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[2010] ZAWCHC 469
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Phondoyi and Another v S (A236/2010) [2010] ZAWCHC 469 (10 September 2010)
IN
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER: A236/2010
DATE:
10 SEPTEMBER 2010
In
the matter between:
MXOLISI
PHONDOYI
…..............................................................
1
st
Appellant
THEMBINKOSI
PHONDOYI
…...................................................
2
nd
Appellant
And
THE
STATE
…...............................................................................
Respondent
JUD G M E N T
FOURIE,
J
:
The
appellants, who are brothers, appeared in the Regional Court at
Parow on charges of raping two 14 year old girls. The State
alleges
that first appellant had raped the complainant, named Thandiwe,
twice and that second appellant had raped her friend,
one Babalwa,
on three occasions. Both the appellants pleaded not guilty, alleging
that the intercourse with the two complainants
was consensual. After
hearing evidence, the regional magistrate found both the accused
guilty as charged and sentenced each of
them to 17 years
imprisonment. They now appeal, with the leave of the court
a
quo,
against
their convictions and sentences.
At the outset, I should
draw attention to the fact that the regional magistrate granted
appellants leave to appeal on the basis
that '"n appel moontlik
argumenteerbaar is". This is not the test for the granting of
leave to appeal. It is trite
that, as a normal rule, leave to appeal
should only be granted in circumstances where the presiding officer
is of the view that
there is a reasonable prospect of success on
appeal.
The incidents which gave
rise to the charges against the appellants took place on 23 December
2007 at Delft, when the two complainants
visited appellants' sister,
one Bulelwa. The girls partook of intoxicating liquor and were
joined by the appellants, as well
as one Andile, the boyfriend of
Bulelwa. Eventually first appellant and Thandiwe remained behind at
his (first appellant's) residence,
whilst second appellant and
Babalwa ended up at a nearby residence. Both the appellants admit
that they then had intercourse
with the complainants, in fact first
appellant admits that he had intercourse with Thandiwe on two
occasions, whilst second appellant
admits having had intercourse
with Babalwa on three occasions. The crucial issue to be decided is
whether the intercourse took
place with consent or not.
In a thorough judgment,
the regional magistrate carefully analysed the relevant evidence and
concluded that the two complainants
were satisfactory witnesses. She
took into account the fact that both complainants were only 14 years
old at the time of the
incident and 15 years when they testified.
She accordingly approached their evidence with the necessary caution
that it deserves.
She found that Thandiwe was a particularly
reliable witness, more so than the more outgoing Babalwa. The
magistrate also dealt
with certain differences in the evidence of
the two complainants, but correctly, in my view, concluded that such
differences
are not material.
The two appellants did
not impress the magistrate as witnesses. She pointed to various
discrepancies in their versions and rejected
both versions as not
only highly improbable, but clearly false. The main thrust of the
submissions on behalf of appellants in
the heads of argument in this
court, is that their versions should be accepted as reasonably
possibly true, while the versions
of the complainants should be
rejected as improbable and accordingly false. I do not agree. On the
contrary, I fully concur in
the finding of the magistrate, that the
versions of the appellants are highly improbable.
At the time of the
incident the two appellants were much older than the complainants
and both involved in serious relationships
with other women. At that
time the complainants did not even know the appellants and the
version of the appellants that both
the complainants virtually
pounced upon them and started kissing them and thereafter consented
to intercourse on several occasions,
seems highly unlikely. In fact,
the evidence shows that Thandiwe, on more than one occasion, told
first appellant that he was
too old for her. It should be borne in
mind that Thandiwe was a virgin at the time of the incident and, as
found by the magistrate,
she is a shy and retiring young girl, whom
one would certainly not expect to have acted in this manner.
Babalwa, on the other
hand, was sexually active, but she also did
not know the second appellant and it seems highly unlikely that she
would immediately
fall in love with him and then have sex with him
on three occasions that night.
The
conduct of the complainants the next morning is also totally foreign
to what one would expect from them, had they been involved
in
consensual sex with the appellants. On the very first occasion that
they met up the next morning, they told each other that
they had
been raped. Thereafter they informed their friend, Zindli, what had
happened to them. Why, on the version of the appellants,
did the
consenting complainants the next morning label themselves as rape
victims? As submitted by Mr
Theron
on
behalf of the State, if they did consent and wished to keep it a
secret, there was no reason at all to tell Zindli and they
would
certainly have acted as if nothing had happened.
The failure of the
complainants to tell their mothers what had happened to them,
cannot, in my view, be regarded as a factor impinging
negatively
upon their credibility. It is clear from the evidence that Babalwa
was scared to tell her mother, as she had been
forbidden to be on
the streets at night. Thandiwe testified that she wanted to tell her
mother, but that Babalwa begged her not
to do it.
Turning to appellants'
version, there are, as pointed out by the magistrate, various
discrepancies between the evidence of the
defence witnesses and what
was put to the State witnesses in cross-examination. These are
material discrepancies, particularly
in regard to the wayward
conduct allegedly displayed by Thandiwe and Babalwa. As mentioned
previously, such conduct on their
part would appear to be totally
out of character and the discrepancies in this regard, as pointed
out by the magistrate, further
strengthens the conclusion that the
appellants and their witnesses rather attempted to cover up improper
conduct on the part
of the appellants.
I am satisfied that on a
conspectus of the evidence as a whole, the magistrate correctly
concluded that the version of appellants
and their witnesses is to
be rejected as false. Put differently, I am satisfied that the
magistrate did not misdirect herself
in any respect in her approach
to, and in evaluating, the evidence as a whole. I, therefore,
conclude that the appeals against
conviction fall to be dismissed.
This brings me to the
sentences imposed by the magistrate. It is trite that a court of
appeal will only interfere with the exercising
of a sentencing
discretion by a trial court if such discretion was not exercised
judicially, or in circumstances where the sentence
imposed differs
substantially from the sentence which the court of appeal would have
imposed, had it been the court of first
instance. In view thereof
that the complainants were only 14 years old and had each been raped
on more than one occasion by the
respective appellants, the
provisions of Act 105 of 1997 apply. The Act provides for a sentence
of life imprisonment in such
event, unless the court finds that
there are substantial and compelling circumstances justifying a
lesser sentence.
The magistrate carefully
considered all the relevant mitigating and aggravating circumstances
and concluded that substantial and
compelling circumstances are
present justifying a lesser than the prescribed sentence. There is,
in my view, no basis for a finding
that she misdirected herself in
any respect in imposing a sentence of 17 years imprisonment for each
of the appellants. In fact,
this sentence does not differ
substantially from the sentence which I would have imposed had I
been the court of first instance.
I accordingly conclude that the
appeals against sentence also fall to be dismissed.
In the result I propose
that the appeals of both the appellants be dismissed and that their
convictions and sentences be confirmed.
WEBSTER,
AJ
:
I agree.
WEBSTER,
AJ
FOURIE,
J
:
It is so ordered.
FOURIE,
J