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[2017] ZAGPJHC 149
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Nkuna v S (A110/16) [2017] ZAGPJHC 149 (2 June 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER
: A110/16
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
2/6/2017
In
the matter between
:
SAMUEL
SIPHO
NKUNA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
The Appellant was arraigned in the Regional Court, sitting
in
Nelspruit
,
on a count of rape as envisaged in terms
of section 3 of the Sexual Offences and Related matters
Act 32 of 2007
("Sexual
Offences Act")
.
The charge sheet stated that
the
offence of rape was
to
be
"
(read
with
the
provisions of section 51 and/or section 52 and Schedule 2 of the
Criminal law Amendment Act 105 of 1997) Lifelong imprisonment
compulsory or 15 years
".
[2]
The Appellant pleaded not guilty and was convicted on 1 July 2011
.
He was sentenced to
life
imprisonment and was also declared unfit
to possess a
firearm
.
Accordingly the appellant has an
automatic right to appeal against conviction and sentence, against
which this appeal is directed
.
AD
CONVICTION
[3]
It is
trite
law
that
the onus rests on the State to prove the guilt of the accused beyond
reasonable doubt. If the version of the Appellant is
reasonably
possibly true, he must be acquitted.
[4]
In
considering
the judgment of the Court a
quo,
this
court has been mindful that a Court of Appeal
is
not
at liberty to depart from
the
trial
court's findings of fact and credibility, unless they are vitiated by
irregularity, or unless an examination of the record
reveals
that
those
findings are patently wrong.
[1]
[5]
It was not disputed that the Appellant
was well known to B S ("the complainant
"
),
or that the medical report was correct.
What was placed in dispute was whether the Appellant raped the
complainant. The medical
report
was
handed in by consent and marked as exhibit B
.
[6]
Counsel for the Appellant submitted that
the
court
a
quo
erred in finding the Appellant
guilty in that
;
i.
The Court
a
quo
failed to apply the cautionary
rule that applies to the evidence of a single witness, and that the
complainant was not a satisfactory
witness
.
ii.
There were material contradictions as
well as
inconsistencies in
the
State's case.
The
Court
a quo
failed
to apply the cautionary rule
[7]
In the decision of
S v Mahlangu and
another
2011 (2) SACR 164
(SCA) the
court held that
;
"
Section
208
of the
Criminal Procedure Act 51 of 1977
provides that: 'An
accused may be convicted of any offence on the single evidence of any
competent witness
.
'
The court can
base its finding on the evidence of a single witness
,
as long as such evidence is
substantially satisfactory in every material respect
,
or if there is corroboration
.
"
[8]
The learned Diemont JA in
S v Sauls
and Others
1981 (3) SA 172
(A) held
at page 180E-G
:
"
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness
...
The
trial Judge will weigh his evidence
,
w
i
ll
consider its merits and demerits and
,
having done so
,
will decide whether it is trustworthy
and whether
,
despite
the fact that there are shortcomings or defects or contradictions in
the testimony, he is satisfied that the truth has been
told.
"
[9]
In
R v Abdoorham
1954
(3) SA 163
(N) it was decided that
;
"
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
.
"
[10]
This Court finds that the Court
a quo
was alive to the cautionary rule and
found that the complainant's evidence was reliable and trustworthy
.
There is corroboration for the
complainant's evidence
,
in
that T M (
"
T
"
)
,
and l T ("l
"
)
,
both saw the complainant walking with
difficulty. The medical evidence also depicted a fresh tear at 6 o
'
clock of the hymen, coupled with
findings of tenderness to the clitoris
,
urethral orifice and inflammation to
the abia majora
.
T.
corroborated the complainant that her pantie was soiled with blood.
T. and I. both confirmed that the compla
i
nant
was afraid to reveal the identity of her attacker
.
I.
,
the
school principal
,
was
only able to el
i
cit
the identity of the Appellant from the compla
i
nant
after calming her. T. also corroborated the complainant that the
Appellant had been
.
transporting
her to school since 2009.
