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[2013] ZAGPPHC 113
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Maseko v S (A 986/2011) [2013] ZAGPPHC 113 (7 May 2013)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A 986/2011
DATE:07/05/2013
In
the appeal of:
SIFISO
MASEKO
.........................................................
Appellant
and
THE
STATE
...................................................................
Respondent
JUDGMENT
Van
der Byl AJ:-
[1]
This is an appeal, lodged with leave of this Court, against
conviction and sentence.
[2]
The Appellant (to whom I will for the
sake of convenience refer to as “the Accused’) was
charged in the regional court,
sitting at Amersfoort, with a
contravention of, particularly,
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
, read with
sections
51
and
52
of the
Criminal Law Amendment Act, 1997
, in that upon or
about 29 August 2009 and at or near Amersfoort he did unlawfully and
intentionally commit an act of sexual penetration
with one MB, a 36
year old male person, by inserting his penis into his anus without
his consent,
[3]
The Accused, who was duty represented,
pleaded not guilty and added, through his legal representative, that
he denies having committed
the offence.
[4]
On 9 December 2010 he was, despite his
plea of not guilty, convicted as charged and sentenced to 15 years
imprisonment.
[5]
On behalf of the State the magistrate
heard the evidence of the complainant and a warrant officer in the
SAPS who received a report
from the complaint, whilst the Accused
testified in his defence.
[6]
The complainant, Mr. MB, testified that
he was at a place called “China 1" on Friday, 29 August
2009, where he, his friend,
one “Rasta", and a third
person were drinking. They continued drinking through the night. In
the process they drank
about two bottles of brandy (“half
jacks”) and six beers. The next morning at about 9h00 the
Accused arrived there
apparently also with some liquor and appeared
to have been under the influence of liquor. He himself was also
reasonably under
the influence of liquor. The Accused then invited
him to accompany him to his house to have something to eat there and
said that
there was also some beer. He accompanied him to the
Accused’s house. Upon their arrival the Accused locked the door
and ordered
the complainant to undress. He wanted to scream, but the
Accused picked up a knife and held a screwdriver against his neck. He
then undressed and was ordered by the Accused to bent forward. The
Accused then applied some Vaseline to his anus, whereupon, the
Accused penetrated him, apparently, four times almost without
interruption, each time ejaculating. Having done that he ordered
the
complainant to lick his penis which he did. Having done that he spit
the semen that came into his mouth out on a pillow on
the bed.
Thereafter he ordered the complainant to get dressed and unlocked the
door. He ordered him to walk directly to his work.
He, however, went
to the Police Station where he reported the matter to Warrant Officer
Zwane. From there he accompanied Warrant
Officer Zwane where he
pointed the Accused out at a tuck shop. From there he was taken to
the hospital where he was medically examined.
[7]
Warrant Officer Zwane confirmed in his evidence that the complainant,
looking scared, crying and smelling of liquor, but appearing
to be
sober, came to him at the charge office on 30 August 2009 at about
14h30 and reported that he was raped by a man who threatened
him with
a screwdriver and a Rambo knife. Having requested them to go where it
was private, he then took off his trousers and showed
him his anus.
It appeared to him that his anus was bruised and swollen with some
whitish marks like semen. On his underpants he
could see stains of
blood. From there he took him to a house where according to him the
incident had taken place, but they found
the place locked. From there
they went in search for the culprit and eventually found him in the
street at the back of the complainant’s
house. He approached
the Accused, introduced himself and asked him to take him to his
house. There the Accused took a key from
his pocket and unlocked the
door. On the bed he found a bottle of Vaseline under a blanket. On
the pillow on the bed he saw what
appeared to him to be semen as well
as blood spatters. He, thereupon, arrested the Accused after having
warned him of his rights.
He seized the Vaseline, the pillow cover
and the complainant’s underpants which he eventually entered
into the SAP 13 register
so that it could be sent to Forensics. He
then took them both, together with a crime kit, to the hospital.
[8]
As already
indicated the Accused elected to give evidence in his defence.
[9]
He testified that he indeed found the
complainant at the place of his friend, “Rasta”, where
they were drinking. When
all the liquor was consumed he left. The
complainant asked him to accompany him to town where he lives. On
their way he went into
a house to drink some water. He then saw the
complainant arriving there with the Police. He denied having been to
his house with
the complainant.
[10]
It would appear that the report (J88) on
the complainant’s medical examination and the complainant’s
clothes handed
in were, for some inexplicable reason, not handed in
as exhibits.
[11
] The magistrate with unnecessary prolixity, sometimes dealing with
inadmissible evidence, rejected the Accused’s evidence
as false
and held that the evidence of the
complainant
who impressed him as a witness, was corroborated by the evidence of
Warrant Officer Zwane.
