About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 110
|
|
Mohapi v S (A278/2017) [2018] ZAFSHC 110 (28 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A278/2017
In
the matter between:
FRANS
LEHLOHONOLO
MOHAPI
Appellant
and
THE
STATE
Respondent
CORAM:
MHLAMBI, J
et
MURRAY,
AJ
HEARD ON:
25 JUNE 2018
DELIVERED
ON:
28
JUNE 2018
MHLAMBI,
J
[1]
The appellant was convicted on a charge of rape and sentenced to
eighteen (18) years imprisonment. Appellant’s leave
to
appeal against both conviction and sentenced was refused by the
magistrate on 11 November 2016 and such leave to appeal
against both
conviction and sentence was granted on petition by Mathebula,J
and Van Schalkwyk, AJ on 05 September
2017.
[2]
The main grounds of appeal are as follows:
“
5.5 The
magistrate misdirected herself in finding that there was no DNA
evidence implicating the appellant or linking the appellant
to the
commission of the crime, yet found that the appellant was excluded.
The fact that no or insufficient male DNA could be detected
was
consistent with the version of the appellant that he denied raping
the complainant.
5.6 The magistrate
misdirected herself by finding that there were no contradictions in
the complainant’s evidence thereby
disregarding the
contradictions in her evidence that though she had testified that she
had a bruise on her right eye yet the doctor,
on the J88 medical
form, noted that there were no external injuries.
5.7 The magistrate
misdirected herself by not taking into consideration the
contradictions between the complainant’s and Elisa
Koloti’s
evidence regarding the injuries the complainant reported.
5.8 Even though it was
suggested to the complainant that she falsely implicated the
appellant because she was angry that he did
not give her money, the
appellant was consistent even under cross-examination that he did not
know the reason why the complainant
falsely implicated him.”
[3]
The accused pleaded not guilty and his defence boiled down to a bare
denial. In brief, the complainant’s testimony was
to the effect
that the accused is her step-father and as at 13 November 2013 they
lived together under one roof. On that day at
about half past six
(18h30) in the evening, he was drunk and he raped her. He had closed
the door of the house and locked the kitchen
door whereafter he
pushed her into the bedroom; told her to be quire, undressed himself
and had sexual intercourse with her. He
promised her money but she
said that she did not want his money. She described the act of sexual
intercourse and told the court
that he took his private part and
inserted it into hers. She described his pelvic movements or that he
moved up and down on top
of her. She managed to get away from him.
She was very frightened and cried. She put on her clothes, told him
that she needed to
use the bathroom and left to a certain lady’s
house she called grandmother Makoloti, the second state witness. As
she was
running to her house she noticed that water was leaking from
her private parts.
[4]
She testified that prior to the sexual intercourse, her step-father
assaulted her and that on previous occasions the accused
had
attempted to rape her. Her mother had reprimanded him and it seemed
that the mother was aware of this problem. The mother did
not testify
in the case. Mrs E Koloti confirmed that the complainant did arrive
at her place on that day in question. She was crying
and informed her
that her step-father had raped her. An ambulance and the police were
contacted whereafter she was taken to the
police. The medical doctor
confirmed her findings and conclusions that there was penetration on
the basis of the swelling on the
hymen based on her examination of
the complainant on 1 December 2013 at 13h00.
[5]
The first ground of appeal is of no consequence. The full remarks of
the magistrate on page 52, lines 5-10 of the transcribed
record), are
as follows:
“
There is no DNA
evidence implicating the accused or linking the accused to the
commission of this crime, but he was not excluded.
It was because of
the fact that there was insufficient male DNA or none found hence DNA
testing could not be done.”
What
is evident on the record, is that no DNA evidence was presented by
the state nor semen taken for analysis.
[6]
There was one contradiction in the evidence of the complainant when
she, under cross-examination, said that she had told Makoloti
of the
assault. E Koloti, in her brief testimony, denied that the
complainant told her of the assault on her and stated that she
did
not notice any marks on her. However, she confirmed that the
complainant was crying when she arrived at her place and told
her
that the accused had raped her.
[7]
The complainant’s testimony (lines 11-16 on page 12 of the
record) in respect of her injuries was as follows:
“
Did you sustain
any visible injuries? --- No,I only had bruises.
Is it now on your
face? --- On my eye.
Court …..(indistinct)
pointing at her right eye.
Prosecutor
:
That is correct so your worship. … Yes,[ it is confirmed that
it on the right eye]”.
During
cross-examination, page 17, lines 19 to 21 of the record, read as
follows:
“
You told us
that you had a bruise on your right eye.
Was it like a blue
eye? --- No it was like the fingers of his hand which was traced on
my face”.
Page
20, lines 5 to 14 of the record, read as follows:
“
Ms
Terblanche
:
when you were at Bongani did you tell the doctor that your step
father assaulted you? --- I was made to lie there on the bed and
then
after a while they said to me that the police are here to take you
statement.
Was the bruise then
still visible on you eye? --- Yes but no too visible”
[8]
Taking into account the following extract from the record on page 31,
it make nonsense of the last ground of appeal mentioned
above. The
said paragraph reads as follows:
“
What was D.’s
attitude after you told her that you are not going to give her money
and when she left the tavern; did you see
the attitude that she had
or couldn’t you say?--- According to me she was fine when she
left there”.
[9]
In the light of the above, I am of the view that the grounds cited in
support of the appeal are insufficient to uphold it. The
conviction
should therefore stand.
[10]
Ad Sentence
The
accused was 34 years of age, a first offender and did not have
children of his own. He passed grade 12 at school and was employed
and earned an income of R 2 500.00 per month. He spent nine
months awaiting trial and abused alcohol. The court found that,
as a
step-father, the accused abused his position and showed no respect
for the victim, being the minor child who was left distressed
and
traumatized after the event. Even though the court was of the opinion
that life imprisonment was an appropriate sentence, the
court decided
that the accused could be considered as a candidate capable of
rehabilitation and that his personal circumstances
could be
considered as factors that the court should take into consideration
for imposing a sentence lesser than life imprisonment.
Both counsel
for the state and the appellant submitted that it is tried law that
in an appeal against sentence, the court of appeal
should be guided
by the principle that punishment is pre-eminently a matter for the
discretion of the trial court and the court
of appeal should be
careful not to erode that decision. A sentence should only be altered
in instances where an irregularly took
place during sentencing or the
sentence imposed could be described as disturbingly or shockingly
inappropriate. Counsel for the
appellant conceded that the magistrate
correctly and appropriately took the appellant’s personal
circumstances into consideration
and properly found that the
appellant was a candidate capable of rehabilitation and therefore
deviated from the minimum sentence
of life imprisonment. However,
counsel still insisted that the magistrate should have imposed a
lesser sentence than the one she
did. In the light of the above,
there is no basis upon which this court can interfere with the
imposed sentence. The sentence should
be upheld.
[11]
The following order is therefore made:
Order:
The
appeal against both conviction and sentence is dismissed.
___________
MHLAMBI,
J
I
concur
_____________
MURRAY,
A J
Counsel
for Appellant: MR T.J Modise
Instructed
by: Bloemfontein Justice Centre
1
st
Floor Southern Lifer Building Drive
41
Charlotte Maxeke Street
Bloemfontein
Counsel
for Respondent: Adv S Giorgi
Instructed
by: The Director of Public Persecutions
3
rd
Floor Waterfall Centre
Bloemfontein