THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   555/10

In the matter between:

ISAAC MOLEMA                                                                     Appellant

and

THE STATE                                                                           Respondent

Neutral citation: Molema v The State (555/10) [2011] ZASCA 62 (1
April 2011)

Coram:
STREICHER, SHONGWE JJA and PETSE AJA

Heard:
18 March 2011
Delivered:
1 April 2011

Summary: Appeal ─ Against the order of the high court refusing leave
to appeal in terms of s 309C(7)(c) of the Criminal Procedure Act 51 of
1977 ─ whether there are reasonable prospects of success of an appeal to
the high court against the appellant’s conviction and sentence in the
regional court on charges of rape.

___________________________________________________________

ORDER

On appeal from: South Gauteng High Court (Johannesburg) ( Mailula J
and Mabesele AJ on appeal from the Regional Court, Krugersdorp):

The appeal is dismissed.
___________________________________________________________

JUDGMENT

PETSE AJA (STREICHER and SHONGWE JJA concurring)

[1] This appeal served before us pursuant to leave granted by this court
against an order made in the court a quo (Mailula J and Mabesele AJ)
refusing the appellant leave to appeal against his conviction and sentence
in the regional court, Krugersdorp.

[2] The historical background to the matter is briefly as follows. The
appellant stood trial in the regional court, Krugersdorp. He was charged
with two counts of rape read with s 51 of the Criminal Law Amendment
Act 105 of 1997.

[3] The allegation against the appellant was that on or about June 2006
and on 4 December 2006 he unlawfully and intentionally had sexual
intercourse with Ziphora Mahlangu a 38 year old female without her
consent. The alleged acts of rape were said to have occurred at or near
Krugersdorp West and at or near Manziville respectively in the Regional
Division of Gauteng.

[4] The appellant pleaded not guilty on both counts. In his
substantiation of his plea of not guilty the appellant admitted to have had
sexual intercourse with the complainant on the two occasions alleged in
the charge sheet but averred that such sexual intercourse was with her
consent.

[5] At the conclusion of the adduction of evidence the appellant was
convicted on both counts and sentenced to 15 years’ imprisonment, the
counts being treated as one for the purposes of sentence.

[6] Aggrieved by his conviction and sentence the appellant applied for
leave to appeal against his conviction and sentence in terms of s 309B of
the Criminal Procedure Act 51 of 1977 (the Act). The application was
refused. The appellant’s petition to the high court, South Gauteng
(Johannesburg) and his further application for leave to appeal against the
refusal of his petition to that court were also unsuccessful.

[7] With that prelude I turn now to consider whether leave to appeal to
the high court against conviction and sentence should have been granted.
The test in an application such as the one under consideration in this
appeal is whether there is a reasonable prospect of success in the
envisaged appeal.

[8] In deciding on the fate of this appeal we are thus enjoined by
judicial authority to reflect dispassionately upon the judgments sought to
be appealed against, and reach a conclusion as to whether or not there is a
reasonable prospect that the appellate court may come to a different
conclusion to that reached by the trial court.

[9] In his endeavour to persuade us to uphold this appeal Mr Schaefer
who appeared on behalf of the appellant deemed it advisable to, as he put
it, argue the appellant’s case as if he were arguing the merits of the
envisaged appeal against conviction and sentence in order to demonstrate
to us that on the facts of this appeal leave to appeal against the appellant’s
conviction and sentence in the regional court ought to have been granted.
To that end he subjected the evidence of the complainant to intense
criticism, most of which is encapsulated in the appellant’s petition to this
court, and contended that the complainant’s evidence does not only not
bear close scrutiny but that its entire edifice is inherently improbable.

