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[2016] ZAGPPHC 182
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Mathebula v S (A383/15) [2016] ZAGPPHC 182 (4 April 2016)
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
4/4/2016
CASE NO: A 383/15
Not reportable
Not of interest to other judges
Revised
In the matter between:
ROBERT
MATHEBULA
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1] The appellant was convicted on four counts of rape and sentenced
to life imprisonment.
[2] The appellant appeals against both the conviction and sentence.
[3] The appellant admitted that he had sexual intercourse with the
complainant on four occasions during the evening of 12 April
2008.
The appellant alleges that the complainant was his girlfriend and
that the sexual intercourse was by consent between the
parties.
[4] The complainant denies the appellant's version of events. She
testified that she was walking with two of her friends when the
appellant grabbed her and forced her to go with him to his room where
he raped her four times. He assaulted her during the night
and she
could only escape the next morning when her father and family members
arrived at the appellant's room.
[5] The complainant's version is supported by the evidence of:
i. N, her friend, who confirmed that the complainant was forcefully
taken by the appellant. She further explained that she accompanied
the complainant's father the next morning to search for the
complainant. They were informed by a certain lady that the
complainant
was seen in the company of Robert (the appellant) and was
directed to Robert's house where they found the complainant. The
complainant
was crying and her face was swollen;
ii. Mrs M, who joined the search party the next morning. She
testified that upon arriving at the appellant's homestead, the
complainant's
father called the appellant's name. The appellant
emerged dressed in his boxer shorts. The complainant followed him,
she was badly
beaten and had her clothes in her hands;
iii. Ms M, who was also a member of the search party, in essence
confirmed the version of Mrs M;
iv. Mr K, the father of the complainant; and
v. The medical report, which report stated that the complainant was
traumatised and crying when she was seen by the doctor. The
report
indicates various bruises on the complainant's chest, thighs and on
her face.
[6] The appellant confirmed his version under oath and called his
friend, Makosonki, in support of his version. Although the appellant
testified that the complainant had been his girlfriend for
approximately seven months at the time of the incident, Makosonki
told
the court that it was the first time, on the day of the
incident, that he saw the complainant.
GROUNDS OF APPEAL: CONVICTION
[7] The appellant firstly, states that the court
a
quo
erred by not treating the evidence of the complainant with the
necessary caution. Secondly, the appellant alleges that the evidence
of the State was full of contradictions, which contradictions were
not properly taken into account by the court
a quo.
Thirdly
and according to the appellant, the injuries indicated on the medical
report do not accord with the complainant's version
of the assault.
[8] The court
a quo
did apply the cautionary rule to the
complainant's evidence.
The following portion of the judgment clearly reflects the aforesaid:
"In assessing the evidence of the complainant the court is
mindful that her evidence stands alone in certain respects and that
the court will treat her evidence with caution."
[9] The court
a
quo
was mindful of the contradictions
between the evidence of the complainant and that of the other State
witnesses. The court
a quo
after addressing these
contradictions came to the following finding:
"These contradictions are however not of a material nature
and do not disturb the high quality of her evidence."
[10] In considering the version of the appellant, the court a
quo
had regard to various improbabilities in his version.
[11] Having had regard to the reasons underlying the conviction of
the accused, I am of the view that the court a
quo
did not err
in any of the instances relied upon by the appellant. The conviction
was in line with the evidence in its totality and
should stand.
GROUNDS OF APPEAL: SENTENCE
[12] In the heads of argument filed on behalf of the appellant, the
following ground of appeal in respect of sentence is advanced:
"It is submitted that the trial court erred in
over-emphasising the seriousness of the offence which the appellant
has committed
and the interest of society whilst the personal
circumstances of the appellant were under-emphasised."
[13] One should bear in mind that the offences the appellant was
convicted of falls within the purview of the provisions of Act
105 of
1997, colloquially referred to as the Minimum Sentences Act. The
court a
quo
was mindful of the provisions of the Act and after
giving careful consideration to all the facts and circumstances of
the matter,
found that there are no substantial and compelling
circumstances justifying the imposition of a lesser sentence than the
prescribed
sentence of life imprisonment.
[14] I agree.
ORDER
In the premises, I suggest the following order:
The appeal against conviction and sentence is dismissed.
_______________________
N JANSE VAN NIEWUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
I agree.
_______________________
D T SKOSANA AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
It is so ordered.
Appearances:
Counsel for the Appellant :
Advocate MMP Masete
Instructed by :
Legal Aid
Counsel for the state :
Advocate Mnisi
Instructed by :
The State