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[2014] ZAFSHC 42
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Potgieter v S (A165/2012) [2014] ZAFSHC 42 (20 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : A165/2012
In
the matter between:-
GERHARDUS
IGNATIUS
POTGIETER
............................................................
Applicant
and
THE
STATE
..........................................................................................................
Respondent
CORAM:
RAMPAI, J
et
MOLOI,
J
et
MOTLOUNG,
AJ
ENROLLED
FOR:
17 MARCH 2014
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
20 MARCH 2014
[1]
This is an application for leave to appeal. The applicant, Mr
G.I. Potgieter, was tried in the Bloemfontein Regional Court
on a
charge of rape. He was convicted. Following his
conviction he was sentenced to 8 (eight) years imprisonment.
[2]
Disenchanted by his conviction and sentence, the applicant appealed
against both. The appellate
coram
which heard his appeal consisted of Phalatsi AJ, Moloi J and Rampai
AJP. On this occasion the
coram
is differently constituted. Motloung AJ has stepped into the
shoes of Phalatsi AJ who is no longer acting.
[3]
The matter was enrolled for argument on Monday 17 March 2014.
Since the date turned out to be unsuitable to Moloi J, I
consulted
the two counsels, Ms Bezuidenhout and Mr Mohlala. They both
agreed to dispense with their rights to present oral
argument.
They acceded to my proposal that the application be adjudicated on
the strength of the written heads of argument
instead of been
postponed to a date on which Moloi J would be available. Moloi
J is doing circuit duty at Parys.
[4]
The grounds on which the applicant seeks leave to appeal, are
embodied in a four page typed document. Of those fifteen grounds
concerned the conviction and two the sentence component of the
judgment. To reproduce them here will unduly burden the judgment.
I shall do my utmost to condense them without doing violence to the
essence of their materiality.
[5] As regards the
conviction, those grounds may be fairly paraphrased as follows:
That
the court
a
quo
erred in that it did not impartially adjudicate the matter, but
instead adopted a selective critical approach to the analysis
of the
evidence to the detriment of the applicant;
That
the court
a
quo
erred in finding that the version of the applicant was not only
improbable, but beyond a reasonable doubt, false;
That
the court
a
quo
erred in underplaying the material discrepancies in the evidence
tendered on behalf of the prosecution and the serious shortcomings
of the trial judgment;
That
the court
a
quo
erred in disregarding the inconsistencies in the complainant’s
evidence concerning the number of fingers the applicant
had
allegedly inserted in her vagina;
That
the court
a
quo
erred in rejecting the evidence of Ms Michelle Potgieter, which was
corroborated by that of Ms Joyce Mphalo and in preferring
the
contrary and untrue evidence of the complainant.
[6]
The requisite test in an application for leave to appeal is trite.
We are called upon to determine whether the applicant
has a
reasonable prospect of success on appeal –
S v Sikosana
1980 (4) SA 559
(A) at 562A;
S v Magadla
2010 (2) SACR
316
(ECM) at par [5] and the authorities there cited.
[7]
The test applicable to the determination of guilt or innocence in a
criminal trial was elucidated in
S v
Van der Meyden
1996 (1) SACR 447
(W) at 449i – 450c by Nugent J, as he then was:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.”
[8]
In
S v Shackell
2001 (2) SACR 185
(SCA) at 194g – i Brand AJA, as he then was,
said the following about the criminal test and the probabilities in
particular:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a
mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused's version it true. If the accused's version
is reasonably
possibly true in substance the court must decide the matter on
the acceptance of that version. Of course it
is permissible to test
the accused's version against the inherent probabilities. But it
cannot be rejected merely because it is
improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot
reasonably possibly be true.”
[9]
I have read and considered the grounds of misdirection on which the
applicant relies for his quest to go on further appeal.
Having
meticulously done so, I am persuaded that he has a reasonable
prospect of success on appeal.
[10]
It may well be that we, sitting as we were as the court of first
appellate instance, did not heed the judicial injunction of
evaluating the evidence before us in the context of the entire body
of the evidence. Perhaps we ignored or overlooked the significance
of
the evidence concerning the details of the employment. The gist of
all the alleged misdirections levelled at our judgment, suggests
that
we did not adopt the holistic approach in evaluating the evidence
presented to us. See
S v Hadebe
and Others
1998 (1) SACR 422
(SCA)
at 426f – h.
[11]
Moreover, another misdirection, among others, which the applicant
complained of, was that we failed to assign appropriate weight
to all
the various pieces of the entire evidence against the backdrop of the
inherent probabilities and improbabilities –
S
v Sithole and Others
1999 (1) SACR
585
(W). Was the version of the applicant so improbable that it
could not have been reasonably true? I feel somewhat unease
about our finding to that effect.
[12]
The applicant also contended that the trial judgment had serious
shortcomings. His argument was that the trial court
did not
properly and cumulatively consider every fragment of the evidence in
order to properly determine whether or not his guilt,
as an accused,
had been established beyond a reasonable doubt. It was then
argued that we glossed over such shortcomings
and thereby committed a
misdirection. On the strength of that contention, the
applicant’s counsel submitted that a
reasonable possibility
existed that the applicant might not be guilty.
[13]
I am persuaded that, perhaps, we misdirected ourselves, as alleged.
It must be borne in mind that we were here grappling
with
terra
nova
– finger rape. I
would, therefore, grant the applicant leave to appeal against his
conviction.
[14]
As regards sentence, the applicant relied on two grounds in support
of his application for leave to appeal. Those grounds were
listed in
paragraph 2 of his notice of application. The paragraph reads:
“
2.
It
will be respectfully submitted that trial court erred in sentencing
the applicant to a sentence which is inappropriate to the
offence,
the offender as well as the interest of society. It will
further be submitted that interference on appeal is justified
on the
following grounds:
2.1 By finding the
existence of substantial and compelling circumstances, the court
a
quo
improperly used its discretion not to approach sentencing
from the perspective of using a ‘clean slate’, especially
since there are no analogical case law on sentencing of rape
instances where a finger was used as the ‘object’ of
penetration;
2.2
The court
a quo
did not give due regard to the moral blameworthiness of the applicant
as is evident from the manner in which the rape occurred.”
[15]
The applicant’s chief contention in connection with the
sentence was that the trial court, as well as we, as the court
of
first appellate instance, failed to appreciate that the moral
blameworthiness of a finger rapist has to be distinguished from
and
treated as comparatively less than that of a conventional penis
rapist.
[16]
Section 3 of the Sexual Offences and Related Matters Amendment Act 32
of 2007 created
terra nova
in our criminal law. We were not referred to any precedent and we
were not aware of any relating to the contravention of this specific
statutory provision.
[17]
We attempted to deal with this aspect at paragraphs [66] – [67]
of the appeal judgment. It is so that in the case
of a fingeral
rape, a victim is not exposed to health risks, such as sexually
transmittable diseases or HIV/AIDS as in the case
of penal rape.
[18]
Whether that distinction justifies a sentencing differentiation is a
debatable issue. Obviously the lawmaker does not
think so.
Similarly we did not think so, but it is reasonably possible that
another reasonable court might come to a different
conclusion.
In the circumstances I am inclined to grant the applicant leave to
appeal against the sentence imposed on him
as well, which sentence we
upheld on appeal.
[19]
Accordingly I propose the following order:
19.1
The application succeeds
in toto
.
19.2 The applicant
is granted leave to appeal to the Supreme Court of Appeal against his
conviction and sentence.
M.
H. RAMPAI, J
I
concur.
____________
K.J.
MOLOI, J
I
concur.
S.E.
MOTLOUNG, AJ
On
behalf of applicant: Adv I.J. Bezuidenhout
Instructed
by:
UFS
Law Clinic
UFS:
Main Campus
Nelson
Mandela Drive
BLOEMFONTEIN
On
behalf of respondent: Adv M.A. Mohlala
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN