S v Mabaso (74/03) [2003] ZANWHC 69 (11 December 2003)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)CASE NO.:74/03

In the matter between:

BONGANE MABASO APPELLANT

AND

THE STATE RESPONDENT

CRIMINAL APPEAL

MMABATHO

HENDLER J AND LANDMAN AJ

DATE OF HEARING : 21 NOVEMBER 2003

DATE OF JUDGMENT : 11 DECEMBER 2003

JUDGMENT

LANDMAN AJ:

The appellant was convicted on a charge of rape in the Regional Court on 29 March 2001 and sentenced to 15 years imprisonment. The appellant appeals against the conviction and sentence.

The Learned Regional Magistrate carefully considered the matter and concluded his judgment by summarising the facts that he found had been proven beyond reasonable doubt. He said:

“What happened is that after they had had a chat at the shop, they walked through the premises, going through the church premises where they found one gate locked and he took a chain there and started assaulting the complainant, forcing her to go home, he kicked the door open, forcefully penetrated the complainant and because he was under the influence of liquor fell asleep and that is why the complainant eloped.”

Mr Pretorius, who appeared for the appellant, submitted that the complainant consented to sexual intercourse. On this crucial issue the complainant was a single witness. Although there is no general cautionary rule in sexual assault cases, the evidence in a particular case may call for a cautionary approach. See S v Jackson 1998 (1) SACR 470 (SCA) at 476F. Mr Pretorius submitted that the complainant’s evidence should be approached with caution. He pointed to several improbabilities in the complainant’s version of the events.

(a) It is improbable that the appellant, after kicking the door to his room open and after he undressed the complainant, took the complainant out of the room to search for keys.

(b) The complainant did not attempt to run away whilst the appellant was unlocking the gate, although she was screaming at that stage. She however, when looking for the keys and whilst she was naked, broke loose on four occasions and tried to runaway.

(c) It is not properly explained by the complainant why she did not run away whilst the appellant was out of the room to fetch food. She did not indicate what efforts she made to open the door. However when the appellant was asleep, she struggled with the door and succeeded in opening it.

Mr Pretorius also submitted that:

(a) the complainant was contradicted by her mother regarding the condition of her clothes. According to the complainant her clothing was dirty with soil, whilst her mother’s evidence was that there was blood on her shirt and it was damp.

(b) the complainant’s account of the injuries sustained by her is not corroborated by the medical report. According to her she had swellings on her neck and on her back, whilst the medical report indicated a dried abrasion on the right shoulder posteriorly.

(c) on the probabilities it is more likely that the complainant reported only intercourse rather than rape to her mother. It is improbable that the questions the appellant was asked to the appellant when confronted by the mother, would have been asked if the complainant reported that she was raped. It is improbable that the mother would have asked the appellant whether he has an affair with the complainant.

(d) It is further improbable that the mother, if rape was alleged, would have agreed with the appellant’s mother that no charge should be laid against the appellant.

Ms Maboane, who appeared for the respondent, submitted that the evidence of the appellant was correctly rejected by the Court a quo as being not reasonably possibly true. This is in view of the following:-

If the complainant had consented to having sexual intercourse with the appellant, he wouldn’t have had to drag her to his home.

He wouldn’t have had to slap her and hit her with a chain.

· He wouldn’t have had to cover her mouth with his hands when she tried to scream for help. In fact, she wouldn’t have had to scream for help in the first place.

He wouldn’t have had to force her to take off her clothes in order for him to have sexual intercourse with her.

· She wouldn’t have had to quietly leave the appellant in the early hours of the morning whilst he was still asleep. This shows that she was fleeing from him.

She wouldn’t have had to leave the appellant’s home in the state that she was in - i.e wearing bloodied, wet and mixed up clothes, and her hair also mixed up.

· She wouldn’t have arrived home crying, and she wouldn’t have sustained the injuries noted by Dr Baufete upon examining her.

The Magistrate correctly dismissed the evidence of Ndlovu who testified on behalf of the appellant as false. In his efforts to exculpate the appellant Ndlovu embroider on how loving the complainant and the appellant were when he saw them at the church premises. The appellant did not go so far as his witness. The Magistrate saw the complainant. He believed her and her mother. The confrontation at the appellant’s home, early the next morning, is important. What was the appellant’s reaction to the complaint of rape? He first denied that he had an affair with the complainant. He said to his mother that he did not know how he arrived with the complainant at his home. The injuries sustained by the complainant are consistent with rape and an assault with a chain. Under cross-examination, the accused said that when the complainant said she had to get her child, he declined to let her go.

There are no grounds to interfere with the conviction.

Mr Pretoruis submitted that the Magistrate over-emphasised the seriousness of the assault on the complainant. Although a chain was used in the assault, there was no evidence before the trial court regarding the size of the chain. The only indication regarding the chain may be the injury on the complainant’s shoulder, which he submitted is a relatively minor injury.

He also submitted that the Magistrate did not take into account that the appellant was heavily intoxicated. It is trite law that intoxication is regarded as a mitigating factor. The Magistrate also disregarded the fact that the appellant is a first offender.

Mr Pretoruis submitted that the Magistrate should have accepted that the complainant was only raped once and therefore that the offence falls into Part III of Schedule 2 of Act 105 of 1997, for which the prescribed minimum sentence (in terms of Section 51(2)(b)(i)) is 10 years imprisonment. It is further submitted that the Court a quo should have found, especially in the light of the appellant’s intoxication, that substantial and compelling circumstances existed. As a result he should have imposed a lesser sentence.

In my opinion the evidence of the complainant about the number of times the accused had intercourse with her is scanty. “I do not know how many times, but it went on until dawn. When asked whether it was more than once she replied - more than once”. The accused admitted that intercourse took place once.

The charge sheet drew the appellant’s attention to s 51(2)(b)(i) read with Part 111 of Schedule 2 of Act 105 of 1997 i.e that conviction carries a minimum sentence of 10 years.

The Magistrate said in the course of sentencing the appellant:

“I am not, you know, diverting, I am not shelving Act 105 of 1997 section 51 thereof. I am fully aware of what it entails, but I also as I have already indicated I also feel that I should retain my jurisdiction here.”

I do not profess to understand exactly what the Magistrate meant by this. The circumstances of the rape, including the assault with a chain, the age of the appellant, that he is a first offender, was in employment and his state of intoxication do not point to the imposition of a sentence higher than the prescribed minimum sentence. The sentence of 15 years induces a sense of shock. It cannot stand.

In the premises:

The appeal against the conviction is dismissed and the conviction is confirmed.

The sentence is set aside and replaced with a sentence of 10 (ten) years imprisonment.

A A LANDMAN

ACTING JUDGE OF THE HIGH COURT

I concur

H N HENDLER

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT :

PANCHIA ATTORNEYS

ATTORNEYS FOR THE RESPONDENT :

STATE ATTORNEY