S v Serekwane (175/05) [2005] ZANWHC 52 (1 August 2005)

S v Serekwane (175/05) [2005] ZANWHC 52 (1 August 2005)

The court found that while the complainant's evidence was credible and corroborated, the medical evidence did not conclusively support a finding of attempted rape, as there was no evidence of penetration or removal of the complainant's panties. The magistrate misdirected himself by inferring attempted penetration without sufficient objective evidence. The only reasonable inference was that the appellant committed indecent assault, not attempted rape. Accordingly, the conviction for attempted rape was set aside and substituted with a conviction for indecent assault. The sentence of five years imprisonment was found to be inappropriate for indecent assault and was replaced with three years...

Citation
[2005] ZANWHC 52
Parties
Appellant: Serekwane Obakeng Harold; Respondent: The State
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
1 August 2005
Case Number
175/05
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted to the Full Bench.
Outcome
Conviction for attempted rape set aside and substituted with conviction for indecent assault. Sentence of five years imprisonment set aside and replaced with three years imprisonment.
Judges
R D Mokgoatlheng, M T R Mogoeng, A A Landman
Legal Topics
Attempted Rape, Indecent Assault, Onus of Proof, Single Witness Caution, Sentencing Principles
Criminal Law Attempted Rape Indecent Assault Onus of Proof Single Witness Caution Sentencing Principles

Case Brief

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Parties

Serekwane Obakeng Harold

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence After Leave Granted to the Full Bench.

Legal Issues

  1. 1 Whether the State proved beyond reasonable doubt that the appellant attempted to rape the complainant.
  2. 2 Whether the conviction for attempted rape was justified on the evidence.
  3. 3 Whether the sentence imposed was appropriate given the substituted conviction of indecent assault.

Ratio Decidendi

The court found that while the complainant's evidence was credible and corroborated, the medical evidence did not conclusively support a finding of attempted rape, as there was no evidence of penetration or removal of the complainant's panties. The magistrate misdirected himself by inferring attempted penetration without sufficient objective evidence. The only reasonable inference was that the appellant committed indecent assault, not attempted rape. Accordingly, the conviction for attempted rape was set aside and substituted with a conviction for indecent assault. The sentence of five years imprisonment was found to be inappropriate for indecent assault and was replaced with three years...

Court Disposition

Conviction for attempted rape set aside and substituted with conviction for indecent assault. Sentence of five years imprisonment set aside and replaced with three years imprisonment.

Orders

  • The conviction of attempted rape is set aside and substituted with a conviction of indecent assault.
  • The sentence of five years imprisonment is set aside and substituted with a sentence of three years imprisonment.