About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2010
>>
[2010] ZAFSHC 121
|
|
Thabethe v S [2010] ZAFSHC 121 (9 September 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A161/2010
In
the case between:
VESSEL THABETHE
…........................................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
VAN ZYL J
JUDGMENT:
RAMPAI J
HEARD ON:
30 AUGUST 2010
_____________________________________________________
DELIVERED ON:
9 SEPTEMBER 2010
_____________________________________________________
[1] This is an appeal.
The appellant was tried in the regional court on a charge of rape. He
was found guilty and sentenced to life
imprisonment. He now comes on
appeal against the conviction and sentence.
[2] His trial commenced
in the Harrismith regional court on the 27 July 2007. He pleaded not
guilty to the charge that he had raped
Ms Ntebaleng Selina Ncala on
Springdale farm in the district of Kestell on the 18
th
July 2004. He explained in terms of section 115, Act No. 51 of 1977
that he did not have sexual intercourse with the victim as
alleged
and that he was not on the alleged scene but elsewhere at the time
the victim was raped as alleged.
[3] Notwithstanding his
plea, the appellant was convicted on 13 January 2009. The conviction
was the outcome of a trial during which
the court heard the evidence
of six witnesses.
[4] On the same day the
court below (per Mr H S van Niekerk) imposed a sentence of life
imprisonment in terms of section 51(1),
Act No. 105 of 1997.
[5] The appellant was
aggrieved. On the 10
th
November 2009 he noted an appeal
against both the conviction and sentence.
[6] The grounds of
appeal, as regards the verdict, are fully set out in paragraph 1 of
the notice of appeal. There are 12 grounds
on which the appellant’s
challenge is based. Among others, the appellant contended that the
trial court misdirected itself
in finding that he did meet the victim
on the 18
th
July 2004; that there never was any intimate
relationship between him and the victim and further that the victim
had no motive
to falsely accuse him – paras 1.2 and 1.3 –
notice of appeal.
[7] The version of the
prosecution was narrated by two witnesses, namely: Ms N S Ncala, the
victim; and Ms S M Tshabalala, the victim’s
sister. According
to the victim – her parents lived at Bethlehem, her sister at
Kestell on Springdale farm and she at Witsieshoek
where she attended
school. During the winter school vacation in 2004 she was visiting
her sister on the farm.
[8] One day, on Sunday
the 18
th
July 2004, after a social visit to her friend, Ms
Ndina Tshabalala, on a neighbouring farm, she walked alone back to
Springdale.
She met the appellant at the farm gate at or about 17H00.
There the appellant created a scene. He confronted her, accused her
of
meddling in his marital affairs and insisted that she accompanied
him to his house so that the matter could be sorted out in the
presence of his wife. She denied the accusation but accepted the
invitation to meet the appellant’s wife in order to refute
it.
[9] Shortly after their
arrival, the appellant left her alone sitting on a chair in the
lounge saying he was going to call his wife.
After about 5 minutes or
so later the appellant re-entered the lounge alone and immediately
attacked her. He did so by slapping
her several times in the face and
kicking her in the abdomen. She was yelling during the assault.
Between 18H00 on Sunday and 06H30
the next morning on Monday 19
th
July 2004 the appellant repeatedly had sexual intercourse with her
against her will.
[10] Ms Tshabalala
testified that the victim did not sleep home on Sunday 18 July 2004,
that she arrived home in the morning of
Monday 19
th
July
2004 and that she tearfully reported to her what the appellant did to
her. She noticed that the victim’s cheeks were
swollen. She
advised her to report the incident to the police.
[11] By agreement between
the prosecution and the defence, exhibit b was then handed in. It was
the DNA test result from the forensic
laboratory in Tshwane. The
prosecution case was then closed.
[12] The version of the
defence was narrated by three witnesses. They were:
Mr Vessel Thabethe, the
appellant;
Mr Nicolaas Thabethe, his
younger brother;
Mr Mthandeki Jacob
Thabethe, his father.
[13] The version of the
appellant was that the victim was his mistress since April 2004. By
the time he was arrested on Monday the
19
th
July 2004, he
and the victim had had sexual intercourse on several occasions. They
last did so on Friday the 16
th
July 2004. His wife did not
know about it. He did not meet the victim at all on Sunday the 18
th
July 2004. Although he lived and worked on the farm Springdale, he
was at Warden, where his parents lived, on Sunday the 18
th
July 2004. His plan was to hitch-hike from Warden back to Kestell.
But while he was still waiting for a good Samaritan to come
by and
give him a lift, he received an urgent call from his employer, Mr
Pieter Roos – who wanted to see him. He then called
his father
and informed him. His father came with his sister and they took him
from Warden to his residence on Springdale farm
at Kestell. Using his
father’s car he and his brother drove to the homestead where
they received instructions from the farmer.
His father and sister
left Springdale after 19H00. After their departure, he remained
behind with his brother, Nicolaas. He denied
that the victim was ever
there during the night in question.
[14] The victim asked him
to give her some money the last time they were together, on Friday
the 16
th
July 2004. Because he refused she threatened to
tell his wife about the secret affair.
[15] The version of the
appellant was corroborated by his brother and father as regards his
visit to Warden and his mode of transport
back. The brother added
that he was aware of the intimate relationship between the appellant
and the victim. He did not see the
victim in the appellant’s
bedroom. The appellant’s wife was at Warden on the Sunday in
question. She returned to Springdale
farm on Monday, which I take to
mean Monday the 19
th
July 2004. The defence case was then
closed after the appellant’s father had testified.
[16] After the close of
the prosecution case the court
mero motu
recalled the victim.
She denied the sexual intercourse and the intimate relationship the
appellant alleged to have had with her.
The court also called Dr
Monatisa. His evidence was that he was a pathologist and that he
examined the victim at Elizabeth Ross
Hospital on Monday the 19
th
July 2004 at 16H54 – exhibit “A”. Asked to comment
on exhibit “B”, regard been had to the appellant’s
version and the victim’s, he answered that, if the appellant
and the victim had had sexual intercourse on Friday the 16
th
July 2004 it was highly unlikely to find his semen in the victim’s
vagina three days later given the victim’s habitual
hygiene
routine. That concluded the evidence.
[17] The trial magistrate
analysed the evidence and came to the conclusion, firstly, that the
version of the defence was not reasonably
possible and therefore
rejected it as false; and secondly that the version of the
prosecution was satisfactory and acceptable.
He found that it showed
beyond reasonably doubt that the appellant had raped the victim.
[18] On behalf of the
appellant, Mr Van Rensburg criticised the aforesaid conclusion. He
submitted that the court
a quo
erred in reaching such a
conclusion. On behalf of the prosecution, Mr Strauss disagreed. He
submitted that court
a quo
did not misdirect itself in
arriving at such a verdict.
[19] About the version of
the appellant the trial court made the following critical
observation:
“
In die
beskuldigde se getuienis hoor ons vir die eerste keer van die skelm
liefdesverhouding met die klaagster en ‘n daad
van
geslagsgemeenskap op 16/7/2004. Die redes wat hy aanvoer waarom hy
nie hierdie feite aan sy prokureur openbaar het nie, is
onaanvaarbaar.”
[20] The appellant was
seriously implicated by the forensic evidence, exhibit “B”.
It is important to bear in mind that
such DNA evidence which sexually
and positively linked the appellant to the victim was not yet
available when the trial started.
It only became available right at
the end of the prosecution case, on the 29
th
May 2009,
some ten months after the victim and her witness had testified. Until
then there had virtually being no suggestion by
the defence of any
relationship of some sort let alone an intimate one between the
appellant and the victim. Similarly there had
been no intimation
whatsoever of any prior sexual inter course between the two.
[21] Before us Mr Van
Rensburg contended that the appellant gave a sound explanation about
such glaring omissions. According to
him the reason why he did not
disclose, in terms of section 115 when he pleaded, that he and the
victim had sex by consent on Friday
the 16
th
July 2004 was
because he was not asked to do so. When he was earlier asked as to
whether he had informed his legal representative
about it during
consultation, he answered that he did not, because as he said, all
these allegations confused him. These then were
the reasons which the
trial court dismissed as being unacceptable.
[22] Indeed they were
lame excuses. These omissions of important aspects of his defence
have an adverse impact on the credibility
of the appellant as a
witness. They drastically watered down his belated defence that the
victim became his secret lover six months
earlier; that they made
love on several previous occasions and that the last occasion was two
days before the alleged date of the
crime.
[23] The appellant’s
brother claimed, in support of the defence version, that the victim
and the appellant were involved in
an intimate affair. Counsel for
the appellant contended that the evidence of Mr Nicolaas Thabethe
strongly corroborated that of
the appellant. I am not persuaded. From
Mr Nicolaas Thabethe the court
a quo
heard, for the first
time, I must point out, that the victim once worked on the farm
Springdale. The undisputed evidence was that
her parents lived at
Bethlehem, her sister on the farm Springdale and she at Witsiehoek
where she attended school. She stated that
she only visited her
sister on the farm during the school vacation.
[24] It is important to
remember that, although her sister lived on the farm, she did not
work there. Therefore, it is improbable
that the victim, who did not
even live on the farm, woud have worked there in the sunflower field
as the appellant’s brother
claimed. His evidence was that
before July 2004 he never had any discussion with the victim. It
appears highly improbable that
a man would work with a woman without
ever saying a word to her – especially when such a woman is his
brother’s mistress
and there was no animosity between them. The
victim’s evidence was clear. She said that she did not know Mr
Nicolaas Thabethe.
This aspect of her evidence was also unchallenged.
In my view therefore, the court
a quo
correctly rejected the
evidence of the appellant’s brother concerning the alleged
relationship.
[25] The medical evidence
by the forensic pathologist, Dr Monatisa, was that it was highly
improbable that the appellant’s
semen forensically detected in
the victim’s vagina was deposited there almost three days prior
to the date on which he examined
the victim. Such evidence strongly
fortified the victim’s subsequent denial, when she was recalled
by the court, that she
never had sex with the appellant on Friday the
16
th
July 2004 or at any other time before the consentless
incident on Sunday the 18
th
July 2004.
[26] The contention by
the appellant that Dr Monatisa was not a qualified expert to express
such an opinion failed to impress me.
Firstly, the expertise of Dr
Monatisa was never an issue in the case. Since it was not an issue on
trial it could not be properly
raised as an issue for the first time
on appeal.
[27] Secondly, down there
and up here, it was accepted by all and sundry that the medical
witness was not a general practitioner
but a pathologist. The
dictionary defines the word ‘pathologist’ as:
“
An expert in
or a student of pathology; especially a specialist in the laboratory
examination of samples of body tissues, usu for
diagnostic or
forensic purposes.”
See the New Shorter
Oxford English Dictionary, Volume 2, 1993 edition, p. 2123 –
Lesley Brown. This settles the argument once
and for all. The
appellant’s contention must, therefore, fail.
[28] The trial court
commented and correctly so in my view, that:
“
Die
beskuldigde het vanuit die staanspoor geslagsgemeenskap met die
klaagster ontken en is hy duidelik onkant betrap deur die verslag
van
die DNS toetse. ‘n Plan moes beraam word om die positiewe
uitslag van die toetse te verduidelik.”
I am in agreement. The
appellant simply had no genuine defence to the strong prosecution
case against him. His secondary defence
was recently fabricated. It
was not only belated but also opportunistic. It was materially flawed
and therefore not reasonably
possible.
[29] The primary defence
of the appellant was an alibi. The trial court also dismissed the
appellant’s alibi although his
alibi was supported by two
witnesses. If it is accepted, as I think it must be, that the trial
court committed no appealable misdirection
in rejecting, not only as
improbable but also as false, the belated version of the appellant,
and in accepting the version of the
victim, objectively corroborated,
as materially satisfactory – then nothing much can positively
be said for the appellant’s
alibi.
[30] The first difficulty
I have is this: The appellant’s parents lived on a farm called
Vinknes, district Warden. On Sunday
the 18
th
July 2004 the
appellant and his brother were on the farm visiting their parents.
