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[2018] ZAGPJHC 130
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Mbatha v S (A252/2017) [2018] ZAGPJHC 130 (15 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER :A252/2017
(1
)
REPORTABLE: YES /
NO
(2)
OF INTEREST TO OTHER JUDGES: YES
/ NO
(3)
REVISED
____15/2/2018________
______________________
DATE
SIGNATURE
In
the matter between:
FLOYD
THEMBINKOSI MBATHA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
DOSIO
AJ:
INTRODUCTION
[1]
The Appellant was arraigned in the Regional Court, sitting in
Roodepoort on three counts. Count one and two are charges of rape
in
contravention of section 3 of Act 31 of 2007, read with section 51
(1) of Act 105 of 1997. Count 3 is a charge of robbery with
aggravating circumstances, read with section 51 (2) of Act 105 of
1997.
[2]
The Appellant was convicted on count 1 and acquitted on counts 2 and
3. He was sentenced to life imprisonment.
[3] The appeal is
in respect to conviction and sentence.
[4] The Appellant
was legally represented.
AD CONVICTION
[5]
It is trite law that the onus rests on the State to prove the guilt
of the accused beyond reasonable doubt. If his version is
reasonably
possibly true, he must be acquitted.
[6]
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]
[7]
Counsel for the Appellant argued that identity was in dispute and
that the complainant on count 1 would not have been able to
clearly
identify the perpetrators. Counsel contended further in his heads of
argument the following;
i.
that the evidence of the other witnesses who implicate the Appellant
is premised on the fact that the Appellant was arrested
at the
victim’s residence.
ii.
that the Appellant had an ample opportunity to run away prior to the
vehicle of Mr Mangana stopping and would not have exposed
himself to
the risk of being arrested if he was the perpetrator and the victim
knew him.
iii.
that none of the witnesses, including Precious Nkosi could place the
Appellant at the scene of the crime. Precious Nkosi also
never
mentioned to the police in her statement that she knew the Appellant
prior to this incident.
[8]
The version of the Appellant is that he was on his way home when he
noticed a group of people running from the trenches. Upon
investigation he found the victim on count 1 who reported that she
had been raped by a group of male persons. He helped the victim
out
of the trenches and walked her home. On the way home the victim
started to behave strangely and he tussled with her in order
to
restrain her.
[9]
The Appellant’s version was correctly rejected by the court
a
quo
,
as there would be no reason for the complainant on count 1 to falsely
incriminate this Appellant. In addition the contention that
the
complainant on count 1 was unable to identify the other perpetrators
and the Appellant himself is unfounded for the following
reasons;
1.
The
complainant on count 1 stated that there were streetlights which
allowed her to see the face of the Appellant, when he took
off her
T-shirt which was covering her face.
[2]
The complainant on count 1 also testified that even though she could
not see the Appellant’s face in the trench, she was
able to see
him when she got out of the trench and while they were walking.
[3]
The complainant on
count 1 says she saw the Appellant, as he was the one who raped her
last, and who pulled her towards the Ebumnandini
taxi rank. She
stated she did not know the Appellant prior to this incident, so
there is no reason for her to falsely implicate
him.
2.
The
fact that there was sufficient lighting was confirmed by the witness
C. M., who stated that the area where they were made to
lie down was
bright,
[4]
as there was light from the opposite house.
[5]
This witness was adamant that it was the Appellant who had his foot
on her back.
[6]
3.
The
witness K. M. also states that there was sufficient lighting from a
street light, and she too was adamant that the Appellant
was at the
scene of the offence.
[7]
4.
The
witness S. M. knew the Appellant as it was his cousin and he referred
to him by the name of “Semela”. There would
be no reason
for him to falsely incriminate the Appellant.
5.
Precious
Nkosi also stated that she was adamant it was the Appellant at the
scene, as she was face to face with the Appellant and
saw his light
complexion and dreadlocks.
[8]
She had 5 minutes to see his face, which was an arms length away from
her. She stated that she knew the Appellant by the names
“Smether”
and Thembinkosi. They used to attend the same school for two years.
She stated that although it was dark
she was sure it was the
Appellant.
[9]
This witness stated that even though her statement does not state
that she saw the Appellant at the scene, she is adamant she did
tell
the police he was at the scene.
[10]
[10]
The version of the Appellant that he was trying to help the
complainant on count 1 was correctly rejected by the court
a
quo
for the following reasons;
1.
The
complainant on count 1 stated that the Appellant throttled her whilst
pulling her to the taxi rank. If according to the Appellants’
version he was trying to help the complainant, there would be no
reason for him to throttle her whilst dragging her to Ebumnandini
taxi rank instead of her residential address. In addition, there
would be no reason for the Appellant to be seen grabbing the
complainant on count 1. The Appellant in his own version even admits
that when he touched her to help her, she refused and she cried
out
loud.
