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[2019] ZAFSHC 18
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Letseka and Another v S (A271/2018) [2019] ZAFSHC 18 (29 March 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A271/2018
In
the matter between:
THABO
JACOB
LETSEKA
First
Appellant
MOYENI
DOCTOR XHUMA
Second
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J
et
MATHEBULA,
J
HEARD
ON:
18
MARCH 2019
JUDGMENT
BY:
MBHELE,
J
DELIVERED
ON:
29
MARCH 2019
[1]
This is an appeal against conviction and sentence. The appellants
who were legally represented were convicted of
rape and
sentenced to life imprisonment each on 05 April 2016 by a Regional
Court Magistrate in Bloemfontein. The complainant
was a 15
years old girl.
[2]
The appellants, aggrieved
by both conviction and sentence, approached this court on appeal
against both. In the notice of appeal
and heads of argument the
appellants assail the conviction on the basis that the trial court
erred in finding that the state managed
to prove its case beyond a
reasonable doubt; that it erred by relying on the evidence of the
state’s single witness that
was marred by contradictions and
further that it erred by rejecting the appellants’ version
which was reasonably true or
reasonably possible.
[3]
The evidence on record reveals that the complainant, an erstwhile
member of 666 gang, was on the fateful day on her way from
school
walking with her two female friends. She was stopped by the
appellants who demanded to know what she did with her 666 tattoo.
They took her by force to a shack owned by one Beast. On their
arrival at the shack the two appellants inscribed 666 tattoos on
her
hip extending to her waist. The first appellant had a firearm
in his possession while the second appellant had a knife.
They
thereafter took turns to penetrate her vaginally with their penises
without her consent.
[4]
On her arrival at home she did not report the incident to her aunt
with whom she was staying owing to her fear of her assailants.
Having been a gangster herself she knew that those who expose
unlawful activities of gang members expose themselves to severe
harm.
The complainant reported the matter to M M, her other aunt, two days
after the incident after she had noticed that she was
not her usual
self.
[5]
M M confirmed that she visited the complainant on 20 July 2013 when
she noticed that the complainant was not her usual self.
Upon enquiry
she learned that the complainant was raped by two members of the 666
gang. She encouraged the complainant to
report the matter to
the police. She accompanied the complainant to report the matter to
the police. They were taken back and forth
between two police
stations before they received attention from the police about a week
later. The complainant was scared
of reporting the matter to
the police because she feared that her assailants would harm her and
her family.
[6]
She went for medical examination a week after the incident. The
medical report shows that she had fresh tattoos depicting 666
on both
sides of her waist. She had marks of old tattoos on her right
wrist and inside her upper arm.
[7]
The appellants simply deny allegations against them. They agree that
they met the complainant in the street in company of his
friends but
deny that they ever asked her about the whereabouts of her 666
tattoos. According to them, it was the complainant who
asked them to
inscribe a 666 tattoo on her body which request they refused and
dismissed as madness. It is their version that the
complainant came
on her own to requesting that they inscribe a 666 tattoo on her body
but they still refused.
[8]
Mr. Tshabalala, on behalf of the appellants, conceded that there are
no grounds for appeal against conviction. He submitted
that upon
perusal of the record he is unable to argue that the trial court
erred in its findings.
[9]
The trial court evaluated the evidence and came to the conclusion
that the state witnesses were truthful and rejected the version
of
the appellants as improbable. It is trite that factual and
credibility findings of the trial court are presumed to be correct
unless they are shown to be wrong with reference to recorded
evidence. The acceptance by trial court of oral evidence and
conclusion thereon are presumed to be correct, absent misdirection.
(See
S
v Francis
1991 (1) SACR 198
SCA at 204 e-d.) A court of appeal may only
interfere where it is satisfied that the trial court misdirected
itself or where it
is convinced that the trial court was wrong. (See
R v
Dhlumayo
&
another
1948
(2) SA 677
(A) at 705-706).
[10]
It is so that the powers to evaluate and appraise evidence belong to
a trial court which had an opportunity to see and hear
witnesses and
its conclusions cannot be interfered with simply because a court of
appeal would have come to a different finding
or conclusion.
[11]
I am unable to find any demonstrable or clear error on the part of
the trial court to justify interference with its credibility
findings. The trial court was correct in its assessment of evidence
and credibility findings. I cannot find that the trial court
erred in
finding that the appellants’ versions are inherently improbable
and fell to be rejected. The appellants failed
to explain how
the complainant got to know that they were at Beast’s shack if
she did not know him and they were not the
ones who dragged her
thereto.
[12]
The sentencing powers are pre-eminently within the judicial
discretion of the trial court, the court of appeal should be careful
not to erode such discretion. The court sitting on appeal will
interfere if the sentencing court exercised its discretion
unreasonably
or in circumstances where the sentence is adversely
disproportionate. See
(S
v Rabie
1975 (4) SA 855
(A) AT 857 D-E also S
v De Jager and Another
1965 (2)
SA 616
(A)
[13]
In
S
V PILLAY
1977 (4) SA 531(A)
at 535 E-F
the court said the following regarding an appeal against sentence:
"as
the essential inquiry in an appeal against sentence, however, is not
whether the sentence is right or wrong, but whether
the Court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such misdirection
is usually and
conveniently termed one that vitiates the Court's decision on
sentence. That is obviously the kind of misdirection
predicated in
the last quoted
dictum
above:
one that "the dictates of justice" clearly entitle the
Appeal Court "to consider the sentence afresh"
.
[14]
The violation of the innocence of children arouses the community’s
indignation and prompts it to call for measures to
protect its youth.
See
S
v
E
1990 (2) SACR 625
(A)
[15]
The fact that the Constitution regards a child’s best interests
as of
paramount
importance must be emphasized. It is the single most important factor
to be considered when balancing or weighing competing
rights and
interests concerning children. All competing rights must defer to the
rights of children unless unjustifiable. Whilst
children have a right
to inter alia, protection from maltreatment, neglect, abuse or
degradation, there is a reciprocal duty to
afford them such
protection. Such a duty falls not only on law enforcement agencies
but also on right thinking people and, ultimately
the court, which is
the upper guardian of all children. See
De
Reuck v DPP WLD
2003 (1) SACR 448
(WLD
[16]
The appellants were sentenced to life imprisonment as prescribed by
Act 105 of 1997. The regional court found no substantial
and
compelling circumstances to justify a departure from the prescribed
minimum sentence.
[17]
The
trial court correctly considered the appellants’ personal
circumstances and found no weighty justification to depart from
the
prescribed minimum sentence. There was nothing unique about their
personal circumstances.
The
first appellant was 29 years of age at the time of sentencing.
He is single with no dependants. He was employed
and earning a
monthly income of R3200.00. He was in custody for 2 years 9 months on
the date of sentencing. He was on 17 April
2012 convicted of
housebreaking with intent to steal and theft and sentenced to 5 years
wholly suspended with conditions. He was
on 04 July 2012 convicted of
assault and sentenced to a fine of R1000.00 or 50 days imprisonment.
[18]
The second appellant was 21 years at the time of sentencing and just
over 18 years at the time of the commission of the offence.
He went
to school up to grade 9. He was staying with his parents and
unemployed at the time of his arrest. He is a first offender.
[19]
The appellants were convicted of a very serious offence. It is clear
from the first appellant’s list of previous convictions
that he
has no respect for law. As pointed out by the trial court, the
appellants stripped the complainant of her dignity
completely.
The appellants forcefully engraved tattoos with a knife on the
complainant’s waist before forcefully having
sexual intercourse
with her. She was violated in the worst possible manner. The
appellants had sexual intercourse with her, each
in the presence of
the other without considering her right to privacy.
[20]
The complainant was a child who was subjected to severe trauma by the
appellants. The offence altered the complainant’s
life
significantly. She had to drop out of school for a year for fear of
potential harm from the appellants and their fellow gang
members. She
had to uproot her life completely and move out of Bloemfontein for
safety. She endured constant threats from the appellants’
friends. Most of all, the appellants showed no remorse for their
actions.
[21]
The minimum sentence of life imprisonment is applicable in this
matter. In
S
v Malgas
2001 (1) SACR 469
SCA
it
was held that courts are required to regard the prescribed
sentences as “being
generally
appropriate’
for
crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so.
[22]
Punishment must be proportionate to the offence. When weighing
up the mitigating factors against the aggravating circumstances,
this
matter as well as the interest of the community, I am not persuaded
that the sentence imposed is unjust. The second appellant’s
youthful age at the time of committing the offence does not justify a
departure from the prescribed minimum sentence owing to circumstances
surrounding this matter. I am of the view that the trial court
exercised its discretion judiciously. There is no justifying cause
for us to interfere with the sentence. The appeal must fail in toto.
[23]
In view of the above, the following order is made.
ORDER
-
Appeal
against conviction and sentence is dismissed;
-
Conviction
and sentence are upheld.
_____________
NM
MBHELE, J
I
concur
_________________
MA
MATHEBULA, J
On
behalf of appellant: Mr L Tshabalala
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv. E. Van Rensburg
Instructed
by: Office of the Director: Public Prosecutions
Bloemfontein