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[2020] ZAGPJHC 210
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Manqele and Another v S (A492/2013) [2020] ZAGPJHC 210 (4 June 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A492/2013
In
the matter between:
MANQELE;
VELIA FIRST
APPELLANT
SIBIYA;
RICHARD SECOND
APPELLANT
Versus
THE
STATE
RESPONDENT
JUDGMENT
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by e-mail. The date and
time for
hand-down is deemed to be 10h00 on the 4
th
of June 2020.
TWALA
J
[1]
This is an appeal against both the conviction and sentence premised
under the provisions of s309 (1) (a) of the Criminal Procedure
Act,
51 of 1977 (CPA) as amended which confers an automatic right to
appeal to the High Court to a person who has been convicted
and
sentenced to life imprisonment by a Regional Court under s51 of the
Criminal Law Amendment Act, 105 of 1997 (CLAA).
[2]
There are two central issues for determination in this appeal. The
first is whether the first appellant had sexual intercourse
with the
complainant with her consent. The second, is whether the second
appellant did in fact have sexual intercourse with the
complainant on
the day in question without her consent.
[3]
The appellants were charged as accused one and accused three and were
convicted by the Magistrate Court sitting in Johannesburg
on
various counts ranging from assault with intent to do grievous bodily
harm, kidnapping, robbery and rape of the
complainant. The
first appellant was convicted on all the counts and sentenced to life
imprisonment on the count of rape with the
sentences on the other
counts ordered to run concurrently with the sentence of life
imprisonment. The second appellant was convicted
on kidnapping and
rape of the complainant and sentenced to life imprisonment for rape
with the sentence on kidnapping ordered to
run concurrently with the
sentence of life imprisonment.
[4]
It is noteworthy at this stage to mention that the first appellant
pleaded not guilty to the charges and tendered admissions
that he had
consensual sexual intercourse with the complainant. The second
appellant did not tender any plea explanation but denied
having raped
the complainant. Further, I propose to deal with the charge and
conviction of rape and the rest will follow from that
point.
[5]
It is apparent from the record that on the 4
th
of March 2007 at about 00:00 the complainant left the Broadway Pub in
Bez Valley where she was drinking with her friends. On her
way home
she was accosted by the first appellant and his male companion. The
first appellant hit her with an open hand, strangled
her and demanded
that she give him her cell phone and money. The first appellant’s
male companion started to search her trousers
and found her house
keys. She was then dragged by the first appellant and taken to her
house where the first appellant ordered
its male companion to take
her Sansui DVD, CDs, speakers, handbag, cell phone, money, the
bankcards and CD player.
[6]
The first appellant then dragged her to a room in the basement of
another house where she found the second appellant with the
person
who was charged as accused number two. The male companion of the
first appellant then placed the items they took from her
house at the
door of the basement room and left.
The
first appellant through her on the floor and took off her trousers
and underwear. She started screaming as he ordered her to
open her
legs wide. He then strangled her and threatened to kill her if she
continued to scream. He then forcefully inserted his
penis without a
condom in her vagina, raped her until he ejaculated. Then it was the
turn of the person who stood trial as accused
number two, who also
inserted his penis without a condom into her vagina, raping her until
he ejaculated. Once the second person
was finished, the second
appellant said he was going to use a condom and proceeded to insert
his penis in her vagina until he ejaculated.
Thereafter, she was
ordered to lay on the bed with all three men who had just raped her
still half naked without her trousers and
underwear.
[7]
The first appellant then left the room with the bag that had the
items taken from her house only leaving the handbag of the
complainant behind. On his return, the first appellant ordered her to
bend down and inserted his penis into her vagina from behind
and kept
on threating to kill her as she kept on crying and screaming. The man
who stood trial as accused number two and the second
appellant then
left the room leaving the first appellant with the complainant. The
first appellant fell asleep on the bed –
thus the complainant
got an opportunity to escape and went straight to report the incident
at the police station. The police accompanied
her to this basement
room where they found the first appellant and arrested him. She only
knew the first appellant by sight as
she has seen him passing in
front of her house and it was the first time she saw the second
appellant. She testified further that
there was sufficient light at
the basement – hence she was able to clearly see and identify
the person who stood trial as
accused number two and the second
appellant.
[8]
Dr Lembethe (Lembethe) who examined the complainant on the day
testified that the complainants’ clothes were dirty and
soiled.
She had injuries on her neck and she appeared to be worried and
tired. The complainant had multiple laceration on 5 and
7 0’clock
which is the bottom of her vagina and from this examination he came
to the conclusion that there was evidence of
forceful vaginal
penetration which is inconsistent with consensual sexual intercourse.
