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2018
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[2018] ZAFSHC 203
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Leshoro v S (A213/2018) [2018] ZAFSHC 203 (22 November 2018)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A213/2018
In
the matter between:
HERMAANS
MOTSHWARE
LESHORO
Appellant
and
THE
STATE
Respondent
CORAM
:
LOUBSER, J et OPPERMAN, J
HEARD
ON
:
5
NOVEMBER 2018
JUDGMENT
BY
:
LOUBSER,
J
DELIVERED
ON
:
22
NOVEMBER 2018
[I]
INTRODUCTION:
[1]
The Appellant in this appeal before us is a 51 year old man who is
not married, and he has no children. He was convicted on
24 April
2018 in the Welkom Regional Court, sitting at Odendaalsrus, on a
charge of rape and sentenced to life imprisonment. The
complainant in
the matter is a young girl who was seven years old when the incident
allegedly occurred on 28 February 2015. The
Appellant now comes into
higher contention against both his conviction and sentence. It was
submitted before us that the trial
Magistrate had erred in finding
that the complainant was a credible witness, and had also erred in
finding that there were no compelling
and substantial circumstances
justifying a deviation from the prescribed minimum sentence for a
rape of this kind.
[II]
THE EVIDENCE:
[2]
The record of proceedings in the trial court shows that the
complainant was the first witness called by the State to testify.
She
was 11 years old at the time of her testimony, and in Grade 6. She
testified that on the day of the incident, she was visiting
a
relative of hers. The Appellant was living in a shack next door to
the relative. While she was inside the house of the relative,
the
Appellant called her from where he was sitting outside the house. He
instructed her to go buy him liquor. When she returned
from the
liquor store, the Appellant told her to take it to his shack. As she
was on her way to the shack with the liquor, the
Appellant suddenly
ran towards her, picked her up and lifted her onto his shoulders. He
then ran with her into the shack, undressed
her, placed her on a bed
and then had forced sexual intercourse with her by penetrating her
vagina with his penis. According to
the complainant, there was nobody
else in the shack at the time.
[3]
While the Appellant was raping her, she heard her grandmother calling
for her, and she replied by saying that the Appellant
had shut her
inside the shack. She then managed to get dressed quickly, and the
Appellant opened the door for her. He told her
that he would stab her
with a knife if she were to tell her grandmother what he had done. As
she went outside, she saw her grandmother
standing at the gate of the
relative’s yard, and she ran to her and told her that the
Appellant had raped her.
[4]
The grandmother of the complainant also testified. She told the court
that on the day in question, she was also visiting the
relative
referred to above. At a certain juncture she was informed that
the complainant had been sent to a store or a shop,
and then she
called the name of the complainant somewhat later. As she was
calling, she saw the complainant emerging from the shack
of the
Appellant. The witness was then standing at the gate of the relative.
As they proceeded on their way home, the grandmother
wanted to know
from the complainant why she was in the shack, but the complainant
first said she was too scared to tell. Later
she told the grandmother
that the Appellant had raped her, and she handed the grandmother a
R10 note saying that Appellant had
given it to her when he warned
that he would kill her if she were to tell anybody about what
happened.
[5]
Later that same evening, the matter was reported to the police, and
the next morning the complainant was taken for medical examination.
A Form J88 was handed in at the trial by the forensic nurse who
performed the examination. She found a bloodstained mucus
discharge coming from the private parts, as well as bruises and
swelling in that area, amongst others. She concluded that
her
findings were consistent with penile penetration of the vagina.
The defence chose not to cross-examine this witness,
and her evidence
therefore stood undisputed.
[6] The Appellant also
testified in the proceedings, and his defence consisted of a bare
denial. He testified that he and
others were drinking on that
day at the house where the complainant and her grandmother came to
visit. Early that evening
he went to his shack to sleep.
He denied that he had sent the complainant to buy him liquor, and he
denied having raped her.
He told the court that when he went to
sleep, he was alone. He would have been aware if someone was
raping the complainant
on his bed, because he was not fast asleep,
[III]
FINDING OF THE MAGISTRATE
:
[7] In his judgment, the
Magistrate stated that he was impressed with the manner in which the
complainant gave her evidence in court.
He found that, despite
her tender age, she was able to give a coherent account of what had
happened to her on that day. The
Magistrate mentioned that he
was mindful of the discrepancies between the evidence of the
complainant and that of her grandmother,
but he found, that in his
view, such discrepancies were not material if regard is had to the
fact that the incident occurred almost
three years before the
witnesses were called to testify. One of the discrepancies
referred to by the Magistrate, existed
in the evidence of the
complainant that she had told her grandmother at the gate that she
was raped, while the grandmother testified
that this was only told by
the complainant when they were already on their way home. The
Magistrate also indicated that he
had observed the complainant and
her grandmother closely when they testified, and that there was no
reason for them to falsely
implicate the Appellant in the commission
of the crime.
[IV]
DETERMINATION:
[8] In considering the
evidence in the trial court and the findings of the Magistrate, I am
mindful of the following statement by
the highest Court of Appeal in
the case of
S v FRANCIS 1991(1) SACR 198 (A)
at p
204 c-e
:
“
This
Court’s power to interfere on appeal with the findings of the
trial court are limited ……. bearing in mind
the
advantage which a trial court has seeing, hearing and appraising a
witness, it is only in exceptional cases that this court
will be
entitled to interfere with the trial court’s evaluation of oral
testimony”.
I
have carefully studied the record of proceedings to find whether the
Magistrate had perhaps misdirected himself by coming to the
conclusion that the evidence of the State had to be accepted as proof
beyond reasonable doubt, but I could find no traces of such
misdirections. I am also satisfied that he was alert to the
pitfalls of evaluating the evidence of a single witness who is
at the
same time a child witness.
[9] As for the sentence
imposed, we are guided by the principle that punishment is
pre-eminently a matter for the discretion of
the trial court, and
should only be altered if it is shown on appeal that such discretion
has not been judicially and properly
exercised.
(
S
v RABIE 1975(4) SA 855 (A)
at
857 D-F)
.
In the present case, the seriousness of the offence by far outweighs
the very few mitigating factors counting in favour
of the Appellant,
of which one is the fact that the Appellant is a first offender.
In my view, the Magistrate was therefore
correct in finding that
there were no compelling and substantial circumstances present which
would justify a departure from the
prescribed minimum sentence of
life imprisonment in the present circumstances.
[10]
The following
order is therefore made:
1. The appeal against the
conviction and sentence of the Appellant is dismissed.
________________
P.J.
LOUBSER, J
I concur:
________________
M.L
OPPERMAN, J
On
behalf of the Appellant
:
Mr. P.L. van der Merwe
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of Respondents
:
Adv. L.M Lencoe
Office
of the DPP
Bloemfontein