Both of them lived together and worked together
on the farm
Springdale, district Kestell. Both of them were supposed to be at
work the next day, Monday the 19
th
July 2004. In these
circumstances one would have expected the brothers to have left
Warden together to return to Kestell. However,
for no apparent
reason, the court
a quo
was told that the appellant left alone
and that his brother remained behind on the farm Vinknes. It sounded
rather strange.
[31] Then, out of the
blue, the appellant received a cellular call from his employer while
he was still at Warden trying to get
a ride back to Kestell. Because
the employer, Mr Roos wanted to give him instructions for the next
day, he in turn called his father
to rush him back to Kestell.
According to the brother the appellant contacted their father at or
about 17H00 while he was still
at Warden. He and his sister
accompanied their father as he was driving off to the crossing to
pick up the appellant. I found it
puzzling why the appellant had to
be taken back in such a great hurry at such a great expense when such
instructions could have
been cheaply given over the cellular phone.
[32] It follows from this
that they picked up the appellant out there at the crossing outside
Warden some time after 17H00. The
family arrived on the farm
Springdale at Kestell between 18H00 and 19H00 according to Mr
Nicolaas Thabethe. This evidence that
at 17H00 the appellant was
still at Warden was in sharp contrast to the appellant’s
explanation in terms of section 115 that,
at that time, he was
elsewhere on the farm with another person. There is therefore a
material discrepancy as regards the exact
whereabouts of the
appellant at 17H00 on Sunday, the 18
th
July 2004. Was he
on the farm Springdale as the victim alleged or was he at the
crossroads at Warden as his brother alleged.
[33] On account of this
material inconsistency alone it became apparent that there was no
grain of truth in the appellant’s
alibi. Therefore, the fact
that the testimony of the appellant’s father was left
unchallenged cannot be said to have redeemed
the alibi. The
foundation of the alibi was already on the shiveringsand. The father
as an alibi witness could do no damage control.
The sons had already
caused irreparable harm to the alleged alibi. In the circumstances
there was no point in calling the employer
as a witness. The
appellant’s alibi was beyond a point of salvation.
[34] Both the father and
the brother had a motive to falsely support the appellant’s
alibi as the trial court found. The version
of the victim that at
17H00 the appellant was at the farm gate of a rural road leading to
Springdale at Kestell and not at the
alleged cross-roads at Warden
was, in my view correctly accepted and the appellant’s alibi
correctly rejected by the court
a quo.
[35] On the evidence as a
whole, I am not persuaded that the trial court committed any material
misdirection, which warrants our
interference on appeal. In the
absence of such misdirection, I am inclined to uphold the conviction.
On the merits, the conclusion
of the court
a quo
is one,
which, on appeal, I cannot hold to be wrong.
[36] As regards sentence,
it was submitted on behalf of the appellant that the sentence of life
imprisonment was an unjust punishment
for the appellant in that it
was disproportionate to the crime, the offender and the interest of
society.
[37] The appellant was 35
years of age at the time he was sentenced. He went as far as standard
9 (grade 11) at school. He was a
married man and a father of three
dependent minor children. He was employed on the farm as a contract
harvester. His employer was
Mr Pieter Roos of Springdale farm in the
district of Kestell. He earned R2 500,00 per month.
[38] The court
a quo
found that the appellant was convicted of a serious crime. The
incidents of rape, it found, were prevalent in the jurisdiction
of
the court. There was prior planning. The appellant lured the victim
to his house under false and cunning pretext. He held her
captive for
the whole night and repeatedly raped her. The legitimate interests of
society, the trial court pointed out, were adversely
affected by the
scourge of rape. As a result of this crime, the trial court noted,
with regret, that many women lived in constant
fear of rapists. These
then were the aggravating factors found by the trial court.
[39] In determining
whether or not substantial and compelling circumstances existed in
favour of the appellant to justify a lighter
sentence than the
prescribed minimum sentence of life imprisonment the court
a quo
commented:
“
Die Hof neem
deeglik kennis van die beslissings in
S.
v. MALGAS
2001 (1) SACR 469
(SCA) en
THEMBALETHU
SAM v. THE STATE
(343/2007) ZASCA 9 (20 Maart 2008). Dit is uit hierdie beslissings
duidelik dat daar nie ligtelik afgewyk kan word van die voorgeskrewe
minimum vonnisse nie. Hierdie Hof wil ook nie ‘n party wees by
die minagting van die wense van die meerderheid mense in hierdie
land
wees.”
The court
a quo
then found that there were no substantial and compelling
circumstances to justify any deviation from the prescribed minimum
sentence
of life imprisonment.
[40] It has been held on
more occasions than one that because life imprisonment is the
ultimate sentence that our courts can impose
in our country, it
should be reserved for the most serious of cases. Indeed there are
rape cases and there are rape cases. Some
are worst than others even
though they may statutorily fall in the same penal category. The life
sentence ordained by the lawmaker
should generally be reserved for
the worst cases of rape devoid of substantial factors compelling the
conclusion that such a sentence
is inappropriate or unjust. See
S
v ABRAHAMS
2002 (1) SACR 116
SCA;
S v MAHOMETSA
2002 (2) SACR 435
SCA;
S v KNOMO
2007 (2) SACR
198
SCA;
S v VILAKAZI
2009 (1) SACR 552
SCA;
S v
RABAKO
2010 (1) SACR 310
(O). However, a fair word of caution
has previously been sounded to the effect that the worst case
scenario rule must not be understood
to mean a rigid rule that life
sentence can only be imposed in the most serious of cases. Such a
price is too big to pay. To do
so would certainly stifle the
sentencing discretion. The proper exercise of such discretion is by
no means an easy task.
[41] In
S v GN
2010 (1) SACR 93
(T) on 97 at para [12] Du Plessis J writing for the
unanimous full bench
held that even where the law prescribes a
minimum sentence the courts must still seek to differentiate between
sentences of cases
falling in the same category in accordance with
the dictates of justice.
In other words the statutory category of
the crime, in this instance, Part I Schedule 2 (p1s2), does not in
itself rigidly call
for the imposition of the ultimate punishment.
[42] Du Plessis J had
this to say about the correct sentencing approach to the scheduled
first category offences for which the ordained
punishment is life:
“
[11] …
In my view the quoted passage, and its application in the other two
cases referred to, conveys that,
even
where imprisonment for life is prescribed as a minimum sentence, a
court must bear in mind that it is the ultimate penalty
that the
courts in this county can impose. As such, it must not be imposed
lightly, even when it is a prescribed minimum sentence
.
”
Vide
S v GN
supra,
para [11]
.
I am in respectful
agreement.
In the instant case it
would appear that no serious endeavour was made to make any such
differentiation. There, in my view, lies
a misdirection.
[43] The misdirection
justifies our interference. In my view this case, despicable though
it was, was certainly not among the worst
I have seen. Probably it
was not the worst ever tried by the court
a quo
. The court
a
quo
approached the sentencing issue from the angle that it could
not lightly deviate from the prescribed benchmark. The correct angle
from which to approach p1s2 offences is that the courts should not
lightly impose the ultimate sentence of life imprisonment. The
sentence imposed on the appellant instantly made me feel uneasy about
it. The debate on appeal hardened my uneasiness into a solid
conviction that an injustice would be perpetuated if the ultimate
sentence, the gravest of the sentences that can be imposed, were
to
be upheld on appeal.
[44] It was about such
moral conviction Marais JA so eloquently wrote in
S v MALGAS
2001 (2) SA 1222
SCA at 1234H (para 22):
“
[22] What
that something more must be it is not possible to express in precise,
accurate and all-embracing language. The greater
the sense of unease
a court feels about the imposition of a prescribed sentence, the
greater its anxiety will be that it may be
perpetrating an injustice.
Once a court reaches the point where unease has hardened into a
conviction that an injustice will be
done, that can only be because
it is satisfied that the circumstances of the particular case render
the prescribed sentence unjust
or, as some might prefer to put it,
disproportionate to the crime, the criminal and the legitimate needs
of society.”
[45] Perhaps it is
necessary to give examples to elucidate differentiation. Imagine
these, two scenarios: X is a 35 year old first
offender. He is
employed as a crop harvester on a farm. He lives on the same farm at
the foot of the Drakensberg Mountains not
far from Clarens. The place
has exceptionally cold winter seasons. One day, on a very cold night
in July 2004, he lured a young
beauty to his house. There he raped
her in a bedroom nicely warmed by strong firewood flames. When he was
done, he took her outside
and, with her hands tied behind her back,
chained her to a pole in a filthy pigsty with an offensive smell. He
then left her out
there in the cold and took a rest in his cosy
bedroom. When he was rested, he unchained her, ordered her to have a
cold shower
before he again sexually imposed himself on her. He
repeated the process of violating her inside and chaining her outside
over
and over throughout the freezing night.
[46] Imagine the second
scenario where Y also lured a young beauty into the same house a day
later. The weather conditions remained
pretty much the same. It was
still bitterly cold. He too repeatedly raped his victim several times
during the cold night but in
a warm bedroom cushioned with an
electric blanket in addition to the firewood flames.
[47] Now both X and Y
have individually committed the same crime of multiple rapes, p1s2
category. The law prescribes life imprisonment
as a minimum sentence.
However, the comparatively enormous disparity between the moral
blameworthiness of the two dictates that
penal differentiation has to
be made in sentencing Y. Unless differentiation is made between the
degrees of moral blameworthiness,
Y would get the same sentence of
life imprisonment, which on the facts, X appears to deserve.
Therefore to do no differentiation
on the basis of moral
blameworthiness of their actions would perpetrate an injustice as
against Y.
[48] Although Y has
committed a crime classified in the same category (P1S2) just as X, a
sentencing court has to go beyond the
applicable category and
calibrate the moral blameworthiness of the offender in order to
determine whether or not deviation from
the prescribed minimum
sentence is justified. Doing such an exercise is not the same thing
as drawing distinctions so subtle that
they can hardly be seen to
exist.
[49] These imaginary
facts compellingly require that a distinction be made between the
same class of offenders or rapists. Such
differentiation is material
and not cosmetic and it is founded on the enormous disparity between
the moral blameworthiness of the
offenders. Such are dictates of
justice inherently germane to the sentencing discretion.
[50] It is my considered
view and conviction that the circumstances of this particular case
render the prescribed minimum sentence
of life imprisonment unjust. I
consider that the personal circumstances of the appellant taken
together with the circumstances
of the case in general entitle me to
characterise them as substantial and compelling to justify a lighter
punishment than life
imprisonment. In so far as the court
a quo
considered such circumstances cosmetic factors which are
unsubstantial and uncompelling to justify discretionary deviation, it
erred.
[51] In all other
respects it adopted the correct approach to the question of sentence.
The strongest mitigating factor in favour
of the appellant was his
clean criminal record. At the age of 35, it was commendable record.
He earned his livelihood through honourable
means. He was gainfully
employed. He was adequately educated. He waited for four agonising
years to be sentenced. It would appear
that he has the potential
prospect of rehabilitation even if he should go to jail for a long
period of imprisonment. These factors,
cumulatively regarded, satisfy
me that life imprisonment would be unjust. They qualify, in the
circumstances of this particular
case as a whole, as substantial and
compelling circumstances within the meaning of the provision. In my
judgment a sentence of
12 year imprisonment will appropriately
satisfy the legitimate interest of society, the offender and the
crime.
[52] Accordingly I make
the following order:
52.1 The appeal fails as
regards the verdict;
52.2 The verdict is
confirmed;
52.3 The appeal succeeds
as regards the sentence;
52.4 The sentence of life
imprisonment is set aside and substituted with one of twelve years
imprisonment;
52.5 The sentence so
imposed is antedated to the 13 January 2009 being the date on which
the sentence of life imprisonment was imposed.
______________
M. H. RAMPAI, J
I concur.
______________
C. VAN ZYL, J
On behalf of appellant:
Adv. T. B. van Rensburg
Instructed by:
Jacques Groenewald
Prokureurs
BLOEMFONTEIN
On behalf of respondent:
Adv. M. Strauss
Instructed by:
Die Direkteur: Openbare
Vervolgings
BLOEMFONTEIN
/eb