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[2015] ZAFSHC 160
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Setlaba v S (A97/2015) [2015] ZAFSHC 160 (20 August 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A97/2015
In
the matter of:
FUSI
STEPHAN SETLABA
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE,
J
et
FISCHER, AJ
JUDGEMENT:
FISCHER,
AJ
HEARD
ON:
17
AUGUST 2015
DELIVERED
ON:
20
AUGUST 2015
[1]
The appellant, Fusi Stephen Setlaba, was charged with the
contravention of the provisions of Section 3 read with Sections 1,
55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act
(Sexual Offences and Related Matters) 32 of 2007 read with
Sections
256
,
257
and
281
of the
Criminal Procedure Act 51 of 1977
, as well as
Sections 92(2)
and
94
of the
Criminal Procedure Act 105 of 1977
in
that it was alleged that on 16 January 2010 and at Botshabello in the
Free State Province he unlawfully and intentionally raped
the
complainant, to wit [.......] a 14 year old girl.
[2]
On 13 April 2011 the appellant was convicted of rape and on 26 May
2011 sentenced to 18 years imprisonment. On 9 June
2014 the
appellant was granted condonation for the late noting of an appeal
together with leave to appeal against his conviction
by the court
a
quo
.
[3]
It is unnecessary for purposes of this judgment to deal extensively
with the submissions advanced on behalf of the appellant
by Ms Smith,
or for that matter the response of Mr Chalale on behalf of the state
in view of the concessions made by Ms Smith from
the bar it being
common cause that the heads of argument were prepared and filed by
her colleague Mr Reyneke.
[4]
I do however deem it apposite to deal very briefly with the basis of
the appeal and the subsequent commendable and correct approach
adopted by Ms Smith.
[5]
In brief the whole appeal was premised on the fact that the
complainant was a 14 year old single witness and that, had the court
a
quo
properly applied the cautionary rules to her evidence, the appellant
should have been acquitted.
[6]
It has repeatedly been emphasised that in addition to honesty and
sincerity, the court must be placed in a position to test
the say-so
of the single witness so as to determine the reliability of this
witness’s observations in what were quite clearly
traumatic
circumstances (See
S
v Ngcina
2007 (1) SACR 19
(SCA) at para [17]). It is furthermore so that
there must be certainty beyond a reasonable doubt of the
identification of
the alleged perpetrator, having regard to all the
circumstances of the case (See
S
v Sharzen and Another
2006 (2) SACR 143
(SCA) at para [11] to [15]).
[7]
In
casu
the 14 year old complainant was not only able to describe in detail
what the appellant was wearing but, in addition thereto, the
detailed
manner in which he went about confronting her, assaulting her and
eventually raping her.
[8]
Despite her age, the complainant came across as a very good witness
and her evidence was corroborated by the testimony of her
uncle, her
brother and, subsequently, that of the forensic clinical assistant
who examined the complainant and filed a J88 as well
as that of the
arresting officer, Captain Monyane. The rape took place against
the background of a festive occasion arranged
by the complainant’s
uncle at his home and attended by both the complainant as well as the
appellant. At some stage
during the proceedings the complainant
was sent by her uncle to a shop nearby to purchase candles and before
she had returned,
the appellant left the uncle’s home allegedly
to go home. The uncle thereafter become worried about the
complainant’s
failure to return from the shop as a result of
which he and complainant’s brother went in search of her only
to see her coming
towards them in the company of the appellant who
then proceeded to run away.
[9]
Not only was the complainant’s version of the nature and extent
of the assault corroborated by the forensic evidence,
but, in
addition thereto the forensic clinical assistant testified that the
appellant had requested him to speak to the complainant’s
uncle
about the incident as the appellant was afraid he would lose his
job. This attempt by the appellant to avoid the consequences
of
his actions was corroborated by the complainant’s uncle who
testified that shortly after his arrest, the appellant had
approached
him and asked for forgiveness for what he had done.
[10]
Ms Smith on behalf of the appellant, quite correctly conceded that
not only did the court
a
quo
apply the cautionary rules correctly and deal in an appropriate
manner with unsatisfactory portions of the evidence of the state
witnesses, but in addition thereto, could not be faulted in
concluding in its judgment that the appellant’s version could
not be reasonably possibly true and as such inherently improbable.
[11]
In the circumstances the appeal against the conviction cannot
succeed.
[12] In the result the
following order is made:
The
appeal by the appellant against his conviction of rape is dismissed.
_______________
P.
FISCHER, AJ
I
concur.
________________
B.
C. MOCUMIE, J
On
behalf of applicant:
Adv. Smith
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondents: Adv. S. Chalale
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/EB