About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 60
|
|
Maseli v S (A148/2022) [2023] ZAFSHC 60 (2 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A148/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NAKO
ELLIOT
MASELI
Appellant
and
THE
STATE
Respondent
CORAM:
LOUBSER, J et TSANGARAKIS, AJ
HEARD
ON:
6 FEBRUARY 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
2 MARCH 2023
[1]
The appellant in this matter appeals against his conviction and
sentence on a charge
of raping his biological daughter, who was 17
years old and pregnant at the time. He was found guilty on this
charge on 18 August
2017 in the Regional Court sitting at Ladybrand.
On 27 September 2017 he was sentenced to life imprisonment. The
appellant now
comes in higher contention by virtue of an automatic
right of appeal in terms of the provisions of
section 309(1)
of the
Criminal Procedure Act 51 of 1977
.
[2]
The record of proceedings shows that the
conviction of the appellant was founded on the evidence of
a single
witness, namely the complainant herself. In his judgement, the trial
Magistrate applied the cautionary rules relating
to the evidence of
single witnesses, and he came to the conclusion that the complainant
was a good witness.
[3]
However, it was contended on behalf of the appellant that the court
a
quo
erred by disregarding the cautionary rules applicable to single
witness evidence, that the court
a
quo
erred in finding no improbabilities in the State’s case, and
that the court
a
quo
erred in dismissing the alibi of the appellant, whilst he carried no
burden of proof in that respect. It must be mentioned right
from the
outset, though, that the power of an appeal court to interfere with
the findings of a trial court on credibility, is limited.
In
S
v Francis
[1]
,
for instance, it was held that “bearing in mind the advantage
which a trial court has of seeing, hearing and appraising
witnesses,
it is only in exceptional cases that this court will be entitled to
interfere with a trial court’s evaluation
of oral
testimony.”
[2]
[4]
As far as the alleged failure of the court
a quo
is concerned
to find improbabilities in the State’s case, it is necessary to
deal with the specific improbabilities as alleged
on behalf of the
appellant. The first is that, according to the testimony of the
complainant, she only asked her mother after the
incident about
supposed traditions, while she did not report to her mother that she
was raped by her father, the appellant. The
second is that the
complainant made no attempt to escape despite the opportunity to do
so when the appellant went to visit the
toilet during the incident.
The import of these alleged improbabilities will become evident when
I turn to the facts of the matter
hereunder. Suffice it to mention at
this point that the trial Magistrate did deal with these alleged
improbabilities in his judgement,
and he came to the conclusion that
the conduct of the complainant in these respects was due to the
common cause fact that there
existed a strict, tumultuous or
difficult relationship between the complainant, the appellant and her
mother.
[5]
The third ground is that the trial Magistrate erred in dismissing the
appellant’s
version of an alibi. The appellant testified that
he was somewhere else with other people when the crime was allegedly
committed.
Despite the fact that those people were available to
testify, they were not called by the appellant to support his
version. The
trial Magistrate referred to this aspect in his
judgement, and he added that the appellant did not make a good
impression when
he testified. “His evidence was not of a very
persuasive value,” he found.
[6]
It is now apposite to turn to the facts of the matter. The
complainant testified that
she was pregnant at the time when her
father, the appellant, entered her room and got into her bed with
her. He told her about
a custom which her mother had also gone
through, namely that a father would have intercourse with his
pregnant daughter in order
to make the process of her giving birth
easier. She disagreed with this. Eventually the appellant undressed
her lower body and
then had intercourse with her. While in the act,
the appellant interrupted the intercourse and went to the toilet.
When he came
back, he resumed the intercourse. Afterwards the
appellant fell asleep. The complainant then sent a message to her
mother by whatsapp
to inquire about the custom she was told about.
Although she did not give her consent to the sexual intercourse, she
did not message
her mother about the rape. The next morning she went
to her boyfriend’s mother, and she told the mother that her
father had
raped her. The mother confirmed this visit by the
complainant in giving evidence. She testified that the complainant
was shaking
and crying at the time when she made the report.
[7]
The trial Magistrate referred to this evidence in his judgement. He
also referred
to the evidence of the doctor who testified for the
State. The doctor found a small tear or laceration on the lower part
of the
complainant’s vagina. The trial Magistrate concluded
that the probabilities of the case were also against the appellant.
[8]
I have no reason to disagree with the findings of the trial
Magistrate. But as a last
bite at the cherry it was contended that
the trial Magistrate was wrong in finding the appellant guilty “as
charged”.
The appellant was charged with rape read with the
provisions of
section 51
and
52
of Act 105 of 1997. The charge sheet
referred to “an act of sexual penetration”. The trial
Magistrate found in his
judgement that the appellant had sexual
intercourse with the complainant on two occasions.
[9]
The thrust of the appellants argument in this respect is that the
charge sheet did
not refer to section 51(1) of Act 105 of 1997, which
sets a minimum sentence of life imprisonment for rape that was
committed twice.
Since section 51 (1) was not mentioned, section
51(2) was applicable, the argument went. In terms of section 51(2),
the minimum
sentence is 10 years imprisonment. It appears from the
record that the appellant was not apprised of the minimum sentence in
terms
of Section 51(1) in court, but on the other hand, he was
legally represented.
[10]
However, in
September
v S
[3]
the Constitutional Court had the following to say: “
It
is indeed desirable that the charge sheet refers to the relevant
penal provision of the Minimum Sentences Act. This should not,
however, be understood as an absolute rule. Each case must be judged
on its particular facts. Where there is no mention of the
applicability of the Minimum Sentences Act in the charge sheet or in
the record of the proceedings, a diligent examination of the
circumstances of the case must be undertaken in order to determine
whether that omission amounts to unfairness in trial. This is
so
because even though there may be no such mention, examination of the
individual circumstances of a matter may very well reveal
sufficient
indications that the accused’s section 35(3) right to a fair
trial was not in fact infringed.”
[11]
In my view, the individual circumstances of the present matter do
reveal sufficient indications
that the appellant’s section
35(3) rights (in the Constitution) to a fair trial was not in fact
infringed. As already mentioned,
the appellant was legally
represented. Also, in the charge sheet there is reference to section
51 and 52, although subsections
are not mentioned. One can safely
assume that the legal representative would have informed the
appellant of the different provisions
of section 51. Moreover, in
terms of
section 88
of the
Criminal Procedure Act, any
incomplete
information in the charge sheet was certainly remedied by the
evidence before the court. Lastly, it is not alleged by
the appellant
in his grounds of appeal or in his heads of argument or anywhere else
that his right to a fair trial was infringed
by what was stated in
the charge sheet. It follows that there is no merit in this argument
advanced on behalf of the appellant.
The appeal against conviction
must therefore fail.
[12]
As for the sentence imposed, it is contended on behalf of the
appellant that the sentence should
be reduced to a minimum sentence
of 10 years imprisonment as provided for in
section 51(2)
of Act 105
of 1997, read with Part 3 of Schedule 2 of the Act. Here reliance is
again placed on the argument raised in respect
of the charge sheet
and what is stated in the charge sheet. I have already dismissed this
argument, and it is not necessary to
deal with it again in relation
to the sentence.
[13]
In sentencing the appellant, the trial Magistrate took account of,
inter alia
, the personal circumstances of the appellant. He
was 35 years old at the time and a first offender. He has two
children, the complainant
being one of them. Considering the question
whether the court should find the presence of compelling and
substantial circumstances
in order to deviate from the prescribed
minimum sentence, the trial Magistrate observed that the conduct of
the appellant was particularly
reprehensible since the victim was his
daughter, she was 17 years old and she was pregnant. Moreover, the
appellant has raped her
twice, the trial Magistrate found. In view of
these findings, the court
a quo
could not find any reason to
deviate from the minimum sentence.
[14]
Again, I am in full agreement with the findings of the trial
Magistrate in respect of sentence.
In any event, in appeals against
sentence, an appeal court is not free to interfere with the
discretion exercised by the sentencing
officer, unless the discretion
was tainted with a material misdirection or where the sentence is so
disproportionate to the crime,
the personal circumstances of the
offender and the interests of society, that it induces a sense of
shock. These principles have
already become trite law in the approach
to sentences imposed. I cannot find that any of the factors mentioned
are present in this
appeal. Consequently, the following order is
made:
1. The appeal against
conviction and sentence is dismissed.
P.
J. LOUBSER, J
I
concur:
S.
TSANGARAKIS, AJ
For
the Appellant:
Me. S. Kruger
Instructed
by:
Legal
Aid SA, Bloemfontein
For
the Respondent: Adv. S. M.
Mthethwa
Instructed
by:
Office
of the Director of Public Prosecutions, Bloemfontein
[1]
1991
(1) SACR 198 (A)
[2]
Ibid at
204 D
[3]
[2018]
ZACC 27
par 40