S v Phasha
| Jurisdiction | South Africa |
| Judge | Gutta J; Hendricks J |
| Judgment Date | 22 June 2012 |
| Docket Number | CA 11/2012 |
| Court | North West High Court, Mafikeng |
| Hearing Date | 25 May 2012 |
| Citation | 2012 JDR 1308 (NWM) |
Gutta J:
A. INTRODUCTION
The appellant was found guilty of kidnapping and rape in the Odi Regional Court and sentenced to 3 years imprisonment for kidnapping and life imprisonment for rape, with the sentences running concurrently.
The appellant appeals both the conviction and sentence.
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Gutta J
B. COMMON CAUSE
Facts that are common cause:
On 01 October 2006, the complainant and her three friends accompanied the appellant and two of his friends in a vehicle that was driven by the appellant. At some stage during the course of the evening, the complainant and her friends ended up at the appellant's residence, where they spent the night;
The complainant and her cousin, Vanessa, remained in the appellant's room with the appellant and his friend, Barker;
The appellant slept on the ground with the complainant and Vanessa and Barker slept on the bed. The appellant and the complainant had sexual intercourse;
C. IN DISPUTE
Facts in dispute:
whether the complainant and her friends went voluntarily with the appellant and his friends to the appellant's house;
whether the appellant had consensual sexual intercourse with the complainant.
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Gutta J
D. EVIDENCE
THE COMPLAINANT
The complainant's version is briefly that at approximately 16h00, she was in the company of three friends, namely, Thato, Kamogelo and Vanessa, when the appellant who was driving a motor vehicle and was in the company of two male friends (Barker and Thabang), stopped the vehicle grabbed her while the second man (Barker) grabbed her cousin Vanessa. Both the complainant and Vanessa managed to run away. Thecomplainant twisted her ankle and fell down and the appellant caught up with her. Vanessa, who saw that the complainant had fallen, stopped and the second man caught up with her. They told them to enter the vehicle. Thato and Kamagelo on seeing the complainant and Vanessa enter the vehicle, also entered the vehicle. The vehicle stopped at Madidi where the appellant and Barker went in and purchased liquor. The appellant told them that if they do not consume liquor he will not take them back home. The complainant consumed half a bottle.
Thereafter, they went to the appellant's parental home. The appellant parked his vehicle in the yard and they entered the appellant's room. She and Vanessa remained with the appellant and Barker in the one room and Thato and Kamogelo went with Thabang into another room. It was approximately 23h00. The appellant told her to sleep with him on the floor and to undress her clothes. She refused and the appellant slapped her and Vanessa with open hands and pulled their hair. He
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Gutta J
took an iron rod and threatened to assault them with it. When the appellant was about to assault her with the iron rod, Barker told him not to do that. The appellant pulled her to the floor and removed her t-shirt, jeans and panty. He opened her legs and she told him that if he was going to rape her, he should use a condom. He slapped her and bumped her against the wardrobe and then he raped her. She testified that she screamed but the appellant put the radio on. The next morning he raped her again.
The next morning, the complainant told Kamogelo and Thato that the appellant raped her. The appellant drove the complainant and her friends and dropped them near a church where they got a lift in a taxi. The appellant returned the complainant's cell phone to her. The wife to the priest, Mamoruti, called her on her cell phone because she heard that they were not at home and fetched them at the four-way stop at Morula Sun. She drove them to the church. The complainant's aunt arrived and thereafter they went to the police station.
The complainant made a statement to the police. Although she stated that it was not read back to her she read it in Court and stated that she was happy with the contents of the statement, that the statement was true. The complainant, in her statement, contradicted her evidence in the following respects:
the time when the appellant approached her;
thatThato and Kamogelo were grabbed by two males;
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Gutta J
the time when they arrived at the appellant's home;
in her statement, she stated that she removed her t-shirt and left her panty on and got underneath the blankets, while in her evidence she stated that she only removed her jacket and the appellant removed her other items;
that the appellant wore a condom when he raped her for the second time.
In cross-examination the complainant mentioned for the first time that she saw a firearm before she was grabbed by the appellant.
THE APPELLANT
Briefly, the appellant's version is that he was in the company of his friends, Thabang and Barker, when they saw the complainant and her friends. The appellant invited them to go with them. The complainant and her friends told them to call them in 20 minutes and the appellant took the complainant's number. He phoned her after 20 minutes and the complainant fold them to wait for about 10 minutes. After approximately 15 minutes they arrived. They were five in number. The complainant said she had to fetch a key at her house and left with one of the ladies. She returned alone and reported that she sprained her ankle when she jumped over the fence at her home. All four entered the car and the complainant told them they should return at midnight. They first went to a filling station at Lebonong, where he filled petrol in his
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car. They discussed going to a place called Gemini, but they decided not to go there because the complainant said her mother sometimes frequents the place. They then went to a supermarket at Madidi and spent approximately 20 minutes there. At Madidi, they met one Papi, who knew the complainant and he came to greet the girls.
Thereafter, they went to a tavern known as Maya's Place, where they purchased liquor and snacks. The appellant and Barker went to buy liquor and on their return Kamogelo asked to go to the toilet. Thereafter they went to Maloka's Tavern. They all consumed alcohol in the car. At Maloka'sTavern, they all entered the tavern and remained there until 24h00.
On their way back, they experienced car trouble approximately 100 metres from the appellant's uncle's place. They pushed the car and parked it at the uncle's place. Then they walked on foot to the appellant's parental home. They took turns to carry the complainant, whose foot was injured.
They entered the appellant's room, where they all listened to music. The appellant asked his nephew if Thato and Kamogelo could sleep in his room and he agreed. He and Barker remained with the complainant and Vanessa. Because he and the complainant spent time together that evening and at some stage kissed her, he suggested that the complainant sleep with him on the floor. He denied that he threatened or assaulted the complainant. They both undressed themselves and had consensual sexual intercourse once only.
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Gutta J
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