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[2018] ZAGPJHC 75
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Swabuluka v S (A10/2016) [2018] ZAGPJHC 75 (28 March 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE NO: A10/2016
Not reportable
Not of interest to other judges
Revised.
28/3/2018
In
the matter between:
VUSI
SWABULUKA
Appellant
and
THE
STATE
Respondent
Summary
An
appeal against life imprisonment imposed
on
the accused by the Roodepoort Regional Division of Gauteng in respect
of two counts of rape read with section 51 and 52 of Schedule
2 of
Act 105 of 1997, together with one count of assault with intent to do
grievous bodily harm. The trial court imposing one term
of life
imprisonment in terms of count 1 and 2 and five (5) years
imprisonment in respect of count 3. Evidence demonstrating
that
complainant was raped twice and the provisions of section
208 Act 51
of 1977 properly applied.
Order
1.
The appeal
against conviction and sentence is dismissed.
JUDGMENT
COLLIS
J (MOKOSE AJ concurring)
[1]
On 31 August 2013 the complainant then aged sixteen years was at her
home together with her mother and other siblings. At approximately
22h00 she received a phone call from her friend who requested her to
meet her outside Booysens tavern. She proceeded to sneak out
of her
parental home and upon arrival at the tavern could not find her
friend as per their arrangement. The appellant then approached
her
and offered her assistance to enter inside the tavern. She refused
his help and he proceeded to walk away. She also decided
to go back
home. On her way home she met up with Senzo, a family friend, who
decided to accompany her to her house and as they
proceeded along the
way they met up with the appellant. This was the appellant’s
second encounter with the appellant that
same evening.
[2]
The appellant then grabbed the complainant by her clothing pulling
her away from Senzo, and proceeded to struck her on her face
with a
beer bottle which he had in his possession. He pulled her in the
direction of an open veld which was nearby. Senzo decided
to run for
help and to report the matter to her mother. He, whilst still on his
way to the complainant’s house, decided to
call her brother
(
Mpendulo
)
and reported to him that the complainant was pulled away by an
unknown person.
[3]
The brother then decided to call his sister and managed to speak to
her on her cell phone where she reported that she was being
dragged
towards a veld by the appellant. The appellant then reprimanded her
for having spoken to her brother and it was then that
he had also
threatened to kill her.
[4]
Around a dumping site which was nearby, the appellant then instructed
the complainant to undress herself which instruction she
duly
complied with. He thereafter also undressed himself and then he had
sexual intercourse with her. She did not offer any resistance
further
as he had threatened that he would kill her. When he completed having
sexual intercourse with her, he then instructed her
to get dressed.
[5]
They then proceeded to walk towards the shack of the appellant and on
their way there they met up with a group of male persons,
from whom
the appellant requested a cigarette. As this group was attending a
party at the said house, the appellant started socializing
with them
and she remained outside the yard, waiting for the appellant. She
testified that she did not raise alarm at this point,
as she was
afraid for her life. After a short while the appellant escorted her
to his shack. At his shack he once again instructed
her to get
undressed and then he raped her for second time penetrating her
vaginally. The appellant then fell asleep.
[6]
The complainant then saw this as an opportunity to make an escape
from his shack, which she had found to be unlocked. On her
way home
she then telephoned her brother M. and informed him that she was
walking home.
En
route
she then met up with Senzo and the others who all came looking for
her and on her arrival at her parental home she then reported
that
she had been raped twice by the appellant and that she had left him
asleep inside his shack. When the police later arrived
at her house
she gave the police directions to his shack and the appellant was
later arrested by the police inside his shack.
[7]
In his defense the appellant alleged that on the evening in question
he met the complainant at Booysens tavern. She was known
to him, as
she used to pass by the carwash where he was working situated not far
from her house. They immediately struck up a conversation
and she
enquired from him as to whether she could go with him. He first
wanted to go and get a cigarette and as a result he left
her standing
outside the tavern. Upon his return he saw that she had left and he
then started walking away. Along the way, he then
noticed the
complainant fighting with an unknown man. He then immediately came to
her rescue by picking up a bottle with the aim
of striking this male.
He however missed and this male then ran away.
[8]
The complainant was crying and appeared to be injured. She requested
the appellant to accompany her home. Before reaching her
home, they
however then decided that they would first make a stop at the house
of one of his friends who was hosting a braai. He
testified that they
arrived at this house holding hands and that he had introduced her to
his friends Simphiwe and Nthembu. It
was at this very braai that he
proposed love to her. After some time had passed, she informed
him, that she wanted to leave.
They then proceeded to his house and
later that evening engaged in consensual sexual intercourse.
Thereafter he fell asleep and
he was then later awoken by the police
and arrested on allegations of rape.
[9] On 5 August 2015, the regional
court in Roodepoort convicted the appellant of two counts of rape
falling under ss 51 and 52
of the Criminal Law Amendment Act 105 of
1997
(the Act)
and sentenced him to a term of life
imprisonment for both counts taken together. The appellant now
approaches this court in terms
of the provisions of Act 42 of 2016,
which provides for an automatic right of appeal, both against his
conviction and sentence.
AD CONVICTION
[10]
The appellant’s grounds of appeal in respect of his conviction
were, that the complainant was a single witness and that
her evidence
was not given in a satisfactory manner. In addition, thereto, the
appellant contended that the state witnesses did
not give evidence in
a satisfactory manner and that indeed the evidence of the state
witnesses was fraught with improbabilities.
[11] In opposition the state had
argued that it was common cause between the parties, that the
complainant was assaulted on the
night in question, and that she had
sustained injuries to both her face and vaginal vault. In addition,
thereto, that the appellant
had sexual intercourse with the
complainant on the night in question. What remained in dispute, was
whether it was the appellant
who assaulted the complainant on her
cheek and whether sexual intercourse was more than once and without
her consent.
AD SENTENCE
[12]
The appellant’s grounds of appeal in respect of his sentence
were that the court below had over emphasized the seriousness
of the
crime without sufficient regard to his personal circumstances, in
particular, that he was a first offender. Secondly that
the
court
a quo
did not emphasize sufficiently the two years he had spent in custody
awaiting trial; for this the appellant relied on
S
v
Dhlamini
2012
(2) SACR 1
(SCA). In addition, the appellant also relied on the
decision of DPP v Gcwala (295/13)
[2014] ZASCA 44.
Moreover, it was
contended that the sentence of life imprisonment was disproportionate
to the crime and counsel appearing on behalf
of the appellant
submitted that the sentence should be replaced with one of 18 years’
direct imprisonment.
[13]
On behalf of the State, counsel submitted that the trial court did
take into account the trite factors normally taken into
account for
the purposes of sentence. Furthermore, that the imposition of
sentence is in the discretion of the trial court and
that a court of
appeal should not interfere with this discretion for frivolous
reasons, or merely because it would have exercised
its discretion
differently. Counsel submitted that rape is regarded by society as
one of the most heinous crimes and that the experience
is so
devastating in its consequences, that it is rightly perceived as
striking at the foundation of humanity, particularly a female
person’s privacy, dignity and personhood. It is for this reason
that our Courts are duty bound to send a clear message not
only to
the appellant but to other potential rapists, and to the community,
that our courts are determined to protect the equality,
dignity and
freedom of all women, and that the courts will show no mercy to those
who seek to invade those rights. Counsel relied
on
S
v Rabie
1975 (4) SA 855
(A); S v Sadler
2000 (1) SACR 331
(SCA) at
335 e-g; S v C
1996 (2) SACR 181
(C); Holtzhauzen v Roodt
1997 (4) SA
766
(W); S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA).
[14] Counsel further submitted that
under the minimum sentencing regime, in the absence of a finding that
substantial and compelling
circumstances exist, a sentencing court is
obliged to impose the minimum sentence. Counsel also relied on the
decision of S v Nkomo
2007 (2) SACR 198
(SCA), wherein in the
minority judgment it was held that the prospect of rehabilitation and
the appellant being a first offender
did not constitute substantial
and compelling circumstances.
EVALUATION
[15]
In respect of the assault with a bottle perpetrated on the
complainant, corroboration thereof is found in the evidence of Mr.
Mfundiso Ngxolo. The witness testified that on the night in question,
as he was walking home with the complainant, they met up
with the
appellant who approached the complaint and had first enquired as to
whether the complainant knows the witness. The appellant
then started
dragging the complainant and then hit her with a beer bottle which
struck her under her right eye.
[1]
The evidence as testified to by the complainant confirms having been
assaulted by the appellant as testified to and corroborated
by Mr.
Ngxolo.
[2]
Furthermore, Exhibit A, page 4 confirms that the complainant upon
examination had a red right eye and bruised skin, both underneath
her
eye and in the centre of her forehead, and that her face was also
swollen.
[16]
With reference to the assault with a bottle on the complainant, the
appellant when he testified, confirmed that he had picked
up a bottle
but used the said bottle to strike another unknown gentleman, who was
fighting with the complainant and from whom he
ultimately rescued the
complainant.
[3]
The appellant thereafter made a startling revelation, that throughout
the whole encounter on the night in question, that he never
noticed
any injuries on the complainant.
[4]
[17]
The trial court in my view, correctly concluded that Mr. Ngxolo
corroborated with reference to the assault, the evidence as
tendered
by the complainant.
[5]
The medical evidence was also supportive of an assault caused by
blunt trauma. The appellant’s version was that, albeit that
he
was the one who rescued the complainant from an attacker, he is
nevertheless given the blame by the complainant as her attacker.
This
version was simply improbable and false and was correctly rejected by
the court.
[18]
It is correct that in relation to the rape that the complainant was a
single witness and counsel appearing for the state properly
submitted
that the appellant may be convicted on the single evidence of any
competent witness.
[6]
[19]
Paragraphs 4 and 5
supra,
sets out the complainant’s evidence in relation to the rapes.
Her evidence that she was raped twice, was repeated to the
medical
practitioner Dr. Dawood,
[7]
in relation to the J88 (Exhibit A) and confirmed by her mother Ms. N.
T.
