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[2013] ZAFSHC 181
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Potgieter v S (A 165/2012) [2013] ZAFSHC 181 (24 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal number: A165/2012
In the appeal between:-
GERHARDUS IGNATIUS
POTGIETER
......................................
Appellant
and
THE STATE
.............................................................................
Respondent
_____________________________________________________
JUDGMENT
BY:
RAMPAI, AJP
et
MOLOI, J
et
PHALATSI, AJ
_____________________________________________________
HEARD
ON:
19 AUGUST 2013
_____________________________________________________
DELIVERED
ON:
24 OCTOBER 2013
_____________________________________________________
[1] This is an appeal.
The appellant was aggrieved by his conviction and sentence. He was
found guilty of rape and sentenced to
eight years imprisonment in the
Bloemfontein Regional Court. The respondent opposes the appeal.
[2] The charge against
the appellant was one of rape. The state alleged that he unlawfully
and intentionally committed an act of
sexual penetration with the
complainant, one Ms Klaas, an adult female by penetrating her
vaginally with his fingers without her
consent; that he committed a
crime in Bloemfontein on 11 November 2009 and that he did so in
contravention of section 3 of the
Sexual Offences and Related Matters
Amendment Act, 32 of 2007 read with specified provisions thereof as
well as those other relevant
statutes.
[3] He was arrested on 11
November 2009. He was released on R1 000,00 bail pending his
trial. His trial commenced in the Bloemfontein
Regional Court on 23
July 2010. He pleaded not guilty before Ms R.M. Sepato, the regional
magistrate. He enjoyed legal representation
throughout his trial.
During his trial he was represented by Advocate Groenewald, Attorney
S. Kambi and Adv I.J. Bezuidenhout.
Those lawyers represented him at
different stages of his trial. The state was initially represented by
Ms L.M. Lekatsa, Mr T.C.
Namola and Ms M. G. Tau.
[4] Notwithstanding his
plea of not guilty the appellant was eventually found guilty as
charged on 13 June 2011.
[5] About five weeks
later, on 21 July 2011, to be precise, he was sentenced to eight
years imprisonment.
[6] On 8 September 2011
the appellant unsuccessfully applied for leave to appeal against the
conviction and the sentence.
[7] The appellant now
comes before us with the leave of this court. The petition order was
granted on 23 April 2012 by Van der Merwe
J
et
Phalatsi AJ.
[8] The version of the
prosecution was narrated by three witnesses:
Ms Nonqceba Magdeline
Klaas – the victim;
Ms Thondai Joyce Mpahlo
– the intermediary between the victim and the appellant; and
Detective-Constable
Sello Jonas Mosoeu – the investigating officer.
[9] The version of the
defence was narrated by two witnesses, namely:
Mr Gerhardus Ignatius
Pogieter – the appellant; and
Ms Michelle Lorraine
Potgieter – the appellant’s ex-wife.
[10] The verdict of the
court a quo
was that the appellant was guilty of raping the
victim. The trial magistrate found that:
“
The
complainant herein impress (sic) me as an honest witness. I do not
find any reason to doubt her honesty herein. I find that
I can rely
on her. You did penetrate her vagina with your fingers.”
[11] The appellant’s
appeal against the conviction was based on many grounds. Among
others, the grounds relied upon were:
that the court
a quo
erred in convicting the appellant because the trial magistrate did
not expressly find that his version was not reasonably or possibly
true; that the court
a quo
erred in rejecting the evidence of
Ms Potgieter which substantiated that of the appellant in material
respects; that the court
a quo
erred in overlooking material
contradictions between the evidence of the complainant on the one
hand and those of the other two
prosecution witnesses on the other;
that the court
a quo
erred in underplaying the material
contradictions in the complainant’s own evidence; that the
court
a quo
did not approach the evidence of the complainant
as a single witness with necessary caution; and that the court
a
quo
erred in finding that the evidence tendered by the
prosecution proved the guilt of the appellant beyond reasonable
doubt.
