Peete v S [2006] ZAFSHC 89 (10 August 2006)

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[2006] ZAFSHC 89
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Peete v S [2006] ZAFSHC 89 (10 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A78/2005
In
the case between:
TEBOHO KAIZER
PEETE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
C.J.
MUSI, J
_____________________________________________________
JUDGEMENT:
RAMPAI, J
HEARD ON:
26 JUNE 2006
_____________________________________________________
DELIVERED ON:
10 AUGUST 2006
_____________________________________________________
[1] The appellant was
convicted in the Phuthaditjhaba Regional Court and sentenced to 10
years imprisonment on the same day, the 31
st
October 2003. He now comes on appeal against the conviction and the
sentence.
[2] The
charge against the appellant was that he raped the victim at Mabolela
Village in Qwa-Qwa on the 21
st
April 2003. He pleaded not guilty to the charge on the 28
th
October 2003.
[3] As
regards the merits, the version of the prosecution was narrated by
three witnesses, namely: Moetsamang Selina Mohlakoana, Sergeant
M.J.
Ramakatane and Matereng Mosikili.
[4] Briefly stated the
facts were that the complainant, M was the appellant’s girlfriend.
The couple had been dating for about
two months at the time of the
incident. She lived at Letsha-le-maduke Village, and he at Mabolela
Village. On the 21
st
April 2003, in other words, Human Rights Day, she paid him a visit at
or about 13h00. He wanted to make love to her. She did not
want to.
He then assaulted her, ordered her to undress and threatened to stab
her with the knife unless she obliged. He put the
knife on the floor
next to the bed.
[5] Because she was
afraid that he might harm her, she obliged. He then sexually
penetrated her against her will. She was crying
all along. In the
end she managed to jump out of his bed and to run outside. She was
naked. She screamed for help. People gathered
on the scene. The
appellant threw her clothes out to her at the request of the
onlookers. She dressed up outside. Among the onlookers
she noticed
her fellow worker, Matereng. She told Matereng that the appellant
had raped her. Both Matereng Mosikili and Sergeant
Ramakatane
testified that the victim was emotionally tearful, depressed and
appeared to have just been assaulted.
[6] While
the appellant was still in the house with the victim, an unknown
woman came into the appellant’s house. The appellant
and the
victim were in his bedroom. By then she was already naked. The
appellant had already warned her not to say a word should
someone
come. He left her in the bedroom to attend to the visitor. He
locked the bedroom door. The appellant had a 20 minute conversation
in the kitchen with the other woman. In the meantime the victim put
on her clothes. The knife was still on the floor of the bedroom
with
one window when the appellant re-entered. Once again the appellant
assaulted and raped her. All this emerged for the first
time during
cross-examination.
[7] The
appellant did not give evidence in his defence. No witness was
called to give evidence for the defence. The defence case
was simply
closed.
[8] The
only issue the trial court had to decide was whether the appellant
had raped the victim or not. This it had to do on the
version of the
prosecution since it was the only version before the court.
[9] It
was contended on behalf of the appellant that the actions of the
victim cast some serious doubt on her claim that the appellant
had
raped her. Ms Bezuidenhout raised five issues on the strength of
which she submitted that the state had failed to discharge
the onus
of proving the guilt of the appellant beyond reasonable doubt. She
made the following submission:
“
... dat daar veeltal inherente
onwaarskynlikhede in klaagster se getuienis voorkom welke direk dui
op haar ongeloofwaardigheid as
getuie. Daar sal vervolgings kortliks
verwys word na die relevante gedeeltes in haar getuienis.”
[10] Counsel for the
appellant contended that it appeared that the appellant did not use
the knife to force the victim into submission.
In my view this is a
lame contention. The victim’s evidence was that the appellant
first slapped her in the face several times
because she did not want
to have sex with him. Apparently, the slapping did not break her
resistance. He then intensified the assault
by resorting to a knife.
He threatened to stab her to death unless she submitted to his
sexual demand. She believed she was in
danger. She submitted by
undressing and climbing into his bed in accordance with his
instructions. When the appellant realised
that he had broken the
victim’s resistance, by threatening her with the knife, he put it
down on the floor next to her. She was
in tears while the appellant
was with her in bed. That is what I understand happened in the
bedroom.
[11] During
cross-examination the victim spelt out the threat that accompanied
the production of the knife. She was pertinently asked
by the
defence attorney, Ms Dyeyi to tell the court what the accused said.
She merely flashed out details of the threat which induced
her fear
for the knife. The fact that she did not do so in her evidence in
chief she did not diminish her credibility. The magistrate
was
correct in finding that the appellant threatened the victim with the
knife.
[12] Counsel
for the appellant also contended that the victim did nothing to draw
the attention of the unknown woman in the kitchen
to her plight in
the bedroom. This was a thin argument. The victim did not know who
the woman was and whether she would have been
so sympathetic to her
as to want to rescue her. It must be borne in mind that the bedroom
door was locked. The bedroom window was
too small. She could not
escape in any way while the appellant was in the kitchen with the
other lady. Throwing the knife out of
the bedroom through the window
was no useful option. Getting rid of the knife would probably have
angered the appellant even more.
The appellant would probably have
grabbed another knife from the kitchen. Above all these odds the
appellant had also warned her
to remain silent should anyone show up.
In my view the fact that the victim did not scream to attract the
attention of the other
woman did not suggest that she was not held up
as a sex captive. Screaming would probably have worsened her
desperate situation.
