IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No:    A104/2009
In the matter between:

Versus
THE STATE

JUDGMENT DELIVERED ON 15 MAY 2009

Allie, J

[1] On 10 July 2008, the appellant was arraigned in Atlantis Regional Court on a charge of rape. The appellant, who had legal representation pleaded guilty. He was convicted of rape on 30 July 2008 and sentenced to 18 years direct imprisonment. He appeals against both his conviction and sentence.

[2] The state alleged that he raped the complainant, a 14 year old minor who is the appellant's half sister's daughter on 24 November 2007 at her home.

[3] On the evening in question the complainant's mother who is the sister of the accused was away in the Eastern Cape. She left Busisiwe, a 21 year old friend to take care of her four children. The appellant drank alcohol with Busisiwe at the complainant's home. The house comprised a RDP house with two adjoining wood and zinc structures attached. The four children which includes the complainant were sleeping in the house on a three quarter sponge mattress which was situate to the right of the main house entrance.

[5] Thereafter she went to sleep again. The next morning Busisiwe asked the complainant what had happened. The complainant's mother came back the Sunday, i.e. the day after the incident at approximately 5pm. She told her mother what had happened. Her mother took her to the police and to the doctor that Sunday night.

[6] The complainant was cross examined about the various discrepancies between her statement to the police and her testimony in Court. She said that the female police officer who took down her statement allowed her to tell the story in Xhosa, and then the police officer wrote it down in English and then read it back to the complainant in Xhosa. Her mother and Busisiwe sat in the same room where she gave her statement.   She admitted that there was a prior incident where the appellant pushed over a room divider and broke some crockery of her mother.

[8] She was also cross examined about the contradictions between her statement to the police and her evidence in Court. She explained that the statement was taken by the same police officer and under the same circumstances as that of Nisiwe.

[10] She confirmed that to see the sponge on which the complainant and the other children slept that night, one would have to walk to the right of the entrance door once inside.

[11] Ms Busula the police officer who took down the statement of the complainant, her mother and Busisiwe testified that she could remember vaguely what the complainant said independently from what was written in her statement. She said that she allowed the complainant to give her version in Xhosa. Thereafter this witness wrote the statement in English and read it back to the complainant in Xhosa. She understood naked to mean only the bottom clothes such as the pants of a person were off. She clearly displayed a poor command of English by virtue of the grammar and vocabulary she used to write down the statement. She conceded that she could have made a mistake in taking down the statements and translating them.

[15] The appellant's legal representative put a proposition to Lisiwe, the complainant's mother that the appellant spoke to Busisiwe about ending their alleged relationship. This proposition was not put to Busisiwe. The appellant alleged that the complainant's mother previously alleged that "N" was raped by a relative in the Eastern Cape but it was a false allegation. This allegation was not put to the complainant or to her mother, Lisiwe during cross examination. The appellant's girlfriend could not corroborate his allegation that Busisiwe had a grudge against him and that she had a relationship with him.

[16]   It is clear that the appellant adapted his defence as he went along.

[17] Although there were contradictions between the version of the complainant and that of Busisiwe with regard to what the complainant wore or whether the appellant's pants was pulled down while he committed the rape, it does not point to a lack of credibility. It is trite that a court may reject part of a witness' evidence and accept part. The complainant was asleep immediately prior to the rape. Her powers of observation with regard to the pants of the appellant because he had a relationship with Ntombevuye too, during cross examination he conceded that she had no grudge against him.

[15] The appellant's legal representative put a proposition to Lisiwe, the complainant's mother that the appellant spoke to Busisiwe about ending their alleged relationship. This proposition was not put to Busisiwe. The appellant alleged that the complainant's mother previously alleged that "N" was raped by a relative in the Eastern Cape but it was a false allegation. This allegation was not put to the complainant or to her mother, Lisiwe during cross examination. The appellant's girlfriend could not corroborate his allegation that Busisiwe had a grudge against him and that she had a relationship with him.

[16]   It is clear that the appellant adapted his defence as he went along.

[17] Although there were contradictions between the version of the complainant and that of Busisiwe with regard to what the complainant wore or whether the appellant's pants was pulled down while he committed the rape, it does not point to a lack of credibility. It is trite that a court may reject part of a witness' evidence and accept part. The complainant was asleep immediately prior to the rape. Her powers of observation with regard to the pants of the appellant could easily have been less than accurate. This does not mean that her entire evidence is impugned.

[18] Busisiwe's evidence and the medical evidence lends support for the complainant's allegation that the appellant raped her.

[19]   The appellant's evidence does not caste any doubt on the state's case.

[20]   I would accordingly confirm the conviction.

[21] The sentence of 18 years direct imprisonment is however startlingly inappropriate in as much as the appellant is a 24 year old first offender and alcohol played a role in the commission of the offence. The appellant only completed standard six. On the other hand he has violated a young girl closely related to him who trusted him.

[23]   The appellant is sentenced to 12 years direct imprisonment.

ALLIE, J
I agree