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[2016] ZAGPPHC 454
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Sithole v S (A575/2015) [2016] ZAGPPHC 454 (15 June 2016)
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IN
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case Number: A575/2015
15/6/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
EUSEBIO
SITHOLE Appellant
And
THE
STATE Respondent
Coram:
HUGHES J
JUDGMENT
HUGHES J
1. The appellant was
convicted in the Regional Court Benoni on one count of rape and
sentenced to 18 years' imprisonment.
2. The appellant was
legally represented at the trial and leave was granted by the trial
court against the conviction.
3. The appellant who
pleaded not guilty to the charge preferred was accused of sexually
penetrating an 11 year old girl, N. M.,
without her consent. The
sister of the complainant, A., who was the appellant's girlfriend
lived together in a shack. On 22 December
2013 whilst at her sister's
shack, the complainant and the appellant left and proceeded by way of
a taxi to Daveyton mall in order
to purchase clothes for the
complainant. At the mall the appellant was unable to obtain the size
of clothing to fit the complainant
and instead he bought her a hair
cloth and balls.
4. The complainant's
testimony is that they returned to the shack on foot and on their way
home they had to pass through a veld.
Whilst in the veld the
appellant wanted to rape her and attempted to undress her. She states
that she managed to run away, but
the appellant called upon two boys
to apprehend her, which they did and brought her back to him.
Thereafter they too ran away.
5. The appellant
undressed himself by removing his trousers and jockey. He thereafter
took out his penis. He also undressed the
complainant by removing her
panty, made her lie down on the ground and inserted his penis into
her vagina.
6. During the course of
their walk home after the rape the appellant tried to give the
complainant intoxicating liquor which she
first refused but after a
while she succumbed.
7. On arrival at the
shack the appellant used an iron to open the door. The complainant
testified that he tried to rape her yet
again. She was saved by the
arrival of two priests who arrived at the shack. They circumvented
the rape from occurring and their
arrival allowed the complainant
passage to escape. She ran to the neighbours whilst the appellant
attended to the two priests.
According to the priest he did so with
his zip of his trousers not pulled up.
8. The appellant's
version was that A. drank too much alcohol and she did not appreciate
that he restricted her. Further, the two
priests who arrived at the
shack were boyfriends of A. that is why they assaulted him. He
reasons that A. was using the complainant
to fonnulate the charge
against him as she was having a relationship with the two priests.
9. The medical evidence
of the doctor who examined the complainant after the incident was
conclusive that the injuries sustained
by her were consistent with
penetration or sexual assault.
10. It was argued on
behalf of the appellant that the complainant advanced different
versions in her testimony. The State place
reliance on S
v Mkohle
1990 (1) SACR 95
(A)
where the court said that "contradictions
per se do not lead to rejection of a witness' evidence: they may
simply be Indicative
of an error".
11. The State argued
further that the contradictions were not fatal and even in the face
of these contradictions the magistrate
accepted that the evidence
proved beyond a reasonable doubt that the appellant had committed the
crime. Likewise with the argument
raised by the appellant in respect
of the contradictions between the evidence of the two priests. The
State argued that these witnesses
narrated the events as they saw
them unfold from their individual perspectives.
12. It is trite that an
appeal court will only interfere with the findings of fact of the
trial court if the trial court has misdirected
itself in reaching a
conclusion and the evidence shows clearly that it was wrong in its
finding. Only in exceptional circumstances,
such as the appellant
convincing the appeal court that the acceptance of a witnesses
evidence was wrongly accepted by the trial
court, could a
justification of interference arise. However, in convincing the
appeal court mere reasonable doubt will not suffice
as the trial
court was at an advantage of seeing, hearing, and appraising the
witness to reach a conclusion on the evaluation of
the oral
testimony. See
Kekana v The
State
(581111) {2012]
ZASCA
75 (25 May 2012) at para [BJ,
S
v Monyane
&
others
2008 (1) SACR 543
(SCA) .at para [15];
S
v Francis 1991(1)
SACR 198 (A) at
2046.
13. In my view the
medical evidence is in keeping with the complainant's evidence that
she had been raped. Further the two priests'
version of what they
observed of the complainant and the appellant in the veld and walking
towards the shack. Their observation
of the appellant forcing the
complainant to drink alcohol, the manner in which he held and touched
the complainant, urged them
to follow the appellant to the shack. The
priests' testimony of the use of an iron by the appellant to force
open the door of the
shack and the complainant fleeing from the shack
to the neighbours corroborates the evidence of the complainant in
material respects.
14. I must at this stage
highlight that the complainant though a single witness was consistent
and stood her ground when her version
was tested. To my mind the
contradictions in her evidence were not material at all. In fact the
main aspect of her testimony was
corroborated by the evidence of the
two priests as Ihave stated above.
15. Turning to the
appellant's evidence. Even though he started out by denying the
evidence against him he ended up making valuable
concessions that
indeed he was drinking wine on the day in question. This is in line
with the complainanfs evidence that he was
drinking wine, that he
gave her alcohol to drink and that the priests witnessed him
drinking. It is therefore not far-fetched to
conclude that the
priests saw him give the complainant wine to drink which would
corroborated the testimony of the complainant.
16. His explanation of
the two priests appearing at his shack because they were in a
relationship with A. is just unsubstantiated,
far-fetched and
improbable. Likewise is the appellant's version that the complainant
was influenced by A. to say that she was raped
because A. was not
happy with the restrictions he had placed 0n her drinking habits.
17. Cumulatively on the
facts and evidence I cannot find any misdirection by the learned
magistrate in accepting the evidences of
the witnesses in the face of
the non-material contradictions in reaching the conclusion that it
did regarding the conviction. I
further conclude that the appellant
did not demonstrate that this is an instance where exceptional
circumstances warrant this court
to interfere with the evaluation of
the testimony of the witnesses.
18. In the result I make
the order below:
The appeal against the
conviction is dismissed.
It is so ordered.
________________________
W HUGHES
Judge of the High Court
Gauteng, Pretoria
I concur
________________________
AC BASSON
Judge of the High Court
Gauteng, Pretoria
Date of hearing: 06 June
2016
Date delivered: 15 June
2016
Attomeys for the
Appellant: Adv M Koos-Monyakane
Telephone: 0847425380
Attomey for the
Respondent: Adv M J Nethononda
Telephone:0123516700