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[2011] ZAFSHC 85
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Thaele v S (A41/11) [2011] ZAFSHC 85 (17 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A41/11
In the appeal between:-
DANIEL THAELE
…..................................................................
Appellant
and
THE STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOLEMELA, J
_____________________________________________________
HEARD
ON:
13 JUNE 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
17 JUNE 2011
_____________________________________________________
[1] This is an appeal
against the conviction and sentence. The appellant was tried in the
Ladybrand Regional Court on a charge of
assault with intent to do
grievous bodily harm and one of rape. Notwithstanding his plea of not
guilty, he was convicted as charged
on 29 March 2010. On the same day
he was sentenced to five years imprisonment and life imprisonment in
connection with the assault
and rape charges respectively.
[2] The appellant is
aggrieved by the verdict as well as the punishment. He now comes on
appeal against both. He has an automatic
right of appeal by virtue of
the sentence of life imprisonment imposed on him. The respondent
opposes the appeal.
[3] As regards the
merits, the version of the respondent was narrated by three
witnesses, namely, Ms Makhotso Olga Sefako, an adult
woman 25 years
of age, the complainant in the case; Mr. Ntso Vrydag Mei, aka Tswepe,
a customer and Mr. Pule Isaac Mohalingoane,
aka Mushupu, also a
customer. In addition to the oral evidence, the documentary evidence
by Inspector M.D. Majoro and Dr. W.H.
Enslin was received as exhibit
“A” and exhibit “B” respectively and formally
admitted by the defence.
[4] The complainant and
her friend, Ms Nkele (Mkhele) Ntome were at Lepolankeng Tavern at
Mandela Park, Clocolan on Saturday, 1
March 2008. Early the next day,
Sunday 2 March 2008, at or about 01h30 or 02h00 she left the tavern
alone. On her way home she
was surprised by a man. She identified the
man who stealthily stalked her in a deserted walkway in the middle of
the night as Sono
(or Solo), the appellant. Then and there he
confronted and captured her. She broke loose and tried to flee. The
appellant chased
her, caught her and stabbed her after her fruitless
attempt to escape. He also threatened to kill her if she screamed
again or
tried to run away again.
[5] From Motseng’s
place he took her to two different places where he raped her on two
occasions. He finally took her to his
house where he continued to
rape her. Hours later her two witnesses came in. She whispered to
them what the appellant had done.
They left. Shortly after their
departure she was rescued by the police.
[6] The second
prosecution witness, Mr. Mei, testified that on Sunday 2 March 2010,
he and his friend, Pule, went to the appellant’s
drinking
place, Solo’s Place. There they saw the complainant. The
appellant told them stories of how he found her in his
bed the
previous night. He added that he had sex with her. He also ordered
the complainant to show her injuries to them. Despite
their request,
the appellant refused to let her go immediately. The appellant was
not keen to let her go during daytime because
her clothes were
bloodstained and torn. The complainant managed to tell them that,
contrary to the appellant’s explanation,
she was assaulted by
nobody but the appellant himself.
[7] The witness and his
friend left the appellant’s place. They met the police in the
street and reported the matter. The
evidence of Mr. P.I.
Mohalingoane, the third prosecution witness, was the same as that of
Mr. K.S. Mei in many respects. It is
not necessary to summarise it.
[8] The version of the
defence was narrated by Mr. Thaele Daniel Thaele, aka Solo. His
evidence was that on Saturday, 1 March 2008,
he agreed to pay Tswepe
R400,00 to fetch his wife from Qwa Qwa. The next day, on Sunday 2
March 2008, Tswepe, Mushupu and the complainant
came to his tavern.
He and Tswepe were supposed to travel together to fetch his wife.
While he was busy attending to his other
customers, the two
prosecution witnesses vanished together with the complainant. Shortly
after their disappearance the complainant
re-appeared. She was
accompanied by the police.
[9] On the second
occasion her previous male companions were nowhere to be seen. The
police arrested him in connection with the
complainant’s rape
accusation. He claimed that the complainant and her witnesses had
conspired to falsely accuse him. To
beef up his claim, he alleged
that Tswepe was indebted to him in respect of a motorcar. The
complainant and Mushupu, so he claimed,
collaborated with Tswepe to
falsely incriminate him, because he was their employer.
[10] The trial court
analysed the evidence and evaluated the complainant as follows:
”
Ek is van
oordeel dat daar inderdaad niks inherent onwaarskynlik aan die
klaagster se weergawe is nie wat daarop dui dat haar weergawe
ongeloofwaardig en onbetroubaar is nie. Ek dink ook nie sy het haar
ernstig in haar getuienisaflegging weerspreek nie.”
[11]
The court was aware that the complainant was a single witness. In
considering her evidence, the court carefully scrutinised
it in
accordance with the cautionary rule applicable to the testimony of a
single witness. The court found her evidence materially
satisfied all
the requirements of the rule. She made an extremely good impression
on the court. See
S v SAULS AND OTHERS
1981 (3)
SA 172
(AD).
[12] The court also found
that the version of the complainant was supported by very strong
evidence of two credible and reliable
witnesses, namely, Mr. Mei and
Mr. Mohalingoane. The most important aspects of their evidence was
that they found the complainant
in the appellant’s house; that
she was semi-nude; that she was wounded; that the appellant
volunteered to tell them that
he had sex with the complainant and
that they alerted the police about her plight. Those then were the
strong corroborative features
of the version of the complainant by
the witnesses.
[13] The court commented
as follows about the two witnesses:
“
Dan bevestig
hulle ook dat beskuldigde teenstrydigende verduidelikings gegee het
oor wat daar sou gebeur het. Hy het aanvanklik
die indruk geskep hy
was weg, toe hy terugkom toe kry hy die klaagster daar en dat hy toe
die oggend daar op die bed saam met haar
gekry het en toe met haar
gemeenskap gehou het. Dan ook dat beskuldigde gevra het wat moet hy
nou doen, hier is nou ‘n krisis,
hoe moet hy hou te werk gaan
en hulle aan hom probeer raad gee het hoe om die situasie te hanteer.
Wat hierdie twee here betref Mushupu
en Tswepe het hulle my eweneens beïndruk as geloofwaardige en
betroubare getuies. Ek kan
nog geen onderliggende rede of motief vind
hoekom hulle die beskuldigde valslik sou wil inkrimineer nie.”
[14]
The
court was not at all impressed by the appellant. It evaluated him as
follows:
“
Beskuldigde
daarenteen het my hoegenaamd nie oortuig met sy getuienisaflegging.
Sy getuienis gaan mank aan trefkrag en selfvertroue.
Hy beweer dat
hierdie is ‘n gefabriseerde weergawe teen hom, deur drie
getuies wat hy toegee veral wat die klaagster betref
en Mushupu wat
geen motief het waarvan hy bewus is waarom hy hom sou valslik
inkrimineer nie.”
[15] There is no
appealable irregularity or misdirection committed during the
appellant’s trial. In coming to this conclusion
I am fortified
by the concession made by Mr. Van der Merwe, counsel for the
appellant. The evidence against the appellant was overwhelming.
There
were no contradictions, internal or external, no improbabilities, no
inconsistencies of any note which rendered the veracity
of any of the
prosecution witness suspect.
[16]
On the contrary the court
a quo
found that the appellant was an untruthful
witness, whose version was not only highly improbable, but that it
was beyond reasonable
doubt false.
[17]
We are here sitting as a court with appellate jurisdiction. Because
we are in that mode, we are bound by all the credibility
findings
made by the trial court in respect of each and every witness. It was
never suggested, let alone submitted, that those
findings were
clearly wrong.
J v S
[1998] 2 ALL SA 267
(A);
S v FRANCIS
1991 (1) SACR 198
(AD) at 204 c – e
[18] In the circumstances
I am inclined to dismiss the appeal as regards conviction.
[19] As regards the
sentence, the circumstances of the rape are classified under Part I
Schedule 2. The appellant raped the victim
on three occasions.
Section 51 of Act 105 of 1997 as amended prescribes a minimum
sentence of life imprisonment. The trial court
had a discretion to
deviate from the imposition of the sentence of life imprisonment
provided there were substantial and compelling
circumstances to
justify a less severe sentence.
[20]
The court
a quo
profiled
the appellant’s personal circumstances as follows:
He was never formally
educated.
He was a married man.
He had two minor
children – 13 and 14 years of age.
He was incarcerated for
about two years.
He was a first offender.
Those then were the
mitigating factors.
[21] The court
a quo
also took into account the following aggravating factors:
The nature and the
seriousness of the crime.
The physical injuries
the appellant inflicted on the victim by means of a knife.
The number of occasions
he raped the victim.
The lack of remorse on
his part.
The prevalence of the
offence.
The interest of the
community.
[22] The grounds of the
appeal against sentence were that the court
a quo
misdirected
itself in that it underplayed the mitigating factors but
overemphasised the aggravating factors at the expense of the
appellant. As a result of the misdirection, so contended the
appellant, the court
a quo
incorrectly found that there were
no substantial and compelling circumstances to justify any other
sentence besides the prescribed
minimum sentence of life
imprisonment.
[23]
The court with appellate jurisdiction has limited powers to interfere
with the sentence imposed by the trial court. The recognised
ground
on which we can exercise any appellate interference have been set out
in many decisions such as
S v BERLINER
1967 (2)
SA 193
(A) at p. 200 para E – F;
S v WHITEHEAD
1970 (4) SA 424
(A) at p. 435 par. D;
S v GROSS
1982
(1) SA 593
(A) at p. 600 para D – E;
S v PIETERS
1987 (3) SA 717
(A) at p. 727 para F – G.
[24] In
S v SEEGERS
1970 (2) SA 506
(A) at 510 Rumpff JA restated the principle of
disparity as follows:
“
On the
second issue it is the task of this Court to consider all the
relevant facts, and, having regard to these facts, to determine
what
sentence ought properly to be imposed and to compare such sentence
with the sentence actually imposed. If the disparity between
the
sentence imposed and the sentence that ought to be imposed is of such
a degree that the inference can be made that the trial
Court acted
unreasonably, this Court will alter the sentence imposed.”
[25] In considering what
a proper sentence should be imposed, there are certain features in
the instant case which militate against
the appellate interference
and amelioration of the sentence of life imprisonment imposed. There
is a tendency by certain men to
waylay women at night as they walk
home from taverns in order to rape them. The appellant ambushed the
victim in such circumstances.
The appellant himself, a tavern or a
shebeen proprietor, acted in a manner which was least expected from a
person who earned his
living by running a tavern patronised by people
like the complainant. In the circumstances many people would find his
behaviour
on that point alone as very disgraceful. In my opinion the
court
a quo
was correct to take into account the prevalence of
the type of the offence of which the appellant had been convicted.
[26] Although the
appellant was a first offender and completely illiterate, the manner
in which he went about to accomplish his
criminal mission, was very
violent, cruel and reprehensible. He grievously stabbed her. He raped
the wounded and bleeding woman
for the third time. He forced a huge
quantity of brandy down her throat. He held her captive for hours,
aware of her pains and
her steady deterioration. He refused to let
her go despite her compassionate plea.
[27] He ridiculed her and
exposed her body to his customers to whom he boasted about how she
deliberately seduced him. Within her
hearing he boastfully told them
just how he sexually enjoyed her as if she was manna from heaven.
Those remarks were extremely
hurtful to a wounded, anxious and
fearful woman. The victim’s witnesses also pleaded with him to
let her go, but he flatly
refused. Until when the appellant intended
releasing her was anyone’s guess. What was apparent, though,
was that he was determined
not to release her from captivity during
daytime on that particular Sunday. She was eventually rescued because
the witnesses who
were deeply concerned about what they saw and the
whisper they heard from her, immediately alerted the police. Had it
not been
for them, she would probably have held captive for the whole
day at least.
[28] Mr. Van der Merwe,
who appeared on behalf of the appellant, conceded that the court
a
quo
committed no irregularity or misdirection. He was of the view
that the court
a quo
correctly found that there were no
substantial and compelling circumstances to warrant any interference
with the sentence. Mr.
Pienaar agreed with the concession and the
submission.
[29] I am of the view
that the concession was correctly made. I could find no appealable
misdirection which could be described as
material to vitiate the
sentence imposed on the appellant. I am not persuaded that the
gravity of the crime and the interest of
the community were unduly
stressed at the expense of the appellant’s personal profile.
The aggravating factors clearly eclipsed
the mitigating factors by a
margin so great that I am persuaded that there were no substantial
and compelling circumstances favourable
to the appellant to compel
the conclusion that the prescribed minimum sentence of life
imprisonment was unjust or inappropriate
in this instance. As I see
it, there exists no disparity between the sentence which ought
properly to be imposed in comparison
with the sentence actually
imposed –
S v SEEGERS
,
supra
. Therefore I
would uphold the sentence as well.
[30] Accordingly I make
the following order:
30.1 The appeal fails
in
toto
.
30.2 The convictions and
the sentences are confirmed.
______________
M.H. RAMPAI, J
I
concur.
_________________
M.B. MOLEMELA, J
On
behalf of appellant: Attorney P.L. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. F. Pienaar
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp