to be whether the appellant was the perpetrator of the rape.

[46] The approach to adopt when dealing with an appeal in criminal matters is well established. The onus to prove beyond reasonable doubt that the appellant was guilty of raping the complainant rested with on the State, [1].

[47] There is no obligation on an accused where the State bears the onus, to convince the court of the truthfulness of any explanation which he or she may tender. If his version is reasonably possibly true he is entitled to be acquitted even if his explanation might be improbable.

[48] In considering whether the State has discharged its onus of proof beyond reasonable doubt, the court has to evaluate the evidence presented against the accused, considering the reliability of the witnesses and whether there was any motive to implicate the accused.

[49] In relation to the version of the accused, the court does not have to be convinced that every aspect of his defence is true. As stated in Olawale v The State: [2]

"[13] It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused's version is true. If the accused's version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. Of course, it is permissible to test the accused's version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.”

[50] The approach to adopt in evaluating the evidence presented to determine whether such evidence, satisfy the required standard of proof is summarized by  Navsa JA in Trainer v S,[3] in the following terms:

“[9] A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable the quality of that evidence must of necessity be evaluated, as must corroborative evidence if any. Evidence must, of course, be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach of the magistrate is illogical and wrong.”

Finding in respect of conviction

[51] This court is in agreement with the court below that the conspectus of all the evidence before it the version of the complainant stands to be accepted. In relation to the identity of the appellant as the perpetrator of the rape was placed beyond any reasonable doubt, by the fact that the complainant knew him very well and in fact this he confirmed. 

[52] Furthermore, in as far as the offence is concerned, the version of the complainant was corroborated by her cousin. Although she (the cousin) did not know his name and she referred to him as “the man who stays in the shack” she also, as the record reflects was able to identify him from other men seated in court during the trial.

[53] The appellant did not dispute that the complainant generally referred to him as Mkhulu, a term generally used to address older adults in the African culture as a sign of respect. He testified that he did not like the child calling him Mkhulu and had reprimanded her for that because he was concerned that she could do it in the street in the presence of other people and that would project him as being old. This would embarrass him.

[54] In relation to the offence, the testimony of both children was unequivocal and consistent. The issue of whether the complainant was on a carpet when he mounted her or on the floor or whether he took off her panties or whether there is a TV in the shack are in my view not material to amount to a substantial contradiction.

[55] This court further does not agree with the proposition of the appellant that the court below failed to apply the cautionary rule concerning the evidence of a single witness. It is clear from the reading of the record that the cousin sister stood and watched the ordeal from beginning to end after which they were both told not to tell anybody.

[56] In the judgment of this court, the above is sufficient to satisfy the threshold of proof beyond reasonable doubt that the appellant was responsible for the rape of the complainant. In other words, the State had on the version of the two children proven beyond reasonable doubt that the appellant was the perpetrator of the rape.

Appeal in respect of the sentence

[57] In the first heads of argument on behalf of the appellant, it was submitted that the sentence of 20 (twenty) years imprisonment was harsh and induces a sense of shock. In the supplementary heads Counsel after referring to several authorities contended that this court should not increase the sentence imposed by the court below and that sentence should stand.

[58] The submission made was mostly that the personal circumstances of the appellant constituted substantial and compelling circumstances to justify deviation from imposing the prescribed minimum sentence.

[59] It is apparent from the reading of the judgment of the court below that in considering the sentence it took into account the following personal circumstances of the appellant and them as satisfying the threshold for substantial and compelling circumstances.

a. The appellant was 24 years old when he committed the offence and 27 years at the time of the trial.

b. He left school before completing his matric as he wants to join the labour force.

c. He was unmarried with no children.

d. He has no previous convictions.

e. He spent approximately four months awaiting trial.

[60] In support of the finding that the above mitigating factors constitute substantial and compelling circumstances the court below relied on the decision in S v Khumalo,[4] where it was in that respect held that:

“Punishment must fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.”  

[61] The court below further relied on Namibian decision in S v Tcoeib,[5] where it was held that:

“It is also trite that imposing a sentence of imprisonment for life may in certain be shockingly inappropriate.”

The legal principles governing the appeal

[62] It has not been disputed that the sentencing regime in the present case is governed by section 51 (1) of the Criminal Law Amendment Act (the Act),[6] which prescribes a minimum sentence of life imprisonment.  It is further provided in section 51 (3) of the Act that the minimum sentence should be imposed if an accused is 18 (eighteen) years old or older unless substantial and compelling circumstances exist which would justify the imposition of a lesser sentence.

[63] The general approach to adopt when dealing with an appeal regarding sentencing  has repeatedly been stated to be that the imposition of sentence is pre-eminently a matter falling within the discretion of the trial court, and that a court of appeal can only interfere with the trial court’s decision if there was a material misdirection by the trial court.  

[64] In dealing with the grounds for interfering with the sentence imposed by a trial court in Sv Romer, [7] Petse AJA as he then was, said:

“[22] It has been held in a long line of cases that the imposition of sentence is pre-eminently within the discretion of the trial court. The appellate court will be entitled to interfere with the sentence imposed by the trial court only if one or more of the recognised grounds justifying interference on appeal has been shown to exist.Only then will the appellate court be justified in interfering. These grounds are that the sentence is ‘(a) disturbingly inappropriate; (b) so totally out of proportion to the magnitude of the offence; (c) sufficiently disparate; (d) vitiated by misdirections showing that the trial court exercised its discretion unreasonably; and (e) is otherwise such that no reasonable court would have imposed it.”(footnote ommitted).

[65] The approach to adopt when dealing with whether or not substantial and compelling circumstances exist was set out in S v Malgas,[8]in the following terms:

“[7] . . .The very fact that this amending legislation has been enacted indicates that Parliament was not content with that and that it was no longer to be “business as usual” when sentencing for the commission of the specified crimes.

[8] In what respects was it no longer to be business as usual? First, a court was not to be given a clean slate on which to inscribe whatever sentence it thought fit. Instead, it was required to approach that question conscious of the fact that the legislature has ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should ordinarily be imposed for the commission of the listed crimes in the specified circumstances. In short, the Legislature aimed at ensuring a severe, standardised, and consistent response from the courts to the commission of such crimes unless there were, and could be seen to be, truly convincing reasons for a different response. When considering sentence the emphasis was to be shifted to the objective gravity of the type of crime and the public’s need for effective sanctions against it. But that did not mean that all other considerations were to be ignored. The residual discretion to decline to pass the sentence which the commission of such an offence would ordinarily attract plainly was given to the courts in recognition of the easily foreseeable injustices which could result from obliging them to pass the specified sentences come what may.” The approach was confirmed as the correct in S v Nkuna 2014 (2) SACR 168 (SCA).”

[66] In the Director of Public Prosecution, Gauteng v Oscar Leonard Carl Pistorius, [9] Seriti JA in dealing with the approach adopted by the trial court in dealing with personal circumstances of the appellant said:

“[22] Having perused the judgment on sentence by the court a quo I am of the view that the trial court over emphasized the personal circumstances of the respondent. In S v Vilakazi 2009 (1) SACR 552 (SCA) para 58 this court said that '[i]n cases of serious crime the personal circumstances of the offender, by themselves, will necessarily recede into the background'. See also S v RO & another 2010 (2) SACR 248 (SCA) para 20 where this court said '[t]o elevate the appellants’ personal circumstances above that of society in general and these two child victims in particular would not serve the well-established aims of sentencing, including deterrence and retribution'. Based on the above-mentioned cases I am of the view that the court a quo misdirected itself in its assessment of an appropriate sentence.”

[67] In S v Swart, [10] Davies J said that:

"The sentence of this court should shout to the community at large that rape is unacceptable and that there is no basis upon which a first offender gets a "free" rape (by virtue of a light sentence) and that only recidivists can expect an appropriately heavy sentence. In summary, the sentence must take full account of the nature of the offense. It must look carefully at the moral blameworthiness, while confirming the community values of dignity, equality and freedom in our society; in this way, the court can contribute to ensuring that women (and children) should benefit equally from a society based on those values. This letter promise is particularly important in a society in which male power and the abuse thereof has so prevented our communal life and threatens to make a mockery of our promise of gender equality."

[68] In my view the court below in finding that there were substantial and compelling circumstances materially misdirected itself. The youthfulness of the appellant could not count against the seriousness of the offence of raping a child of 5 (five) years. In fact, being an uncle he in a sense raped his own child.

[69] In S v Kwanape, [11] the court found that the perpetrator who was 24 (twenty-four) years who raped a 12 (twelve) years old child deserved the highest sentence because of the heinous crime he had committed.

[70] The other factor which the court below failed to take into account is the fact that the appellant has shown no remorse at various levels of the proceedings. He refused to take responsibility for his heinous crime. It can thus not be said that he was a good candidate for rehabilitation.

[71] In Director Public Prosecution, Grahamstown v Peli, [12] a 24 (twenty-four) years old appellant was found guilty of raping a 6 (six) years old boy. The In that case, the court found that the appellant had shown no remorse and thus the sentence of 10 (ten) years with 4 (four) years suspended was too lenient and accordingly replaced it with life imprisonment. 

[72] In S v Ncobo, [13] similar to the present matter, the court found that there was no evidence showing that he was immature to an extent that his immaturity could operate as a mitigating factor. 

[73] This court is of the view that the aggravating factors in the present matter outweigh the mitigating factors. Pillay JA described the consequences of rape on the victim in S v Nkunkuma and Others,[14] in the following terms:

“[17] Rape must rank as the worst invasive and dehumanising violation of human rights. It is an intrusion of the most private rights of a human being, in particular a woman, and any such breach is a violation of a person’s dignity which is one of the pillars of our Constitution. There does not seem to be any significant decline in the incidence of rape since the publication of the statistics referred to above. The same can be said of robbery. No matter how they are viewed, society has called, on more than one occasion, for the courts to deal with offenders of such crimes sternly and decisively.”

[74] In light of the above discussion, this court is enjoined by the provisions of section 19 (d) of the Superior Courts Act, [15] to amend the sentence imposed by the court below to one of life imprisonment. The need to remit the matter to the court below does not arise because all the material relevant and necessary to consider the sentence is before this court.

 

Order

[75] In the circumstances, I make the following order:

1. The sentence imposed by the trial court, in respect of the charge of rape against Mr Mooki Josias Motaung on 22 February 2017, is set aside.

2. The sentence is substituted with the following: 

“(i). The accused Mr Mooki Josias Motaung, is sentenced to life imprisonment.”

3 The sentence is antedated to 22 February 2017.

 

 

                                                                        ___________________________

                                                                        MOLAHLEHI J

 

 

I concur.

 

_pp_________________________

Mokose AJ

 

Counsel for Appellant:  Ms M Leoto

Instructed by: Johannesburg Justice Centre

Counsel for Respondent:  Adv T Buitendag

Instructed by:  National Prosecuting Authority, Johannesburg

Heard: 10 May 2018 and 09 July 2018

Delivered: 16 August 2018

 

[1] S v V 2000 (1) SACR 453 (SCA) at 455a-b

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