S v Bangala

• Jurisdiction: South Africa
• Judge: B Mashile J and I Opperman AJ
• Judgment Date: 17 April 2014
• Docket Number: A412/2013
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 27 March 2014
• Citation: 2014 JDR 0919 (GSJ)

Mashile, J:

[1]

This is an appeal against both conviction and sentence. The Appellant was charged with the rape of MM, an 11 year old girl. He appeared before the regional court for the region of Gauteng held at Protea. He was

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legally represented throughout the duration of his trial and was warned that the provisions of Section 51 of the Criminal Law Amendment Act No. 105 of 1997 could be invoked for purposes of the imposition of sentence should he be found guilty as charged. He pleaded not guilty to the charge against him. On 13 August 2008, he was found guilty as charged and on 26 September 2008 sentenced to life imprisonment.

[2]

In terms of Section 309(1)(a) of the Criminal Procedure Act 51 of 1977, the Appellant became entitled to an automatic right to appeal against both his conviction and sentence. This appeal accordingly concerns his conviction and sentence.

[3]

The complainant testified on her own behalf while her mother gave evidence in support. The report of the doctor was read into the record and admitted into evidence and marked Exhibit "A" without any objection from the Appellant. The Appellant also gave evidence on his own behalf and called Nkele Ramotjapedi, his girlfriend, to give evidence in mitigation of sentence.

[4]

The testimony of the complainant is in short that on 4 April 2008 she had just attended Sunday school and was playing outside the church when she was approached by the Appellant. Both she and the Appellant are members of the Zion Christian Church (ZCC) and the latter is also a prophet of the same church. The Appellant asked if she would be going to Moria and the complainant informed him that she would not as her mother could not afford the money to send her.

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[5]

A discussion about steaming with the Appellant (it having religious significance), culminated in the complainant agreeing to accompany him to his house. The Appellant informed her that he would prepare the steaming ritual for her and his younger brother, Tebogo, who at the time when he (the Appellant) left the house was also intending to do so. On their way to the Appellant's house they met the complainant's friend, Lettie who walked with them for a while before the Appellant told her that she could not go all the way to the Appellant's house as she was not wearing anything on her head.

[6]

Lettie turned back and the two proceeded. The complainant waited at the gate of the Appellant's property while he spoke to a neighbour. He invited her in once he finished his chat with the neighbour. Inside the house she found a boy who was older than herself playing music. The Appellant poured tea and drank it. Apparently in preparation of the steaming, the Appellant put rocks on the stove and requested her to come through to the bedroom for a prayer.

[7]

The Appellant promised to give the complainant an amount of R20 and thereafter to withdraw R200, which amount was intended to cover her trip to Moria. In addition, the Appellant asked her to take off her clothes, which she did albeit that she kept on her panties. The Appellant's persuasion and assurance that she should not be scared and that he was nothing but a brother to her, encouraged her to take off her panties as well. The Appellant went out of the bedroom and she overheard him giving money to Tebogo to buy vegetables. He came back with a black pot into which he had placed the

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heated rocks. He took off his clothes and covered both of them with a blanket. They both steamed.

[8]

The Appellant ordered her to lie on the bed. When she did so, he also lay next to her. He said to her: "I am a boy and you are a girl." The complainant said that she did not understand what he meant whereupon he told her that she should not make herself stupid because she did understand what he meant. He left the bedroom and when he returned, he had a knife. He pointed it at her, grabbed and held her neck. She became so horror-struck that she asked if she could urinate. The Appellant gave her a bucket to use and as she did so, she also defecated.

[9]

The Appellant gave her a cloth with some decorations to wipe herself. When she had finished, he pointed the knife at her heart and warned that he would stab her to death. He further grabbed her by the neck and threw her onto the bed. She fell on her back. He demanded that she should put his penis into her vagina. When she refused, he did it himself and continued to have sexual intercourse with her. Thereafter he gave her a washing rag to clean herself. She washed and noticed that there was some blood mixed with some white substance coming out of her vagina. She dressed up and told the Appellant that she wanted to leave. The Appellant told her that he was overcome by the deed of the devil and that she should not tell anyone what had happened between them that day.

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[10]

She and the Appellant left the house for the church. Upon her arrival at the church, she did not find Mama Pat. By that time she was crying and she went straight to her home where she found her mother to whom she reported that the Appellant, the prophet from their church, had raped her. Her mother looked shocked at the news and suggested that they should go to the police station to report the matter. She stated in cross-examination that other than telling her that she had been raped, she did not say much to her mother. Her mother heard most of the details when she related her dreadful experience to the police.

[11]

When she and her mother arrived at the police station, they were told to wait for the new shift of the police that would be taking over at 18h00. Later that night she took them to the house of the Appellant but they were told that members of the household, the Appellant and whoever lived in the house, had gone to church. They went back to the police station where she made her statement. She was then taken to Chris Hani Baragwanath Hospital for medical examination and was later dropped off at her home.

[12]

Under cross examination she insisted that the Appellant raped her in the manner described by her. She denied that she was the one who asked to accompany him to his house. Instead, the Appellant asked her if she would be going to Moria and her response was that she would not be because her mother did not have money. She further denied ever asking to be steamed. She was adamant that it was the Appellant who proposed steaming.

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[13]

She also denied that the Appellant gave her boiling water from the stove and that he prepared the bedroom for her to steam herself in the interim. She denied that she was left alone to steam...