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[2016] ZAFSHC 158
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Serathi v S (39597/2016) [2016] ZAFSHC 158 (8 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A82/2016
In
the matter between:
PHILEMON
SERATHI
…....
Appellant
and
THE
STATE
…........................
Respondent
CORAM:
MBHELE, J
et
MATHEBULA, AJ
HEARD
ON:
8 AUGUST 2016
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
8
SEPTEMBER 2016
[1]
The Appellant was convicted of rape by a Regional Court sitting at
Heilbron
on the
25
th
October 2011
,
he was sentenced to life imprisonment on
18
th
June 2012
. The complainant was a 15 year old girl.
[2]
The Appellant feels aggrieved by both conviction and sentence and now
approaches us on appeal of the same.
[3]The
complainant went to Maphedi tavern on 21 September 2007 at about
22h00
to look for her aunt [A M]. [A] asked the complainant to
stay inside the tavern and wait for her. [A] disappeared for a while
and
the complainant went outside to look for her. She then met with
the Appellant who grabbed and pulled her away. She screamed for
help
but no one came to her rescue.
[4]The
Appellant took her to a shack where at knife point forced her to
undress. He subsequently had sexual intercourse with her
three times
without her consent. The following day the Appellant went with the
Complainant to his sister’s house where there
was a feast. The
appellant was asked by his sister to go arrange transport for the
people who had to go to the graveyard. The complainant
left soon
after the appellant’s departure. The Appellant’s DNA was
positively linked with the DNA found on the Complainant’s
panty.
[5]
The Appellant simply denies ever having had sexual intercourse with
the Complainant. In his attempt to try and explain how he
was linked
to this offence, he stated that he could no longer remember if sexual
intercourse indeed took place that night owing
to the fact that he
was drunk. He testified in his defense that he had intentions to have
consensual intercourse with the Complainant
which could not happen
because the Complainant was menstruating.
[6]
Mr. Makhene, for the Appellant, and Mr. Botes, for the Respondent,
are in agreement that conviction cannot be assailed. The
trial court
evaluated the evidence carefully. It came to a conclusion that the
Complainant’s evidence was true and rejected
Appellant’s
evidence as false.
[7]
It is trite that the 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 the trial court of oral evidence
and conclusions thereon are presumed to be correct, absent
misdirection. The trial court correctly found that the Appellant
penetrated the Complainant vaginally without her consent.
[8]
The trial court allowed the defense to cross examine the complainant
on her sexual history without proper basis being laid for
such
evidence to be led. Mr. Mosese who appeared on behalf of the
appellant during trial told the court that he would like to determine
whether the complainant’s hymen was torn on the night of her
encounter with the appellant or during her previous sexual encounter
with other parties. This reasoning was misplaced because the
appellant denied ever having had sexual intercourse with the
complainant.
The complainant’s sexual history was irrelevant
in so far as the appellant’s plea explanation was concerned.
Section 227
(2) of the
Criminal Procedure Act 51 of 1977
provides as
follows:
‘
No
evidence as to any previous experience or conduct of any person
against or in connection with whom a sexual offence is
alleged
to have been committed ,other than evidence relating to sexual
experience of conduct in respect of the offence which is
being tried,
shall be adduced, and no evidence or question in cross examination
regarding such sexual experience or conduct , shall
be put to such
person , the accused or any other witness at the proceedings before
the court unless -
(a)
the court has , on application by any party
to the proceedings, granted leave to adduce such evidence or to put
such questions;
or
(b)
such
evidence has been introduced by prosecution.’
[9]
Subsection 4 further provides that such application may only be
granted only if the court is satisfied that such evidence
or
questioning is relevant to the proceedings pending before the court.
[10]
In the present matter there is no basis to show that such questioning
was relevant to the matter before court.
[11]
Sentencing is pre-eminently in the discretion of the 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 (see
S v Pieters
1987 (3) SA 717
at 727).
[12]
Life imprisonment is applicable in this matter. 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.
[13]
The Appellant was 25 years during the commission of the offence. He
was married with a thirteen (13) year old child. He was
not a first
offender. He was convicted of rape and murder on the 10
th
September 1997 and 14 February 2001 respectively.
[14]
It is clear that the Appellant has a propensity to commit violent
crimes. His actions show that short prison terms have not
done much
to alter his world view. He took away a defenseless 15 year old girl
against her wish and repeatedly had sexual intercourse
with her
without her consent.
[15]
I am not persuaded that the sentence imposed is unjust. The trial
court exercised its discretion judiciously. There is no justifying
cause for us to interfere with the sentence.
ORDER
.
[16]
The appeal fails and conviction and sentence are confirmed.
______________
N.M
MBHELE, J
I
concur
___________________
M.A
MATHEBULA, AJ
On
behalf of appellant: Adv.
Makhene
Instructed
by: Bloemfontein
Justice Centre
Bloemfontein
On
behalf of respondent:
….
Adv. Botes
Instructed
by: Director
of Public Prosecutions
Bloemfontein