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[2017] ZAGPJHC 418
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Seleka and Another v S (A331/2012; A208/2016) [2017] ZAGPJHC 418 (16 November 2017)
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A331/2012 & A208/2016
COURT
A QUO
CASE NO
:
10/2/5/1 – 2016/314
DATE
:
16
th
November 2017
In
the matter between:
SELEKA
:
WILLY
First
Appellant
SEJONG
:
MOSES
Second
Appellant
-
and -
THE
STATE
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an appeal by the first and second
appellants against their convictions and sentences. The two
appellants, who were legally
represented during the trial, were
respectively accused 1 and 2 in the court
a
quo
, being the Randburg Magistrates
Court for the Gauteng North Regional Division (Regional Magistrate
Muller). Both pleaded not guilty
to both charges against them. On the
25
th
of July 2008 the appellants were convicted of rape, read with the
provisions of s 51 of the Criminal Law Amendment Act, 105 of
1977
(‘the CLAA’), and robbery with aggravating circumstances,
also read with the provisions of s 51 of the CLAA. On
the 20
th
March 2008 both appellants were each sentenced to life imprisonment
on the rape charge and to 15 years imprisonment in respect
of the
charge of armed robbery. The sentences were ordered to run
concurrently, and the appellants were effectively each sentenced
to
life imprisonment.
[2].
In terms of s 309(1)(a) of the Criminal
Procedure Act, 51 of 1977 (‘the Act’), the
appellants, who were both sentenced
to imprisonment for life by the
regional court under
section 51(1)
of the
Criminal Law Amendment Act,
105 of 1997
, have the right to and did in fact note an appeal without
having to apply for leave in terms of
section 309B.
This appeal is
therefore in terms of the provisions of the aforementioned s
309(1)(a) of the Act.
[3].
Throughout their trial in the Magistrates
Court both appellants were legally represented by Mr S Sithole, who
was instructed by
Legal Aid South Africa. In the appeal, the
appellants are represented by Ms Britz, and they adopted a line of
attack concerned
more with the condition of the record of the
proceedings in the trial court than with the merits of the
appellants’ convictions
by that court and the sentences
imposed.
[4].
On appeal, the record of the proceedings in
the trial court is of cardinal importance. After all, that record
forms the whole basis
of the rehearing by the Court of Appeal. If the
record is inadequate for a proper consideration of the appeal, it
will, as a rule,
lead to the conviction and sentence being set aside.
However, the requirement is that the record must be adequate for
proper consideration
of the appeal; not that it must be a perfect
recordal of everything that was said at the trial. In that regard,
see
S v Chabedi,
2005
(1) SACR 415
(SCA).
[5].
The question whether defects in a record
are so serious that a proper consideration of the appeal is not
possible, cannot be answered
in the abstract. It depends
inter
alia
on the nature of the defects in
the particular record and on the nature of the issues to be decided
on appeal.
[6].
As to the defects in the record under
consideration, the whole of the record of the proceedings in the
Magistrates Court had to
be reconstructed, excepting only the
proceedings relating to the sentencing of the appellants. Copies of
the charge sheets and
all of the exhibits handed up during the trial
and received into evidence were also still available. The importance
of the exhibits,
which were handed up by consent of the appellants
and the contents of which were in the main not disputed, become
apparent infra,
when I discuss the issues to be decided on appeal.
The address in aggravation of sentence by the State Prosecutor and
the
address in mitigation by the defence attorney were mechanically
recorded and duly transcribed and it formed part of the record,
as
was the very brief Judgment on sentence by the Magistrate. As for the
rest of the proceedings, my understanding is that the
tapes and / or
the mechanical recordings could not be found and can and should be
regarded as untraceable. This includes the trial
court proceedings
relating to: the charges being put to the appellants, their pleas and
plea explanations, the evidence of the
state witnesses, evidence of
the appellants and their witnesses, and importantly the judgment of
the court
a quo
in respect of the convictions.
[7].
As indicated above, the transcript of the
trial court's judgment on conviction is non – existent.
Although we know that the
court
a quo
had convicted the appellants of rape and armed robbery, there is
neither a judgment on conviction nor any indication of the learned
Magistrate’s reasons for the conviction.
[8].
On the 14
th
of July 2017 there was a brave and laudable attempt by the Randburg
Magistrates Court to reconstruct the record. Matters were not
made
easy by the fact that the Magistrate, who presided over the trial
during 2007 and 2008, Magistrate Muller, has since passed
away and
the defence Counsel who represented the appellants during the trial
as well the interpreters and stenographers, were not
able to assist
in the reconstruction of the record. The only person who was of any
assistance in the reconstruction of the court
record was the public
prosecutor, Ms Dlamini, who fortuitously is still in the employ of
the prosecuting authorities and who gave
details of the evidence led
at the trial with reference to her contemporaneous notes.
[9].
From her notes, she was able to give
details of the evidence led at the trial in the court below of the
following witnesses: the
complainant (Ms L. K.), Ms S. K. (the
complainant’s sister), Ms Deborah Mothopa (the girlfriend of
the second appellant at
the time), the arresting officer (Mr Sentwa),
and both the first and second appellants. She also confirmed that the
State before
closing its case handed in exhibits by consent relating
to comparative finger prints, which placed the two appellants at the
scene
of the crime, as well as documents relating to the DNA results,
which linked the first appellant to the complainant.
[10].
At the reconstruction hearing the two
appellants, who were legally represented at that hearing by Mr
Mkwanazi, confirmed the correctness
of the reconstruction of the
proceedings by Ms Dlamini.
[11].
The second and main enquiry which we have
to engage in relates to the nature of the issues to be decided on
appeal. For purposes
of this enquiry, I revert to the facts.
[12].
The reconstruction of the record, with
which reconstruction the appellants was in agreement and had no
objection to, confirmed that
the evidence on behalf of the State was
that on the 16
th
December 2006 at approximately 19H40 in the evening the complainant,
whilst walking home from her sister’s place in Cosmo
City, was
accosted by the appellants, who each had a beer bottle in their
hands. They tried to grab her handbag, which she was
carrying across
her shoulder, and she resisted. She thereafter tried to flee, but
they had grabbed her handbag and ran after her.
At some point, whilst
pursuing her, one of her attackers threw a beer bottle at her and it
hit her on the head, whereafter she
fell to the ground.
[13].
She wanted to scream for help, but she was
warned not to, and to demonstrate to her how serious they were, one
of them hit her over
the head with the beer bottle for good measure.
The complainant was thereafter dragged to a deserted place with long
grass. She
attempted to talk her way out of the attack and pointed
out to her assailants that they had already robbed her of her two
cell
phones and some cash. They would have nothing of that and
slapped and kicked her, whereafter she again fell to the ground. She
was thereafter stripped of her pants and panties by one of the
attackers, who proceeded to rape her, whilst she was being held down
by the other. After he was done the other attacker also raped her.
Neither of them used a condom. After the second attacker was
done
raping her, he once again hit her over the head with a beer bottle
and just left her there in the veld. After they had left,
the
complainant got up, put on her panties and jeans and walked back to
her sister’s house. She told her sister and her brother
what
had happened to her. They then went to the police station and
reported the rape and robbery. The complainant advised the police
that she would be able to identify her assailants when she was to see
them again.
[14].
Under cross – examination it was put
to the complainant on behalf of the first appellant that he had
consensual sex with her
on the night in question as they were
involved in a romantic relationship at the relevant time. First
appellant also denied having
robbed the complainant. This was denied
by the complainant. As far as the second appellant is concerned,
under cross – examination
of the complainant, his version was
put to her as a bare denial of the rape and robbery.
[15].
The second state witness was the
complainant’s sister, who was the first report witness. She
corroborated the version of the
complainant in material respects. She
confirmed that the complainant had ‘come pass’ her house
on her way home from
work. At some point she left, but after about an
hour she returned, half naked and clearly in distress. She reported
to them that
she had been attacked, raped and robbed of her
belongings. Again, when she was cross – examined, it was put to
her on behalf
of the first appellant that he (the first appellant)
was the complainant’s boyfriend at the time and that they
had
consensual sex. This was vehemently denied by the witness.
[16].
The third witness, strangely enough, was
the girlfriend of the second appellant, who in essence testified that
during December 2006
the second appellant had given to her two cell
phones belonging to the complainant, and told her to take those to
Limpopo, which
she did. It later transpired that the phones had been
stolen from the complainant during a robbery.
[17].
The fourth witness was the arresting
officer, Mr Sentwa, who confirmed that he had collected from the
scene of the crime two beer
bottles, which had been sent for
fingerprint analysis, which confirmed that the appellants had handled
the bottles. After the evidence
of Mr Sentwa the State handed in
certain documents, which were received as exhibits into evidence by
consent of the appellants.
These documents related to the scientific
results of the fingerprints analysis and the DNA results. The net
effect of these documents
was that the first and the second
appellants were placed at the scene of the rape and robbery by the
fact that their fingerprints
were lifted from the beer bottles which
had been retrieved from the scene shortly after the commission of the
crime. This clearly
linked both the appellants in time and space to
the attack on the complainant. The report relating to the DNA tests
revealed that
the first appellant had intercourse with the
complainant as his DNA was found in the vaginal area of the
complainant.
[18].
According to the reconstruction of the
record, as led by the public prosecutor, Ms Dlamini, the evidence of
the first appellant
was that he engaged in consensual sex with the
complainant, who was his girlfriend at the time. The version of the
second appellant
was one of a general denial. He denied that he
committed either of the crimes which he was charged with. These
versions were the
versions of the appellants in their warning
statements and also the versions put to the witnesses when they were
being cross –
examined.
[19].
What is important is the overall picture,
and this picture can be garnered adequately from the undisputed
reconstruction of the
evidence. On the night of the 16
th
of December 2006 the complainant was raped and robbed of cell phones
and cash by two assailants. The only issue therefore to be
decided on
appeal is whether the rape and the robbery were perpetrated by the
appellants. That is the limited nature of the issues
to be
adjudicated upon by the Appeal Court. If the appellants’ denial
is to be accepted, it would mean that the complainant
and her sister
had concocted this entire story from beginning to end. These two
individuals, according to the appellants, are picking
on them and
accusing them of the rape and robbery for no reason. Then there is
also the undisputed scientific evidence, which belies
the version of
the first appellant that he had consensual sex with the complainant.
Similarly, it puts paid to the second appellant’s
general
denial that he was in any way involved in the commission of the
crimes. This is not tenable.
[20].
On the complainant’s version the
appellants were undoubtedly guilty of rape and robbery. The crux of
the enquiry is therefore
whether the first appellant's version and
the second appellant’s general denial of involvement in the
commission of the crimes
could reasonably possibly be true. In the
circumstances, the outcome of that enquiry is in turn dependent on
the question whether,
in the light of all the evidence, the
appellants’ explanations in response to the version of the
complainant could reasonably
possibly be true.
[21].
For the reasons mentioned above. I am of
the view that the versions of the appellants are not tenable. This is
a conclusion, which
in my judgment, this court, as the Court of
Appeal, can draw based on the facts gleaned from the reconstructed
record. The simple
fact of the matter is this: In the bigger scheme
of things, the versions of the appellants cannot reasonably possibly
be true.
This would still be the issue irrespective of any additional
information which may be derived from more details relating to the
evidence led at the trial. Moreover, if regard is had to all of the
facts in this matter, the answer to this question would inevitably
be
that appellants’ versions are not reasonably possibly true. The
appellants’ explanations are so improbable that
it cannot
reasonably possibly be true.
[22].
It was contended by Ms Britz, who appeared
on behalf of the appellants, that the shortcomings in the record
rendered a proper consideration
of the appeal impossible. Much to our
surprise, Ms Serepo, Counsel for the State, agreed with this
contention, which was based
on the submission that we are dependent
on a perusal and consideration and an in – depth analysis of
the evidence led at
the trial, as well as the magistrate's judgment
on conviction to assess his evaluation of the evidence. I do not
agree with this
submission. As indicated, the appellants, who were
both legally represented at the reconstruction hearing, were in
agreement with
the reconstruction of the evidence by Ms Dlamini.
Therefore, it has to be accepted that the evidence led was as per her
reconstruction.
That being the case, the matter can, in my view, be
decided on the inherent probabilities, which can in turn be
determined on the
reconstructed record as it stands. Logic dictates
that the appellants cannot possibly suffer prejudice because of the
lack of a
complete verbatim record of the proceedings in the trial
court.
[23].
The appellants’ versions fall to be
rejected because it is so inherently improbable that it cannot
reasonably possibly be
true. In these circumstances the appeal
against the conviction cannot succeed.
[24].
We are of the view that, after considering
all the probabilities and improbabilities and particularly the fact
that there is no
onus on the appellants to convince the court of the
truth of their explanation, the evidence of the appellants was
inherently improbable
and false beyond a reasonable doubt. However
one views this matter and the facts herein, sufficient corroboration
existed in linking
the appellants to the crimes. The improbability or
implausibility of the appellants’ versions, particularly the
fact that
on their versions the state witnesses concocted the whole
story against them, is apparent.
[25].
It follows that the appeal against the
convictions must fail.
Sentence
[26].
That brings me to the appeal against the
effective sentences of imprisonment for life which were imposed by
the magistrate. Whilst
we were not addressed on the suitability of
the sentences imposed on the appellants, we have nevertheless had
regard to the relevant
considerations.
[27].
A convenient starting point is the fact
that the provisions of s 51(1) of the CLAA, read with Part I of
schedule 2 of the said Act,
apply. This means that a minimum sentence
of imprisonment for life finds application. The question is whether
substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence.
[28].
It appears that, at the time of the trial,
the first appellant was 23 years of age and a first offender; that he
was employed as
a packer at Lanseria Solenta, earning R100 per day;
that his highest level of education is standard 8; he has no formal
training
and he is therefore unskilled; and he had a difficult
upbringing. He is not married and he does not have any dependants.
[29].
The second appellant was 28 years old at
the time of the trial, and he also has no previous convictions. He is
married and has two
dependant boy children. He left school during
2001 whilst doing standard 8. His highest level of education
therefore is grade 7.
At the time of his arrest he was doing piece
jobs as a gardener.
[30].
It is trite that an appeal court can
interfere with sentence only where the sentence is affected by an
irregularity or misdirection
entitling this court to interfere.
[31].
The provisions of s 51 of the Criminal Law
Amendment Act 105 of 1997 ('the Act') would ordinarily apply to the
sentencing regime.
The rape charge, where the perpetrators gang raped
the victim, would attract a prescribed minimum sentence of life
imprisonment,
unless substantial and compelling circumstances exist
to justify the imposition of a lesser sentence.
[32].
I take into consideration what was stated
by the SCA in
S v Vilakazi
,
2009 (1) SACR 552
(SCA). Nugent JA had this to say at par [58]:
‘
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that
Malgas
said
should be avoided. But they are nonetheless relevant in another
respect. A material consideration is whether the accused
can be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making
at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable
employment and
apparently stable family circumstances are not indicative of an
inherently lawless character.’
[33].
It was necessary for the court to find the
existence of substantial and compelling circumstances before it was
entitled to impose
a lesser sentence. In considering whether
substantial and compelling circumstances were present, the learned
magistrate had regard
to the appellants’ personal
circumstances. I have already alluded to those above. The court also
had regard to the severity
and the seriousness of the offences
committed by the appellant.
[34].
I am satisfied that the learned regional
court magistrate properly considered whether there were substantial
and compelling circumstances
to deviate from the minimum sentences
provided for in respect of the offences under the relevant provisions
of section 51(1) of
the CLAA as read with part I of schedule 2
thereof, and also carefully considered the triad of factors relevant
to sentencing,
namely the nature of the offence, the personal
circumstances of the offenders including their moral blameworthiness
and the interests
of society by which I include the interests of the
victim. I am also satisfied that the Regional Magistrate was
justified in imposing
the minimum sentence. In that regard, the
Magistrate had regard to the severity of the crime and the brazen and
arrogant manner
in which it was committed by the appellants who has
very little regard for the complainant’s dignity.
[35].
The aggravating circumstances far outweigh
the personal circumstances of the appellants. I do not consider there
to be any misdirection
in the Regional Magistrate’s judgment on
sentence, which would entitle this court to interfere with the
sentences imposed.
It moreover cannot be said that the sentences are
unduly harsh or inappropriate (see
S v
Kgosimore,
1999 (2) SACR 238
(SCA)). In
my view the imposition of the life sentences does not induce a sense
of shock nor is it disproportionate particularly
having regard to the
values to which we subscribe and the application of section 51 of the
CLAA.
[36].
It follows that the appeal against sentence
must fail.
Order
Accordingly,
I make the following order:-
1.
The appeal by the first appellant against
his convictions is dismissed.
2.
The appeal by the first appellant against
his sentence is dismissed.
3.
The appeal by the second appellant against
his convictions is dismissed.
4.
The appeal by the second appellant against
his sentence is dismissed.
________________________________
ADAMS J
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
I agree,
__________________________
RAMAPUPUTLA AJ
Acting Judge of the High Court of
South Africa
Gauteng Local
Division, Johannesburg
HEARD
ON:
13
th
November 2017
JUDGMENT
DATE:
16
th
November 2017
FOR
THE APPELLANT
Adv
Y J Britz
INSTRUCTED
BY:
Johannesburg
Justice Centre
FOR
THE RESPONDENT:
Adv
N P Serepo
INSTRUCTED
BY:
The
Office of the Director of Public Prosecutions, Gauteng Local
Division, Johannesburg