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[2013] ZAFSHC 158
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Lapisi v S (15/2011) [2013] ZAFSHC 158 (22 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 15/2011
In the appeal of:
TSEKO ABRAM LAPISI
...........................................................
Appellant
and
THE STATE
..........................................................................
Respondent
JUDGMENT:
MOLOI, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 AUGUST 2013
_____________________________________________________
DELIVERED ON:
22 AUGUST 2013
_____________________________________________________
[1] The appellant came
before us on appeal against the conviction on a charge of rape by the
Regional Court, leave to appeal having
been granted by this court on
petition. The appeal was against the conviction only.
[2] The evidence of the
complainant was that on the evening of the 11
th
of October
2008 she was walking from a garage where she was to meet someone. As
she was walking a person unknown to her approached
her from behind
and grabbed her by her clothes in front of her chest with a hand in
which he was also holding a knife. The unknown
person dragged her
into the nearby premises and had sexual intercourse with her while
she was pressed against a wall. When this
happened the complainant
was screaming and somebody from the adjacent house came out and the
appellant, who ran away, was chased
after, caught and brought back to
the scene. The police were called and the appellant was arrested.
[3] Dasi Aletta Maqhosa
testified that she was sleeping in her house next to the premises
where the complainant was taken to. She
heard screams for help and
went out to see what was taking place. She saw a woman pinned against
the wall and a man having intercourse
with her while he shouted “shut
up”. She called neighbours to assist and they eventually
arrested the man that she
recognised as the appellant whom she had
known before. The complainant was distraught.
[4] The appellant
testified that he met the complainant when he was from a tavern. He
spoke to the complainant and they went to
another tavern together
where they had beer. He made a proposal to the complainant and she
accepted. He and the complainant agreed
on having sexual intercourse.
He penetrated the complainant with his male organ but they did not
have sexual intercourse as they
were interrupted. The appellant, when
he disclosed the basis of his defence in terms of
section 115
of the
Criminal Procedure Act 51 of 1977
at the commencement of the trial,
had admitted having been with the complainant on certain premises and
that they had agreed to
have sexual intercourse against payment to
her of an amount of R100.00 (one hundred rand) but they were chased
away by someone
even before they could engage sexually and that the
act was consensual. The two defence witnesses called could not take
the matter
any further as testified about having been in the company
of both the complainant and the appellant where they all drank beer.
[5] The trial court,
correctly so in my view, found the corroborated evidence of the
complainant to be reliable and as constituting
proof beyond a
reasonable doubt by the state. The trial court further rejected the
defence version as false for being contradictory
and being negating
the plea explanation given at the commencement of the trial. In the
heads of argument the appellant contended
that the trial court did
not seem to have applied the cautionary rule applicable to a single
witness and thus the state case was
not proved beyond a reasonable
doubt. This argument cannot hold as there was corroboration by two
independent witnesses concerning
the rape itself and consequently,
the complainant was not a single witness in the classical sense. Dias
Aletta Maqhosa and Chabalala
found the appellant on top of the
complainant performing the sexual act.
[6] In the premises the
appeal must fail and the following orders are made:
6.1. The appeal is
dismissed;
6.2. The conviction on
a charge of rape is confirmed;
6.3. The sentence of
ten (10) years imprisonment imposed by the trial court on 12 October
2010 is hereby confirmed.
_____________
K. J. MOLOI, J
I concur.
_________________
N. W. PHALATSI, AJ
On
behalf of the appellant:
Adv. S.
Kruger
Instructed
by:
Legal
Aid
BLOEMFONTEIN
On
behalf of respondent: Adv. C.F.
Steyn
Instructed
by:
The
Director of Public Prosecution
BLOEMFONTEIN
/SvdW