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[2016] ZAGPPHC 445
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Shongwe v S (A724/2015) [2016] ZAGPPHC 445 (15 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: A724/2015
DATE:
15/6/2016
Reportable:
no
Of
interest to other judges: no
Revised.
In
the matter between:
BHEKUYISE
LUSEN
SHONGWE
Appellant
and
THE
STATE
Respondent
JUDGMENT
AC
BASSON, J
[1]
The appellant was convicted and sentenced in the Mpumalanga Regional
Court on one count of rape of a minor child aged eight
years. He was
sentenced to life imprisonment. He approached this court by virtue of
an automatic right of appeal against his conviction
and sentence.
[2]
The state relied on the evidence of two witnesses: The complainant
and her fourteen year old brother - Mr K. K. (“K).”
[3]
The complainant, who was eight years old at the time of the
commission of the offense, testified that she was playing outside
with a friend when the appellant called her. He took her into her
father’s house where he undressed her and then raped her.
She
testified that her brother came inside of the house whilst she was
dressing herself. The complainant told K. that the applicant
had
raped her. He undertook to tell their mother. The complainant also
testified that she was raped for a second time but she could
not
remember when. She told the court that on the second occasion the
appellant told her to lie on “his sponge” whereafter
he
raped her. When he was finished he told her to go and bath herself
and wash her panty. She explained that she did not tell anyone
because the appellant threatened to assault her. He also gave her
some money. The matter was reported to the South African Police
Services and she was medically examined.
[4]
K. confirmed that on the day in question he knocked on the door but
found that it was locked. He returned later to find his
sister (the
complainant) busy dressing herself. He also found the appellant
outside. He confirmed that the complainant had told
him that the
applicant had raped her. He reported the incident to his mother on
the day of her return from Swaziland whilst they
were watching
television. The appellant who was present at the time made a sign
that K. interpreted as that the appellant was going
to slit his
throat.
[5]
The appellant denied that he had raped the complainant and testified
that it was actually the brothers who had abused her. This
version
was not put to either of the state witnesses.
[6]
The learned magistrate duly applied the cautionary rule to the
evidence of the complainant as she was a single witness in respect
of
the rape incident. Although there are discrepancies in the evidence
of the state witnesses, such discrepancies are not, in my
view, in
relation to material aspects.
[7]
The presiding magistrate made a credibility finding in favour of the
complainant and further also took into account that corroboration
for
the rape was to be found in the evidence of K. who found the door
locked at first. When he later returned the door was opened
and the
complainant was busy dressing herself. At that stage the complainant
informed K. that she was raped.
[8]
I am not
persuaded that the trial court’s credibility findings can be
faulted. Furthermore, it is trite that a Court of Appeal
will be
hesitant to interfere with the factual findings and evaluation of the
evidence by the trial court and that a court will
only interfere
where the trial court materially misdirected itself insofar as its
factual and credibility findings are concerned.
[1]
See in this regard:
S
v Francis:
[2]
“
The powers of a
Court of appeal to interfere with the findings of fact of a trial
Court are limited. In the absence of any misdirection
the trial
Court's conclusion, including its acceptance of a witness' evidence,
is presumed to be correct. In order to succeed on
appeal, the
appellant must therefore convince the Court of appeal on adequate
grounds that the trial Court was wrong in accepting
the witness'
evidence - a reasonable doubt will not suffice to justify
interference with its findings. Bearing in mind the advantage
which a
trial Court has of seeing, hearing and appraising a witness, it is
only in exceptional cases that the Court of appeal will
be entitled
to interfere with a trial Court's evaluation of oral testimony.”
[3]
[9]
The appeal therefore, insofar as the
conviction is concerned, cannot succeed.
[10]
As far as sentence is concerned I am
likewise not persuaded that the court below committed a material
misdirection or that the sentence
is disturbingly inappropriate. The
court duly considered the personal circumstances of the appellant.
The court also took into
account the seriousness of the offence and
the fact that the complainant was a defenceless victim of only eight
years of age. I
am further also in agreement with the submission that
the appellant misused his position of trust and took advantage of a
young
girl to satisfy his own sexual needs.
[11]
In light of the aforegoing I propose the
following order:
The
appeal against conviction and sentence is dismissed.
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered
_________________________
W
HUGES
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant
:
Adv. RS
Moeng
Instructed
by
: Pretoria
Justice Centre
For
the respondent
:
Adv. MJ van
Vuuren
Instructed
by
: The State
Attorney
[1]
See
R v
Dhlumayo and another
1948 (2) SA 677 (A).
[2]
1991 (1) SACR 198
(A).
[3]
Ar 198J – 199A.