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[2023] ZAFSHC 300
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Phahlametsing v S (A129/2022) [2023] ZAFSHC 300 (28 July 2023)
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no A129/2022
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
MOTSEKI
ISRAEL PHAHLAMETSING
Appellant
and
THE
STATE
Respondent
CORUM:
JP DAFFUE et S NAIDOO JJ
HEARD
ON:
17 JULY 2023
JUDGMENT
BY:
DAFFUE
J
DELIVERED
ON:
28 JULY 2023
ORDER
On
appeal from
: The Regional Court sitting
at Wesselsbron:
1.
The appeal against conviction on count 4
(rape of a minor child) and the sentence of life imprisonment is
dismissed.
2.
The conviction and sentence of the court
a
quo
are confirmed.
JUDGMENT
INTRODUCTION
[1]
The appellant was convicted on 15 June 2022
in the Regional Court held at Wesselsbron (the court
a
quo
) in respect of the six counts he
faced, to wit:
a.
Count 1: housebreaking with intent to
commit a crime unknown to the State;
b.
Count 2: assault with intention to do
grievous bodily harm;
c.
Count 3: kidnapping;
d.
Count 4: rape of a minor girl;
e.
Count 5: robbery with aggravating
circumstances; and
f.
Count 6: rape.
On the same day he was
sentenced to life imprisonment on count 4 and to sentences ranging
from three to fifteen years’ imprisonment
in respect of the
other counts.
[2]
The
appellant filed a non-sensical notice of appeal in respect of his
convictions and sentences
[1]
without having obtained leave to appeal from either the court
a
quo
,
or this court. However, he has an automatic right of appeal in
respect of count 4 insofar as he was sentenced to life
imprisonment.
[2]
There is no
appeal before us in respect of the other five counts and I do not
intend to consider those convictions and sentences.
However, the
evidence led in respect of counts 1 to 3 overlaps with the evidence
on count 4 and this will be taken into consideration.
Furthermore,
some of the evidence in respect of count 5 – the robbery –
is relevant to the evidence relating to counts
1 to 4 and will be
dealt with during my evaluation of the evidence.
THE GROUNDS OF APPEAL.
[3]
No grounds of appeal have been raised in
the notice of appeal, but Mr Van der Merwe on behalf of the appellant
relied on the following
submissions:
Ad conviction:
The court
a quo
erred in:
a.
finding that the complainants were credible
witnesses;
b.
drawing a negative inference of the
appellant’s version and not making a credibility finding in his
favour;
c.
finding that the State had proven its case
beyond reasonable doubt.
Ad sentence:
The sentence is
inappropriate for the following reasons:
a.
it is shockingly inappropriate and induces
a sense of shock;
b.
the severity of the offence was
over-emphasised at the cost of the personal circumstances of the
appellant;
c.
the court
a
quo
erred in finding that there were no
compelling and substantial circumstances in order to deviate from the
minimum sentence of life
imprisonment.
THE CONVICTION IN
RESPECT OF COUNT 4: EVALUATION OF THE EVIDENCE
[4]
Mr Van der Merwe appeared for the
appellant. He, being an experienced lawyer, could not point out any
misdirection committed by
the court
a
quo
and eventually conceded that he
acted on instructions in submitting that the court
a
quo
erred in finding that the State had
proven its case beyond reasonable doubt. Great value is placed on the
objectivity of Mr Van
der Merwe. I am satisfied that the court
a
quo
did not commit any misdirection.
Therefore, I shall briefly deal with the following evidence in
support of my conclusion that the
appeal in respect of the conviction
should be dismissed.
[5]
During the afternoon of 5 April 2020 two
separate incidents occurred soon after each other at different
locations in Wesselsbron.
In the first instance a robbery occurred at
about 15h30 at the shop of Mr Cassim. His girlfriend, Ms Chaka was
the complainant
in the robbery charge. Her iPhone and other items
were taken during the robbery. The appellant was identified as the
perpetrator
by both these persons who testified for the State. The
appellant was known to both Mr Cassim and Ms Chaka. According to Ms
Chaka
the appellant used to visit her parental home in the past. He
conceded that he and Ms Chaka’s younger brother were friends
and attended the same church at a stage. These two witnesses
testified that the appellant was armed with a firearm and a hammer.
The appellant fled when another member of the public arrived at the
scene. A charge was laid with the South African Police Service
(SAPS). Sgt Maretele of the SAPS, stationed at Wesselsbron, visited
the appellant’s premises the next day. He found an iPhone
which
was handed to him by the appellant, as well as a hammer that was
lying on the floor. That same day Ms Chaka identified the
iPhone as
her property. She also identified the appellant, who was shown to her
whilst sitting in a SAPS van, as the perpetrator.
[6]
Also on 5 April 2020, at approximately
17h00, two 15-year old children, to wit K[…] M[…]
(K[...]) and R[...] M[…]
(R[...]) were approached by a man
whilst walking in the street close to a church. He was not wearing
shoes and was in possession
of an iPhone. This man hit K[...] several
times over the head with a hammer which he initially carried in his
waistband. The perpetrator,
he being the accused in the court
a
quo
and appellant before us, was
well-known to K[...]. The appellant instructed R[...] to take off
K[...]’s shoelaces where after
he tied K[...]’s hands and
feet therewith. Although K[...] did not testify about this, R[...]
testified that the appellant
used the hammer to break the padlock in
order to allow entry to the church where after he directed R[...] to
assist him in dragging
K[...] into the church. Inside the church the
appellant instructed R[...] to undress and when K[...] objected, he
was hit again
several times with the hammer, this time on the
forehead. K[...] became unconscious. He bled profusely and R[...]
thought at a
stage that he might have been killed. K[...] came by
eventually and noticed the appellant raping R[...]. At that stage she
was
lying down, facing upwards and the appellant was on top of her.
At a stage the appellant came to him and trampled on his neck, where
after he went back to R[...] and had sexual intercourse with her for
a second time. It is not necessary to deal with the gory details
of
the evidence in this regard any further, save to state that the
appellant eventually instructed R[...] to have sexual intercourse
with K[...]. According to K[...] he merely pretended to have sexual
intercourse, which version differs from that of R[...] who
testified
that they in fact had sexual intercourse. Hereafter, according to
K[...], the appellant had sexual intercourse with R[...]
for a third
time.
[7]
According to R[...], she was raped by
appellant who not only inserted his penis into vagina, but later also
into her anus. Although
K[...] referred to three episodes of rape, he
did not testify about penile-anal penetration. However, R[...]’s
version is
corroborated by medical evidence as will be shown.
[8]
The appellant put on K[...]’s jeans
and shoes and took R[...]’s cellphone before leaving the scene.
After sometime the
two children also left the church premises. In my
view differences could be expected, bearing in mind the time lapse of
two years
from the incident to the time that they testified, the
circumstances that prevailed and the trauma caused to the children.
R[...]
testified that the appellant used the hammer to break the
padlock which was used to lock the church in order to allow them
entry
into the premises. As mentioned, K[...] did not testify about
this. They also differ pertaining to whether or not the sexual
intercourse
occurred between them. The court
a
quo
was well aware of the differences,
but regarded same as not material. R[...] also positively identified
the appellant, specifically
referring to tattoos on his body as well
as his one foot, although he was not previously known to her.
[9]
R[...] was medically examined during the
morning of 6 April 2022, that is the next day. Fresh tears were
detected in both her vagina
and anus. The medical practitioner who
did the examination concluded that R[...] was subjected to forceful
penile-vaginal as well
as penile-anal penetration. The J88, completed
after the medico-legal examination, was handed in by agreement as
Exhibit B.
[10]
There can be no doubt about the identity of
the perpetrator. The incident took place during the day at about
17h00. K[...] had known
the appellant for many years. K[...]’s
prior knowledge of the appellant was not contested; furthermore, this
was conceded
by the appellant on the basis that K[...] possibly knew
him well as he was well-known in the township. The incident did not
take
place in a fleeting moment, but over a considerable period of
time. The appellant was armed with a hammer which he used to subdue
K[...]. The version of Mr Cassim and Ms Chaka, who were robbed that
same afternoon, corroborates that of the two children pertaining
to
the appellant’s possession of a hammer. A hammer was also found
in the appellant’s possession the next day. He admitted
this,
although he mentioned that it was found in his toolbox and not on the
floor as testified by the Sergeant. The appellant was
in possession
of an iPhone when he confronted the two children a short while after
the robbery. According to the accepted evidence
Ms Chaka had been
robbed of her iPhone earlier that afternoon.
