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[2010] ZAFSHC 66
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Ramatsosa v S (A41/2010) [2010] ZAFSHC 66 (8 July 2010)
11
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: A41/2010
In the
case between:
TSHEPO
CHARLES RAMATSOSA
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE, J
et
MTHEMBU, AJ
JUDGEMENT:
MOCUMIE, J
HEARD
ON:
3 MAY 2010
_______________________________________________________
DELIVERED
ON:
8 JULY 2010
MOCUMIE J
[1] The appellant was
convicted on 15 April 2009 of the rape of a 14 year old girl in the
Regional Court, Edenburg, Free State.
On 21 May 2009 he was
sentenced to 12 (twelve) years imprisonment. With leave of the
trial Court he now appeals against his
conviction. The appellant’s
defence was that they had consensual sexual intercourse.
[2] Mr Nkhahle, the
appellant’s counsel who did not represent him at the trial,
raised as a preliminary issue that the record
was defective because
portions of the appellant’s evidence which was mechanically
recorded could not be transcribed because
of inaudibility. It is
trite that when a record of proceedings is lost, destroyed or
defective in material parts an order should
be issued for the
reconstruction thereof from all available sources along the guide
lines set out in
R
v Wolmarans
1942 TPD 279.
[3] The investigation that we
have to undertake is firstly whether the inaudible portions or
missing areas of the evidence is
material. The applicable
principle was enunciated in these terms by
Brand
JA
in
S
v Chabedi
2005(1) SACR 415 (SCA) at 417d-h (para 5 and 6)
“
[5] On appeal, the
record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole
basis of the
rehearing by the Court of appeal. If the record is inadequate for a
proper consideration of the appeal, it will,
as a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate
for proper consideration of the
appeal; not that it must be a perfect recordal of everything that
was said at the trial. As has
been pointed out in previous cases,
records of proceedings are often still kept by hand, in which event
a verbatim record is
impossible (see, eg, S v Collier
1976 (2) SA
378
(C) at 379A - D and S v S
1995 (2) SACR 420
(T) at 423b - f).
[6] The question whether
defects in a record are so serious that a proper consideration of
the appeal is not possible, cannot
be answered in the abstract. It
depends, inter alia, on the nature of the defects in the particular
record and on the nature
of the issues to be decided on appeal. ”
See also
S
v Joubert
1991(1) SA 119 (A) at 126 D-H.
[4] In this case the
following happened in connection with the reconstruction as noted by
the Regional magistrate at p. 119 of
the record:
“
Mr Scheepers has provided us with
his notes pertaining to the proceedings of the 23/9/2008 which have
been confirmed by me and
the prosecutor as a true reflection of
what happened in court on 23/9/2008 (these notes will be typed and
provided to Advocate
Nkhahle). The evidence of each and every
witness that testified in these proceedings have again been
summarized in my judgment
which has also been transcribed.
Thello (court witness) told the court
exactly what has been referred to in my judgment, which is in
conflict with what the accused
told the court.
Though Mr Scheepers provided us with his notes pertaining to
Thello’s evidence, he however missed some points regarding
Thello’s evidence. (See attached notes from Mr Scheepers).”
(Own emphasis)
[5] Mr Scheepers’ notes
in respect of Thello’s evidence are as follows (verbatim):
“
Known accused and complainant known
them for years 2006? Yes we met Tshepo’s girl, the
complainant.
He, Tshepo Mpase and me (Tello) got to
complainant’s house parked car and she come. She got in the
back. Then drove off.
Tshepo (accused) dropped me and Mpase at
my/our/her Mpase home. Nothing wrong with complainant willing to
come along.
Do not know how relationship between
accused and complainant started. Do not remember when
confirms that accused and him and his girl/Mpase picked complainant
up from her home. Mpase did not testify.”
(Own
emphasis)
[6] On the facts of this case
I am of the view that the inaudible portions or missing areas of the
evidence complained of are
not material. What made it easier was the
fact that even without Thello’s evidence-in-chief and
cross-examination, the
transcribed record of the proceedings,
together with the appellant’s attorney’s cryptic notes
during the trial as
quoted above, was sufficient to enable the
appeal of the appellant to be properly adjudicated.
[7] The facts of this case
are briefly the following. According to the complainant the
appellant came to her parental home in
Reddersburg in the company of
his friends, Thello and Mpasi, on 07 October 2006 and picked her up
in his car. Mpasi and Thello
alighted at Thello’s home. The
appellant drove to a secluded spot some 25 km outside the township
on the De Wetsdorp road.
He made sexual advances at her which she
repulsed. He struck her several times with open hands and forced
her into submission.
He forced himself upon her and penetrated her
sexually. She did not consent. When the appellant picked her up
she was under
the impression that he just wanted to talk to her.
[8] The complainant testified
further that the penetration was painful, as a result she was
injured on her private parts. The
complainant was examined the
following day by a medical practitioner. The medical evidence
establishes that the complainant
sustained fresh injuries to her
neck and her temple and her genitals and the medical practitioner
concluded that the latter injuries
were consistent with forced
penetration.
[9] The complainant stated
that after the incident the appellant dropped her off at her
parental home. She says she was distressed
and crying. Her brother
testified and confirmed the report to him and the fact that his
sister was still crying the following
morning.
[10] In his defence the
appellant testified that he fell in love with the complainant five
months before they had the consensual
sexual intercourse that led to
his arrest. At that stage he had a live-in–lover. He feared
that the lover could see him
with the complainant and therefore used
Thello as a go-between. He admits that when he fetched the
complainant on 07 October
2006 he was accompanied by Thello and
Mpasi.
[11] The evidence must be
viewed in the context of the following:
11.1 The complainant had no
reason to have believed that the appellant would force himself upon
her. As she testified she
“was
under the impression that the accused was only going to talk to me
and thereafter he will take me back home”;
11.2 When Thello and Mpasi
alighted the complainant became apprehensive about the whole
situation as she realised that the appellant
was driving further on
and ignored her enquiry on where he was taking her;
11.3 The submission by the
defence that complainant’s parents or at least her mother
assaulted her when she came home late
is mere speculation and does,
in any event, not tally with the events as they were related
convincingly by the complainant. The
appellant himself admitted that
the complainant sustained the noted injuries but ascribed them to
the lack of space in the back
seat of the car. This still does not
explain the neck and temple injuries.
11.4 If the complainant had
been dating one Khuze prior to this incident and was evidently
sexually active since September 2006
it is highly unlikely that she
would have been distressed by another consensual sexual encounter.
11.5 Complainant’s
brother corroborated her that she was crying in the morning. She
then made a report about the rape to
him and even told him who the
perpetrator was. The report was clearly not extracted from the
complainant through menaces contrary
to what Mr Nkhahle,
strenuously, insinuated;
11.6 Complainant denied that
she had a love relationship with the appellant;
11.7 The discrepancy in
complainant’s evidence and her mother’s as regards
whether she was reprimanded or chastised
on the night in question
does not detract from the fact that on the facts and on the
appellant’s own admission the complainant
sustained the
injuries when they were together.
[12] The appellant’s
version is highly improbable in the light of the corroboration of
the complainant’s evidence
by
alliunde
evidence.
Thello, the appellant’s confidante and go-between, who was
called by the court in terms of
s186
of the
Criminal Procedure Act,
51 of 1977
, was not aware of when and how the alleged relationship
between the appellant and complainant started. What he knew was what
he apparently gathered from the appellant on the Wednesday prior to
the day of the incident. This is contrary to what the appellant
said
in his evidence-in-chief and during cross-examination viz that
Thello was aware of the long standing love relationship between
the
two five months prior to this incident.
[13] On a conspectus of all
the evidence I am of the view that none of the submissions and
arguments on behalf of the appellant
showed that the trial court
acted irregularity or misdirected itself in any manner or in any
material respect with regard to
the conviction which would entitle
this Court to interfere with its decision. As
Greenberg
JA
stated in
R
v Dhlumayo
1948 (2) SACR 677
(AD) at 705-706:
“
3. The trial Judge has
advantages-which the appellate court cannot have - in seeing and
hearing the witnesses and in being steeped
in the atmosphere of the
trial. Not only has he had the opportunity of observing their
demeanour, but also their appearance and
whole personality. This
should never be overlooked.
4. Consequently the appellate court is
very reluctant to upset the findings of the trial Judge.
5. The mere fact that the trial Judge has
not commented on the demeanour of the witnesses can hardly ever
place the appeal court
in as good a position as he was.
6. Even in drawing inferences the trial
Judge may be in a better position than the appellate court, in that
he may be more able
to estimate what is probable or improbable in
relation to the particular people whom he has observed at the trial.
7. Sometimes, however, the appellate court
may be in as good a position as the trial Judge to draw inferences,
where they are
either drawn from admitted facts or from the facts as
found by him.
8. Where there has been no misdirection on
fact by the trial Judge, the presumption is that his conclusion is
correct; the appellate
court will only reverse it where it is
convinced that it is wrong.”
See too
S
v Haelebe and Others
1997 (2) SACR (SCA) at 645 e-f.
In my view the conviction on
rape is in order and the appeal ought not to succeed. The appellant
has not appealed against his
sentence.
[14]
I
make the following order:
ORDER:
The appeal on conviction
is dismissed.
The conviction and
sentence imposed on 21 May 2009 are confirmed.
_______________
B. C. MOCUMIE, J
I concur.
_________________
B. J. MTHEMBU, AJ
On behalf of the
appellant: Mr. R. J. Nkhahle
Instructed
by: Bloemfontein Justice Centre
BLOEMFONTEIN
On behalf of the
State: Adv. M. A. Lencoe
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN