Kholotsa v S (A49/2021) [2021] ZAFSHC 197 (9 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

APPEAL NUMBER: A49/2021

In the matter between:

TSHEPO

FRANCES KHOLOTSA

APPELLANT

and

THE

STATE

RESPONDENT

HEARD ON: 19 JULY 2021

CORAM: NAIDOO, J et CHESIWE, J

JUDGMENT BY: CHESIWE,

J

DELIVERED ON: 9 SEPTEMBER 2021

[1] The Appellant appeared before the Regional Court, Bloemfontein. He was charged with two counts of Rape, Pointing of a Firearm, Kidnapping and Assault with Intent to do Grievous Bodily Harm (assault GBH). He was convicted on 29 November 2017 and sentenced to an effective term of life imprisonment on 6 December 2017. The Appellant approaches this court in terms of his automatic right of appeal.

[2] The appeal lies both against conviction and sentence, except on the conviction and sentence of assault GBH as the Appellant pleaded guilty at the trial court.

[3] The Appellant’s grounds of appeal briefly are that the trial court erred in finding that the Complainant was a credible witness and that the state had proved its case beyond reasonable doubt. In respect of sentence, that the sentenced imposed is shockingly and disturbingly inappropriate and/or vitiated by irregularity.

[4] The background on this matter briefly is that, on the 18 December 2015, the Complainant met with the Appellant in town as per an agreement between them. The Complainant and the Appellant were previously involved in a love relationship, which they ended. The Complainant and the Appellant took a taxi to where he lived. When they both alighted the taxi, the Appellant pointed a firearm at the Complainant and instructed her to walk with him to his shack. On arrival at the shack, the Appellant instructed the Complainant to have sex with him. The Complainant refused. The Appellant started to assault the Complainant with his fists. The Appellant poked the complainant’s eyes with his fingers, strangled and proceeded to rape her. The Appellant kept the Complainant locked up in the shack for three days. On 21 December 2015, the Appellant raped the Complainant for the second time.

[5] Mrs Kruger on behalf of the Appellant submitted that the Heads of Argument were drafted by Mr Mokoena. She however, conceded and submitted that the Appellant was not a good witness at the trial court. She said the instructions basically are that the trial court erred. She could not add to the written Heads of Argument.

[6] Adv. Lencoe on behalf of the Respondent submitted that the alibi of the Appellant, based on the surrounding evidence, cannot stand. He indicated that the Appellant in the Heads of Argument does not indicate whether the trial court committed any irregularities in as far as the merits are concerned or that the trial court misdirected itself. He submitted that conviction and sentence are supported and that the application be dismissed.

[7] The testimony of the Complainant at the trial court is corroborated by the medical evidence, that is the J88. Exhibit ‘A’ showed that the Complainant suffered physical injuries, that is, a left eye bruise of 3x3cm, a bruise on the neck and a human bite on the upper right arm. The medical report concluded that the absence of genital injuries does not exclude forceful penetration.

[8] The Complainant’s evidence was that she did not consent to the sexual intercourse. The Complainant was kept in the custody of the Appellant for three days. She testified that the Appellant did not offer her food or water. The Appellant being the father of the Complainant’s children was in a position of trust. The Appellant threatened to shoot any person that would come to the rescue of the Complainant and that prevented the Complainant from screaming. The Complainant cannot not be faulted for not having shouted for help, even though there were a lot of tenants in the same yard. In my view, the trial court correctly found that the Appellant penetrated the Complainant vaginally with his penis without her consent on different dates.

[9] The Appellant gave an alibi that on 18 December 2015 he was working in Hartswater and did not see the Complainant on that date. The Complainant’s testimony was clear and detailed that she was in the custody of the Appellant from 18 December 2015 till 21 December 2015. The Complainant’s evidence was that they prayed before they left to go to the grandparents of the Appellant, though the Appellant said he was reading the Bible and then went to church. The Appellant therefore provided corroboration for the Complainant’s version that he was present with her in the shack. The trial court correctly accepted the Complainant’s version that the Appellant was with her and not in Hartswater. It is indeed improbable that the Appellant could have been in Hartswater, as his own version was he took the Complainant to his grandparents’ house.

[10] It is trite that an appeal court will only interfere with the trial court ‘s findings if it is shown that the findings made by the trial court were clearly wrong. It has not been submitted that the trial court committed any misdirection of fact. Furthermore, when consideration is given to all inconsistencies and improbabilities, there is no reason to doubt the correctness of the credibility findings made by the trial court. I am satisfied that the State proved its case beyond reasonable doubt. Furthermore, the trial court correctly found the Appellant to be an untruthful witness and correctly rejected his version as false beyond reasonable doubt. In my view the trial court correctly convicted the Appellant and there is no reason to interfere with the trial court’s findings on the conviction.

[11] Ms Kruger conceded that the Victim Impact Report confirmed that the trauma suffered by the Complainant and the probabilities thereof are not in the Appellant’s favour. Adv. Lencoe submitted that the long-term psychological effects on a rape victim are immeasurable, thus one cannot classify a rape as not being of the worst kind. He submitted that the leave to appeal the sentence must be dismissed.

[12] The appeal court will interfere with sentence if there is an irregularity that results in failure of justice[1]. The Appellant has committed an offence for which the legislature has prescribed a sentence of life imprisonment. The court can only deviate from imposing the aforesaid sentence if there are substantial and compelling circumstances. Seen in light of the argument presented by Counsel for the Appellant and the concession that the Appellant was not a credible witness, it does not warrant this court’s interference with the sentence imposed.

[13] The trial court was very much aware of its responsibilities in this regard and dealt with both the aggravating and mitigating circumstances. The court correctly found that there were no substantial and compelling circumstances that warranted the imposition of a lesser sentence than the prescribed life imprisonment.

[14] Adv. Lencoe correctly stated that rape is a life time trauma, the victims are often suicidal with adverse psychological effects for the rest of their lives. The physical injuries are indeed visible, but the emotional scars are invisible and the victim has to live with that for the rest of her life.

[15] The period of approximately two years that the Appellant spent in custody awaiting the finalisation of the trial is insignificant when compared to the horrendous rape committed against the Complainant. The Appellant’s personal circumstances are the usual circumstances and there is nothing extraordinary to warrant this court’s deviation from the imposition of the prescribed minimum sentence.

[16] Rape is a repulsive crime. It is an invasion of the most private and intimate zone of a woman and strikes at the core of her person and dignity[2]. In S v Chapman[3] the court called it a ‘humiliating; degrading and brutal invasion of the privacy and the violation of a person’s dignity’. At paragraph 4 it went on further to say that: “Women in this country have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment to go and come from work and to enjoy the peace and tranquillity of their homes without fear of the apprehension and the insecurity which continually diminishes the quality and enjoyment of their life.”

[17] It is trite that a court with appellate jurisdiction has limited powers to interfere with the sentence imposed by the trial court. The sentencing discretion lies with the trial court and its sentence will be interfered with on appeal only if the discretion in question was not exercised judicially and properly, or if there is disparity between the sentence imposed and the one that ought to be imposed. In S v Malgas[4] the court stated as follows: “A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it was the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the

appellate Court would have imposed had it been the trial court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind, I have mentioned…[5]”

[18] In R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 the majority, per Greenberg JA and Davis AJA (Schreiner dissenting) said: “The trial court has the advantages, which the appeal judges do not have, in seeing and hearing the witness and being steeped in the atmosphere of the trial. Not only has the trial court the opportunity of observing their demeanour, but also their appearances and whole personality. This should not be overlooked.”

[19] In light of the above, it therefore does not warrant the Appeal Court to interfere with the sentence of the trial court. In my view, therefore, the appeal against conviction and sentence should be denied.

[20] Accordingly, I make the following order;

1. The appeal against the convictions and sentences is dismissed.

2. The convictions and sentences of the court a quo are confirmed.

S. CHESIWE, J

I concur.

S. NAIDOO, J

On behalf of Appellant: Ms S Kruger

Instructed by: Legal Aid South Africa

Bloemfontein Local Office

On behalf of Respondent: Adv. M Lencoe

Instructed by: The Office of the DPP

BLOEMFONTEIN

[1] S v Bogaards) 2013 SACR (1) para 41.

[2] (S v Vilakazi (567/02) [2008] 87; [2008] 40 ALL SA 396 (SCA) 2009 (1) SACR 55 2 (SCA) (2012) (6) SA 353 (SCA) (3 September 2008).

[3] (345/96) [1997] ZASCA 45; 1997 (3) SA 341 (SCA0; [1997] 3 ALL SA 277 (A); (22 May 1997)

[4] S v Malgas 2001 (1) SACR 469 (SCA) at 478D-H

[5] S v Malgas above at 478D-H