S v Fourie (CA&R 35\05) [2006] ZANCHC 82 (17 February 2006)

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[2006] ZANCHC 82
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S v Fourie (CA&R 35\05) [2006] ZANCHC 82 (17 February 2006)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
no: CA&R 35\05
Date
heard: 2006\02\16
Date
delivered: 2006\02\17
In
the appeal of
:
JOHN
FOURIE APPELLANT
versus
THE
STATE RESPONDENT
Coram:
MAJIEDT J
et
TLALETSI
J
JUDGEMENT ON
APPEAL
MAJIEDT J:
The
appellant appeals against his conviction of rape as well as the
sentence of 10 years imprisonment imposed therefor.
The appellant, who was
legally represented at his trial, outlined his defence at the
commencement of the hearing to the effect that
he had been involved
in a sexual relationship with the complainant, but that he denied
having raped her on the day in question.
The complainant
testified that she and the appellant had previously worked together
at a farm butchery. She denied the existence
of any intimate
relationship between them. She testified further that the appellant
and his friend had been present at her house
on the evening in
question. They were drinking beer which they had brought there.
Also present were her neighbours, one Stiga
and his wife. The
appellant offered her some of their liquor, but she declined same.
After the neighbours had left and after the
appellant and his friend
had finished their liquor, she requested them to leave. They
refused to do so. The appellant used her
toilet and thereafter they
left. Later that night she was awakened by a person lying on top of
her and strangling her. This person
clamped her mouth shut with his
one hand, removed her panties with the other and then proceeded to
have sexual intercourse with
her against her will. Later, when this
person left, she grabbed his shirt and when he looked back, she saw
that it was the appellant.
He left through the toilet window which
was open. The complainant inferred that the appellant had
deliberately left the toilet
window open earlier, so that he could
gain access to her house later that night. According to the
complainant, she reported to
Emily Pieterse, her uncle’s wife,
about the rape. She was later examined by a doctor.
Emily
Pieterse confirmed that the complainant had arrived at her house
late that evening. The complainant had a towel or shawl
around her
shoulders. The complainant made a report to her – she was however
not certain whether the complainant had said that
the appellant
(whom she referred to by name,
viz
“Nana”) had attempted to rape her or had in fact raped her. The
complainant was clearly shocked and she spoke rapidly.
The medical certificate
(J88) was handed in – no injuries were found by the doctor. The
clinical examnation aslo did not yield
any results as to whether or
not the complainant had in fact been raped.
The appellant then
testified. He confirmed that he and his friend Tswang had been at
the complainant’s house. According to him
the complainant spoke
to him about “love” and about their relationship. He denied
having returned to the complainant’s house
later and having raped
her. He initially alleged that the complainant was fabricating the
rape allegation, since she was upset
with him because he had refused
her demand that he should leave his present girlfriend and move in
with her. This version was
never put to the complainant. Later on
in his evidence the appellant raised an alibi defence, namely that
after having left the
complainant’s house earlier, he had been
with Tswang when he got a lift to his cousin Joel, where he had then
spent the night.
This latter version was also never put to the
complainant.
The
magistrate found the complainant to be a truthful witness and also
found her to be a reliable identification witness. The magistrate
correctly found that identification was the main issue for
adjudication. I can find no fault with the magistrate’s
assessment
of the complainant as a witness. She was extensively
cross-examined and did not contradict herself on material aspects.
She was
confronted with ostensible contradictions in her witness
statement, but the statement was never handed in. The magistrate
approached
her evidence with caution, considering that she is a
single witness. He also tested her identification evidence against
the guidelines
laid down in leading cases such as
S
v Mthetwa 1972(3) SA 766 (A)
at 768 A-C;
S
v Zitha 1993(1) SACR 718 (A)
at
720 i – 721 a. That is not to say that the complainant was
a flawless witness – she was understandably quite shocked,
traumatised and confused during the event which has undoubtedly
affected her powers of observation to some extent. Her version
does, however, follow logically and is far more plausible than that
propounded by the appellant. Moreover, she is corroborated
in
important respects by Emily Pieterse.
While
Emily Pieterse was uncertain as to whether the complainant had
reported that she had been raped by appellant or whether he
had
merely attempted to do so, she was quite clear about the fact that
the complainant was in a considerable state of shock. She
also
confirmed, at least in part, how the complainant was dressed. The
most important part of her corroborative evidence is that
she
confirms that the complainant had made mention that the appellant
had done something to her (i.e. either rape or attempted
rape).
The Magistrate in my
view correctly accepted Emily Pieterse’s evidence as first report
witness. There is nothing on the record
to controvert that finding.
The appellant advanced
two different versions as defence, as I have alluded to herein. He
was at a complete loss to explain why
neither of these two versions
had been put to the complainant by his attorney, who had been quite
meticulous and thorough in his
cross-examination. The appellant’s
versions are in my view utterly improbable and stands to be rejected
as false beyond reasonable
doubt as the Magistrate has correctly
done.
On a conspectus of all
the evidence I am satisfied that the magistrate has correctly found
that the State has proved its case beyond
reasonable doubt. The
appeal against conviction must consequently fail.
With regard to sentence,
the Magistrate found that there are no substantial and compelling
circumstances justifying a departure
from the minimum sentence of 10
years imprisonment prescribed in Act 105 of 1997. Aggravating
features in the appellant’s misdeed
include:
a) The complainant was
accosted and defiled in the sanctity of her own home and, worse
still, in the presence of her three year old
child;
b) the
offence was carefully planned and was premeditated – the appellant
had deviously left the toilet window open prior to his
departure so
that he can gain access to the complainant’s residence’;
c) the appellant has not
shown an iota of remorse and had maintained his clearly untruthful
contradictory defences throughout.
Based
on the test laid down in
S
v Malgas 2001(1) SACR 469 (SCA)
at 481 h – 482 b, the Magistrate has correctly assessed all
the relevant sentencing factors and has correctly come to the
conclusion that the minimum sentence should be imposed.
Rape remains a scourge
in our society and the circumstances in which the present rape was
committed demands a severe sentence, as
prescribed in Act 105 of
1997. The appeal against sentence is also devoid of merit in my
view.
THE APPEAL IS
DISMISSED. THE APPELLANT’S CONVICTION AND SENTENCE IS CONFIRMED.
___________
SA MAJIEDT
JUDGE
I
agree:
___________
PL TLALETSI
JUDGE
FOR THE
APPELLANT : ADV AT MODUPE
FOR
THE RESPONDENT : ADV CG JANSEN
DATE OF HEARING : 2006\02\16
DATE
OF JUDGEMENT
:
2006\02\17