The neck injuries were consistent with strangulation.
The complainant
informed him that she was raped by three men and one of them used a
condom. He collected semen from the volt of
the vagina and sent it
for forensic testing.
[9]
Constable Ramatsobane Felistas Mapeka (Mapeka) testified that the
complainant made a report to her, at about 13H00 on the 4
th
of March 2007, about having been raped by three men that day. She
then requested assistance from her colleagues and went to the
basement room where the alleged rape took place. On their arrival at
this basement room they found two men and she arrested the
first
appellant as he responded to his name as given by the complainant.
The complainant did not express herself properly –
she seemed
to have been strangled as her voice was hoarse and her words could
not come out clearly and properly.
[10]
Inspector Gladys Papo (Papo) testified that on the 11
th
of March 2007 at about 18h00 she was at the holding cells at the
police station when she was called by the person who stood trial
as
accused number two in this case. He informed her that he had
seen his friend, the second appellant, who was his accomplice
passing
by whilst he is in custody. He said his friend is Selamusa Sibiya.
She called Selamusa who respondent and accused number
two identified
him as the person he was with at the time of the incident. The second
appellant denied knowing accused number two,
however she arrested
him.
[11]
In summary the version of the first appellant was that he has a love
relationship with the complainant who on the day in question
was
upset since she found her boyfriend, who is also the father of her
child, with whom she is living with another woman. The complainant
requested to spend the night with him and since he could not take the
complainant to his place, he asked accused number two to
accommodate
them for the night. He met the complainant on that day when he left
Tony’s Tavern with accused number two and
was on the way to the
Broadway Pub. He drank beer together with the complainant before they
went to accused number two’s
house where they had sexual
intercourse before accused number two joined them. The complainant
requested him and accused number
two to escort her to her house to
fetch her child and that the first appellant and accused number two
must beat up her boyfriend
if he is in the house. However, since they
were young and drunk at the time, and they knew that the
complainant’s boyfriend
was heavily built, they summoned the
help of the second appellant.
[12]
On approaching the residence of the complainant, she ordered them to
wait outside since her boyfriend was not in the house
as his vehicle
was not in the garage. She went into the house and came back with a
bag full of her belongings but not with the
child. They went back to
the house of accused number two where they gave the contents of the
bag to one Bongani to go and sell,
for the complainant wanted money
to hire a vehicle so that she could take her belongings from her
house together with her child.
When Bongani did not come back, the
complainant became angry. He was surprised to see the complainant
coming to the room with the
police and he was arrested. When he asked
the complainant when he raped her, she responded by saying that it
would have been better
if it was him and not his friends.
[13]
The second appellant’s version is that he was called by accused
number two to accompany them to Bez Valley since it is
known to be
dangerous at night especially when the first appellant was in the
company of a woman. He accompanied them and when
they came back to
accused number two’s house, he left them. He did not rape the
complainant and he was seeing her for the
first time that day.
[14]
It is trite law that the burden is on the State to prove the guilt of
the accused beyond reasonable doubt. If the accused’s
version
is reasonably possibly true in substance the court must decide the
matter on the acceptance of that version and acquit
the accused.
[15]
In
S
v Jackson
1998 (1) SACR 470
(SCA) at 476
the court stated as follows:
“
Burden is
on the State to prove the guilt of an accused beyond reasonable
doubt, no more and no less. The evidence in a particular
case may
call for a cautionary approach, but that is a far cry from the
application of a general cautionary rule.”
[16]
In
Shackell v S
2001 (4) ALL SA 279
(SCA)
Brand AJA (as he
then was) stated the following:
“
A Court
does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is
reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable;
it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot reasonably
possibly be true.”
[17]
It is trite that a Court may convict an accused person of any offence
on the single evidence of any competent witness. However,
the Court
need to treat that evidence with caution. The evidence must be
credible and reliable and be supported by other evidence
or facts. In
considering the evidence, the Court must not take a compartmentalise
approach but to consider the evidence in its
totality.
[18]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides as
follows:
“
Conviction
may follow on the evidence of single witness:
An accused may be
convicted of any offence on the single evidence of any competent
witness”.
[19]
In the case of
S v Van der Mayden
1999 (1) SACR 450
(WLD)
this
Court (as it was then) stated the following:
“
What must
be borne in mind, however, is that the 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 only possibly
false or unreliable; but none of it may simply be
ignored.”
[20]
I do not agree with the contentions of counsel for the appellants
that the Court a quo was wrong in its findings that the evidence
of
the complainant was credible and reliable. The complainant testified
that she made a statement to the police almost immediately
after the
incident and she was hurting, distressed and confused at the time. In
my view, nothing turns on whether she said two
or three people
accosted her at the corner of the street that night. My understanding
of the testimony of the appellants is that
they, together with the
person who stood trial with them as accused number two, spent some
time that evening with the complainant.
It is my respectful view
therefore that the identity of the appellants does not arise in this
case for they both place themselves
at the scene of the crime.
Moreover, the second appellant was pointed out to the police by
accused number two when he walked pass
the police station and the
evidence of Papo in this regard stands uncontroverted.
[21]
I am unable to disagree with counsel for the respondent that the
complainant in this case cannot be regarded as single witness
because
her evidence is supported by the facts and other witnesses. The
evidence of Dr Lembethe remained unchallenged that the
complainant
had injuries on her neck which were consistent with strangulation and
that her clothes were dirty. Nor was the whole
medical report by Dr
Lembethe challenged as it stated that the complainant sustained
multiple perennial and fossa lacerations at
the bottom part of her
vagina. He concluded that this was consisted with forced penetration
of the complainant. The issue of strangulation
was also corroborated
by the evidence of Mapeka who testified that the complainant spoke
with a hoarse and unclear voice when she
made the report to her. She
also testified that her clothes were dirty.
[22]
It is my respectful view that the Court a quo cannot be faulted in
not accepting the evidence of the appellants or in finding
that it
was probably false and was unreliable. It is incomprehensible that
the second appellant would be woken up by accused number
two at 4H00
in the morning and join the rest of the people in accused number
two’s house without even asking what the problem
was. When
confronted on this aspect, he adjusted his version to say he was told
to accompany them because it was dangerous to walk
to Bez Valley at
night especially in the company of a woman. However, he did not know
this woman and he could not justify why it
was urgent at the time
instead of waiting until morning or day break. Further, the
uncontroverted evidence of Papo is that the
second appellant denied
that he knows accused number two when he pointed him out to her as a
person he was with on the day of the
commission of the crime.
[23]
It is baffling that the first appellant would have sexual intercourse
twice with the complainant on the day but never realised
or observed
the injuries on her neck and that her clothes were soiled and or
dirty. Similarly, the second appellant, who according
to his evidence
joined in later, did not see or observe anything wrong with the
complainant. I hold the view therefore that the
appellants’
version of events is contrived and convoluted to suggest that they
were there to assist a hurt and distressed
complainant. According to
the first appellant, it is the complainant who wanted to drink so
much for her troubles that she would
ask strangers to buy her alcohol
and or to borrow her money to buy more alcohol. This same person made
a daring escape from her
captivity leaving her handbag behind and
dashed straight to the police station to report her ordeal. But this
is the person the
first appellant alleges to be having a love
relationship with.
[24]
Further, it is the complainant who wanted the appellants to accompany
her to her house to fetch her baby, assault her boyfriend
and take
his car. Instead she comes out without her child but some of her
house hold belongings and offers them for sale to secure
money to
hire a vehicle to take her child and herself to the Eastern Cape.
However, none of them is bothered about that including
the second
appellant who came there to try and settle the dispute between the
complainant and her boyfriend amicably and to beat
him up if he
became violent. It is on record that the complainant socialised and
drank with her friends that night and she was
on her way home, having
left her friends at the tavern, when she was confronted by the first
appellant and his cohort. The appellants
concocted the reason for the
complainant to lay charges against them as because a Bongani who was
engaged by the first appellant
to sell her belongings failed to
return with the money or the items belonging to the complainant –
hence she was angry and
upset with that.
[25]
It is my considered view therefore that the Court a quo did consider
the whole conspectus of the evidence before it and correctly
found
that the State has proved its case against the appellants beyond
reasonable doubt. The Court a quo correctly found that the
first
appellant assaulted the complainant, robbed her of her belongings and
took her and held her against her will at the house
of accused number
two and raped her more than once. Further, the Court a quo correctly
found that the second appellant held the
complainant at the house of
accused number two against her will and raped her.
[26]
Further it is settled law that an appellate court should not
interfere with the conclusions on primary facts of the lower court,
unless satisfied that they are plainly wrong. Put differently, the
Court of Appeal would only interfere, in exceptional and very
limited
circumstances, with the findings of facts of the lower court if it is
satisfied that the decision could not be reasonably
explained or
justified. The irresistible conclusion is that there is nothing
exceptional in this case to warrant this Court to
interfere with the
findings of the Court a quo.
[27]
In
S v Francis
1991 (1) SACR 198
(A)
which was quoted with
approval in the case of
Maphana v S (174/2017)
[2018] ZASCA 8
(1
MARCH 2018)
the court stated the following:
“
The
court’s powers to interfere on appeal with the findings of fact
are limited. Accused No 5’s complaint is that the
trial court
failed to evaluate D’s evidence properly. It is not suggested
that the court misdirected itself in any respect.
In the absence of
misdirection, the trial court’s conclusion, including its
acceptance of D’s evidence, is presumed
correct. In order to
succeed on appeal, accused No 5 must therefore convince us on
adequate grounds that the trial court was wrong
in accepting D’s
evidence – a reasonable doubt will not suffice to justify
interference with its findings. Bearing
in mind the advantage which a
trial court has of seeing, hearing and appraising a witness, it is
only in exceptional cases that
this court will be entitled to
interfere with a trial court’s evaluation of oral testimony.”
[28]
It is trite that sentencing is pre-eminently the domain of the trial
Court. The Court of appeal may only interfere with the
sentence
imposed by the trial court if it is of the view that the trial Court
did not exercise its discretion judiciously and correctly.
Put
differently, if the Appeal Court is of the view that the sentence
imposed is disturbingly inappropriate.
[29]
In the case of
S
v MALGAS
2001 (1) SACR 496
(SCA)
the Supreme Court of Appeal stated the following:
“
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.”
[30]
It is on record that the appellants were charged of the crime of rape
read with the provisions of
section 51(1)
of the
Criminal Law
Amendment Act, 105 of 1997
which the Legislature promulgated to
provide for minimum sentences for certain crimes, unless it is
demonstrated that substantial
and compelling circumstances exist
which obliges the Court to deviate therefrom. Such substantial and
compelling circumstances
should be considered including the usual
triad being considered in the imposition of sentence.
[31]
The first appellant was 26 years old and had attended school up to
grade 11. He was employed by Gearhouse and had a 3 year
old son who
was living with its mother. The second appellant was 36 years old and
had attended school up to grade 5. He was unemployed
with 2 children
aged 9 and 14 years old. It is clear from the probation officer’s
report that both appellants showed no remorse
for what they have done
and that a custodial sentence is the only reasonable sentence in this
case.
[32]
It is on record that the complainant, the victim, had a two year old
child at the time of the incident. She was living with
the father of
her child. It appears from the probation officer’s report that
she feels her self-worth has been taken away
from her. She is scared
of walking alone on the streets or to be at home alone. This incident
has caused serious problems in her
relationship with her boyfriend.
Every time they are to have sexual intercourse with her boyfriend it
reminds her of this ordeal.
[33]
Rape is by its nature intrusive and humiliating to the victim. It
cannot be categorised into certain degrees, it is just a
despicable
and barbaric act perpetrated by cowards on the most vulnerable of
mankind, the defenceless women. The complainant was
kept against her
will, half naked without her pants and underwear in the presence of
three men. This is humiliation to a woman
of unimaginable proportion.
[34]
In
Tshabalala and Another v S ZACC 48
2020 (3) BCLR 307
(CC) (11
DECEMBER 2019)
the court stated the following:
“
Rape is a
very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy, and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilisation. Women in this country are
entitled to the protection of these rights. They have
a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work,
and to enjoy the peace
and tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes
the quality and
enjoyment of their lives”.
[35]
The Courts have been enjoined in a number of decisions not to shy
away from imposing appropriate and harsh sentences where
justice so
demands. It is my considered view therefore that the aggravating
circumstances far outweigh the personal circumstances
of the
appellant in this case. Therefore, I conclude that the Court a quo
was correct in its finding that there are no substantial
and
compelling circumstances to justify it deviating from imposing the
sentence as prescribed by the CLAA. Therefore, I hold the
view that
the appeal against both conviction and sentence falls to be
dismissed.
[36]
In the circumstances, I make the following order:
The
appeal against both the conviction and sentence is dismissed.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
I
agree,
___________________
DIPPENENAAR
F
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 28
th
May 2020
Date
of Judgment: 4
th
June 2020
For
the Appellants: Adv. I B Mthembu
Instructed
by: Legal Aid South Africa
Tel:
011 870 1480
For
the Respondent: Adv. J G Wassermann
Instructed
by: Director of Public Prosecutions
Johannesburg
Tel: