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2024
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[2024] ZAECMKHC 17
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Masoka v S (Appeal) (CA&R 85/2023) [2024] ZAECMKHC 17 (12 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION
- MAKHANDA
Case
No: CA&R85/2023
In the matter between:
MNCEDISI
WISEMAN
MASOKA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
Makaula J:
A.
Introduction
:
[1]
This appeal is against the conviction and sentence imposed by the
Regional Court Magistrate.
The appellant was convicted of Rape
and sentenced to the minimum sentence of life in terms of the Minimum
Sentences Act.
[1]
The appeal is before us in terms of the automatic right of appeal as
provided for by section 6(ii) of the Criminal Law amendment
Act.
[2]
which provides:
“
(ii)
If any person was sentences to imprisonment for life by a Regional
Court under section 51(1)
of the Criminal Law Amendment Act, 1997
(Act No 105 of 1977) he or she may note such an appeal without having
to apply for leave
in terms of section 309 B:...
”
The Proviso are not applicable.
The application is
opposed by the respondent.
B.
Background facts
[2]
The appellant and the complainant know each other. The
appellant attended the
same church as the complainant’s aunt.
The appellant and complainant’s aunt would hold church services
at the
house where she resided with her aunt. She testified
that the appellant knew she was schooling as he would see her in
school
uniform and getting off the school bus.
Furthermore, she stated that the appellant knew she was 16 years old
because
the issue of her age came up at times as people assumed she
was older because of her built. She said her aunt kept on
telling him that “
I am a little girl I am little, small
”.
She testified that her age would also come up when she spoke about
her late mother. She testified that she
was 16 years old at the
time of the commission of the offence against her.
[3]
About the events of 5 March 2022, the complainant testified that she
was enjoying
alcohol with her friends. She partook by taking in
“
may be two or three shots…of old buck.
”
She was not drunk. She went to look for her friend Lerato, who
was not in her room. It was already night
as it was dark.
While walking, she came across the appellant. She asked if he
could help her find her friend. He agreed.
The appellant
offered her a bottle of old buck or flying fish. She refused
the offer. They proceeded to Neil ‘s home
to look for Lerato.
[4]
As they were walking, she noticed that the appellant was heading
towards a bushy area.
She inquired about the route they were
taking with the appellant. At that stage, he grabbed her,
produced a knife, and placed
it against her neck. He dragged
her to the bushy area, ordered her to undress her ‘tights’
and pushed her to
the ground. He opened her thighs and had
sexual intercourse with her without her consent and using a condom.
After
he had finished he ordered the complainant to light up a bottle
kop for him to smoke. He threatened to kill her if she were
to
tell anybody that he raped her. She got a chance to dress up
and ran away. The appellant followed her. After
some
distance she realised that she was no longer following her. He
came across a certain gentleman who took her to the police
station.
She was taken by the police to her home, and thereafter to the
hospital for medical treatment.
[5]
The version of the accused, which I can upfront say is demeaning to
the complainant
in the strongest of ways, was put to the
complainant. Suffice it to say that the complainant readily
dismissed it.
I shall touch on it when I deal with the evidence
of the appellant.
[6]
The statement of Zimasa Albany (Constable Albany) was handed up by
agreement between
the parties. Constable Albany is the
first police officer to whom the report and statement were made by
the complainant.
The contents of her statement need no
repetition as they are in line with her testimony regarding how she
was raped by the appellant.
[7]
The appellant testified that she knew the complainant as he went to
church with her
aunt. He did not know her age. On the day
of the incident, the appellant testified that the complainant arrived
while
he was in company of his friends. They were smoking dagga
at a certain house when she arrived. She requested him to
accompany her to look for her friend. Indeed, he agreed, and
they set out to look for her friend. The complainant took
him
to a house where a certain family lived. They could not get
inside because it was late at night, the house was dark,
and the gate
was locked.
[8]
The complainant later took him to Neil’s house. The
appellant knew Neil
to be a drug user (dagga and tick). While
still waiting outside Neil’s house, the complainant said she
wanted
‘
a bag of tik’
and asked whether he had a
‘
style
’ i.e a plan to organise it. He told
her that he had R70-00, which he was to use to buy electricity with.
