IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 36/2010

In the matter between:

PHILEMON RAPOGADIE						Appellant
Versus

THE STATE								Respondent

JUDGMENT DELIVERED ON 24 FEBRUARY 2012

Allie, J

[1] The appellant was charged with 2 counts of raping an 11 year old girl in the Bellville Regional Court on 29 May 2009. He pleaded not guilty and had legal representation. He was convicted on both counts on 30 November 2010 and sentenced to life imprisonment on 20 December 2010 for both counts that were taken together for the purpose of sentence.

[3] The state alleged that the appellant raped the complainant, an 11 year old girl who lived next door to him in November 2006 and again in January 2007 in his bakkie while parked near Langa Power Station. It is common cause that the complainant was 11 years old at the time, that she accompanied the appellant in his bakkie to a Power Station one night in November 2006 and that she gave birth to a baby boy in July 2007.

[4] At the time when the complainant testified she was 13 years old. At the recommendation of a social worker, the state requested that the complainant testify directly in court and not through an intermediary. The magistrate established that the complainant could distinguish truth from falsehood and proceeded to administer the oath. The social worker sat near the complainant while she testified but did not assist her with her testimony.

[6] She claimed that appellant pushed the passenger seat a small bit back. For some inexplicable reason, the defence chose to interpret this evidence as an allegation that the back rest of the seat reclined backward. She alleged that appellant threatened to kill her if she told anyone about the incident. She believed him because he had previously threatened to shoot his daughter's friend. He left her at their local shop and she walked home.
[7] She alleged that in January 2007 he again asked her to accompany him to the shop and again took her to the dark spot in Langa after first filling petrol. On this occasion she wore a skirt, sweater and jacket. He pulled up her skirt and lay on top of her. He pulled down his pants and penetrated her vagina. This time she felt pain and bled. He left her at the local shop thereafter and she walked home.

[8] She claimed that an employee at the local shop spread rumours that she was pregnant some months later. Her grandmother took her to a friend, Mrs Bertha Vraagom who lived in Plumstead in June 2007 and asked her to establish what was wrong with the complainant and why she was becoming fatter. Mrs Vraagom arranged for a home pregnancy test to be taken from the complainant and it was positive. Mrs Vraagom asked the complainant if she had a boyfriend and when she said no, she asked whether she had been raped, whereupon the complainant said that she had been raped by the appellant. There can be no doubt that the question of rape was at least suggested to the complainant.

[9] The complainant was taken to the police station and thereafter to a doctor who found that the complainant was 8 months pregnant. On 12 July 2007 she gave birth to a son. She said that the last time she menstruated was in November 2006 and she did not menstruate between December 2006 and June 2007. The complainant said that her grandmother and father did not allow her to go out late at night but she was difficult to control. She also explained that she was a friend of the 16 year old daughter of the appellant.

[10] The state led evidence of DNA tests which showed that there is an overwhelming likelihood that the appellant is the father of the son of the complainant. The veracity of the tests was challenged by the defence and further tests were conducted after fresh samples of blood were taken from the appellant, the complainant and her son. The veracity of the conclusions made from the second set of tests were also challenged by the defence.

[12] Section 51 of Act 105 of 1997 (the Minimum Sentence Act) does apply to an offence of common law rape because paragraph (b)(i) of Part 1 of Schedule 2 deals with sentences for the rape of a child under the age of sixteen years. The appellant did not raise the defence that he did not know that the complainant was younger than 16 years at the time. His defence is that he did not have sexual intercourse with the complainant at all and the child is not his.

[14] The further difficulty with the complainant's evidence concerning the second count of rape is that she gave no reasonable explanation why she went with the appellant for the second time after what he did to her the first time. She also did not explain why she told no one about the alleged second rape until a pregnancy test was conducted some 5 months later. Her evidence of not having menstruated since November 2006 accords with the date when she gave birth as it is more likely that the date of conception was November 2006 than January 2007. If the date of conception was January 2007, then the baby was born premature at 7 months and the evidence that the doctor found her to be 8 months pregnant in June 2007 would be incorrect.

[15] The state however failed to clarify these aspects with the medical experts who testified. The date when she was allegedly raped for the second time was accordingly not proved. The complainant gave very scant evidence of how she was raped the second time, relying on the detail she gave for the first incident as applying also to the second incident.

[16] The court has to apply common sense when evaluating the evidence and events leading up to the second incident which could not have unfolded in exactly the same way as it did with the first incident. For example, would the appellant have filled petrol the second time at the exact same place as well and would he have taken her to the same place?

[17] There are undoubtedly aspects of the appellant's evidence which can be rejected as not reasonably possibly true, such as evidence that he took her to Langa and then took her home without touching her in November 2006, the most likely date of conception, while the DNA tests which could not be disproved as invalid by the defence witness Dr Olckers, show that the appellant is the father of the baby. The state cannot rely on the appellant's weak evidence to supplement its case. It must make out a case for the accused to meet first.

[20] Turning to the sentence. Since the conviction has been substantially altered, sentence has to be considered afresh. The social worker's evidence on how the rape and birth of her child has affected the complainant reveals that the complainant has developed deep psychological damage and still endures trauma. The appellant was in a position of trust being an older person, a neighbour and the father of the complainant's friend. He abused that trust and manipulated the complainant into a situation which she ought not to have been in at that young age.

[21] The appellant is a 53 year old who has at least 3 minor children to support. At the time of his arrest, he was productively employed. The trial court treated the appellant as a first offender and we will do likewise. Taking into account the interest of society, the circumstances of the appellant and the nature of the offence, I am of the view, given the serious impact that the offence has had on the complainant, a term of direct imprisonment is appropriate.

[22] To the extent that the appellant may be serving a term of imprisonment for an unrelated offence, the court is willing to consider the cumulative effect of the sentence imposed in the unrelated case and the sentence imposed in this case.

It is ordered that:
1. On count 1, the conviction is confirmed.
2. On count 2, the conviction is set aside.

4. If the appellant is serving a term of imprisonment in an unrelated case, the sentence in this case will run concurrently with any unexpired part of the sentence imposed in the unrelated case.

ALLIE, J

I agree

CLOETE, AJ