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[2010] ZAGPJHC 183
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S v Mhlanga (A90/2010) [2010] ZAGPJHC 183 (3 June 2010)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. A90/2010
Date
of Appeal: 3 June 2010
DPP
Reference No. JAP 2010/0096
In
the matter of:-
MHLANGA,
ARNOLD
...........................................
Appellant
versus
THE
STATE
.............................................................
Respondent
JUDGMENT
A
J Bester, AJ:
[1]
The appellant was charged with one count of rape. He denied guilt and
provided the following plea explanation: "... the
accused denies
ever having sexual intercourse with complainant at any stage, with or
without consent".
[2]
The Appellant was convicted and on 31 May 2009, sentenced to one term
of life imprisonment in terms of
section 51(1)
of the
Criminal Law
Amendment Act, 105 of 1997
.
[3]
An appeal was noted in terms of section 309(1) of the Criminal
Procedure Act, 51 of 1997. The appeal, now before us, is directed
against both the conviction and sentence.
[4]
It was common cause in the court below that, on the date of the
alleged rape, namely 21 October 2006, the complainant was a
young,
school-going, 15-year old virgin of slight build. The Complainant and
the Appellant, the latter then 36 years old with two
years of
post-secondary teacher training, were co-inhabitants in a boarding
house which they shared with various other people.
The Complainant
and her mother shared a bedroom. The Appellant and his own infant
shared another bedroom, his wife having absconded
some time earlier.
The alleged rape of the Complainant by the Appellant was said to have
taken place in the Appellant's bedroom.
A medical examination
conducted in the early morning hours of the night following upon the
alleged rape, showed that the Complainant
had suffered vaginal
injuries compatible with a recent, violent, non-consensual
penetration of the vagina. She displayed no other
physical injuries.
[5]
It serves mention at this juncture that, although Dr Ntekera, the
physician by whom the medical examination was conducted, was
cross-examined on behalf of the Appellant as to the possibility that
the mentioned vaginal injuries were self-inflicted, it was
never put
to the doctor on behalf of the Appellant that the injuries were, for
example, not sustained; that they were not consistent
with a recent,
violent, non-consensual penetration; or that they were self
afflicted.
[6]
The Complainant alleged that the Appellant, who in the past had made
amorous advances towards her, accosted her when she was
on her way to
a communal bathroom in the boarding house. The Complainant's mother
being off to work, the Appellant used that opportunity,
she says, to
force her into his bedroom where he raped her. The Appellant says
that is not so and in his defence propounded a theory
that says, in
essence, that the Complainant had, on the day of the alleged rape,
stolen his cell phone from his bedroom and that,
in an altercation
where he was about to assault her, he had confronted her about that
theft. Then, so the theory goes, apparently
as some kind of a
pre-emptive strike, the Complainant levelled that trumped-up charge
of rape against him to deflect attention
from the theft or perhaps to
counteract, somehow, a the charge of theft that he could level
against her.
[7]
The court below was therefore faced with two mutually destructive
versions of the events on the day in question. One of these
versions
must be false.
[8]
On appeal, the argument advanced on behalf of the Appellant is that
the Complainant's evidence should be rejected because it
is riddled
with material contradictions. The conclusionary submission is that,
as a result of these contradictions, her evidence
is therefore not
"clear and satisfactory in every respect'. Contrasted with that
material defect in the State's case, it is
argued that the
Appellant's version of the events should be accepted as "reasonably
possibly true since he maintained his
version throughout his trial'.
[9]
The latter submission is, if not decidedly wrong, then overly
generous to the Appellant because even a cursory perusal of the
Appellant's viva voce evidence shows that it permeates contradiction
and, as correctly summarised by the learned magistrate, displayed
"glaring inconsistencies". Moreover, when in the concluding
moments of the hearing, the Appellant was taxed during in
cross-examination for these contradictions and inconsistencies, he
launched an attack on his own legal counsel, accusing him of
grossly
ineffective representation. That accusation is perhaps exemplified,
for example, by the following extract from the evidence
at Record,
page 218, line 16 to 219, line 8:
"In
the times that he has consulted me, like in other times when he comes
to Sun City like the time when he came to take my
statement he had
come visited me in Sun City. That is when he got all my statements
and then the other times when it is here, sometimes
I happen that
when the conversation is getting finished in court I lift up my hand
and he tells me that he is going to come down
to see me. Then I have
developed to understand that whenever, most of the times when he
tells me that he will come down here, he
has never attended me down
when I have gone down.
But
sir, I saw you coming up with the book. -- Which in the other time
when I tell him that he did not come and see me down that
day, then
he tells me that each and everything which you are again to say you
will have an opportunity. The Court is going to give
you an
opportunity to listen to you. Each and everything, even the day when
he consulted with me that I will be starting to come
into the witness
box he told me that it is the time today.
I
saw him consulting with you. -- It is the time today that each and
everything that you had wanted to say and anything that you
think it
was left out, it was the time to cough everything up, and I was happy
with that but I am only surprised that now the situation
which he put
me to is now turning against
me."
[10]
We are instructed by S v Bennett 1994(1) SACR 392C, at 398h, that,
regrettably, one of the events which sometimes follows upon
a
conviction is a recrimination from the convicted person who seeks to
attribute his misfortune for having been convicted not to
his own
guilt, but to his legal counsel's inadequate and ineffective
representation. In the case of the Appellant, the recrimination
followed upon a bout of incisive cross-examination when it finally
dawned on the Appellant that his evidence was perhaps lacking
the
requisite credibility.
[11]
As an aside, although not called upon directly to rule on the
adequacy and effectiveness of the Appellant's representation,
but
perhaps compelled to do so because of the Appellant's accusations, I
say this: as submitted by the learned author Steytler
in
Constitutional Criminal Procedure, Butterworths, 1998, the right to
legal representation includes the right to effective representation.
However, the author underscores the fact that a court should be alive
to the difficulties of reviewing the conduct of a case by
legal
counsel after the event and, in making that evaluation, a court
should be highly deferential. The court must accordingly
indulge a
strong presumption that counsel's conduct falls within the wide range
of reasonable professional assistance. In the result,
he argues, a
claim of ineffective counsel should not readily be accepted.
[12]
It is not possible on the record before me to conclude that the
Appellant's legal counsel was delinquent in his representation.
However, a perusal of the record does tend to show that the
Appellant's counsel had discharged his duties with a fair measure of
confidence and competence.
[13]
To return to an assessment of evidence, it is not competent, as
counsel for the Appellant does in her heads of argument, minutely
to
dissect the evidence adduced for contradiction and inconsistency and
then, on that basis, to discount the evidence of the one
or the other
party. The proper approach to such contradictions and inconsistencies
is well-established.
[14]
In S v Van der Meyden 1999 (2) 79 WLD the court, at 82C-E, formulated
the approach as follows:-
"The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt,
and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that a conclusion which
is reached (whether it be to convict or to
acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be unreliable;
and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.'
[15]
The mere fact, therefore, that there might be contradictions and
inconsistencies in the evidence of a party, is not decisive.
Contradictions and inconsistencies per se cannot lead to the
rejection of the evidence given by a witness as untrue; they may be
indicative of a simple error or poor recollection for the only thing
certain about human memory is that it is often frail. And
not every
error made by a witness affects his or her credibility; an evaluation
of the evidence of each witness must be made, taking
into account all
of the evidence before the court, including the nature of the
contradictions and inconsistencies, their number
and importance, and
their bearing on other parts of that witness' evidence. See: S v
Oosthuizen
1982 (3) SA 571
(T) at 576B - H; S v Mkohle
1990 (1) SACR
95(A)
at 98f-g.
[16]
It is unnecessary to regurgitate here the totality of the evidence
before the court below and the contradictions and inconsistencies
in
the evidence. They are clearly and comprehensively chronicled in the
judgement of court below. It is clear from the reasons
for judgement
that the Magistrate approached the evaluation of the evidence
holistically as per the test formulated in Van der
Meyden, supra. He
comprehensively considered the contradictions and inconsistencies in
the evidence on both sides and weighed up
the elements that point
towards the guilt of the Appellant against all those which were
indicative of his innocence, taking proper
account of the strengths
and weaknesses, probabilities and improbabilities on both sides. He
found, correctly in my view, that
the contradictions in the evidence
of the Complainant were not material.
[17]
In my view the magistrate was correct; such contradictions as were
found in the evidence of the Complainant are to be expected
given her
young age and the trauma of the, by all accounts, rapidly unravelling
and unexpected events on the day of the alleged
rape. The
contradictions in her evidence were not only not material, they
concerned inconsequential matter and were few. They were
also of the
type which suggest absence of fabrication rather than unreliability.
The Complainant was corroborated in most respects
by her mother, to
whom she complained about the rape upon her return from work, by her
Uncle, and by the evidence of Dr Ntekera,
whose conclusions were not
attacked with any modicum of vigour. The magistrate, therefore, in my
view correctly found the Complainant
to be satisfactory in all
material respects as a single witness in respect of the rape.
[18]
The magistrate also carefully took into account the quality of the
evidence of the Appellant, who was extensively cross examined.
As
shown above, the magistrate pointed to the material contradictions
and glaring inconsistencies in the Appellant's evidence which
remained unexplained. He also found that material aspects of the
Appellant's evidence were improbable. Of particular concern was
the
fact that the Appellant had failed, without explanation, to call
witnesses who were apparently able, on the version of the
Appellant,
give weighty evidence relevant to the question as to whether or not a
rape had been committed. And the fact that, when
confronted under
cross-examination with the mentioned contradictions and
improbabilities, the Appellant readily adjusted his evidence
and, as
shown above, was quick to accuse his legal counsel of not putting
that previously unheard version to the Complainant in
her
cross-examination.
[19]
In the peculiar circumstances of this case, apart from considering
the credibility and reliability of the witnesses, the magistrate
was
correct in assessing the probabilities of the two conflicting
versions before him and to reach a finding as to which version
is
true and which is not. The magistrate could, of course, only dismiss
the Appellant's version as false in the event that he reached
that
conclusion beyond reasonable doubt and to do he considered the
evidence before him holistically. S v Saban
1992 (1) SACR 199(A)
at
203i-204b. Having performed that evaluative exercise, the magistrate
concluded that there was a substantial balance of inherent
probabilities that support Complainant's version and that that the
balance weighed so heavily in favour of the State that it excluded
any reasonable doubt about the Appellant's guilt.
[20]
In my view the magistrate therefore approached the evidence before
him cautiously and correctly and, on a proper conspectus
of all the
evidence, rejected the defence version as false beyond reasonable
doubt. His reasoning in respect of the conviction
on the rape count
can, therefore, not be faulted.
[21]
It is trite that in the absence of a demonstrable and material
misdirection by the trial court, its findings are presumed to
be
correct and that those findings will only be disregarded if the
recorded evidence shows them to be clearly wrong. See S v Francis
1991 (1) SACR 198
(A) at 204d; S v Hadebe and Others
1997 (2) SACR
641
(SCA) at 645e - f.
[22]
The Appellant has been unable to point to any demonstrable and
material misdirections by the learned magistrate and, in my
view,
there are none.
[23]
The Appellant's conviction on the count of rape is therefore upheld
and appeal against it rejected.
[24]
I now turn to the life sentence imposed upon the Appellant by the
court below.
[25]
It has often been held that the sentence of life imprisonment is the
most serious sentence that can be imposed, for it effectively
denies
the possibility of rehabilitation.
[26]
The imposition of a sentence is, as held in S v Ntozini
2009 (1) SACR
42
(E), one of most difficult and onerous duties of judicial
officers; perhaps more so in the case of a court sitting in
reconsideration
of a life sentence in a matter where a first time
offender, in the prime of his life and with an otherwise
irreproachable record
of good conduct and behaviour, has committed a
heinous crime, but who is nevertheless sentenced to life
imprisonment.
[27]
When should a court of appeal interfere with a life sentence imposed
on an appellant? Generally, it has been held that appellate
interference in respect of sentence is only competent in instances
where the appellate court has formed a definite view as to the
sentence it would have imposed and where the degree of disparity
between that sentence and the one imposed by the sentencing court
is
so striking that interference on appeal is warranted: see: Damgazela
v The State (633/09)
[2010] ZASCA 69
(26 May 2010).
[28]
In Ntozini, supra, where the court substituted a life sentence with a
term of imprisonment for 20 years, the court articulated
the basis
for an interference in a sentence as follows:-
"The
concept of substantial and compelling circumstances has engaged the
attention of the courts on numerous occasions specifically
the
Supreme Court of Appeal in the matters of S v Malgas
2001 (1) SACR
469
(SCA); S v Fatyi
2001 (1) SACR 485
(SCA), and the Constitutional
Court in S v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC). Amongst the principles to
be extracted from these decisions are the following: In determining
whether substantial and compelling
circumstances as envisaged in the
section are present the court must have regard to all the factors
traditionally taken into account
in the determination of a
discretionary sentence and it is not limited to circumstances which
are exceptional or rarely encountered.
Nor are there circumstances
restricted to factors that reduce the moral blameworthiness of the
convicted person. In general, however,
it was the intention of the
legislature to provide for a severe standardised and consistent
response from the courts unless truly
convincing reasons exist and
are so discernable for a different response. Stated differently the
prescribed sentences must in general
be regarded as appropriate for
the specified offences and should not be deviated from without
weighty justification. Where on a
conspectus of all the relevant
circumstances the court considers that the imposition of the
prescribed sentence would work an injustice
it is entitled to
categorise the circumstances as substantial and compelling sufficient
to justify the imposition of a lesser sentence.
In
S v Mahomotsa
2002 (2) SACR 435
(SCA) ([2002]
3 All SA 534)
the
headnote
reads in part as follows:
'Even
in cases falling within the categories delineated in the Act there
are bound to be differences in the degree of their seriousness.
There
should be no misunderstanding about this: they will all be serious
but some will be more serious than others and, subject
to the caveat
that follows, it is only right that the differences in seriousness
should receive recognition when it comes to the
meting out of
punishment. Some rapes are worse than others and the life sentence
ordained by the Legislature should be reserved
for cases devoid of
substantial factors compelling the conclusion that such a sentence is
inappropriate and unjust. Of course,
one must guard against the
notion that because still more serious cases than the one under
consideration are imaginable, it must
follow inexorably that
something should be kept in reserve for such cases and therefore that
the sentence imposed in the case at
hand should be correspondingly
lighter than the severer sentences that such hypothetical cases would
merit. There is always an
upper limit in all sentencing
jurisdictions, be it death, life or some lengthy term of
imprisonment, and there will always be cases
which, although
differing in their respective degrees of seriousness, nonetheless all
call for the maximum penalty imposable. The
fact that the crimes
under consideration are not all equally horrendous may not matter if
the least horrendous of them is horrendous
enough to justify the
imposition of the maximum penalty.'"
[29]
The learned judge in Ntozini, supra, then continued and stated that,
although each case must obviously be decided on its own
facts, it is
useful to compare the facts in other cases emanating from the Supreme
Court of Appeal in which substantial and compelling
circumstances
were found to be present and where the particular instances of rape
were held not to fall within the worst category
of rape. He then
proceeded to analyse a number of such cases, some in which the
victims were as young as 13 and 15, and in which
the facts compete
the one to outweigh the other on an ascending scale of sheer,
horrendous brutality and cruelty, but which all
share a common
denominator, namely that the Supreme Court of Appeal saw fit to
impose a sentence less than that of life imprisonment.
[30]
Section 51
of the
Criminal Law Amendment Act, 105 of 1997
, requires a
two-tier test: First the court must determine whether there are
substantial and compelling circumstances to warrant
a departure from
life imprisonment or a prescribed minimum sentence. If it is found
that no substantial and compelling circumstances
exists to warrant a
lesser sentence, the court is obliged to impose the prescribed
minimum sentence. Should substantial and compelling
circumstances
however be present, the second enquiry kicks in and that is to
determine an appropriate sentence.
[31]
It is difficult to ascertain from a reading of the magistrate's
judgement on the sentence if and where this two-tier test was
applied
and what his motivation was for the imposition of a life sentence. In
Maake v Director of Public Prosecutions (481/09)
[2010] ZASCA 51
(31
March 2010) the Supreme Court of Appeal cited, with approval, the
following dictum in S v Mbatha
2009 (2) SACR 623
(KZP) (at 631/-/):
"...
there is as much a necessity for the court in its judgment on
sentence to identify on the record the aggravating circumstances
that
take the case out of the ordinary, as there is for it in the converse
situation to identify those substantial and compelling
circumstances
that warrant the imposition of a lesser sentence than the prescribed
minimum."
[32]
What does, however, appear to emerge from his reasons is that the
magistrate took account of the fact that, as with all rapes,
the
emotional distress and damage that accompanied the rape in this case
was undeniably extensive and enduring, and more so in
the case of
young girls. However, his overriding consideration was apparently
that, because the Complainant was under 16 when she
was raped, that
fact alone warranted the imposition of the most severe sentence
possible and that sentence he then did impose.
But that approach is
fundamentally unsound, as demonstrated in the analysis of the cases
in Ntozini, supra, for it blinded him
to those substantial and
compelling circumstances that warranted the imposition of a lesser
sentence than the prescribed minimum.
[33]
In this case, there was no extraneous violence and there was no
physical injury other than that inherent in the offence. Of
course,
as pointed out in S v Vilikazi
2009 (1) SACR 552
(SCA), in cases of
serious crime the personal circumstances of the offender necessarily
receded into the background and, once it
was clear that a substantial
jail term was appropriate, questions of whether or not the accused
was married, or employed, or of
how many children he had, were
largely immaterial. However, the court held that these factors remain
relevant in the assessment
of whether the offender was likely to
offend again.
[34]
In the present case the Appellant had reached the age of 36 and had
led, by all accounts, an exemplary life; he was a "good,
non-violent man', a member of the Seventh Day Adventist Church who
cared for his family. He held a steady job as a building contractor
in Sandton, where he employed 29 people. He was also at some time a
carpenter. The Appellant has, as pointed out above, has two
years of
post-secondary education in the form of teacher training. He is a
displaced Zimbabwean with no prior convictions. Nothing
in his life
indicated that he is inherently lawless or lacking in ordinary
decency. The very fact that the Complainant's mother
did not consider
the Appellant as a person who posed a threat to her daughter and was
therefore content to lock her into the boarding
house with him when
she was out, lends support to the mentioned evidence that the
Appellant must have been a person of inherent
good character. The
inference must therefore be that the Appellant had suffered a major,
but isolated lapse of better judgement;
the inference cannot be that
he is a threat liable permanently to be removed from society.
[35]
A significant term of imprisonment would therefore in my view have
been sufficient to bring home to the Appellant the gravity
of his
offence and to exact sufficient retribution (in so far as that may
still be relevant); life imprisonment was not a just
sentence for the
Appellant. To cite Vilikazi, supra, "to make him pay for his
crime with the remainder of his life would be
grossly
disproportionate".
[36]
Finally, at the time of sentencing in March 2009, the Appellant had
already been incarcerated since 2006. In S v Stephen
1994 (2) SACR
163
W at 168f, the court held that time spent in imprisonment
awaiting trial must be brought into account in any subsequent
custodial
sentence, but as double time the time actually served.
Taking into account, therefore, the time served awaiting trial, I
consider
that a period of 18 years' imprisonment will send a
sufficiently strong deterrent message to the community that rape, and
especially
the rape of a young girl, will be visited with severe
punishment.
[37]
In the premises, the Appellant's appeal against the sentence is
upheld. The life sentence imposed by the magistrate is set
aside and
a sentence of 18 years' imprisonment is imposed.
__
(Signed)_______________________
Bester,
AJ
Acting
Judge of the High Court 3 June 2010
I
concur.
_(Signed)____________________
Victor,
J
Judge
of the High Court 3 June 2010