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[2015] ZASCA 178
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Mdluli v S (20513/2014) [2015] ZASCA 178 (27 November 2015)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case No: 229/2015
In
the matter between:
DECEMBER
MDLULI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Mdluli
v S
(229/2015)
[2015] ZASCA 178
(27 November 2015).
Coram:
Maya DP, Mhlantla
and Theron JJA and Van der Merwe and Baartman AJJA
Heard:
11
November 2015
Delivered:
27
November 2015
Summary:
Criminal Procedure
─ appeal against the refusal of a petition by the court a quo ─
no reasonable prospect of success
on appeal ─ appeal
dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mothle J and Modiba AJ sitting
as court of appeal):
The
appeal is dismissed.
JUDGMENT
Van
der Merwe AJA (Maya DP, Mhlantla and Theron JJA and Baartman AJA
concurring):
[1]
The appellant stood trial in the regional court together with another
person (accused 2) on two counts of rape of a minor girl
(the
complainant) in contravention of
s 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
. The case for
the prosecution was that both the appellant and accused 2 raped the
complainant on the same occasion and that the
one was an accomplice
in respect of the crime committed by the other. The appellant was
convicted on one count of rape and accused
2 on both counts, on the
aforesaid basis. The appellant was sentenced to 18 years’
imprisonment.
[2]
The regional court refused the appellant’s application for
leave to appeal against the conviction and sentence. His petition
to
the Gauteng Division of the High Court, Pretoria (Mothle J and Modiba
AJ) suffered the same fate. This court, however, granted
special
leave to the appellant to appeal to it in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
.
[3]
Before us the attorney for the appellant correctly conceded that the
appeal lies only against the refusal of the petition by
the court a
quo. (See
S v Tonkin
(938/12)
[2013] ZASCA 179
;
2014 (1) SACR 583
(SCA);
Van
Wyk v S
,
Galela
v S
(20273/2014,
20448/2014)
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA);
Dipholo
v S
(094/2015)
[2015] ZASCA 120
(16 September 2015)). Therefore, the issue on appeal
is whether the court a quo should have granted leave to the appellant
to appeal
to it. That is determined by whether the appellant had
shown a reasonable prospect of success in the proposed appeal. A mere
possibility
of success or that the case is arguable or cannot be
described as hopeless, does not constitute reasonable prospects of
success.
The appellant must convince this court on a sound basis that
there is a realistic chance that his appeal might succeed. (See
S
v Sikosana
1980 (4)
SA 559
(A) and
S v
Smith
(475/10)
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA)).
[4]
The complainant was born on 30 September 1996. The events in question
took place on 10 September 2011, some 20 days shy of her
15th
birthday. At approximately 18h30 on that day, the complainant’s
mother sent her to buy six Savannah ciders at a bar.
As she was not
allowed to enter the bar, Mr Njabulo Nkambule, whom she met near the
bar, agreed to purchase the liquor and to bring
it to her. Whilst she
was waiting outside the bar, the complainant was approached by the
appellant and accused 2. She knew both
of them as they all lived in
the same area. The appellant and accused 2 started pulling her by the
hand. When Mr Nkambule returned,
he witnessed this. As a result he
did not hand the liquor over to the complainant but proceeded to
report the matter to the complainant’s
mother.
[5]
The complainant testified that the two men dragged her to a mountain.
There accused 2 undressed her. In the process the complainant’s
skirt was torn. Accused 2 caused the complainant to lie down facing
upwards on a flat piece of rock. The complainant was then raped
by
the appellant, whilst accused 2 held both her legs. For this purpose
he knelt behind the appellant. Thereafter the appellant
departed,
saying that he was going to buy liquor. Accused 2 then also raped the
complainant. The complainant said that she did
not scream whilst in
the presence of her assailants because both had threatened to kill
her should she do so. After the rape the
complainant dressed herself
and went home. Her mother was not at home, because she went looking
for her daughter after the report
by Mr Nkambule. The complainant
reported what had happened to a neighbour, Ms Dudu Lekhuleni. The
latter telephoned the complainant’s
mother who arrived shortly
afterwards.
[6]
Mr Nkambule confirmed the testimony of the complainant as far as it
fell within his knowledge. On a proper reading of his evidence,
he
said that both the appellant and accused 2 held and pulled the
complainant. She resisted by telling them to leave her alone
and by
pulling back, but to no avail. It is clear that Mr Nkambule was
compelled by what he witnessed to make a report to the complainant’s
mother. He urged her to go and look for the complainant, which she
promptly did.
[7]
Ms Lekhuleni testified that when the complainant arrived at her home
at approximately 19h00, she was crying and bending down
whilst
holding her stomach. She confirmed that the complainant reported to
her that she had been raped by the appellant and accused
2. Ms
Lekhuleni told the complainant that she had heard screams and
enquired as to whether they emanated from the complainant,
which the
complainant confirmed. There is no evidence, however, that this
screaming took place in the presence of her assailants.
On the
contrary, it appears probable that this happened after the
complainant managed to flee from the mountain. The mother of
the
complainant confirmed the evidence of Mr Nkambule and Ms
Lekhuleni. She said that when she saw the complainant,
the
complainant was bleeding from her vagina, was full of dust and that
her skirt was torn.
[8]
Dr N T Mbowane testified that she examined the complainant at 1h30 on
11 September 2011. She found that the hymen of the complainant
was
not intact. She also found increased friability of the posterior
fourchette as well as mild swelling. She concluded that vaginal
penetration had definitely taken place. She also noted cervical
excitation tenderness, which is consistent either with deep
penetration
or infection. As there was no indication of infection,
this constituted evidence of deep penetration. Dr Mbowane said that
on the
history of the incident given by the complainant, one would
normally expect more injuries than those suffered by the complainant.
However, she said that the absence of severe injuries could be
explained by the factors that the first date of the last menstruation
of the complainant was on 9 September 2011 and that she was an
adolescent, with resultant hormonal changes. According to the
doctor’s
evidence, the hymen would in these circumstances be
elastic, soft and moist and therefore even very violent penetration
could cause
only minimal injuries.
[9]
The appellant denied any involvement in the rape of the complainant.
He testified that the complainant arrived at the bar with
Mr
Nkambule, that Mr Nkambule entered the bar and that whilst the
complainant was waiting outside the bar, she was approached by
accused 2. According to the appellant, the complainant was accused
2’s girlfriend. The appellant went to the two of them
in order
to borrow R50 from accused 2. Accused 2 said that he would give the
money to the appellant along the way. The three of
them then walked
together for approximately 800 metres, whereafter accused 2 gave him
the money. The appellant said that he left
the complainant and
accused 2 and went home. The evidence of accused 2 was to similar
effect. He said that the complainant was
his girlfriend, but that
they never had sexual intercourse. According to him the complainant
asked him to accompany her home. When
they were approximately 250 to
300 paces from her home, they stood and chatted for about 30 minutes.
The complainant then asked
him to turn back. He did so and went home.
[10]
The regional court considered the evidence carefully and accepted the
evidence of the complainant and the other witnesses for
the State. It
rejected the evidence of the appellant and his co-accused as false
beyond reasonable doubt. It is trite that a court
of appeal would be
bound by these findings, unless they were affected by a material
misdirection or the court of appeal is convinced
that they are wrong.
It is not sufficient that the court of appeal is merely left in doubt
as to the correctness of these findings.
No misdirection of fact was
relied upon before us. Thus, the question is whether the appellant
has shown a reasonable prospect
that the court a quo might be
convinced that the findings of the regional court were wrong.
[11]
The evidence of the complainant reads well and contains no inherent
improbabilities. The alleged differences between her evidence
and her
police statement, if they exist at all, are immaterial. She was
corroborated by the evidence of Ms Lekhuleni and of her
mother in
respect of her evidence that she had been raped. The medical evidence
placed it beyond doubt that the complainant had
been raped.
There is no reason to doubt the evidence of the complainant that she
was a virgin before the incident. The only
reasonable inference from
the evidence is that the hymen of the complainant was not intact as a
result of deep penetration that
took place on the day in question. In
the light hereof, it is of no consequence whether the complainant had
showered between the
incident and the examination and whether the
doctor should have noticed signs of bleeding. Significantly, the
evidence of the complainant
that implicated the appellant, was
materially corroborated by that of Mr Nkambule.
[12]
In cross-examination on behalf of the appellant, it was put to the
complainant that whilst she was in the company of the appellant
and
accused 2 outside the bar, Mr Nkambule handed the ciders to her. This
was contradicted by the appellant in his evidence. He
said that Mr
Nkambule never came to where they were and did not hand over the
ciders to the complainant. This is not immaterial
and indicative of
adjustment of his version. On the version put to the complainant,
there was no reason for Mr Nkambule to go to
the complainant’s
mother. It is of course important to consider why the complainant
would deliberately incriminate the appellant
falsely. In this regard
the appellant referred in his evidence for the first time to previous
events involving him and the complainant’s
uncle. The appellant
suggested that that was the cause of bad blood which was demonstrated
when on the same evening of the incident,
the complainant’s
mother told him and his mother that: ‘they do not have a
problem with Manqoba they are only concentrating
on me she told me
that they have got me now and that they did not mind about Manqoba’.
Manqoba is accused 2. But the appellant
admitted that this was not
put to the complainant or her mother because he did not convey it to
his attorney and he was unable
to provide an acceptable explanation
for the failure to do so. In any event, in the light of the
prosecution of accused 2 the proposition
carries little or no force.
[13]
For these reasons I find that there is no reasonable prospect of a
finding on appeal that the factual findings of the regional
court
were wrong and therefore no reasonable prospect of success on appeal
in respect of the conviction.
[14]
In terms of the
Criminal Law Amendment Act 105 of 1997
, the minimum
sentence prescribed for the crime committed by the appellant was life
imprisonment. The regional court found that
substantial and
compelling circumstances justified a departure from the prescribed
sentence and imposed a sentence of 18 years’
imprisonment. It
is trite that the imposition of sentence was within the discretion of
the regional court. Taking into account
that the appellant
participated in the multiple rape of a child who was a virgin at the
time and for which he takes no responsibility,
I am of the view that
there is no reasonable prospect that a court of appeal would impose a
lighter sentence.
[15]
The appeal is dismissed.
_______________________
C
H G VAN DER MERWE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
P J de Necker
Instructed by:
Coert Jordaan Attorneys Inc, Nelspruit
Giorgi & Gerber Attorneys, Bloemfontein
For
Respondent:
S Scheepers
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein