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2012
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[2012] ZAFSHC 93
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Mphuthi v S (A368/10) [2012] ZAFSHC 93 (10 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A368/10
In the matter between:-
SIMON QALIMOA
MPHUTHI
…................................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
2
MAY 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
10 MAY 2012
_____________________________________________________
[1] On 2 March 2009, the
appellant was convicted on a charge of rape in the Regional Court,
held in Sasolburg. He was sentenced
to 13 (thirteen) years
imprisonment.
[2] He was refused leave
to appeal against both conviction and sentence by the Court
a quo
.
He was, however, granted leave to appeal against both conviction and
sentence by the High Court, per Kruger and Jordaan JJ.
[3] During the trial, the
State led the evidence of the complainant and her mother and
thereafter closed its case. The only evidence
on behalf of the
accused was that of the appellant himself.
[4] The complainant
testified in chief as follows:
4.1 On 1 May 2008 at
about 20h00 she went to Khulu’s Tavern in Zamdela, Sasolburg,
together with a lady called Maniko.
4.2 She left the said
Khulu’s Tavern at about 05h00 the morning of 2 May 2008.
4.3 The whole time that
she was at Khulu’s Tavern, she had been drinking beer with her
friends Bonisiwe and the other lady,
whose name she did not know.
4.4 She could not
remember the quantity of the liquor she had consumed for the duration
of her stay there.
4.5 The appellant also
arrived at Khulu’s Tavern and he probably heard her as she told
her friends that she was leaving, because
he offered to go with her
as they were going in the same direction.
4.6 Along the way, the
appellant slapped her with an open hand, started calling her names
and took out a knife.
4.7 She did not know how
it came about that she should fall, but she nonetheless fell to the
ground and the appellant raped her.
4.8 The appellant left
his belt and the knife, on the spot where he raped her, after the
rape and took her Motorola cellular phone.
4.9 After the appellant
raped her, she ran to her parental home. The appellant chased her
until into the house.
4.10 Her mother heard her
crying and she then opened the door. She and the appellant both
entered the house.
4.11 When her mother
confronted the appellant, the appellant swore at her, and her mother
went to call the complainant’s sister
in order for her to call
the police.
4.12 The appellant then
left for his parental home.
4.13 When the police
came, she and her mother accompanied them to the appellant’s
home where he was arrested in their presence.
4.14 During the arrest,
the appellant’s sister told the complainant’s mother that
the appellant admitted that he raped
her (the complainant). He
further asked the police officer to talk to her that she should not
proceed to press charges against
him and he would work for her. He
further promised that he would buy the cellular phone that he had
taken from her.
[5] Under
cross-examination, she said the following:
5.1 Although she was
earlier at Khulu’s Tavern, she left at some point when it
closed down and went to the stokvel at Mothlokwane’s
place.
That was where she met her friends and where the appellant later
arrived.
5.2 She was further
cross-examined on her statement she made to the police, wherein she
stated among other things the following:
5.2.1 that she was from
Sekwati Tavern in Phase 3 with the appellant;
5.2.2 After the rape, the
appellant took her to her residential place, where she told her
mother that the appellant, who was with
her at the time, raped her.
5.3 She testified that
the incident where she was at Sekwati Tavern was a different, earlier
incident where she was also raped,
but not by the appellant.
5.4 She further could not
say why was it not stated in her statement that the appellant also
took her cellular phone.
5.5 She further never
mentioned that the appellant was armed with a knife and never told
the police that the knife and the appellant’s
belt were left at
the scene of the rape.
5.6 She had reported the
rape to a certain Sememe and the latter found the knife and the belt
at the scene. The police were never
informed about this information.
[6] 6.1 The State also
called the mother of the complainant, who testified that the
complainant was drunk when she came in the house
in the morning.
6.2 She further confirmed
that the appellant admitted having taken the complainant’s
cellular phone in the presence of the
police.
[7] In its judgment, the
Court
a quo
found that although the complainant is a single
witness, the court found her evidence to be credible as she did not
contradict
herself. I find this finding very strange indeed.
[8] I have quoted at
length in respect of the complainant’s evidence to illustrate a
litany of material contradictions between
her testimony in court and
her statement.
[9] The Court
a quo
did not even take into account that crucial witnesses were not called
by the State. The only conclusion which can be made is that
the State
did not call these witnesses as they were not supporting the
complainant’s version. In the circumstances the denial
of rape
by the appellant is reasonably possibly true.
[10] Mr. Pretorius, who
appeared on behalf of the State, also correctly conceded that the
conviction could not be supported, because
of the complainant’s
contradictions and improbabilities in her evidence.
[11] In the light of the
above, it is clear that the conviction should be set aside.
[12] I consequently make
the following order:
12.1 The appeal succeeds.
12.2 The conviction and
sentence are set aside.
_________________
N.W. PHALATSI, AJ
I concur.
_____________________
C.H.G. VAN DER MERWE
On behalf of appellant:
Mr. K Pretorius
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
Ref.: K
PRETORIUS/pl/X379018512
On behalf of respondent:
Adv. Danie J Pretorius
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/sp