Director of Public Prosecutions, Free State v Mokati

Jurisdictionhttp://justis.com/jurisdiction/166,South Africa
JudgeMakgoka JA, Mabindla-Boqwana JA, Kgoele AJA, Phatshoane AJA and Unterhalter AJA
Judgment Date25 March 2022
CourtSupreme Court of Appeal
Hearing Date29 September 2021
Citation2022 (2) SACR 1 (SCA)
CounselJM de Nysschen for the appellant. PL van der Merwe for the respondent, instructed by Legal Aid South Africa, Bloemfontein. SJ Reinders (with Adv Nkhahle) for the amicus curiae.
Docket Number440/2019

Phatshoane AJA (Mabindla-Boqwana JA and Unterhalter AJA concurring):

[1] The respondent, a 22-year-old, Mr Johannes Mokati, was convicted on two counts in the Free State Division of the High Court (the trial court), namely rape (count 1), for which he was sentenced to 10 years' imprisonment, and robbery with aggravating circumstances (count 2), for which he was sentenced to 15 years' imprisonment. It was ordered that five years of the prison term on count 1 would run concurrently with the sentence on count 2, thus resulting in an effective term of 20 years' imprisonment. The respondent was acquitted of murder (count 3). The appellant, the Director of Public Prosecutions, Free State (the state), appealed against the sentence imposed on the respondent for rape. It also reserved certain questions of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 (the CPA), in respect of the acquittal of the respondent on the count of murder, and contended that the competent verdict of culpable homicide ought to have been returned. The respondent cross-appealed against his conviction and sentence in respect of the rape and robbery counts. The appeal and cross-appeal, as well as the reservation of points of law, are with the leave of the trial court. At the request of this court, Advs Reinders and Nkhahle of the Free State Society of Advocates appeared for the amici curiae. We are grateful for their written and oral submissions.

[2] The respondent did not dispute that on 9 February 2017 he had sexual intercourse with the 21-year-old Ms AM, now deceased, at her workplace — an attorney's office. Thereafter, the respondent took the deceased's belongings, namely a cellular phone, a laptop computer, a tablet computer and accessories. According to the respondent, the sexual intercourse was consensual, and he took the deceased's belongings as a form of security for an amount of R1500 owed to him by the deceased. In terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988, the trial court admitted into evidence a statement made by the

Phatshoane AJA (Mabindla-Boqwana JA and Unterhalter AJA concurring)

deceased to the police on the evening of the day of the incident. It also considered the evidence of the deceased's sister, the police, and the forensic and medical experts.

[3] The trial court then made the following factual findings: The deceased was alone at her workplace on 9 February 2017 when the respondent entered the premises armed with a knife. He forcibly raped the deceased after subduing her by threatening her at knifepoint. After the rape, he took her electronic devices mentioned above. He threatened to kill her and her family if she reported the incident to the police. Later that evening the deceased reported her ordeal to her sister, at home. According to her sister, the deceased was emotional. Although the deceased did not expressly tell her that the respondent had raped her, she confirmed that by nodding in agreement upon probing by her sister. After the rape, the deceased was examined by Dr De Lange, who prescribed her Doxycycline 100 milligrams and Flagyl 400 milligrams, broadspectrum antibiotics that prevent and treat sexually transmitted diseases. Later the same evening the deceased made a detailed statement to the police about the incident.

[4] The following day the deceased was examined by a clinical forensic nurse, Sister Qhathatsi, at a rape centre. The deceased reported to the nurse that she was vaginally and anally penetrated. No visible (vaginal) injuries were noted. However, the nurse observed fresh anal lacerations consistent with anal penetration. Sister Qhathatsi gave her post-exposure treatment (prophylaxis), a type of antiretroviral (ARV) to prevent infection, to use for 28 days. She also gave her Avril, a hormonal pill. From 9 February 2017, several medicines were prescribed for the deceased by a number of medical practitioners. She died on 24 February 2017. The cause of death was recorded as cerebral venous sinus thrombosis.

