Keva v S (A103/2021) [2021] ZAWCHC 217 (29 October 2021)

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[2021] ZAWCHC 217
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Keva v S (A103/2021) [2021] ZAWCHC 217 (29 October 2021)

SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE, HIGH COURT DIVISION)
Case Number: A103 / 2021
Lower Court Case Number: SHF /
64/2017
In
the matter between:
MBUYISELO
KEVA

APPELLANT
and
THE
STATE

RESPONDENT
Coram:
Wille, J
et
Montzinger, AJ
Heard:
22
nd
of October 2021
Delivered:
29
th
of October 2021
JUDGMENT
WILLE,
J
et
MONTZINGER, AJ
:
(concurring)
INTRODUCTION
[1]
This is a criminal appeal from the lower court in
connection with both conviction and sentence.  The appellant was
convicted
on a single count of rape.  The offender was legally
represented for the duration of his trial.  He declined to offer
up
a plea explanation and reserved his right to remain silent.
Further, he elected not to make any formal admissions in terms
of the
Criminal Procedure Act.
[1]
[2]       The rape
charge preferred against the appellant was formulated under and
[AM1]
terms of the provisions of The Sexual offences and
Related Matters Act.
[2]
The allegations against the appellant were
that he raped the complainant who was (7) years old at the time.
Initially it was
alleged that this offence occurred on the 19
th
of December 2016. This ‘time-period’ was
however the subject of ana amendment in terms of the CPA to indicate
a period from the
1
st
to
the 14
th
of
December 2016.
[3]
The appellant was convicted of rape and was sentenced to life
imprisonment as the victim was
a minor
[3]
.
The appellant was correctly alerted to the provisions of the minimum
sentencing regime prior to the progression of the trial
against him.
The name of the appellant was also subsequently entered onto the
official roll for sexual offenders. The appellant
was (41) years old
at the time of the alleged commission of the offence.
THE
GROUNDS OF APPEAL
AD
CONVICTION
[4]       The matter comes before us
with leave of the lower court against both conviction and sentence.
Generally, on conviction, the averment is made that the lower court
erred and ‘misdirected’ itself by convicting the appellant
and by
its finding that the respondent had established and proved the guilt
of the appellant beyond a reasonable doubt.  By
way of
elaboration, it is generally also submitted that the appellant’s
version was not fanciful and is reasonably possibly true
and that
consequently, he fell to be acquitted.
[5]       Moreover, the appellant
submits that he did not enjoy a right to a fair trial.  This
because this right affords to him, the right to be informed of the
charge levelled against him, with sufficient detail and particularity
to be able to answer and defend the allegations levelled against him.
AD SENTENCE
[6]       As far as the life sentence
imposed upon the offender is concerned, he submits that there
were
indeed substantial and compelling circumstances sufficient to deviate
from the minimum sentence regime.  It is submitted
that the
court a quo misdirected itself by not deviating from the minimum
sentence.  The appellant submits that his personal
circumstances
warrant a lesser sentence and that another court may exercise its
discretion to impose a different sentence upon him,
tempered with an
element of mercy.
THE RELEVANT FACTUAL MATRIX
[7]       The circumstances surrounding
the alleged commission of the offence, are briefly these:  that
the complainant returned from school on that day:  it was
raining and she was experiencing some difficulty in locating her
house
keys so as to enter her home:  that the complainant sought
assistance at the home of her neighbor:  that her neighbor was
unable to assist her to gain access to her home (her mother’s
home):  that the neighbor invited her into her home and offered
the complainant something to eat:  that she encouraged the
complainant to take a ‘nap’:  that soon thereafter she left
her home leaving the appellant, the complainant and the appellant’s
young son all sleeping in the same bed:  that according
to the
complainant it was during this time that she was raped by the
appellant:  that the appellant instructed the complainant
not to
report the crime:  that the appellant threatened the complainant
with reference to a firearm:  that the appellant’s
girlfriend
(her neighbor), subsequently returned from the supermarket:  that
the complainant was visibly upset and in tears
and that the
complainant subsequently left and went to her mother’s cousin’s
home.
SUBSEQUENT EVENTS
[8]       The complainant remained
silent about her ordeal.  Eventually she reported that she
had
been raped.  This was triggered sometime later when the
appellant offered a lift to an elderly grandmother.  The
complainant
spoke out as she feared for the latter’s well-being.
The complainant’s mother and grandmother were informed that she had
been raped and she consulted a medical practitioner.  She was
then referred to the Red Cross Memorial Children’s Hospital
and the
police were subsequently notified.
