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
>>
2016
>>
[2016] ZAFSHC 127
|
|
Moshane v S (A97/2016) [2016] ZAFSHC 127 (28 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
No.: A97/2016
In
the appeal between:
ABRAM
TAU
MOSHANE
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE,
J e
t
REINDERS,
J
JUDGEMENT:
LEKALE,
J
HEARD
ON:
25
JULY 2016
DELIVERED
ON:
28
JULY 2016
[1]
On 1 March 2015 and at Wesselsbron the appellant was in physical
contact with an 11 year old girl (the complainant) in a bedroom
at
the residence of the latter’s maternal grandfather. The
appellant, thereafter, left the residence in the company
of the
complainant, who was pushing the former’s disabled child in a
wheelchair, and her grandfather until they reached the
appellant’s
parental home where they parted ways. Later that evening the
complainant reported to her mother that the
appellant did funny
things to her and the police were called. The appellant was,
thereupon, arrested and charged with rape.
[2]
The appellant eventually appeared before the regional court at Welkom
and pleaded not guilty to the charge against him.
He was,
however, convicted as charged and sentenced to imprisonment for 15
years on 12 November 2015. He feels aggrieved
by the state of
affairs and now approaches us on appeal against both the conviction
and sentence with leave granted by the trial
court.
[3]
On returning the guilty verdict the trial court rejected the
appellant’s version as not reasonably possibly true and
accepted, as credible and reliable, the complainant’s version
to the effect that on the fateful late afternoon the appellant
caused
her to run an errand for him and, on her return, he was lying on a
mattress in the bedroom where he did not want her to
leave him.
He insisted on her keeping him company until he fell asleep.
The appellant, however, did not fall asleep
and eventually had oral
sex with her by inserting his tongue into her mouth and, further,
sucked her vagina by inserting his tongue
into the same after
attempting, without success, to penetrate her carnally by inserting
his penis into her vagina all without
ever seeking her consent.
[4]
The trial court found cause to deviate from life imprisonment as a
prescribed minimum sentence in the form of lack of vaginal
penetration but held that 15 years’ imprisonment was
appropriate as a sentence regard being had to the fact that the
relevant
crime is singled out for severe punishment by the
legislature.
[5]
In argument on the papers and before us it is,
inter
alia
,
submitted for the appellant that the court below erred in rejecting
the appellant’s version as not reasonably possibly true
and in
finding that the state proved its case against him beyond reasonable
doubt. It is, further, contended for the appellant
that the trial
court erred in accepting the complainant’s evidence as credible
and in imposing 15 years’ imprisonment
as a sentence.
[6]
The state supports both the conviction and sentence with Mr Hoffman
effectively submitting that the trial court cannot be faulted
in
returning the guilty verdict and in imposing the impugned sentence.
[7]
The court approaches the evidence of a child witness and a
single witness with caution by ensuring that, despite
any
defects, shortcomings and contradictions, it is satisfied that the
truth has been told and, in the case of a child witness,
that such
evidence is trustworthy. (See
S
v Sauls and Others
1991(1)
SACR 198 (A);
Woji
v Santam Insurance Co. Ltd
1981(1) SA 1020 (A) and
S
v Dyira
2010(1) SACR 79 (ECG))
[8]
The factual findings of the trial court and its acceptance of oral
evidence are presumed to be correct unless and until they
are
demonstrably or on adequate grounds shown to be wrong. (See
S
v Francis and Others
1991(1) SACR 198 (A))
[9]
When confronted with conflicting versions which cannot be reconciled
the court adopts a holistic approach to available evidence
and has
regard to probabilities. (See
S
v Guess
1976 (4) SA 715
(A))
[10]
Our powers, sitting as we are on appeal, are limited when it comes to
the sentence in so far as we can only interfere with
the same where
the sentencing court committed a material misdirection or the
sentence imposed is not proportionate or such a court
did not
exercise its discretion properly or at all. (See
S
v Pieters
1987(3) SA 717 (A))
[11]
There is nothing before us to suggest that the trial court erred in
accepting the complainant’s evidence and in finding
that the
appellant was guilty as charged. I am, further, satisfied that
the trial court applied cautionary rules to the complainant’s
evidence as a child witness and a single witness and was, correctly,
satisfied that the truth had been told regard being had to,
inter
alia
,
her evidence which clearly did not seek to exaggerate the appellant’s
actions. The court below, further, correctly
rejected, as not
reasonably possibly true, the appellant’s version to the effect
that, although he was alone with
the
complainant in the bedroom on the day in question, he did not commit
any act of sexual penetration against her in any manner
whatsoever.
The conviction can, therefore, not be faulted in my view.
[12]
There, further, exists no cause whatsoever to interfere with the
sentence regard being had to,
inter
alia,
the age of the complainant and lack of remorse on the part of the
appellant.
ORDER
[13]
In consequence the appeal is dismissed.
[14]
The conviction and sentence are confirmed.
______________
L.
J. LEKALE, J
I
concur.
______________
C.
REINDERS, J
On
behalf of the appellant: Adv. L. Smit
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. Hoffman
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb