About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 115
|
|
Matshela v S (A3/2013) [2013] ZAFSHC 115 (13 June 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case number:
A3/2013
In the appeal of:
RAJOHN BARNARD
MATSHELA
................................................
Appellant
and
THE STATE
...............................................................................
Respondent
CORAM
:
LEKALE, J
et
SNELLENBURG, AJ
JUDGMENT:
SNELLENBURG, AJ
HEARD
: 10
JUNE 2013
DELIVERED:
13 JUNE 2013
[1] The appellant was
charged with one count of rape and one count of robbery with
aggravating circumstances and convicted on 16
May 2012 by the Welkom
Regional Court. He was sentenced to ten years imprisonment on each
count, subject to an order in terms of
Section 280(2)
of the
Criminal
Procedure Act 51 of 1977
that the sentences run concurrently. On 29
October 2012 the Court
a quo
granted leave to appeal against
the convictions and sentences.
[2] The appellant was
charged with raping and robbing the complainant, Me. Julia Likhama on
the 8
th
October 2011whilst using a knife to perpetrate the
crimes.
[3] The complainant was a
single witness with regards to the rape and armed robbery.
[4] The complainant’s
testimony is that she visited a tavern on the 8
th
of
October 2011 and left approximately twenty past one in the morning
(the 9
th
of October 2011). The appellant was also at the
said tavern and when she left he requested her to wait for him
whereafter he accompanied
her to her parental home. On the way they
met Mr. Teboho Godfrey Sefatsa [‘Sefatsa’], who also
testified on behalf
of the State.
[5] In short the
complainant’s testimony is that the appellant, after they left
the said Sefatsa, produced a knife. He threatened
to kill her if she
did not comply with his demands. He forced her to have sexual
intercourse with him twice. He continuously threatened
to kill her if
she called for help. After a while the appellant forced the
complainant to have oral sex with him by scraping the
knife (for lack
of a more accurate description) against her head. The appellant
forced the complainant to hand over to him the
ring she was wearing
as well as the earrings she had borrowed from her brother. The
appellant said that he would also keep the
complainant’s
panties that he had taken earlier. The appellant then walked with the
complainant to her home and left when
she started knocking on the
door. The complainant immediately reported the rape to her mother who
told her to wake her brother
so that he can accompany her to the
police station where she then went. The complainant was later also
taken to the Kopanong Clinic
where a medical examination was done and
a DNA sample was taken.
[6] The complainant
admitted that she had lied to her mother, both with regards to where
she was going the evening as well as where
she had been, when she
came home. She had told her mother she was visiting a friend and that
she was raped and robbed on her way
back from the friend.
[7] The complainant
suffered injuries as a result of the rape, to wit a scratch on her
elbow from being thrown to the ground as
well as a scratch on her
back which was inflicted by the appellant with the knife whilst
forcing her to have sexual intercourse
with him.
[8] According to the
complainant the ordeal lasted approximately forty five minutes.
[9] Sefatsa testified
that he left the tavern after one o’ clock in the morning hours
when he saw the complainant and a man
known to him as Rajohn. He
identified the appellant. The appellant admits knowing the witness
and also confirms that they have
no ill feelings towards each other,
nor had there been any prior to that morning.
[10] Lastly Mrs. Maria
Pulane Likhama [‘Likhama’], the complainant’s
mother, testified that she opened the door
for her daughter in the
early hours when she knocked. She asked the complainant, since she
had left to go to a friend, where she
was coming from. The
complainant explained that she had met somebody on her way home from
her friend’s place and that this
person took her and had raped
her. The complainant showed her mother the scratch on her elbow and
the ‘scratch’ on
her back. She also reported that the
person that had raped her had taken her ring, her brother’s
earrings she was wearing
and her panty. Likhama confirms that she
told the complainant to wake her brother up so that they could go to
the police station
to report the rape. With regards to the
complainant’s emotional condition her mother testified ‘that
she was tired
like someone who was not herself’.
[11] The DNA analyses was
handed in, by agreement as exhibit “C” and the J88
(medical examination) of the complainant
(also by agreement) as
exhibit “D”. The DNA analyses records that no male DNA
was obtained from the sample.
[12] The J88 records only
a small excoriation on the complainant’s right elbow, exterior
surface. The medical examination
also states that there are no
genital injuries, but that does not exclude penetration.
[13] The appellant
admitted that he knows the complainant. As stated he admitted that he
also knows Sefatsa. In his examination
in chief he disclosed for the
first time that he was relying on an alibi. He admits seeing the
complainant during the night of
the 8
th
of October 2011 at
the said tavern. According to the appellant there was an altercation
between them when the complainant stepped
on his shoes without
apologising. He lost his temper because she was rude and he slapped
her in the face.
[14] That was the last he
saw of the complainant according to the appellant. He left the tavern
with a friend, Mr Lebogang Clayton
Modise [‘Modise’]. He
spent the night at this friend’s place in Bedelia. He denied
ever carrying a knife with
him. He also denied that Sefatsa could
have seen him with the complainant because he was not with her
outside the tavern.
[15] Modise testified on
behalf of the appellant. He confirmed the alleged altercation between
the appellant and the complainant
at the tavern during the evening in
question. The witness testified that he and the appellant left the
tavern shortly after seven
o’ clock due to the fact that the
last taxi’s left for Bedelia at eight o’ clock. It
transpired in cross-examination
that they [the appellant and Modise]
allegedly went to Modise’s house, but then left for another
tavern. When they eventually
went home, the appellant spent the
evening at his house. The witness testified in cross-examination that
they were basically in
each other’s presence the whole evening,
except on occasions where the one or the other would go to the bar or
bathroom.
I will revert to the defence case.
[16] The Court
a quo
was astute to the fact that the complainant was a single witness with
regards to the rape and robbery. The Court
a quo
applied the
cautionary rule, namely that in order to convict the appellant on the
single evidence of a competent witness, the evidence
must be
substantially satisfactory in every material respect or there must be
corroboration for the evidence. The said corroboration
need not
necessarily link the accused to the crime. See
S v Mahlangu and
Another
2011 (2) SACR 164
(SCA) at 171b – c;
S v
Heslop
2007 (4) SA 38
(SCA) para [12]. By corroboration is
meant other evidence which supports the evidence of the witness and
which renders the evidence
of the accused less probable on the issues
in dispute. See
S v Heslop
,
supra
;
S v
Gentle
2005 (1) SACR 420
(SCA) at 430j – 431a.
[17] The advantages of
the trial court to observe witnesses in court needs to debate.
Although a court of appeal is not hamstrung
by the findings of the
Court
a quo
, lest the appellant’s appeal become
illusionary, it will not lightly interfere with credibility findings.
Naturally the observations
and findings must be borne out by the
record of proceedings. See
S v Heslop
,
supra
,
para [13];
President of the Republic of South Africa and Others
v South African Rugby Football Union and Others
2000 (1) SA 1
(CC) paras [77] – [80].
[18] The court below
found that the complainant was a credible witness and that her
testimony was satisfactory and clear in all
material respects.
Sefatsa’s evidence corroborated the complainant’s
[single] evidence. He was also found to be credible
and he places the
appellant in the complainant’s presence just prior to the rape
and robbery. It renders the appellant’s
evidence and the alibi
improbable. The first report was likewise found to be credible and
the findings are justified by the record.
[19] This does not mean
that the judgment is perfect, nor need it be. The Court
a quo
made certain factual findings which are not consistent with the
evidence. To name the most prominent, the court finds that it appears
that the complainant did not show the injury on her back to the
doctor, hence the reason why it was not reflected in the medical
examination. The complainant was however very firm regarding the fact
that she did show the injury to the doctor during the examination.
This does not, to my mind, affect the credibility of the complainant.
Her mother also confirmed the injury. The magistrate also
referred to
the fact that the appellant’s alibi only came to the forefront
in his cross-examination by the prosecutor. This
is factually wrong.
The alibi was first disclosed by the appellant in his examination in
chief. What cannot be gainsaid is that
none of the state witnesses
were confronted with the alibi.
[20] The main thrust of
the appellant’s criticism of the trial court’s findings
relates to alleged contradictions between
the evidence of the
complainant during the trial and the content of affidavits [exhibits
“A” and “B”] she
purportedly made to police
officials when the complaint was made. It is argued that in light of
these contradictions the trial
court erred by accepting the
complainant’s evidence, it being single evidence of the rape
and robbery, as it could not be
said to be substantially satisfactory
in every material respect. This aspect can be put to rest without
much ado.
[21] The complainant
testified that she related the events in Sotho to the police officer
who took her statement. The affidavits
were however drawn up in
English by the police officer. The affidavits were never read back to
the complainant before she signed
them. This was not, nor could it
be, disputed without evidence from the police officer who took the
statements. The affidavits
were admitted into evidence as exhibits
“A” and “B”. The appellant’s
representative indicated that
the police officer who took down the
statement would be called by the defence, but they failed to do so.
The affidavits were therefore
not proved nor can they in light of the
unchallenged testimony regarding the afore-mentioned manner in which
they were made, be
used to question the complainant’s
credibility. (
S v Govender and Others
2006 (1) SACR 322
(E);
S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA)
at 593e – 594h). If the considerations referred to in the
aforementioned judgment are applied to this matter, then
the
complainant in any event gave a satisfactory explanation for the
so-called inconsistencies. The inconsistencies were also not
material
so as to affect the complainant’s credibility.
[22] The findings to
which I have referred previously do not detract from the credibility
of the state witnesses, nor do they impact
on the vital question,
namely whether the state proved the appellant’s guilt above
reasonable doubt.
[23] The Appellant’s
representative conceded, correctly, that the late disclosure of an
alibi impacts on the credibility of
an accused and that a false alibi
can also corroborate the single evidence of a competent witness. See
Thebus and Another v S
2003
(10) BCLR 1100
(CC). The
corroboration by Sefatsa,
in casu
, renders the appellant’s
version totally untenable and improbable.
[24] The Court
a quo
evaluated all the evidence, including the nature of the defence case
and the probabilities emerging from the case as well as the
credibility of the witnesses. The court rejected the appellant’s
alibi and, correctly to my mind, found that the appellant’s
guilt had been proved above reasonable doubt. To this end it is
apposite to record that the appellant and his alibi witness
contradicted
each other regarding their movements when they allegedly
left the tavern. Modise was also significantly unconvincing in the
attempt
to satisfy the court that he could account for the
appellant’s whereabouts at all times during that fateful night.
The Court
a quo
clearly approached Modise’s testimony
objectively and in the end rejected it, to my mind, correctly.
[25] It follows that the
conviction must stand.
[26] On behalf of the
appellant it was argued that the Court
a quo
failed to
exercise its discretion properly as it should have found that there
were substantial and compelling circumstances present.
The argument
postulates that the Court
a quo
erred by not deviating from
the prescribed minimum sentence in light of alleged substantial and
compelling circumstances.
[27] The appellant did
not testify in mitigation of the sentence. Save to regurgitate the
very scant factors in mitigation which
were placed on record on the
appellant’s behalf and, which the Court
a quo
properly
took into consideration when balancing the relevant interests
applicable when sentencing an accused, no other circumstances
appear
from either the argument before us or the record which can be said to
not have been properly considered. The sentences are
not shockingly
inappropriate. Having regard to all of the circumstances encountered
in this matter, the minimum sentences imposed
are manifestly fair and
just.
[28] The effect of the
sentences was ameliorated by ordering that they be served
concurrently. This effect is that the appellant
was effectively only
sentenced to ten years imprisonment for his crimes. To my mind there
is no merit in the argument that the
trial court did not exercise its
discretion reasonably.
[29] In result the appeal
against the convictions and the sentences is dismissed.
___________________
N. SNELLENBURG, AJ
I concur.
_____________
L.J. LEKALE, J
On behalf of the
appellant: Mr P. van der Merwe
Instructed by:
Bloemfontein Justice
Centre
Legal Aid SA
BLOEMFONTEIN
On behalf of the
respondent: Adv F.J. Pienaar
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
NS/sp