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[2013] ZAFSHC 50
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Flietor v S (A253/2012) [2013] ZAFSHC 50 (28 March 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No : A253/2012
In
the appeal between:
ABRAM FLIETOR
....................................................................
Appellant
and
THE STATE
.........................................................................
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
DAFFUE, J
_____________________________________________________
JUDGMENT:
DAFFUE, J
HEARD ON:
11 MARCH 2013
_____________________________________________________
DELIVERED ON:
28 MARCH 2013
_____________________________________________________
INTRODUCTION
[1] The appellant stood
trial in the regional court, Bloemfontein on a charge of rape of a
14-year old girl. The offence was allegedly
committed on 14 March
2007 when, according to the charge sheet, the appellant was 50 years
old.
[2] On 6 August 2009
appellant was convicted of rape as charged and sentenced to 25
(twenty five) years’ imprisonment.
[3] Having unsuccessfully
applied for leave to appeal to the court
a quo
, leave to
appeal against both conviction and sentence was granted to appellant
by the High Court on 15 March 2012.
THE ISSUES
[4] The grounds of appeal
can be summarised as follows:
4.1 The court
a quo
erred in not properly assessing the evidence of the state witnesses;
4.2 It erred in making an
adverse inference regarding the appellant’s alibi witness;
4.3 It erred in rejecting
the appellant’s version as not being reasonably possibly true;
4.4 The sentence of 25
(twenty five) years’ imprisonment is shockingly inappropriate
and out of proportion if the totality
of the accepted facts in
mitigation are considered, whilst the seriousness of the offence was
overemphasised.
[5] The complainant was a
single witness who made the first report of the alleged rape to a
teacher at her school five days later,
notwithstanding the fact that
she had an opportunity to report the issue to her mother and
grandfather very soon after being raped.
The complainant was examined
by a medical practitioner on 20 March 2007 who found three clefts
during the gynaecological examination
and concluded that her vagina
was previously penetrated although it was uncertain whether it was
due to sexual assault. Complainant’s
version was that she was
raped inside appellant’s house which is in close proximity to
her parental home. Appellant was well-known
to her and she knew him
by the name of China. She pointed out his house to the police.
Appellant denied that he was at his house
at the particular time and
date as he was at the house of his employer whom he also called to
testify on his behalf.
[6] Although Me Kruger of
the Bloemfontein Justice Centre, who appeared on behalf of appellant,
submitted in her heads of argument
that the conviction could not be
sustained, she conceded during oral argument that she acted under
instructions and that she could
not really argue that the court
a
quo
came to an incorrect finding regarding the conviction.
Pertaining to sentence, she insisted that the sentence was excessive
and
that this court should intervene and impose a sentence of between
20 and 22 years. She conceded in oral argument that the unreported
judgment of this division relied upon to bolster her argument that
the court
a quo
erred in arriving at the sentence imposed -
Teba and Another v S
(A192/2009) delivered on 26 May
2011 - did not support her argument at all. Mr Pretorius, who
appeared on behalf of the State,
supported the conviction and
sentence although he conceded that the sentence was severe.
LEGAL PRINCIPLES
[7] In assessing the
evidence, a court must in the ultimate analysis look at the evidence
holistically in order to determine whether
the guilt of the accused
is proved beyond reasonable doubt. This does not mean that the
breaking down of the evidence in its component
parts is not a useful
aid to a proper evaluation and understanding thereof. See
S v
Shilakwe
2012 (1) SACR 16
(SCA) at 20, para [11]. The Supreme
Court of Appeal approved of the following
dictum
:
“
But in doing
so, (breaking down the evidence in its component parts) one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood from the trees.”
See
S v Hadebe and
Others
1998 (1) SACR 422
(SCA) at 426F – H and
S
v Mbuli
2003 (1) SACR 97
(SCA) at 110, para [57].
[8] The same principles
apply when an alibi defence is relied upon by an accused. The
acceptance of the evidence on behalf of the
state cannot by itself be
a sufficient basis for rejecting the alibi evidence. Something more
is required. The evidence must be
considered in its totality. In
order to convict there must be no reasonable doubt that the evidence
implicating the accused is
true which can only be done if there is at
the same time no reasonable possibility that the evidence exculpating
him is not true.
See
S v Van Aswegen
2001 (2) SACR 97
(SCA) at 100f-101e, paras [7] & [8], and
S v Liebenberg
2005 (2) SACR 355
(SCA) at 358h – 359e, paras [14] and [15].
The effect hereof is that once the trial court accepts the evidence
in support
of an accused’s alibi as reasonably possibly true,
it follows that the court should find that there is a reasonable
possibility
that the evidence led on behalf of the state is mistaken
or false.
[9] Bearing in mind the
above the correct approach is to consider the alibi in the light of
the totality of the evidence in the
case and the court’s
impression of the witnesses. See
R v Hlongwane
1959 (3)
SA 337
(A) at 341A. In doing so, the trial court should remind itself
that no onus rests on an accused and that the state must prove that
the accused committed the crime and it must therefore disprove the
alibi.
[10] It is acceptable in
evaluating the evidence in its totality to consider the inherent
probabilities. Heher AJA (as he then was)
dealt with this aspect as
follows:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See
S v Chabalala
2003 (1) SACR 134
(SCA) paragraph [15].
[11] The right to remain
silent and its effect on the disclosure of an alibi defence was
thoroughly discussed and considered in
S v Thebus
2003(6) SA 505 (CC) at 533 and further. The CC, per Moseneke J, found
that a distinction may properly be made between an inference
of guilt
from silence and a credibility finding connected with the election of
an accused person to remain silent. It is clear
that the late
disclosure of an alibi is one of the factors to be taken into account
in evaluating the evidence of the alibi, although
standing alone, it
does not justify an inference of guilt. Secondly, such late
disclosure is a factor to be taken into consideration
in determining
the weight to be placed on the evidence of the alibi. The Court
stated further:
“
The failure
to disclose an alibi timeously is therefore not a neutral factor. It
may have consequences and can legitimately be taken
into account in
evaluating the evidence as a whole. In deciding what, if any, those
consequences are, it is relevant to have regard
to the evidence of
the accused, taken together with any explanation offered by her or
him for failing to disclose the alibi timeously
within the factual
context of the evidence as a whole.”
At
para 68, 537G.
[12] The identification
of a perpetrator, based on the evidence of a single witness must also
be considered.
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. There is no magic formula
to apply when it comes to the consideration of the credibility of a
single witness. The trial court should weigh the evidence of
a single
witness and consider its merits and having done so, should decide
whether it is satisfied that the truth has been told,
despite the
shortcomings or defects in the evidence. See
S v Sauls
1981 (3) SA 172
(AD) at 180E – G. Our courts have repeatedly
stated that evidence of identification must be approached with
caution. There
is no doubt that honest witnesses may make mistakes
because of the fallibility of human observation and therefore all the
various
factors set out in
S v Mthetwa
1972 (3) SA 766
(AD) at 768A – C and any other factors that need to be
considered should be weighed one against the other, in the light of
the totality of the evidence and the probabilities.
EVALUATION OF THE
EVIDENCE AND THE COURT
A QUO
’S FINDINGS
[13] The complainant
testified that during the late afternoon of 14 March 2007, when she
was still 14 years old (she was 15 years
when she gave evidence) she
walked past the house of appellant on her way looking for her
friends. Appellant whom she knew since
she was very young was sitting
outside his house and she greeted him. The appellant was known to her
as China and his house was
also known to her as her mother’s
cousin had rented there earlier. She could not find her friends and
on her way back to
her parental home she again passed appellant’s
house. At that stage he called her, gave her an empty bottle and
R3,50 with
instructions to buy homemade Tswana (sorghum) beer at a
place he described to her. When she returned to appellant’s
house
after unsuccessfully trying to purchase beer, he was inside his
house. When she called him he responded from inside and instructed
her to leave the money inside the house on the windowpane. When she
was inside the house he kicked the door close and grabbed her.
She
screamed and resisted, but he twisted her arm, hit her on the mouth
and tripped her, causing her to fall whereupon he raped
her. After
being raped and when she exited the house appellant threatened to
kill her if she would dare to inform anyone of the
incident. When she
arrived at home she found her mother, grandfather and brother there.
No report was made to any of them.
[14] Five days later,
i.e. on 19 March 2007 she became extremely emotional at school, left
her classroom and reported the matter
to an educator, Me Gladys
Kebautlwile who took her to the principal’s office whereupon
her parents were called. Thereafter
a case was opened and the next
day she was medically examined. Complainant pointed out the
appellant’s house to the police.
She testified that she had
experienced pain in her private parts and that the incident had a
serious emotional impact on her insofar
as she had to repeat grade 8
which she failed that year notwithstanding counselling sessions.
[15] The appellant denied
the complainant’s version. It was put to her that he never sent
her to buy liquor or any homemade
beer and also that he was not even
consuming alcohol at the time of the alleged incident as he was under
strict medical treatment.
It was also put to the complainant that he
worked on a daily basis (every day including weekends and from
morning to evening) at
“another lady’s place at Mogani
Street and he always comes late at home”. In appellant’s
evidence in chief
he admitted that he is known as China and that he
was staying in the same neighbourhood as the complainant. He
confirmed that he
did not have any problems with the complainant, but
he feared the influence that might come from her parental house.
According
to him the complainant’s parents came to his house
three days prior to his arrest, insisting that certain sofas that he
retained
for outstanding rent be handed over to them. This was never
put to complainant during cross-examination and appellant did not
even
testify about this in his examination in chief. It can only be
an afterthought to strengthen his suggestion that complainant’s
parents might have a motive to influence her to falsely accuse him.
Pertaining to complainant’s evidence that appellant sent
her to
buy sorghum beer, he testified that he did not even drink sorghum
beer, that he was a person that started to drink beer
(normal beer),
but at the stage of the alleged incident, he was not consuming any
liquor at all. This evidence is in stark contrast
with that of his
alibi witness. He heard from children staying at his backdoor
neighbour’s house that the police were looking
for him and that
he was accused of raping a child. He gave the following significant
and highly improbable version in this regard:
“
These
children who told you that the police are looking for you, did they
say that the police told them that you had raped the complainant?
…
Yes, they informed me about that and they also said, ‘we are so
surprised now because you are always there after
Makonopi. What time
did you rape this child?’”
[16] Me Makonopi,
appellant’s alibi witness, also testified in his defence. She
is a 70-year old lady who stays in close vicinity
of appellant. She
testified in August 2009, two and a half years after the alleged
incident. According to her appellant worked
fulltime for her, every
day of the week and in particular during the month of March 2007. He
would arrive at between 9 and 10 o’
clock in the mornings and
leave at 8 o’ clock at night. She used to send him to the post
office, to pay her bills and to
make purchases at nearby shops. She
sells beer and sorghum beer from her residence and confirmed
repeatedly that the appellant
consumed liquor, including sorghum
beer.
[17] The court
a quo
was acutely aware of the fact that the complainant was a single
witness. It found that the complainant made a good impression,
that
she did not hesitate to answer questions put to her and that her
evidence was satisfactory in all material aspects. There
is no reason
to disagree with this finding. There can also be no doubt about the
complainant’s identification of appellant.
She knew him and his
house well, they stayed in close proximity of each other, it was
daylight and she had sufficient time to observe
him as communication
took place between them. The court
a quo
also correctly found
that the complainant was corroborated by the educator to whom she
made the first report. The value of the
report to the educator lies
therein that it is a factor that supports the consistency of the
complainant’s evidence
in casu
as well as her
credibility. The complainant’s failure to immediately report
the incident to either her mother or grandfather
is properly dealt
with by the court
a quo
with reference to the complainant’s
fear of being killed by the appellant and her possible fear of
parental disgust and to
be disbelieved. See also
Bothma v Els
2010 (2) SA 622
CC at 643, para [50]. There is no doubt that
the complainant was penetrated as contained in the J88 medical report
and this is
further corroboration of her version. Complainant had no
reason to falsely implicate appellant.
[18] The court
a quo
dealt with the alibi evidence in a satisfactory manner. It is clear
from me Makonopi’s evidence that appellant was not under
constant surveillance by her and that he often left the premises to
do certain chores on her behalf. He therefore had the opportunity
to
go to his own house and to commit the offence being charged of. It is
apparent from the record that she could not say where
exactly
appellant was during the afternoon of 14 March 2007. When asked about
the date, she specifically testified that she could
not remember and
then continued to testify about his duties the day before he was
arrested, which would have been after the 19
th
. The court
a quo
was not favourably impressed by the evidence given by
appellant and his alibi witness. Pertaining to the appellant the
court
a quo
found that he did not answer questions directly
and clearly. A perusal of the record confirms this. The court
a
quo
also pointed to the contradiction between the alibi witness
and appellant pertaining to appellant’s drinking habits and in
particular his consumption of sorghum beer. Although both legal
representatives did not make an issue of appellant’s drinking
habits, I have no doubt that appellant’s denial that he drinks
sorghum beer, was nothing but a smokescreen or strategy to
distance
him as far as possible from the instruction to the complainant, as
testified by her, to go and buy sorghum beer on the
day of the rape
incident.
[19] There is no onus on
an accused to prove his or her alibi. However bearing in mind the
judgment of the Constitutional Court
in
Thebus
,
loc
cit
, the following should be highlighted:
19.1 In the plea
explanation appellant’s legal representative merely denied all
allegations against him and put the State
to the proof thereof. There
was no reference to his alibi.
19.2 During complainant’s
cross-examination the following was put to her:
“
China says
on a daily basis he is used to going to
another
lady’s place
at Mogani Street and he always comes late at home.” (emphasis
added)
Neither the identity of
this person, nor her address is put on record.
19.3 A year later, i.e. 6
August 2009 as opposed to 26 August 2008 when complainant testified,
appellant and his alibi witness,
Me Makonopi, testified and at that
stage her identity was revealed for the first time, two and a half
years after the alleged incident.
19.4 Appellant’s
version that he worked at Me Makonopi’s place daily, including
weekends, from morning to evening, was
confirmed by the alibi, but
she was, as could be expected, uncertain as to what appellant’s
whereabouts were during the afternoon
of 14 March 2007. The alibi
defence was not at all satisfactory.
[20] The court
a quo
correctly considered the totality of the evidence and assessed it
properly in coming to the conclusion that appellant’s version
was not reasonably possibly true, that it was false and ought to be
rejected. The appeal against conviction cannot be sustained.
[21] The prescribed
minimum sentence
in casu
is life imprisonment as the
complainant was only 14 years old when she was raped. See
section
51(1)
of the
Criminal Law Amendment, Act 105 of 1997
, read with
Part
I
of Schedule 2 thereof. The court
a quo
found that there were
substantial and compelling circumstances to deviate from the
prescribed minimum sentence, to wit
the age of appellant and
his health;
complainant was not
seriously injured;
appellant is capable of
rehabilitation.
[22] Mr Pretorius, on
behalf of the State supported the sentence although he made it clear
that it was a stiff sentence. Me Kruger,
on behalf of the appellant,
argued that 25 years’ imprisonment was too severe and argued
for a lesser sentence, to wit between
20 and 22 years. It is trite
that a court of appeal will not interfere with the sentence imposed
by the court
a quo
unless it is satisfied that the sentence
has been vitiated by a material misdirection or is disturbingly
inappropriate or induces
a sense of shock. Notwithstanding the
mitigating factors
in casu
, the moral reprehensibility of
appellant’s conduct remains undiminished and I am of the view
that such mitigating factors
do not warrant any interference with the
sentence imposed. See
S v Kekana
2013 (1) SACR 101
(SCA) para [11] at p 105. In imposing the sentence of 25 years’
imprisonment the court
a quo
sent out a clear message that
behaviour of the kind cannot be countenanced and I am in full
agreement with the court’s reasoning
with particular reference
to
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5c – e.
Refer also to the warning sounded by the Supreme Court of Appeal in
S
v Matyityi
2011 (1) SACR 40
(SCA) at para [23], p 53c –
f. Sachs, J stated the following in a unanimous judgment of the
Constitutional Court in
Bothma
loc cit
at para
[47]:
“
Child rape
is an especially egregious form of personal violation….. By
its nature it is frequently characterised by secrecy
and denial.
There is accordingly a special public interest in taking action to
discourage and prevent rape of children. Because
it often takes place
behind closed doors and is committed by a person in a position of
authority over the child, the result is
the silencing of the victim,
coupled with difficulty in obtaining eyewitness corroboration.”
In conclusion I am of the
view that the court
a quo
did
not commit any material misdirection and the sentence is neither
disturbingly inappropriate, nor induces a sense of shock.
ORDER
[23] In the premises the
following orders do issue:
23.1 the appeal is
dismissed;
23.2 the conviction and
sentence are confirmed.
______________
J.P. DAFFUE, J
I
concur.
_____________
S. EBRAHIM, J
On behalf of applicant:
Me S. Kruger
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv Danie J. Pretorius
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp