About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 103
|
|
Polorie v S (A43/2014) [2015] ZAFSHC 103 (4 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT,
BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A43/2014
In
the appeal between:
THUSO
VICTOR POLORIE
Appellant
and
THE
STATE
Respondent
CORAM:
JORDAAN,
J
et
MBHELE, AJ
JUDGEMENT:
MBHELE,
AJ
HEARD
ON:
4 MAY
2015
DELIVERED
ON:
4 JUNE 2015
[1]
On 27 January 2014 the Appellant, who was legally represented,
appeared before the Regional Court Welkom, and was convicted
of rape
and assault with intent to do grievous bodily harm. He was,
thereupon, sentenced to 10 years and 4 years direct imprisonment
on
the respective charges which sentences were ordered to run
concurrently.
[2]
He feels aggrieved by both the convictions and sentence and now
approaches this court on appeal against the same after leave
to
appeal was granted by the trial court.
[3]
On convicting the Appellant, the trial court effectively rejected the
Appellant’s version as not reasonably and possibly
true. The
court below, further accepted the identification evidence of the
complainant with the circumstances surrounding the events
of that
night. The trial court, furthermore, accepted the medical evidence
that confirmed that the complainant was assaulted and
that sexual
intercourse did take place on the complainant.
[4]
Upon imposing the sentences, the court below found that there are
substantial and compelling circumstances to justify a departure
from
the life sentence prescribed by Act 105 of 1997 (the minimum
sentences Act 105 of 1997) for rape of a minor and ten years
minimum
sentence for assault with intent to do grievous bodily harm.
[5]
In the notice of appeal and the heads of argument as well as
submissions before us the Appellant assails the convictions on
the
grounds that the complainant was a single witness and the court
a
quo
erred by not approaching her evidence with caution. Ms Kruger,
appearing for the Appellant, further, submits that the trial court
erred by not rejecting the evidence of the complainant and her cousin
which was marred with serious contradictions. It is,
furthermore, contended on behalf of the Appellant that the fact that
the complainant waited a considerable time to report the matter,
affected her credibility and reliability.
[6]
The State supports both the convictions and the sentences according
to Mr Mohlala, who contends that the complainant’s
evidence was
satisfactory in all material respects and that she did not contradict
herself in any manner. It is, further, submitted
for the State that
the reason the complainant did not immediately inform her mother
about the rape, was because she was still young
and afraid to tell
her mother that she was at a tavern when she was assaulted and raped,
a place not suitable for children her
age.
[7]
The factual dispute between the parties which had to be determined by
the trial court was effectively whether or not the Appellant
was the
one who assaulted the complainant and had sexual intercourse with her
on the night in question. The State’s version,
as presented by
the complainant, was that the latter who was 14 years old at the time
of the incident was at the tavern in company
of her cousin, drinking
alcohol. The Appellant was also a patron at the tavern on the night
of the incident. At some stage,
on the said night, she
went outside to answer a phone call from her father. On her way
outside she met with the appellant
who later called her and told her
to come and see something. The Appellant pulled her by her hand to
the back of the tavern where
he instructed her to undress and when
she enquired as to why she must undress, he pulled her belt from the
pants she was wearing.
She
fought back and scratched the Appellant on the chest, he then hit her
with a fist on the eye and she fell to the ground. While
on the
ground the Appellant put his feet on her head and pressed her down on
the same eye that he hit. The Appellant then undressed
her and
penetrated her vagina with his penis. After he had finished raping
her he left leaving her weak and unable to walk. As
she was crawling,
three unknown girls came to her assistance and took her home. When
she got home her mother noticed an injury
on her eye and asked her
who did that to her and she said it was the Appellant. Her mother
examined her genitals and called the
police. She went to the Police
Station in the morning and reported that she was assaulted and raped
by the Appellant.
[8]
K. E. M., who is the complainant’s cousin, testified to the
effect that she saw the Appellant pulling the complainant
while they
were at the tavern. She mentioned that the complainant was crying and
tried to pull her away from the Appellant and
the latter kicked her.
She left both the Appellant and the complainant at the tavern and
went home. She confirms that they consumed
alcohol. She denies that
the reason the complainant went outside was because she had to answer
a phone call but that the security
officer at the tavern noticed that
they were minors and chased them away.
[9]
M. M. T., the complainant’s mother confirms that the
complainant’s eye was swollen. She further testified
that
she was bleeding from her mouth and that she noticed sperms on her
thighs when examining her. The complainant only told her
in the
morning that she was raped by the Appellant.
[10]
The Appellant denies ever having had sexual intercourse with the
complainant. He confirms that on the date in question he was
at the
tavern and saw the complainant. He told the complainant he liked her
to which she responded in the affirmative. They thereafter
kissed. He
had plans to leave with the complainant later, so they could spend
the night as his place.
[11]
Mrs Kruger contends that the contradictions between the evidence of
the complainant and that of her cousin are so material
that the
complainant’s evidence must be rejected.
[12]
It is however clear from the evidence that the complainant and her
cousin corroborated each other on material aspects. She
observed the
Appellant assaulting the complainant.
[13]
It is also not disputed that the complainant sustained injuries on
her left eye, mouth and her buttocks. It is, further, not
disputed
that sexual intercourse occurred on the complainant that night.
[14]
It is trite that the Appeal Court will not interfere with the factual
findings of the trial court unless they are shown to
be wrong. The
trial court’s acceptance of oral evidence of witnesses and its
findings thereon are presumed to be correct
in the absence of
misdirections on its part. (See
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) and
S
v Francis
1991 (1) SACR (A at 204 (-R).
[15]
There is nothing before us to show that the trial court misdirected
herself in her factual findings, evaluation of oral evidence
and
acceptance thereof.
[16]
Although the complainant did not at the first available opportunity
tell her mother that she was raped, she did tell
her that the
appellant is the one who inflicted the visible injuries she
sustained, immediately when she got home. The Appellant
just denied
the allegations. The trial court was correct in rejecting the
Appellant’s version as false.
[17]
The Appellant feels that there was unlawful splitting of charges or
duplication of convictions. It was argued on behalf of
the Appellant
that assault is a means to the end result in a rape offence. It is my
view that assault with intent to cause grievous
bodily harm is a
distinct offence with its own elements, different from the elements
of rape. Evidence necessary to prove the charge
of assault with
intent to do grievous bodily harm does not necessarily prove the
elements of rape.
[18]
It was not necessary for the Appellant to assault the complainant in
order for him to subject her to rape. I am of the view
that the
convictions on the two charges are not unjust. (See
S
v Whitehead and Others
2008 (1) SACR 431
(SCA).
[19]
Sentencing is pre-eminently in the discretion of the trial court.
The sentences can only be interfered with if the sentencing
court
exercised its discretion unreasonably or in circumstances where
sentences are adversely disproportionate. (See
S
v Pieters
1987 (3) SA 717
(A) at 727.)
[20]
The trial court, when sentencing the appellant found that there were
compelling and substantial circumstances to justify a
deviation from
the sentences as prescribed by the law. When weighing up the
mitigating factors against the aggravating circumstances
in this
matter, as well as the interests of the community, I am not persuaded
that the sentences imposed in this matter are unjust.
ORDER
[21]
Wherefore I make the following order:
1.
The
appeal fails on both count 1 and 2 and the convictions and sentences
are confirmed.
_________________
N.
M. MBHELE, AJ
I
concur
________________
A.
F.JORDAAN,
J
On
behalf of the appellant: Ms. S. Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
Justice Centre
On
behalf of the respondent: Adv. M. A. Mohlala
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN