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[2016] ZAGPJHC 92
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Zwane v S (A326 /2015) [2016] ZAGPJHC 92 (29 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A326 /2015
DATE:
29 APRIL 2016
In the matter
between:-
Zwane,
Titos
...............................................................................................................................
Appellant
And
The
State
.................................................................................................................................
Respondent
JUDGMENT
SIBUYI,
AJ:
[1]
The appellant was thirty-three (33) years old at the time he was
convicted of two (2) counts of rape and one (1) count of kidnapping
a
nine year old girl and declared unfit to possess a firearm in terms
of Section 103 of Act 60 of 2000 by the Kempton Park regional
court
on 21 April 2015. On 22 May 2015 the regional court sentenced him to
life imprisonment in respect of each of the rape counts
and 5 years
imprisonment for kidnapping. The regional court ordered that the
sentences in count 2 and 3 run concurrently and consequently
the
appellant is sentenced to life imprisonment. The appellant was
legally represented throughout the trial.
[2]
Having been
sentenced to imprisonment for life by
a regional court under section 51(1) of the Criminal Law Amendment
ActNo. 105 of 1997,
the appellant appealed against his
conviction and sentence to this court
in terms of
section 309
of the Criminal Procedure Act, 51 of 1977 (“CPA”).
[3]
The complainant in this matter was nine (
9
)
year
s
old at the time of
the incident.
On 2 March 2013 s
he was
kidnapped, taken to the
veld
,
assaulted and raped. She was held captive over the Saturday night and
raped for the second time on Sunday, the 3rd of March 2013.
She was
again held captive over the Sunday night and released on Monday, the
4th of March 2013. The rape was brutal as she suffered
severe
injuries on her vagina. When she was released she went to the nearest
house to seek for help. She was taken to a clinic,
referred to a
hospital and finally taken to Chris Hani Baragwanath hospital where
her injured vagina was repaired inside and outside.
[4]
The above facts are common cause. It is also common cause that the
complainant knew the appellant very well, their families
once stayed
together in a house belonging to the appellant’s sister; and
that on 2 March 2013, prior to the disappearance
of the complainant,
the appellant visited the complainant's home three times looking for
the complainant's father.
[5]
What however is disputed is that the appellant is the person who
kidnapped and raped the complainant. The appellant denied being
the
perpetrator of the crimes. The version of the appellant put to the
complainant was that he could not be the perpetrator as
on the 2nd,
3rd and 4th of March 2013 he could not have been in the veld with the
complainant as he was drinking at a place referred
to as extension
28. During cross-examination the appellant raised another alibi
defense stating that on 2 March 2013 he was
at work between 06h00 and
14h00.
[6]
The appellant raised several grounds of appeal. Briefly summarized,
the grounds of appeal are as follows: that the learned magistrate
failed to approach the evidence of the complainant, being a child and
a single witness, with the necessary caution; there are
contradictions in the evidence of the state witnesses; and that the
learned magistrate erred in accepting the evidence of the state
witnesses and rejecting that of the appellant.
[7] The attack on
the first ground that the learned magistrate failed to approach the
evidence of the complainant with the necessary
caution has no merit
as
the
C
ourt
a
quo
correctly
considered the testimony of the complainant with caution by
considering the credibility of the witness, the probabilities
and
improbabilities in accordance with the version of the
appellant.
[1]
The Court a quo concluded
that
the complainant was an impressive witness
[2]
and her evidence was in part materially corroborated by the other
state witnesses.
[8]
The second attack is on the contradictions in the evidence of the
state witnesses. I am of the view that
the
contradictions highlighted by
Counsel for
the
appellant
are not material contradictions nor
do
they
materially disturb the complainant’s
rape
allegations.
[9]
The third ground relates to the evaluation of evidence in toto. We
find no fault with the trial court’s
credibility findings, nor with its reasoning and conclusions in
respect
of
the convictions on both the
kidnapping
and rape counts
.
We
have given careful consideration to both the detailed written and
oral submissions in
support
of
the attack on the magistrate’s
reasons.
[10]
We have not been persuaded that the magistrate misdirected himself in
any relevant or material respect, in his
assessment
of the evidence and in his findings of fact, pursuant thereto. The
guilt of the appellant on all three counts was established
beyond
reasonable doubt by the witnesses who testified on behalf of the
prosecution, assessed against the facts which were common
cause, and
the objective circumstances. The full and careful judgment of the
magistrate justified his conclusion that the evidence
given by the
appellant could not
reasonably
possibly be true.
[11]
We therefore found no argument to falter the conviction and / or
raise the possibility of misdirection on the part of the learned
magistrate. The appeal against conviction therefore ought to be
dismissed.
AD SENTENCE
[12]
In respect of the appeal on sentence, Counsel for the appellant
argued that the magistrate erred in finding that there were
no
substantial and compelling circumstances; and that the fact that the
family of the appellant had suffered arson as punishment
for the
appellant’s illegal conduct ought to have counted in favour of
deviation from life imprisonment. Further, that the
magistrate
misdirected himself when he found that there was no splitting of
charges which led to duplication of conviction and
multiplicity of
punishment in circumstances where the same act(s) was proven by the
same evidence and that the learned magistrate
failed to appreciate
that the kidnaping was motivated by the intention to rape.
[13] The trial court
considered the following personal circumstances of the appellant: he
was 33 year old; unmarried; had no children;
he had no matric but
studied sound engineering at Ekurhuleni West College; he was
employed; first offender and that he
spent
more than a year and
two
(2) months
in
custody awaiting trial.
[3]
[13]
Over
the years our Courts of Appeal have attempted to set out various
principles by which they seek to be guided when they are asked
to
alter a sentence imposed by the trial court. 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 interests of justice require it.
[4]
[14]
A
Court that interferes with a sentence imposed by a lower court itself
exercises a discretion when it imposes a new sentence and
there
cannot, therefore, be a ready-made test in the strict sense of the
word. Nor is it advisable to attempt to lay down a general
rule as to
when the Court’s discretion to alter a sentence will be
exercised.
[5]
[15]
The decisions clearly indicate that a Court of Appeal will not alter
a determination arrived at by the exercise of a discretionary
power
merely because it would have exercised that discretion differently.
There must be more than that.
[16]
The Court of Appeal, after careful consideration of all the relevant
circumstances as to the nature of the offence committed
and the
person of the accused, will determine what it thinks the proper
sentence ought to be, and if the difference between that
sentence and
the sentence actually imposed is so great that the inference can be
made that the trial court acted unreasonably,
and therefore
improperly, the Court of Appeal will alter the sentence. If there is
not that degree of difference the sentence will
not be interfered
with.
[17]
Counsel for the appellant contended that we were
entitled to interfere with the sentence imposed on the appellant, on
the ground
that the sentence was “startlingly inappropriate”.
We are unable to agree.
Life
imprisonment
is undoubtedly a severe sentence, but the magistrate did not
misdirect himself in any relevant respect in imposing
that sentence.
The magistrate gave consideration to all the other
circumstances impacting on the appellant, but he correctly balanced
such circumstances
against the legitimate interests
of
the community.
[18]
The background facts underlying the conviction
and
sentence
have been adequately dealt with in the
trial court
judgment and I do not intend to
repeat them. I however, intend to highlight certain aspects thereof;
aspects which emphasise the
brutality of this rape and the indignity
and humiliation to which the
child
was
subjected. The fact that the complainant
was assaulted,
dragged, strangled, forcefully penetrated, kept captive for two (2)
full days without food and water,
forced to remain
naked
throughout her captivity
, and
raped
twice qualifies
the
rape
of the complainant as one of the worst imaginable.
[19]
The complainant sustained serious injuries: a big haematoma on her
right eye that could have been caused by a blunt object,
bruised back
and buttocks, signs of strangulation, fresh tears of the posterior
facia, bleeding, broken hymen with fresh tears
at 3, 6, and 9
o’clock, enlarged vagina that could admit two (2) fingers and
fresh tears on the perineum. As stated above
the complainant’s
vagina had to be surgically repaired, in and outside. The injuries
were so horrific to an extent that both
the examining doctor and
trial magistrate were shocked.
[20]
If life imprisonment is not appropriate in a rape
as brutal as this, then when would it be appropriate?
We are
of the view that this is precisely the kind of
matter the Legislature had in mind
when it introduced
the
minimum sentence of life imprisonment
in rape matters
.
Further, c
ourts must not shrink from their
duty to impose, in appropriate cases, the prescribed minimum
sentences ordained by the Legislature.
[21]
T
he court a quo correctly evaluated the sentence
in terms of the provisions of the
Criminal Law Amendment Act, 105 of
1997
.
It
considered whether ‘substantial
and compelling circumstances’ where present.
The
age of the victim,
repetition
of the
offence, emotional impact, abuse of trust, degradation of the victim
and females in general are
aggravating factors
that
cannot be
ignored and / or
overlooked
. T
he
appellant
, as
a
t
hirty
-three
(3
3
) year old
uncle was duty bound to protect the minor child, and never to abuse
her. He dismally failed in that duty. The circumstances of
this case
are such that the ag
gravating factors
far
outweigh the mitigating factors
.
[22]
We are unable to agree to the contention that the fact that the
family of the appellant had suffered arson as a result of the
appellant’s conduct ought to have been regarded as an
exceptional compelling circumstance justifying a lower sentence than
life imprisonment.
[23]
Further, whilst we accept that the kidnaping was motivated by the
intention to rape, there was no splitting of charges which
led to
duplication of conviction and multiplicity of punishment in the
circumstances of this matter. Had the appellant kidnapped,
raped and
let the complainant go on the first day, the argument could have been
valid. However, keeping her after the first rape
for two more days
establishes intention to deprive her of her freedom. Hence, the
finding that the kidnapping charge and conviction
thereon are
justified.
[24]
In fact the learned magistrate, in appreciation of the fact that the
rape and kidnapping charges where inter-related, he ordered
that the
sentences on those charges must run concurrently.
[25]
In the result, there is no basis for this Court to
interfere in the trial court’s decision.
[26]
We thus make the following order:
The
appellant’s appeal against his convictions and sentences is
dismissed.
HW
SIBUYI, AJ
I
agree, and it is so ordered.
WHG
VAN DER LINDE, J
JUDGE
S
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the appellant: Adv. LS Nkuna
Instructed
by: Legal Aid Board
For
the respondents:
Adv. R Ndou
Instructed
by: Office of the Director of Public Prosecutions
Date
of hearing: 21 April 2016
Date
of Judgement: 29 April 2016
[1]
Record: Page 10, lines 14-19
[2]
Record: page 95,
lines
17-21
[3]
Record, p276, lines 5-13
[4]
Some
of the cases in which these principles are mentioned are referred to
in the judgment of Selke, J., in Rex v. Zulu and Others,
1951 (1)
S.A. 489
(N) at p. 490.
[5]
See Rex v. Sandig,
1937 A.D. 296
and Rex v. Ramanka,
1949 (1) S.A.
417
(A.D.)