SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

CASE NO: A11/2022

REPORTABLE: YES/ NO
OF INTEREST TO OTHER JUDGES: YES/ NO
REVISED.

In the matter between: 

ALFRED MATOME PHEME: 	APPELLANT

And 

THE STATE: 	RESPONDENT

JUDGEMENT

KGANYAGO J 

[1]	The appellant appeared before regional court magistrate A Swanepoel in the regional division of Limpopo held at Seshego on one count of rape read with the provisions of section 51 (1) and Schedule 2 of Act 105 of 1997. The appellant was found guilty as charged and sentenced to life imprisonment. The appellant has automatic right of appeal, and is appealing against both conviction and sentence.

[2]	The appellant in the court a quo pleaded not guilty to the charge. The respondent called J[....] M[....] K[....] as its first witness. She testified that the complainant is the daughter of her late sister and she is taking care of her. That the complainant is suffering from epilepsy and also mentally sick. That the complainant had informed the neighbour’s child that she was raped by the appellant. Thereafter the mother of the neighbour’s child notified the witness that the complainant has been raped.

[3]	That led to the witness confronting the complainant. The complainant told her that she was playing at the neighbour’s house of one uncle Kganyago when the appellant arrived there. On arrival the appellant talked to uncle Kganyago. After talking to uncle Kganyago, the appellant called the complainant, whispered into her ear and told her to follow him, but that she must use the other street and he will meet her in the other street.

[4]	The complainant met the appellant in the bushes. Upon arrival in the bushes the appellant undressed the complainant’s skirt, and he took out his T-shirt, made the complainant to lie on the ground, and instructed her to open her legs. Thereafter the appellant took out his penis and inserted it into the complainant’s vagina. The complainant told the appellant that she was feeling pain, and the appellant told her to do it again. After that the appellant told the complainant that he will kill her should she tell anyone at home. Because the complainant was threatened, she did not tell anyone. The incident happened on a Friday, and the complainant only told the neighbour’s child on Sunday.

[5]	The appellant used to sell sweets and snacks at a market/tuckshop, and the complainant was one of the children who used to buy at the appellant’s place. The complainant and the appellant knew each as the complainant was the appellant’s usual customer. After receiving a report from her neighbour, the witness blew a whistle and thereafter informed the community members regarding what had happened to the complainant. The purpose of calling the members of the community was to inform them about what had happened to the complainant and that they should call the police. 

[6]	After notifying the community members as to what had happened to the complainant, the community members decided to go and look for the appellant. The appellant was pointed out by the complainant to the community members, and the community members got angry and started throwing the appellant with stones, whilst some community members undressed the appellant. Other members of the community phoned the police. On arrival the police took the appellant and transported him to hospital. At the time of the incident the complainant was 10 years old, and the complainant’s birth certificate was handed in as evidence. 

[7]	The witness was cross-examined and she conceded that she was not the first person the complainant had reported the incident to, but stated that the complainant was scared to approach her as the appellant had threatened to kill her. The witness stated that the complainant had just started living with her and they were not yet that close to each other for the complainant to confide in her. The witness further stated that the complainant was enticed to leave with the appellant because the appellant had promised to give the complainant simba chips. The complainant had told her that she did not know that they were going into the bushes, but that she only saw herself entering the bushes, and she decided to move along with that as she was used to the appellant. Further that the appellant had taken advantage of the complainant as she was mentally challenged. 

[8]	The respondent called the complainant to testify as its second witness. The complainant who was 12 years old at the date of the trial testified through an intermediary. She testified that she was attending a special school. She testified that on the morning of 1st December 2017 she went to visit her uncle at Kganyago’s family. Whilst at her uncle’s homestead the appellant arrived and started talking to her uncle. After he had finished talking to her uncle, the appellant came to the complainant and whispered into her ear and told her that when he leaves her uncle’s homestead she must follow him, but taking another direction. By then the complainant’s uncle was seated at a distance. The complainant testified that she used to see the appellant when he came to visit her father. Further that the appellant was a street vendor selling simbas and vegetables.

[9]	The complainant stated that she followed the appellant, but did not know where he was taking her to. She thought the appellant was going to give her simbas as she normally saw him at the market where he was selling. She was surprised when she saw that the appellant was taking her to the veld, but she continued following him until they were deep in the veld. When they were deep in the veld, the appellant told her to undress her skirt and panty. She did as instructed, and the appellant took out his T-shirt and spread it on the ground. Thereafter the appellant told the complainant to lie on the ground on top of that T-shirt. The appellant was wearing a T-shirt which was yellow in colour and a blue jean. The appellant instructed the complainant to open her legs. After she had opened her legs, the appellant knelt down took out his penis and put it into her vagina. Whilst the appellant’s penis was inside her vagina, he started doing some movements on her and it was painful. That is when the complainant told the appellant that her mother had told her to come back home early as she had to visit someone. The appellant took out his penis from her vagina and let her free.

[10]	The appellant told the complainant to dress up, and he also put on his clothes. After that the appellant asked the complainant whether she wants them to do it again, and the complainant refused, and told the appellant that her mother had told her to come back home early as she had to visit someone. Thereafter the appellant told the complainant that if she tells anyone about what had happened, he was going to kill her. The incident happened on a Friday. After she had dressed up she went home, and as she was scared she did not tell anyone about the incident. The appellant also left and she did not know where he went. On Sunday she told her friend K[....]2 M[....]about the incident. K[....]2  told the complainant that she should report that incident to her (complainant) aunt and that she will assist her. 

[11]	Thereafter K[....]2  reported the incident to her mother. Her mother in turn reported the incident to the complainant’s aunt Jane Kganyago. The complainant was present when K[....]2 ’s mother reported the incident to her aunt. Her aunt enquired from the complainant, and the complainant confirmed that the incident did occur. After that the complainant’s aunt and uncle blew the whistle to call the community members. The community members arrived and were told what had happened to the complainant. The community members pointed out the appellant as the person who had raped the complainant, and assaulted him. When the appellant was been assaulted, they also took off his clothes. The police arrived at the scene, and the appellant was loaded into the police vehicle. 

[12]	The complainant and the appellant were taken to Seshego hospital by the police. At the hospital the complainant was examined by the doctor. After the examination by the doctor, the complainant’s aunt opened a criminal case against the appellant. The complainant stated that the appellant will be lying if he denies raping her. 

[13]	The complainant was cross-examined and she stated that she became used to the appellant a long time ago when the appellant was visiting her father. The complainant further stated that when the appellant whispered into her ear and told her that they must go, he did not tell her where they were going. The complaint stated that when she followed the appellant’s request, she thought that the appellant was taking her to his residential place where he was going to give her simbas. The complainant also stated that her uncle Kganyago had seen the appellant whispering into her ear. The complainant stated that when she left the premises she did not bid farewell to her aunt. 

[14]	When the complainant was asked why she did not turn back when she saw that the appellant was now taking her towards the veld, she stated that she could not turn back as she was afraid that the appellant will kill her. When the complainant was asked why she thought the appellant was going to give her simbas, she stated that it was because the appellant was selling at the market. The complainant also stated that even though she felt pain when she was raped, she did not scream. The complainant stated that after she was raped she could not immediately tell her friend K[....]2  and also her aunt about the incident as the appellant had threatened to kill her should she tell anyone. The complainant stated that when the appellant was apprehended by community members, he had also come to the gathering after the whistle was blown as a member of the community to hear what the whistle was all about.

[15]	The respondent called Kgwaredi Joseph Maage (also known as uncle Kganyago) as its third witness. He testified that the complainant is his cousin, and that the complainant refers to him as uncle Kganyago. That on 1st December 2017 the complainant visited them at his homestead between 11h00 and 12h00. When the complainant arrived at the witness’s homestead, he found the witness fixing the door of the outside room. The complainant asked the witness money for simba chips, and the witness gave her R2.00. 

[16]	Thereafter the complainant left the witness’s homestead, and she came after 10 minutes. At the moment the appellant also arrived at the witness’s homestead. By then the witness was still busy fixing the door, and at the same time talking to the appellant. As the witness was talking to the appellant, he heard the appellant asking the complainant whether she knew Joe. That is when the complainant told the witness that she was leaving his homestead, and the witness said it was fine. The witness stated that when the appellant and the complainant were talking he was standing attentively with his ears just listening to what they were saying, but his concentration was on the door he was fixing. 

[17]	After two to three minutes after the complainant had left, the appellant also left and that the appellant was having a market not far from the witness’s homestead. At that market the appellant was selling some items. The witness stated that he did not see the direction which the appellant took after he left his homestead. The witness finished fixing the door and rested, and after two hours the witness heard a noise outside. The witness went outside to check what was happening, and when he arrived at the gate he saw community members pushing the appellant. The witness went to the community members to ask what was happening and was told by the complainant’s uncle that there were some allegations that the appellant had committed something and the name of the complainant was involved in the incident. However, the complainant’s uncle was not sure as to how the complainant was wronged. 

[18]	The witness saw the police at the scene and he approached them. The witness heard through his uncle the following day that the complainant had been raped. The witness stated that when the community members were pushing the appellant, he did not see any injuries on the body of the appellant. He later left the scene with the community members still with the appellant.

[19]	The witness was cross-examined and when asked what was the purpose of the appellant’s visit to his homestead, the witness stated that a week prior to the incident the appellant was cleaning at the market with a rake and spade and had left those items at his (witness) homestead, so on that day upon his arrival the appellant asked the witness about those items. However, when the appellant left the witness’s homestead, he did not take those items. The witness stated that he did not hear the appellant whispering in the complainant’s ear as he was knocking the door with a hammer when fixing it. The witness insisted that the appellant was apprehended on the day of the incident and not after two days as testified by the complainant. It was put to the witness that on the date of the alleged incident the appellant was not at the witness’s homestead, and the witness insisted that the appellant had paid him a visit on that date. That concluded the evidence of the respondent and it closed its case.

[20]	The appellant took the witness stand and testified under oath. He denied all the allegations levelled against him. He stated that on the 3rd December 2017 which was a Sunday, he was at his tuckshop when seven men and three women arrived. On arrival they just started assaulting him telling him that he had raped a minor child on Friday the 1st December 2017. He lost consciousness as a result of the assault. When he regained his consciousness he was naked, surrounded by a lot of people who were asking what was happening. He was having an open wound on his head, an open wound at the back of his ear, his face and body were swollen, and also had some scratches.

[21]	The appellant alleges that the community members removed him from his tuckshop and told him that they were taking him outside the village where they will wait for the police. As the appellant was walking with the community members, the police arrived and stopped them. The police took the appellant, the complainant’s mother and the complainant. The appellant was then arrested. The appellant stated that on the 1st December 2017 he arrived at his tuckshop at 7h00 and closed it at 20h00. The appellant stated that Mr Kganyago gave false evidence against him. The appellant denied that on the 1st December 2017 he went to Mr Kganyago’s homestead. 

[22]	The appellant was cross-examined and he stated that the complainant’s family are the neighbours of his girlfriend, and that to his knowledge the relationship was good and he was just surprised of what they are doing to him. The appellant stated that he had erected his tuckshop in the bushes and the community members were not happy with him when he did that. The appellant conceded that he sometimes used to go to Mr Kganyago’s homestead to ask for water, place some items he was using at the tuckshop, and also to use their toilet. The appellant denied that there was any stage where he went to Kganyago’s homestead and was in the presence of the complainant at the same time. The appellant stated that he knew the complainant by sight as she used to come to his tuckshop. The appellant stated that on the date of the incident he was wearing a red T-shirt with stripes and a blue jean. That concluded the evidence of the appellant and he closed his case. 

[23]	The court a quo called Vonani Nomsa Nkuna the doctor who completed the complainant’s J88 as a witness of the court in terms of section 186 of the Criminal Procedure Act (CPA). The purpose of calling Nomsa was to come and clarify what she meant when she recorded “remnants” in paragraph 12 of the J88 regarding the hymen configuration. The witness testified that she is the doctor who had completed the complainant’s J88. She stated that what she meant by the word remnants is that it is when there are just small pieces on the side of the wall instead of the whole hymen being there. That the cause for that will be any penetration to the vagina whether is sexual or not. According to witness the complainant was penetrated. 

