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[2014] ZAGPJHC 86
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Bangala v S (A412/2013) [2014] ZAGPJHC 86 (17 April 2014)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
A412/2013
DATE: 17 APRIL
2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In
the matter between:
NHLANHLA
BANGALA
.......................................................................................
Appellant
and
THE
STATE
..........................................................................................................
Respondent
J U D G M E N T
MASHILE,
J
:
[
1]
This is an appeal against both conviction and sentence. The
Appellant was charged with the rape of M[…] M[…],
an 11
year old girl. He appeared before the regional court for the region
of Gauteng held at Protea. He was legally represented
throughout the duration of his trial and was warned that the
provisions of
Section 51
of the
Criminal Law Amendment Act No. 105 of
1997
could be invoked for purposes of the imposition of sentence
should he be found guilty as charged. He pleaded not guilty to
the charge against him. On 13 August 2008, he was found guilty as
charged and on 26 September 2008 sentenced to life imprisonment.
[2]
In terms of
Section 309(1)(a)
of the
Criminal Procedure Act 51 of
1977
, the Appellant became entitled to an automatic right to appeal
against both his conviction and sentence. This appeal accordingly
concerns his conviction and sentence.
[3]
The complainant testified on her own behalf while her mother gave
evidence in support. The report of the doctor was read
into the
record and admitted into evidence and marked Exhibit “A”
without any objection from the Appellant. The
Appellant also
gave evidence on his own behalf and called Nkele Ramotjapedi, his
girlfriend, to give evidence in mitigation of
sentence.
[4] The testimony of
the complainant is in short that on 4 April 2008 she had just
attended Sunday school and was playing outside
the church when she
was approached by the Appellant. Both she and the Appellant are
members of the Zion Christian Church
(ZCC) and the latter is also a
prophet of the same church. The Appellant asked if she would be
going to Moria and the complainant
informed him that she would not as
her mother could not afford the money to send her.
[5]
A discussion about steaming with the Appellant (it having religious
significance), culminated in the complainant agreeing to
accompany
him to his house. The Appellant informed her that he would
prepare the steaming ritual for her and his younger
brother, Tebogo,
who at the time when he (the Appellant) left the house was also
intending to do so. On their way to the
Appellant’s house
they met the complainant’s friend, L[…] who walked with
them for a while before the Appellant
told her that she could not go
all the way to the Appellant’s house as she was not wearing
anything on her head.
[6]
L[…] turned back and the two proceeded. The complainant
waited at the gate of the Appellant’s property while
he spoke
to a neighbour. He invited her in once he finished his chat
with the neighbour. Inside the house she found a boy
who was older
than herself playing music. The Appellant poured tea and drank
it. Apparently in preparation of the steaming,
the Appellant
put rocks on the stove and requested her to come through to the
bedroom for a prayer.
[7]
The Appellant promised to give the complainant an amount of R20 and
thereafter to withdraw R200, which amount was intended to
cover her
trip to Moria. In addition, the Appellant asked her to take off
her clothes, which she did albeit that she kept
on her panties. The
Appellant’s persuasion and assurance that she should not be
scared and that he was nothing but a brother
to her, encouraged her
to take off her panties as well. The Appellant went out of the
bedroom and she overheard him giving
money to Tebogo to buy
vegetables. He came back with a black pot into which he had
placed the heated rocks. He took
off his clothes and covered
both of them with a blanket. They both steamed.
[8]
The Appellant ordered her to lie on the bed. When she did so,
he also lay next to her. He said to her:
“I
am a boy and you are a girl.” The complainant said that
she did not understand what he meant whereupon he
told her that she
should not make herself stupid because she did understand what he
meant. He left the bedroom and when he
returned, he had a
knife. He pointed it at her, grabbed and held her neck. She
became so horror-struck that she asked if
she could urinate.
The Appellant gave her a bucket to use and as she did so, she also
defecated.
[9]
The Appellant gave her a cloth with some decorations to wipe
herself. When she had finished, he pointed the knife at her
heart and warned that he would stab her to death. He further
grabbed her by the neck and threw her onto the bed. She
fell on
her back. He demanded that she should put his penis into her
vagina. When she refused, he did it himself and
continued to
have sexual intercourse with her. Thereafter he gave her a
washing rag to clean herself. She washed and
noticed that there
was some blood mixed with some white substance coming out of her
vagina. She dressed up and told the Appellant
that she wanted
to leave. The Appellant told her that he was overcome by the
deed of the devil and that she should not tell
anyone what had
happened between them that day.
[10]
She and the Appellant left the house for the church. Upon her
arrival at the church, she did not find Mama Pat.
By that time
she was crying and she went straight to her home where she found her
mother to whom she reported that the Appellant,
the prophet from
their church, had raped her. Her mother looked shocked at the news
and suggested that they should go to the police
station to report the
matter. She stated in cross-examination that other than telling
her that she had been raped, she did
not say much to her mother.
Her mother heard most of the details when she related her dreadful
experience to the police.
[11]
When she and her mother arrived at the police station, they were told
to wait for the new shift of the police that would be
taking over at
18h00. Later that night she took them to the house of the
Appellant but they were told that members of the
household, the
Appellant and whoever lived in the house, had gone to church.
They went back to the police station where she
made her statement.
She was then taken to Chris Hani Baragwanath Hospital for medical
examination and was later dropped off
at her home.
[12]
Under cross examination she insisted that the Appellant raped her in
the manner described by her. She denied that she
was the one
who asked to accompany him to his house. Instead, the Appellant
asked her if she would be going to Moria and
her response was that
she would not be because her mother did not have money. She
further denied ever asking to be steamed.
She was adamant that
it was the Appellant who proposed steaming.
[13]
She also denied that the Appellant gave her boiling water from the
stove and that he prepared the bedroom for her to steam
herself in
the interim. She denied that she was left alone to steam
herself in the bedroom and that she did so on her own.
She was
steadfast that Tebogo was not in the house when the steaming took
place.
[14]
M[…] M[…], is the mother of the complainant and she
testified that she left her daughter at the church in Orlando
to
attend Sunday school. She left for her ‘piece job’
in Noordgesig having arranged that the complainant would
obtain a
lift with Mama Pat at 14h00. Later that day at about 16h00 she
noticed the complainant at the gate crying. She asked
her not to
scream. She invited her into the house and implored her to tell
her what the problem was. The complainant
immediately told her
that Nhlanhla, the Appellant, had raped her. The rest of her
evidence with some varying degrees corroborates
that of the
complainant.
[15]
Dr Chisana examined the complainant and the J88 that she completed
was read onto the record and handed in as Exhibit “A”.
From the J88 the following could be discerned:
15.1
The Complainant’s urethral orifice and pera-urethral urifice
were bruised;
15.2 There was
evidence of slight bleeding on her posterior fourchette which also
had fresh erosion;
15.3
Her hymen was swollen with fresh tears at five o’clock and nine
o’clock;
15.4
Synechiae at 3 o’clock and 9 o’clock of her hymen; and
15.5
There was clinical evidence which indicated that penetration of the
hymen had occurred within the past 3 days using a blunt
object or a
penis.
[16]
That concluded the evidence of the Respondent whereupon the Appellant
took the stand and testified that he met the complainant
outside his
church on 14 August 2008. He said that the complainant asked
him the whereabouts of his wife, Nkele. He told
her that she was not
there and that he would be fetching her after the church service some
time later. The complainant then
asked him about steaming and
he told her that Tebogo was steaming at his house. Somewhere
along the way they met the complainant’s
friend, Lettie, who
then accompanied the complainant. The Appellant walked in front
and later he noticed that L[…]
had turned back. He said
that he was not part of the decision to discourage L[…] to go
to his house.
[17]
He confirmed that he spoke to a neighbour before he went into his
property. They found Tebogo in the house but he had
already
steamed himself. Although Tebogo had finished steaming, there
was another pot with boiling water such that the Appellant
did not
have to start afresh for the steaming that he was preparing. He
then asked the complainant if she was used to steaming.
She
told him that she does it with her mother nearly every week.
Tebogo substituted the music CD that he was playing for
gospel.
[18]
The Appellant took the boiling water to the bedroom and placed the
stones inside the boiling water and told her to call him
when she was
through. She did so and while the two of them were on their way out
the Appellant gave an amount of R20 to Tebogo
to buy vegetables.
He walked with the complainant in the direction of the church until
he left her at the gate and proceeded
with his journey to fetch his
girlfriend, Nkele. The complainant was fine when he left her. He was
later surprised when the police
came looking for him claiming that he
had raped M[…] M[…].
[19]
The Appellant’s defence is one of complete denial. He did
not deny or admit that the complainant was raped hence
the J88 was
admitted into evidence without any objections from him.
However, he was emphatic that he did not rape her.
The
onus
of proving that an appellant is guilty beyond reasonable doubt rests
with the State. See
S
v Mafiri
2003
(2) SACR 121
(SCA) at 128 and
S
v Mavinini
2009 (1) SACR 512
(SCA) at 531c. It is trite that even if a
court could find the version of an appellant to be improbable or even
if a Court
disbelieved him, he would be entitled to his acquittal if
his version was reasonably, possibly true.
[20]
It is against that background that the evidence of the Appellant must
be approached. The Appellant stated that his relationship
with
the complainant is that of acquaintances, the complainant asking him
about his girlfriend, Nkele, or Jerry whose mother is
his wife’s
friend. He did not know the complainant’s mother at all
yet on this day he agreed to take the young
girl to perform what he
had never done to a stranger in his house. All he could say was
that he was surprised that he did
it.
[21]
The complainant told him that she was on her way to see her friend.
Whilst on their way to the Appellant’s house,
they met L[…]
and the Appellant chose to walk ahead leaving a distance of
approximately 1 and a half metres, between them.
He claims that
he could hear the complainant discouraging L[…] not to
accompany her to the Appellant’s house.
Strangely, he
fails to find out why a girl of the complainant’s age would not
like her friend to come along to his house
especially because her
initial primary objective was to visit L[…].
[22]
A more probable version is that the Appellant, having in mind what he
wanted to do to the complainant, discouraged L[…]
to come
along pointing out to her uncovered head as being against ZCC rules.
This of course ties up with his subsequent action
when he gave an
amount of R20 to his brother to purchase potatoes and carrots.
This way he ensured that the stage was set
for the complainant’s
ordeal in that they were completely isolated.
[23]
One must not lose sight of the fact that one of the Appellant’s
primary reasons for heeding the complainant’s request
was that
she would find company to steam in Tebogo. It then becomes
disquieting when Tebogo, on the Appellant’s version,
does not
participate in the steaming process. I am mindful that the
evidence is that he had already done so when they got
home but there
was an indication that he wanted to do so again hence the boiling
water on the stove. That water was
utilized for the
steaming by the Appellant and the complainant.
[24]
The Appellant’s evidence is illogical in some instances.
For example, he states that the first time he raised the
question
whether or not she had steamed previously was in response to the
complainant telling him that she has had an ‘instruction’
(taelo) to steam. According to his evidence the complainant
said this just after they had left the church area and that is
how
she introduced the subject of steaming. However, he also stated that
the first time he asked whether or not she had steamed
before was at
his house just prior to making preparations for her to steam herself.
[25]
The Appellant subtly intimates that the complainant was in a way
suggestive and therefore got what she was in a way looking
forward
to. This is clear when he testified that the first question
that the complainant posed to him prior to chatting about
steaming
was the whereabouts of his wife. Again, he repeated this
suggestion in a different context when he stated that it
was the
complainant, not him, who told L[…] to turn back. This
of course cunningly implies that the Complainant wanted
to be with
him alone. Assuming that this were true, should he not have
been concerned about the conduct of a 12 year old
to a 28 year old
who is nothing more than just an acquaintance? Any responsible
adult would have become worried and established
the motive.
[26]
Lastly, the Appellant unsolicitedly testified that the police
remarked at the manner in which he conducted himself at the time
of
arrest. He did not resist or attempt to escape. Of course
that statement viewed on its own appears very innocent.
It is
only after listening to the evidence of his girlfriend/wife, Mkele,
that one can give it its proper perspective. Nkele
testified in
mitigation of sentence that she was in bed with the Appellant when he
suddenly got up and attempted to escape.
She surmised that by
the time he got to the door he was already besieged by the police and
his true intentions thwarted.
[27]
Turning to the evidence of the complainant. Her evidence is
that of a single witness insofar as the actual rape is concerned.
