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[2015] ZAFSHC 112
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Solo v S (A225/2015) [2015] ZAFSHC 112 (11 June 2015)
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Certain
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IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A255/2014
In
the appeal between:
THABO
DAVID SOLO
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI,
J et MBHELE, AJ
JUDGEMENT:
MBHELE,
AJ
HEARD
ON:
13
APRIL 2015
DELIVERED
ON:
11
JUNE 2015
[1]
On 23 August 2013 the appellant was convicted by the Regional
Magistrate sitting at Wesselsbron on three counts of rape.
On
the 27
th
August 2013 he was sentenced as follows:
i.
Count
1: Life imprisonment;
ii.
Count
4: Life imprisonment;
iii.
Count
5: 10 years’ imprisonment.
[2]
The appellant had automatic right to appeal in respect of counts 1
and 4. Leave to appeal was not sought in respect of
count 5.
An application was made at the beginning of the proceedings for
condonation of the failure to bring an application
for leave to
appeal and for the court to hear the appeal in respect of count 5.
Condonation was granted and the appeal was
heard on all 3 counts.
[3]
The appellant pleaded not guilty on all three counts. Both Mr
Reyneke, on behalf of the appellant, and Mr Mlotshwa, on
behalf of
the respondent, were
ad
idem
that the convictions are unassailable.
Mr
Reyneke submitted that the fact that the appellant did not testify to
refute evidence brought by the state caused damage to the
appellant’s
case.
[4]
The appellant assails the conviction on the basis that:
(i) the court
a
quo
erred in finding that the state has proved its case beyond
reasonable doubt;
(ii)
the court
a
quo
erred in not accepting the appellant’s version.
[5]
The evidence tendered by the state in support of count 1, was to the
effect that the complainant, N. M. H., was in the street
with her
boyfriend when two male persons accosted them. She and her
boyfriend went in different directions and the two male
persons
followed her up to her grandmother’s house. At her
grandmother’s house they grabbed her and dragged her to
a shack
where they took turns to penetrate her vaginally. The appellant
was one of her assailants. The incident happened
at night and
she was able to identify the appellant. According to her the
appellant was dressed in a khakhi overall and had
a multi coloured
hat with red stripes on his head.
[6]
The complainant’s boyfriend testified to the effect that before
meeting with the complainant, he had been at Maruti tavern
where he
enjoyed beer with his four friends. They all shared six quarts
of beer. While in the street with the complainant,
three male
persons walked pass them, they quickly took a turn towards him and
the complainant. One of them was armed with
a knife. The
one with the knife walked towards him while the other two gave chased
the complainant. One of the people
who chased after the
complainant was the appellant, whom he had known since childhood and
played soccer with for many years.
On the night of the incident
he was wearing a Dickies shirt and pants, green or greyish in colour.
[7]
Under cross-examination it emerged that both the complainant and her
boyfriend told the police in their statements that they
were attacked
by unknown males. The complainant stated the following in her
statement given to the police after the incident:
“
I
did not see the suspects and I would not be able to identify them as
they all the time bent my head downwards so that I would
not see
them. They also covered my face with a blanket during rape.”
[8]
The complainant’s boyfriend who in his evidence in court
mentioned that he knew the appellant since childhood, told the
police
that they were accosted by three unknown males.
[9]
Our courts have repeatedly stated that the evidence of identification
must be approached with caution. Such witness must
not only be
honest but must be reliable. It is generally accepted that even
the most honest witnesses may make honest mistakes
with
identification, owing to circumstances surrounding the specific
incident. See
S
v Sauls
1981 (3) SA 172
AD at 180e- g.
[10]
It is, in my view, clear from the testimony of both the complainant
and her boyfriend that at the time of reporting this incident
they
both failed to give full account of who their assailants were.
It is not conceivable why the complainant’s boyfriend
who had
known the appellant for over eight years would describe him as an
unknown male person when giving his statement to the
police.
[11]
With regards to discrepancies between the complainant’s
evidence and that of her boyfriend, the trial court felt that
there
is no reason to attach much weight to such discrepancies as the
witnesses’ prior knowledge of the appellant stood in
their
favour.
[12]
The complainant’s account of how many people accosted them on
the night of the incident, differs from that of her boyfriend.
Their description of how the appellant was dressed differed as well.
Complainant mentioned that there were both street lights
and a mass
light while her boyfriend mentioned that there were no street lights
in the vicinity.
[13]
Contradictions are material if they relate to the essential component
of the matter and they cast light on the witness’
credibility.
See:
S
v Mafaladiso en Andere
2003 (1) SACR 583
(SCA). The trial judge has a task to weigh up
the previous statement against the
viva
voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth has been told.
[14]
Contradictions in the complainant’s evidence are so material
that the evidence has to be approached with caution.
I am of
the view that the trial court misdirected itself when if found that
the numerous contradictions are of no material effect.
[15]
I am not persuaded that the appellant’s failure to testify can
be used as a factor against him in this matter. The
state
was throughout the trial saddled with the burden to prove its case
beyond reasonable doubt. I am not persuaded that
the state
succeeded in discharging its burden.
[16]
In respect of count 4, the facts that led to conviction were to the
effect that the complainant, a […] year old and
her brother
were sent to a tavern to fetch their two siblings. While
waiting outside the tavern, the appellant arrived, took
her by force
to his parental home where he penetrated her vaginally with his penis
without her consent. He assaulted her
sibling who tried to
rescue her. The appellant was found naked in bed with the
complainant by the police and her family members.
[17]
Appellant put to the witnesses that he had sexual intercourse with
the complainant with her consent. Both Mr Reyneke
and Mr.
Mlotshwa are of the view that both conviction and sentence cannot be
faltered. The Appellant exercised his right
to remain silent
even in the face of overwhelming evidence put before court. The
evidence has not challenged.
[18]
The undisputed evidence in respect of count 5 is that the
complainant, her boyfriend and her two friends were on their way
walking to Zwakala tavern when they were accosted by the appellant,
who is known to her, and another male person. The appellant
hit
the complainant’s boyfriend with a brick who ran away and he
chased after him for some distance. The appellant
then came
back to the complainant, grabbed her and threatened to stab her with
a knife. She asked the appellant to take her
to her
grandparent’s place where she had hoped that she would find her
aunt and uncle who would have rescued her from the
appellant.
They found the house locked and the appellant broke the padlock with
a brick and forced the door open. He
thereafter took off her
clothes and penetrated her vaginally with his penis. The
appellant had sexual intercourse with her
four times and thereafter
fell asleep. When she noticed that he was asleep she escaped and ran
to her parental home leaving the
appellant asleep.
[19]
Appellant did not adduce evidence to refute the overwhelming evidence
brought by the state. The state’s evidence
was
undisputed. I am of the view that there was no misdirection on the
part of the trial court when convicting the appellant on
both counts
4 and 5.
[20]
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.)
[21]
The parties are in agreement that the prescribed sentence for count 4
is life imprisonment and 10 years imprisonment for count
5.
They are in agreement that there existed no legal justification for
the sentencing court to impose a sentence lesser than
the one
prescribed by the Act.
[22]
I have considered the appellant’s personal circumstances as
stated below. The appellant was in Custody, awaiting trial
for a
period of 16 months. He was [….] years of age at the time of
sentencing, unemployed, unmarried with one minor child
[….]
years of age and not staying with the appellant. He has a previous
conviction of attempted murder, for which he was
sentenced to 5 years
imprisonment with 3 years suspended for 5 years on condition that he
is not found guilty of a similar offence
during the period of
suspension. It is necessary for the Sentence to reflect the balanced
process of careful and objective consideration
of all relevant facts,
mitigating and aggravating. (See
S
v Thonga
1993
(1) SACR 365
(V).
[23]
When weighing up the mitigating factors against the aggravating
circumstances, this matter as well as the interests of the
community,
I am not persuaded that the sentences imposed in this matter are
unjust. I am of the view that the trial court exercised
her
discretion judiciously.
ORDER
[24]
Wherefore I make the following order:
1.
The
appeal succeeds in respect of count 1;
2.
Conviction
and sentence in count 1 are set aside;
3.
The
appeal fails on both count 4 and 5 and the convictions and sentences
are confirmed.
_________________
N.
M. MBHELE, AJ
I
concur
_____________
C.
J. MUSI, J
On
behalf of the appellant:
Mr J. D. Reyneke
Instructed
by:
Legal
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. J. J. Mlotshwa
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb