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[2018] ZAFSHC 122
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Semase v S (A113/2018) [2018] ZAFSHC 122 (10 August 2018)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A113/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:-
LESOLE
JOHANNES
SEMASE
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
et
MOLITSOANE,
J
HEARD:
6 AUGUST 2018
JUDGMENT
BY
J
P DAFFUE
DELIVERED:
10 AUGUST 2018
I
INTRODUCTION
[1]
On 11 December 2015 the appellant was convicted by Regional Court
magistrate H S Van Niekerk on two counts of rape and one count
of
theft of a cellphone. He was sentenced to 12 months’
imprisonment for theft and in respect of the rape counts, having
been
taken together for sentence, sentenced to life imprisonment.
[2]
Appellant, who had an automatic right of appeal as he was sentenced
to life imprisonment, appealed against his convictions and
sentence
of life imprisonment.
II
THE
PARTIES
[3]
Appellant is Lesole Johannes Semase, an unmarried male, who according
to the charge sheet was 45 years old at the time of his
arrest in May
2015. He was duly represented at the trial and Mr TJ Modise of
Legal Aid SA appeared for him in the appeal
before us.
[4]
The State was represented in the appeal by Adv MMM Moroka.
III
GROUNDS OF APPEAL
[5]
Appellant is of the view that the court
a quo
did not approach
the complainant’s evidence with the necessary caution.
She was a single witness and there was not
sufficient corroboration
for her version.
[6]
He also submits that the court
a
quo
should have found his version as reasonably possibly true and
acquitted him.
[7]
The usual submissions are made in respect of alleged misdirections in
respect of sentencing, which I do not intend to
quote, but it should
be mentioned that no submissions are contained in the notice of
appeal as to which substantial and compelling
circumstances were
present which the court
a quo
failed to take into
consideration.
IV
THE
COUNTS PUT TO APPELLANT AND HIS PLEA EXPLANATION
[8]
The appellant was charged with robbery of the complainant’s
cellphone (count 1) and three counts of rape in that he raped
her by
penetrating her anally with his penis (count 2), by penetrating her
mouth with his penis (count 3) and by penetrating her
vaginally with
his penis (count 4). All these offences allegedly occurred on 25
April 2015 near Caledonspoort in the Free State
Province. It is
common cause that the complainant and appellant had sexual
intercourse in the veld next to a spruit approximately
ten kilometres
outside the town, Fouriesburg.
[9]
Appellant pleaded not guilty and gave a plea explanation.
According to him complainant gave her cellphone to him
for repairs
and they had one consensual deed of sexual intercourse in terms
whereof he penetrated her vaginally with his penis,
but in the
process accidentally also penetrated her anally.
V
SUMMARY
OF THE EVIDENCE AND THE COURT
A
QUO
’S
JUDGMENT ON CONVICTIONS
[10]
The court a quo was called upon to consider whether complainant
voluntarily handed her cellphone to appellant and whether there
was
sexual intercourse against her will as alleged by appellant. As
mentioned, appellant admitted consensual sexual intercourse
in terms
whereof he penetrated complainant vaginally on one occasion only in
which process he accidentally penetrated her anally
as well. On
his version he never put his penis in her mouth and also did not have
sexual intercourse at a different spot
as complainant testified.
In fact, on his version she requested sex a second time, but he
refused. On complainant’s
version appellant penetrated
her vaginally and anally as well as orally the first time and anally
the second time. He also
had her hands tied behind her back
during these episodes and requested her to wash her private parts
afterwards. Finally
he instructed her to drink an unknown
substance that made her feel dizzy. Afterwards and when she
dressed up, she could not
find her one sock and decided to leave the
other sock behind. These socks, a used condom, a torn open
condom packet and a
Hansa beer bottle were found on the scene later
by members of the police as pointed out by complainant and
photographed. Complainant
testified that, before the ordeal and
whilst walking along the Clarens/Fouriesburg road, they came across a
jogger who appeared
to be appellant’s former teacher.
This person turned out to be Mr Mbhele who testified for the State.
After the
rape, the complainant went back to the Clarens/Fouriesburg
road where she was given a lift by a person who turned out to be a
police
offcer, Mr Sebeko who also testified for the State. She
made a report about the rape to him whereafter he took her to the
Fouriesburg police station.
[11]
The court
a
quo
accepted that complainant’s version should be considered with
caution, but found corroboration for her version. Not
only did
she make a good impression on the court
a
quo
,
but she was corroborated by the admitted evidence contained in the
J88 medical report, indicating tears to her anus. The
court
a
quo
found that the injuries were inconsistent with appellant’s
version that they did not have “
rowwe
seks
”.
[12]
Mr Sebeko, a police officer who travelled the road between
Fouriesburg and Clarens on the night of 25 April 2015, found
complainant along the road. She reported to him that she was
raped and instructed to drink an unknown substance. He persuaded
her
to lay a complaint. He even took her to the Fouriesburg police
station.
[13]
According to appellant he introduced himself to complainant and she
knew what his names were. This is clearly not the
case.
She was also not introduced to the jogger, except that she was
informed that he was one of appellant’s former
teachers and
that he was living in Fouriesburg. During the investigation Mr
Mbhele, the teacher, was identified as the jogger
and he confirmed
this in his testimony in court. It was put to Mr Mbhele, after
the attorney took a further instruction in
court, that appellant was
holding complainant around the waist when they met along the road,
but the witness denied this, saying
that the two persons walked
normally without any physical contact between them.
[14]
The court
a
quo
found appellant to be an evasive witness whose version was highly
improbable, or as it was put, “… (dit) strook nie
met
lewenswerklikhede nie”. It was found improbable that
complainant would borrow R400 to visit appellant in Fouriesburg,
only
to walk away from the town for about 10 kilometers to have sex whilst
any other convenient and/or suitable place in Fouriesburg
might have
been visited. Furthermore, his version that she became angry
because he could not pay her the amount of R400 requested
and that
this led to the false charges, is contradicted by the version of Mr
Sebeko who testified that she did not want to lay
charges and that he
had to convince her to do so.
[15]
Contrary to logic, appellant did not leave the cellphone in his
relative’s hands for him to arrange a new battery,
but hid it
somewhere in the house before he left.
[16]
Eventually the court
a quo
found that appellant’s
version could not reasonably possibly be true and he was convicted in
respect of counts 1, 2 and 4,
the court having found that the facts
indicated one continuous sexual act regarding counts 3 and 4. He
was therefore acquitted
in respect of count 3.
VI
EVALUATION OF THE
JUDGMENT AND ARGUMENTS ON THE MERITS
[17]
An
appeal is a re-trial on the record although the ambit thereof is
limited to the issues raised by the appellant. There is
no
reason why this court may not reconsider the complete record of the
entire proceedings in the court
a
quo
.
See
S
v Zondi
2003 (2) SACR 277
(W) at 242h.
[18]
When an appeal is lodged against a court
a
quo
’s
findings of fact, the appeal court should take into account that the
court
a
quo
was in a more favourable position than itself to form a judgment
because it was able to observe the witnesses during their questioning
and was absorbed in the atmosphere of the trial. See Schmidt
and Rademeyer,
Law
of Evidence
3-40.
Therefore the appeal court will normally accept factual findings made
by the court
a
quo,
unless there is some indication that a mistake was made. See
R
v Dhlumayo
1948 (2) SA 677
(A) at 696 and 705/6. The Supreme of
Appeal summarised this issue as follows in
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e - f:
“
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the
trial Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to
be clearly wrong.”
[19]
Based on the above observations and
dicta
it
is presumed that the trial court’s conclusion on the facts is
correct. The appeal court will only reverse it where it is
convinced
that such conclusion is wrong. If the appeal court is merely
left in doubt as to the correctness of the conclusion,
it will uphold
it. The Supreme Court of Appeal in
S
v Naidoo and Others
2003 (1) SACR 347
(SCA) at para [26] reiterated this principle as
follows:
‘
In
the final analysis, a court of appeal does not overturn a trial
court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.’
[20]
No judgment is perfect and the fact that certain issues were not
referred to does not necessarily mean that these were overlooked.
The appeal court should be hesitant to search for reasons that are in
conflict with or adverse to the court
a
quo
’s
conclusions. See
Dhlumayo
loc cit
at
para [12] on 706. However, in order to prevent a convicted
person’s right of appeal to be illusionary, the appeal
court
has a duty to investigate the court
a
quo
’s
factual findings in order to ascertain their correctness and if a
mistake has been made to the extent that the conviction
cannot be
upheld, it must interfere. See
S
v M
2006 (1) SACR 135
(SCA) para [40] at 152a - c.
[21]
To secure a conviction the State had to prove all the elements of the
crime beyond reasonable doubt. The test in a criminal
case has been
restated in
S
v V
2000
(1) SACR 453
(SCA) at para [3]. If there is a reasonable
possibility that the accused is not guilty, he should be acquitted.
An
accused’s version cannot be rejected merely because it appears
to be improbable. It must be shown, in light of the
totality of
the facts, to be so untenable and/or improbable and/or false that it
cannot reasonably possibly be true. See
S v Schackell
2001 (2)
SACR 185
(SCA) at para [30] and
S
v V
supra
.
It is not necessary for the court to believe an accused person in
order to acquit him.
[22]
I
mentioned that the State has to prove its case against an accused
beyond reasonable doubt, but in evaluating the evidence, the
trial
court is entitled to consider the probabilities and improbabilities.
This issue was considered in S v Chabalala
2003 (1) SACR 134
SCA at
para [15] where Heher AJA (as he then was) held:
“
The
correct approach is to weigh up all the 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.”
See
also:
S
v Trainor
2003
(1) SACR 35
(SCA) at 41b – c.
[23]
The police officer, Mr Sebeko, testified in detail as to what
complainant had relayed to him and that version corresponds
with
complainant’s version in material aspects. Her report to
Mr Sebeko was made shortly after the incident and as
indicated, he
picked her up as she was looking for a lift to Clarens. Her
version to the witness and initial unwillingness
to lay a charge are
surely not indicative of a person that intended to frame appellant
because he failed to give her money.
[24]
Mr Mbhele’s version may be seen as neutral, but it is important
to recognise that his name was never communicated
to complainant.
He did not give the impression that he came across two lovers, but
appellant’s belated version as stated
to him in
cross-examination is not only in direct conflict with that of
complainant – also it was never put to her - but
it was denied
by Mr Mbhele. In my view this new version was nothing but an
afterthought.
[25]
Constable PF Ntobela testified that on 6 May 2015 she was on
duty at the Fouriesburg police station when appellant handed
himself
over on a charge of rape. Her version was not contested at all,
but in his evidence appellant denied this and presented
a long
explanation as to why he reported to the police station.
Apparently he received a message that he had to attend as
members of
the Department of Correctional Service were looking for him in
respect of community service to be undertaken by him.
[26]
W/O MD Mokone, the investigating officer, testified as well. He
explained his meeting with the complainant at the
police station the
particular evening and that she mentioned that she was raped by an
unknown person. Based on the information
she provided in
respect of the jogger she and appellant had come across earlier, the
IO traced Mr Mbhele who confirmed that he
met appellant whilst
jogging along the Clarens/Fouriesburg road. He requested the
complainant the next day to take him to
the place where she had
allegedly been raped. He made observations about a used condom,
an open condom packet, a Hansa beer
bottle and complainant’s
socks. Photographs were taken in his presence and the album was
accepted as an exhibit. After
appellant’s arrest he also found
the complainant’s cellphone where Mr David Moyeng was staying
in the district of Paul
Roux. The phone was properly
identified.
[27]
Mr Moyeng confirmed that appellant visited him and that they
discussed replacing the battery of a cellphone. However,
appellant left without handing the phone to him. When the IO
arrived at his home, telephonic contact was made with appellant
through intervention of the IO and they were told where appellant had
hidden the cellphone, which they eventually found.
[28]
It is trite that an accused may be convicted on the single evidence
of any competent witness if such evidence is clear and
satisfactory
in every material respect. Our courts have indicated that
evidence can be satisfactory, even if it is open to
a degree of
criticism. See
S
v Sauls
1981 (3) SA 172
(A) at 180G–H. Furthermore, the exercise
of caution should not be allowed to displace the exercise of common
sense.
See
S
v Artman
1968 (3) SA 339
(A) at 341C.
[29]
Complainant was a single witness. The court
a
quo
was
acutely aware thereof. I do not deem it apposite to discuss her
evidence or even summarise it, bearing in mind appellant’s
concession of consensual sex. Her version was largely confirmed
by Mr Sebeko to whom she made the first report. Even
the IO
explained during his testimony what she had revealed to him and
although there are differences between these two versions
the fact
that complainant was penetrated more than once vaginally, anally
and/or orally stands out as an edifice. The court
a
quo
cannot be criticized for concluding that complainant’s version
was corroborated by the medical evidence and other evidence
of State
witnesses and that the State’s version was to be accepted above
the highly improbable version of appellant.
[30]
In my view the record shows that complainant gave a detailed and
comprehensive version and that her version is supported by
the
probabilities. The only reason for being in the veld next to
the spruit in the middle of nowhere is appellant’s
insistence
that she might be employed and that she needed to go to the
particular farmhouse for an interview.
[31]
Appellant was an evasive witness who refused to answer simple
questions and also came up with long and irrelevant replies.
He
clearly changed his version to leave the impression that he and
complainant were lovers, already at the stage when they
were walking
along the Clarens/Fouriesburg road when they met Mr Mbhele.
Bearing in mind the fact that the J88 medical report
would have been
shown to and/or discussed with him before the start of the trial, I
have reason to believe that he knew that he
had to come up with some
excuse as to why complainant’s anus was torn. However, as
the court a quo correctly found,
his version is far-fetched,
improbable and false, not only in this regard, but considering the
totality of the evidence.
The same cellphone on which he called
complainant earlier was not defective as alleged and/or needed a new
battery. Even
so, no reason exists why appellant would take the
cellphone to the district of Paul Roux for his relative to buy a
battery.
This could surely be done in Fouriesburg. The
relative was also unaware that the cellphone was left at his house.
Appellant’s
version that complainant falsely laid a complaint
because he could not give her R400 as requested which caused her to
become angry
is in conflict with the complainant’s version as
corroborated by Mr Sebeko.
VII
THE
SENTENCE
[32]
The court
a
quo
gave a one page judgment on sentence. It may be argued that it
did not consider all relevant factors and/or committed
misdirections.
I am not convinced.
[33]
Appellant was sentenced to 8 years’ imprisonment for rape in
March 2011. In January 2015 he was released on parole
after
doing less than half of his sentence. Three months later he
committed multiple rape on the complainant after having
devised a
plan to get her away from the public eye.
[34]
I invited Mr Modise to set out all factors which he considered to be
compelling and substantial factors that might have
persuaded
the court
a
quo
to deviate from the prescribed minimum sentence of life imprisonment.
He mentioned three factors, to wit (1) complainant did not
suffer any
extra-genital injuries, (2) in the mind of appellant complainant was
subjected to one continuous act of rape and (3)
appellant handed
himself over to the police.
[35]
None of the grounds relied upon by Mr Modise holds any water.
Not only did complainant suffer from tears
to her anus, but she
suffered emotionally as set out in the victim impact statement,
exhibit “B”. The accepted
evidence is clear: there
was more than one rape incident and appellant can count himself
fortunate that the court
a
quo
found the penetration of complainant’s mouth and vagina to be
one incident of rape. It is the State’s case that
appellant handed himself over, but he steadfastly denied that to be
the case during his testimony. In any event, the evidence
obtained by the IO was apparently such that appellant had no choice
than to hand himself over. Such conduct is in any event
insufficient to constitute substantial and compelling circumstances.
[36]
The sentence is appropriate. There is no reason to interfere.
Appellant has not learnt from his mistake and
in my view he has not
shown that he could be rehabilitated. The women in our country
must be protected against appellant
and other like-minded evil men
that commit these heinous deeds against our women. I fully
support the views of Supreme Court
of Appeal judges like Ponnan JA
and others and wish to refer to the
dicta
in
S v Matyityi
2011 (1) SACR 40
(SCA) at paras [23] and [24]. Appellant’s
callousness is demonstrated by the facts of the case. He
planned the
rape and led complainant into a trap. If life
imprisonment is not appropriate for repeated and brutal rape by a
sentenced
rapist three months after being placed on parole as
in
casu,
I do not know how justice could be served otherwise.
See also:
S v Mhlongo
2016 (2) SACR 611
(SCA) at para [22].
VIII
CONCLUSION
[37]
Consequently, the court
a quo
correctly found that the State
had proven its case beyond reasonable doubt and no misdirections were
committed in sentencing appellant.
Any other sentence would not
be in the interests of justice. The appeal against the
convictions and sentence of life imprisonment
has no merit and it
should be dismissed.
IX
ORDERS
[38]
The following orders are issued:
(1)
The
appeal against convictions and sentence is dismissed.
(2)
The
convictions and sentence of life imprisonment are confirmed.
______________
J. P. DAFFUE, J
I
concur
_________________
P.E.
MOLITSOANE, J
On
behalf of appellant: Mr T J Modise
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of the 1
st
respondent: Adv M M M Moroka
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN