S v Malatjie

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Minnaar AJ
• Judgment Date: 13 September 2023
• Citation: 2023 JDR 3538 (GP)
• Hearing Date: 23 August 2023
• Docket Number: A326/2022
• Court: Gauteng Division, Pretoria

Minnaar AJ:

[1]

The appellant was charged with rape in contravention of section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) 32 of 2007,

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Minnaar AJ

further read with section 256, 257 and 261 of the Criminal Procedure Act 51 of 1977, the provisions of sections 51(1) of the Criminal Law Amendment Act 105 of 1997, as amended, as well as section 92(2) and 94 of the Criminal Procedure Act 105 of 1977 in that, on or about 25 February 2020 and at or near KwaThema, Gauteng, the appellant raped the complainant, being seven years old at the time of the offence.

[2]

Throughout the trial the appellant was legally represented. He pleaded not guilty to the charge and elected not to disclose his defence. On 14 September 2022 the appellant was convicted of the rape by the Regional Court, Springs.

[3]

On 1 November 2022 the appellant was sentenced to life imprisonment. Due to the nature of the sentence, and as provided for in section 309(1)(a) of the Criminal Procedure Act, 105 of 1977, the appellant had an automatic right to appeal.

[4]

The appeal is against both the conviction and the sentence.

Conviction:

[5]

In the appellant’s heads of argument it was submitted that there were material contradictions in the complainant’s testimony. At the hearing of the appeal, the appellant’s representative submitted that the alleged material contradictions are limited to whether the penetration was in the

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Minnaar AJ

front or back (referring to whether the penetration was in the anus or in the vagina) and to the date of the incident.

[6]

It is common cause that the complainant is the appellant’s adopted sister. Her evidence was that she came back from school, changed her clothes and went to play outside. The appellant then called her and as she refused to adhere, the appellant picked her up and put her on top of the bed in the bedroom she shared with her mother. After he undressed the complainant’s legging and panty, the appellant did silly things to her. The ‘silly things’ the appellant did, was that he took out his thing, referring to the appellant’s totolozi, and inserted it in her anus. The appellant told the complainant that she should not tell her mother or else the accused will kill both of them. The appellant then left the house. The complainant remained in the house and later the same evening, when her mother came back home, she told her mother what had happened.

[7]

The complainant’s mother testified that on 25 February 2020, when she arrived home, she found the complainant at the house and the complainant did not look okay. Upon enquiring, the complainant said that nothing was wrong but later in the evening the complainant complaint that she was in pain ‘here under’. Upon further enquiry, the complainant told her mother what happened but said that the appellant penetrated her in front. According to the mother, she took the complianant to the hospital on the same day of the incident for an examination.

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Minnaar AJ

[8]

Doctor Maletando then testified that she examined the complainant on 28 February 2020. Her findings were that there were no injuries on the gynaecological examantion but she did determine that there was penetration to the complainant’s anus. In this instance she noted, and recorded, scarring to the anus at the 6 o’clock and 12 o’clock position.

[9]

The investigating officer, Warrant Officer Matlabo, testified that she received the complaint on 28 February 2020 and she interviewed the complainant and the complainant’s mother on the same date. She further testified that she obtained the statement from the complainant on the next day. The investigating officer was adamant that the complaint was filed on 28 February 2020 and that this was the same day the complainant told her mother of the rape.

[10]

The appellant testified in his own defence. He denied the rape. According to him, his mother had a vendetta against him as he...