Section 208
of the
Criminal Procedure Act No. 51 of 1977
provides
that it is competent to convict on the strength of the evidence of a
single witness on the condition that such evidence
is satisfactory in
all material respects.
S
v Sauls and Others
1981
(3) SACR 172
(A). The following paragraph of Leon J in
S
v Ganie
1967
(4) SA
203
(N)
at 206H is also relevant:
“
...
a
c
ourt should approach
the evidence of a single witness with caution and should not easily
convict upon such evidence unless it is
substantially satisfactory in
all material respects or unless it is corroborated.
”
[28]
The question then arises whether the evidence of the complainant, as
a witness satisfies the test set out in the
Criminal Procedure Act
No. 51 of 1977
and case law. The evidence of a single witness
need not to be perfect but it will be sufficient if it is
satisfactory for
conviction to follow. See in this respect the
case of
R v
Abdoorham
1954 (3) SA 163
(N) at 165 E-F where it was said:
“
The
court is entitled to convict on the evidence of a single witness if
it is satisfied beyond reasonable doubt that such evidence
is true.
The Court may be satisfied that a witness is speaking the truth
notwithstanding that he is in some respects an unsatisfactory
witness.
”
[29]
To the extent that the evidence of the complainant is not as perfect
as one would have liked, it is no exception to the statement
quoted
above from
Abdoorham
case (
supra
).
Her evidence is straight forward and coherent in most respects.
The contradictions that emerged are fairly understandable
and do not
in any event undermine the fact of the rape. Thus, it becomes
immaterial whether or not the Appellant used
Vaseline to
facilitate penetration of the complainant’s vagina.
[30]
Similarly, it is irrelevant whether or not the Appellant pushed her
onto the bed or whether he told her to lie thereon.
Her
evidence about the R20 too, falls into the same category. Was
the R20 lying on the dressing table or was it given to
her and then
refused? All these minor unsatisfactory aspects of her evidence are
peripheral once the actual rape is not challenged.
[31]
Furthermore, the mother of the complainant testified that her
daughter narrated how the rape had happened when they were still
at
home and while they were walking to the police station. The
complainant on the other hand testified that she told her
mother that
Nhlanhla, the prophet from church had raped her without giving
details. Her mother only heard the minor particulars
of the
rape when she was giving those details to the police. The
apparent contradictions between the complainant and
her mother must
be viewed and understood in line with what was stated in
S
v
Mafaladiso
2003 (1)
SACR
583
(SCA)
at 593:
31.1
It
must be determined what the witnesses actually meant to say in order
to determine whether there is an actual contradiction and
the nature
thereof;
31.2
Not every error made by a witness and not every contradiction or
deviation affects the credibility of a witness;
31.3
Non-material deviations are not necessarily relevant;
31.4
The contradictory versions must be evaluated on a holistic basis;
31.5
The circumstances under which the version were made, the proven
reasons for the contradictions, the actual effect of the
contradictions
with regard to the reliability and credibility of the
witness, the question whether the witness was given a sufficient
opportunity
to explain the contradictions (and the quality of the
explanation) and the connection between the contradictions and the
rest of
the witnesses evidence should be taken into consideration;
and
31.6
The final task remains a decision as to whether the evidence is
reliable or not and whether the truth has been told despite
any
shortcomings.
[32]
The evidence was corroborated by her mother to whom she made her
first report of the incident and the police when she finally
laid a
charge of rape against the Appellant. The complainant was
fairly confident and direct, at least on the record, in
her answers
to the questions put to her by Counsel for the Appellant. She
was frank, conceding when necessary and rejecting
as false that which
she believed to be.
[33]
It is established that in
the
absence of demonstrable and material misdirection by the trial Court,
its findings of fact are presumed to be correct and will
only be
disregarded if the recorded evidence shows them to be clearly wrong.
See
S
v Monyane and Others
2008 (1)
SACR
543
(SCA) a
t
547i-548b. A trial court has the advantage of seeing, hearing
and appraising a witness. A court of appeal would therefore
only be
entitled to interfere with a trial courts evaluation of oral
testimony in exceptional cases. See again
S
v Monyane and Others (supra)
at
548b.