THE CASE FOR THE RESPONDENT
THE COMPLAINANT
[9]       She testified ‘in camera’
and via the medium of a closed-circuit television in terms
of section
153 of the CPA.  This, by consent.  The lower court
carefully and correctly put into place the necessary and
appropriate
measures required of an ‘intermediary’ in terms of the CPA.
A proper and well-grounded basis was presented
for the introduction
of this evidence, with the appropriate safeguards in place.
[10]     She testified that she knew the
appellant as he was a friend of her father’s.  She was unable
to recall the precise date upon which she was raped by the
appellant.  She testified that she was (7) years old at the
time.
She had returned from school.  It was raining and
she was having difficulty in locating her key to her mother’s home.
[11]     She was observed by her neighbor (the
appellant’s girlfriend), who invited her into her home and offered
her something to eat.  The said girlfriend (Ms N[....]), then
instructed her to take a ‘nap’.  She protested as she
did
not want to sleep.  Ms N[....] then insisted that she takes a
‘nap’ and the latter then left her home.  Ms N[....]
stated
that she was going to the local shop to secure some provisions.
[12]     She was sleeping on the appellant’s
bed with the appellant and the latter’s young son.  The
appellant woke her up, undressed her and raped her.  She cried.
The appellant was naked.  The complainant described
how she was
raped by the appellant in detail by reference to a male ‘doll’
and a female ‘doll’ which, were used as mannequins.
[13]     Thereafter, the appellant heard the
noise of the front gate to his home which no doubt signaled the
return of his girlfriend.  The appellant got dressed and placed
his firearm on a table in the nearby vicinity.  The appellant
threatened that he would kill the complainant if she mentioned that
she had been raped.  The complainant thereafter left and
went to
her mother’s sister’s home.
[14]     The complainant did not tell anybody
that she had been raped until an unrelated ‘grandmother’ sometime
later was about to get into the motor vehicle of the appellant.
This triggered the complainant to ‘warn’ the grandmother
not to
get into the appellant’s motor vehicle, as he was a ‘rapist’.
[15]     This sparked an enquiry from the
complainant as to whom had been allegedly raped by the appellant.
The complainant replied that she had been raped by the appellant.
The complainant’s mother was then informed about this allegation
of
rape.  The complainant was eventually taken to the Red Cross
Children’s Hospital for examination and the matter was reported
to
the police.
[16]     Some engagement followed with the
complainant during cross-examination to the effect that the
appellant’s
girlfriend did not go to a supermarket when she left
the appellant’s residence.  The complainant was adamant in
connection
with this part of her testimony as she stated that she
observed the ‘Shoprite’ plastic bags upon the return of the
appellant’s
girlfriend, to the appellant’s home.
MS MSINO
[17]     The complainant resided with her.
She is the complainant’s aunt.  The appellant resided
next
door to her, together with his girlfriend.  She could not recall
the precise date when the alleged rape of the complainant
was
conveyed to her.  This happened about (3) years prior to the
trial, which commenced in the lower court on the 21
st
of
February 2018.
[18]     Sometime thereafter, the appellant was
going to take a ‘grandmother’ who lived next door to the
hospital
in his motor vehicle.  The complainant protested as she
proclaimed that the appellant was a ‘rapist’.  Upon
further
enquiry, it transpired that the complainant had been allegedly raped
by the appellant.  The appellant’s girlfriend
further
corroborated the testimony of the complainant as to what had
transpired when she was allegedly raped by the appellant.
MS KINGSTON - RODOLF
[19]     She is a medical doctor who was at that
time performing her duties at the Red Cross Children’s Hospital.
She is highly qualified and with vast experience.  She examined
the complainant on the 12
th
of December 2016.  She
completed the customary ‘J88’ medical report.  According to
her, she examined the complainant
about (1) month after the
incident.  Her findings were, inter alia, that the complainant
had endured a penetrative sexual injury
to her vagina.
THE CASE FOR THE APPELLANT
THE APPELLANT
[20]     The appellant testified in his own
defense and called one witness in support of his version of events.
He denied that he had raped the complainant.  He confirmed that
it was raining on the day in question and confirmed that the
complainant had some issue with the key to her home, which was next
door.
[21]     He testified that the complainant
entered his home, and his girlfriend gave the complainant something
to eat.  After her meal, according to him, the complainant felt
tired, and she wanted to sleep.  He was lying on his bed
with
his young son.  The complainant was lying on the opposite side
of the bed and her feet were facing towards his direction.
