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[2018] ZAFSHC 16
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Nyembe v S (A317/17) [2018] ZAFSHC 16 (1 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case No:
A317/17
In the
matter between:
SYDNEY MAQWAWE NYEMBE
Appellant
_
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J et LOUBSER, J
JUDGMENT
BY
: LOUBSER, J
HEARD
ON:
12 FEBRUARY 2018
DELIVERED ON:
1
MARCH 2018
[I]
INTRODUCTION:
[1] The appellant was
convicted and sentenced to 5 years imprisonment in the Regional
Court
of Bloemfontein on a count of Rape. The sentence was imposed in terms
of the provisions of
Section 276.(1)(i)
of Act 51 of 1977,
and the Appellant was not declared unfit to possess a firearm.
[2] The Court a
quo
found on the evidence that the Appellant had penetrated the
vagina of the complainant with his finger and without her consent,
thereby
committing the offence of Rape. At the time of the commission
of the crime, the Appellant was a recruit at the Tempe Military Base,
while the complainant was a 22 year old student at the Free State
University.
[3] The appeal is
against conviction only. An application by the Appellant for leave
to
appeal against his conviction was dismissed by the trial Magistrate,
but subsequently the Appellant obtained such leave on petition
to the
Free State High Court. On appeal, Mr M.L Khomela submitted Heads of
Argument on behalf of the Appellant, but before us Mr.
M Koenane
appeared for the Appellant.
[II]
SUBMISSIONS MADE ON APPEAL:
[4] Mr. Koenane contended
that the evidence of the complainant was not reasonably possibly
true
and that the Respondent had therefore failed to prove the guilt of
the Appellant beyond reasonable doubt. Mr. C.F Steyn appearing
for
the Respondent, on the other hand, submitted that the Appellant was
correctly found to be an unreliable witness and that the
trial court
had correctly found that his version of denial was not reasonably and
possibly true.
[Ill]
THE
EVIDENCE:
[5] A reading
of the record of proceeding in the trial court shows that the facts
presented
by the Appellant on the one hand, and by the complainant on
the other, were to a large extent common cause. For instance, it was
common cause that the complainant lived alone in a flat near the
Military Base, and that on the night in question, the Appellant
was
unable to gain access to the Base .where he wanted to go to sleep.
Apparently he was unable to gain entry because he had lost
his entry
card. Because they have met before, he called her around midnight to
explain his predicament, and eventually she allowed
him into her flat
to sleep over for a couple of hours until he could make contact with
his friends inside the base to help him
gain access. She allowed him
to lie down on the one side of her double bed, where he fell asleep.
She went to sleep on the other
side of the bed.
[6] This is
where the common cause facts come to an end. According to the
complainant,
she woke up at about 3 in the morning when the Appellant
was struggling to unzip his pants and to undress her. When she
resisted,
he held her around her neck· and penetrated her with
his finger. At this point she was crying ·· and she was
fighting to escape his clutches. He then suddenly stood up, put his
hand on his mouth and told her he was sorry, he did not know
what
came over him.
[7] According
to the Appellant, none of this ever happened. He woke up at about 3
in the
morning, and he found the complainant making calls on her
phone. Because he wanted to be in time for his physical training at
the
base, he then got up, said goodbye to her and left.
[8]
The complainant testified that after he had left, she
immediately called her boyfriend in Durban, who is also the father of
her
son, and she told him what had happened. He instructed her to
call the police and he told her that he was on his way to her. She
called the police, and went to the police station later in the
morning where the Appellant also arrived after he was summoned by
the
police. The Appellant apologised to her at the police station. When
the Appellant testified in his defence, he admitted his
apology at
the police station. The complainant further testified that her
boyfriend arrived later in the day from Durban to support
her.
[9]
The
complainant's boyfriend was also called to testify for the
prosecution. He told the court that he was a senior buyer in the
employment of Transnet. When he was asleep on the night in question,
the complainant called him at about 3 in the morning and he
could
hear that she was upset and crying. She told him what the Appellant
had done to her. He then drove to Bloemfontein to find
out what had
transpired, where he arrived later in the morning.
[10] It needs mentioning here
that when the complainant testified, it was put to her in
cross-examination
by the Appellant's attorney that the charge against
him was the result of her boyfriend telling her that he had found out
that
she had shared a bed with the Appellant and that he was going to
leave her and to terminate his financial commitments toward her
and
the child. When the Appellant himself testified, he never said a word
about this, and in addition, when the boyfriend testified,
he was not
confronted with this allegation at all.
[IV]
FINDINGS OF THE
COURT
a quo:
[11] The Magistrate found the
complainant to be an honest and intelligent witness. Because
there
was no bad blood between the Appellant and the complainant prior to
the incident, he found it highly improbable that she
would wand to
falsely incriminate the Appellant with such a serious charge. The
Magistrate found it further inconceivable that
the complainant would
call someone in Durban in the early hours of the morning in an upset
state of mind if nothing had happened
to her. He found the version of
the accused to be not reasonably and possibly true.
[V]
DETERMINATION:
[12] It is clear from the
judgment in the court a
quo
that the Magistrate took into
account the judicial principles applicable to the evaluation of
evidence and the caution required
in the approach to the evidence of
a single witness. It is also clear that the Magistrate carefully
weighed up the conflicting
versions placed before him in reaching the
conclusion that the prosecution has proven the guilt of the Appellant
beyond a reasonable
doubt. In my view, this conclusion cannot be
questioned in the light of the evidence presented in the court.
[13] I consequently make the
following order:
1.
The appeal against conviction is dismissed.
P J LOUBSER, J
I concur:
C
VAN ZYL, J
On
behalf of Appellant:
Adv.
M. Koenane
Instructed
by:
Mabitle
Attorneys
Bloemfontein
On
behalf of Respondent:
Adv. C. F. Steyn
Office of the Director Public Prosecutions
Bloemfontein