[24]	Under cross-examination by the respondent the witness stated that if penetration of the complainant’s vagina was by the finger, the pieces of the wall will still be there, and the majority of the hymen will remain. However, if it was sexual penetration it will only be small pieces, hence she had recorded remnants. Under cross examination by the defence counsel the witness stated that the complainant did not have a history of an object penetrating her, but that the complainant had said that someone had inserted a penis into her vagina. The witness conceded that when she refers to remnants, it can be as a result of penetration not exclusive to sexual penetration but any object.

[25]	The appellant’s appeal is directed against both conviction and sentence. What this court must determine is whether in the light of the evidence adduced at trial, the guilt of the appellant was established beyond reasonable doubt. If it is found that the appellant was properly convicted, this court must determine whether the sentence meted to the appellant was appropriate.

[26]	It is trite that the prosecution must prove its case against the appellant beyond reasonable doubt. Equally trite is the observation that in view of this standard of prove in a criminal case, a court does not have to be convinced that every detail of an accused version is true. If the accused version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. An accused is not compelled to testify, but once he/she elects to testify, what the court must determine is whether the version presented by the accused is reasonably possibly true

[27]	The approach to the evaluation of evidence in a criminal case was formulated in S v Chabalala where Heher AJA said:

“The trial court’s approach to the case was, however, holistic and in this it was undoubtedly right: S v van Aswegen 2001 (2) SACR 97 (SCA). The correct approach is to weight up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strength and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning identity) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence. Once that approach is applied to the evidence in the present matter the solution becomes clear.” 

[28]	The court a quo in convicting the appellant found that even though the complainant was a single witness and also a child witness, the truth has been told and that the version of the appellant was false beyond reasonable doubt, and rejected it. This court must determine whether the court a quo was correct in convicting the appellant with the totality of the evidence placed before it.

[29]	The complainant and the appellant were known to each other and therefore the issue of identity is not in dispute. The complainant was even referring to the appellant by his nickname to show she had prior knowledge of the appellant. According to the complainant she left uncle Kganyago homestead after the appellant had whispered in her ear telling her to take another direction. Even though the appellant dispute that he was at uncle Kganyago’s homestead on the date of the incident, uncle Kganyago corroborate the complainant that the appellant was there and that the appellant arrived after the complainant. Uncle Kganyago has not seen or heard the appellant whispering into the complainant’s ear, but the uncle corroborate the complainant that at some stage both the appellant and the complainant left his homestead minutes apart.

[30]	According to the complainant, she and the appellant went into the bushes and that is where she was raped. The appellant himself had testified that he had erected his tuckshop in the bushes. The complainant can therefore not be said to be imaging things when she testified about the bush. The appellant has testified that on the day in question he was wearing a light blue jean and red T-shirt with stripes. The complainant has testified that the appellant was wearing a yellow T-shirt and a blue jean. There is corroboration in relation to the jean that the appellant was wearing on the day in question.

[31]	The doctor who examined the complainant and completed the J88 has confirmed that the complainant was penetrated into her vagina. She had used the word remnants on the J88, which means that there will be small pieces of the hymen left of the side of the wall and that occurs when there is sexual penetration. The doctor further testified that if penetration of the vagina was through the finger, the majority of the hymen will still be there and not remnants. She further testified that there was no history that the complainant was penetrated by any other object in the vagina.

[32]	The overwhelming evidence is that on the date in question the complainant and the appellant were at uncle Kganyago’s homestead, and that both left uncle Kganyago’s homestead minutes apart. The appellant testified that his tuckshop was in the bushes, whilst the complainant testified that the appellant had taken her into the bushes where he raped her. There are some contradictions in relation to the evidence of uncle Kganyago and the complainant relating to the date on which the appellant was apprehended by community members and also arrested by the police, and also the T-shirt the appellant was wearing. In view, these contradictions are immaterial and should not be looked at in isolation of the totality of the evidence. Even though the evidence of the complainant is that of a single and child witness, to some extend it has been corroborated by that of uncle Kganyago and the accused himself. It can therefore not be said that the complainant was imagining things.

[33]	Even though the evidence of the complainant might not have been that perfect, in my view, it was clear and satisfactory. Despite those deficiencies, the truth has been told. There is therefore nothing to fault the court a quo in convicting the appellant. The appeal on conviction stands to fail.

[34]	Turning to sentence, it is trite that sentencing is the prerogative of the trial court, and should not lightly be interfered with. At appeal in which interference with the sentence will be justified is when it is found that the trial court has misdirected itself in some respect or if the sentence imposed was so disturbingly disproportionate that no reasonable court would have imposed it. The test is not whether the trial court was wrong, but whether it exercised its discretion properly. (See S v Romer).

[35]	The appellant has been convicted of rape of a child below the age of 16 years which is failing under section 51(1) Part I of Schedule 2 of the CLAA. Ordinarily the trial court was compelled to impose life imprisonment unless it finds that substantial and compelling circumstances exists which justify the deviation from the prescribed minimum sentences.

[36]	In DPP, Gauteng v Tsotetsi Coppin AJA said:

“As held in Malgas, confirmed in S v Dodo and explained in S v Vilakazi, even though ‘substantial and compelling’ factors need not be exceptional, they must be truly and convincing reasons, or ‘weighty justification’, for deviating from the prescribed sentence. The minimum sentence is not is not to be deviated from lightly and should ordinarily be imposed”.

[37]	The appellant is not a first-time offender. He has several previous convictions of housebreaking which he was sentenced to 2 years imprisonment; theft sentenced to 5 months imprisonment; robbery sentenced to R3000.00 or 5 months imprisonment; using a dog to bite a person was sentenced to R500.00 or 2 months imprisonment; selling dagga of which he paid admission of guilt of R200.00 and assault in which he paid an admission of guilt of R200.00. In mitigation of sentence, the probation officer had prepared a pre-sentence report and had also testified on behalf of the appellant.

[38]	The probation officer in his report has stated that both of the appellant’s parents have passed away. At the time of their passing away they were separated. The appellant has got two siblings. The appellant has two children aged 18 and 7 years respectively. Both of the appellant’s children are being taken good care of by their mother. The appellant was having a spaza shop where he was selling snacks, vegetables, fruits, cigarettes and other things. The appellant was contributing R100.00 per week towards the maintenance of his children. From the spaza shop the appellant was making about R3000.00 per month. The appellant dropped out of school in grade 11 as he was not progressing. The appellant does not smoke or drink alcohol. That the appellant did not accept responsibility for the offence that he has been convicted of as he alleges that he did not commit the offence. That at the time of the commission of the offence the appellant was aged 33 years

[39]	With regard to the complainant the probation officer has stated that when incident occurred the complainant was aged 10 years, and was in grade 7. That due to the mental state of the complainant, the probation officer could not probe more on the impact of the offence on her.

[40]	The appellant has been convicted of a very serious offence of a child of 10 years at the time she was raped. The complainant was therefore still regarded as a child at the time of the commission of the offence. Rape cases have reached an alarming rate in this country. According to the probation officer, he could not probe the impact which the rape had on the complainant due to her mental state, and further that the complainant was attending a special school. This was rape of child who was also attending a special school due to her mental state. Rape is degrading and invasion of privacy. It is the duty of the courts to protects women, children and the vulnerable from those who wish to prey on them. 

[41]	The appellant did not show any remorse. In S v Matyityi Ponnan JA: 

“Remorse is a gnawing pain of the conscience for the plight of another. Thus genuine contrition can only come from the appreciation and acknowledgment of the extent of one’s error… In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence.”

[42]	The appellant despite the overwhelming evidence against him, and also despite been convicted, continued to deny the offence against him. He is therefore not acknowledging his error. What was presented as the appellant’s substantial and compelling reasons are in my view, not truly convincing reasons or weighty to justify a deviation from the prescribed minimum sentence. The court a quo could therefore not be faulted for imposing the sentence of life imprisonment on the appellant. The appeal on sentence also stands to fail.

[43]	In the result the following order is made:

43.1	The appeal on both conviction and sentence is dismissed.

KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE  

I AGREE

NAUDE-ODENDAAL J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,POLOKWANE

APPEARANCES:

Counsel for the appellant: 	Legodi MP
Instructed by: 	Legal Aid SA Polokwane

Counsel for the respondent: 	Adv Ratshibvumbo M
Instructed by: 	DPP Polokwane

Date heard: 	4th November 2022

Electronically circulated on: 	16th January 2023