[34]
Generally, an overall analysis of the whole of the evidence presented
by these two sides to the trial court makes it inescapable
to
conclude that the evidence of the Appellant is so improbable that it
cannot reasonably possibly be true. That being the case,
I am
satisfied that it was safe for the trial court to reject the evidence
of the Appellant as being false. Conversely, the
Respondent has
proved beyond reasonable doubt, in my view, that the Appellant did
rape the complainant on 4 August 2008.
Accordingly, the appeal
on conviction is dismissed.
[35]
Having confirmed the conviction, the next question is of course to
determine whether the trial court was correct to impose
a life
sentence on the Appellant. The Appellant has crossed paths with
the law previously. He was found guilty and convicted
on the
following charges:
35.1
Malicious damage to property for which he was sentenced to 3 years
imprisonment, which was suspended on the condition that
he did not
commit a similar crime within the period of suspension;
35.2
Rape for which he was sentenced to 10 years imprisonment. He
only served 7 as he was released on parole after 7 years;
and
35.3
Cultivation of dependence producing drugs.
[36]
The society has over time become weary of repeat serious crimes which
showed no sign of abating, the arrest of perpetrators
and their
subsequent successful convictions notwithstanding. Needless to
state that the response to this increase in crime
all over the
country culminated in the introduction of the minimum sentence
legislation, the criminal Law Amendment Act No. 105
of 1997.
Section 51(2) of the aforesaid Act prescribes a minimum sentence of
life imprisonment to a person found guilty of
raping another who is
under the age of 16 years unless the court can in terms of Section
51(3) find substantial and compelling
circumstances justifying
departure from the imposition of the minimum sentence.
[37]
Previously, the appeal court’s approach was that it would not
interfere with the trial court’s sentencing discretion
unless
such discretion was not exercised judiciously and properly.
That position persists but not in respect of the minimum
sentence
legislation. Currently, the test is simply whether the trial
court considered the substantial and compelling circumstances
of an
appellant before sentencing him. See in this respect
S
v PB
,
2013 (2) SACR 533
(SCA) In
S
v Vilakazi
,
2009 (1) SACR 552
(SCA
it was
stated that where it appears that the conviction deserves a long
sentence, all the personal circumstances that one would
normally
regard as mitigating factors would recede to the back and the
imposition of the prescribed minimum sentence to the fore.
[38]
The trial court considered the personal circumstances of the
Appellant and weighed them against the gravity of the crime, the
method employed in executing it and the fact that the Appellant was
no stranger to crossing paths with the law. The trial
court,
correctly in my view, concluded that the use of his respectable
church position and status as a prophet to lure the girl
to his house
was totally unacceptable. Again, he continued to use his
position and status to win her confidence in him.
[39]
The manner in which he carried on this contemptible and despicable
deed would leave any person flabbergasted and dumbfounded.
Shocked and horrified, the girl asked if she could urinate, he
responded by giving her a bucket into which he said she must
urinate.
Obviously, as a result of the shock the complainant
also defecated into the bucket. This was a clear sign that the
complainant
was extremely terrified. Despite all this, the
Appellant was not deterred.
[40] What should
courts do to repeat offenders such as the Appellant? The
Appellant was sentenced to direct imprisonment of
10 years on a
charge of rape previously and released when he was 7 years into the
sentence. He had just completed his parole
on the said sentence
when he was arrested and charged with the current offence. It
must be borne in mind that while I refer
only to the previous rape
charge, he was also found guilty of two other offences which are not
directly in point in so far as this
present offence is concerned.
The Appellant cannot be rehabilitated and that is borne out by the
fact that he has despite
the court’s display of mercy on him
continued to engage in crime. The society must be saved from
criminals like the
Appellant. Bringing him back into the society
prematurely may result in more terror being unleashed onto innocent
and unsuspecting
victims.
[41]
In the circumstances the appeal on both conviction and sentence fails
and I make the following order:
The appeal is
dismissed.
_________________________________________
B
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
Agree
_________________________
I
OPPERMAN
ACTING JUDGE OF
THE HIGH COURT
GAUTENG
LOCAL DIVISION,JOHANNESBURG
Heard:
27 March 2014
Judgment
delivered: 17 April 2014
Appearances:
For
Appellant: Adv C van Veenendal
Instructed
by: Johannesburg Justice Centre
For
Respondent: Adv LR Surendra
Instructed
by: Office of the Director of Public Prosecutions