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[2016] ZAGPPHC 962
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Kwatiso v S (A705/2015) [2016] ZAGPPHC 962 (1 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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THE
REPUBLIC OF SOUTH AFRICA
THE
REPUBLIC OF SOUTH AFRICA
3/11/2016
Case
no: A705/2015
In the
matter between:
VINCENT
KWATISO APPELLANT
and
THE
STATE RESPPONDENT
Heard: 20
October 2016
Delivered:
1
November
2016
JUDGMENT
Molahlehi
AJ
I
ntroduction:
[1] The
appellant in this matter was charged and convicted with the offences
of rape and housebreaking on 17 November 2014, in the
Regional Court
of Klerksdorp. The woman he was alleged to have raped was at the time
18
years old. He was sentenced to an effective
18
years imprisonment and declared unfit
to
possess a firearm.
[2] The
appellant has now launched these appeal proceedings after obtaining
leave to appeal on petition
to
do so on 6 August 2015. The appeal is against both the
conviction and the sentence.
[3] The
appellant was throughout the trial proceedings legally represented by
the
Legal Aid South Africa. He had pleaded not
guilty to both the charges
of
housebreaking and
the rape of the complainant, Ms M. R..
[4]
In support of its case the state relied on the evidence
of
two witnesses. The only evidence that is direct in relation
to
both offences is that of the complainant. I therefore do not
find it necessary
to
burden this judgment with the analysis of the evidence
of
the second
state
witness.
[5] The
complainant testified that the incidences that led to her laying
charges against the appellant occurred both during 17 November
2012.
On that day she went
to
bed round about 21H00 with both her boyfriend and their child
who at that stage was four months old. The three
of
them slept on the same bed.
[6] The
complainant testified that before sleeping she had checked
to
make sure that all
the
windows were closed
including the door. She locked the door with the shooter, which can
only
be
opened from the
inside. The three roomed house has only one door.
[7] At
the time of going
to
bed
the complainant was wearing a t-shirt and her panties. She testified
that she was drunk when she went to
bed.
She was woken up in the middle of
the
night by her crying baby. She discovered when she woke up that the
appellant was in the house standing next to the curtain and
next
to
the door. He enquired from her as
to
whether she was fine. He then unlocked the shooter of the door
and left.
[8] At
that stage the appellant discovered that she was not wearing her
panties and that she was wet, presumably from the semen
of the
appellant whom she claimed had raped her.
[9] After
the appellant left, she unsuccessfully tried to wake up her drunk
boyfriend. At about 2 am soon after the appellant had
left she went
to her sister who stays nearby. She informed her that she had been
raped. Her sister then called the police who took
her to the
hospital.At the hospital she was examined and specimen taken from
her.
[10] In
evidence in chief the appellant stated that she did not feel or see
the appellant having sex with her. She also firmly stated
that she
did not have sex with her boyfriend, which means that her boyfriend
could not have penetrated her that night, resulting
in her being wet.
[11]When
asked during cross examination how come she did not feel when the
appellant was on top of her, raping her, she said that
he penetrated
her from behind and that is why she could not feel it. She however
conceded that this was an assumption. When asked
further, why
she
could not feel when she was penetrated from behind she said it was
because she consumed alcohol. She disputed the possibility that
her
boyfriend may have had sex with her on that day.
[12] When
questioned further, how come she could not feel when she was
penetrated, she conceded that for the person to be able
to
penetrate her, she would have had to spread her legs wide open
for him to be able
to
penetrate
her. She finally conceded that if she was indeed raped whilst asleep,
she either would have heard, felt or noticed the
penetration.
[13] In
relation to the house breaking, the complainant, during cross
examination testified that she did not know how the appellant
entered
her house. She however, conceded that the shooter of her door can
only be opened from inside but could then not say how
the appellant
entered the house if the shooter was engaged.
Evaluation:
[14] In
my view there was insufficient evidence to convict the appellant on
both charges of housebreaking and rape.
[15] In
the case of housebreaking, the onus was on the state to prove beyond
reasonable doubt that the appellant had the intention
to break into
the house, and did so when he entered.
[16]There
is no evidence even on the version of the complainant that her house
was broken into by the appellant. Her version is
that when she woke
up in the middle of the night, to attend to her crying baby, she
suddenly saw the appellant standing next to
the curtains near the
door which at that stage was still locked from inside. The door
could, according to her,
as
stated earlier, only be unlocked from inside. She in this
respect provided no evidence as to how the appellant could be said to
have broken into the house when
the
door was
still locked and also there was no sign of any interference with the
windows.
[17]The
same applies to the charge of rape in that there is insufficient
evidence to have convicted the appellant on that charge.
The
complainant testified that she assumed that she was raped by the
appellant. She assumed that she was raped because when she
was woken
up by the crying baby she found that she was undressed
of
her panties and she was
wet.
[18]There
is no evidence that there was any semen found on her belonging to the
appellant. The DNA found on the blanket was not
sufficient evidence
to prove beyond reasonable that the appellant had raped her. All what
that evidence points to, is that the
appellant had slept on that
blanket.
[19]The
counsel for the state, correctly in my view, conceded during his
submission that there was no basis, on both charges, to
convict the
appellant.
[20] In
light of the above I found that ·the appeal stands
to
succeed.
[21] In
the premises the following order is made:
1.
The decision of the magistrate convicting the appellant for both
housebreaking and rape is set aside.
2.
The decision of the magistrate is substituted with the order to the
effect that:
i.
The appellant is found not guilty on both charges of housebreaking
and rape.
ii.
The appellant is acquitted on both the charges of rape and
housebreaking.
3.
The sentence of imprisonment of 18 years imposed on the appellant is
set aside. 4. The order declaring the appellant to be unfit
to
possess a firearm is set aside.
__________________________
M
OLAHLEHI
AJ
Acting
Judge of the Gauteng High Court
I agree
and it is so ordered
__________________________
PIENAAR
AJ
Acting
Judge of the Gauteng High Court
APPEARANCES:
APPLICANT:
Legal Aid
South Africa: Pretoria Justice Centre
RESPONDENT:
Director of Public Prosecution: Pretoria.