[11]
The Appellant's version is one of a complete denial. The Appellant
indicated at the end of his evidence that the complainant
and T.
conspired against him because they
did
not want to pay his fees
.
This
is in sharp contrast to his evidence in chief where he stated he knew
of no reason why they would point him out
[2]
,
and
that he was not aware
.
of any
complaints or problems lodged against him.
[3]
Counsel
for the Appellant argued
that
this version was never put to the State witnesses as it came out only
after the court a
quo
questioned
him
,
and
that it was mere speculation on the part of the Appellant
,
that
he thought this may have been the reason to falsely implicate him
.
[12]
T
h
e vers
i
on
of the Appellant stating that the complainant fabr
i
cated
this evidence aga
i
nst
h
i
m
,
or falsely incriminated him
i
s
highly unlikely
.
This
complainant was very c
l
ear
about the sexual intercourse that transpired
,
the location where it occured
,
and who the perpetrator was. She
continually referred to h
i
m
as "Jomo"
.
This
is a nickname wh
i
ch
the Appellant admitted using
.
A
child of twelve (12) years old
,
cannot
vividly explain the sexual acts that transpired, or undergo vigorous
cross-examination ove
r
two
days
,
unless
she witnessed it herself
.
In
addition
,
the
Appellant was en-tasked in dr
i
ving
this complainant to school and looking after her due to her chronic
illness
.
There
is no reason why the complainant or T. would end this very useful
relationship
,
unless
something had occurred to end
i
t.
If either the complainant or T. wanted to falsely incriminate the
Appellant
,
they
could have done so sooner. The fact they did it when there were fresh
injuries on the p
r
ivate
part of this complainant
,
corroborates
the fact that the rape had recently occured
.
[13]
The version of the Appellant that when he dropped off the complainant
she looked normal
,
is
not reasonably possibly true
.
If
she was normal
,
it
would mean someone raped her after she was dropped off. This is not
reasonably possibly true
,
as
she was dropped off a short distance from her house, and no questions
were posed to her regarding the possibility that someone
else may
have raped he
r.
Material
contradictions and inconsistencies in the State
'
s
case
[14]
Counsel for the Appellant stated that there are contradictions which
were material and that the complainant was untrustworthy.
The
contradictions and inconsistencies alluded to by the Appellant are:
1.
The complainant testified that the
Appellant took her out of the vehicle and raped her inside the
bushes, whereas in her statement
there
i
s
no mention that the Appellant took her out of the vehicle
.
2.
The complainant testified in the office
of the school principal that it was a mad person who had raped her
.
This was never mentioned in her
statement.
3.
The complainant testified that
immediately after the rape she was bleeding profusely and her panty
was full of blood
.
Nothing
of this nature was mentioned in her statement.
4.
According to the complainant her aunt
washed her panty on the Friday after she finished bathing the
complainant
,
yet
T. testified that she kept the panty and threw it in a pit toilet
after some months
.
There
are differences between the complainant's evidence and that of T. as
to who bathed the complainant.
5.
The complainant testified that after the
Appellant dropped her off she went home
,
got inside the house and slept. T.
testified when the complainant arrived home she went to play with the
other children.
6.
The complainant testified that her
clothes were d
i
rty
and the Appellant dusted it. This was never mentioned in her evidence
or in her statement to the police.
7.
Counsel for the Appellant contended that
the complainant was pushed for a name and that is why she came up
with the Appellant's
name
.
[15]
The Appellant's counsel contended that the above-mentioned
contradictions and inconsistencies, are material
.
and
affected the credibility and trustworthiness of the complainant
'
s
evidence, and that the Court a
quo
erred in finding the guilt of the
Appellant was proved beyond a reasonable doubt.
