Seitisho v S [2008] ZAFSHC 151 (11 December 2008)

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[2008] ZAFSHC 151
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Seitisho v S [2008] ZAFSHC 151 (11 December 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: 10/2008
In the case between:
JOSEPH BOOYSEN
SEITISHO
Appellant
and
THE
STATE
Respondent
CORUM:
VAN DER MERWE, J
et
MOLEMELA,
J
JUDGEMENT
:
MOLEMELA, J
_____________________________________________________
HEARD ON:
17 NOVEMBER 2008
_____________________________________________________
DELIVERED ON:
11 DECEMBER 2008
_____________________________________________________
[1]
This
is an appeal against conviction and sentence. The appellant was
convicted in the Bloemfontein Magistrate’s court on a total
of
three counts, viz two counts of contravening section 17(a) of the
Domestic Violence Act 116 of 1998 (“Domestic Violence Act”)
in
that (i) he entered the complainant’s place of residence without
her permission and damaged the corrugated iron in her house
and (ii)
stabbed complainant with a knife in contravention of a protection
order issued in terms of the aforesaid Act; and (iii)
rape. He was
sentenced to 12 months’ imprisonment in respect of the first count,
2 (two) years’ imprisonment in respect of
the second count and 7
years’ imprisonment in respect of the third count. The sentences
were to run separately.
[2] The
appellant pleaded not guilty on all counts. In his plea explanation
in terms of the provisions of section 115 of the Criminal
Procedure
Act, No. 51 of 1977 (Criminal Procedure Act) the appellant with
regards to count 1 and 2, denied any knowledge of the
issuance and/or
service of the protection order on him. With regard to the charge of
rape he admitted the sexual intercourse but
asserted that it was
consensual.
[3] In
convicting the appellant, the court
a
quo
placed reliance on the following facts: that a protection order in
terms of the provisions of the
Domestic Violence Act was
issued
against the appellant on the 5
th
December 2002 and served on him on the 18
th
February 2003; that according to the complainant, the appellant
failed to comply with the said protection order by entering the

complainant’s house without her permission and damaging one of the
corrugated irons on the 24
th
December 2004; that the appellant contravened the protection order
by stabbing the complainant with a knife on the 4
th
February 2005 and that on the 29
th
April 2005 the appellant entered the complainant’s shack and swore
at her, after-which he had proceeded to have sex with her
without
her consent. On the latter charge, the court
a
quo
accepted the complainant’s version that she yielded to the
appellant’s demand for sex after he had instilled fear in her by

threatening to stab her with a knife. The court
a
quo
further
accepted that after the rape, the appellant then accompanied the
complainant to a school where she normally sold items as
a hawker and
then left her there to go to a tavern. While the complainant was on
her way home, she saw a lady by the name of Suzan
Tshabalala. She
called her and informed her that the appellant had raped her. She
then requested Suzan to summon the police on
her behalf. Shortly
after her arrival at home the police arrived and arrested the
appellant. Suzan Tshabalala was called as witness
and corroborated
the testimony of the complainant in all material respects. She was
not cross-examined by the applicant’s legal
representative.
[4] With
regards to count 1 and 2, the appellant disputed the existence of the
protection order and its service on him. He further
averred that he
mistakenly stabbed the complainant when he was aiming to stab a man
that he had found in the company of the complainant
at their common
home. Concerning count 3, the appellant’s version was that it was
the complainant that had seduced him by lifting
her skirt and then
suggesting sex. According to the appellant, that seduction was
followed by consensual sex which was initiated
by the complainant.
After the sexual intercourse, she accompanied the complainant to the
school and the two of them parted on
a jolly note. He was thus
surprised to learn that the complainant had laid rape charges against
him.
[5] Counsel
for the appellant, Mr Reinders, contended that the convictions in
respect of count 1 and 2 cannot stand because the
existence of the
protection order was not proven. It would, with respect, seem that
the court
a
quo
had hoped to cure this defect by requesting that the prosecutor hand
in an affidavit/return of service. The prosecutor then handed
in some
documents which the court admitted as exhibit C. Significantly,
exhibit C is neither an affidavit nor a return of service.
That
exhibit C was requested and handed in after both the state and the
defence had closed their cases and even addressed the court
is indeed
worthy of note. Needless to say, documents handed in the afore-said
manner are accepted as exhibits only if their authenticity
and
content are not in dispute.
In
casu
,
the existence of the protection order and its service remained in
dispute throughout. Adv. Mohlala on behalf of the state conceded

that the existence of the protection order was not proven and thus
conceded to the setting aside of the conviction in respect of
count
1. This concession was, indeed, correctly made.
[6] Adv.
Mohlala however submitted that the conviction in respect of count 2
could, in terms of the provisions of
section 270
4
>
1
of the
Criminal Procedure Act, be
altered to a conviction of assault
with intent to do grievous bodily harm. As authority for his
proposition Adv Mohlala relied
on the case of
S
v MASITA
2005 (1) SACR 272(C).
This was a matter that came before the High
Court on automatic review. The accused had been found guilty of
contravention of
section 17(a)
of the
Domestic Violence Act.
[7] On
review the court found that there was no proof of service of the
court order in question and that the testimony of the accused
gave no
indication as to whether the accused had acknowledged the existence
or the content thereof. The evidence however proved
that the offence
of assault with intent to do grievous bodily harm had been committed.
The court held that even though the accused
had not been warned that
assault with the intent to do grievous bodily harm was a competent
verdict for the charge laid against
him, such a failure did not
per
se
constitute a fatal irregularity, the primary investigation being
whether the accused in the particular circumstances of each case
had
a fair trial or not. It was further held that the accused would have
been properly informed that a charge of assault was implicit
in the
charges he faced and therefore he was neither prejudiced nor was his
right to a fair trial infringed. The court, relying
on the case of S
V MAVUNDLA 1980(4) SA 187 (T), concluded that all the essential
elements of a charge of assault with intent to
do grievous bodily
harm were present in the charge that was put to the accused person
and that, accordingly, assault with intent
to do grievous bodily harm
was a competent verdict for that charge. This conclusion was of
course reached after that court’s
acceptance that the intent to do
grievous bodily harm could be inferred from the weapon used in the
assault.
[8] I
am of the view that
the
case of S V MASITA (supra) is distinguishable from the one at hand.
In
casu,
count
2 was phrased as follows: “That the accused is/are guilty of the
crime of contravening
section 17(1)
, read with
sections 1
,
5
,
6
, 7
and 17 of the
Domestic Violence Act, Act
116 of 1998 in that a
protection order was issued in terms of which the accused was ordered
not to physically, verbally or emotionally
and sexually abuse the
complainant and that on or about the 4
th
day of February 2005 … and while the said protection order was in
force the accused did intentionally and unlawfully contravene
the
order imposed on him in terms of the protection order against him in
that the accused stabbed complainant with the knife.”
[
9] It
is trite law that the essential elements of a charge of assault with
intent to do grievous bodily harm are the following:
(a) the
application of force; (b) unlawfulness; (c) the intention to apply
force; and (d) intent to do grievous/serious bodily
harm. It is
equally trite that in considering the intent to do grievous bodily
harm, the weapon used is just but one of several
considerations. In
S
v MDAU
2001 (1) SACR 625
at 627b the court had the following to say on this
aspect:
“
Whether the
court deals with an apparently obvious case or with another type of
case the court must, because of the onus on the
prosecution, never
lose sight of the real enquiry: what exists to convince that in the
mind of the accused there existed an actual
intent to inflict bodily
harm
which
is of a serious (“grievous”) nature? … In answering that
enquiry the following are the major considerations in this
case:
(
1) what
was used as ‘weapon’, and to which part of the complainant’s
body was it directed?
(2) because fists
are less effective to cause body injury than for example a knife,
what degree of force was used to strike at the
complainant?
(3) what injuries were caused?
(4) what was the reason and object, if
any, for the action of the accused? and
(5) what caused the accused to
desist?”
[10]
My
view is that when due consideration is paid to the five factors
mentioned above vis-à-vis the facts of this case, it is
rather
difficult to conclude that the essential element of “intent to do
grievous bodily harm” can,
in
casu
,
be inferred from the charge-sheet. This is the critical aspect that
distinguishes this case from application of the principle
in
S
v MASITA
(
supra)
.
Having come to this conclusion, it is unnecessary for me to deal
with the aspect of whether the accused person was prejudiced
by the
failure to be informed that a charge of assault was implicit in the
charge that he faced.
[1
1] With
regards to the conviction on count 3, I am satisfied that the court
a
quo
correctly accepted the evidence of the
complainant,
especially as it was corroborated in all material respects by the
evidence of an independent witness. Critically,
the evidence of this
independent witness was left completely unchallenged
by
the appellant’s legal representative. In contrast, the version of
the appellant was not only riddled with contradictions but
was quite
improbable. It follows then that the court
a
quo
correctly rejected the appellant’s version as false. Its acceptance
that the state had proven its case beyond reasonable doubt
can also
not be faulted. See
S
v FRANCIS
1991 (1) SACR 198
(A) at 204 c – e; also see
J
v S
ALL SA
1998 (2) SA 267
(A).
[12] Regarding
the sentence imposed, this court is sitting on appeal and thus has
limited powers as sentencing is a discretionary
power of the trial
court that may only be tampered with if it was tarnished by a
material misdirection or is startlingly inappropriate.
See
S
v BLANK
1995 (1) SACR 62
(A). Also see
S
v KGOSIMORE
1999 (2) SACR 238
(SCA).
[13] Mr
Reinders argued that the sentence is, considering the circumstances
of the case, shockingly inappropriate, especially considering
that
the complainant and the appellant were a married couple who had, on
the complainant’s own admission, had consensual sex
three weeks
prior to the incident in question. The court
a
quo,
in its judgment (p144 line 11-13) considered the following as one of
the mitigating factors: “That the accused was not a stranger
to
the complainant in that they were married.” I am thus satisfied
that the court took cognizance of that factor. I am also
satisfied
that all the other personal circumstances of the appellant were also
taken into account. Rape is a serious offence and
is justifiably
visited with severe sentences. See
S
v CHAPMAN
[1997] ZASCA 45
;
1997 (2) SACR 3
at 5 b – e. The sentence imposed by the court
a
quo
is not one that can be described as shockingly inappropriate. In my
view the court
a
quo
exercised its sentencing discretion properly. There is therefore no
justification for this court to tamper with that sentence.
[14] I
would accordingly make the following order:
The
appeal against conviction and sentence in
respect
of count 1 and 2 succeeds and, accordingly, both the conviction and
the sentence in respect of count 1 and 2 are set
aside.
The
appeal against conviction and sentence in respect of count 3 (rape)
fails. Accordingly, the conviction and sentence imposed
by the
court
a
quo
in respect of count 3 is hereby confirmed.
_
_________________

M. B. MOLEMELA, J
I
concur.
_________________________
C. H. G. VAN DER
MERWE, J
On
behalf of the Applicant:
Adv.
S. J. Reinders
Instructed by:
Giorgi
& Gerber Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv. A. Mohlala
Instructed
by:
The Director: Public
Prosecutions
BLOEMFONTEIN
1
If the evidence on a charge for any offence not referred to in the
preceding sections of this chapter does not prove the commission
of
the offence so charged but proves the commission of an offence which
by reason of the essential elements of that offence is
included in
the offence so charged, the accused may be found guilty of the
offence so proved.