[13] The
victim stood up and dressed up while the appellant was in the kitchen
and she was alone in the bedroom. That was another
indication that
she was detained against her free will in there and that she was
prepared to brake free. Seeing her already dressed
up annoyed the
appellant even more. He once again assaulted her and again forced
her to undress and to lie down naked in his bed.
At one stage she
surprised him, pushed him off the bed and quickly dashed out of the
house. She fled from the appellant naked and
screaming. At the
request of the onlookers the appellant threw her cloths at her.
[14] It
is very unlikely that a lovers disagreement of the sort, suggested by
the appellant’s attorney in the court below, could
have made the
victim to behave in such an embarrassing manner. Such a hysterical
and naked escape underlined her genuine fear and
bolstered her
version that she had been physically assaulted and violated.
[15] Counsel
for the appellant further contended that the absence of medical
evidence was an indication that the victim was not assaulted
and
raped. In my view this contention holds no water. Among the
onlookers, the victim recognised Matereng. The victim instantly
told
Matereng that the appellant had just raped her. Matereng
corroborated the victim not only about the first report she made but
also about the signs that she had been assaulted, about her tearful
emotional state, about her physical nakedness as well as her
hysterical call for help.
[16] Sergeant
Ramakatane corroborated the victim in certain respects. The report
he received was to the effect that a woman had been
raped at
Mabulela. He rushed to the scene where he found the victim still
crying. He could see that she had been assaulted. The
victim was
not immediately taken to the doctor by the police. The police woman
responsible for the rape victims did not advise her
not to bath in
the meantime. As a result of the police neglect she bathed before
she saw a doctor the next day. According to her
the doctor examined
her but completed no medical report form because she had already
bathed and the doctor found nothing wrong.
The explanation she gave
was probably true.
[17] The
poor quality of the service rendered by certain public hospitals in
our country is a known fact. Lack of medical evidence
can never
override the direct evidence of the victim in the circumstances of
this case. Important though such medical evidence is,
it remains, of
confirmatory and secondary importance as compared to the victim’s
original and primary version of events. I cannot
see any reason why
the court below should have rejected the victim’s version simply
because the customary medical report was not
completed. The victim
was not to blame for the doctor’s omission to complete a medical
record or the prosecutor’s omission to
call the police officer who
had escorted her to the hospital. In my view none of the contentions
raised materially tarnished the
victim’s credibility and weakened
the case against the appellant.
[18] The appellant chose
to remain silent. Since there was direct evidence implicating him,
he did so at his own peril. There was
nothing to gain-say the
victim’s direct evidence incriminating him. In
S
v CHONCO
1991 (1) PH H66 AD, Milne JA stated that there was a clear
distinction in our law between the failure of an accused to give
evidence
where the case against him was based on circumstantial
evidence and the failure of an accused to give evidence where the
case against
him was based on direct evidence implicating him. The
instant case falls in the latter category.
[19] The
state relied on the evidence of the victim who was a single witness.
The trial court was aware of this and mindful of the
dangers inherent
in the uncritical acceptance of the evidence of a single witness. It
seems to me that the magistrate followed the
proper approach in the
process of evaluating and analysing the victim’s evidence.
S
v SAULS & OTHERS
1981 (3) SA 177
(AD).
[20] There were adequate
safeguards in the corroborative versions of the two independent
witnesses. Again the trial court adopted
the proper approach in
evaluating and analysing the versions of the two.
[21] Sitting as a court
with appellate jurisdiction we cannot lightly interfere with the
credibility findings of the trial court
unless we are convinced that
such findings were clearly wrong.
S
v FRANCIS
1991 (1) SACR 198
AD at 204 c – e. Notwithstanding the critique
raised by the counsel for the appellant, I could find no material
misdirection to
justify our interference with the convictions. I
would therefore confirm the conviction.
[22] The court below
found that there were no substantial and compelling circumstances to
justify the imposition of a lesser sentence
than the prescribed
minimum of 10 years imprisonment. On behalf of the appellant it was
contended that the court below erred in
making such a finding.
However, on behalf of the state the finding of the court below was
supported.
[23] The
court below took into account certain mitigating factors. It
accepted that the appellant had passed grade 12 at school.
He was
employed as a clerk. He earned R500 per month. He was unmarried.
He had no children. He inflicted no serious injuries
on the victim.
He had a clean criminal record. In addition to these factors it must
be added that it appeared that the appellant
was 37 years of age at
the time of his arrest and that he was in custody for over six months
before he was sentenced. These then
were the mitigating factors.
[24] The
aggravating factors were also taken into account. The gravity of the
crime of rape. The interest of the community. The
prevalence of the
crime of rape. The cunning measure of planning.
[25] Commutatively
considered, I could find nothing so substantially compelling in the
appellant’s personal circumstances to justify
deviation from the
prescribed minimum sentence. Notwithstanding the absence of serious
physical injuries as well as the absence
of serious psychological
trauma the mitigating factors were overshadowed by the aggravating
factors in this case. Lest we forget,
we have to remind ourselves
that the victim was insulted, degraded and humiliated by the
appellant’s conduct. I could find nothing
shockingly severe and
disturbingly inappropriate about the sentence. In my view the court
below sentenced the appellant in a proper
and balanced manner.
Therefore I would also confirm the sentence.
[26] Accordingly
I make the following order:
The appeal fails in
toto
.
The conviction and the
sentence are confirmed.
______________
M.H.
RAMPAI, J
I
concur.
___________
C.J.
MUSI, J
On
behalf of the Appellant: Adv. I.J. Bezuidenhout
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the Respondent: Adv. A. Ferreira
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/em