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[2016] ZAFSHC 70
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Tsetse v S (A173/15) [2016] ZAFSHC 70 (5 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : A173/15
In
the matter between:-
PALEHO
EDWIN
TSETSE
First
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI,
J et MOHALE, AJ
HEARD
ON:
09
NOVEMBER 2015
DELIVERED
ON:
05
MAY 2016
MOLOI,
J
[1]
The trial court granted the appellant leave to appeal to this court.
The appellant appeals both his convictions and sentences
imposed in
respect of the following counts: (1) Rape in terms of section 3 read
with other sections of the Criminal Law (Sexual
Offences and related
matters) Amendment Act 32 of 2007 and further read with section 51
and Schedule 2 of the Criminal Law (Sentencing)
Amendment Act 105 of
1997 and
section 261
of the
Criminal Procedure Act 51 of 1977
for
which he was sentenced to fifteen (15) years imprisonment; (2)
unlawfully impersonating police in contravention of
section 68(1)(a)
of Act 68 of 1995 for which he was sentenced to three (3) years
imprisonment and (3) Robbery read with section 51(2) of the Criminal
Law (Sentencing) Act 105 of 1997 for which he was sentenced to ten
(10) years imprisonment. The appellant was unrepresented during
the
trial having chosen to represent himself despite the virtual plea of
the presiding officer to opt for legal representation,
rather.
[2]
The evidence on which the convictions are based was that on 4
February 2007 the complainant, N. W., was collecting fire-wood
in a
grassy veld where there was a bush and a stream running through. She
carried the bundle of wood on her head and proceeded
to cross the
bridge between Aliwal North and Rouxville. The appellant, who was
unknown to the complainant, dressed in a police
uniform, ordered her
back to the Free State side of the bridge into the veld. The
complainant tried to run away and the appellant
gave chase and at a
point tripped her from behind and she fell on the ground. The
appellant took out her panties and had sexual
intercourse with her.
She was frightened as she saw a fire-arm in his possession and he
threatened to kill her. After raping her,
the complainant took and
hid under her clothes, the handcuffs that fell from the appellant.
The appellant took out a pocketbook
with a police stamp on it and
wrote her particulars in it. He searched her looking for the
handcuffs and found her cellular telephone
instead which he took. The
cellular telephone was a Motorola valued at R425-00.
[3]
As the appellant was busy looking for the handcuffs, the complainant
ran away. She saw someone working on a garden and called
for help.
The gardener came to her rescue and accompanied her to the police
station. She called the appellant a police sergeant
to the gardener
as she did in her evidence in court during the trial. On the way a
police vehicle approached. They stopped the
vehicle and reported the
incident. The complainant then saw the appellant and confronted the
appellant. The police asked for the
complainant’s cellular
telephone which the appellant gave but without a SIM card and a
battery. The SIM card and the battery
were found in his pockets. The
appellant was still wearing a police uniform. Upon searching the
appellant’s home, the police
found a sergeant lapel, a police
gun holster, a police belt, a pair of police socks, four police
shirts, a police jacket, a police
pair of trousers and a further
police jacket, and a further pair of police handcuffs. During
cross-examination the appellant suggested
he had a relationship with
the complainant and had arranged to meet at the scene on the 4
th
February 2007 to engage in sexual activity but did not do so.
[4]
A policeman William Tumane corroborated the complainant’s
evidence as to the report she made after stopping the police
vehicle
up to the arrest of the appellant. The appellant said that he took
the complainant’s cellular telephone as the complainant
was
stealing mielies in the fields. He confirmed the complainant was
crying. The appellant was handed over to inspector Tandukuhle
Adoons
who was at the police station and was interested in the appellant as
he was wearing police uniform. She asked the appellant
to unbutton
the shirt he was wearing and notice the name ‘
Whitting’
on the shirt. Whitting was, in fact, a police officer and confirmed
the appellant was in his employment and had access to the storeroom
where he kept his old police uniforms and other things. This led to
the search of the appellant’s home where the other pieces
of
police items were found. The finding of these items was made by
Constable Gloria Naudea who also confirmed that the complainant,
when
she got to the police station, was crying. Inspector Whitting
confirmed further that he is not permitted to give away police
uniforms even if they were old.
[5]
Despite repeated warnings and explanation of the importance to give
evidence on oath, the appellant refused to do so and insisted
of
being shown the DNA test results and photographs of the scene. There
were no DNA samples taken. He stated however that he had
a
relationship with the complainant and that their meeting was arranged
to have sex though it did not take place.
[6]
The evidence above is sufficient to found a conviction on a charge of
rape. The appellant was, however, charged with contravention
of
section 3 of Act 32 of 2007. This Act came into operation on 16
December 2007 whereas the offence was committed on 4 February
2007
before the Act came into operation. It was argued on appeal that the
appeal ought to succeed as a result, at least on this
count. The
respondent argued that the common law offence of rape had the same
elements as the statutory rape and that no prejudice
would be
suffered by the appellant if convicted on common law rape and relied
on
S v Mahlangu
1997 (1) SACR 338
(T) wherein the following
was stated a p.343 f-g:
“
Al
wat die verhoor landdros wil bewerkstellig is dat die benaming van
die misdaad waaraan die beskuldigde skuldig bevind is verander
word.
Die bewerings teen die beskuldigde is in wese dieselfde en sy verweer
(‘n ontkenning) sal nie daardeur geraak word
nie. Sy
verdediging sou ook nie op ‘n ander wyse gevoer word nie. Ek is
derhalwe van mening dat daar nie benadeling van enige
aard kan wees
indien so ‘n wysiging gelas word nie.”
Although
in the above case the issue was brought in the Special review
proceedings, I am of the view that the same can be done in
appeal
proceedings. The main consideration remain that justice must be done
and should not be compromised by simple technicalities.
[7]
In as far as the robbery with aggravating circumstances is
concerned, the evidence is that when
the appellant searched the complainant looking for his handcuffs he
found a cellular telephone which he took. According to the
appellant
he wanted to take it to the police station. No evidence is found that
force was used in the process nor threat to harm
the complainant.
Actually the prosecution at the trial pointed out to the presiding
officer that if anything the appellant could
be found guilty of theft
being a competent verdict on a charge of robbery. I agree with the
prosecutor as there was no reason given
why the telephone would be
taken to the police and why the appellant did not give it to the
police on own volition when he was
arrested but waited till it was
demanded. Moreover, why he took the SIM card and battery out is not
explained. These were, however,
found in the appellant’s
pockets when he was searched.
[8]
The court of appeal is entitled to intervene where the trial court
imposed a sentence that is inappropriate. The sentence will
be
inappropriate if it induces a sense of shock-
S
v De Jager + Another
1965 (2) SA616 (A) or if the trial court misdirected itself in
imposing a sentence:
S
v Kibido
,
1998(2) SACR213 (SCA). It is correct that no substantial and
compelling circumstances exist in this matter. The appellant was
forty (40) years old, married with a child and had passed grade 6 at
school. He made a living by doing piece jobs. The offences
of which
the appellant was convicted are serious. The manner in which the
offence of rape was committed exacerbates its seriousness
as he acted
as a police officer. The appellant had two relevant previous
convictions for rape committed in 1984 and 1987 and sixteen
(16)
other previous convictions.
[9]
In the result, the appeal succeeds in part and the findings of the
trial court are set aside and substituted with the following:
9.1
In respect of count 1 the appellant is found guilty of common law
rape.
9.2
The conviction on count 2 is confirmed.
9.3
The conviction on a charge of Robbery with aggravating circumstances
in count 3 is set aside and substituted
with a conviction on a charge
of theft.
9.4
The sentence of fifteen (15) years imprisonment imposed in respect of
count 1 is confirmed.
9.5
The sentence of three (3) years imprisonment in count 2 is confirmed.
9.6
The sentence of three (3) years imprisonment on count 3 is imposed.
9.7
The sentences in counts 2 and 3 are ordered to run concurrently with
the sentence in count 1.
9.8
The above sentences shall be deemed to have been imposed on 10
February 2009.
_______________
K.J.
MOLOI, ADJP
I
concur
_______________
I.B
MOHALE, A.J
On
behalf of the appellant: Adv.S.S Kambi
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Bester
Instructed
by:
The
DPP
BLOEMFONTEIN