She
said a plan shall be hatched the following morning; he must use
it to buy tick. He relented and gave her the money to buy
it.
They proceeded to the back of his yard where they smoked it.
They could not do so inside his room because his girlfriend
was
there.
[9]
After they finished, the complainant said they could now have sex
since she had promised
him. They then had sexual intercourse at
the back of his yard. He thereafter accompanied her halfway to
her house.
On the way she asked for another “
bag of
tik
” to which he said he was unable to buy and would try
the following day. She was not pleased at all with that to the
extent that she ordered him to go away. He suspected the
complainant falsely implicated him because he did not have money
to
buy a second “
bag of tick
”. He testified
that the complainant became angry to an extent that she was shouting
at him.
C.
The Judgment of the
court a quo
[10]
The court
a quo
accepted the evidence of the complainant and
made credibility findings about both the appellant and the
complainant. The
court
a quo
found that the complainant
was a credible witness. It reasoned as follows:
“
Now
the complainant was 15 years old at the time of the incident.
She testified approximately a year later at the age of 16.
I
have observed her during her testimony, and being cross-examined.
Although she was a very emotional witness when she testified,
nothing
in her evidence indicates that her evidence is unreliable or
untrustworthy. She had a good recollection of the events
of the
day. She gave a detailed account what the accused did to her
and what he said to her. She did not exaggerate
her version…
She did not contradict herself in her evidence in chief or during
cross-examination. It is my impression
that she had a clear
understanding of the questions that were asked of her and she gave
intelligent and sensible answers. (sic)
[11]
The Court further considered the evidence of the report she made to
the gentleman who took her
to the charge office; the statement of
Constable Albany, the medical evidence of Dr Somadoda Qolahle in
finding the appellant guilty.
[12]
Constable Albany recorded in her statement, which was admitted as
evidence, thus.
“
Furthermore,
when the minor got to the station she was emotional, scared and
shaking couldn’t speak properly had to calm her
down. She
was wearing a tight no visible injuries clothes were not torn”.
(sic)
[13]
The court
a quo
found the complainant to be a consistent
witness, who readily reported the incident to the first person she
came across after she
had been raped, her evidence in court and
Constable Albany at the police statement shortly after the incident.
[14]
The trial court said the following of the evidence of the appellant;
“
He was in my view not an impressive witness, he was
evasive
”
In the application, the
learned Magistrate referred to the issue of the age of the
complainant which he initially denied having
knowledge of but later
conceded that he knew that the complainant was ‘
a child
’.
Further, the court referred to the failure of the appellant to put
his version to the complainant regarding the stage
during which she
lay on top of him during sexual intercourse, that they both smoked
dagga, which was lit by the complainant on
request by the appellant.
The court
a quo
found it highly improbable that the appellant
could not even recall the name of his friend who attended church
services for two
(2) weeks and was with him at the time he met with
the complainant during that night. Having analysed the
evidence, the trial
court found that the evidence of the appellant
was not reasonably possibly true, rejected it as false beyond
reasonable doubt,
and accepted the evidence of the complainant.
[15]
With regard to sentence, the trial court took into account that the
appellant is 38 years old,
the interest of the community and offence
itself. Having weighed all these factors and the fact that the
appellant had spent
a period of a year as an awaiting trial prisoner,
found that there are no substantial and compelling circumstances and
imposed
life imprisonment.
D.
Grounds of Appeal
[16]
The grounds of appeal terse: and read:
“
Ad
conviction:
1.
The learned Magistrate erred in
finding that the State has proved its case beyond the reasonable
doubt, more especially in:
1.1 Finding that the
medical evidence corroborated the complainant’s evidence
whereas it is neutral.
Ad Sentence
1.
The sentence imposed by the learned
Magistrate induces a sense of shock and disbelief.
2.
It is trite law that the interest of
society, the crime committed and the interests of the accused have to
be balanced in the imposition
of sentence. The sentence imposed
indicated that the learned Magistrate overemphasised the interests of
society and the crime
committed at the costs of the personal
circumstances of the applicant, more especially;
2.1
by failing to take into account the
time spent in custody awaiting trial;
2.2
the cumulative effect of his
personal circumstances
3.
It is respectfully submitted that
there exists a reasonable chance of success on appeal in that another
court might come to a different
conclusion in the
circumstances.
”
(
sic
)
[17]
In his heads of argument, the appellant merely regurgitated the
common cause facts and the assertion
that sexual intercourse was
consensual and concluded by saying:
“
Wherefore
the appellant prays that it would not be improper for the above
Honourable court to find the State did not prove its case
beyond a
reasonable doubt as the complainant did consume alcohol
.”
[18]
The appellant merely rehearsed the personal circumstances of the
appellant in arguing that the
court a quo did not balance the ‘
triad
of factors
’ properly to conclude that there were no
substantial and compelling circumstances to deviate from life
sentence.
E.
Analysis
[19]
The issue that really was before the court, based on the evidence,
was whether the sexual intercourse
between the complainant and the
appellant was consensual. The latter testified that it was
whereas the former denied that.
The court had to rely on the
surrounding circumstances and who it believed between them. The
demeanour and credibility findings
are crucial in the circumstances.
[20]
An appeal court shall not overturn the trial court’s findings
of fact, its assessment of
the credibility of witnesses and its
weighing of probabilities and improbabilities.
[3]
In
S
v Hadebe and Others.
[4]
Marais
JA said:
“
In
short, in the absence of demonstrable and material misdirection by
the trial court, its findings of fact are presumed to be correct
and
will only be disregarded if the recorded evidence shows them to be
clearly wrong. The reasons why this deference is shown
by the
appellate Courts to factual findings of the trial court are so well
known that restatement is unnecessary
.”
E 1.
Ad
conviction
[21]
As aforesaid, the question of the identity of the appellant is not in
issue. Both
the complainant and the appellant know each
other very well and for a considerable length of time. Further,
the issue of
sexual intercourse is common cause. They had
sexual intercourse, although the complainant attested that it was not
consensual.
Furthermore, there is no dispute that the
complainant was not drunk at the time she met with the appellant.
What came from
her, is that prior to meeting with the appellant, she
had taken “
two shots
” of Old Buck. That, according
to her, had no effect on her faculties to an extent that she stated
that she was not drunk.
That assertion was neither disputed nor
gainsaid by the appellant. The appellant, in his evidence, did
not suggest at all
that the complainant was drunk or under the
influence of either alcohol or drugs when they met. It can be
safely accepted
that she was neither drunk nor under the influence of
drugs.
[22]
The appellant testified that before they smoked ‘
tik
’
the complainant promised him that if he bought her a ‘
bag of
tik’
, she would in return have sexual intercourse with him.
After they smoked ‘
tik
’ the complainant again
reminded him that she had promised to have sex with him thus
initiating the sexual encounter with
him. Throughout, according
to him, the complainant brought up the issue of sexual intercourse
and even reminded him that
they should engage in sexual intercourse
after they had smoked ‘
tik’
. There is no
evidence from the appellant that when he was unable to buy another
‘
bag of tik,
’ the complainant threatened or
insinuated that he raped her, nor that she would falsely lay a charge
of rape against him.
Despite her being angry, she did not refer
to their sexual encounter. All the appellant said is that the
complainant was
angry and even shouted at him. This behaviour
(of shouting and anger) is not consisted with the actions of the
complainant
immediately after they parted ways as it appears below.
[23]
The appellant testified that he was chased away by the complainant,
and that was how they separated.
The complainant’s
version is at odds with that. She testified that she ran
away until she came across a gentleman
who she asked to take her to
the police station. Her evidence is somewhat confirmed by that
of Constable Albany, who said
the complainant was brought to the
police station by a gentleman. The state in which the
complainant was when she got to
the police station is at variance
with what was explained by the appellant when they separated.
Being angry and being in
an emotional state are miles apart.
The evidence of Constable Albany about how emotional and traumatised
the complainant
was when she got to the police station remained
uncontroverted. Based on these and other observations made by
the court
a quo,
it did not err in rejecting the evidence of
the appellant. It is not based on anything that the complainant
later had a change
of heart (according to the appellant) when, as
alleged by him, he was unable to buy her a second ‘
bag of
tik
’ and decided to falsely accuse him of rape. That
is a clear fabrication which is even compounded by the relationship
the complainant (particularly her aunt) had with the appellant.
Their relationship was cordial, and church based, according
to both
the complainant and the appellant. There was no ill feeling
between, the complainant, her aunt, and the appellant.
[24]
The court
a quo
made credibility findings about both the
complainant and the appellant, which this court, as reflected in the
authorities cited
above, cannot lightly upset. On the evidence,
I see no reason to disturb the credibility findings or the finding of
guilty.
The court
a quo
did not misdirect itself in any
way. The appellant was correctly convicted hence there was not
even a ground put forth by
the appellant to challenge the
conviction. I therefore find that the conviction was
correct.
E 2.
Ad Sentence
[25]
The sentence has been assailed on the basis that the court
a
quo
did not have regard to the personal circumstances of the appellant.
That submission or ground does not find support from
the reasoning of
the court. The court
a
quo
did not do lip service to the personal circumstances of the
appellant. It analysed and weighed them against the interests
of the community and the offence itself. In doing so, it
referred to and relied on relevant authorities
[5]
[26]
In particular, dealing with the personal circumstances of the
appellant and the fact that they
should give way to the seriousness
of the offence, the court cited the following paragraph in S v RO and
Another;
[6]
“
To
elevate the appellant’s personal circumstances above that of
society in general and these two-child victim in particular
would not
serve the well-established aims of sentencing, including deterrence
and retribution” (references omitted).
[27]
It is trite that sentencing is pre-eminently within the discretion of
the trial court and that
a court of appeal will not tightly interfere
with the exercise of such discretion.
[7]
The sentence will not be altered unless it is held that no reasonable
court ought to have imposed such a sentence, or that
the sentence is
totally out of proportion to the gravity or magnitude of the offence,
or that the sentence evokes a feeling of
shock or outrage, or that
the trial Judge presiding officer had not exercised his discretion
properly or that it was in the interest
of Justice to alter it.
[8]
As alluded to, the court a quo went home, so to speak, in balancing
the personal circumstances of the appellant, the interest
of society
and the nature of the offence. It even had regard to the period the
appellant spent in custody as an awaiting trial
prisoner.
Having considered all these factors, it found that they do not amount
to substantial and compelling circumstances
.
[28]
I find no reason to interfere with the discretion of the court
a
quo.
Rape is a serious offence. The appellant took
advantage of the complainant who was vulnerable at the time, as it
was
at night, and she was alone. The appellant should have been
the one to protect her as aforesaid, he knew her very well and
was
close to her aunt as they worshipped together. He betrayed that
trust. The appellant did not only violate the complainant
but
went further to humiliate her by portraying her to be a drug addict
who sold her body to him for a ‘bag of tik’.
This
was not only a lie, but it was calculated to paint her as an immoral
person who was willing to have sex with him in exchange
for drugs.
This is tantamount to adding salt to the wound, in exacerbating the
trauma of rape she has been through.
This shows that the
appellant was not remorseful.
[29]
There is no legal basis for this court to interfere with the sentence
imposed. As a result,
the following order shall issue:
1.
The appeal against both conviction and
sentence is dismissed.
M MAKAULA
Judge of the High
Court
Zilwa AJ:
I agree.
H. ZILWA
Acting Judge of the
High Court
Appearance:
Counsel for the
Appellant
:
Mr MT
Solani
Instructed
by
: Legal
Aid Local Office
Makhanda
6139
Counsel for the
Respondent
:
Adv T
Soga
Instructed
by
: Office
of the Director of Public Prosecution
Date
Heard
: 15
November 2023
Date
Delivered
: 12
March 2024
[1]
Act
38 of 2007
[2]
Act
105 of 1977
[3]
S v Morgan and Others
1993 (2) SACR 134
A at 145 e-(h)
[4]
1997 (2) SACR 641
(SCA) A 654 (e)
[5]
S v Chapman 1977(2) SACR 3 (SCA); S v Malgas 2001 (1) SACR 469
(SCA), 2001 (2) SA 1222 (SCA)
[6]
2010 (2) SACR 248
(SCA) at para 20
[7]
R
V Maphumulo & Others
1920 AD 56
; S v Livanje
2020 (2) SACR 451
(SCA) at 20
[8]
(
See
Commentary on the Criminal Procedure Act Du Toit at All Service 70,
2023 and the cases cited therein)