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IN THE REGIONAL COURT FOR THE REGION OF FREE STATE

HELD AT BETHLEHEM

CASE NUMBER: ASH
43/2015

In the Appeal of:

NKAJANE MASOOA APPELLANT

Versus

THE STATE RESPONDENT

NOTICE OF APPEAL

WHEREAS the Appellant on the 21 October 2016 was convicted on the charge of
Rape and sentence to Life imprisonment by the Learned Regional Magistrate H. Van
Niekerk, in Bethlehem Regional Court.

NOW THEREFOR the Appellant note his intention to Appeal against his
CONVICTION AND SENTENCE, respectfully submitted on the following grounds:

AD CONVICTION:

1. IDENTIFICATION:

The Court erred in convicting the Appellant when he had not been positively
identified by the eyewitness at the time that the incident took place in the
field, for the following reasons:

1.1 The Witnesses, and NEO MOYAKE, could not have seen the assailant

2 The witness TSEKO PIET MOFOKENG and NEO MOYAKE testified that the grass where the incident took place was 1.4 The witness NEO MOYAKE testified in his evidence. 1.5 meters tall at the time of the alleged rape.1 The Court a quo accepted the evidence of the witness.3 The witnesses TSEKO PIET MOFOKENG and MASEHLANO DLHAMINI testified in their evidence that there was another person in the approximate vicinity about 4 meters from where the incident took place and that they also never seen this person before this incident.4 The witness TSEKO PIET MOFOKENG testified that the panty was lying next to her when he and NEO MOYAKE was at the scene. 1.5 The Appellant was only identified by his clothes on the day of the incident. 1. 2 properly due to the grass which was approximately 1. notwithstanding the fact that they contradicted each other in material aspects. 2. 1.5 meter whereas MASEHLANO DLHAMINI testified that the grass was only about 50 cm tall.3 The witness TSEKO PIET MOFOKENG and NEO MOYAKE testified that the victim had a dress on whereas MASEHLANO DLHAMINI testified and the statement handed up by agreement of MOKONE SELLO JOHN that the victim had on trousers on the day of the incident. 2.2 The witnesses only saw the back of the assailant as he was running away from the scene and thus did not see the face of the assailant. EVIDENCE OF THE STATE WITNESSES 2. 2. 2. that while he was chasing the assailant there was a time when he lost sight of the assailant. .

3 whereas NEO MOYAKE testified that panty of the victim was just under her knees.8 The Court a quo erred in drawing the conclusion that the state has proof beyond reasonable doubt the element of sexual penetration as these inferences are not based on any fact or evidence before Court. The Court by not taking into account the time the Appellant was in . 3. 2.7 None of the witnesses testified that the saw the Appellant penetrated the victim and the J88 that was handed up by consent also did not support the court conclusion that the only reasonable explanation was that it is the Appellant that sexually penetrated the victim. 6. That the Court erred in over emphasizing the aggravating factors. 2. 2. AD SENTENCE: The grounds for the Application are: 1.5 The witness TSEKO PIET MOFOKENG testified that the victim was lying on her back when they first saw her. That the Court erred in not taking into account the element of rehabilitation of the Appellant. whereas NEO MOYAKE testified that she was lying on her stomach. 4. That the Court erred in over emphasizing the interests of the society. That the Court erred in not applying enough weight to Applicant’s personal circumstances as mitigating factors 5. 2. 2.6 The Court a quo erred in finding that the witnesses corroborated each regarding the material issue of identification. That the Court erred in sentencing the Applicant to sentences that are inappropriate and shocking in nature.

Nuade Street 24 BETHLEHEM TO: THE REGISTRAR REGIONAL COURT BETHLEHEM AND TO: THE DIRECTOR OF PUBLIC PROSECUTIONS BETHLEHEM .) JAP VAN DER MERWE ATTORNEY FOR APPELLANT BETHLEHEM JUSTICE CENTRE 2ND Floor. thus to deviate from the prescribed minimum sentences. SIGNED AT BETHLEHEM ON THIS 4 TH DAY OF NOVEMBER 2016. 4 prison awaiting trial. The Court erred in not finding evidence place before it as compelling and circumstantial and. _________ (Get. 7.