[12] The
onus
rests on the respondent to prove the guilt of the appellant beyond
reasonable doubt –
S v Phallo
1999 (2) SACR 558
(A). No
onus
rests on the appellant to convince the court of
his innocence. A court is not entitled to convict unless it is
satisfied not only
that the accused’s explanation is improbable
but that it is beyond reasonable doubt false –
R v
Difford
1937 AD 370
on 373.
[13] The test is whether
there is a reasonable possibility that the accused’s version
may be true –
S v V
2000 (1) SACR 435
(SCA).
In
S v Shackell
2001 (4) SACR 1
(SCA) at para [30] the court said the following about
probabilities:
“…
Of
course it is permissible to test the accused’s version against
the inherent probabilities. But it cannot be rejected merely
because
it is improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.”
[14] The author A Kruger:
Hiemstra, 2009: p559 states that in a case where there were no
eye-witnesses to the incident the court
has to look for other
credible evidence that tends to make the complainant’s version
more probable than that of the accused.
Conversely, the court has to
look for other credible evidence that tends to make the accused’s
version less probable than
that of the victims.
“
Wat vereis
word is geloofwaardige getuienis wat die klaagster se weergawe meer
waarskynlik maak en die beskuldigde se weergawe minder
waarskynlik.”
[15]
S v Chabalala
2003 (1) SACR 134
(SCA) para [15]:
“
The correct
approach is to weigh up all the elements which points 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 weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[16] The evidence showed
that the appellant lived on a plot at Lakeview east of Bloemfontein.
His family of four had no domestic
worker. The family had a gardener.
On Tuesday, 10 November 2009, the appellant and his gardener drove to
Bergman Square to look
for a domestic worker. Ms T.J. Mpahlo was
interested. The appellant picked her up and drove back to his plot
with her and the gardener
who had introduced them to each other. On
the plot Ms Mpahlo met the appellant’s wife, Ms Potgieter. Ms
Potgieter told her
that she wanted someone who could work a five day
week. Since Ms Mpahlo was already working elsewhere for three days
per week,
she was unable to accept the offer of employment as a
domestic worker to the appellant’s family. All the same she
casually
worked for half-day on that particular day for the
appellant’s family. She earned R40,00. She undertook to look
for someone
at the request of the appellant’s wife who would be
interested to work for five days per week.
[17] In the evening of
the same day Ms Mpahlo informed the complainant, Ms Klaas, about the
request of the appellant’s wife.
The complainant became
interested. The two ladies made suitable arrangements for the
complainant to meet her prospective employer.
[18] The next morning,
Wednesday, 11 November 2009, the complainant and the appellant met
outside Ms Mpahlo’s residence. From
there they drove together
from Bergman to Lakeview. Ms Mpahlo later heard from the
complainant’s husband about the rape incident.
She and the
complainant did not subsequently meet again.
[19] The evidence of the
complainant was that on her arrival at the appellant’s house
she briefly met the appellant’s
wife. Shortly after their
meeting, the appellant’s wife drove away to take the children
to school. She stated that the appellant
remained behind with her in
the house. She was busy washing dishes in the kitchen when the nude
appellant entered the kitchen.
She was so shocked she could hardly
say or do anything when he suggestively wrapped his arms around her
from behind. From the kitchen
he took her to the bedroom, undressed
her, put her on the bed lied between her legs, inserted two fingers
of his one hand into
her vagina while at the same time he was using
his other hand to sexually stimulate himself in order to get his
penis erect. In
the process of fiddling with his and her genitalia,
he became so sexually aroused that he ejaculated on her belly. She
was crying
during the sexual ordeal.
[20] When the appellant
had gratified his sexual desire, he wiped off his semen from her
belly with a towel. He then washed the
towel by means of a washing
machine. After the incident she continued to work because the gates
were locked and there were vicious
dogs on the premises of which she
was scared. She sent a “please call me” sms to her
husband but he did not immediately
respond. A few hours later, the
appellant allowed her to leave. She tearfully left the appellant’s
house before his wife
had come back. He escorted her to the last gate
to see her off. On the way he asked her about her previous
employment. He asked
her not to be angry and to come back the next
day.
[21] She made the first
report about the rape incident to her husband. Subsequent to that she
reported the matter to the police.
The witness’s statement was
taken down by Det-Const S J Mosoeu –
vide
exhibit “a”.
She spoke isiXhosa and the investigating officer wrote down her
statement in English. The appellant was
arrested in the evening on
the same day.
[22] The investigating
officer met the complainant at Bloemspruit Police Station on
Wednesday, 11 November 2009. She was emotionally
distressed. She was
still tearful. He gave her 15 minutes to calm down before he could
start to interview her. His evidence was
that he accurately took her
statement down. He read it back to her from where he took her to
Tshepong Centre where Sr Seekoei,
the forensic nurse examined her –
vide
exhibit “b”. From the centre the victim led
him to the scene, in other words, appellant’s place of
residence.
She pointed the appellant out as the culprit. He then and
there arrested him. He replied that the complainant told him every
detail
contained in her statement. He said he was not to blame for
the discrepancies in the statement.
[23] The version of the
appellant was that his wife could not cope with the huge pile of
family washing. She requested him to get
a casual domestic worker to
help her reduce the huge pile of washing workload. He lived on a plot
in Eeufees Road at Lakeview.
With the aide of his gardener he drove
to Khayelitsha. About 4km from his plot he met the second prosecution
witness. He took the
witness home. His wife negotiated the deal with
the witness. She agreed to help for one day. The two ladies agreed
that the witness
would do the washing; that she would also do the
ironing, that she immediately started at or about midday; and that
she could earn
R40,00. His wife wanted the witness to return the next
day to work for two more days, in order to finish all the washing and
ironing,
but the witness could not accede to that request. However
she promised to find someone. He and the witness made arrangements
concerning
the possible and temporary worker. He then took the
witness back.
[24] The next day he
drove back to Khayelitsha where he met the complainant at or about
06:00. He picked her up and drove back to
Lakeview. His wife was
running late, she had a meeting to attend in the city, but first had
to drop off one child at school at
Fichardtpark and another at a
day-care centre. He helped his wife to get the children ready. While
they were doing so he asked
the complainant to wash the dishes. She
was still busy with the dishes when his wife and the children drove
off. But before she
left she told the complainant that she would talk
to her at 14:00.
[25] When the complainant
was done with the dishes he showed her the iron, the basket of dried
things she had to iron, the washing
machine and the washing line. He
told her that his wife would probably pay her R70,00 per day for both
washing and house cleaning.
The complainant, he testified, wasted no
time to reject the rate of pay and indicated that she would accept
nothing less than R180,00
per day. He told her her expectations were
unrealistic and that she should rather go. He called his wife and
told her. She told
him to ask the complainant to wait for her.
[26] The complainant was
not keen to work seriously after the initial talk she had with him
about the wages. She begged for food,
did some washing and ironed a
little. She idled a lot, she just sat and relaxed. He saw her sitting
on a garden chair on the veranda
most of the time. When he enquired
why she was doing nothing, her response was that she was done with
the ironing and that she
was waiting for the wet goods that were
hanging on the washing line to get dry so that she could start
ironing again. He then asked
her to start cleaning the house in the
meantime. The complainant refused to do any cleaning because, as she
said, the money was
not enough.
[27] He told the
complaint: that he knew her previous employer Leon well; that he did
not believe her claim that she left her previous
employer because he
had assaulted her; and that she must have stolen from her previous
employer which was why she was dismissed.
As a result of that the
complainant became angry and threatens to go to the police. She made
a call. After making a call she immediately
demanded R70,00 from him.
He did not have the money to pay her. In spite of that she refused to
wait any longer for his wife. So
he let her go. By eleven o’clock
she was gone from the plot.
[28] At 19:00 on that
very same day, the complainant returned to his plot with the police.
The complainant pointed him out to the
police. He was really shocked
when the investigating officer told him that he was there to arrest
him for raping the complainant.
[29] He denied the
allegations: that he expressed his amorous interest in the
complainant soon after picking her up; that he told
the complainant
he preferred slender women; that he walked nude into the kitchen;
that he seductively caressed her; that he took
her to the bedroom;
that he inserted his finger in her vagina; that he ejaculated on her
belly; that the complainant was ever in
his bedroom; that she ever
cleaned the house; and that he negotiated the terms of the agreement.
[30] The appellant’s
wife testified on his behalf. She corroborated her husband on what
happened in their house before she
left for work. Her evidence, for
obvious reason, was on peripheral and not material issues. She was
not present at the critical
time of the incidents.
[31] The two versions
were mutually irreconcilable. Because they were, we were called upon
to carefully examine the evidence in
order to ascertain whether or
not there were favourable aspects which rendered the complainant’s
version more probable than
that of the appellant. The converse also
holds truth. The converse requires that we also ascertain whether the
evidence contained
unfavourable aspects which rendered her version
less probable than the appellant’s – Hiemstra,
supra
.
[32] The appellant’s
version was that he did not rape the complainant and that she falsely
accused him. He gave two reasons
why he believed she chose to lay a
false charge against him, a completely innocent man. The first was
that she felt she could not
work for a meagre amount of R70,00 wages
per day. She reckoned that the money was too little. As a result of
that she repudiated
the offer.
[33] The complainant
denied that money, or rather the wages, had anything to do with the
criminal charge of rape that she laid against
the appellant.
According to her the appellant’s indecent and unlawful actions
had everything to do with the criminal charge.
[34] It was undisputed
that Ms Mpahlo recruited the complainant at the request of the
Potgieters. It was also common cause that
she worked for that couple
for half a day and that she earned R40,00. She accordingly informed
the complainant. However, the evidence
of the complainant was
slightly different. That difference is of utmost importance. Her
evidence was that Ms Mpahlo told her that
she would be remunerated at
the rate R30,00 per day.
[35] We know that the
appellant and the complainant did not discuss details of her wages on
the way from her neighbourhood at Bergman
to his plot at Lakeview.
That was also common cause. But to his plot she willingly went. What
emerged from all these undisputed
aspects of the evidence was that
her expectations were very modest. She went to the interview
expecting to earn hardly R40,00 per
day. She was prepared to work for
75% of that amount.
[36] Now, it appeared
highly improbable to me that a domestic worker who was prepared to
work for R30,00 per day would have summarily
rejected an offer of
R70,00 per day, an amount which was more than double the figure of
the wages she realistically expected to
earn. That offer was the
equivalent of 233% of what she expected to earn. In my view the
appellant’s claim that the complainant’s
inflated an
unrealistic demand of R180 per day set the two on the initial course
of collision was not only far less improbable
than the complainant’s
version but was inherently untrue. Accordingly I find that money had
nothing to do with the complainant’s
decision to lay the
criminal charge against the appellant. There was no such proven
ulterior motive.
[37] The appellant also
believed that the complainant falsely accused him because he had
branded her a thief. Perhaps the appellant’s
second reason
needs to be contextualised. He wanted to know from the complainant
where she previously worked and why she left her
previous employment.
The complainant answered him. However, he disbelieved her explanation
as to why her contract of employment
was terminated. He told her that
her previous employer, one Leon, was too good a shopkeeper to assault
his employee as she alleged.
He then put it to her that she must have
stolen from Leon which was why he dismissed her. Because he accused
her of stealing, so
he testified, she was so angered that she decided
to leave immediately and threatened to lay a criminal charge against
him. He
told her to please herself. She then went to the police where
she concocted a false story against him.
[38] The complainant
admitted: that there was some discussion about her previous
employment between her and the appellant; that
the employment
relationship between her and her previous employer soured; that on
account of her previous employer’s aggressive
conduct towards
her, she went to the police and laid a criminal charge against him;
and that as a result of her doing so, her previous
employer dismissed
her. However, she denied: that she had falsely accused her previous
employer; that she had stolen anything from
his shop; and that she
was not a dishonest person as the appellant alleged she was.
[39] The version of the
appellant was improbable. He wanted the court to believe that the
complainant laid a false charge against
him merely because he had
branded her a thief. His version failed to impress the court
a
quo
. It did not impress me either. The evidence of the
complainant was simple. It was not what was said but rather what was
done to
her that prompted her to go to the police. It was not the
anger of being labelled a criminal that prompted her to go to the
police.
It was the emotional hurt of been sexually degraded,
humiliated and objectified that forced her to do so. From the
appellant’s
plot she went home and from there to Bloemspruit
Police Centre where she reported the incident. She was so emotionally
distressed
that she could not immediately explain what was wrong. She
was given 15 minutes to calm down. The interview was done by the
investigating
officer. She tearfully narrated details of the incident
to him.
[40] I find it difficult
to believe that the complainant behaved in that way merely because
the appellant had called her a thief.
There was much more to her
conduct than that. Her behaviour was an outward manifestation of deep
emotional distress. Her obvious
emotional distress was, in my view,
indicative of physical sexual abuse rather than mere derogative
verbal abuse. It seemed quite
unlikely that anger engendered by mere
verbal abuse would make a reasonable and normal person to overreact
the way the complainant
did. Her conduct went far beyond mere anger.
It demonstrated the deep and raw scars of her wounded soul – a
hurtful invasion
of her privacy, violation of her human dignity and
an attack of her femininity. Her conduct was precisely consistent
with what
a reasonable observer would have expected from a woman who
had been sexually molested.
[41] I would therefore
also reject the appellant’s version in this regard. His version
was less probable than that of the
complainant. I have outlined
credible aspects of the evidence to support this conclusion. I am not
persuaded that the complainant
was actuated by any ulterior motive to
falsely implicate the appellant.
[42] The mere fact that
the complainant had once laid a criminal charge against her previous
employer did not render her evidence
against the appellant, as her
then employer, suspect. The appellant knew Leon very well but he did
not call Leon to say that he
was once wrongly arrested and prosecuted
on the strength of a false charge laid against him by the very same
woman, the complainant.
There was no evidence in the court
a quo
that the complainant was discredited and exposed as an untruthful
witness and that, as a result of her lies, Leon was wrongly
prosecuted, but ultimately acquitted. Therefore, counsel’s
submission that the court
a quo
should have considered the
possibility of similar fact evidence was devoid of any substance. In
this matter there was no sound
reason to entertain any fanciful
possibility based on similar fact or deceptive pattern laced with
false evidence.
[43] The appellant
alleged that the complainant demanded R70,00 from him before she left
at 11:00. Because he did not have money,
he told her to wait for his
wife. She was expected to be back home at 14:00 or so.
Notwithstanding his explanation and request
the angry complainant
refused to wait. The complainant’s version was that after the
incident she decided to quit. She admitted
that the appellant had
asked her to wait for his wife to take her home. But she was not
prepared to wait any longer. He let her
go but asked her to come back
the next day.
[44] Ms Bezuidenhout
submitted that one would not expect a rape perpetrator to ask a rape
victim to wait for his wife since giving
the victim such an
opportunity could entail the risk of having the incident reported to
the perpetrator’s spouse by the victim.
There was no merit in
the submission. The request was not necessarily indicative of the
appellant’s probable innocence as
it was argued. Those who are
experienced in dealing with rape cases would know that some rape
perpetrators violate inmates of their
own households, such as nieces,
stepdaughters, daughters and even housekeepers in the hope that the
victims would not tell because
such victims are often economically
dependent on their abusive providers or perpetrators.
[45] The complainant
denied that before she left, she demanded to be paid. Although she
admitted that the appellant indeed asked
her to wait for his wife,
she denied that the purpose for the waiting had anything to do with
the payment of her wages. Her explanation
was never disputed while
she was still in the witness box. She further averred she was engaged
on permanent basis by the appellant.
The appellant and his wife tried
very hard to persuade the court
a quo
that the complainant was
to be engaged, but that she was factually never engaged as a casual
domestic worker. The appellant’s
belated version, which was
supported by his ex-wife, was that the couple did not contemplate
employing the complainant as a permanent
domestic worker. But that
version was never put to the complainant, nor was it ever put to Ms
Mpahlo.
[46] I am persuaded that
the complainant did not do what she did for money. Since she was
permanently employed, she did not expect
to be paid anything on that
first day. It is improbable, therefore, that she would have demanded
any payment as the appellant alleged.
The suggestion that she laid a
false charge against the appellant because he could not pay her the
R70,00 she demanded falls to
be rejected. The couple’s evidence
that she was employed on an
ad hoc
basis was therefore untrue.
That version could not be reconciled with Ms Mpahlo’s evidence
which was unchallenged. Her credible
evidence materially corroborated
the complainant’s version on the point.
[47] The complainant was
recruited by Ms Mpahlo. She could not be employed by the Potgieters
because they did not want a casual
someone. The complainant was
recommended because she, unlike Ms Mpahlo, could work a five day
week. The appellant’s evidence
to the contrary was therefore
patently false. It was calculated to deceive the court
a quo
.
It was a desperate attempt to explain without success, why the
complainant unceremoniously left the job she clearly needed.
[48] Ms Bezuidenhout
devoted a great deal of time to almost every single unfavourable
aspect of the prosecution case. In my view
most of the critique was
concerned with immaterial aspects of what took place before and after
the incident. The exact room where
the victim was undressed was cited
as one of the examples which indicated that she was not a truthful
witness. In paragraph [7]
exhibit “a” it was stated that
the complainant’s dress was left in the kitchen. That,
according to counsel, suggested
that the undressing took place in the
kitchen and not in the bedroom.
[49] The encounter
between the appellant and the complainant took place in the kitchen.
That kitchen encounter is described in paragraph
[6] exhibit “a”.
In paragraph [6] nothing is said about undressing or a dress. The
penetration is described in paragraph
[7]. In that paragraph the
events in the bedroom are discussed. The word “dress” and
not “undressing” as
well as the word “kitchen”
were somehow uncomfortably squeezed into the first line of paragraph
[7] obviously as an
afterthought. The statement as a whole was so
poorly written and so fraught with errors that the complainant’s
testimony
must, in my view, prevail wherever there is any
inconsistency between her testimony and her police statement –
S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA).
[50] The investigating
officer did not impress me as a witness. He made a long sermon which
was not asked for in an effort to convince
the court below about his
competence as an investigating officer. He was obviously blowing his
own trumpet. The complainant’s
version was that he did not
fully concentrate on the interview. She said that her husband even
asked him to pay attention to his
wife. That request, she said,
annoyed the investigating officer so much that he chased her husband
out of the consultation room.
Moreover, isiXhosa was not his
mother-tongue. Therefor, cultural or linguistic barriers might well
have had some adverse impact
on the interview and ultimately the
witness’ statement.
[51] Where a police
officer, who ordinarily speaks Sesotho, interviews a witness who
speaks isiXhosa, records the statement in English,
the third language
which neither the witness nor the police officer is very conversant
with, serious misunderstanding of the facts
is bound to occur. We
have to be mindful of such cultural differences and the adverse
impact it may have on an otherwise credible
and reliable witness.
Recognising that the truth almost lies beyond linguistic
determination, the courts have to be alive and vigilant
to such
dangers bearing in mind that almost invariably, police officers would
seldom acknowledge that they erroneously recorded
the conversation.
[52] Whether the
appellant inserted one, two or more fingers in the victim’s
vagina does not really alter the nature of the
prohibited criminal
conduct. She was adamant that the appellant, without her consent and
against her will, undressed her in his
house, put her on his bed,
sexually imposed himself on her, stroke her exposed breasts, inserted
one finger, at least, in her vagina,
pleasured himself until he
ejaculated on her belly. The appellant’s denial that the
complainant was ever in his bedroom was
untrue. Firstly, because the
appellant himself testified that he at one stage ordered the
complainant to clean the house. Secondly,
her evidence that she
factually cleaned the house was never challenged. We have to accept,
therefore, that she did.
[53] The court
a quo
heard for the first time when the appellant testified that the victim
refused to clean the house. Since it was never put to the
victim that
she did not clean the house the appellant’s evidence to the
contrary has to be rejected as untrue.
[54] The appellant cannot
escape criminal liability or criminal responsibility by shifting the
blame to his legal representatives.
In any event it would be
ridiculous to suggest that the victim cleaned all the rooms save for
the appellant’s bedroom. The
appellant knew that something
untoward happened in his bedroom hence his belated denials. I am not
persuaded by his belated allegation
that the complainant was never
there in his bedroom and that she never cleaned his bedroom.
[55] I deem it
unnecessary to overburden this judgment with comments on a number of
other insignificant collateral matters, including
but not limited to
the following:
The escorting of the
complainant to the washing line; the remarks about slender woman or
girlfriend; the so-called bathroom episode;
the vicious dogs; and the
immaterial contradictions, internal or external, allegedly associated
with all those matters. In my view
there were no material
contradictions to warrant the total repudiation of the complainant’s
version.
[56] Ms Potgieter gave no
direct evidence concerning the incident itself because she was not
present. The greatest weakness in her
evidence was her apparent lack
of objectivity. The evidence portrayed her as a very biased witness
who, in spite of the fact that
she was not on the scene of the crime,
openly stated that the appellant did not do it and that the
complainant was a liar. She
clearly showed that she would do
anything, whatever it takes, including denying the truth, in order to
protect her former husband.
Her husband, in very racially derogative
terms labelled the complainant as a lazy beggar, a thief and a liar.
Ms Potgieter agreed
with the latter description without any objective
facts. An objective and unbiased witness in her position would have
said something
along the following lines:
“
Naturally I
want to believe my husband. He says he did not do it. However,
because I was not there, I cannot judge him or the complainant
–
but the court will.”
[57] Notwithstanding all
the discrepancies in the evidence tendered by the prosecution
witnesses and all the shortcomings of the
judgment by the court
a
quo
, I am satisfied that the version of the appellant was not
just improbable but that it was beyond reasonable doubt false. It was
implicitly rejected, and correctly so, in my view. The mere fact that
the court
a quo
did not expressly reject the appellant’s
version as beyond reasonable doubt false does not mean that the
appellant’s
version was therefore reasonably true. The
appellant was not entitled to the benefit of such an omission because
a criminal trial
is not a game of tennis, and we are not sitting on
this appeal bench like umpires in the game of tennis –
Rex
v Hepworth
1928 AD 265
on 277.
[58] The court
a quo
was alive and mindful of the principle that the evidence of a single
witness must be treated with caution. Indeed the court not
only
warned itself but also treated the evidence of the complainant with
caution because the court a
quo
was aware that she was a
single witness.
[59] In my view her
evidence was satisfactory in all material respects notwithstanding
its imperfections. The law does not require
a single witness to give
a perfectly flawless account of an incident. All the court
a quo
was required to do, was to be humanly convinced that the truth had
been told. The law required nothing more and nothing less –
S
v Guess
1976 (4) SA 715
(AD);
S v Sauls and Others
1981 (3) SA 172
(AD);
S v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(AD) at
632F – 635I.
[60] To a very large
extent this appeal focused on the defects of the judgment of the
court
a quo
rather than the substantive merits of the case
against the appellant. I accept that the critique levelled against
the court
a quo
was fair in certain respects. However, I was
not persuaded that the ultimate conclusion as to the guilt of the
appellant was wrong.
On the facts, the conclusion was correct in law.
In my view, the court
a quo
committed no appealable
misdirection as alleged or at all on the question of law or fact. In
the absence of any material misdirection
no appellate interference
would be justified –
S v Francis
1991 (1) SACR
198
(AD) at 204c - e. I would, therefore, uphold the conviction. As I
see it, none of the grounds of the appeal relied upon, can be
upheld.
[61] Before I proceed to
deal with the appellant’s challenge concerning sentence, I have
to point out that Ms Bezuidenhout
referred us to the decision in
S
v Kubeka
1982 (1) SA 534
(W) at 537F – G. I draw
counsel’s attention to the subsequent and authoritative
decision in
S v Van Aswegen
2001 (2) SACR 97
(SCA) at p
100 paras [7] and [8] which expressly overruled the
Kubeka
decision as regards the appropriate test. Accordingly that decision
and any other decision premised thereon is, with respect, no
longer
good law.
