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 198
|
|
Sesing v S (A150/2016) [2016] ZAFSHC 198 (24 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A150/2016
In the matter between:
PEDDY
SEPEPE SESING
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J et JACOBS, AJ
JUDGMENT
BY:
JACOBS, AJ
HEARD
ON:
17 NOVEMBER 2016
DELIVERED
ON:
24 NOVEMBER 2016
INTRODUCTION
[1]
The appellant is a 50 year old male, who appeared before the Regional
Court, Kroonstad from 22 February 2013 to 31 March 2016.
He was
charged on five counts of rape. The rape brings the conviction within
the purview of section 51 and schedule 2 Part III
of the Criminal Law
Amendment Act 105 of 1997 (CLA). The appellant was legally
represented throughout the proceedings and
pleaded not guilty on all
five counts of rape.
[2]
On 09 March 2016 the trial court found him guilty on one count of
rape and acquitted him on the others. On 31 March 2016 he
was
sentenced to 10 years of imprisonment. The appeal before us is
against the conviction and sentence with leave to appeal being
granted by the trial court.
[3]
The trial against the appellant was occasioned with a serious of
misfortunes that resulted in him being incarcerated for four
years
pending the finalisation of the trial. In addition, the regional
magistrate did not express himself clearly on the objections
during
the trial, in the judgment as well as the sentence. Consequently this
necessitates a revisit of the evidence presented.
THE
EVIDENCE
[4] The complainant’s
evidence can be summarised as follows:
She testified that she
knew the appellant since 2008 when she met him as a result of the
fact that she was living on the same premises
as his sister where he
would regularly visit. In that same year she joined the appellants’
church where he was the pastor
and participated in the church choir.
The appellant was her pastor and she also acted as his hairdresser.
The
appellant played a huge role in the life of the complainant in that
he was aware that her mother earned a measly salary on which
she had
to maintain herself and her entire family which resulted in the
appellant intermittently assisting with groceries, electricity
and
other essentials. This assistance was regarded a gift. There was a
very good relationship between the appellant and the complainant.
[5]
At his behest, the complainant assisted the appellant at his home in
that she cleaned his house, cooked for him and the church
feeding
scheme and also sold bibles. These services where rendered without
remuneration on Wednesdays and Fridays when she returned
early from
school. At a certain stage the church moved from the residential area
to the town and whereas the appellant initially
would leave the key
to his house at the house of the complainant, he later provided her
with her own key when the church was housed
in town. The appellant
gave the complainant taxi fare of R20 in order for her to travel home
at the end of the day after she completed
her duties.
[6]
On the day of the incident the complainant was at the church playing
computer games in the office, waiting on the appellant
to provide her
with taxi fare. She had finished her duties. She requested the taxi
fare from the appellant on his return from his
duties of worship at
the prison facilities. The witness testified the appellant firstly,
left the church to fetch the church sign
board which that was
standing outside the building to the inside, then locked the gates
and doors of the church.
[7]
The appellant approached her, made her to stand up, lifted her dress,
lowered her pantyhose and underwear, lifted her against
the wall and
because she is much shorter than him balanced her thighs on his knees
and proceeded to have sexual intercourse with
her. She resisted but
due to his strength the appellant was able to continue his actions.
She managed to get away when the items
on the table which consisted
of a computer and bibles were about to fall off. During the ordeal
she asked the appellant what his
reaction would be if someone did the
same to his child and when the appellant stopped what he was doing
she informed him that she
will report his actions. His response was
to indicate that she would not be believed and that if she would do
so he would demand
all the money he had given and spend on her family
from her mother. The appellant thereafter gave her, her usual taxi
fare and
she went home.
[8] After the incident
the complainant no longer attended the church of the appellant and
relocated to Qwa Qwa at the end of that
year. She moved because she
was living in the same road as the appellant which meant that she had
to see him on a daily basis and
this aspect disturbed her. As a
result of the incident she was unable to focus at school which
resulted in grades slipping. She
failed the year.
[9]
The complainant did not tell anyone about the incident as she did not
want people to know about what happened. She felt ashamed
as she had
trusted the appellant and she was scared that her mother would have
to reimburse the appellant, something her mother,
would not be able
to do.
[10]
During 2012 three police officers including one female arrived at her
house in Qwa Qwa and questioned her about her relationship
with the
appellant. They informed her that they were investigating allegations
of inappropriate behaviour of the appellant. She
was initially
reluctant to speak to them, but later indicated that she would talk
to the female officer present. She informed the
female officer that
the appellant had raped her but was unable to completely relay the
whole incident due the fact that she did
not know how to open up. On
this day in question the officers did not take down a written
statement as it was late in the day and
they had to return to office.
The two male officers returned at a later stage to take down her
statement and even on this day she
did not relate the whole incident.