[12]
It is a trite principle in our law that
if an accused’s evidence is, judged on the evidence as a whole,
reasonably possibly
true, he or she is entitled to be discharged or,
even if his or her evidence is not reasonably possibly true, he or
she is still
entitled to his or her discharge if the State failed to
prove the accused’s guilt beyond all reasonable doubt (see: S v
Mgedezi
and Others
1989 (1) SA 687
(A) at 703E, S v Van der Meyden
1999 (2) SA 79
(W) at 80H-81B; and S v Mbuli
2003 (1) SACR 97
(SCA)
at 110d, para [57]).
[13]
It has also been held by our Courts, as
a trite principle, that where, as in this case, the State’s
version and the Accused’s
version are mutually exclusive both
can simply not be true.
[14]
In this regard I can refer to the case
of Van der Meyden, supra, in which the learned Judge held at 81F as
follows:
“
Evidence
which incriminates the accused, and evidence which exculpates him,
cannot both be true - there is not even a possibility
that both might
be true - the one is possibly true only if there is an equivalent
possibility that the other is untrue. There will
be cases where the
State evidence is so convincing and conclusive as to exclude the
reasonable possibility that the accused might
be innocent, no matter
that his evidence might suggest the contrary when viewed in
isolation".
See
also: S v Van Aswegen
2001 (2) SACR 97
(SCA) at 101e, para [8]
[15]
As I already indicated, the magistrate
rejected the Accused’s evidence.
[16]
As was held in S v Francis 1991 (1)
SACR198 (A), a court of appeal’s powers to interfere with the
findings of fact of a trial
court are limited. At 204dthe learned
Judge of Appeal expressed himself as follows:
“
The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court's conclusion, including its acceptance of a witness'
evidence, is presumed to be correct. In order to succeed on
appeal,
the appellant must therefore convince the Court of appeal on adequate
grounds that the trial Court was wrong in accepting
the witness'
evidence - a reasonable doubt will not suffice to justify
interference with its findings.
Bearing
in mind the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases
that the Court
of appeal will be entitled to interfere with a trial Court's
evaluation of oral testimony”.
[17]
having scrutinized the evidence and the
magistrate’s judgment I am unable to find any indication that
the magistrate misdirected
himself in having rejected the Accused’s
evidence. As a matter of fact the Accused’s evidence is
contradicted by the
evidence of Warrant Officer Zwane who could not
have thumb sucked what he testified as to what he saw in and on the
Accused’s
bed.
[18]
In so far as the Accused’s
evidence has been correctly rejected the question to be considered is
whether the State has on
the evidence of the complainant and Warrant
Officer Zwane proved its case beyond all reasonable doubt.
[19]
It was contended on behalf of the
Accused that the complainant’s evidence could not have been
held to be reasonably true,
particularly, if regard is had to his
state of
sobriety.
[20]
As I have already indicated, the
magistrate, however, indicated that he was impressed with evidence of
the complainant and held,
correctly in my view, that his evidence was
in certain respects corroborated by the evidence of Warrant Officer
Zwane.
[21]
In my view the magistrate cannot be
faulted on his findings in this regard.
[22]
This brings me to the question of
sentence.
[23]
In terms of
section 51
of the
Criminal
Law Amendment Act, 1997
, read with
Part III
of Schedule 2 to that
Act, the prescribed sentence is 10 years imprisonment for a first
offender.
[24]
The Accused has various previous
convictions of robbery and assault, but is a first offender as far as
rape is concerned.
[25]
The magistrate, relying seemingly on the
provisions of the proviso to subsection
(2)
of
section 51
, which provides that the
maximum term of imprisonment that a regional court may impose in
terms of that subsection shall not exceed
the minimum term of
imprisonment that it must impose in terms of this subsection by more
than five years, held that this case is
so serious that the
prescribed minimum should in this case be extended with a further
five years.
[27]
I am, notwithstanding the serious nature
of the offence, unpersuaded that this is a matter where a sentence in
excess of the prescribed
15 years imprisonment is justified in the
circumstances. As a matter of fact, as is apparent from the record,
the State in the
proceedings a quo requested the imposition of the
prescribed minimum sentence.
[28]
For these reasons the following orders
are made;-
1.
THAT the appeal against conviction be
dismissed.
2.
THAT the appeal against the sentence be
upheld and the sentence of 15 years imposed be set aside and replaced
with a sentence of
10 years imprisonment.
3.
THAT the sentence imposed in terms of
paragraph 2 above be antedated to 9 December 2010
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
.......
VV
THLAPI
JUDGE
OF THE HIGH COURT