[8]
In contrast however, the arresting officer Constable Honono
gave evidence, that when he reported to the residence of the
complainant the same evening, the complainant merely reported that
she was raped once after having been pulled by a man to Phase
1 in
Tshepisong,
[9]
and that the complainant never reported to him that prior to being
taken to the shack, that she was raped by the appellant in an
open
space.
[20]
Constable Honono however when confronted with his arresting statement
and the omission contained therein that he had failed
to record in
his statement that the complainant during her report made to him,
also informed him that she was pulled by the appellant
to his
shack.
[10]
He further conceded on a question posed by the court, that he was
unable to remember as to whether the complainant had informed
him
that when she was first pulled into the veld by the appellant where
he first had raped her and later that he had raped her
in his
shack.
[11]
His evidence on the number of rapes which was reported to him by the
complainant was as a result contradictory and on the whole
unsatisfactory.
[21]
This evidence of two rapes having occurred was also confirmed by the
evidence of Mr. Ngoxolo.
[12]
If one further have regard to the evidence of the complainant’s
brother, that is Mr. P. T, he similarly confirmed during
evidence-in-chief, that the complainant reported to him just past a
week after the incident, that she was on the evening in question,
in
the company of Senzo when she was pulled by the appellant; assaulted
with a beer bottle in her face up until they were in a
shack in Phase
1; and it was there where she was raped by the appellant.
[13]
This witness only during cross-examination confirmed that the
complainant had also informed him that when she was pulled, she was
also raped by the appellant as they had passed through this open
space.
[14]
[22]
The appellant throughout his evidence testified that he only had
sexual intercourse with the complainant.
[15]
[23]
The trial court in its judgment
[16]
and the complainant having been a single witness, could not have
concluded that Mr. Ngxolo and Ms. T. provided credence to the
evidence of the complainant. As far as the rapes in question are
concerned the complainant remained a single witness. The trial
court
could however have convicted the appellant on the single evidence of
any competent witness.
[24]
In the decision S v Sauls and Others
1981 (3) SA 172
at 180E-F
Diemont JA held as follows:
“
There is
no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The
trial court
will weigh his evidence, will 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.”
[25]
The trial court in our view correctly concluded that the complainant
presented her evidence in a candid and unrehearsed manner
and that
she was not contradicted by any of the state witnesses, with regards
to material aspects of her case.
[17]
[26]
After considering the evidence submitted in mitigation, the trial
court had found that there were no substantial and compelling
circumstances present justifying a deviation from the prescribed
minimum sentence and imposed a term of life imprisonment in respect
of counts 1 and 2.
[27]
The imposition of life imprisonment could have occurred where the
evidence demonstrated that two rapes had occurred which would
have
brought the offence within the ambit of the provision of section
51(1)(a) Act 105 of 1997.
[28]
The trial court further lamented the prevalence of the crime of rape
and assault on women and children and this despite the
warnings by
the courts and robust sentences imposed by the courts. It noted that
the complainant was only sixteen years old at
the time and that the
accused was violent and callous during the attack on her when he
struck her with a bottle in her face. The
court accepted that the
attack on the complainant must have caused her intense physical and
psychological trauma.
[29]
It noted the personal circumstances of the appellant to include his
relatively young age being 25 years when he committed the
offences,
but that he was not a child and that he was a first offender with
only his mother as a dependant. At the time of his
arrest he was
employed as a general labourer at a tavern where he earned R 850 per
week. On this basis it found no substantial
and compelling
circumstances to deviate from the prescribed minimum sentence of life
imprisonment. Not even the appellant’s
time in custody for two
years moved the court to consider a lesser sentence.
[30]
Having regard to the sentences imposed by the trial court, we could
find no misdirection in respect the sentences so imposed.
[31]
In the result and consequently the following order is made:
31.1 The appeal in respect of both
the conviction and sentence is dismissed.
__________________________
C.J
COLLIS
JUDGE
OF THE HIGH COURT
I
agree
__________________________
S.
MOKOSE
ACTING
JUDGE OF THE HIGH COURT
IT
IS SO ORDERED.
Appearances:
For
the Appellant : Adv. R.
Xaba
Instructed
by :
Legal Aid South Africa
For
the Respondent : Adv. T. Byker
Instructed
by
: Director of Public Prosecutions
Johannesburg
Date
of Hearing :27
February 2018
Date
of Judgement : 28 March 2018
[1]
See Record pages 6 and 7
[2]
See Record page 29 Lines 5-6
[3]
See Record page 101A.
[4]
See Record page 101A.
[5]
See Record page 205 Lines 10-11.
[6]
Section 208 of Act 51 of 1977.
[7]
See Record page 75 Line 25.
[8]
See Record page 94 Line Lines 11-15.
[9]
See Record page page 84 Lines 20-22.
[10]
See Record page 86 Lines 12-19
[11]
See Record page 87 Lines 8-15
[12]
See Record page 11 Lines 15-19
[13]
See Record page 65 Line
25; Page 66
Line 1.
[14]
See Record page 68 Line 18-19.
[15]
See Record page 101B Line 12
[16]
Judgement Record, page 205 Lines 1-5
[17]
See Record page 204 and 2015