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[2009] ZAGPPHC 67
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S v Methula (A741/2006) [2009] ZAGPPHC 67 (4 March 2009)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE
NO: A 741/2006
DATE:
04/03/2009
In
the matter between:
VUSI
NICLAAS MTSOTSO METHULA Appellant
And
THE
STATE Respondent
JUDGMENT
HARTZENBERG
J
[l]
The appellant was convicted of rape of the complainant. M M, a
sixteen year old lady, in the Regional Court at Piet Retief.
He was
sentenced to 10 years imprisonment. Leave to appeal against
conviction and sentence was granted by the Regional Magistrate.
The
two judges hearing the appeal did not agree as to the outcome of the
appeal. As a result of their disagreement the matter came
before this
court.
[2]
The appellant was represented throughout the trial. The State called
three witnesses, the complainant. F T. a blood relation
of the
complainant and Z M, the mother of the complainant. By agreement
between the parties a form J88 prepared by a Dr. Moroa
was accepted
in evidence and the contents were admitted to be true and correct.
[3]
The complainant's evidence was fully corroborated by the witnesses.
It was to the effect that she and F saw the complainant,
on 10
October 2004, on their way to the house of a Mrs. Mthethwa, whereto
they had been sent by her mother. She did not know him
well but knew
him from sight as he regularly visited two boys, Brisco and Mtondo,
who live in the same street as the complainant.
The complainant and F
informed the appellant that they would come back the same way after
completing their errand.
[4]
On their return to that place he sent F to go and buy him a beer and
in her absence he claimed that the two of them had a relationship.
The complainant denied it. When F brought the beer he started
drinking it and did not want to allow them to leave. When the
complainant
tried to leave he hurled the beer bottle at her and he
then took a knife out of his pocket and pressed it against the neck
of the
complainant, indicating that he was taking her towards his
parental home. The three of them went to his home and when they
reached
it he asked a neighbour to take F with her to watch
television. He took the complainant into the kitchen of his parental
home.
When his mother reprimanded him for bringing a girl to his room
he told her to "Voertsek" and that he is the boss in the
house. In his room he forced her to undress and he then had full
intercourse with her. Afterwards she asked the appellant if she
could
go to the toilet and after having only put on her skirt and panty she
ran away bare footed. F had been waiting for her and
they went
strait to
their
home where they waited for her mother. On her arrival she made a
report to her mother who immediately telephoned the police.
Before
the arrival of the police the appellant approached the complainant's
mother and he told her that he and the complainant
had played a
doll's house game. The mother chased him away. The complainant was
taken to a doctor. The medical report was completed
at 18 30 on 10
October 2004. It reports a tear in the vagina corresponding with the
complainant's evidence of a bloody discharge.
[5]
The appellant's evidence was in accordance with his plea to the
effect that he was in a relationship with the complainant and
that
they had consensual intercourse. The magistrate rejected his evidence
and accepted the evidence of the state witnesses and
convicted him.
The magistrate in my view quite correctly found that the appellant's
evidence cannot be true and that the evidence
of the state witnesses
must be true. It is clear that the appellant forced the complainant
to his house by producing a knife. That
in itself is irreconcilable
with his version of a girlfriend happily accompanying her beau to his
house. She ran away from his
house without some of her clothes and
her shoes. That together with the fact that they immediately laid a
rape charge against the
appellant is likewise irreconcilable with the
conduct of a lover who voluntarily had intercourse with her
boyfriend. Moreover the
complainant had injuries and a bloody
discharge of her private parts.
[6]
It was argued on behalf of the appellant that he did not have a fair
trial, firstly as the attorney who represented him did
not present
his case properly and secondly because the magistrate did not
mero
motu
call
the doctor to give evidence. The argument is based on a theory, that
as the J88 indicates that the complainant did not have
a hymen, the
attorney did not explore a possible basis of a defence and that the
magistrate was also remiss by not calling the
doctor. The evidence
was overwhelming that the appellant had intercourse with the
complainant against her will and it was totally
irrelevant what the
state of her hymen was before that. The argument is without
substance.
[7]
As far as sentence is concerned it is so that the appellant was 20
years old at the time of the commission of the offence. Although
the
State did not prove any previous convictions the appellant had
informed his attorney that he had been convicted of housebreaking
and
theft and had been sentenced to 5 years imprisonment during 2002. In
addition thereto it is clear that he showed no remorse
and tried to
lie his way out of the situation. It is so that youth in itself can
be a substantial and compelling circumstance for
not imposing a
minimum sentence. When imposing a sentence, however, the court has to
take a balanced view and is not to overemphasize
one of the relevant
factors. In this case the complainant was barely older than 16 years.
She was injured. She was humiliated.
The appellant did not heed the
warning of his own mother not to carry on with his heinous project.
To find that the appellant's
youth in itself is a compelling
circumstance not to impose the minimum sentence of 10 years would be
to negate the despicable conduct
towards the complainant.
[8]
It is trite law that a court of appeal is only entitled to interfere
with a sentence by a court
a
quo
in
very limited circumstances. In my view there are no circumstances
which point thereto that the sentenced imposed was not properly
considered or inappropriate. This court is not at liberty to
interfere with sentence.
The
appeal is dismissed, both against conviction and sentence.
W
J
HARTZENBERG
JUDGE
OF THE HIGH COURT
I
agree
M
F LEGODI
JUDGE
OF THE HIGH COURT
I
agree
TJ
RAULINGA
JUDGE
OF THE HIGH COURT
Heared
on: 25 February 2009
ON
BEHALF OF THE APPELLANT
Counsel: M.
Bosiki
Instructed
by Legal Aid
ON
BEHALF OF THE RESPONDENT
Counsel: Van
Der Merwe
Instructed
by: State Attorney