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[2008] ZAFSHC 133
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Samela v S [2008] ZAFSHC 133 (4 December 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.:
A125/08
In the
case between:-
THABO
SAMELA
Appellant
versus
THE
STATE
Respondent
CORAM
:
VAN
ZYL
et
MOCUMIE,
JJ
_______________________________________________________
HEARD:
24 NOVEMBER 2008
_______________________________________________________
DELIVERED:
4
DECEMBER 2008
_______________________________________________________
APPEAL
_______________________________________________________
MOCUMIE, J
[1]
The
appellant appeared in the Regional Court, Welkom on 31 May 2007 on a
count of rape. He was convicted as charged on 12 December
2007
despite his plea of not guilty and was sentenced to 10 (ten) years
imprisonment. He now appeals against both the conviction
and the
sentence with leave of the Court
a
quo
granted on 16 May 2008.
During the trial he was
legally represented. He pleaded not guilty.
[2] In
his heads of argument and in oral argument Mr. Nkhahle, on behalf of
the appellant, attacked the presiding officer’s
findings on the
basis that the evidence of the complainant was not sufficient to have
established the State’s case beyond
reasonable doubt. He
submitted that the complainant’s evidence was riddled with
contradictions, inconsistencies and improbabilities;
that the
complainant and her witness gave contradicting evidence and thus the
appellant’s version should not have been rejected
as not
reasonably probabl
y
true.
BACKGROUND:
[3] The
complainant visited her friend, Lerato Msibi, on
8
October 2005. Late in the afternoon Lerato invited her and one,
Vhuisa, to go to a shop to buy sweets. The three walked together.
They met the accused and his friend along the way. The accused spoke
to Lerato who dismissed him instantly. When Lerato was
busy buying
sweets inside the shop the accused approached the complainant and
spoke to her. What happened between the accused
and the complainant
thereafter is in dispute.
[4] The complainant
testified that the accused held her by her arm and pulled her away
despite her protests. She believed that
the accused was armed and
stopped to resist. The accused led her to his home where he
threatened her, forced her to undress and
raped her. She testified
that prior to this day she did not know the accused. She did not
have a love relationship with the accused.
APPELLANT’S
EVIDENCE:
[5] In
his defence, the accused denied that he raped the
complainant.
His defence in essence was that he had the consent of the
complainant to have sexual intercourse with her. He had
a
relationship with the complainant over a year. On this day he met
the complainant as arranged between the two of them. The
complainant
was alone. She asked the accused for money, R250,00 as she was in
some undisclosed problem. When the accused said
he did not have
R250,00 but could give her R50,00 the next day she offered to have
sexual intercourse with him.
EVALUATION OF
EVIDENCE:
[6] The submissions made
in the heads of argument and during argument on behalf of the
appellant have to be seen in the context
of the following:
6.1 The
complainant reported the incident immediately and was turned away by
the police because they did not believe that she was
raped. The fact
that the presiding officer took this into account cannot be faulted.
The inference that she drew was that had
the complainant been
attended to that night and taken for medical examination
inter
alia
her emotional state would have been noted.
6.2 The fact that she was
accompanied by her brother does not mean that he influenced her to
lay a charge. The evidence does not
show such an opportunity. In
fact, the brother did not want to get involved and referred the
complainant to Lerato’s mother.
6.3 There is no
indication that anyone including her two friends would have known of
her sexual escapade if she initiated it and
went through with it
without duress.
6.4 Lerato’s
objective evidence that the appellant tried his luck with her first
and then pulled complainant away does not
show willingness on the
complainant’s part or that complainant was interested at any
stage.
6.5 In
fact Lerato and Vhuisa rushed to report the incident to complainant’s
brother.
6.6 The
contradictions between the complainant and Lerato are not material
taken together with the other evidence but not in isolation.
These
contradictions were clarified. Some were a misunderstanding of the
defence questions as they were phrased in a deliberate
attempt to
confuse her.
[7] The
appellant’s evidence when evaluated against the background
alluded to above does not accord with the argument advanced
by his
counsel and the probabilities in the case. In fact, his evidence
shows a clear and calculated trail of aggression from
the moment he
met the complainant, pulled her away from her friends and even went a
step further to make as if he had a relationship
with her. His
evidence shows that he took advantage of the complainant’s
naïvety and young age.
[8] None
of the submissions and arguments raised by the defence indicated that
the trial court acted irregularly or misdirected
itself in any manner
or material respect with regard to this conviction which would
entitle this court to interfere with its decision.
See
R
v Dhlumayo
1948 (2) SA 677
(AD) at 705 – 706 whereat
Greenberg
JA
said:
“
3. Where there has been no
misdirection on fact by the trial judge, the presumption is that
his(her) conclusion is correct; the
appellate court will only reverse
it where it is convinced that it is wrong.”
The conviction on rape
is in order.
[9] The
approach to be adopted in an appeal against sentence is reflected in
the following passage in the judgment of
Nicholas
AJA
in
S
v Shapiro
1994 (1) SACR 112
(A) at 119j – 120c:
“
It may well
be that this Court would have imposed on the accused a heavier
sentence than that imposed . . .: it is encapsulated
in the statement
by Holmes JA in
S
v Rabie
1975 (4) SA 855
(A) at 857D-F:
'1. In every appeal against sentence,
whether imposed by a magistrate or a Judge, the Court hearing the
appeal -
(a) should be
guided by the principle that punishment is ‘pre-eminently a
matter for the discretion of the trial Court’;
and
(b) should be
careful not to erode such discretion: hence the further principle
that the sentence should only be altered if the
discretion has not
been ‘judicially and properly exercised’.
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate.'”
See
S
v Sadler
2000 (1) SACR 331
(SCA) at 334d – g, where it has also been
held that:
“
The
overemphasis of the effect of the
appellant’s
crimes, and the underestimation of the person of the appellant,
constitutes . . . a misdirection and in the result
the sentence
should be set aside.”
See
S
v Zinn
1969 (2) SA 537
(A) at 540F – G. This must be equally true when
there is an over-emphasis of the personal circumstances of the
accused and
an underestimation of the gravity of the offence. See
S
v Salzwedel and Others
1999 (2) SACR 586
(SCA) at 591.
[10] The
offence committed by the appellant is one of the most prevalent in
the country. The commission of serious offences perpetrated
under
the influence of youthfulness has for long now pervasively dominated
so much of life and living in South Africa. There are
aggravating
circumstances
in
casu
.
The presiding officer took into account the fact that the appellant
had no previous convictions. The attack by the appellant
on the
complainant albeit no medical evidence was led or when it will heal
with an emotional scar nobody can tell whether it will
heal or not.
The prescribed sentences give expression to the legitimate feelings
of outrage which is experienced by reasonable
men and women in the
community. A lengthy term of imprisonment sanctioned by the law
would serve to instil confidence in the community
that such behaviour
inconsistent with the ethos of our Constitution will not be tolerated
in any civilised society: Courts must
project this message clearly
and vigorously.
[11] Regard being had to
all these factors, I am of the view that the sentence imposed by the
trial court is appropriate and should
not be set aside.
[
12] In
the result I make the following order:
Order:
1.
The
appeal against both the conviction and sentence fails and is
accordingly dismissed.
2. The sentence of 10
(ten) years imprisonment imposed by the presiding officer on 12
December 2007 is confirmed.
______________
_
B.C. MOCUMIE, J
I
con
cur.
____________
C. VAN ZYL, J
On
behalf of appellant: Adv. Nkhahle
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv.
A. Bester
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp