About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 445
|
|
Majola v S (A54/2019) [2019] ZAGPJHC 445 (25 October 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A54/2019
COURT
A QUO
CASE NO
:
VSH481/11
DPP
REF NO
:
9/2/5/1-(2019/54)
DATE
:
25
th
October 2019
In
the matter between:
MAJOLA
:
MXOLISI ELIAS
Appellant
-
and -
THE
STATE
Respondent
JUDGMENT
Coertse
AJ (Adams J concurring):
[1].
This is an appeal by the appellant against
his conviction and sentence by Vosloorus Regional Court for the
region of Gauteng. On
21 August 2013 the appellant, Mr Mxolisi Elias
Majola, was found guilty of the crime of contravening the provisions
of Section
3 read with sections 1, 56(1), 57, 58, 59, 60 and 61 of
the Criminal Law Amendment Act (Sexual Offences and related matters),
Act
32 of 2007 read with the provisions of sections 51 and Schedule 2
of the Criminal Law Amendment Act, Act 105 of 1997, as amended
by Act
38 of 2008, and also read with section 261 (1) of Act 51 of 1977 as
amended in that appellant raped the complainant, S M,
when she was
six (6) years old. The trial court warned the appellant at the start
of his trial that the court was:
‘…
bound
by the provisions of
section 51
of the
Criminal Law Amendment Act 105
of 1997
, as amended by Act 38 of 2007, to sentence him to life
imprisonment should I [the trial court] find him guilty …
unless
there are compelling and substantial circumstances warranting
me [the trial court] to deviate from the prescribed minimum
sentence.’
[My insertions].
[2].
Appellant clearly and unequivocally
indicated that he understood the warning from the trial court. He was
sentenced to life imprisonment
on the same date as his conviction and
therefore has an automatic right of appeal. Appellant had legal
representation throughout
the trial in the regional court and at the
court of appeal. Appellant as well as the Respondent filed Heads of
Argument.
[3].
It is common cause that the complainant was
raped on 4 November 2011. Appellant denies that he raped her.
Appellant is of the view
that the learned magistrate erred in finding
him guilty of this heinous crime and also is of the view that, in
light of the conviction,
the trial court materially misdirected
itself in respect of sentence. The court of appeal was urged to
uphold the appeal against
both the conviction and the sentence.
[4].
There are a fair number of other issues
that are common cause between the case for the State and the
appellant’s case. The
appellant was apprehended in the street
very close to the scene where the alleged rape took place and he was
taken to the Police
Station where the above charges were laid against
him. Shortly before he was apprehended, the witness for the State, Mr
L Mokoena,
kicked out at the appellant and also threw a brick at him
which struck him. The complainant was raped on the day in question at
or near the place where appellant was apprehended.
[5].
The State led the evidence of five
witnesses, inclusive of medical evidence as to the injuries the
complainant suffered. The conclusion
that can be drawn from the
injuries is that the six-year old complainant was raped. The mother
of the complainant gave evidence.
Mr Mokoena encountered the
appellant in the street with the complainant and he decided to follow
them. Appellant took the complainant
into an abandoned shelter, also
referred to by Appellant as a vandalized house, and they were
followed into this house by Mokoena;
Mokoena heard complainant
crying. He then saw the appellant in the available light under a
table lying on top the complainant.
Mokoena shouted at appellant who
tried to flee the scene. Mokoena kicked appellant and also threw a
brick at him. While appellant
was fleeing the scene Mokoena saw that
appellant had an erection as his pants were down. Eventually
appellant was apprehended in
the street and taken to the Police
Station.
[6].
Another State witness, Mrs Rebecca
Mngomezulu, testified that she also followed the Appellant while
carrying the complainant. She
saw how appellant took complainant into
the vandalized house and she heard complainant crying; later she saw
appellant fleeing
from that vandalized house. She saw complainant
exiting the place and she could hardly walk as she kept falling and
she couldn’t
talk. Mrs Mngomezulu saw that complainant’s
panties had blood stains and she was bleeding from her vagina.
[7].
The thrust of the appellant’s appeal
against the conviction is that the trial court erroneously relied on
the evidence of
a single witness; it is trite that, in terms of
section 208
of the
Criminal Procedure Act 51 of 1977
as amended, a
court of law may convict on the evidence of a single witness provided
that the evidence is satisfactory in all material
aspects. How is
this applied in practice? The classic case is
R
v Mokoena
1932 OPD 79
at p80. This case
has been a guide for our courts through the decades since 1932 and
has found application in numerous cases over
the years. The 1932 case
dealt with the criminal procedure act of that time;
section 208
of
the CPA is substantially the same. De Villiers JP delivered the
judgment and he had this to say:
‘
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
sec. 284
of Act 31 of 1917, but in my opinion that section should
only be relied on where the evidence of the single witness is clear
and
satisfactory in every material respect. Thus the section ought
not to be invoked where, for instance, the witness has an interest
or
bias adverse to the accused, where he has made a previous
inconsistent statement, where he contradicts himself in the witness
box, where he has been found guilty of an offence involving
dishonesty, where he has not had proper opportunities for
observation,
etc, etc.’
[8].
The appellant testified in his own defence
and did not lead any other evidence in rebuttal of the case against
him. The witness
Mokoena was the only eye witness to what occurred
inside the vandalized house. He told the court clearly what he could
see and
what he could not see. Counsel for the appellant argued that
the witness Mokoena couldn’t see in the dark. Mokoena was
emphatic
that the rest of the building was dark but not around the
table where appellant was laying on top of the complainant. If he
wanted
to exaggerate what he observed, he could easily have told the
court in graphic detail what happened under the table; he did not.
After making physical contact with the appellant and while appellant
was fleeing the scene, he saw appellant had an erection. This
part of
the evidence of Mokoena is that of a single witness. The
circumstantial evidence presented by the state corroborated the
evidence of the witness Mokoena in every single respect.
[9].
The court in
Mokoena
(supra) dealt with the uncorroborated evidence of a single witness
pertaining to identity of the accused fleeing a scene at night.
In
the instant case, the identity of the appellant was established
before appellant took the complainant into that vandalized house.
He
was positively identified after he fled from the house into the
street where he was apprehended.
[10].
The trial court evaluated the evidence and
came to the conclusion that the case for the state was in essence
cogent and satisfactorily
in all material respects. The appellant’s
evidence was rejected. The trial court came to the conclusion
that the guilt
of the appellant was proven beyond reasonable doubt
and he was found guilty as charged.
[11].
We find that there were at least two eye
witnesses who corroborated one another in material respects. Mokoena
saw the appellant
had an erection. He did not mislead the trial court
about what he could or could not see and that has a ring of truth.
Applying
the guidelines in
Mokoena,
we are of the view that the evidence of Mokoena is satisfactory in
all material respects and that it is corroborated by the other
state
witnesses. Consequently, we find ourselves in agreement with the
learned trial magistrate that the guilt of the appellant
was proven
beyond reasonable doubt.
[12].
As regards sentence, the court of appeal
had to consider whether the trial court misdirected itself in
sentencing the appellant.
The Supreme Court of Appeal (the SCA) in
S
v Malgas
2001 (1) SACR 469
alluded to
the test the appeal court has to apply before it can interfere with
sentence. The SCA set out the principle thus:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court.’
[13].
If the trial court materially misdirected
itself in respect of sentence then the court of appeal can interfere;
if there is no misdirection
then it cannot interfere.
[14].
The trial court was then confronted with
the prospect of sentencing the appellant to life imprisonment unless
satisfied that substantial
and compelling circumstances exist which
justify the imposition of a lesser sentence. In
Malgas
(supra) the SCA investigated the import and applicability of what
would constitute ‘substantial and compelling’
circumstances
when an accused is found guilty of
inter
alia
a crime such as in this case.
[15].
The trial court properly considered his
personal circumstances as well as his previous convictions. The
appellant was 28 years at
the time of sentencing, single, no children
and that he is not a sophisticated person in that he only went to
school until standard
2. Counsel for the appellant also disclosed
that he has three previous convictions. Counsel for the State
disclosed appellant has
convictions of indecent assault and assault
with the intent to cause grievous bodily harm and attempted rape
which are acts of
a sexual nature. Counsel for the appellant
disclosed the particulars of his previous convictions as follows:
‘
The
appellant has (3) three previous convictions, two of which are
related to this offence; he is therefore not a first offender.’
[16].
The trial court found no substantial and
compelling circumstances to deviate from the minimum sentence. We are
of the view that
these previous convictions relating to sexual crimes
should be seen as aggravating circumstances. We found that the trial
court
did not misdirect itself in respect of sentencing the
appellant. In light of this finding, the court of appeal cannot
interfere
with the sentence of the trial court.
[17].
At the start of the trial, appellant was
warned of the possibility of a life sentence being imposed in the
event of him being found
guilty of the crime he was charged with.
This possibility then arose. The circumstances and the facts of the
case are such that
renders it necessary to impose the maximum
sentence ‘… unless substantial and compelling
circumstances justify a lesser
sentence’. (
Malgas
at para 38). The trial court had to consider whether there exist any
compelling and substantial circumstances, which would have
justified
a deviation from the minimum sentence of direct imprisonment for
life. The SCA in
Malgas
set out guidelines in respect of what would constitute these
circumstances. An p 29 the SCA held that:
‘
Section
51 has limited but not eliminated the courts’ discretion in
imposing sentence in respect of offences referred to in
Part 1 of
Schedule 2 (or imprisonment for other specified periods for offences
listed in other parts of Schedule 2). … Courts
are required to
approach the imposition of sentence conscious that the legislature
has ordained life imprisonment (or the particular
prescribed period
of imprisonment) as the sentence that should ordinarily and in the
absence of weighty justification be imposed
for the listed crimes in
the specified circumstances. … The specified sentences are not
to be departed from lightly and
for flimsy reasons.’
[18].
Counsel for the appellant submitted in his
Heads of Argument that the appellant is not a first offender. As
regards the sentence,
we are satisfied that the appellant did not
advance any compelling and substantial circumstances warranting the
trial court to
deviate from passing the minimum sentence. The trial
court found that the aggravating circumstances far outweigh the
mitigating
factors. We agree. The appellant’s previous
convictions pertaining to crimes of a sexual nature weigh heavily
against him.
This, in our judgment, is aggravating in the extreme and
the aggravating circumstances truly outweigh the mitigating factors.
Taking
all of these factors into account, we cannot but conclude that
the trial court did not misdirect itself in connection with the
imposition of a life sentence on the appellant. Consequently, the
appellant’s appeal against his sentence should also be
dismissed.
[19].
It follows that the appeal against both
conviction and sentence must fail.
Order
Accordingly, the following order is
made:-
1.
The appeal by the appellant, Mxolisi Elias
Majola, against his conviction be and is hereby dismissed.
2.
The appellant’s appeal against his
sentence be and is hereby dismissed.
_____________________________________
C J COERTSE
Acting Judge of the High Court of
South Africa
Gauteng Local Division,
Johannesburg
I agree,
__________________________
L R ADAMS
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
HEARD ON:
8
th
October 2019
JUDGMENT DATE:
24
th
October 2019
FOR THE APPELLANT:
Adv Leoto
INSTRUCTED BY:
Johannesburg Justice Centre
FOR THE RESPONDENT:
Adv Peck
INSTRUCTED
BY:
The
Office of the Director of Public Prosecutions, Gauteng Local
Division, Johannesburg