[16]
As stated in
S v Mkohle
1990
(1) SACR 95
(A),
"Contradictions
per se
do
not lead to the
rejection
of
a witness's evidence, they may
simply
be
indicative of an error. Not every error made by a witness affects his
credibility:
in
each
case the trier of fact has to make an evaluation, taking into account
such matters as the nature of the contradiction, their
number of
importance, and their bearing on other parts of the witnesses
'
evidence."
In
the case of
S v Bruiners and Another
1998 (2) SACR 432
(SE) at 435 a-b
,
it was stated that two or more witnesses
hardly ever gave identical evidence with reference to the same
incident or events. It was
thus incumbent on the trial court to
decide, having regard to the evidence as a whole, whether such
differences were sufficiently
material to warrant the rejection of
the State's version.
[17]
This Court does not find that these contradictions are of such a
material nature to disregard the evidence of the complainant
as being
false.
[18]
Counsel for the Appellant argued that Constable Nkosi, who wrote down
the statement of the complainant, read back each paragraph
to the
complainant. Accordingly
,
it
was argued, had this rape occurred outside the car, the complainant
would have corrected Constable Nkosi. The complainant was
adamant
that the rape occurred at the forest, inside the bushes and not
in
the car.
If
this discrepancy was not cleared up by
Constable Nkosi
,
who
only had two years experience as a police officer, then such
omission
,
cannot
be a reason to disregard the complainants evidence. One must bear
in
mind that Constable Nkosi
testified
that when she took down the statement of
the complainant
,
the
complainant could not remember everything because she was crying
.
Sight should also not be
lost
that the statement before a police
officer is
not
subject
to
cross-examination
.
[19]
It is very common for witnesses
to
recall in much greater detail what
transpired
when
they are asked to testify in court. This is one of those instances.
This complainant gave a very detailed account of what happened
in
her evidence in chief which she repeated
during cross-examination. Accordingly, this Court does not find this
contradiction material.
[20]
In respect to the omission in the complainant's statement to the
reference
"
a
mad person
"
who
allegedly raped her
,
this
Court refers to its comments expressed in paragraphs [18] and [19]
supra
.
The complainant explained that she
referred to the Appellant initially as a mad person
,
as the A
b
pellant
himself had told her to say that. Accordingly th
i
s
Court does not find this contradiction material.
[21]
The omission in the complainant's statement pertaining to the blood
stained pantie
,
the
disposal thereof
,
as
well as to who bathed the complainant is not material
,
as it was never placed in dispute in the
court a
quo
that
the complainant had indeed been raped
,
and accordingly
,
it has no relevance to the final
conclusion reached by the Court a
quo
as to the Appellant's guilt.
[22]
The difference between the complainant stat
i
ng
that after the rape she went home to sleep
,
as opposed to T. saying
,
the complainant went to play with the
ch
i
ldren
,
is not material. This child was confused
and traumatised as she had been threatened by the Appellant that he
would kill her if she
implicated him. It is natural for a ch
i
ld
of this age to possibly not remember this minor detail. The evidence
is however clear that this child was in pain after the rape
.
Whether or not she went to lie down or
went to play
,
is
immaterial.
[23]
The fact that the complainant never mentioned it in her statement
that the Appellant dusted off her clothes after the alleged
rape
,
corroborates her version that this rape
occurred outside the vehicle and not inside the vehicle
.
Accordingly, th
i
s
Court does not find it material.
[24]
The complainant through-out her evidence repeated that it was Jomo
Nkuna who raped her
.
The
fact that the name was coerced out of her
,
all corroborates the fact that she had
been threatened by the Appellant not to mention his name
.
[25]
The Appellant
'
s
counsel argued that there was no clear find
i
ng
by the doctor that the child had been raped
.
To the contrary, this Court finds
,
that the med
i
cal
evidence and the graphical account of the complainant as to how the
Appellant raped her
,
are
all indicative that rape was successfully proven by the State beyond
reasonable doubt.
[26]
Afte
r
a
thorough reading of this record
,
this
Court has no doubt as to the correctness of the Court a
quo
'
s
factual
findings
.
I
can find no misdirection which warrants this
-
Court
d
i
sturbing
the findings of fact or credibility that were made by the court
a
quo
.
The
State proved the guilt of the Appellant beyond reasonable doubt
,
and the Court
a
quo
correctly rejected the version
of the Appellant as not being reasonably possibly true
.
AD
SENTENCE
[27]
It is trite that in an appeal against sentence
,
the Court of Appeal should be guided by
the principle that punishment is pre-eminently a matter for the
discretion of the trial
court and the Court of Appeal should be
careful not to erode that discretion.
[28]
A sentence imposed by a lower court should only be altered if
;
i.
An irregularity took place during the
trial or sentencing stage
.
ii.
The trial court misdirected itself in
respect to the
imposition
of
the sentence
.
iii.
The sentence imposed by the trial court
could be described as disturbingly or
shockingly inappropriate
.
[29]
The trial court should be allowed to exercise its discretion in the
imposition of sentence within reasonable bounds.
[30]
As was stated in the decision of
S v
Malgas
2001 (1) SACR 496
SCA
;
"
A
court exercising appellate jurisdiction cannot
,
in
the
absence of material misdirection by the trial court
,
approach the question of sentence as if
it was the trial court and then substitute the sentence arrived at by
it s
i
mply
because it prefers it. To do so would usurp the sentencing of the
trial court.
"
[31]
In the case of
S v Pi/lay
1977
(4) SA 531
(A) at page 535 E-G
,
the
court held that
;
"
..the
essential inquiry in an appeal against sentence
,
...
is..
.
whether
the court
in
impos
i
ng
it, exerc
i
sed
its discretion properly and judicially
,
a mere misdirection is not by
itself
sufficient to entitle the Appeal Court
to interfere with the sentence
;
it
must be of such a nature
,
degree,
or seriousness that it shows
,
directly
or
inferentially,
that
the court did not exercise its discretion at all or exercised it
improperly or unreasonably.
"
[32]
In
S v Salzwedel
and
other
1999 (2) SACR 586
(SCA) at 588a-b
,
the Supreme Court of Appeal stated that
an Appeal Court can only interfere with a sentence of a trial court
in a case where the
sentence imposed was disturbingly inappropriate
.
[33]
The following aggravating factors are present
;
i.
The Appellant maintains he is innocent
and shows no signs of remorse
.
ii.
The complainant was very young when this
happened and she was threatened that she would be killed if she told
anyone.
iii.
This ch
i
ld
was extremely traumatised during the reporting stage as well as
during the presentation of her evidence in court
.
iv.
The Appellant abused the trust the
complainant had in him
.
It
is clear that a child of this age will not forget this incident. It
will affect her in future years.
v.
The med
i
cal
report shows that the private parts were inflamed and tender with a 6
o
'
clock
fresh tear
.
[34]
The personal circumstances of the Appellant are the following
;
i.
He is a first offender and thirty-eight
(38) years of age
.
ii.
He is married and has ten (
1
0)
children from different mothers
.
The
children range from eighteen (18) years to nine (9) years.
iii.
Prior to his arrest he was doing piece
jobs at different houses
.
He
was earning R5000-00 per month
.
[35]
All these factors must be taken into cons
i
deration
in determining whether a sentence of life imprisonment is
appropriate
.
So
too must the factors that aggravate the crime be considered
.
[36]
The cha
r
ge
of rape of a child below the age of sixteen (16) years falls in the
category of offences listed in
Part I
of Schedule 2 of the Criminal
law Amendment Act 105 of 1997
.
A
minimum sentence of l
i
fe
imprisonment is prescribed for a first offender
.
[37]
In
S v Ndlovu
2003
(1) SACR 331
(SCA) Mpati J at paragraph [12] stated that
;
"
...
i
t
is impl
i
c
i
t
in these observations that where the State intends to rely upon the
sentencing
r
egime
created by the Act
,
a
fair trial will generally demand
-
that
its intent
i
on
pertinently be brought to the attention
of the accused at the outset of the trial
,
if not in the charge-sheet then in some
other form, so that the accused is placed in a position to appreciate
properly in good time
the charge that he faces as well as its
possible consequences
.
.
.
"
[38]
In the case of S
v Makatu
2006
(2) SACR 582
(SCA) paragraph 7 the learned Lewis JA stated that;
"
As
a general rule, where the State charges an accused with an offence
governed by section 51 (1) of the Act,
….
it
should state this in the indictment.
.
.
an
accused faced with life imprisonment.
..
must
from the outset know what the implications and consequences of the
charge are"
.
[39]
It is clear that the charge sheet referred to both section 51 and
section 52
.
Even
though the Court a
quo
failed
to bring the provisions of this Criminal Law Amendment Act to the
attention of the Appellant at the beginning of the trial,
the charge
sheet stated that the offence of rape was to be
"(read
with
the provisions of section 51 and/or section 52 of the Criminal law
Amendment Act
,
105
of 1997
,
as
amended)
Lifelong imprisonment compulsory or 15 years".
The
Appellant was represented throughout the trial and the attorney
representing him
,
as
well as the Appellant himself, were aware of the applicable
prescribed minimum sentence of life imprisonment, as the Court a
quo
,
recalled
the Appellant back to the accused bench during the sentence
proceedings and expressly requested the Appellant to address
him as
to whether there were substantial
and
compelling circumstances to deviate
from
imposing
a term of life imprisonment.
[4]
[40]
Accordingly this Court finds that the state's intention to rely on
and invoke the minimum sentencing provisions was made clear
at this
trial and that the Appellant did not have an unfair trial.
[41]
The substantial and compelling circumstances alluded to by the
Appellant himself, after being questioned in this regard by
the Court
a
quo
were
that, his children are still young and needed to be maintained by
him
,
and
that he was building a house for them
.
These are not substantial and compelling
circumstances to deviate from the minimum term of life imprisonment.
[42]
The offence for which the Appellant has been found guilty is a
se
r
ious
offence
.
Rape
constitutes a humiliating, degrading and brutal invasion of the
privacy
,
dignity
and person of the victim
.
As
stated in the case of
S v Nkunkuma
and others
2014 (2) SACR 168
(SCA)
at paragraph [17]
;
"
Rape
must rank as the worst invas
i
ve
and dehumanising violation of human rights"
.
[43]
Rape is a crime that threatens many children in this country and it
occurs far too
frequently
.
The Leg
i
slature
and community at large, correctly expect our courts to punish rapists
severely.
[44]
In the premises
,
it
cannot be said that the sentence imposed is disturbingly
inappropriate
.
[45]
This Court finds
·
no
misdirection on the part of the Court
a
quo
.
The
sentence imposed does not
i
nduce
a sense of shock and neither is it out of proportion to the gravity
of the offence
.
[46]
In the result, having considered all the relevant factors and the
purpose of punishment I consider a term of life imprisonment
to be an
appropriate sentence.
[47]
In the premises I make the following order;
The
appeal is dismissed both in respect to conviction and sentence
.
_____________________
D
DOSIO
ACTING
JUDGE OF THE HIGH COURT
I
agree
______________________
J
TEFFO
JUDGE
OF THE HIGH COURT
Appearances:
On
behalf of the Appellant: Adv
.
R.
KRIEL
Instructed
by P
.
J
Lourens Attorneys
15
Marloth Street
Nelspruit
On
behalf of the Respondent: Adv. C.P HARMZEN
Instructed
by: Director of Public Prosecutions
Pretoria
Date
Heard 30 May 2017
Handed
down Judgment
2
June 2017
[1]
See S v Francis
1991 (1) SACR 198
(A) at 198 J - 199A and S v Hadebe
and Others
1997 (2) SACR 641
(SCA) at 645 E-F
[2]
Page 131 line 16-17
[3]
Page 132 line 17-20
[4]
Page 193 and 194 of the transcript from line 24 (page 193) to line 4
(page 194).