[22]     His girlfriend left them alone for a few
minutes while she went to fetch water from a tap outside.
When
his girlfriend returned, he got up and went to enquire about a
recording made of a wrestling match that he wanted to view.
This, before he went to work.
MS N[....]
[23]     She is the appellant’s girlfriend and
testified on his behalf.  She is the mother of the appellant’s
young child.  She offered the complainant some food on the day
of the alleged rape.  She conceded that she told the complainant
to go and take a ‘nap’ after the complainant had eaten.  She
went to fetch water at a nearby tap and when she returned,
she
noticed the complainant was no longer sleeping on the appellant’s
bed.  The complainant was alongside the bed and was
crying.
Upon enquiry, the complainant said that she wanted to go and play
with her friends.  Most significantly, during
the period, after
collecting the water from the tap and returning into the appellant’s
home, the complainant was no longer on the
appellant’s bed, and she
was crying.
DISCUSSION RE THE CONVICTION
[24]     The core issue in this appeal relates to
an analysis of the approach which was adopted by the lower
court.
Of equal importance, is then the approach to be adopted and the legal
test to be applied, by a court of appeal, in circumstances
when it is
submitted that the appeal court is faced with two diametrically
opposed versions, which in some respect, seem mutually
destructive of
each other.
[25]     Moreover, if a finding is made that the
version of events as presented by the appellant, is not reasonably
possibly true and falls to be safely rejected, then in that event, to
what extent does this finding elevate (if at all), the evidence
presented by the respondent, to meet the threshold of ‘proof beyond
a reasonable doubt’.
[26]     In our view, what is required is a
careful analysis of the evidence, viewed holistically.  What
stands out is that the evidence of the complainant is corroborated in
several material respects.  Further, most notably, no
challenge
or engagement was chartered against the evidence about the threat by
the appellant and his alleged possession of a firearm.
This was
not in any manner meaningfully engaged with during cross-examination
and this throws serious doubt on the version offered
up by the
appellant.
[27]     In addition to this, the appellant
conceded the presence of the complainant on the day of the alleged
rape and that his girlfriend left him alone on his bed with the
complainant.  Also, when the appellant’s girlfriend returned
to his home, the complainant was tearful.
[28]     We turn now to the ‘conspiracy theory’
advanced by the appellant. This in the main, was premised
on some
notion of ‘jealousy’ of him.  This theory was never fully
expanded upon or indeed engaged with on behalf of the
appellant
during the trial, to the extent, that it never became ‘material’
and ‘worthy of evaluation’ by the lower court.
[29]     Besides, the medical evidence in my
view, cannot be described as ‘neutral’ and the scales in this
connection fall to be tipped in favor of the respondent.  The
complainant did endure vaginal penetration.  This cannot
be
disputed.
[30]     What we are left with at the end of the
day is an analysis of the probative weight of the evidence tendered
by the respondent, considering the demeanor findings and credibility
findings in the court a quo, coupled with an ‘aerial-view’
of all
the evidence, not looked at compartmentally, but holistically.
[31]     The demeanor, character and credibility
findings favor the respondent as it cannot be advanced that
the
respondent’s witnesses were bad witnesses who could not be
believed.  The conspiracy theory is euthanized by the
complainant’s
reluctance to mention her ordeal to any person.
[32]     The appellant’s girlfriend confirmed
that upon her return to the appellant’s home, the complainant
was
upset and crying.  The probative weight of this evidence is
high, and it cannot be simply ignored.
[33]
The probative value and weight of all the evidence presented must
also be tested and considered in the
correct context as the evidence
incriminating the appellant and the evidence possibly exculpating the
appellant, should not be considered
in separate compartments.
[4]
‘
Independently,
verifiable evidence, if any, should be weighed to see if it supports
any of the evidence tendered. In considering whether
evidence is
reliable, the quality of that evidence, must of necessity, be
evaluated, as must corroborative evidence’
[5]
[34]
The court must not consider the probability of the version of the
appellant in isolation. In this appeal,
the probabilities linked to
the version offered up by the appellant, must be considered against
the totality of the above-mentioned
mosaic of evidence.
In our view, considering all the evidence
holistically and weighing up the probative weight thereof, whilst at
the same time, considering
the safeguards of a ‘cautionary’
approach necessitated in circumstances such as these, the evidence
overwhelmingly supports the
conviction returned against the appellant
and the trial court was correct in rejecting the version of the
appellant as not being
reasonably possibly true and false.
[35]     Further, the evidence presented by the
respondent meets the threshold needed to convict the appellant
of the
offence listed in the indictment.  This, beyond reasonable
doubt.  We say this because the appellants complaints
are
limited to these:  that the complainant’s testimony is that of
a single witness:  that the cautionary rule finds
application:
that the complainant was inconsistent and unreliable in her testimony
and that the evidence of the first report
was incorrectly evaluated
in that there are material discrepancies about the reporting of the
incident.
[36]     It is contended on behalf of the
appellant that there were material contradictions between the
complainant’s
evidence and the first report to the police and that
this renders the complainant’s evidence unreliable and
inconsistent.
We disagree.  A careful analysis of the
reasoning in the judgment in the lower court clearly demonstrates
that the court
a quo
was acutely mindful that the complainant
was a single witness and that her evidence had to be treated with
some degree of caution.
Further, there were in existence only
very minor contradictions (if any), which were clearly not material
when considering the mosaic
of evidence presented on behalf of the
respondent.
THE RIGHT TO A FAIR TRIAL
[37]     In a final throw of the dice it is
argued that there existed an irregularity in the charge sheet, which
in turn, impacted on the fairness of the appellant’s trial.
This may be dealt with swiftly.  Before any ruling in this
connection, the presiding officer in the lower court granted to the
appellant’s legal representative an unfettered opportunity
to
object to the charge sheet as it was then currently formulated.
[38]     It was agreed and recorded by all that
no prejudice flowed from the way the charge sheet was formulated
and
that the shields and defenses to these charges would not be
influenced in any manner as a result thereof.  We fail to
understand
how in this case, even after an amendment of the charge
sheet, the alleged lack of precise detail could or would have
prejudiced
the appellant in connection with his defense.
[39]
Section 88 of the CPA
[6]
,
was introduced for this very purpose to overcome technical issues in
connection with charge sheets.  Section 88 provides that
where a
charge is defective for want of an averment which is an essential
element of the relevant offence, the defect shall, unless
brought to
the notice of the court before judgment, fall to be cured by evidence
proving the matter which, should have been averred.
[40]
Marais, J (as he then was) in
Thobejane
[7]
,
made the following penchant remarks in connection with the
formulation and particularity required in a charge sheet, namely:
‘…
the
accused, according to the principles of a fair trial, is entitled to
sufficient information to:
(a)
Enable him to understand what the
charge against him is and what conduct on his part is alleged to
constitute an offence, and
(b)
Sufficient information to enable
him to instruct his legal adviser and to prepare his defense (which
in practice would largely overlap
with (a) above), and
(c)   Insofar as the charge sheet and
summary of facts supplied by the state is inadequate for the above
purposes to such
further disclosure or information that may be
required to achieve such purposes’
[41]     In our view, what this really means is
that a charge sheet, particularly in a lower court, should contain
sufficient particulars to inform the accused of the case that he
faces.  In the present case, identity is not in issue, and
it is
not disputed that the appellant and the complainant were alone
together on that specific rainy day.  We cannot follow
how the
appellant in these circumstances, could have suffered prejudice.
DISCUSSION ON SENTENCE
[42]
It is trite law that in sentencing, the punishment should fit the
crime, as well as the offender, be
fair to both society and the
offender, and be blended with a measure of mercy.
[8]
In
S
v Masda
[9]
,
in referring to the case of
S
v Mhlakaza and Another
[10]
,
Saldulker AJA (as he then was), eloquently remarked as follows:
‘
A
sentencing policy that caters predominantly or exclusively for public
opinion is inherently flawed.  It remains the court’s
duty to
impose fearlessly an appropriate and fair sentence even if the
sentence does not satisfy the public’
[43]     In
S
v Rabie
[11]
,
the philosophies and principles applicable in an appeal against
sentence were set out by Holmes JA, namely, that in every appeal
against sentence, whether imposed by a magistrate or a judge, the
court hearing the appeal should be guided by the principle that
punishment is pre-eminently a matter for the discretion of the trial
court and should be careful not to erode such discretion.
Hence
the further principle that the sentence should only be altered if the
discretion has not been ‘
judicially
and properly exercised’.
In
S
v Anderson
[12]
,
in dealing with the applicable legal principles to
guide the court when requested to amend a sentence imposed by a trial
court, Rumpff
JA, affirmed as follows:
‘
These include the following:
the sentence will not be altered unless it is held that no reasonable
man ought to have imposed such
a sentence, or that the sentence is
out of all proportion to the gravity or magnitude of the offence, or
that the sentence induces
a sense of shock or outrage, or that the
sentence is grossly excessive or inadequate,
or
that there was an improper exercise of his discretion by the trial
Judge, or that the interest of justice requires it’
[44]     Moreover, as held in
Malgas
[13]
,
a court of appeal is enjoined to
consider all other circumstances bearing down on this question, to
enable it to properly assess the
trial court’s finding and to
determine the proportionality of the sentences imposed upon the
offender.
[45]     The constitutional
court
[14]
,
has described an appeal court’s discretion to interfere with a
sentence only:  when there has been an irregularity that results
in a failure of justice:  or when the court
a
quo
misdirected itself to such an
extent that its decision on sentencing is vitiated:  or when the
sentence is so disproportionate
or shocking that no reasonable court
could have imposed it.
[46]     As alluded to
previously and f
rom
the record of the proceedings in the court
a
quo
, it
may very well be that the appellant and his girlfriend may have to
some extent, facilitated this crime.  This because the
appellant’s girlfriend conveniently left the appellant and
complainant alone on his bed together on the day in question.
This conduct indicates a deliberate attempt to leave the appellant
with the complainant unsupervised for a significant period and
is
consistent with the complainant’s recollection that the girlfriend
returned with Shoprite bags.  During her testimony the
girlfriend, surely being aware that whether she went to Shoprite or
just to a nearby tap will throw doubt on the respondent’s case,
was
satisfied to give a version that was aimed at protecting the
appellant.  Further, the record does not reflect any suggestion
that the appellant showed any form of remorse at all.
Regrettably, he does not exhibit any insight into the seriousness of
the crime committed by him.  This, in turn goes to the issue of
his moral blameworthiness.
[47]     By contrast the
victim impact report by the complainant and entered into the record,
highlights how this
traumatic event has influenced her life.
The statement reveals, inter alia, a position of trust by the
complainant towards
the appellant, by way of the following:
‘…
I
loved him as an elder brother, and this happened’
‘…
He
was very helpful towards me’
‘…
I
will never forgive him for the rest of my life’
…
When
I go to school, I must be accompanied by someone because I am scared
in the road’
[48]
In addition, the court
a
quo
highlighted
the position of trust between the complainant and the appellant.
The threat of violence against the complainant
can also not be
ignored.  The
sentence imposed
upon the appellant must accordingly in some measure, also reflect a
censure to this sort of conduct and behavior.
Considering
that which has been stated above, we are unable to unearth any
misdirection or irregularity on the part of the court
a
quo
when
it imposed the sentence upon the offender in this matter.  We
also find no room to interfere with the sentence imposed in
this
matter.
[49]     Put in another way
the personal circumstances contended for on behalf of the appellants
are by themselves,
in no manner substantial or compelling.
They simply are the following:  that he is a first offender:
that
he is (45) years old:  that he was gainfully employed and
that he has (5) dependents.
[50]
Accordingly, in all the circumstances, the following order is
granted, namely
[AM2]
:
1.
That the appeal in
connection with the
conviction
of the
appellant is dismissed.
2.
That the appeal in
connection with the
sentence
imposed upon the
appellant is dismissed.
3.
That both the
conviction
and sentence
of
the appellant are hereby confirmed.
WILLE, J
I agree:
MONTZINGER, AJ
[1]
Act, 51of
1977 (‘CPA’).
[2]
A
contravention of Section 3 of The Sexual Offences and Related
Matters Act, 32 of 2007 (‘SOA’).
[3]
The
complainant was (7) years old at the time of the alleged offence.
[4]
S v
Van Der Meyden
1999
(1) SACR 447
[5]
S v
Trainer 2003
(1)
SACR 35 (SCA.
[6]
The
Criminal
Procedure Act 51 of 1977
.
[7]
S
v Thobejane
1995
(1) SACR 329 (T).
[8]
S v
Rabie
1975(4)
855 (AD) at 862 G.
[9]
2010
(2) SACR 311
(SCA) at 315.
[10]
1997
(1) SACR 515
(SCA) at 315.
[11]
S v Rabie
1975(4) 855
(AD) at 862 G
[12]
1964 (3) SA
494
(AD) at 495 D-H.
[13]
S v Malgas
2001 (1) SACR
469 (SCA).
[14]
S v
Boggards
2013
(1) SACR (CC) at [4].
[AM1]
Should
this be ‘in’
[AM2]
I
disconnected the order from the previous paragraph (but leave it in
your discretion)