[11]
The appellant’s version is a total
denial. He testified that he was at home, building a dog kennel with
his father. This version
was for the first time put to R[...] when
she testified on 2 March 2022. It transpired during the evidence of
the father that he
could not recall the exact date on which they were
building the dog kennel. In any event, he was uncertain about the
appellant’s
movements after about 17h00 that day. The alibi
evidence did not support the appellant’s version.
[12]
Although the appellant would have been
within his rights to remain silent upon arrest and thereafter, it
cannot be a neutral factor
that he failed to disclose his alibi to
both Ms Chaka and K[...], two persons who knew him well and could not
be mistaken about
the identity of the perpetrator. They testified on
26 January 2022 and 23 February 2022 respectively; therefore, before
the evidence
of R[...] was tendered on 2 March 2022. As mentioned,
the appellant relied on his alibi defence for the first time during
the testimony
of R[...]. It is trite that in order to argue that a
witness should not be believed, the other side’s version should
be put
to such witness to enable him/her to deal therewith. It was
not put to Mr Cassim, Ms Chaka and K[...] that they were mistaken
pertaining
to the identity of the perpetrator as the appellant at the
time was at home in the company of his father.
[13]
The
court
a
quo
was aware of the importance to deal appropriately with the
appellant’s reliance on the alibi defence. The correct approach
is to consider the alibi evidence in the light of the totality of the
evidence in the case and the trial court’s impressions
of the
witnesses, bearing in mind that no onus rests on the accused, but
that the State must prove beyond reasonable doubt that
the accused
has committed the crime.
[3]
The
versions of the identifying witnesses must not only be credible, but
also reliable.
[4]
[14]
The
court
a
quo
was of the view that both children were good witnesses who made a
good impression on the court, that they appeared to be honest
witnesses and that their evidence appeared to be reliable. There is
no reason to interfere with these factual and credibility findings
as
well as the evaluation of the evidence. Also as mentioned, Mr Van der
Merwe could not point out any material misdirection by
the court
a
quo
.
Therefore, the factual findings are presumed to be correct and could
only be disregarded if the recorded evidence showed them
to be
clearly wrong.
[5]
[15]
I agree with Adv Lencoe on behalf of the
State that the evidence against the appellant was overwhelming.
R[...] was materially corroborated
by her boyfriend, K[...], as well
as the gynaecological and anal examination recorded in the J88. I am
satisfied that the appeal
against the conviction on count 4 should be
dismissed.
SHOULD THIS COURT
INTERFERE WITH THE IMPOSED SENTENCE OF LIFE IMPRISONMENT?
[16]
This
is yet again a case where a minor girl child has been raped. This
country is in a crisis. I have spoken out many times in sentencing
accused persons about the warfare upon our women and children.
[6]
It is perhaps again necessary to quote what Mathopo AJ, writing for a
unanimous Constitutional Court bench, stated in
S
v Tshabalala
and
Another
[7]
:
‘
[1]
The facts of this case demonstrate that for far too long rape has
been used as a tool to relegate the women of this country
to
second-class citizens, over whom men can exercise their power and
control, and in so doing, strip them of their rights to equality,
human dignity and bodily integrity. The high incidence of sexual
violence suggests that male control over women and notions of
sexual
entitlement feature strongly in the social construction of
masculinity in South Africa. Some men view sexual violence as
a
method of reasserting masculinity and controlling women.
[63] This scourge has
reached alarming proportions in our country. Joint efforts by the
courts, society and law enforcement agencies
are required to curb
this pandemic. This Court would be failing in its duty if it does not
send out a clear and unequivocal pronouncement
that the South African
Judiciary is committed to developing and implementing sound and
robust legal principles that advance the
fight against gender-based
violence in order to safeguard the constitutional values of equality,
human dignity and safety and security.
One such way in which we can
do this is to dispose of the misguided and misinformed view that rape
is a crime purely about sex.
Continuing on this misguided trajectory
would implicate this Court and courts around this country in the
perpetuation of patriarchy
and rape culture.’
[17]
In
Mnguni
v State
[8]
I
commented as follows:
‘
[58]
We had to adjudicate three criminal appeals on the same day, all
three relating to rape. In the other
two cases two minor
females, 10 and 6 years old respectively, were the victims. Our
court rolls, in particular those of the
Regional Courts, are stacked
with rape cases. The women and children in this country are not
safe and they remain extremely
vulnerable. Several women’s
organisations voice their concerns on a regular basis, but to no
avail. … .’
In
the same paragraph I referred to a letter dated 22 November 2021 of
the President of the country, Mr Ramaphosa, wherein he referred
to
the scourge of rape offences and provided statistics of gender-based
violence.
[18]
The
following principles should be applied in sentencing accused persons
convicted of serious crimes as stated by the Supreme Court
of Appeal
in
S
v
Kekana
[9]
:
‘
[39]
Due to the seriousness of the offences, it is required that the
elements of retribution and deterrence should
come to the fore, and
that the rehabilitation of the appellant should be accorded a smaller
role. His personal circumstances similarly
have to bow to the
interests of society. As pointed out in
S
v Vilakazi
2009
(1) SACR 552 (SCA)
(2012
(6) SA 353
;
[2008] 4 All SA 396
;
[2008] ZASCA 87)
para 58, in cases
of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the
background. Without
doubt, this is one of those cases.
[40] …
[41]
In
S
v Mhlakaza and Another
1997
(1) SACR 515 (SCA)
([1997]
2 All SA 185
;
[1997] ZASCA 7)
at 519
c
– e
this
court pointed out that, given the high levels of violence and serious
crime in our country, when sentencing such crimes,
the emphasis
should be on retribution and deterrence Harms JA went on to explain,
with reference to
S
v Nkwanyana and Others
[1990] ZASCA 95
;
1990 (4) SA 735
(A) at 749C – D, that in other instances
retribution may even be decisive. See also
S
v Nkambule
1993
(1) SACR 136
(A)
at
147
c
– e
;
S
v Swart
2004
(2) SACR 370
(SCA)
paras
11 – 12;
S
v Govender and Others
2004
(2) SACR 381 (SCA)
para
32.
[42]
The upshot of all these authorities is that, whatever the appellant's
complimentary personal circumstances
and his prospects of
rehabilitation, those pale into insignificance when weighed against
the aggravating factors. In all the circumstances,
I am of the view
that life imprisonment on each of the murder counts is the only
appropriate sentence.’
[19]
The court
a quo
did not commit any misdirection in
sentencing the appellant. It correctly held that no substantial and
compelling circumstances
existed in order to deviate from the
prescribed minimum sentence of life imprisonment. The appeal against
sentence should therefore
be dismissed.
ORDER
[20]
The following order is issued:
1.
The appeal against conviction on count 4
(rape of a minor child) and the sentence of life imprisonment is
dismissed.
2.
The conviction and sentence of the court
a
quo
are confirmed.
JP DAFFUE J
I concur
S NAIDOO J
Attorney
for the Appellant:
Mr
PL van der Merwe
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
Counsel
for the Respondent:
Adv
M Lencoe
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
Record:
vol 3 pp 650/1.
[2]
Section
309(1)(a) read with
s 309B(1)(a)
of the
Criminal Procedure Act 51 of
1977
as amended.
[3]
R v
Hlongwane
1959 (3) SA 337
(A) at p 341A.
[4]
S v
Nango
1990 (2) SACR 450
(A) at 455g, relying on the oft-quoted dictum in
S
v Mthetwa
1972 (3) SA 766
(A) at 786A-C.
[5]
See
S
v Hadebe & Others
1997 (2) SACR 641
(SCA) at 645.
[6]
See
inter
alia
Mnguni
v S
(A173/2020)
[2021] ZAFSHC 323
(29 November 2021).
[7]
2020
(2) SACR 38
(CC) paras 1 and 63.
[8]
Ibid
para
58.
[9]
2019
(1) SACR 1
(SCA) at paras 39 to 42.