[10] For present purposes and for the sake of brevity I do not propose to
set out all the points that Mr Schaefer argued before us. I am content with
summarising their upshot in the hope that in so doing I will not do
injustice to Mr Schaefer’s submissions. Mr Schaefer contended that the
trial court: (a) misconstrued the nature of the onus resting on the state in a
criminal trial; (b) too readily branded the appellant a liar and
consequently rejected his evidence and accepted that of the complainant
without giving due weight to its inherent improbabilities and
shortcomings; and (c) afforded little or no weight to the fact that the
complainant had a motive to falsely implicate the appellant as a result of
her fixation on the fact that the appellant had not used a condom during
the first rape and the complainant’s belief that her illness was attributable
to appellant’s failure to use a condom. Mr Schaefer contended further that
the complainant’s version should not have been accepted because: (a) the
complainant had continued to live at the shack provided to her by the
appellant even after she had been dismissed from her employment by the
appellant; (b) the complainant had denied that she had asked for money
from the appellant on 4 December 2006 which is the reason why the

appellant visited her in her shack in the first place whereas her brother
had testified to that effect; and (c) that it was inconceivable that if the
complainant had indeed screamed when the appellant sexually molested
her in her shack on 4 December 2006 that no one would have responded
to her cries of help considering that her shack was on the same premises
as the spaza shop.

[11] Before I deal with these contentions I consider it apposite at this
juncture to record that although the appellant had admitted having had
consensual sexual intercourse with the complainant on the two diverse
occasions as set fourth in the charge against him, he for some
inexplicable reason, vehemently denied having had sexual intercourse at
all with the complainant on those dates when he testified in his defence.

[12] In order to put the contentions advanced by Mr Schaefer in their
proper perspective it is necessary to record a brief summary of the
evidence adduced at the trial. The state called three witnesses and the
appellant was the only person who testified in his defence.

[13] The complainant was formerly employed by the appellant as a
cashier at the appellant’s ‘spaza shop’ in Manziville, Krugersdorp from
February to September 2006. When she commenced her employment she
was staying with her cousin with whom she later had a fall out. When the
appellant got to know about the complainant’s predicament he offered her
accommodation in a shack situated on the spaza shop premises. This
shack was, however, not in a habitable state and it was then agreed
between them that the appellant would accommodate her in the spare
bedroom in his home whilst he fixed the shack. In June 2006 the
complainant spent the night in the appellant’s guest bedroom in the

absence of his wife. Whilst she was sleeping she was woken up by the
presence of the appellant in her bedroom. He was fondling her and
pulling her panties down. Despite her initial resistance she was overcome
by the appellant who then had sexual intercourse with her without her
consent. After he had finished he returned to his bedroom. On realising
that the appellant had had intercourse with her without using a condom
she asked him as to why he had done that without a condom. The
appellant, however, said that he had used a condom. The next morning
the appellant drove her to work. She did not report this incident to anyone
save to tell the appellant that what he had done to her constituted rape.
The appellant was, however, dismissive of the rape accusation retorting
that even if she were to report it to the police the police would dismiss it.

[14] In relation to the incident of 4 December 2006 she testified that she
was feeling sick. Because the appellant had previously rebuked her for
telling others about her sickness and not him, she telephoned the
appellant to report her condition to him. The appellant then came to her
shack and having asked her what was wrong with her, she showed him
pimples on her face telling him that she was feeling really sick. The
appellant, however, said there was nothing wrong with her and that she
was merely suffering from a heat rash. Unexpectedly the appellant
grabbed hold of her, threw her on the bed, pulled off her tights and
panties, took off his pair of trousers and had sexual intercourse with her
against her will. When she screamed the appellant got off her and
comforted her saying that she should not cry. He also offered her money
which she refused. She then got out of the shack in a state of
bewilderment, puzzled as to why no one had responded to her cries for
help. She then called her brother who was in Kagiso. At that point in time
the appellant’s sister-in-law who was by then working at the appellant’s

spaza shop came out and enquired of her as to what had happened. She,
however, did not tell her of what had just happened. When her brother
arrived she reported both incidents to him and also to those persons who
were present at the premises before her brother took her to the doctor.

[15] The complainant’s brother also testified on behalf of the state. He
confirmed that on 4 December 2006 he was telephoned by the
complainant and in response to that call he repaired to her shack. Upon
arrival there she told him what the appellant had done to her not only on
the morning of that day but also in June 2006. She further told him that
she had telephoned the appellant to ask for money as she was not feeling
well and thus desired to consult a doctor. On his suggestion the matter
was reported to the police.

[16] Dr Ruwina Wadee also testified on behalf of the state. She told the
court that at 12h40 on 4 December 2006 she examined the complainant
following a complaint of sexual assault. She did not observe any evidence
of abnormality on complainant’s genitals apart from a ‘milky white
substance discharge’. Her clinical findings, whilst not excluding vaginal
penetration, were not conclusive. She nevertheless emphasised that the
fact that she had found no injuries on the complainant did not mean that
no forced penetration had taken place. She attributed her inability to
arrive at a firm conclusion in this regard to a variety of factors that need
not be traversed in this judgment.

[17] The appellant in his testimony claimed that he, at all material
times, had a love relationship with the complainant and that they had had
sexual intercourse together on diverse occasions. He, however, denied
that they had any sexual intercourse in June 2006 when the complainant

was accommodated at his home and again on 4 December 2006 as alleged
by the complainant. The essence of his version in relation to the June
2006 incident was that pursuant to their arrangements he accommodated
the complainant in the visitor’s bedroom at his home in Krugersdorp
West whilst he slept alone in his bedroom. During the course of the night
the complainant came over to his bedroom saying that she was scared of
sleeping alone in the visitor’s bedroom and wanted to rather sleep with
him on the same bed to which he agreed. For the duration of the night
they did not have sexual intercourse at all. Dealing with the 4 December
2006 incident the appellant denied that he had sexual intercourse with the
complainant. He told the trial court that the complainant had telephoned
him inviting him to come and see her because she had pimples on her
face and an infection of her genitals. She asked for R280 in order to
consult a doctor. But he told her to rather go to the clinic. Her response
was that in that event she would call her brother and ask him to take her
to a doctor. He then left. Later on he was confronted by the police with
the allegation that he had raped the complainant which he denied.

[18] Once the adduction of evidence was concluded the magistrate
evaluated the totality of the evidence having regard to the issue of
credibility given the mutually exclusive versions of the state and the
appellant and the question of the onus resting on the state to prove its case
beyond reasonable doubt.

[19] As it is apparent from what is set forth in para 10 above it is not
hard to see that, from the common thread running through the grounds of
appeal, it is sought to assail the magistrate’s findings of fact and
credibility. On this score it is necessary to state the trite principle that a
court of appeal will not ordinarily interfere with such findings unless it

has been demonstrated that they are vitiated by irregularity or unless an
examination of the evidence shows that such findings are otherwise
wrong. As this court held in the oft quoted cases of R v Dhlumayo &
another 1948 (2) SA 677 (A) at 705 et seq and S v Francis 1991 (1)
SACR 198 (A) at 204c-f the trial court’s findings of fact and credibility
are presumed correct because the trial court is steeped in the atmosphere
of the trial, had the advantage of seeing and hearing the witnesses, and
thus is in the best position to determine where the truth lies.

[20] I am not persuaded that the criticism mounted against the
magistrate’s evaluation of the evidence is justified. In my view the
magistrate’s assessment of the evidence is unassailable. He found that on
balance the complainant was a truthful witness whose version was in the
main consistent and reliable. In coming to this conclusion he had regard
to the following factors: (i) although she was a single witness in relation
to the rape incidents her version was more plausible; (ii) the appellant
had, despite his plea explanation, denied that, on these two critical
occasions, he had sexual intercourse at all with the complainant; (iii) on
this crucial aspect of the state’s case the appellant’s defence was
essentially a bare denial; (iv) the complainant was in a vulnerable
position having to contend with the appellant who was her employer and
landlord who obviously exploited this situation to his advantage, which
factors go towards explaining why the complainant never reported the
first rape incident to the police soon after it had occurred.

