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2021
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[2021] ZAKZDHC 28
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Yusuf and Others v S (AR271/20) [2021] ZAKZDHC 28 (14 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
Appeal
No: AR 271/20
IN
THE MATTER BETWEEN:
TUWA
AMIN
YUSUF FIRST
APPELLANT
ALIYAH
LALAJH SECOND
APPELLANT
KONDWENI
BANDA THIRD
APPELLANT
and
THE
STATE RESPONDENT
ORDER
1.
The
appeal against conviction in respect of the first count of kidnapping
and the second count of rape is dismissed in respect of
all the
appellants.
2.
The
appeal against sentence on the first count that is, the count of
kidnapping, succeeds to the extent that the sentence of fifteen
(15)
years' imprisonment is set aside and it is substituted with a
sentence of ten (10) years' imprisonment. This sentence is antedated
to 27 June 2018.
3.
The
appeal against sentence on the second count, the count of rape is
dismissed in respect of all the appellants.
4.
By
operation of the law, the sentence on count 1 is to run concurrently
with the sentence on count 2.
JUDGMENT
Hadebe
J (Radebe J concurring)
[1]
The
three appellants in this matter were convicted on 27 June 2018 by the
Durban Regional Court of count 1 - kidnapping, count 2
— rape,
in contravention of s3 of the Sexual Offences (and Related 5 Matters
Amendment Act) 32 of 2007. Subsequent to the
said conviction and on
the same day they were sentenced as follows:
On count 1 each appellant
was sentenced to fifteen (15) years' imprisonment.
On count 2 each appellant
was sentenced to undergo a term of life imprisonment.
[2]
Leave
to appeal against conviction and sentence on count 1,
kidnapping
was refused on 21 November 2018, however, granted on petition to the
Judge President of this Division on 22 October 2020.
The appeal
against conviction and sentence on the second count of rape is before
us in terms of
Section 309(1)(a)
of the
Criminal Procedure Act 51 of 1977
, [CPA].
[3]
All
three appellants are challenging their conviction on the basis that
the presiding officer misdirected herself in finding that
the state
had proved the case against the three appellants beyond reasonable
doubt. The further argument is that the presiding
officer erred in
relying on the evidence of the state witness because of the
improbabilities in the state’s case as well
as contradictions
between the state witnesses. It is further argued that the evidence
of the complainant should have been treated
with caution as she was a
single witness in so far as all the counts against the appellants are
concerned.
[4]
The
further argument on behalf of the appellants is that the appellants
had given a version that was reasonable and possible.
SENTENCE
[5]
With
regards to sentence the presiding officer is criticised for having
failed to attach sufficient weight to the traditional, mitigating
factors and that in the circumstances she failed to exercise her
sentencing discretion properly and judiciously. In the circumstances
it is argued that the sentence of life imprisonment (on the second
count) is shockingly inappropriate in the light of the fact
that the
complainant did not suffer any vicious injuries when the offences
against her were committed.
RESPONSE
BY RESPONDENT
[6]
In
its response, the respondent submits that the evidence of the
complainant was clear and satisfactory in every material respect,
and
that there are no improbabilities in the state’s case. The
argument in the respondent’s case is that the appellants’
version is not reasonably, possibly true and that it defies all
logic. In the circumstances it is argued on behalf of the respondent
that no misdirection can be found in the magistrate’s analysis
of the facts in this matter.
[7]
On
sentence the respondent cites the prevalence of this type of offences
in this country and that in this particular case, the complainant
was
brutalised by the three appellants in the worst possible way. The
further argument is that complainant was humiliated and that
her
whole life has been destroyed by the three appellants. In the
circumstances the submission on behalf of the respondent is that,
taking into consideration what the complainant was put through by the
appellants, a sentence of life imprisonment in the circumstances
cannot be said to be shockingly inappropriate.
FACTS
[8]
The
background facts in this matter are that the complainant was
kidnapped and locked up and kept captive as a sex slave by the
three
appellants for three days. They took turns in raping her continuously
in the three days. She was not offered any food, only
a little bit of
water to wash. When she finally managed to escape on the evening of
the third day, she produced identity kits to
the police, these were
based on her impressions of the three appellants having spent the
time she did under the watchful eye of
the appellants. The appellants
were arrested ten (10) days after the complainant had escaped from
where she had been locked up.
[9]
The
first appellant pleaded consensual sex with the complainant. He was
linked by DNA evidence. The second and third appellants
pleaded a
bare denial.
FINDINGS
[10]
In
her reasons for judgment the presiding officer found that:
10.1
from
the description of the complainant of her assailants it was
established that the appellants were not disputing their identity.
10.2 that from
her evidence, the complainant was able to identify her assailants and
also to see what was taking place
in the room where she was.
- She
warned herself of the fact that since the complainant was a single
witness in respect
of both counts the law dictated that she should
exercise caution in dealing with her evidence.
- She
found the complainant to have related her story in a coherent manner
and that nothing
suggested that she was making it up or was imagining
things, despite the fact that she was testifying about events that
had taken
place almost two years before her testimony in court.
- She
found that certain aspects of the complainant’s evidence, were
confirmed by
the evidence of the complainant’s grandmother.
- She
found the evidence of the three appellants to be improbable and
contradictory.
- She
found that the evidence of the defence witness did not take the case
of the (1
st
) appellant any further. She actually found
that she could not accept the version of the defence witness due to
discrepancies between
his and the version of the 1
st
appellant.
[11]
The
presiding officer eventually concluded that the version by the
defence was so improbable so as not so be reasonably possibly
true.
She accordingly rejected it. She accordingly found that the state had
proved its case beyond reasonable doubt and convicted
the three
appellants.
CONCLUSION
[12]
The
evidence in this matter suggests the perpetration of gruesome, cruel
treatment of the complainant by her captives over a long
period. She
was treated inhumanely, not offered food for over three days and was
deprived of her freedom against her will. She
was raped repeatedly by
three men, was ridiculed in the process, told to take a bath as she
was stinking. She was kept away from
her family, her grandmother in
this case. She was dealt with as a thing, the perpetrators, the
appellants before court would insert
their fingers in her vagina when
it suited them and also their penises as they pleased. She was
vulnerable in their hands and they
did as they pleased, she was not
in a position to protect the integrity of her body in the
circumstances. As if that was not enough,
she had to come to court,
be subjected to lengthy cross examination and to listen to the
mendacity of the three appellants who
fabricated and changed their
version at every turn. In my view, if any physical injury would have
resulted in all of this it would
have paled into insignificance
considering that the entire being of the complainant, the physical
being, the emotional being and
the spiritual being was completely
murdered and destroyed by the three appellants. To argue that she did
not suffer any injuries
in the face of what happened to her is
neither here nor there.
[13]
Presented
with the evidence that was led before her, the Regional Magistrate
had no other option but to return a verdict of guilty
against the
three appellants. To do otherwise would have entailed a failure and a
travesty of justice on her part. The evidence
was overwhelming,
notwithstanding the fact that the complainant was a single witness.
She was a consistent, coherent and very brave
young woman. “If
a trial judge does not misdirect himself on the facts or the law in
relation to the application of a cautionary
rule, but, instead,
demonstrably subjects the evidence to careful scrutiny a court of
appeal will not readily depart from his conclusions”
(
as
per
S v Leve
2011 (1) SACR 87
(ECG)
at
[8]
. A
consideration of the record in this matter shows that the presiding
officer went through the evidence with a fine comb and eventually
arrived at her findings. Her reasoning cannot be faulted. Neither do
I find any misdirection
in her finding all
the appellants guilty as charged. Accordingly, the appeal on
conviction in respect of all the appellants falls
to be dismissed.
[14]
The
appellants’ heads of argument do not necessarily deal with the
sentence on the first count of kidnapping. It seems the
concerns of
the appellants relate to the sentence of life imprisonment in respect
of the second count of rape. The offence of kidnapping
is ordinarily
a common law offence, however, where the provisions of the
Criminal
Law Amendment Act, 105 of 1997
were to be invoked then this offence
would fall under
Part IV
of Schedule II of the said act wherein a
first offender would upon conviction be sentenced to a period of not
less than 5 years.
The proviso to
s52(2)
empowers a regional court to
impose a maximum term of imprisonment that shall not exceed the
minimum term of imprisonment that
it must impose in terms of this
subsection by more than five years. The provisions of the
Criminal
Law Amendment Act were
not invoked in the case of the count of
kidnapping. The presiding officer seems to have relied on her
sentencing jurisdiction,
she sitting as a regional court. The
presiding officer considered that the offence of rape was perpetrated
by the appellants in
pursuance of a deliberate violation of the
complainant’s rights for their own perverted gratitude.
[15]
It
is clear that from the explanation of rights, there was no indication
that the appellants were prepared by way of being informed
that if
they were found guilty on the first count, the court would consider
imposing the maximum sentence that the jurisdiction
of the regional
court allows it to. In this regard, we are of the view that there was
a misdirection on the part of the presiding
officer in so far as the
sentencing on the count of kidnapping is concerned. Sitting as the
appeal court, we are at large to interfere
with this sentence and to
ameliorate it.
[16]
Dealing
with the sentence on the rape charge, the complainant was brutalised,
physically and emotionally. The pain was long and
sustained. The
complainant was a virgin. No evidence has been led to gainsay that.
She had left the comfort of her grandmother’s
house to go and
stay at a convent in a completely different province in Mpumalanga
because that was the life she had chosen for
herself. Those dreams
are shattered through no fault of hers. Her grandmother advised court
that the complainant has become a hermit,
she feels unclean, she is
on tablets, she had to go onto ARV’s by reason of the exposure
to HIV as no condom was used during
the rape on her.
[17]
In
her victim impact statement the complainant indicated that her
sleeping patterns had been altered, she had flashbacks. She’s
afraid of being alone. The blame syndrome has started, she feels she
has failed God for losing her virginity even though this was
a
situation she had no control over. She indicated she attempted
suicide a number of times. She feels unworthy, dirty and not good
enough. She has developed eating disorders. She finds life boring and
hopeless, she has no regard for the future. She says she
feels tired
of being in that dirty, unclean body. She is on a range of
medication, antidepressants, anxiety medication, sleeping
tablets and
she had to undergo psychiatric treatment and to see a psychologist
for at least once a month.
[18]
All
these are the results of the brutal rape that was perpetrated by the
appellants on this young, innocent girl. What the appellants
have
done is, they have abused the hospitality of this country. They have
offended against the people of this country. They have
to be punished
in terms of the applicable laws of this country. The courts must
express their indignation against the actions of
people who act like
the appellants. A strong message must be sent that our young girls
are not to be preyed on by sexual predators
like the appellants. Like
vultures they lay in waiting for this innocent girl and they pounced
on her. For reasons best known to
the appellants, when they came to
this country they decided to operate under pseudonyms. For seven
years, their “so called”
employer has known them by
completely different names. The same goes for the third appellant who
confirmed that he uses more than
one name whenever it suits him. This
act on the part of these appellants is very concerning to this court,
more so, because if
we accept the credibility of the complainant’s
evidence, which we have done by finding no misdirection by the
presiding officer,
then we have to accept that in the room where the
complainant was kept, there was a young, naked young girl, who gave
the complainant
her name as that of T.D.
[19]
No
one knows what the fate of that young girl became. According to the
complainant’s evidence, the girl was as good as dead
from the
weak pulse that she detected on her. She was removed from the room
where the complainant was before the complainant escaped
from her
captivity. It can only be hoped that the members of the police
managed to do a follow up, and we can only hope that the
young girl
was found alive. This country is known as the crime capital, that is
our international status. It is a sad reality that
when the minister
of police announces the crime statistics, there is no face to match a
particular crime. It is a blanket reference
to the crime in South
Africa. One wonders how much of what this court is dealing with today
goes out to the world at large, for
it to know that such incidents
fuel the crime statistics in this country.
[20]
Having
considered the sentencing procedure, nowhere on the record was it
ever submitted that the second and third appellants committed
these
crimes due to their youthfulness. As such as we sit as the appeal
court, we have not been advised as to how their youthfulness
influenced them to commit these heinous crimes. None of the
appellants showed even the slightest indication of remorse during the
process of the trial in these proceedings.
No
sympathy was shown even to the grandmother of the complainant who was
sent, by the system, from pillar to post looking for the
complainant,
whilst in the meantime the appellants were keeping her to satisfy
their despicable desires. I am satisfied that his
rape ranks amongst
some of the worst rapes that this court has ever sat on appeal in.
Having considered the circumstances of the
commission of the second
offence of rape, I am of the view that the sentence of life
imprisonment is neither inappropriate nor
does it evoke a sense of
shock.
[21]
People
like the appellants do not belong in civilised societies, they pose a
serious danger and threat to the communities they live
amongst,
especially the young girls and women of this country. They deserve
being removed from the society for a long time, then
the people in
their communities will be able to go on with their lives without
having to look behind their shoulders every time
they have to leave
their homes. The sad part is that the appellants got engaged in these
nefarious activities under the guise of
being religious men who went
for prayers every day. Their actions are contrary to what they got up
to and if they were left to
live amongst the communities, the danger
and the insecurity of the communities would be increased. It is for
this reason that I
am satisfied that the sentence of life
imprisonment is the appropriate sentence in respect of each of the
three appellants.
[22]
In
the circumstances I propose the following order:
22.1
The
appeal against conviction in respect of the first count of kidnapping
and the second count of rape is dismissed in respect of
all the
appellants.
22.2 The
appeal against sentence on the first count that is, the count of
kidnapping, succeeds to the extent that the
sentence of fifteen (15)
years' imprisonment is set aside and it is substituted with a
sentence of ten (10) years' imprisonment.
This sentence is antedated
to 27 June 2018.
22.3. The
appeal against sentence on the second count, the count of rape is
dismissed in respect of all the appellants.
22.4 By
operation of the law, the sentence on count 1 is to run concurrently
with the sentence on count 2.
Hadebe
J