[11]
These are not the actions of a complainant who is feeling secure, but
rather of a victim who is traumatised.
2.
The
witness S. M. saw the complainant on count 1 and the Appellant
fighting. The Appellant was busy pulling and assaulting her
[12]
and he was also kicking her.
[13]
Once again, these are not the actions of someone that is being
helped, but rather of someone who is being attacked.
3.
The
complainant also told S. M. that the Appellant was pulling her to his
shack by force
[14]
and that the Appellant had raped her.
[11]
The version of the Appellant that the complainant on count 1 was his
girlfriend was
correctly
rejected by the court a quo for the following reasons;
1.
If
the Appellant was the complainant’s boyfriend, he would know
where she lived. S. M. states the Appellant informed him that
the
complainant on count 1 stayed in Kgagiso, yet the complainant on
count 1’s evidence is that she resided in Phase Five.
It is
clear the Appellant had no idea where the complainant on count 1
lived. The Appellant also never repeated that he was the
complainant’s boyfriend when they got to the first
complainant’s house.
[15]
[12]
After 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 disturbing 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
[13]
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.
[14] 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.
[15]
The trial court should be allowed to exercise its discretion in the
imposition of sentence within reasonable bounds.
[16] 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 simply because it prefers it. To do
so
would usurp the sentencing of the trial court.”
[17]
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.
[18] The following aggravating factors
are present;
i.
The
Appellant maintained his innocence and showed no signs of remorse.
ii.
The
evidence indicates that there was a measure of premeditation in the
commission of the offence as it appears the Appellant was
part of a
group who had decided to rape the complainant on count 1.
[19] The personal circumstances of the
Appellant are the following;
i.
He is
25 years old, single and has a 2 year old child which is cared for by
his mother.
ii.
The
Appellant lived with his mother and siblings prior to his arrest.
iii.
The
Appellant has a grade 8 level of education and was self-employed
prior to the arrest and was earning R4000-00 per month
iv.
The Appellant has no previous convictions.
[20]
All these factors must be taken into consideration in determining
whether the sentence imposed by the court
a
quo
is appropriate.
[21]
There were no substantial and compelling circumstances alluded to by
the Appellant’s Counsel in his heads of argument
or in his
address before court.
[22]
The offence for which the Appellant has been found guilty is a
serious offence. Section 51 (2) (a) (i) of the Criminal law
Amendment
Act 105 of 1997 dictates that in an instance where the crime of rape
was committed by a gang, the accused shall be sentenced
to life
imprisonment.
[23]
As stated by the learned Marais JA in the case of
S
v Malgas
2001 (1) SACR 469
SCA, paragraph I;
“
if
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.”
[24]
There are no mitigating factors alluded to by the Appellant’s
Counsel
[25]
This Court comes to the conclusion that the crime committed by the
Appellant is so severe that a long term of incarceration
cannot be
avoided.
[26]
In the premises, it cannot be said that the sentence imposed is
disturbingly inappropriate. I find that the court
a
quo
correctly found that there were no substantial and compelling
circumstances justifying the imposition of a lesser sentence than
the
prescribed sentence.
[27]
This Court finds no misdirection on the part of the Court
a
quo
.
The sentence imposed
does
not induce a sense of shock and neither is it out of proportion to
the gravity of
the
offence.
[28] In the premises I make the
following order;
The appeal in
respect to conviction and sentence is dismissed.
___________________________
D DOSIO
ACTING JUDGE OF THE
HIGH COURT
I agree, and it is
so ordered
______________________________
N.P.MALI
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the Appellant
:
Adv. V.J DHLOMO
On behalf of the Respondent
: Adv. F. MOHAMED
Instructed by :
Director of Public Prosecutions
Cnr Kruis and
Pritchard Street,
Johannesburg
Date
Heard
: 6 February
2018
Handed down
Judgment
:
15
February 2018
[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]
See page 38 of the transcript line 17-18
[3]
See page 46 of the transcript line 1
[4]
See page 227 of the transcript line 5
[5]
See page 228 of the transcript line 3-4
[6]
See page 229 of the transcript line 20
[7]
See page 264 of the transcript line 7-9 and page 235 line 15-16
[8]
See page 307 of the transcript line 1-3
[9]
See page 312 of the transcript line 17-19
[10]
See page 344 of the transcript line 5-7
[11]
See page 422 of the transcript line 7-8
[12]
See page 124 of the transcript line 3
[13]
See page 124 of the transcript line 7-9
[14]
See page 126 of the transcript line 8-10
[15]
See page 131 of the transcript line 18-22