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[2018] ZAGPPHC 378
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Netshifhefhe v S (A233/2017) [2018] ZAGPPHC 378 (20 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
Case Number: A233/2017
20/3/2018
In
the matter between:
TSHIFHIWA
NETSHIFHEFHE
Appellant
AND
THE
STATE
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J.
[1]
The
appellant was convicted in the Atteridgeville Regional Court on three
counts, to wit robbery with aggravating circumstances,
attempted
murder and sexual assault as defined in terms of the provisions of
the Sexual Offences Act, 32 of 2007. The appellant
received a
sentence of 15 years imprisonment in respect of count 1, eight years
imprisonment in respect of count 2 and three years
imprisonment in
respect of count 3. The sentences in respect of count 1 and 2 to run
concurrently. Accordingly, the appellant was
sentenced to and
effective sentence of 18 years.
[2]
The
appellant was granted leave to appeal both the conviction and
sentence on petition to this court.
Point
in limine:
Incomplete
record
[3]
The
events culminating in the commissioning of the crimes, stretched over
a period of four days. E M, the employer of the victim,
testified
that she met the appellant on the 5
th
of August 2014 at a night club and that he accompanied her home. He
remained at her residence until the commissioning of the crimes
on
the 8
th
of August 2014.
[4]
Ms
Mande was not present during the assault of the victim, but testified
to the events prior to and after the assault. Her evidence
as
reflected in the record is comprehensive.
[5]
Although
the victim's evidence in chief was fully recorded, only a portion of
the cross-examination appears from the record. However,
the
appellant's version that he was not at the residence of Ms M on the
Friday in question and that he denies the allegations against
him as
put to the victim, is reflected in the record. The remainder of the
cross-examination could, consequently, not have taken
the matter any
further.
[6]
The
appellant's evidence in chief was not fully recorded and commences
with an account of his academic background. Thereafter the
appellant
dealt fully with the evidence of both Ms M and the victim. In other
words, the appellant's version was fully recorded.
[7]
The
cross-examination and re-examination of the appellant was also fully
recorded.
[8]
In
view of the aforesaid defects in the record, Mr Pistorius, counsel
for the appellant, submitted that the appellant would be materially
prejudiced if the appeal is argued on the record as it stands.
[9]
In
support of this contention, Mr Pistorius referred to several decided
cases on the issue
in casu,
to
wit
S v Gumbi
1997
(1) SACR 273
(W);
S v Joubert
[1990] ZASCA 113
;
1991
(1) SA 119
(A) and
S v Schoombie
2017
(2) SACR 1
(CC).
[10] The
principle that an appellant might be prejudiced if an appeal is heard
on an incomplete record is
well established and borne out by the
cases
supra.
Each matter should, however, be judged on its own
merits in order to determine whether the principle
supra
is
applicable.
[11]
Mr
van der Merwe, counsel for the State, quite correctly referred to the
following passages in
S v Chabedi
2005 (1) SACR 415
(SCA):
"However, the requirement
is that the record must be adequate for proper consideration of the
appeal; not that it must be a
perfect records/ of everything that was
said at trial."
[417f-g]
and
"The question whether the
defects in a record are so serious that a proper consideration of the
appeal is not possible, cannot
be answered in the abstract. It
depends, inter alia, on the nature of the defects in the particular
record and on the nature of
the issues to be decided on appeal."
[417h]
[12]
Applying
the aforesaid dicta to the facts
in
casu,
it is clear that only a
portion of the cross-examination of the victim does not form part of
the record. The appellant's evidence
relevant to the consideration of
the appeal was fully recorded.
[13] In
the premises, I am of the view that the appeal can be properly
considered on the record as it stands.
Conviction
[14]
It
was not in dispute that the victim was brutally assaulted and robbed
of her possessions in the residence of Ms M on Friday, the
8
th
of August 2014. The only issue in dispute is whether the appellant
was the perpetrator of the crime.
[15]
Ms
M testified that she did not sleep at her residence on the Thursday
night preceding the attack. On Friday morning she phoned
the victim
to enquire about food for lunch. The victim told her that they would
eat the food that the appellant had bought. Upon
realising that the
appellant was at her residence without her knowledge or consent, she
demanded to speak to him. The victim handed
the phone to the
appellant and Ms M, in no uncertain terms, ordered the appellant to
leave her residence.
[16]
Ms
M phoned twice after the first call and on both occasions the
appellant was still at her residence. Sometime after the third
call,
Ms M received a call from her daughter and learned about the attack
on the victim.
[17]
The
victim testified that the appellant was the person who attacked her.
The appellant simply denied that he was present at the
residence of
Ms M on the morning of the attack.
[18]
The
court a
quo,
quite
correctly rejected his version and found the appellant guilty as
charged. I could find no reason to interfere with the conviction
and
the appeal against conviction stands to be dismissed.
Sentence
[19]
The
attack on the victim was exceptionally brutal. The appellant
initially stabbed the victim at the back of her head with a knife.
He
thereafter stabbed her several times with a screwdriver. He proceeded
to tie the victim's hands and legs with a curtain rope.
The appellant
undressed the victim and ordered her to lie on the floor. Upon
realising that the victim was in her menstrual cycle,
he did not rape
her but plucked her pubic hair out. The victim testified that it was
very painful. Whilst lying on the ground the
appellant bit the victim
on her left cheek and right ear. The bite on the cheek was so severe
that the mark was still visible when
she testified in court.
[20]
The
victim's ordeal was sadly not over and she was thereafter stabbed
with the screwdriver in her mouth. Lastly and prior to leaving
the
scene, the appellant strangled the victim.
[21]
The
victim bled profusely and had to spend approximately eight days in
hospital. The trauma and pain the victim experienced is unimaginable.
What motivates one human being to brutally assault another human
being in the manner the appellant attacked the victim, is
inexplicable.
[22]
Mr
Pistorius, to his credit, conceded that a term of 18 years effective
imprisonment is not disproportionate to the crimes committed
by the
appellant.
[23]
Consequently,
the appeal against sentence cannot succeed.
ORDER
[24]
In
the result, I propose the following order:
The appeal against conviction and
sentence is dismissed.
N
JANSE VAN NIEUWENHUIZEN J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree.
THOBANE
A J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
MAUMEL
A J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree and it is so ordered.
APPEARANCES
Counsel for the Appellant:
Advocate P.F. Pistorius
Instructed
by:
Emile Viviers Attorneys
REF: E VIVIERS/VN013
Counsel
for the Respondent:
Advocate F.W. Van der Merwe
Instructed
by:
Director of Public Prosecutions
(084 294 7780)