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[2015] ZAFSHC 110
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Phaliso v S (A223/14) [2015] ZAFSHC 110 (21 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number: A223/14
In
the appeal between:
SANDILE
PHALISO
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J et JORDAAN, J
JUDGEMENT
BY:
VAN ZYL, J
DELIVERED
ON:
21 MAY 201
5
[1]
The appellant appeared in the Regional Court, Bethulie, on a charge
of rape in terms of
Section 3
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 32 of 2007
. It was alleged
that on 10 July 2011 the appellant unlawfully and intentionally
committed an act of sexual penetration with
the complainant, K.M. M.,
a […..] year old girl, by penetrating her vaginally with his
penis. The charge was to be
read with
Section 51
and
Part 1
of
Schedule 2 of the
Criminal Law Amendment Act, 105 of 1997
.
[2]
The appellant was legally represented during the trial. He
pleaded not guilty to the charge and in his plea explanation
it was
indicated that the appellant denies that he raped the complainant and
that he furthermore has an alibi witness. He
was however
convicted as charged on 15 August 2012 and was sentenced to life
imprisonment on the same day. The appellant’s
appeal is
directed at both the conviction and the sentence with the leave of
the Court
a
quo
.
[3]
The complainant, who was […..] years old at the time of the
trial, testified with the assistance of an intermediary and
by means
of a close circuit television system. It should be mentioned
that it is apparent from her evidence that she was
[…] years
of age at the time of the incident and not […] years as stated
in the charge sheet. She testified that
on 10 July 2011, a Sunday,
she was watching a gospel television programme at the house of one
B.. After the programme had
finished at about 21h30, she walked
home alone. Whilst walking she realised that somebody was
following her. She tried
to run away, but her assailant
followed her, grabbed her from behind and closed her mouth with his
one hand. He then lifted
her up with his one hand over her
stomach just below her chest, whilst still closing her mouth with his
other hand, and then carried
her with her back towards his chest.
When they arrived at his home, he unlocked the door and without
putting any lights on
in the house, her assailant took her to his
bedroom and put her on his bed. He undressed her jeans and
underwear by pulling
it down to her knees. He then undressed
himself and had sexual intercourse with her. She asked him not
to do it, but
he still went ahead with his actions. After he
had finished and whilst he was getting dressed again, the complainant
got
an opportunity to run out of the house and ran to S.’s
house to ask for help.
[4]
After reporting to S. what had happened, S. said that they should go
to B.’s house where, on arrival, S. reported to B.
that the
complainant had been raped by Stokenyana (the defence admitted that
this is the appellant’s nickname). B.
suggested that they
should go and look for the appellant at the place where the appellant
goes to church. They did not find him
there, whereupon they all went
to the police station where they laid a charge of rape against the
appellant. The police immediately
went to fetch the appellant
and upon his arrival at the police station, the complainant was asked
to identify him, which she positively
did.
[5]
The following day, on 11 July 2011, she was taken to a clinic at
Trompsburg for examination. The J88, which clearly indicates
that the complainant had been vaginally penetrated considering the
fresh tears in her hymen, was handed in as exhibit “A”
by
agreement between the State and the defence.
[6]
M. C. K., also known as S., a […] year old woman, was also
called by the State as a witness. She confirmed that
at about
ten o’clock the evening of the incident the complainant arrived
at her house, crying, and reported to her that she
had been raped by
Stokenyana. The complainant also told her that she was from
B.’s house where she watched Gospel Time
on the television on
her way home when this incident occurred. The complainant
informed her that she had been raped at the
appellant’s
parental home. The witness then suggested that they should go
to B.’s house, which house is only
about five houses from that
of the complainant. She furthermore confirmed that the
appellant was identified by the
complainant at the police station as
the person who had raped her.
[7]
The appellant’s version was that he and two of his friends were
drinking at Jackson’s Tavern that evening until
22h45 after
which he went home. On his arrival he knocked on his sister’s
bedroom window, whereupon she opened the
door for him. Just
before they went to sleep, his sister requested him to bring her a
“vetkoek”. After
he gave her the “vetkoek”
he went to sleep, shortly after which he saw a light shining in his
face. It was the
police who came to arrest him. The
appellant denies that he raped the complainant.
[8]
The appellant’s sister who stayed with him at the time of the
incident, Mercy Noqaba Noasa, was called as a defence witness.
She
testified that on the night in question, she and her children were at
the house of her stepfather, known as Oupa. They returned
home at
19h00. After preparing something to eat at home, they
immediately got into bed because of the cold weather, but did
not go
to sleep as they waited for the appellant to come home. At
approximately 12h00 that night the appellant knocked on
the door of
the house and she asked her daughter to go and open the door for the
appellant. According to her the appellant
told her that he was
at the tavern and when he left the tavern, he went to Oupa’s
place, from where he came home. She
told him that there were
some fruit cakes and asked him whether he wanted any, whereafter he
took one and ate it whilst standing
in the doorway of her bedroom.
Before she fell asleep, she saw torch lights at her window and heard
a knock at the door.
It was the police. She did not go with the
appellant to the police station.
[9]
The crucial point of dispute in this matter is the identification of
the appellant as the complainant’s assailant.
The
complainant testified that there was a bright light outside the
appellant’s neighbour’s house and that she managed
to
turn her head to look her assailant in the face and due to the bright
light and the fact that the assailant did not try to hide
or cover
his face, she identified him is the appellant. She also
testified that the appellant has been known to her for a
very long
time as his parental house where he and his sister and his sister’s
children stayed, was only one or two houses
from her parental home.
The appellant in his own evidence confirmed that he and the
complainant have been very well known
to one another for many years.
It was also evident from his evidence that the complainant knows his
parental house very well
and his sister confirmed this, testifying
that the complainant often came to their house to play with her
children and to watch
television together. The appellant also
confirmed during his evidence that his next door neighbour has a
light outside his house
which shines up to the door of his own
house. The appellant even went further and testified that there
are also two flood
lights in the street. The complainant’s
sister during her evidence testified that the one flood light in the
street
shines bright into her bedroom at night.
[10]
It is apparent from the judgment of the presiding Regional Magistrate
that she was aware of the rules of caution applicable
in this
instance:
“
It
is so that the complainant is a single witness regarding the
allegation of rape itself. For that reason, plus the fact
that
she is a child, I do approach her evidence with the necessary
caution.”
[11]
The Court
a quo
in her judgment referred to the following
factors regarding the complainant’s identification of the
appellant:
11.1
The appellant was very well known to the complainant.
11.2
The house of the appellant was very well known to the complainant.
11.3
The scene next door to the complainant`s house, as well as at the
appellant’s house itself, were very well lit
by the light at
the neighbour’s house and also, apparently, by the flood lights
in the street.
11.4
The complainant explained how she turned her face backwards at the
stage when she identified the appellant as being her
assailant, in
circumstances where there was bright light, the face of her assailant
was not covered and she saw his face from a
very close distance.
11.5
Immediately after the incident when the complainant ran to S.’s
house for help, she cried and reported to S.e that
Stokenyana had
raped her.
[12]
Regarding the evidence of the appellant’s sister, the Court
a
quo
duly dealt with the contradictions between her evidence and that of
the appellant. These discrepancies were,
inter
alia
,
their evidence as to whether the appellant knocked at the door or at
the window of the house, which person opened the door for
the
appellant, where the appellant came from at that stage and the
circumstances surrounding the eating of the so-called “vetkoek”,
(which the appellant’s sister referred to as fruit cakes in her
evidence). The Court
a
quo
furthermore
referred to the fact that it is common cause that the complainant
knew the house of the appellant very well, including
the inside
thereof, and she testified that all the bedroom doors were open and
that she could see that there was no other occupant
in the house at
the time of the rape incident. The Court considered this
evidence of the complainant to not only be
credible, but also
reliable, especially in view of the evidence of the appellant’s
sister herself that the light from outside
aluminates her bedroom.
The Court
a
quo
consequently
rejected the evidence of the appellant`s sister.
[13]
In these circumstances the following conclusion by the Court
a quo
in her judgment can, in my view, not be faulted:
“
For
all the reasons I have given that I am satisfied that K. had enough
opportunity to see your face, to see your home and your
sister having
confirmed the set up in your house, I am satisfied that you are the
person who committed the offence. And accordingly
I find that
the State succeeded in proving its case beyond reasonable doubt
against you.”
AD
SENTENCE:
[14]
The Court
a
quo
found that there are no substantial and compelling circumstances
which justify the Court to deviate from the prescribed minimum
sentence of life long imprisonment. Mr Makheni, on behalf of
the appellant, indicated that it is his instructions that the
appellant’s personal circumstances constitute substantial and
compelling circumstances and that the Court
a
quo
erred in not finding as such.
[15]
The following personal circumstances of the appellant were taken into
consideration by the Court
a
quo
:
15.1
The appellant was 26 years of age at the time of sentencing;
15.2
The appellant is not married but has a minor child who was at the
time about […] months old;
15.3
At the time of his arrest, he was permanently employed as a
construction worker earning R150.00 per day;
15.4
The appellant had attended school up to Grade 9;
15.5
The appellant had spent 13 months in custody awaiting trial.
[16]
The appellant is not a first offender. He has one previous
conviction of assault and two previous convictions of housebreaking
with the intent to steal and theft. The Court
a
quo
correctly referred to the fact that both assault and rape involve the
violation of bodily integrity.
[17]
Regarding the impact of the rape on the complainant she herself
testified that she has “not (been) feeling well”
since
the incident. B. Matilda Motantsi was called as a witness by the
State during the sentencing proceedings. The complainant
and
her family are very well known to her and she basically assists in
looking after the complainant due to the illness of the
complainant’s
mother. She also knows the appellant very well. She
testified that as a result of the rape incident
the complainant
changed drastically. The complainant initially could not walk
properly nor eat properly. She became
withdrawn and isolated
herself. The witness even sought professional help by taking
the complainant to a clinic. Her
school work also deteriorated
to the extent that she did not pass Grade 6 at the end of 2011.
She also tells her friends
that they should not trust male persons,
because they are rapists. All these circumstances deteriorated
even more after the
complainant’s father passed away in August
2011, moreover so because her father had promised her that he would
take her to
doctors who would assist her in getting well again.
This witness also presented a letter from the school which the
complainant
is attending from which letter it is evident that her
school work deteriorated severely after the rape incident. This
letter
also states that the complainant prefers to be alone and tends
to act aggressive towards other learners. This letter was
received in evidence as exhibit “C”.
[18]
In her judgment on sentence the Court
a
quo
correctly also referred to the further aggravating factors:
18.1
The appellant and the complainant knew one another very well and the
appellant was in a position of trust towards the
complainant.
18.2
The appellant has shown no remorse throughout the proceedings.
18.3
The seriousness of the offence and the its prevalence in the area of
jurisdiction of the Court.
18.4
The appellant continued with his conduct despite the complainant`s
plea that he should not do it to her.
18.5
The appellant did not use a condom.
[19]
The Court
a
quo
consequently found that the minimum sentence is the only just and
appropriate one under these circumstances.
[20]
Having regard to all of the abovementioned factors, I can find no
justification to interfere with the Court
a
quo
’s
finding that there are no substantial and compelling circumstances
which justify a deviation from the prescribed minimum
sentence of
life imprisonment.
ORDER:
[21]
The appeal against both the conviction and the imposed sentence is
dismissed.
___________________
C.
VAN ZYL, J
I
concur:
___________________
A.F.
JORDAAN, J
On
behalf of the Appellant:
Adv. J.S. Makhene
On
instructions of:
Justice
Centre
BLOEMFONTEIN
On
behalf of the Respondent: Adv. L.
Zweni
On
instructions of:
Office of the Director:
Public Prosecutions
BLOEMFONTEIN