[5] With regard to the count of robbery with aggravating circumstances, the trial court accepted the evidence of Mr Matendere, a technology specialist who operated a shop near the deceased's workplace. He testified that the respondent handed over to him a tablet for repairs on 9 February 2017, the day of the incident. The respondent also offered to sell him a laptop computer, which offer he declined. While updating the tablet's software, he noticed several Afrikaans WhatsApp messages and became suspicious that the tablet might have been stolen. He sent a message to one contact he recognised from the tablet list to ask if she knew the tablet's owner. He later received a call from the police who requested him to inform them when the respondent came to collect the tablet. The following day the respondent was arrested when he arrived at Mr Matendere's shop. The trial court rejected the respondent's version that he had given Mr Matendere the devices for safekeeping because he did not want to take them to his place in the township. It also rejected his evidence that Mr Matendere had requested him to sell him the laptop.

[6] Based on the above findings, the trial court rejected the respondent's version and convicted him of rape and robbery with aggravating circumstances, against which he was granted leave to cross-appeal. There are three issues to be considered. First, the cross-appeal by the respondent

Phatshoane AJA (Mabindla-Boqwana JA and Unterhalter AJA concurring)

against the conviction on the rape and robbery counts. Secondly, the appeal by the state on the questions of law reserved in terms of s 319 of the CPA. Thirdly, the appeal and cross-appeal against sentence. I consider them in turn.

The cross-appeal by the respondent against the conviction on the rape and robbery counts

[7] In the absence of demonstrable and material misdirection by the trial court, its findings of fact are taken by the appeal court to be correct and will only be disturbed if they are clearly wrong. [1] The respondent's evidence was at variance with the warning statement he made to the police on how the purported consensual sexual intercourse occurred. He kept his counsel in the dark on numerous crucial aspects of his evidence and claimed not to have known that the issues would be canvassed in court. The trial court found the respondent to have been 'a poor witness' whose version was interspersed with contradictions. On an overall analysis of the record, this finding is unassailable. Furthermore, the deceased's reports of the rape, her sudden panic attacks, anxiety and stress dispel any notion that the sexual intercourse could have been consensual. The overall evidence presented by the state portrays a picture that is consistent and probable that the respondent had raped the deceased.

[8] With regard to the robbery with aggravating circumstances, apart from the inherent improbabilities in the respondent's version, there is independent and objective evidence of Mr Matendere. It was his exemplary conduct that led to the arrest of the respondent. Once his evidence was accepted, it put paid to the respondent's version that he took possession of the deceased's property as a form of security. It makes no sense that the deceased would give the respondent very valuable items (a tablet, a laptop and a cellphone) as security for a debt of only R1500. Also, if Mr Matendere had an interest in the laptop, it would defy logic for him to jeopardise his chances of acquiring it by having the respondent apprehended, as he did.

[9] In my view, the trial court was correct in convicting the respondent on these two counts. His cross-appeal must fail.

The appeal by the state on the questions of law reserved in terms of s 319 of the CPA

[10] I now turn to the murder count on which the respondent was acquitted and against which the state has been granted leave by the trial court to reserve questions of law. It is to be remembered that the state contended that the competent verdict of culpable homicide ought to have been returned. The state has a right of appeal only against a trial court's mistakes of law, not its mistakes of fact. [2] The restriction cannot

Phatshoane AJA (Mabindla-Boqwana JA and Unterhalter AJA concurring)

be relaxed simply because the trial judge considered the facts incorrectly. [3] Section 319(1) of the CPA provides that:

'If any question of law arises on the trial in a superior court of any person for any offence, that court may of its own motion or at the request either of the prosecutor or the accused reserve that question for the consideration of the Appellate Division, and thereupon the first-mentioned court shall state the question reserved and shall direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Appellate Division.'

[11] Three jurisdictional requirements must be satisfied in terms of the section, namely,

(a)

only a question of law may be reserved;

(b)

the question of law must arise 'on the trial' in a superior court; and

(c)

the reservation may be made by the court of its own motion or at the request of the prosecutor or the accused, in which event the court should 'state the question reserved' and direct that it be entered in the record.

This court in Magidela [4] stated that the question must be framed by the judge to accurately express the legal point he or she had in mind. There must also be certainty concerning the facts on which the legal point is to be decided. The relevant facts should be set out fully in the record so as to decide the question of law. Moreover, the point of law should be readily apparent from the record, for, if it is not, the question cannot be said to arise 'on the trial' of a person.

[12] Apparent from the trial court's factual findings, the deceased had been on a...

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