[21] Mr Schaefer also called into aid the judgment of this court in S v
York 2002 (1) SACR 111 (SCA) para 19 in which it was held that in its
evaluation of the evidence in the context of a rape charge a court must
forever be alive to the possibility of consent even where the accused

denies intercourse. It was thus argued that in the light of the appellant’s
plea explanation and the line of cross-examination of the complainant
adopted by the defence at the trial it cannot be argued that he did not have
sexual intercourse with the complainant on the dates mentioned in the
charge. In my view there is a simple answer to this contention and it is
that in this appeal there is no evidential basis for such a possibility. Thus
to postulate such a possibility would be no more than pure conjecture.
The appellant’s version that there was at all material times a love
relationship with the complainant was rejected by the magistrate.

[22] It remains to deal with the envisaged appeal against sentence. It is
trite that the imposition of sentence is pre-eminently within the discretion
of the trial court. Thus the appellate court will only be justified in
interfering with the sentence imposed by the trial court if one or more of
the recognised grounds warranting interference on appeal have been
shown to exist. To my mind the magistrate properly took into account
that the appellant was: (i) 46 years of age; (ii) married with dependant
children; (iii) gainfully employed and thus contributing to the financial
needs of his female companion, niece and mother; (iv) first offender; (v)
his dependant children were still attending school; and (vi) that
substantial and compelling circumstances were present. As against these
mitigating factors the magistrate properly took cognisance of the
following aggravating factors: (i) that the appellant had abused his
position of trust; (ii) took advantage of the complainant who was
vulnerable; (iii) lack of remorse; (iv) the gravity of the offence; and (v)
the interests of society.

[23] That rape is an utterly despicable crime that shows utter contempt
for the feelings of the victim brooks no argument to the contrary. That

this is so is evident from an abundance of judgments of this court notably
S v Chapman 1997 (2) SACR 3 (SCA) at 5a-e in which the unanimous
court expressed itself in these terms:
‘Rape is a very serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity and the person of the victim.
The rights to dignity, to privacy and the integrity of every person are basic to the
ethos of the Constitution and to any defensible civilisation. Women in this country are
entitled to the protection of these rights. They have a legitimate claim to walk
peacefully on the streets, to enjoy their shopping and their entertainment, to go and
come from work, and to enjoy the peace and tranquillity of their homes without the
fear, the apprehension and the insecurity which constantly diminishes the quality and
enjoyment of their lives.
. . .
The Courts are under a duty to send a clear message to the accused, to other potential
rapists and to the community: We are determined to protect the equality, dignity and
freedom of all women, and we shall show no mercy to those who seek to invade those
rights.’
In a more recent judgment in S v N 2008 (2) SACR 135 (SCA) para 30
Maya JA had occasion to say the following:
‘. . . The sense of outrage justifiably roused by the offence of rape in the right thinking
members of a South African society in which sexual violence is so endemic and
hardly shows any sign of abating, must, in my view, be a critical factor in the
imposition of a suitable sentence here.’

[24] I have given anxious consideration to the submissions advanced on
behalf of the appellant on the issue of sentence. I am, however,
unpersuaded that the magistrate exercised his sentencing discretion
otherwise than in a proper judicial manner. See S v Giannoulis 1975 (4)
SA 867 (A) at 868 E-H and S v Kgosimore 1999 (2) SACR 238 (SCA)
para 10. Nor can I say that the sentence is otherwise shockingly severe or
startlingly disproportionate to the gravity of the offences of which the

appellant was convicted.

[25] For all the aforegoing reasons therefore the appeal must fail.

[26] In the result the following order is made:
The appeal is dismissed.

___________________

XM Petse
Acting Judge of Appeal

APPEARANCES

APPELLANT:
JK Schaefer
Instructed by BDK Attorneys, Johannesburg;
Symington & De Kok, Bloemfontein.

RESPONDENT: A Simpson
Instructed by the Director of Public Prosecutions,
Johannesburg;
The Director of Public Prosecutions, Bloemfontein.