About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 334
|
|
Dire v S (A343/2010) [2015] ZAGPPHC 334 (24 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OP SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:A343/10
DATE: 24 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
MOTHIBEDI PAUL
DIRE
.....................................................................................................
APPELLANT
and
THE
STATE
...........................................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 09
MARCH 2015
JUDGMENT ON: 24
MARCH 2015
KUBUSHI, J
1.
On 23 October 2008, the appellant pleaded not guilty in the regional
court, Klerksdorp on one count of rape. He was, however,
found guilty
and a sentence of 12 years imprisonment was imposed. The appellant
applied for condonation for the late filing of
his notice of appeal
and the application was refused. The appellant then petitioned the
high court for leave to appeal on both
conviction and sentence but
leave to appeal was granted in respect of sentence only. At the
hearing of the appeal on sentence the
matter was postponed
sine
die
to
give him an opportunity to apply for leave to appeal in respect of
the refusal of leave to appeal on conviction. Eventually leave
to
appeal was granted in respect of conviction as well as sentence by
the Supreme Court of Appeal. The appellant is thus before
us on
appeal against both conviction and sentence.
2. The appellant was
legally represented throughout the trial.
3. The complainant’s
testimony is that on the night in question she had been to a certain
tavern. Sun City tavern, in town.
Later, between 22hOO and 23hOO,
when she was on her way home in Jouberton location a friend of hers,
Skattie, whose boyfriend had
a motor vehicle, offered to take her
along. This was a private motor vehicle but the owner normally uses
it as a taxi late at night
when the taxis are no longer available.
She paid a fare of R15 for the trip. In the motor vehicle she found
the appellant who was
unknown to her at that time. Along the way she
informed the driver to drop her in extension 12. She stays in
extension 12 together
with her boyfriend. When they reached the
location, the driver informed her that he would not be able to take
her to extension
12 as it was far. She then asked to be dropped in
Bosman where her parents stay. This was too far for the driver as
well. It was
at this stage that the appellant offered to escort her
to Bosman. Sfeattie assured her that she would be safe with the
appellant.
The two, that is, the complainant and the appellant
alighted at Five Stop. She walfeed with the appellant towards the
direction
of Score Supermarbet. Unbeknown to her, this was the street
where the appellant’s house was. When they came to a certain
house the appellant indicated that it was his house and that he was
to fetch something which he can use to defend himself. The appellant
invited the complainant to come in with him but she declined and
opted to wait for him outside. It was at that point when her cell
phone rang - it was her boyfriend asking about her whereabouts.
Whilst she was talking to the boyfriend, trying to explain where
she
was, the appellant grabbed the phone and put it in his pocket. He
then manhandled the complainant by throttling her and pulled
her into
a shack that was on the premises where he raped her. She screamed and
the appellant struck her twice with a fist on the
face. The appellant
also closed her mouth with a blanket to muffle the screams.
4. After the ordeal
she dressed and left the shack. As she was walking out of the shack
she noticed a woman from a neighbouring
house looking at them. The
woman rushed into her house when she realised the appellant might see
her. The complainant became aware
that the appellant was following
her. When they exited the gate she saw a motor vehicle coming down
the road. She rushed into the
road to stop the motor vehicle. The
motor vehicle stopped and she told the driver that the appellant
raped her. There were two
people in the motor vehicle. She did not
know the driver but recognised the passenger, Buti, who she knew by
sight. When the motor
vehicle was about to leave the appellant gave
her back the cell phone. She was taken to the police station where
she laid a charge
of rape against the appellant. It turned out that
the driver of the motor vehicle was a police officer. She was also
taken to hospital
where she was examined.
5. During the rape,
the complainant lost some personal belongings, namely, a watch,
earrings, necklace and a pony tail hair piece.
She went with the
police back to the appellant’s shack to look for them but did
not find them. The appellant was later arrested.
6. The appellant
admitted having sexual intercourse with the complainant but said it
was with her consent. His testimony is that
he was in the company of
a friend at the same tavern where the complainant was on the night in
question. When his friend left,
Skattie, a lady he knew from the
location, invited him to join the table where she was sitting with
her boyfriend and the complainant.
The complainant went to the
bathroom and left her handbag with him. Later the complainant invited
him to dance with her. As they
were dancing the complainant was
embracing him with both hands. After they finished dancing, the
complainant ashed him to buy her
liquor, which he did. While they
were sitting there and consuming the liquor, the complainant embraced
and kissed him and told
him that she loved him. When he wanted to
leave because it was late and he was afraid that he might miss the
transport going to
the location, Skattie offered him a lift in her
boyfriend’s motor vehicle. He, as a result, left the shebeen in
the company
of the complainant, Skattie and the boyfriend to Skattie.
In the car the complainant indicated to Skattie that she was going
with
the appellant. The driver of the motor vehicle dropped him and
the complainant at the gate of his premises. The complainant never
asked to be taken to extension 12. He denied that there was any fare
paid for the trip or that the complainant asked to be dropped
in
extension 12.
7. When they reached
the appellant’s place, the appellant asked the complainant to
wait at the gate while he checked whether
his parents were still
awake. Upon his return they both went into his shack where they had
sexual intercourse. After they left
the shack the complainant’s
cell phone rang. It was her husband enquiring about her whereabouts.
The appellant accompanied
the complainant. As they left the premises
a motor vehicle stopped next to them. There were two men in the motor
vehicle. The passenger
alighted from the motor vehicle, came rushing
towards them, referring to the complainant as a ‘bitch’
and hit her with
a fist. The driver alighted and pointed a firearm at
the appellant. The complainant left with the two men. He was arrested
later
on his way to the police station to report a charge of being
pointed with a firearm.
8. The trial court
called inspector Johannes Manamela (Manamela), the police officer who
picked up the complainant along the road
and took her to the police
station, as a court witness. Manamela corroborated the version of the
complainant regarding her evidence
relating to flagging down the
motor vehicle he was driving that night. Manamela confirmed that the
complainant reported the rape
to him. Buti was also in his company at
the time. When the complainant approached she seemed to be in shock
and confused. She threw
herself in the motor vehicle before they
could even say she should come in.
AD CONVICTION
9. The submission by
the appellant is that the state did not prove its case beyond
reasonable doubt and that the version of the
appellant is reasonably
possibly true.
10. The appellant’s
submission is based on the fact that the evidence of the complainant
being a single witness was not corroborated
in that the state failed
to present the evidence of Skattie and her boyfriend; the
complainant’s boyfriend; the doctor who
examined her after she
was raped; the woman neighbour who the complainant testified she saw
as she was leaving the appellant’s
shack and/or Buti, who was a
passenger in the motor vehicle that took the complainant to the
police station and who the complainant
said she knew.
11. The issue to be
determined is whether the state has proved its case against the
appellant beyond reasonable doubt and whether
the trial court ought
to have found the version of the appellant to be reasonably possibly
true.
12. It is not a rule
of law or practice that requires a court to find corroboration
implicating an accused person, but what is required
is for a court to
warn itself of the peculiar danger of convicting on the evidence of a
single witness and seek some safeguard
reducing the risk of the wrong
person being convicted, and such safeguard need not necessarily be
corroboration.
13. In this
instance, the complainant was a single witness insofar as the
commission of the offence is concerned. It is trite that
a court may
convict on the evidence of a single witness as is provided in s 208
of the
Criminal Procedure Act 51 of 1977
.
14. The trial court
was not obliged to seek corroboration of the complainant’s
evidence. It only had to look for a safeguard
which would reduce the
risk of wrongful conviction. It sought and found such safeguard in
the evidence of the complainant. When
analysing the evidence of the
complainant, the trial court was aware that the complainant was a
single witness and approached her
evidence with the caution required
in law. It satisfied itself, correctly so in my view, that the
complainant was a credible and
reliable witness and accepted her
version as truthful. This is so because the evidence of the
complainant was straight forward
and clear. There were no
discrepancies or contradictions. As stated by the trial court in its
judgment, she withstood an extensive
cross examination and did not
falter an inch.
15.
It is established law that a court of appeal rarely interferes with
the credibility findings of a trial court. The powers of
a court of
appeal to interfere with the credibility findings of a trial court
are limited. In the absence of any misdirection the
trial court’s
conclusion, including the acceptance of a witness’ evidence, is
presumed to be correct on the basis that
the trial court had the
advantage of seeing, hearing and appraising a witness.
1
There being no misdirection by the trial court in this instance, the
credibility findings must stand.
16.
The nature of corroboration required for the purpose of the
cautionary rule, should be corroboration implicating the appellant
in
the commission of the offence and not merely corroboration in a
material respect or respects.
2
17. The contention
by the appellant’s counsel that the state should have called
the persons stated in paragraph 10 of this
judgment to corroborate
the evidence of the complainant is unfounded. Except for Buti and the
doctor, it would have been pointless
for the state to call the other
persons as witnesses because their evidence would not have
corroborated the complainant’s
evidence in implicating the
appellant in the commission of the offence.
18. Of the persons
mentioned in paragraph 10 of this judgment, the doctor and Buti are
the only ones who saw the complainant after
she was allegedly raped
by the appellant. A negative inference against the state for failing
to tender the evidence of Buti, as
called for by the appellant’s
counsel is unwarranted. Buti was in the company of Manamela at the
time they met the appellant
and the complainant and in all
probabilities what he would testify would be the same as what
Manamela testified. There was no need
for the state to call a witness
whose evidence would have been the same as that of another witness.
Even though the medical report
might have corroborated the
complainant’s evidence, the fact that such evidence was not
tendered is not fatal to the state’s
case.
19.
By corroboration it is meant other evidence which supports the
evidence of the complainant and renders the evidence of the accused
less probable on the issues in dispute.
3
20. The trial court
found such support in the evidence of Manamela. Manamela was an
independent witness in as far as the commission
of the offence was
concerned. The evidence of Manamela corroborated that of the
complainant in that it implicated the appellant
in the commission of
the offence. Manamela saw the complainant immediately after the
commission of the offence. The complainant
stopped him by getting
into the road and immediately after he stopped, the complainant
reported that the appellant, who was with
her at the time, raped her.
The complainant told him also that the appellant took her cell phone
and indeed the appellant produced
the cell phone and handed it to
him.
21. He testified
that the complainant 'appeared a shocked person’ and confused
showing that she was looking for assistance.
Manamela took the
complainant to the police station where she reported the rape.
22. The contention
by the appellant that Manamela did not relate the story himself but
was led by the trial court is misconceived.
It is evident from the
record that the trial court only laid a basis for Manamela to
understand why he was in court. Manamela related
most of the story
himself. For instance, most importantly, the trial court did not
remind him how the complainant stopped him,
that is, by running into
the road or remind him about the cell phone which the complainant had
testified that the appellant took
from her and that he handed it over
to Manamela.
23.
As is trite the
onus
to
prove the guilt of the appellant is on the state. The state must
prove its case against the appellant beyond reasonable doubt.
There
is no
onus
of
the appellant to prove his innocence. In order to be acquitted his
version need only be reasonably possibly true.
24. The trial court
having accepted the version of the complainant as truthful, it had to
reject that of the appellant. The complainant’s
version was
further fortified by the evidence of Manamela which rendered the
version of the appellant less probable.
25. The evidence of
the complainant corroborated by that of Manamela who I have already
stated was an independent witness, makes
the appellant’s
version that he had sexual intercourse with the complainant by
consent, less probable. The manner in which
the complainant ran into
the road to stop Manamela's motor vehicle, that is, she threw herself
into the path of travel of Manamela’s
motor vehicle with scant
regard for her safety; and also throwing herself into the motor
vehicle before it could be said that she
should go in is indicative
of a person who was in flight and in trouble. Her evidence is that
the appellant was following her.
This, the appellant also confirms.
The first thing she says to Manamela is that she has been raped and
indeed she proceeds to the
police station where she lays a charge of
rape against the appellant. Manamela’s unchallenged evidence is
that the complainant
appeared to be in shock and was confused.
Manamela is a police officer and had no reason to implicate the
appellant in the commission
of this offence. The appellant’s
counsel also conceded when a question was put to her from the bench
that nothing can be
taken away from Manamela’s evidence. The
fact that Manamela did not arrest the appellant when the complainant
reported the
rape to him should not be held against the complainant.
26. The suggestion
by the appellant’s counsel that the two were found in an
uncompromising position by Manamela and Buti does
not convince me
otherwise.
27. On the reasons
stated above the appeal must fail.
AD SENTENCE
28. The charge
against the appellant was read with s 51 (2) of the Criminal Law
Amendment Act No. 105 of 1997 (the Act). The said
section provides
for the imposition of a minimum sentence of ten (10) year’s
imprisonment in respect of a first offender
unless there are
substantial and compelling circumstances warranting deviation from
such a sentence.
29. In this
instance, the trial court considered the traditional factors which a
court should consider when imposing sentence, like
for example, the
personal circumstances of the appellant, the seriousness of the
offence and the interest of society. It also took
into account the
aim of punishment being prevention, rehabilitation, retribution as
well as deterrence. In aggravation of sentence
it considered that the
appellant deceived the complainant by undertaking to escort her to
her parental home while knowing that
he intended to rape her. The
trial court also took into account the fact that the appellant hit
the complainant twice with a fist.
It came to a conclusion that there
are no substantial and compelling circumstances warranting deviation
from the prescribed sentence,
and sentenced the appellant to twelve
(12) years imprisonment.
30. The appellant
was a first offender and in terms of s 51 (2) of the Act, the trial
court ought to have sentenced him to an effective
period of ten (10)
years imprisonment. The trial court does not state any reasons in its
judgment why it found it necessary to
impose a sentence of twelve
(12) years imprisonment instead of ten (10) years imprisonment which
is the prescribed minimum sentence.
Having perused the record I could
find no reason why such a sentence was imposed. The respondent’s
counsel is also of the
view that without providing any reasons why
such a sentence was imposed, the trial court erred in imposing that
sentence.
31. Whilst
sentencing is the prerogative of the trial court, in this instance,
however, the trial court did not exercise its discretion
properly and
the sentence should be revisited by this court.
32. The submission
by the appellant is that the facts of this case do not take this case
out of the ordinary. According to the appellant,
the trial court
failed to apprise the defence that it was contemplating imposing a
higher sentence than the minimum sentence. The
trial court also
failed to consider proportionality and to compare this case with
other similar cases in order to avoid a disparity
of sentences. The
trial court seemingly was of the view that the fact that the
appellant hit the complainant with a fist justified
the imposition of
an additional two (2) years of imprisonment. There is no evidence of
serious injuries inflicted on the complainant
and no medical evidence
of any serious injuries was handed in, so the argument goes.
33. The appellant’s
contention is that in the circumstances of this case, we should find
that the imposition of the sentence
by the trial court would lead to
an injustice and as such deviation from the prescribed minimum
sentence as is required. Counsel
for the appellant, as he argued,
suggests a sentence of eight (8) years imprisonment to be fair and
just in the circumstances of
this case.
34. Although the
respondent in its heads of argument argued for the dismissal of the
appeal on sentence on the basis that the sentence
imposed by the
trial court is commensurate with the gravity of the offence and does
not in any way evoke a feeling of shock, however,
before us, the
respondent’s counsel concedes that the sentence imposed is
inappropriate and should be tempered with. Counsel
proposes that a
sentence of nine (9) years imprisonment be imposed.
35.I am, therefore,
of the view that the appeal on sentence should succeed and an
appropriate sentence of eight (8) years imprisonment
would be fair
and just in the circumstances of this case.
36. In the premises
I would propose to make the following order:
a. The appeal on
conviction is dismissed.
b. The conviction of
the trial court is confirmed.
c. The appeal on
sentence succeeds and the sentence of the trial court is set aside
and substituted by the following:
“
The
accused is sentenced to eight (8) years imprisonment and in terms of
section 103 of the Firearms Act No. 60 of 2000 the accused
is
declared unfit to possess a firearm.”
d. The sentence is
in terms of
section 282
of the
Criminal Procedure Act No. 51 of 1977
,
ante-dated to 23 February 2009, that is, the day on which the
sentence was imposed.
E. M. KUBUSHI,
JUDGE OF THE HIGH
COURT
I concur and it is
so ordered
M.W.MSIMEKI,
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
appellant: Adv. LA VAN WK
Instructed by:
PRETORIA JUSTICE
CENTRE
2
nd
Floor
FNB Building
206 Church Street
PRETORIA 0001
On behalf of the
respondent: Adv LA. MORE
Instructed by:
DIRECTOR OF
PUBLIC PROSECUTIONS
Presidential
Building
28 Church Square
PRETORIA 0001
1
See
S v Francis
1991 (1) SACR 198
(A).
2
See
Mulovhedzi v The State (257/13)
[2013] ZASCA 201
(2 December 2013)
para 13
3
See
S v Gentle
2005 (1) SACR 420
(A) at para [18].