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[2016] ZAFSHC 16
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Mphahlu v State (A190/2015) [2016] ZAFSHC 16 (11 February 2016)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal number: A190/2015
DATE: 11 FEBRUARY 2016
In the matter between:
FANELE
MPHAHLU
...............................................................................................................
Applicant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: JORDAAN, J et MBHELE, J
HEARD ON: 01 FEBRUARY 2016
JUDGMENT BY: MBHELE, J
DELIVERED ON: 11 FEBRUARY 2016
[1] This is an Appeal against
conviction and sentence. The appellant was convicted of rape of a 13
year old girl by a Regional
Court sitting in Bloemfontein on 23
October 2014 and sentenced to life imprisonment on 24 April 2015.
The appellant has an automatic
right to appeal.
[2] He feels aggrieved by both
conviction and sentence and now approaches this court on appeal
against the same.
[3] On convicting the appellant, the
trial court rejected the appellant’s version as not reasonably
possibly true. The court
below, further, accepted that the appellant
was correctly identified as the person who raped the complainant.
The trial court,
furthermore, accepted the medical evidence that
confirmed that the complainant had genital injuries consistent with
her version
that she was forcefully penetrated.
[4] In the notice of appeal, heads of
argument as well as arguments before us the appellant assails the
conviction on the grounds
that the court erred in rejecting the
evidence of the appellant and finding that the complainant, a single
witness was both a reliable
and credible witness.
[5] Ms. Kruger, appearing for the
appellant, further, submits that the complainant was a single witness
and a child whose evidence
must be approached with caution.
[6] The State supports both the
conviction and the sentence according to Mr. Bontes, who contends
that the complainant’s version
was corroborated by the J88 and
the appellant’s mother who confirmed that complainant’s
father arrived at her house
looking for the appellant.
[7] The complainant was a single
witness. Her testimony was to the effect that on 26 January 2013 she
was accosted by the appellant
and four other unknown male persons.
They covered her head with a cloth and took her to the appellant’s
place of abode.
On their arrival the appellant’s mother was
present and she requested her to reprimand the appellant but she said
no word.
The appellant took her to the bedroom where he took off her
tights and panty, and penetrated her vaginally with his penis.
[8] Whilst the appellant was busy in
the bedroom with her she heard her father’s voice in the
kitchen, tried to scream but
the appellant put a cloth in her mouth.
Her father was looking for the appellant, she managed to escape when
the appellant went
to the bathroom and only arrived home at around 12
midnight. On her arrival at home she reported to her mother that she
was raped.
[9] [D…….] [A……]
[T…..], the complainant’s mother’s testimony was
to the effect that
she sent the complainant to her father at around
18h00 and when she did not return until 20h00 she got worried and
went out to
look for her at Bergman Square. The search went on until
22h00 and the complainant only arrived home at 12 midnight. She was
in tears and she reported that she was raped by the appellant. She
was accompanied by her uncle whom she said she met along the
way.
The police were called.
[10] The appellant simply denied his
involvement in the offence. Ms. Kruger contended that there were
material contradictions in
the state evidence which called for its
total rejection. The appellant admitted that he knows the
complainant and his family.
He admitted that he was earlier in the
day at the complainant’s place of abode which fact was disputed
during cross examination
of the complainant. He later on under cross
examination came up with an alibi defence which was never put to
witnesses.
[11] It is trite that factual findings
of the trial court are presumed to be correct unless they are shown
to be wrong with reference
to recorded evidence. The acceptance by a
trial court of oral evidence and conclusion thereon are presumed to
be correct, absent
misdirection. I have no doubt that the trial
court correctly found that the appellant penetrated the complainant
vaginally with
his penis without her consent. The appellant’s
mother corroborated the complainant when she said that her father
arrived
at her house on the night of the incident.
[12] Sentencing is pre- eminently in
the discretion of a trial court. The sentence can only be interfered
with if the sentencing
court exercised its discretion unreasonably or
in circumstances where the sentence is adversely disproportionate, or
the trial
court misdirected itself on the facts or the law.
(See S v Pieters
1987 (3) SA 717
of
727)
Rape of a minor justifies a sentence of
life imprisonment.
[13] Ms. Kruger submits that there were
substantial and compelling circumstances justifying a departure from
the minimum sentence
prescribed by the Act. She further contends
that the period spent by the appellant in custody, awaiting trial,
should be considered
as a mitigating factor. The test for existence
of substantial and compelling circumstances warranting deviation from
the prescribed
minimum sentence, is whether or not the cumulative
effect of mitigating factors on the gravity of the offence, the
general aggravating
factors and the interest of community render the
relevant prescribed sentence unjust. (See S v Malgas
2001 (1) SACR
469
SCA.
[14] It is common cause that the
complainant’s life has been adversely affected by this offence.
She struggled to concentrate
at school, resulting in her repeating a
grade. She had to uproot her life and move to Wepener. She did
sustain injuries albeit
not as serious.
[15] The appellant was 26 years of age
at the time of the offence. He is not married but stays with a woman
with whom he shares
3 children. The children receive social grants.
He attended school until grade 9 and he did odds jobs where he earned
R60 per
day. He spent two years in custody awaiting trial.
[16] When weighing up the mitigating
factors against the aggravating circumstances in this matter as well
as the interest of the
community, I am not persuaded that the
sentence imposed is unjust. I am of the view that the trial court
exercised its discretion
reasonably. There is no justifying cause
for us to interfere with the sentence.
ORDER
[17] I propose the following order:
The appeal fails and the conviction and
sentence are confirmed.
N.M. MBHELE, J
I concur and it is so ordered.
A.F. JORDAAN, J
On behalf of applicant: Ms. S.
Kruger
Instructed by: Bloemfontein Justice
Centre
Bloemfontein
On behalf of respondent: Adv. D.W.
Bontes
Instructed by: Office of the
Director: Public Prosecutions
Bloemfontein