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2007
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[2007] ZANCHC 13
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S v Toma (CA&R 78/2006) [2007] ZANCHC 13 (2 March 2007)
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IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
number:
CA&R
78/2006
Date
heard:
26/02/2007
Date
delivered:
02/03/2007
In
the matter between:
TOMA,
VICTOR ADAM
Appellant
and
THE
STATE Respondent
Coram:
Lacock
J
et
Makhafola
AJ
JUDGMENT
LACOCK
J:
The applicant was
convicted in the Regional Court on a charge of indecent assault and
was sentenced to payment of a fine of R5 000.00
or 12 months
imprisonment, as well as a further 12 months imprisonment which was
conditionally suspended for a period of 4 years.
He now appeals against
the conviction only.
The
relevant factual circumstances found by the Court
a
quo
to have been proven beyond a reasonable doubt can be summarised
thus:
On
Saturday afternoon, 19 February 2005, the complainant, Ms Julia
Monone, arrived in Kimberley from Bloemhof, for an interview
with
the appellant. The latter was on the lookout for a person to be
employed
inter
alia
as a domestic worker.
The appellant met the
complainant in the town centre of Kimberley, where he found her in
the company of her sister-in-law, Ms Gracious
Kgomo. Although Ms
Kgomo wanted to accompany the complainant, the appellant refused her
request and indicated to her that the complainant
could spent the
night at his house. The complainant and the appellant then left in
his car and arrived at his house in Memorial
Road, Kimberley, some
time after 19:00.
During
the interview the appellant offered the complainant the job as a
domestic worker at a monthly salary of R1 000.00, but added
that he
was prepared to increase this amount to R6 000.00 per month if the
complainant was prepared to act as his sexual partner
(to
âsleepâ
with him). This the complainant refused to do.
After the interview
the appellant invited the complainant to sit on a chair next to him
in front of his computer. Here he first
touched her breasts and
then inserted his one hand into her trousers and touched her private
parts over her panties.
The
appellant denied that he indecently assaulted the complainant as
alleged or at all.
The Regional Court
Magistrate accepted the evidence of the State witnesses and rejected
the version of the accused as not being
reasonably possibly true.
To my mind the magistrate was fully justified to have come to this
finding.
Mr
Van Heerden who represented the appellant in the court
a
quo
and in this Court, relied firstly on a number of contradictions in
the evidence of the complainant, as well as in that of her
sister-in-law, Gracious, and the police officer, Mr Victor Gabonewe.
He however, conceded, correctly so in my view, that these
contradictions were not of a material nature. The record reveals
that the complainant did not depart from her evidence in chief
in
any material respect, and her evidence was corroborated by Gracious
and Gabonewe in all material respects.
The
main thrust of Mr Van Heerdenâs argument was that the
probabilities did not support the version of the state witnesses.
In this regard it was submitted that, if the complainant was
indecently assaulted by the appellant as described by herself, and
if she was as afraid to spend the night in the house of the
appellant as she testified, and if Gracious and inspector Gabonewe
were honestly worried about the wellbeing of the complainant, it is
improbable that the complainant would not have done more to
either
escape from the appellantâs house during the night or to attract
the attention of Gracious and Gabonewe for them to find
the
appellantâs house, and that Gracious and Gabonewe would have
abandoned their search for the complainant until the next morning.
According
to the evidence the complainant immediately reported the incidents
to Gracious on the very first opportunity she had to
speak to her on
her cellular telephone in the absence of the appellant. She
thereafter had several telephonic communications with
Gracious who
assured her that she contacted the police and that they were
attempting to locate the appellantâs house to fetch
the
complainant. Not one of these witnesses knew the appellantâs
address, except that the house was in Memorial Road, Kimberley.
If one takes into
account that the complainant came form Bloemhof, was a complete
stranger in Kimberley, was dependant on the appellant
to return her
to her family, that Gracious informed her that she (Gracious) has
already alerted the police, that the police were
unable to locate
the appellantâs house and that a police official has spoken to the
appellant subsequent to the assault, the
conduct of the complainant
to have accepted her fate and not to have â as suggested by Mr Van
Heerden â called the police herself
or to escape through a window
or to attract the attention of the search vehicle by switching a
light on and off, does not strike
me as improbable. If one adds
hereto the evidence that the appellant at all times had a fire-arm
in his possession or at least
within reaching distance from him, and
that the complainant was afraid that he might harm her, her conduct
becomes all the more
reasonable.
To
my mind the probabilities strengthen the complainantâs version.
The complainant
desperately wanted the employment offered by the appellant. Her
evidence in this regard was not questioned. No
reason at all
presents itself why she would ruin this opportunity by laying a
false complaint against the appellant.
Mr Van Heerden
suggested that the complainant laid the charge in an effort to extort
money from the appellant. It is common cause
however, that, apart
from the salary that was discussed, the first time that money matters
were discussed between the parties, was
during the next morning
before the complainant left the appellantâs house. By that time
and several hours before that, the complainant
had already informed
Gracious, who in turn informed the police, that the appellant had
indecently assaulted her.
At
the very first opportunity that the complainant could speak to
Gracious in private, she informed her of the appellantâs
unacceptable
conduct. I find it totally improbable that the
complainant would have acted in this manner if she was not molested
by the appellant
in view of her eagerness to obtain employment.
The
appellant clearly tailored his evidence on two material respects.
When the complainant
testified, it was put to her that the appellant did not offer her a
monthly income of R6 000.00 per month,
and the only income that was
discussed was a salary of R1 000.00 per month. In his own
testimony the appellant however, revealed
that he did discuss a
possible income of up to R6 000.00 a month with the complainant, but
averred that the additional amount would
be paid to her as
commission on the sales of a book he intended to publish.
Again during cross
examination of the complainant it was put to her that before she
left the appellantâs house the next morning,
she came into his
bedroom, sat next to him on his bed while he was still in bed, and
tenderly put her hand on his chest. It was
not put to her that she
then touched his private parts with her elbow.
In his testimony
however, the appellant averred that the complainant actually tempted
him by deliberately touching his private parts
with her elbow.
By reason of the
aforesaid I am convinced that the Magistrate correctly rejected the
appellantâs version and accepted the evidence
tendered on behalf
of the State. I can find no reason to differ from the magistrateâs
conclusion that on all the evidence the
guilt of the appellant was
proved beyond a reasonable doubt.
In the result, the
appeal is dismissed.
_______________
HJ Lacock
JUDGE
I
concur.
_______________
K
Makhafola
ACTING
JUDGE
For
the appellant:
Adv
CF Van Heerden
(instructed
by André Potgieter & Ass., Kimberley)
For
the respondent:
Adv
CG Jansen
(Office
of the DPP, Kimberley)