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[2013] ZAGPPHC 110
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Xaba v S (A283/2012) [2013] ZAGPPHC 110 (3 May 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPORTABLE
IN THE HIGH
COURT OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT)
Case
number: A283/2012
Date: 3 May 2013
In
the matter between:
ZAKHELE
XABA
....................................................
Appellant
and
THE
STATE
.............................................................
Respondent
JUDGMENT
COLLIS
AJ,
[1]
During June 2011 the appellant was arraigned on a charge of rape
before the Ermelo regional court. He was duly convicted as
charged
and sentenced to 10 years imprisonment. His application to appeal
both conviction and sentence was granted by the court
a quo.
[2]
The brief background is that on the
evening of 28 November 2010, the complainant, Ms ZM a had sexual
intercourse with the appellant
at his homestead. The complainant was
14 years old at the time and the appellant 19 years. They knew each
other well prior to the
incident. She gave evidence the intercourse
took place without her consent, whereas the appellant’s
testimony was that it
was consensual. Following the incident she left
his homestead around 23h00 the evening in question and reported the
rape to his
neighbour. She also reported it to her mother and a
charge was laid at the police culminating in the ultimate arrest of
the appellant.
The complainant following the incident was also
examined by a medical practitioner.
[3]
In essence the appellant had raised two
defences to the charge, i.e he was told by the complainant when he
first proposed love to
her, that she indeed was 18 years old at the
time and he denied he had sexual intercourse with the complainant on
the night in
question without her consent.
[4]
The defence relating to the age to the
complainant of significance was first mentioned by the appellant
during his plea explanation.
When the appellant eventually gave
evidence in chief he confirmed this love relationship. During
cross-examination he further qualified
this testimony, in that he
first proposed the complainant when she was in Standard 7 and that
she had informed him during that
time, that she was 18 years old. He
also testified during such period they hardly ever saw each other as
they were attending different
schools and stayed in different areas
and as at the date of the incident they had been engaged in a
relationship for just over
a year. It is of relevance to note, the
first portion of his cross-examination took place on 21 June 2011,
whereafter the cross-examination
was resumed on 28 July 2011. On this
last-mentioned date and upon the appellant being probed once again
about the duration of his
relationship with the complainant, he on
the second mentioned date, had testified, their relationship had been
ongoing for two
to three years albeit their first sexual encounter
had been the night of the incident giving rise to the charge.
[5]
This discrepancy in his testimony is of
significance for more than one reason. If it is to be accepted they
were engaged in a romantic
relationship, why would they meet up by
mere chance on the night in question. No evidence was presented
before the trial court
that indeed the ‘couple’ had
planned to consumate their relationship on that faithful night. His
testimony was when
he first met up with the complainant she
was-waiting for Jabu. This too was the evidence of the complainant.
Moreover, if one is
to accept the evidence of the appellant with
reference to the duration of their relationship, it is found to be
impropbable they
would wait almost two years to engage in a sexual
encounter. Another improbability to be found in his testimony, is
that the complainant’s
parents were not expecting her to sleep
at home on the night in question. This too the appellant had
confirmed i.e that the complainant
had intimated to him she was to
sleep over at Jabu’s place that night. Her immediate reporting
then following the rape to
his neighbour, is yet another probability
found in favour of the complainant. In addition thereto, if the court
a quo was to have
accepted the testimony of the appellant that they
had engaged in consensual intercourse, why would she report a rape to
his neighbour,
without even having being prompted on by anyone about
her whereabouts earlier that night.
[6]
The finding made by the court a quo on
the probabilities having favoured the complainant, this court of
appeal is in agreement with.
In addition thereto, we agree the guilt
of the appellant had been established beyond reasonable doubt.
[7]
It remains irrelevant whether the
complainant was seen to be dragged into the homestead of the
appellant, or whether she walked
into such homestaed voluntarily.
What remains of significance and relevance, is that she gave evidence
she never agreed to have
sexual intercourse with the appellant and
given her age, could not have agreed to such sexual intercourse even
if she wanted too.
_
[8]
It as a result follows, the appeal on
the merits should fail.
[9]
It is trite that sentencing is
pre-eminently the task of the trial court and the court of appeal
will only interfere with the sentence
if the trial court
has misdirected
itself or the sentence is shockingly inappropriate. Howerever a court
of appeal may intefere with the sentence on
appeal provided where the
trial court materially misdirected itself or where the sentence
imposed is shockingly inappropriate.
1
[10]
When dealing with sentence it is for
purposes of this appeal necessary to consider the material and
relevant aspects associated
with sentencing which were placed before
the trial court.
[11]
In mitigation of sentence the appellant
did not testify before the trial court and through his legal
representative the following
personal circumstances were placed
before the court. He was twenty years old, a first offender, single
and still at school at the
time when the offence was committed. The
court in mitigation took into account, the complainant as per the
medical evidence had
not sustained significant physical injuries.
[12]
The trial court, prior to imposing an
appropriate sentence took into account the personal circumstances of
the appellant, the seriousness
of the offence and the interest of
society.
[13]
In S v Ro and Another
2010 (2)
SACR 248
(SCA) Majiedt AJA stated as follows: The moral
reprehensibility of rape and society’s adherence of this
rampant scourge are
unquestioned. The most cursory scrutiny of our
law reports bears testimony of the fact that our courts have, rightly
so, visited
this offence with severe penalties. ”
[14]
The court a quo took into account the
youthful age of the appellant, the age difference between the
appellant and the complainant,
the absence of physical injuries to
the complainant as well as the absence of any evidence presented on
any impact of the rape
on her.
[15]
The sentence so imposed by the trial
court certainly did not induce a sense of shock, nor could it have
been considered startlingly
inappropriate, where the peculiar
circumstances of this case are anything to go by.
[16]
It therefore follows and it is my view
and finding the appeal on sentence similarly, is without merit.
[17]
In the result I propose the following
order:
17.1
The appeal against both conviction and sentence is dismissed.
C
Collis
Acting
Judge of the High Court I agree and it is so ordered,
H.
Fabricius
Judge of the
High Court
Case
number: A283/12
Heard
on: : 3 May 2013
For
the Appellant: Adv. K. P. Tlouane
Instructed
by: Pretoria Justice Centre
For
the Respondent: Adv. F.C. Roberts
Instructed
by: Director of Public Prosecutions
Date
of Judgment: 3 May 2013
1
S v Pillay
1977 (4) SA 531
(A) at 534H-535A