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[2021] ZAGPJHC 66
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Madonsela v S (A 111/2020) [2021] ZAGPJHC 66 (20 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A 111/2020
DPP
REF: 2020/085
APPEAL NO:
14/2020
In
the matter between:
THE
STATE
In
the matter between:
MADONSELA,
GIFT SIPHO
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MOOSA
AJ
:
INTRODUCTION
[1]
This is an appeal against the two convictions of Rape and effective
sentence of life
imprisonment imposed upon the appellant on 06
February 2019, by the Regional Magistrate, Protea.
[2]
The appellant enjoyed legal representation during the trial and
sentencing proceedings,
and was convicted and sentenced on 06
February 2019, as follows:
a).
Count 1 – Rape (read with the provisions of section 51(1) of
Act 105 of 1977)
b).
Count 2 – Rape (read with the provisions of section 51(1) of
Act 105 of 1977)
Both
counts were taken together for the purposes of sentence and the
appellant was sentenced to life imprisonment.
[3]
Aggrieved with the convictions and sentence imposed, the appellant
lodged the present
appeal, notwithstanding the fact that he enjoyed
an automatic right to appeal due to the sentence of life
imprisonment.
AD
CONVICTION
[4]
The State called three witnesses to testify, being the complainant,
her mother and
the doctor. The complainant, who was nine years old at
the time of the incident, was a single witness regarding the
allegations
of rape against the appellant. The appellant testified in
his own defence.
[5]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of a
competent witness. Further, a court is entitled
to convict on the
evidence of a single witness if it is satisfied that the evidence of
the single witness is satisfactory in all
material respects.
[6]
It is trite that the cautionary rule does not apply automatically to
all sexual offences.
In
S v Jackson
1998 (1) SACR 470
(SCA)
Olivier JA held at 476 e - f as follows: “
In my view, the
cautionary rule in sexual assault cases is based on an irrational and
out-dated perception. It unjustly stereotypes
complainants in sexual
assault cases (overwhelmingly women) as particularly unreliable. In
our system of law, the burden is on
the State to prove the guilt of
an accused beyond reasonable doubt – no more and no less. The
evidence of a particular case
may call for a cautionary approach, but
that is a far cry from the application of a general cautionary rule.”
[7]
In
S v Sauls and Others
1981 (3) SACR 172
(A)
at 173 it was
held as follows: “
If a complainant was a single witness the
further enquiry is whether she was credible. The evidence of a single
witness must be
clear and satisfactory in every material respect.”
[8]
I am reminded of the comments of Nestadt JA in
S v Mkohle
1990 (1)
SACR 95
(A)
at 98 f – g wherein he held that:
“
Contradictions per se do not lead to the rejection of a
witness’ evidence… They may simply be indicative of an
error
(S v Oosthuizen
1982 (3) SA 571
(T) quoting from 576 G-H): And
it is stated that not every error made by a witness affects his
credibility; in each case the trier
of fact has to take into account
such matters as the nature of the contradictions, their number and
importance, and their bearing
on other parts of the witness’
evidence.”
[9]
The court a quo found that it had been proved beyond a reasonable
doubt that the appellant
had raped the complainant. I pause to
mention that the complainant’s mother corroborated her first
report of the incidents
of rape. In addition thereto, the
complainant’s evidence is further supported by the findings of
the doctor that examined
her.
[10]
On the other hand the appellant contends that the court a quo erred
in finding that it had been
proved beyond reasonable doubt that he
raped the complainant. Further, he contended that the complainant had
a boyfriend and must
have been sexually active.
[11]
The complainant testified that the appellant who was related to her
and residing at their residence
asked to sleep with him and gave her
some coins. She described how the appellant took her from the couch
where she was sleeping,
to the bedroom. She further stated that the
appellant inserted his penis into her vagina. She did not scream as
he had covered
her mouth, and the appellant had warned her not to
tell anyone.
[12]
She further testified that after a few days the appellant repeated
what he had done previously
to her. He picked her up from the couch
and took her to the bedroom where he raped her.
[13]
The complainant subsequently reported the matter to her mother in the
presence of the appellant.
[1]
To this end, it is clear that the complainant spontaneously made such
report to her mother without being forced, and in the presence
of the
appellant.
[14]
It is clear from the evidence before the court a quo that there were
no material contradictions
between the evidence of the complainant
and her mother. Further, the evidence of the doctor regarding her
examination of the complainant
and her findings that there was more
than one instance of penetration was not in dispute.
[15]
On the other hand, from a careful reading of the documents of record
it is clear that save for
the ipse dixit of the appellant that the
complainant was involved in a sexual relationship; there is
absolutely not an iota of
evidence to support such spurious
allegation. It is clear in my mind that the court a quo was correct
in rejecting the appellant’s
version as not being reasonably
possibly true.
[16]
The appellant testified that his relationship with the complainant
was good, save for the occasions
when he would reprimand her, or
report her for misbehavior. From the evidence before the court a quo,
I find it highly improbable
that both the complainant would falsely
implicate the appellant. Further, that the complainant was raped by
another person and
then falsely implicated the appellant.
[17]
In the circumstances, having duly considered the totality of the
evidence and am satisfied that
the court a quo was correct in
accepting the evidence of the complainant, finding that it was
satisfactory in all material respects
and rejecting the evidence of
the appellant.
[18]
Accordingly, in my view the convictions of rape do not require any
further scrutiny.
AD
SENTENCE
[19]
It is trite that the circumstances in which a court of appeal may
interfere in sentencing discretion
of a lower court are limited.
There must be either a material misdirection by the trial court or
the disparity between the sentence
of the trial court and the
sentence of the appellate court would have imposed, had it been the
trial court is so marked, that it
can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.
[2]
[20]
(a) In
S v
Anderson
1964 (3) SA 494
(A) 495 D-E
Rumpff JA (as he then was) stated:
"Over the years our Courts of appeal have attempted to set
out various principles by which they seek to be guided when they
are
asked to alter a sentence imposed by the trial court. These include
the following: the sentence will not be altered unless
it is held
that no reasonable man ought to have imposed such a sentence, or that
the sentence is out of all proportion to the gravity
or magnitude of
the offence, or that the sentence induces a sense of shock or
outrage, or that the sentence is grossly excessive
or inadequate, or
that there was an improper exercise of his discretion by the trial
Judge, or that the interests of justice require
it."
(b)
In
S v Rabie
1975 (4) SA 855
(A
) at 857 D – E the
following was stated: “In any appeal against sentence, whether
imposed by a magistrate or a Judge,
the court hearing the appeal -
(a)
should be guided by the principle that punishment is pre-eminently a
matter for the discretion
of the trial court and;
(b)
should be careful not to erode such discretion: hence the further
principle that the sentence
should only be altered if the discretion
has not been ‘judicially and properly exercised’.
The test under (b) is whether the
sentence is vitiated by irregularity or misdirection or is
disturbingly inappropriate”.
(c)
In
S v Kgosimore
1999 (2) SACR 238
SCA
it was held that the
approach of a Court of appeal on sentence should be the following:
“It is trite law that sentence is
a matter for the discretion
of the court burdened with the task of imposing the sentence. Various
tests have been formulated as
to when a court of appeal may
interfere. These include, whether the reasoning of the trial court is
vitiated by misdirection or
whether the sentence imposed can be said
to be startlingly inappropriate or to induce a sense of shock or
whether there is a striking
disparity between the sentence imposed
and the sentence the court of appeal would have imposed. All these
formulations, however,
are aimed at determining the same thing: viz.
whether there was a proper and reasonable exercise of the discretion
bestowed upon
the court imposing sentence. In the ultimate analysis
this is the true enquiry. (Cf
S v Pieters
1987 (3) SA 717
(A) at
727 G – I
). Either the discretion was properly and
reasonable exercised or it was not. If it was, a court of appeal has
no power to interfere;
if it was not, it is free to do so”.
(d)
In
S v Malgas
2001 (1) SACR 469
(SCA) at 478 D – G
the
Court applied a broadened scope for the interference and held that:
“However, even in the absence of material misdirection,
an
appellate court may yet be justified in interfering with the sentence
imposed by the trial court. It may do so when the disparity
between
the sentence of the trial court and the sentence which the appellate
court would have imposed had it been the trial court
is so marked
that it can properly be described as “shocking”,
“startling” or disturbingly inappropriate”.
It must
be emphasised that in the latter situation the appellate court is not
at large in the sense in which it is at large in
the former. In the
latter situation it may not substitute the sentence which it thinks
appropriate merely because it does not accord
with the sentence
imposed by the trial court or because it prefers it to that sentence.
It may do so only where the difference
is so substantial that it
attracts epithets of the kind I have mentioned”.
[21]
Having due regard to the aforementioned principles set out by the
case authority it is clear
that the Court of Appeal has a very
limited scope to interfere with the discretion of the trial court.
The Court of Appeal is in
any event able to interfere with the trial
Court on sentence in respect of a finding as to substantial and
compelling circumstances
even in the absence of material misdirection
or a failure of the exercise of discretion.
[3]
[22]
The appellant was convicted of two counts of rape, under
circumstances were it attracts a prescribed
minimum sentence of life
imprisonment in terms of
Section 51(1)
of the
Criminal Law Amendment
Act 51 of 1997
, unless the court finds substantial and compelling
circumstances present which will cause it to impose a lesser
sentence.
[23]
For the purpose of the appeal, it is necessary to address two main
issues being firstly whether
or not, having regard to the minimum
sentencing legislation, there were substantial and compelling
circumstances which entitled
the court a quo to impose a
discretionary sentence of less than life imprisonment and secondly,
whether the sentenced imposed was
appropriate and in accordance with
justice and equity. Put differently, was it a just sentence that was
imposed upon the appellant.
[24]
The complainant testified that the appellant was drunk when he asked
her to sleep with him the
first time. However, the evidence is
unclear as to the state of sobriety of the appellant on the second
occasion when he raped
the complainant. To this end, there is no
mention of his state of sobriety during the second occasion. However,
from the totality
of the evidence, as well as the overall ordinary
conduct of the appellant as described by the complainant and her
mother, I am
inclined to accept that the appellant had a problem in
predominantly remaining sober whilst at home.
I am further impelled not to make
much of the state of sobriety of the appellant on the second
occasion, as the court
a quo
took both counts as one when
imposing sentence, and I shall accordingly treat the two counts as
one for the purposes of determination
in this appeal.
[25]
I have duly taken into account the fact that the appellant
was
46 (forty six) years old when sentenced, married with three children.
He has a Grade 5 education and was unemployed at the time
of his
arrest. He had an unrelated previous conviction that was more than 20
(twenty) years ago. Lastly, the appellant spent a
period of just over
18 (eighteen) months in custody pending his trial.
[26]
It is trite that no single factor can be substantial and compelling
circumstances, and the correct
approach is to look at all the factors
cumulatively. I am mindful of the fact that alcohol on its own cannot
interfere with a prescribed
minimum sentence. However, the
consumption of alcohol is relevant in the consideration of a sentence
since it can affect an accused’s
moral blameworthiness. To this
end, I am satisfied that the court a quo correctly analysed and
applied the remaining factors relevant
to aggravation and mitigation
(excluding the intoxication issue), as well as the appellant’s
personal circumstances.
[27]
In
Fowlie v Rex
1906 TS 505
at 511
Wessels J stated as
follows: “
It
would be absurd to say that if a man in his cold, sober senses did
the act he should be punished with no greater severity than
the man
who did it whilst under the influence of liquor. That there should be
a difference in the degree of punishment has been
recognised in
almost every system of jurisprudence
.
In the Digest, (48, 19,
11), we find the distinctions drawn between the punishment of a sober
man and of a man who had been drinking;
and Matthaeus says: Ebrius
aliquo mitius puniri debet quia non proposito sed impetu delinquit.
Although a man may not be so drunk
as to be excused the commission of
a crime requiring special intent, yet he may have been so affected
with liquor that his punishment
should be softened.”
[28]
In
S v Babada
1964 (1) SA 26
(A) 28 C - D
the Court held as
follows: “ ‘
n Verhoorhof wat homself regtens
gedwonge ag om sekere feite van oorweging uit te sluit, wat regtens
nie uitgesluit behoort te word
nie, began ‘n mistasting.
So-ook, wat invloed van drank betref, wanneer ‘n Verhoorhof by
die uitoefening van sy funksie
sy bevoegdheid beperk deur ‘n
assumpsie dat regtens ‘n bepaalde graad van beskonkenheid
vereis word alvorens die beskokenheid
as versagtende omstandigheid
kan dien, begaan so ‘n hof ‘n mistasting omdat regtens
geen bepaalde grad vasgestel is
nie.”
[29]
In
S v Ndhlovu (2)
1965 (4) SA 692
(A) 695 C – D
the
following was stated: “
Intoxication is one of humanity’s
age-old frailties, which may, depending on the circumstances, educe
the moral blameworthiness
of a crime, and may even evoke a touch of
compassion through the perceptive understanding that man, seeking
solace or pleasure
in liquor, may easily over-indulge and thereby do
the things which sober he would not do.”
[30]
I have carefully considered the record of proceedings and am
satisfied that the court a quo did
not properly take into account all
the relevant factors that needed to be taken into account when
determining whether there were
substantial and compelling
circumstances present; and which would cause it to deviate in the
imposition of the prescribed minimum
sentence.
To this end, it is clear from the
record of proceedings the court a quo did not place sufficient
emphasis upon the fact that the
consumption of alcohol on the part of
the appellant played a role in his conduct.
[31]
I am full well aware that this was an abhorrent crime upon a
nine-year-old child and which will have
devastating lifelong
psychological consequences. In addition thereto, the complainant is
related to the appellant and he grossly
abused his position of trust.
He showed no remorse for his heinous actions whatsoever.
[32]
However to the above must now be added the issue of intoxication. All
the factors including the
traditional and otherwise, must be assessed
both to establish whether there are, or are not, substantial and
compelling circumstances,
as also whether life imprisonment is in any
event a fair and just sentence.
[4]
[33]
I am mindful of the fact that the appellant’s state of
intoxication does not detract from
the moral reprehensibility of the
offence but is such as requiring to be taken into account (at the
sentencing stage) as relevant
to moral blameworthiness and thus also
relevant to both substantial and compelling circumstances, and
sentence.
[34]
Accordingly in my view, taken cumulatively, these factors when
including intoxication, viewed
correctly, establish the presence of
substantial and compelling circumstances, entitling this Court to
intervene having due regard
to the case law and for the reasons set
out. Further, this is also such as to establish life imprisonment to
be other than a just
and equitable sentence.
[35]
It is trite that once substantial circumstances have been found to
exist that all the relevant
factors must be considered cumulatively
to establish an appropriate, just and equitable sentence.
[36]
Having considered all the evidence that was led in mitigation of
sentence, it is clear that there
are no substantial mitigating
factors of consequence other than the reduction of moral
blameworthiness due to the appellant’s
state of intoxication.
[37]
As previously stated, it is clear that rape and more especially of a
child is extremely serious
and abhorrent, with devastating effects
and consequences for the complainant, and which warrants a heavy
sentence of 25 (twenty
five) years imprisonment, taking all relevant
mitigating and aggravating factors into account.
[38]
In concluding I am reminded of the comments made by Harms J in
S v Mhlakaza
1997 (2) All SA 185
(A)
wherein he held as follows: “
The
object of sentencing is not to satisfy public opinion but to serve
the public interest…. A sentencing policy that caters
predominantly or exclusively for public opinion is inherently
flawed
”.
[39]
In the result, I would make the following order:
[a].
The appeal against sentence is upheld, the conviction of the
appellant is confirmed, and
the sentence is set-aside to the extent
as set out below.
[b].
The sentence of life imprisonment is replaced with a sentence of 25
(twenty five) years
imprisonment.
[c]
The sentence is antedated to 06 February 2019, being the date upon
which the Court
a quo imposed the sentence.
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
I
agree and it is so ordered:
T
P MUDAU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for Appellant:
Mr AJ Greyling
Instructed
by:
Legal Aid South Africa
Johannesburg
Tel:
0118701480
Mobile:
0824401747
riaang@legal-aid.co.za
Counsel
for Respondent:
Mr R Ndou
Instructed
by:
Director of Public Prosecutions
Johannesburg
Tel:
0112204102
RNdou@npa.gov.za
Date
of Hearing:
22 March 2021
Date
of Judgment:
20 May 2021
[1]
Record
- page 51, lines 8 - 21
[2]
S
v Malgas
2001 (1) SACR 469
(SCA) at 478 d - g
[3]
S
v Tafeni
2016 (2) SACR 720
at 723
[4]
Mpongoshe
v The State (ECG) CA 24/2019, line 43, judgment delivered on 11
February 2020