Bosiu v S [2006] ZAFSHC 50 (30 November 2006)

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[2006] ZAFSHC 50
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Bosiu v S [2006] ZAFSHC 50 (30 November 2006)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No.: 104/2006
In
the appeal between:
SOTHO
PETRUS BOSIU
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOLEMELA, AJ
JUDGEMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
20 NOVEMBER 2006
DELIVERED
ON:
30 NOVEMBER 2006
_____________________________________________________
[1] The appellant was
tried in the Botshabelo Regional Court where he was accused of rape.
He pleaded not guilty on the 2
nd
April 2004.
Notwithstanding his plea he was later convicted as charged. On the
same day, the 9
th
June 2004 he was sentenced to 10 years
imprisonment. He now comes on appeal against the conviction and the
sentence.
[2] The prosecution
alleged that the appellant raped the victim, Dipolelo Miniah Masego,
an adult female at 2328 Section F in Botshabelo
on Saturday the 25
th
October 2003.
[3] The version of the
prosecution was narrated by four witnesses, namely: Dipolelo Minah
Masego, the victim, Leshenyemo Thomas Sekonyela,
the arresting police
officer, Anna Pinki Molokoane, the victim’s nearby resident and
Monyalleng Jeanette Makhetha, the victim’s
direct neighbour.
[4] Their testimonies may
be collectively summarised as follows: The victim and the appellant
were acquaintances. They met by coincidence
at Section K on the day
in question. From there they walked together to Section F. There
the appellant insisted to enter the victim’s
house. Inside the
house the appellant strangled the victim. During the wrestling, the
appellant dragged her outside. The victim
screamed for help but
nobody came to her rescue. Her neighbour Makhetha heard the victim’s
outcry but she was afraid to venture
out at night.
[5] The appellant pulled
the victim back into the house where he threatened to shoot her.
During the course of the night he raped
her twice between 20h00 and
04h00. At ±05h30 the victim met Molokoane and told her that
the appellant had raped her. Molokoane
accompanied the victim to the
local police community service centre where she reported the
incident. Inspector Sekhonyane tracked
the appellant down at a pub
and informed the appellant about the charge. The appellant denied
the charge. Although he admitted
that he had sexual intercourse with
the victim, he averred, that the victim had consented. The appellant
then begged the victim
to forgive him.
[6] The version of the
defence was narrated by three witnesses, namely: Sootho Peter Bosiu
the appellant, David Moduka, the appellant’s
friend and Nzimeni
Petrus Mbola, also the appellant’s friend.
[7] Their testimonies may
collectively be summarised as follows: The appellant met the victim
at Section K. The victim went to Wayawaya
Tavern with the appellant
and his companions or rather witnesses. The victim pretended to be
the appellant’s girlfriend so that
she would not be bothered by
other men. She later invited the appellant to her residence at
Section F telling him that her husband
was not home but at Virginia
where he was working. At her place she asked for sex and gave him
condoms to wear. By mutual consent
they indulged in a sexual
intercourse.
[8] The trial court
found that the prosecution witnesses were credible and reliable,
saying with reference to the victim in particular:
“
Ten spyte van die enkele
onbevredigende aspekte wat die Hof reeds uitgelig het in die
klaagster se weergawe vind die Hof dat daar
voldoende stawing in die
ander twee getuies Ponky en Monyaleng se weergawes is dat die Hof
haar weergawe as geloofwaardig en betroubaar
kan aanvaar.”
Vide page 170:5-9.
[9] The trial court was
not at all impressed by the evidence of the appellant and his
witnesses. It regarded the appellant his witnesses
Maduka and Mbola
as untrustworthy witnesses. According to the trial court Maduka was
a pathetic witness whose evidence was worthless.
In rejecting the
version of the appellant the trial court described his testimony as
follows:
“
Daar is soveel swak plekke en
onbevredigende aspekte en weersprekings in die beskuldigde se
weergawe dat die Hof nie oortuig is dat
sy weergawe redelik moontlik
waar is nie.”
Vide page 169:27 –
page 170:3.
[10] Mr. Nkhahle, who
argued the appeal on behalf of the appellant at the request of Mr.
Skibi, contended that the trial court misdirected
itself in finding
that the victim was a credible and reliable single witness whose
evidence was satisfactory in all material respects.
[11] However, Ms. Bester,
counsel for the respondent, disagreed with Mr. Nkhahle. She
contended that the trial court made correct
findings as regards the
credibility of all the witnesses in general and the victim and the
appellant in particular. She submitted
that there was no
misdirection to warrant any interference with the judgment.
[12] The victim
frantically screamed for help in the middle of the night. Her
neighbour Makhetha heard her screaming. The next morning,
hardly two
hours after her ordeal had ended, she tearfully told Molokoane that
“Bushi”, in other words the appellant, had raped
her. In
S
v HAMMOND
2004 (2) SACR 303
(SCA) at paragraph 21 Cloete JA
observed as follows as regards the emotional state of the victim:
“
[21] Caution must be exercised when
the emotional state of a complainant is taken into account. The
English cases on this point are
collected and discussed in Ramesh
Chauhan (1981) 73 CAR 232. In one of those cases, Redpath (1962) 46
CAR 319 at 321 - 2 Lord Parker
CJ said:
'It seems to this court that the
distressed condition of a complainant is quite clearly capable of
amounting to corroboration. Of
course, the circumstances will vary
enormously, and in some circumstances quite clearly no weight, or
little weight, could be attached
to such evidence as corroboration.
Thus, if a girl goes in a distressed condition to her mother and
makes a complaint, while the
mother's evidence as to the girl's
condition may in law be capable of D amounting to corroboration,
quite clearly the jury should
be told that they should attach little,
if any, weight to that evidence because it is all part and parcel of
the complaint. The girl
making the complaint might well put on an act
and simulate distress. But in the present case the circumstances are
entirely different.'
The circumstances in Redpath were that
the distressed condition of the little girl who had been the subject
of the assault was observed
by someone whom the little girl did not
know to be there.”
The victim’s behaviour
in my opinion was consistent with that of a woman who had been
raped.
[13] Mr. Nkhahle attacked
the victim for her failure to tell Makhetha about the incident the
next morning. The victim’s behaviour
was quite understandable in
my view. Makhetha heard about her plight at night before she was
raped but did nothing.
[14] The further
contention was that the victim should have run out after the first
incident of rape. Her failure to do so, so went
the argument,
supported the appellant’s claim that she had consented to have sex
with him. This contention was fallacious. It
was wrongly premised
on the incorrect assumption that the appellant fell asleep after the
first sexual intercourse. There was no
evidence that the appellant
fell asleep between the first and the second sexual acts. The
correct evidence was merely that the appellant
rested after the first
episode.
[15] There were several
and material defects in the appellant’s version. Firstly he and
the victim were not even secret lovers.
Secondly they met by sheer
coincidence that particular evening. Thirdly his farfetched story of
the suspicious footprints on the
victim’s premises did not impress
as an excuse as to why he entered the victim’s house. Fourthly his
plea for forgiveness was
an indirect acknowledgement that indeed he
had wronged the victim. Finally his explanation that he left the
victim’s dwelling
at an ungodly hour of 04h00 because the victim’s
brother-in-law had seen him there was absolutely ridiculous. This
belated piece
of evidence was never put to the victim. On that score
alone no weight at all can be attached to it.
[16] The court below was
mindful of the cautionary rule applicable to the evidence of a single
witness. It correctly applied the
principle and found the victim’s
evidence satisfactory in all material respects. That finding is one
which I on appeal cannot
hold to be wrong. I am not persuaded that
the trial court misdirected itself as alleged or in any other manner
whatsoever. In the
absence of any misdirection as regards the facts
or the law we are not at liberty to interfere. I would therefore
dismiss the appeal
as regards the merits.
[17] In sentencing the
appellant the court below considered as mitigating factors the
following: That the appellant was 25 years
of age; that he was
unmarried; that he was the father of a two year minor child and that
he was a first offender.
[18] The court below also
took into account the following as aggravating factors: that rape
was a serious crime; that rape was rife
in its jurisdiction; that
the interests of society demanded appropriate punishment for the
rapists; that the appellant betrayed
the trust the victim had in him
and that the appellant was still remorseless.
[19] The court below came
to the conclusion that there were no substantial and compelling
circumstances to justify deviation from
the prescribed minimum
sentence of 10 years. This conclusion was arrived at after the due
and the balanced weighing up of the mitigating
factors as against the
aggravating factors. Mr. Nkhahle contended that the court below
failed to consider the cumulative effects
of the aforesaid mitigating
factors coupled with certain additional factors which he argued the
court failed to take into account.
He submitted that cumulatively
considered such factors constituted substantial and compelling
circumstances. However, Ms. Bester
supported the finding that no
substantial and compelling circumstances existed in this case.
[20] As I see it, the
trial court applied the sentencing principles in a balanced manner.
The fact that the victim was a sexual active
adult woman; that she
sustained no serious physical injuries; that there was no evidence of
psychological trauma; that the appellant
had imbibed alcohol plus the
other mitigating factors had to be considered against the backdrop
that the appellant raped the victim
in her own house. He used a very
deceptive ploy to get there. These two factors in addition to the
aggravating factors already
mentioned above were singularly strong
aggravating factors. I am of the view that the finding of the trial
court that there were
no substantial and compelling circumstances in
favour of the appellant is one which I cannot, on appeal, hold to be
wrong. The mitigating
factors were overshadowed by the aggravating
factors. It cannot be said that the trial court attenuated the
cumulative impact of
the appellant’s personal circumstances. I can
find nothing particularly disturbing about the punishment meted out
by the court
below. It cannot be persuasively argued that the
sentence of 10 years imprisonment was shockingly severe in the
circumstances.
I would, therefor uphold the sentence.
[21] Accordingly I make
the following order:
21.1 The appeal fails in
toto.
21.2 The conviction and
the sentence are confirmed.
______________
M.H.
RAMPAI, J
I
concur.
__________________
M.B.
MOLEMELA, AJ
On
behalf of the applicant: Adv. J. Nkhahle
Instructed by:
The
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Bester
Instructed by:
The Director:
Public Prosecutor
BLOEMFONTEIN
/em