S v Khene (Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Djaje AJP and Dibetso AJ
• Judgment Date: 15 September 2023
• Citation: 2023 JDR 3502 (NWM)
• Hearing Date: 18 August 2023
• Docket Number: CA 39/2022
• Court: North West Division, Mahikeng

Djaje AJP:

[1]

The appellant was convicted of rape in the Regional Court of Klerksdorp and sentenced to twelve years imprisonment on 31 July 2018. He now appeals against conviction and sentence.

[2]

He applied for leave to appeal on 17 October 2018 which was refused. Subsequently, he petitioned the High Court and leave was granted on 12 February 2019 against both conviction and sentence. He was only advised during July 2022 that leave was granted against both conviction and sentence by an attorney from Legal Aid South Africa. Since he was incarcerated he was not able to make contact with his attorney to prosecute his appeal. It was only in May 2023 that he was able to consult with his current attorney from Legal Aid and prosecute the appeal. It was on these grounds that the appellant now applies for condonation for the late prosecution of this appeal. These were stated as the grounds for the late filing of this appeal. Condonation is not opposed and the reasons for the late prosecution of the appeal are found to be reasonable. Condonation is granted.

2023 JDR 3502 p3

Djaje AJP

[3]

It was alleged in the charge sheet that the appellant on 28 September 2016 unlawfully and intentionally committed an act of sexual penetration with a female person of thirty (30) years by forcefully having sexual intercourse with her without her consent. The appellant pleaded not guilty and made formal admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977. He admitted that he did have sexual intercourse with the complainant on the date alleged in the charge sheet. The contents of the medical report (J88) were also admitted which indicated that the complainant was on her menstrual cycle, no sign of trauma and specimen collected.

[4]

The complainant testified that the appellant was known to her as a family friend. On the date of the incident, he arrived at her place, knocked and upon enquiring who it was, the appellant responded that it was him. He entered after she opened for him. The complainant was home alone. As she was dealing in dagga, the appellant asked her for some dagga but she did not have stock that day. The appellant then asked for a cup of water. Thereafter, the appellant informed her that he was there to help her to conceive and that they should have sexual intercourse. The complainant was surprised and she refused. He throttled her and managed to have sexual intercourse with her despite her having told him that she was on her menstrual cycle. After the intercourse he asked for a towel to wipe the blood on his private part and he left. On his departure he told the complainant that he was coming back for more sexual intercourse.

2023 JDR 3502 p4

Djaje AJP

[5]

The complainant went to Mike who was running a tuck shop on her premises and reported to him that she was raped by the appellant. She bought a razor at the tuck shop to use it to take her life by cutting her wrists. Whilst at home, her friend Lerato arrived and she reported to her that the appellant raped her. Eventually she went to the police station to report the incident.

[6]

Lerato testified that when she arrived at the complainant’s place she was crying and notice minor injuries on her wrists. The complainant was crying and she reported that she was raped by the appellant. Lerato did not accompany the complainant to the police station. She indicated that at that time she was pregnant and did not do anything to assist the complainant. She however knew the appellant.

[7]

The appellant testified in his defence that the complainant was a friend to his girlfriend and also his girlfriend in 2015. He indicated that on 28 September 2018 they were still in a relationship with the complainant. On that day he was on his was to see one Jerry when he saw the complainant peeping through a window asking him to light a cigarette for her. He approached her and went inside the house to light the cigarette for her. They started a conversation with the complainant telling him that she wants a child and the doctors are not able to help her. The appellant suggested that they should have sexual intercourse and the complainant just smiled. The appellant started to kiss the complainant and she kissed him back. They had consensual sexual intercourse. Thereafter, the appellant left to go to Jerry’s place. On his way back from Jerry’s place he

2023 JDR 3502 p5

Djaje AJP

passed the complainant with three women and he gave her R10,00 to buy cigarette.

[8]

The appellant denied that the sexual intercourse with the complainant was without consent. He was surprised to hear the following day that the complainant laid charges of rape against him.

AD CONVICTION

[9]

In the main the appellant’s ground for setting aside the conviction is that the state...