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[2019] ZAFSHC 116
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Hlapane v S (A34/2019) [2019] ZAFSHC 116 (4 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number: A34/2019
In
the matter between:
TSHEPO
HLAPANE
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
J et MOROBANE, AJ
JUDGMENT:
MOROBANE,
AJ
HEARD
ON:
15
APRIL 2019
DELIVERED
ON:
04
JULY 2019
[1]
This
is an appeal in terms of section 309(1)(a) of the Criminal Procedure
Act 51 of 1977 (“the CPA”). The appellant
was convicted
in the Regional Court on a charge of rape. He was sentenced to life
imprisonment. The appeal is against the conviction
and the sentence.
[2]
The
appellant relied upon several grounds of appeal and alleged that the
Court a quo erred in its findings, in that: the complainant
was an
honest and reliable witness and that her testimony was corroborated
by other witnesses; he was not a credible witness due
to the
inconsistencies in his testimony; the State has proved his guilt
beyond a reasonable doubt; the facts in mitigation constitute
substantial and compelling circumstances; and the court
over-emphasised the seriousness of the offence and that he was a
threat
to the society.
[3]
The
facts are briefly as follows. The complainant met the appellant at a
concertina festival held at the third house from her home.
She
rejected the appellant’s love proposal. The appellant
approached her for the second time when she was on her way home.
It
was between 4h00 to 5h00 in the morning. He pushed her to the vehicle
which was parked next to the gate. She resisted and screamed.
The
appellant threatened to shoot her if she screamed again. He covered
her with a blanket and throttled her with his hands. He
assaulted her
with a stick when she tried to fight back.
[4]
She
was taken next to the tarred road against her will. They wrestled
until he was on top of her and she was lying on her back.
He
undressed her by removing one leg of her tight jeans (pants) and her
panty. The appellant penetrated her vagina with his penis
and had
sexual intercourse without her consent. After he was done with her,
he went looking for his blanket on the other side of
the fence. At
that moment, she managed to wear her panty, grabbed her jeans on her
hand and ran to her aunt’s house.
[5]
Her
cousin Sefora testified that she observed that the complainant’s
head and feet were covered in mud. She had visible injuries
on her
body. The complainant was only wearing a vest and panty. She was
holding her pants in her hand with no shoes on. She informed
her that
she was raped.
[6]
Dr
Scholtz examined the complainant and completed the J88 report. He
observed several bruises on her upper body and legs. The doctor
concluded that the complainant’s injuries were consistent with
the assault. The gynaecological examination was recorded as
normal.
The report was handed in per agreement and admitted as Exhibit ‘A’.
[7]
It
is trite law that the findings of facts by the trial court are
presumed to be correct and will only be disregarded if the recorded
evidence shows them to be clearly wrong.
[1]
The appeal court will not lightly interfere with the findings of the
trial court unless it has misdirected itself or has committed
an
irregularity. In any event, the court of appeal has a duty to
investigate the factual findings made by the court a quo in order
to
ascertain whether they are correct or not. In the event that wrong
findings have been made then interference is justified.
[2]
[8]
In
S v Chabalala,
[3]
the proper approach in evaluating evidence was considered and the
court held that:
‘
The
correct approach is to weigh up all elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.’
[9]
The
complainant was a single witness and her evidence was dealt with in
terms of section 208 of the CPA. It provides that an accused
may be
convicted of any offence on the single evidence of any competent
witness. A person can be convicted on the evidence of a
single
witness if such evidence is clear and satisfactory in every material
respects.
[4]
Having considered the factual findings by the court a quo, I am
satisfied that the court has properly dealt with the evidence
presented.
[10]
The
court a quo found that the complainant’s testimony was
corroborated by other independent pieces of evidence of the
witnesses.
That is, the clothing she was wearing when she arrived at
her aunt’s house, the absence of the complainant’s
boyfriend
at the festival, the bite marks on her back, the
appellant’s confirmation that he indeed had sexual intercourse
with her
and the medical report regarding the injuries sustained by
the complainant. It also found that her evidence was supported by
probabilities.
In its evaluation of the evidence, the court a quo was
correct and cannot be faulted. I am satisfied that the respondent has
proved
its case beyond a reasonable doubt.
[11]
The
appellant testified that he was at the concertina festival together
with his girlfriend, the complainant. She wanted to sleep
and he
accompanied her to the vehicle. He had sexual intercourse with her in
the vehicle, with her consent. After he was finished,
he left her
sleeping in the vehicle. He went back to the festival and continued
to consume liquor. At about 5h00 in the morning,
the complainant came
to fetch him and he accompanied her home. Her boyfriend approached
them. He (boyfriend) attempted to assault
him with a stick, but he
warded him off by pelting him with stones. The boyfriend turned to
the complainant and assaulted her with
a stick.
[12]
The
version of the appellant was denied by the complainant and the other
witnesses. It was also rejected by the court a quo on the
basis that
it was riddled with lies and was not reasonably possibly true. The
court found the appellant was not a credible witness.
In light
thereof, the appeal on this ground must fail.
[13]
The
next aspect to be considered in this appeal relates to sentence.
Ordinarily, sentencing is within the discretion of the trial
court.
In S v Bogaards
[5]
the court said the court of appeal will only interfere with sentence
where there has been an irregularity that results in a failure
of
justice; the court below misdirected itself to such an extent that
its decision on sentence is vitiated; or the sentence is
disproportionate or shocking. The appellant had committed an offence
for which a minimum sentence of life imprisonment is prescribed.
The
court can only deviate from imposing the prescribed sentence if there
are substantial and compelling circumstances.
[14]
The
court a quo considered the appellant’s mitigating circumstances
during sentencing. It has taken into account that the
appellant is a
first offender; is 26 years; is a musician although his income could
not be ascertained; has 12 cattle; left school
at grade 2; and has
been in custody for a year. The court a quo could not find them to be
substantial and compelling so as to justify
a deviation from the
prescribed minimum sentence. The victim, an 18 year old girl was
violently raped by the appellant. She was
violated in the worst
possible manner. Under these circumstances, the society expects that
rapists should not only be punished,
but also that the scourge of
rape be eradicated.
[15]
In
S v Malgas
[6]
Marais, J remarked as follows:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and the substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were the court of first instance.’
[16]
In
DPP North Gauteng, Pretoria v Thusi
[7]
it was held that youthfulness, or the prospects of rehabilitation
could not tip the balance in the respondent’s favour when
it
was weighed against the objective gravity of the offences, its
prevalence and the legitimate expectation of the society that
such
crimes had to be seriously punished. I could find no misdirection
from the court a quo in exercising its discretion. In the
light of
the appellant being convicted of rape, the trial court correctly
applied the prescribed minimum sentence.
[17]
Accordingly
I propose the following order:-
1.
The
appeal against conviction and sentence is dismissed.
V.M.
MOROBANE, AJ
I
concur, and it is so ordered.
M.A.
MATHEBULA, J
On
behalf of the appellant:
Mr
L Tshabalala
Instructed
by:
Bloemfontein
Justice Centre BLOEMFONTEIN
On
behalf of the respondent:
Adv
MMM Moroka
Instructed
by:
Director
of Public Prosecutions BLOEMFONTEIN
[1]
S v Hadebe and others v
1997 (2) SACR 641
(SCA) at 645E-F
[2]
S v M
2006 (1) SACR 135
(SCA) at para 152A-C
[3]
S v Chabalala
2003 (1) SACR 134
(SCA) at 139I-140A
[4]
R v Mokoena
1932 OPD 79
at 80
[5]
S v Bogaards
2013 (1) SACR 1
(CC) at 14C-E
[6]
S v Malgas
2001 (1) SACR 469
(SCA) at para 12
[7]
Director of Public Prosecutions, North Gauteng, Pretoria v Thusi and
others
2012 (1) SACR 423
(SCA) at 429H-I