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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)    REVISED

 

CASE NO: A418/2016

 

In the matter between:

 

ROBERT MOKGOPE                                                                                          APPELLANT

 

V

 
THE STATE                                                                                                          RESPONDENT

JUDGMENT

NEUKIRCHER J

1.           The appellant was charged in the Regional Court of Limpopo held at Mhala with:

1.1         the separate charges of the kidnapping and rape of the (then) 14 year old first complainant[1];

1.2         the kidnapping of the (then) 13 year old second complainant[2].

 

2.           He was found guilty on the 3 charges and was sentenced as follows:

2.1       on each of the two kidnapping charges (which were counts 1 and 2 and which the court took as one for purposes of the sentencing) - 10 years imprisonment;

2.2       on the rape charge (count 3) - life imprisonment.

3.          The appellant was represented at his trial. He plead "not guilty" to all the charges and by way of plea explanation, he stated:

 

"just to add your Worship on the first and second count he denies that he kidnapped the PN and RN (sic) He gave them a lift."

 

4.           He denied the rape charge.

 

Re: COUNT 3

5.           The first witness called was PN. It appears from the record that the following exchange took place:

"COURT: Your full names?

WITNESSES: PN

COURT: Madam to you understand the significance of taking the prescribed oath?

WITNESS: No

COURT: What is your problem? What is it that you do not understand?

WITNESS: Yes I understand

COURT: So you do not have any objection in taking the prescribed oath?

WITNESS: I have no objection your worship in taking the oath.

COURT: Ja it was the wrong interpretation.

PN d.s.s (through interpreter)

SWORN IN"

 

6.           s 162 of the Criminal Procedure Act (the CPA) 51 of 1977 states:

"(1)      Subject to the provisions of s 163 and 164 no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding Judicial officer or, in the case of a superior court, the presiding judge.”

 

7.           s 164 of the CPA states:

"(1)     Any person who is found not to understand the nature and import of the oath or the affirmation, may not be admitted to give evidence in criminal proceedings without taking the oath, or making the affirmation: Provided that such person shall in lieu of the oath or affirmation, be admonished by the presiding judge or judicial officer to speak the truth..."

 

8.           In S v Tshimbuzi[3] Bosielo JA expressed the test to be applied as follows:

"[7]    A further irregularity relates to whether the complainant was validly sworn in in terms of s 162 of the Criminal Procedure Act 51 of 1977 (CPA) before the testified. The record shows that she was sworn in ("d.s.s,"). However this is not enough as the complainant was a minor. Given the age of the complainant[4] it was essential that the regional Magistrate make some enquiry to satisfy himself that the complainant understood and appreciated the distinction of telling the truth and a lie. Only in the event that the Magistrate was satisfied that the minor possessed this ability should the Magistrate then have proceeded to determine whether the said minor fully understood the nature and import of giving evidence under oath. The Magistrate conducted none of these enquiries and as a consequence the complainant's evidence Is rendered inadmissible. (my emphasis)

[8]     It should be clear from the above exposition that the trial was characterised by serious irregularities which strike at the heart of the conviction and fairness of the trial. The cumulative effect is such as cannot be corrected by any remittal. "

 

9.          

In S v Matshavha[5] it was emphasized that

".. .the reading of s 162 (1) makes it clear that, with the exception of certain categories of witnesses falling under either s 163 or 164, it is peremptory for all witnesses in criminal trials to be examined under oath. And the testimony of the witness, who has not been placed under oath properly, has not made a proper affirmation or has not been properly admonished to speak the truth as provided for in the Act, lacks the status and character of evidence and is admissible."

 

10.        In S v V[6] the court stated:

"Similarly where a witness does not understand the religious sanction of the oath and resort is had to s 164 to admonish the witness to speak the whole truth, the witness cannot be so admonished unless she comprehends what it is to speak the truth and to shun falsehoods in her evidence. This capacity to understand the difference between truth and falsehood is thus a prerequisite for the oath, the affirmation and admonition in terms of s 164."

 

11.        In this matter PN was 14 years old when she was allegedly raped and 16 years old when the trial commenced. She was thus still a minor[7].

12.        It was therefore incumbent upon the Magistrate to conduct the necessary enquiry into whether or not PN fully appreciated the difference between truthfulness and falsehood and also the full import of taking the oath.[8]

13.        In the exchange recorded in para (5) supra this was clearly not done. This is even more significant given that when initially asked whether she understood the significance of taking the prescribed oath, PN responded "No".

14.        Although the Magistrate a few lines later recorded this as being "the wrong interpretation" no evidence of this is provided on the record - it is simply a bald statement.

15.        Lamentably no enquiry was conducted to establish what PN understood to be the impact of taking the oath or

"...what it means to be required to relate what happened and nothing else ...”[9]

 

16.      Given all the above, PN's swearing in as a witness was not proper and her evidence, as a result, inadmissible.

17.      This material irregularity is, given the seriousness of the charges, even more lamentable given that PN is the only witness regarding charge 3.

16.      Given the irregularities, supra, nothing more is said as regards the merits of charge 3 and that conviction and sentence must be set aside.

 

COUNTS 1 AND 2

THE STATE'S CASE

19.        As to counts 1 and 2, the kidnapping of PN and RN, it is very clear that from the record that the Magistrate complied properly with the provisions of s 162 and s 164 of the CPA. The correct procedure and questioning followed was sufficient to declare RN as a competent witness[10] and be admonished in terms of the provisions of s 164[11].

20.        No serious argument was presented in respect of the conviction on count 2 and for good reason: RN was a good witness and he identified the appellant in court. His evidence remained steadfast throughout and that was that:

20.1         he and PN were given R50 by their mother for transport and were on their way to visit their sister in Green Valley;

20.2         it was 10h00 on 26 November 2006 and they were at the station waiting for transport when a brownish motor vehicle stopped;

20.3         a man[12] got out and grabbed PN and put her in the front passenger seat and then grabbed RN's hand when he wanted to run away, and pushed him into the front seat between him and PN and locked the doors;

20.4         he stopped at a cross-road to Champaign and made him alight the vehicle to ask vendors how much their chickens cost and when he did that he drove away with PN;

20.5         the vendor then called the police. They came and drove to find PN and when they returned to the cafe they brought PN with them;

20.6         RN and PN were taken to the police station and one of the policemen went to fetch their mother and she was then brought to the police station.

 

21.        Daniel Mokgope confirmed RN's evidence that after appellant drove off, he was crying and he told Mokgope that a man had driven away with his sister. Mokgape then called the police. He gave the police a description of the vehicle and told them it was headed to the Champaign Trust project. When the police returned it was to ask him to go to the police station to give a statement. He testified that he saw who was arrested by the police shortly after the kidnapping and the man that was the driver of the vehicle. He also testified that the appellant was his brother.

22.        Mr Mokgape confirmed that he had seen PN in the appellant's vehicle and that "...she looked like she was not like a person who was in a very good stage."

 

THE APPELLANT

23.        The appellant's evidence was that PN and RN were hiking on the tarred road next to Cottonville station, when they flagged him down for a lift. He stopped and they both got into the front seat with him[13]. His evidence was that they were dirty and hungry.

24.        He stopped on the way at a chicken farm and as he received a call he asked RN to find out how much the chickens were. He then noticed a truck with chickens taking a turn into Champaign and decided to follow it, leaving RN behind. He tried to follow the chicken truck but lost sight of it and then PN reminded him about her brother.

25.        As he was driving back to fetch RN he was stopped by the police. The gist of the following evidence was that he was then charged with kidnapping and rape.

26.        The appellant's evidence and version was rejected by the Magistrate and in my view, correctly so. His version is not remotely reasonable possibly true. It is also clear that the State's witnesses corroborated each other in all material respects.

27.        The uncontroverted evidence of the appellant, RN and Mokgope places both PN and RN in his vehicle. Mokgope testified as to PN's demeanour when he saw her and RN's evidence is that they were both forced into the appellant's vehicle.

28.        Although the cautionary rules as regards single, child witnesses must be applied, I find no reason to reject RN's evidence. As was stated in S v Artman[14]

 

"...while there is always a need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts must guard against their reasoning tending to became stifled by formalism. In other words, the exercise of caution must not be allowed to displace the exercise of common sense."

 

29.        Thus the convictions on charges 1 and 2 stand.

 

SENTENCE

30.        As to the sentence of 10 years on both counts of kidnapping , the Magistrate stated that he must take into account the nature of the offence, the interests of the community and the personal circumstances of the accused, even though appellant had several previous convictions[15].

31.        The court mentioned that the appellant is married and has children but nowhere in the judgment on sentence were the personal circumstances of the appellant weighed and this despite the evidence by appellant in mitigation. These are:

31.1      the appellant was 46 years old;

31.2      his first wife passed away and he has since re-married and has two other wives;

31.3      he has 11 children of which 4 do not stay with him but he still supports them. The eldest is 31 years old;

31.4      he is the breadwinner and is a driver at Zebediela Bricks earning R4 800 per month;

31.5      he suffers from high blood pressure and asthma and has monthly hospital check-ups;

31.6      he attends the ZCC church and his "behaviour was changed".

 

32.        The Magistrate erred in not taking the personal circumstances of the appellant into account and also erred in failing to take into account the year the appellant spent awaiting trial.

33.        In S v Mazibuko[16]_the appellant was sentenced to 5 years imprisonment for kidnapping. In that matter the court remarked

"2.       The appeal was on the roll on 6^th September 2011, on which occasion, it was struck off the roll after the appellant failed to file the heads of argument. There is nothing on record from the heads of argument that explains this delay, especially since the appellant had instructed the Justice Centre to represent him during trial and for this appeal. This inordinately lengthy and unexplained delay has the potential of defeating the whole purpose of appeal. "

 

34.        In that matter, as in this, the trial was in 2008. In that matter, as in this, the initial appeal was struck off the roll as appellant failed to file his heads of argument. In the present appeal that was on 29 August 2018. Here the Notice of Appeal was only filed on 14 January 2016. Why the matter took so long to be set down is not explained but it appears to simply be another tribulation in the lives of all affected by the events of 26 November 2006. Whatever the cause, it is unacceptable that this matter has taken 11 years from date of sentence to date of this appeal.

35.        As to the kidnapping sentence, I agree that charges 1 and 2 should be read together for the purposes of sentence.

36.        Given the matters of S v Mazibuko[17], S v Van Wyk[18], S v Tobela[19], S v Radiau[20] and S v Naidoo[21], and given that PN and RN were 14 and 13 years old respectively at the time of their kidnapping, I am of the view that imprisonment for a period of 7 years is justified: the scourge of violence against women and children in this country cannot be overstated. Communities are crying out for and demanding justice and it appears that short-term imprisonment for crimes of this nature are no deterrent. It falls then to our courts to see that justice is done.

37.        In doing so, the appellant's right to a fair hearing and reasonable punishment and prospects of rehabilitation must also be weighed and in imposing the sentence of 7 years, in my view, that balance is achieved.

 

ORDER

38.        Thus the order that is made is the following:

38.1         the appeal is respect of conviction and sentence on count 3 (rape) succeeds;

38.2         the appeal in respect of the convictions on counts 1 and 2 is dismissed;

38.3         the appeal in respect of the sentence on counts 1 and 2 succeeds and is replaced with the following:

“The appellant is sentenced to 7 years imprisonment. His time spent incarcerated awaiting trial is to be taken into account for purposes of consideration of parole."

 

 

NEUKIRCHER J

JUDGE OF THE HIGH

COURT

 

 

 

I agree

 

 

 

NKOSI AJ

ACTING JUDGE OF THE

HIGH COURT

 

Counsel for the appellant:  Mr Moeng

Instructed by:                        Legal Aid South Africa, Pretoria Justice Centre

 

Counsel for the respondent: Mr Pruis

Instructed by:                        National Director of Public Prosecutions

 

Date of application : 28 October 2019

Date of judgment     : 30 October 2019

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