[11] The complainant was
taken for a medical examination but because the incident had taken
place a while ago, the medical report
is of no assistance. She no
longer experiences any physical pain as she had done during the
incident. However, she is still
emotionally affected as she
still cannot come to terms with what the appellant had done to her.
[12]
Agosi Charles Motimi (investigating officer) is a retired police
officer and the investigating officer in this case. He went
to Qwa
Qwa to interview the complainant as he was informed that she
frequented the appellant’s house and could have been
a victim
of rape. He was in the company of Constable Nyangwa (the Constable)
and Warrant Officer Jawa (the Warrant officer) when
they went to
interview the complainant. He as well as the Constable confirmed the
evidence of the complainant as to what transpired
on the first visit.
The Constable did not return when the complainant’s statement
was taken. The appellant was in custody
on allegations pertaining to
other complainants when the docket was opened for the complainant. He
confirmed the evidence of the
complainant that she was absent at both
the occasions when the appellant was arrested pertaining to these
charges. He further corroborated
the complainant’s evidence
with regard to the board that is kept outside the church of the
appellant and indicated that on
the day he arrested the appellant at
his church, the appellant told members of his congregation to place
the board inside the church
before they locked up.
[13]
Motapello Florence Nkosani assisted at the church of the appellant in
that she cleaned the church, cooked for the street children
and sold
bibles for the appellant. She corroborated the evidence of the
complainant that they both assisted the appellant at different
times
and that the complainant was in possession of a church key which they
shared on instruction of the appellant. She also corroborated
the
complainant’s evidence regarding the board outside the church.
She stated that the people in the hairdresser would not
be able to
hear anybody cry out from the church as the music being played at the
hairdresser is loud.
[14]
Disema Samuel Thomas Mokoena works at the department of Correctional
services at Kroonstad. His evidence related to the visits
the
appellant made at the prison and he did not add to the evidence that
was presented.
[15]
The regional magistrate evaluated the version of the appellant and
highlighted various contradictions on his own version and
his
evidence in relation to that of defence witnesses. Counsel conceded
to this and submitted that the appellant was not a good
witness. The
appellant on material issues presented a version for the first time
when he testified in court, clearly adapting his
evidence as the shoe
pinched. The appellant further conceded that he gave his legal
representative instructions contrary to what
he testified in court.
The defence witnesses did not corroborate the evidence of the
appellant and did not confirm his alibi.
CONVICTION
[16]
Amongst the grounds of appeal are those grounds directed at the
regional magistrate’s findings of fact and credibility.
It is
well known that a court of appeal will not ordinarily depart from
such findings unless they are vitiated by irregularity
or unless an
examination of the evidence reveals that they are patently wrong.
[1]
The regional magistrate in evaluating the evidence of the complainant
indicated correctly in my view that her evidence must be
viewed with
caution as she is a single witness
[2]
and proceeded to evaluate her evidence as such.
[17]
The appellant attacked the trial court’s finding firstly, on
the basis that the report was not made voluntarily. In
S
v T
[3]
the court made reference to the English decisions of
Rex
v Osborne
,
1905 (1) K.B.551, and
Rex
v Norcott,
116 L.T. 576
where it was held that:
“…
a
complaint in a sexual case is not inadmissible merely because it is
made in reply to a question, but that it cannot be admitted
if
elicited by questions of a leading or intimidating character.”
The
evidence of the complainant, the Investigating Officer and the
Constable were that the complainant was questioned with regard
to her
relationship with the appellant. The complainant freely
informed the officer that she was raped by the appellant.
I am
therefore satisfied that the report was made voluntarily.
[18]
The second ground on which the appeal is based is the late reporting
of the incident. Mr. Reyneke on behalf of the appellant
indicated
that section 59 of Criminal Law (sexual offences and related matters)
Amendment Act 32 of 2007determines that no negative
conclusion may be
reached based on the late reporting of an incident of rape. The fact
of a report or any length of a delay is
but only a factor which must
go into the scales. These factors form part of the totality of the
evidence against which it must
be decided whether there is proof of
guilt beyond reasonable doubt
[4]
.
[19]
In the present matter the complainant explained that she was scared
about the fact that the appellant indicated that if she
informed on
him, her mother would have to pay back all the money that was spend
on them. The complainant was aware of the fact
that her mother earned
a meagre salary from which she had to sustain a family of five people
and that her mother would not be in
a position to repay the
appellant. The trial court found this explanation acceptable and this
court is unable to fault that decision.
[20]
The third ground of appeal is that the first report witness compiled
her statement two years after the report was made to her.
Mr. Reyneke
submits that the Constable compiled her statement out of the
complainant’s statement found in the docket. This
court is not
sure on what this premise is based especially as he submits that the
Constable denied that the complainant indicated
that the goods were
falling from the table. One would have expected that if the Constable
did not have independent recollection
of the incident that she would
have copied the evidence of the complainant. The circumstances in
this case are unique in that a
clergy was accused of various counts
of sexual impropriety against a number of children and they had to
travel a distance to QwaQwa
to interview a possible victim. It is
thus highly probable under those circumstances that the Constable
would remember the detail
of the case.
[21]
The fourth ground of appeal is based on the improbable conduct of the
complainant after the incident. The complainant explained
her conduct
fully and the trial court found her explanation acceptable. This
court cannot fault the explanation as not only did
the complainant
not contradict herself but the explanation provided is clear and make
sense in relation to the evidence that was
presented.
[22]
The fifth ground of appeal relates to the complainant as a single
witness. The appellant submits that the trial court did not
evaluate
the complainant’s evidence as a single witness with caution.
This submission is devoid of substance as the trial
court made a
clear analysis in this regard. Further, on the evidence presented I
am satisfied that the complainant did not contradict
herself on any
material aspect. No motif was presented as to why she would falsely
implicate the appellant. It is important to
note that it is the
evidence of the complainant and that of the appellant that they had a
good relationship and that he assisted
her family financially. Though
the complainant were no longer living in the area of the appellant at
the time she made the report
she was still assisted by the appellant
who provided her with a cell phone, on her version. She stood nothing
to gain by
making false allegations but everything to lose in that
the much needed financial support to her family would come to an end.
Circumstantial
evidence pertaining to the church board and the key is
corroborated by other state witnesses. The trial courts finding of
credibility
can therefore not be faulted.
[23]
The last ground on which this appeal is based is that the trial court
misdirected itself when it concluded that MM and PFL
corroborates the
complainant that she worked at the church. The correct position is
however that Miss Nkosani corroborated the
complainant’s
evidence on this aspect. This misdirection can therefore not be
regarded as so serious so as to vitiate the
finding of guilt on
behalf of the appellant as it is clear that there are corroboration
on the evidence presented by the complainant
with regard to the board
and the key.
Sentence
[24]
A court’s power to interfere with a sentence on appeal is
circumscribed
[5]
and this
position was summarised in
S
v Bogaards
a Constitutional Court judgement that detailed the circumstance where
an appellate court’s could interfere with sentences
imposed by
lower courts :
“
It
can only do so where there has been an irregularity that results in a
failure of justice; the court below misdirected itself
to such an
extent that its decision on sentence is vitiated; or the sentence is
so disproportionate or shocking that no reasonable
court could have
imposed it
[6]
.”
[25]
The sentence of 10 years imprisonment imposed was done pursuant to
the provisions of section 51
[7]
.
The only basis upon which a court may impose a lesser sentence than
that prescribed sentence is if substantial and compelling
circumstances are found to exist in terms of
section 51
(3) of the
Criminal Law Amendment Act.
[8]
The test set out in
S
v Malgas
[9]
has been restated on many occasions. In essence the court must take
into consideration the normal principles in sentencing.
[26]
The trial court took into consideration the personal circumstances of
the appellant and found the only relevant factor that
is substantial
and compelling is the fact that the appellant spent four years as an
awaiting trial detainee before the matter was
finalised. The court
then proceeded to evaluate the aggravating factors present and
concluded that the aggravating factors far
outweighed the mitigating
factors. The result conceded by Mr. Reyneke, is that the trial court
considered a sentence in excess
of 10 years but because of the
inordinate long delay in the finalisation of the sentence concluded
that a sentence of 10 years
would be appropriate. Even if my analysis
of the trial court’s intention is wrong due to the fact that
the regional magistrate
did not express himself clearly, I am
satisfied that a sentence of 10 years is an appropriate sentence
under the circumstances.
[27]
In the premises I would make the following order:
The
appeal against the conviction and sentence is dismissed.
______________
S.
JACOBS, AJ
I
concur.
______________
C.
REINDERS, J
On behalf of the
appellant: JD Reyneke
Instructed
by:
Regsentrum
BLOEMFONTEIN
On behalf of the
respondent: Adv. A. Ferreira
Instructed
by:
The
Director: Public Prosecutions
BLOEMFONTEIN
[1]
R v
Dhlumayo and Another
1948 (2) SA 677
(A) at 705. See also
S
v Hadebe and Others
1997
(2) SACR 641
(SCA)
at 645 and
S
v Francis
1991
(1) SACR 198
(A)
at 204c – f.
[2]
Section 208
of the
Criminal Procedure Act 51 of 1977
. See also
S
v Snyman
1968 (2) SA 582
(A) at 585C–H and R v Mokoena 1932 OPD 79
[3]
S v T
1963 (1) SA 484 (A)
[4]
Booysen v S
[2015] JOL 34385
(ECG) para [55]
[5]
S v
Bogaards
2013 (1) SACR 1
(CC) para 41
[6]
Ibid
[7]
Criminal
Law Amendment Act 105 of 1997
.
[8]
ZF v S
[2016] JOL 34751
(KZP) at para 41
[9]
S v Malgas
2001 (1) SACR 469
at para 25.