[62] As regards the
sentence the principle is clear and trite. The sentencing of an
offender is the business of a trial court. It
is the discretionary
prerogative of the trial court to sentence an offender. Sitting as we
are, in an appellate mode, we cannot
interfere with the sentence
imposed by the trial court on the grounds that sitting as a court of
first instance, we would have
exercised that discretion differently –
S v Salzweden and Others
1999 (2) SACR 586
(SCA).
[63] In sentencing the
appellant the court
a quo
took into account the following
circumstances:
The appellant was 45
years of age; he was self-employed; his highest scholastic
achievement was N6; he was a divorced father of
two minor children;
he and his ex-wife were still living together as husband and wife;
and he did not enjoy good health.
[64] The court
a quo
also took into account the following aggravating circumstances: the
complainant was helpless; she was alone with the appellant
in the
house; the gates were locked; she was afraid of the appellant’s
dogs; the appellant threatened to set the dogs on
her if she
attempted to run away; she was a married woman; she was financially
vulnerable; the appellant showed no remorse and
he unjustifiably
called her a thief, a beggar and a liar. She was literally detained
as a captive for a few hours after the rape
incident. The appellant
exploited her socio-economic plight.
[65] The court
a quo
also took into account the seriousness of the offence as well as the
interest of the community. There can be no doubt that the
interest of
the community require that vulnerable employees be protected against
abusive employers and that the pervasive scourge
of rape must be
arrested and reduced. The underlying purpose of section 51 of the
Criminal Law Amendment Act 105 of 1977 as amended
read together
section 3 Sexual Offences and Related Matters Act 32 of 2007 is to
have the prevalent rape incidents, among other
very serious crimes,
reduced by preventatively, deterrently and retributively punishing
rape offenders.
[66] The court
a quo
found that there were substantial and compelling circumstances which
justified the imposition of a sentence less than the prescribed
minimum sentence of ten years for a first time rape offender. By
virtue of that finding the court
a quo
imposed a sentence two
years less than the prescribed minimum sentence. Ms Bezuidenhout
submitted that interference with that sentence
was justified because
the appellant’s penetration of the complainant by means of a
finger was not as morally blameworthy
as penetration by a penis.
Counsel submitted that the court
a quo
did not attach
sufficient weight to the manner in which rape, in this particular
instance, was committed. But Mr Mohlala differed.
[67] The incident of
finger rape allegations has become very prevalent particularly in
cases involving small children. While the
offender’s moral
blameworthiness is an important factor in the sentencing of an
offender, care must be taken not to put too
much emphasis on whether
or not rape was committed by means of a penis or a finger. Unless we
guard against such danger, the very
purpose for which the measure was
enacted may well be frustrated.
[68] In sentencing the
appellant the court
a quo
said:
“
Of course I
take into account that a penis was not used.”
It is quite clear that
the court
a quo
considered
that lack of penal penetration and all the health risks associated
with it, was one of the factors which substantially
compelled
deviation from the prescribed minimum sentence of 10 years. In the
light of the aforesaid extract it cannot be argued,
with conviction,
that the trial court underplayed the alleged low moral
blameworthiness of the appellant’s actions.
[69] On the facts I am
not persuaded that the court
a quo
did not attach adequate
weight to the moral blameworthiness of the appellant’s conduct.
In my view that factor was taken
into account. It must be borne in
mind that the trial court has a discretion to decide which factors to
be taken into account and
what value must be attached to those
factors in the sentencing of an offender –
S v Kibido
1998 (2) SACR 213
(SCA) at 216g – j. In the circumstances I not
persuaded that the court
a quo
improperly used its discretion
in sentencing the appellant. Instead I am persuaded by Mr Mohlala’s
submission that no case
has been made out for any appellate
interference.
[70] Accordingly I make
the following order:
70.1 The appeal fails in
toto
;
70.2 The conviction and
the sentence are confirmed.
_________________
M. H. RAMPAI, AJP
I concur.
____________
K.J. MOLOI, J
I concur.
_________________
N.W. PHALATSI, AJ
On
behalf of appellant: Adv. I. J. Bezuidenhout
Instructed
by:
UFS
Law Clinic
BLOEMFONTEIN
On
behalf of respondent: Adv. M.A. Mohlala
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb/sp