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Case No: CA 46/2007

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION

In the matter between:

JOSEPH OUPA SETAE APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

PISTOR AJ:

[1] The Appellant in this appeal was convicted in a Regional Court of one count of rape. He was sentenced to (15) fifteen years imprisonment.

[2] He appealed to this Court against both his conviction and sentence.

[3] The salient facts according to the complainant of the matter can be summarised as follows:

(a) On the day of this incident the complainant, her boyfriend, the Appellant and a fourth male person travelled in the boyfriend’s vehicle in a village. The complainant was pregnant then.

(b) Complainant did not know the Appellant before that day.

(c) They visited a shebeen where the boyfriend bought liquor.

(d) At some stage during the evening they again stopped at a shebeen where the boyfriend went in to buy beer, he left the complainant in the car waiting.

(e) Whilst she was waiting in the car the Appellant came to the car and pulled her out of the car.

(f) He pulled her to a nearby veld where he raped her.

(g) In order to subject the complainant to his desires the Appellant hit her with fists. He also broke a bottle and threatened to stab her, but he did not go to the extent of stabbing her. However in the process of breaking the bottle the Appellant cut his hand and caused his hand to bleed as a result her own T-shirt was “full of blood” due to the Appellant pulling her with it.

(h) Having raped the complainant in the veld the Appellant then pulled the complainant to a village. He told the complainant that he was taking her to his place to have sex with her.

(i) He took her to a mud house with a corrugated iron roof where he again tried to have sex with her. She screamed and an elderly lady who turned out to be the aunt of the Appellant came.

(j) She told the aunt that Appellant had pulled her from the car but she did not tell the aunt that she was raped or assaulted because she was afraid that the Appellant might have further assaulted her.

(k) The aunt reprimanded the Appellant and asked the Appellant “does he not see that I am pregnant?”

(l) The aunt chased the Appellant away. The complainant then slept there and the next morning she went to the police and then to hospital.

[4] The aunt testified and stated that on the night in question she found the Appellant and a lady (the complainant) at her place whilst she was moving from one house to the other. She found the Appellant and the lady in the latter house. It was about 22:00. Appellant was full of blood “The girl was crying. Appellant denied that he had beaten the complainant. Complainant told her that Appellant had pulled her out of the car but that he “did not beat her.” She (the aunt) “chased the accused away” because he wanted to leave with the girl but the girl refused. They slept and in the morning the girl left. The aunt also testified that the Appellant was drunk but that complainant was not drunk.

[5] A medical report, (reflecting the result of a medical examination which was conducted on the complainant at 12:40 on the day after the alleged rape) was handed in with the consent of the defence attorney who appeared for the accused in the regional court. According to the report:

(a) The complainant had a “contusion on the left eye” and “also hymatoma”

2. She also had a swelling on the left cheek.

2. There were no injuries “on the genital organs”

2. The doctor noted that complainant was six weeks pregnant.

[6] The boyfriend of the complainant also testified and in general confirmed the evidence of the complainant. He testified that he again met the complainant the next day at the hospital after he had obtained a report that complainant went to hospital, since he could not find the complainant the previous night when he returned to his car. He only found that the left door of the car was open. At the hospital she told him that Oupa (the accused) had assaulted and raped her.

[7] The Appellant pleaded not guilty, did not give a plea explanation but revealed in cross examination and in his evidence the following defence. Whilst the boyfriend was in the tavern to buy liquor the complainant requested him (Appellant) to accompany her to the veld to relieve herself. She did so but was so drunk that she could not walk properly. Appellant accompanied the complainant and waited for her. However, after some time he called her and then found her asleep on the ground. Appellant grabbed her and went back to the car with complainant but the car was not there anymore. He then offered her accommodation and took her to his aunt’s place where his aunt requested him to leave but allowed the complainant to stay. He (Appellant) had no sexual intercourse with the complainant.

[8] It was argued strenuously before us by Mr Kuapane who appeared for the Appellant on the instructions of the Legal Aid Board that the Regional Court Magistrate erred in accepting the complainant’s version and rejecting the version of the Appellant.

[9] A court of appeal will as a rule not interfere with findings of a Court a quo on matters of credibility unless the trial court committed a misdirection.

WYNLAND PROPERTIES CC v POTGIETER and ANOTHER 1999 (4) SA 1265 (C) AT 1272 E.

NDLOVU v A A MUTUAL INSURANCE ASSOCIATION LTD 1991 (3) SA 655 (E) at 659 E – F.

[10] In my view there is no basis on which it can be said that the Learned Presiding Regional Court Magistrate was wrong in respect of his findings on credibility. During argument Mr Kuapane conceded (correctly in my view) that the Appellant drew the complainant from the car with the intention to rape her but he argued that in the absence of medical evidence that confirms the rape and in view of the fact that the complainant failed to report the rape to the aunt, the complainant’s evidence that she was raped stands alone and should not have been accepted on that aspect.

[11] With respect to counsel, who convincingly argued his case, I cannot agree. The complainant is supported and corroborated on almost every material aspect of her evidence (except on the actual rape) by her boyfriend and the aunt of the Appellant. The Appellant’s version on the other hand does not account for the facial injuries sustained by the complainant, the blood on the T-shirt and on him and the fact that his aunt observed the complainant crying. In fact and despite the specific evidence of his aunt that he was full of blood the appellant in his evidence denied that he was bleeding at all. This evidence of the Appellant must also be viewed against a question put to the complainant by the defence attorney to the effect that it is correct that the accused “was injured from his hand and therefore blood was coming out of his hand …… but that was not as a result of the bottle…..”

[12] The fact that the medical report did not state that complainant was raped does not in the circumstances have the effect that complainant’s evidence that she was raped, should be rejected.

[13] In my view the Appellant was correctly convicted.

[14] The sentence of fifteen (15) years imprisonment is stiff but does not justify interference by this Court. The Appellant has three previous convictions for assault and one for malicious injury to property. The complainant was pregnant and the Appellant must have realised it because his aunt appears to have observed it and asked the Appellant as to whether he could not see that the complainant was pregnant. Appellant was unknown to the complainant and her boyfriend but was offered (and made use of) their hospitality and enjoyed driving with them in the boyfriend’s car on the day of the incident. However at an opportune moment he took advantage of the situation. The Appellant consumed liquor on the relevant day. His aunt testified that he was drunk. However, she was not asked to explain what she meant by saying so. The Appellant’s defence did not raise the issue of liquor at all. On the contrary it was the Appellant’s case that the complainant was drunk and that he had to assist and support her. Rape remains a serious crime which is prevalent in this jurisdiction as can be seen from the number of rape cases that come before this Court.

[15] Accordingly I am of the view that interference with the sentence imposed is not justified.

[16] In the result the appeal is dismissed with costs.

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J H F PISTOR

ACTING JUDGE OF THE HIGH COURT

I agree.

________________________________

L MOLOISANE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

Date of hearing : 16 May 2008

Date of judgment: 05 June 2008

For the Appellant : Adv KUAPANE

For the Respondent: Adv DIKGOPO

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