S v Sogoni

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: AG Binns-Ward J and KM Savage J
• Judgment Date: 18 July 2022
• Court: Western Cape High Court, Cape Town
• Docket Number: A243/21

Binns-Ward J and Savage J:

[1]

The appellant, who was legally represented, was convicted by the regional court, Wynberg, Western Cape on 14 December 2020 of four counts of the rape of a 12-year-old girl in contravention of section 3 of the Criminal Law (Sexual Offences and Relates Matters) Amendment Act 32 of 2007.

[2]

The appellant, who was given notice that the minimum sentence of life imprisonment applied in the matter given that the victim was under the age of sixteen years at the time of the commission of the offences, pleaded not guilty to all four counts against him. Following his conviction on all counts, and on the same day that he was convicted, the appellant was sentenced to life imprisonment, all four counts being taken as one for purposes of sentence. In terms of section 103(1) of the Firearms Control Act 60 of 2000 he was declared unfit to possess a firearm. This

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appeal, with the leave of the magistrate, is against his both his conviction and sentence.

[3]

The evidence of the complainant was that she was raped on four occasions by the appellant between June 2018 and August 2018 in the one-roomed house in which she lived with his family in Kosovo, Philippi. In her evidence the complainant did not waver in her identification of the appellant as the person who had raped her on each of the four occasions. The first incident, in June 2018, occurred while she was asleep in bed next to the appellant's mother. The appellant got into the bed from the foot of the bed, pulled down the complainant's panties and pyjamas down, got on top of her and raped her, cautioning her not to make a noise while his mother slept. After he had raped her the appellant gave the complainant a face towel to clean herself and told her to keep what had occurred between them. The complainant did not report the incident to anyone. The following day, while she was alone at home with the appellant, he inserted his finger into her vagina.

[4]

In July 2018, while the complainant was again alone at home with the appellant, he got into his mother's bed and raped her. The complainant reported the incident to a young man who was boarding at the address, one Onke, who in turn told the appellant's older brother, who told the appellant's mother. Her response was that the appellant would not do such a thing.

[5]

In August 2018 the complainant was once again alone at home with the appellant when he undressed and raped her. She attempted to kick him away, but he managed to pull her panties down and raped her vaginally. He then told her to lie on her stomach and he proceeded to rape her vaginally and anally. After the complainant reported the incidents to her aunt, the matter was reported to the police and the complainant was medically examined on 11 August 2018. Fresh vaginal injuries sustained within the past 72 hours were identified. In addition, injuries consistent with a history of anal penetration by a blunt object or penis were identified.

[6]

The appellant denied raping the complaint. On his version he would leave for work at 05h00. He described his relationship with the complainant as good and stated that there were not opportunities presented for him to be alone with the

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complainant. Although in cross-examination he stated that he had previously reprimanded the complainant for arriving home late, on his version the complainant had not taken issue with this. No evidence was advanced that the complainant had any reason to falsely implicate the appellant as the perpetrator. Equally, since he was well known to her, it was not suggested that the complainant may have been mistaken in her identification of the appellant.

[7]

The regional magistrate recognised that the complainant was not only a child witness but also a single witness. In spite of the caution with which her evidence was approached, the complainant was found to have been a confident, coherent and logical witness whose evidence could be relied upon, in contrast to the appellant who was found by the trial court to have not make a good impression as a witness. The court noted that the appellant denied raping the complainant and had attempted, without success, to create the impression that the complainant was truant and had not been attending school, when his own mother, with whom both the complainant and the appellant both lived, had no similar concerns. In addition, it was noted that new aspects of his defence were advanced for the first time in his evidence, which had not been put to the state's witnesses. This led the court to reject the appellant's version that he had not repeatedly raped the complainant as not being reasonably possibly true. The...