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2015
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[2015] ZAFSHC 220
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Tshabalala v S (A165/2015) [2015] ZAFSHC 220 (12 November 2015)
IN
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No.: A165/2015
In
the matter between:
MBUSENI
PHILEMON
TSHABALALA
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI, J et MOHALE, AJ
HEARD
ON:
09 NOVEMBER 2015
DELIVERED
ON:
12 NOVEMBER 2015
MOLOI,
J
[1]
The appellant was convicted in the Regional court of c/s 3 of Act 32
of 2007 (rape) of the complainant and sentenced
to life
imprisonment. The appellant has an automatic right of appeal. He came
before us challenging the correctness of both his
conviction and
sentence.
[2]
According to the evidence, the complainant left a
tavern where she was with her boyfriend as it was
late. She was
walking homewards when she met the appellant, whom she knew by sight.
The appellant was with another man unknown
to her. The appellant was
armed with a knife. The two men ordered her to take off her clothes
and took turns to rape her. ·
The appellant threatened to kill
her because she knew him but his companion stopped him from doing so.
She made a report to one
Sibongile who has since left the place and
her address is unknown. The following morning she reported the
incident to the police
and she was also medically examined. She
suffered a cut in front of her neck and this was caused by the
appellant when
he threatened to kill her if
she reported the matter to the police.
[3]
The appellant claims to have had a relationship with the complainant
and that the sexual intercourse took place by consent.
According to
the appellant they met at a tavern where they had drinks and later
agreed to go to his place where they had sexual
intercourse. In the
morning he walked her to her home and agreed to meet later when he
would give her some money. He did not do
that and the police came to
arrest him.
[4]
Mr Makhene who argued the appeal on behalf of the appellant conceded
that the appellant's version cannot hold and that the magistrate
was
right in convicting him. He could not find fault with how the matter
was dealt with by the trial court. The rejection by the
trial court
of the appellant's version was justified and the court of
appeal could not interfere with the value judgment
as to the
complainant's credibility of the trial court in the absence of an
irregularity or misdirection as envisaged in
S
v
Olivier
1998 (2) 267(A). The injury to the complainant's neck if
she consented to sexual intercourse with him.
[5]
The trial court took into account the personal circumstances of the
appellant, the nature and gravity of the offence committed
and that
the community would expect severe punishment to be metered out
in such circumstances. More over the complainant
was raped by
two men who were clearly together and set out to invade the
complainant's rights and person. The court could find
no substantial
and compelling circumstances that would justify its departure from
the imposition of the prescribed minimum sentence
of life
imprisonment in this case:
S v
Malgas
2001 (1) SACR 469 SCA. Mr Makhene correctly submitted the
trial court was right in imposing the sentence it did.
There was no misdirection on the part of the
trial court to impose such a sentence.
[6]
In view of the above the appeal against the conviction and the
sentence imposed is dismissed.
____________________
K.
J. MOLOI, AJ
I
concur.
___________________
MOHALE,
AJ
On
behalf ofthe Appellant:
Adv. MAKHENE
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of Respondent
:
Adv BESTER
Instructed by:
Director of
Publ
i
c
Prosecutions
BLOEMFONTEIN