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2024
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[2024] ZAECMKHC 19
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Mazele v S (CA&R107/2023) [2024] ZAECMKHC 19 (14 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT
REPORTABLE
Case no: CA&R107/2023
In
the matter between:
MTUTUZELI
GEORGE MAZELE
Appellant
and
THE
STATE
Respondent
JUDGMENT
Govindjee J
[1]
The
appellant was convicted in the Regional Court, Gqeberha, of the rape
of the complainant, ‘LM’, and sentenced to
life
imprisonment. This is an automatic appeal in terms of
s 309(1)
of the
Criminal Procedure Act, 1977
[1]
against both conviction and sentence.
[2]
The incident in question occurred on 21
March 2022, a few days before the complainant’
s 16
th
birthday. Ms Andiswa Africa testified that she had visited her aunt’s
house and, hearing that her aunt was drunk and asleep,
peeped through
a hole in the door. She observed the appellant showing the
complainant his penis while his pants were down. The
complainant’s
mother, who lived with the complainant in the next-door house, was
called and testified that she observed a
similar occurrence, causing
her to scream. These events resulted in the complainant reporting
that she had been raped by the appellant,
and an examination at Dora
Nginza Hospital. The registered forensic nurse who examined the
complainant was called to testify and
confirmed genital injuries
consistent with sexual penetration. All these witnesses testified
that the complainant suffered from
a mental disability.
[3]
The
complainant was considered competent to testify and did so through a
duly appointed intermediary having been admonished. The
court
a
quo
,
having heard testimony from a registered clinical psychologist who
had examined the complainant on various occasions during 2022,
held
that the complainant was a person with a mental disability.
[2]
[4]
There
is no appeal against that finding. ‘Consent’ is defined
in the Criminal Law (Sexual Offences and Related Matters)
Amendment
Act, 2007
[3]
(‘the Act’)
to mean ‘voluntary or uncoerced agreement’.
[4]
One of the stipulated circumstances in respect of which a complainant
does not voluntarily or without coercion agree to an act
of sexual
penetration, is where the complainant is a person with a mental
disability, as in the present instance.
[5]
This is reinforced in s 57 of the Act, in respect of any ‘sexual
act’.
[6]
Persons with a
mental disability are also defined as ‘vulnerable’ in the
Act.
[7]
[5]
The notice of appeal avers that the court
a
quo
erred in both its assessment of the
complainant’s credibility and in its finding that the injuries
had been caused by sexual
penetration, considering the nurse’s
evidence that there were other possibilities for this.
[6]
The only issue in dispute in respect of
conviction is therefore whether the state has proved beyond
reasonable doubt that sexual
penetration occurred. The court
a
quo
considered the state’s evidence in its totality, including
possible reasons for the complainant falsely implicating the
appellant, and made favourable credibility findings in respect of the
complainant. In particular, the complainant’s testimony
was
assessed as demonstrating good recollection and sufficient detail
absent exaggeration or contradiction, so that the evidence
was
accepted as trustworthy and reliable notwithstanding the application
of the necessary caution in dealing with a single child
witness who
is a person with a mental disability.
[7]
The
evidence of the complainant’s mother and Ms Africa supports the
complainant’s version, in so far as it is apparent
from that
evidence that the appellant had exposed himself to the complainant at
close quarters. The complainant’s version
is further supported
by the medical evidence led, as accepted by the court
a
quo
.
There is also a presumption that the trial court’s evaluation
of the evidence is correct, so that it will only be disregarded
if it
is clearly wrong.
[8]
[8]
This
does not appear to me to be one of the exceptional cases in which
this court is entitled to interfere with the trial court’s
evaluation of oral testimony. The alleged misdirections are unmerited
and insufficient to show that the trial court’s acceptance
of
LM’s evidence was erroneous. This bearing in mind the oft-cited
advantages which a trial court has of seeing, hearing
and appraising
a witness.
[9]
That court
delivered a careful and well-reasoned judgment, fully cognisant of
the caution to be applied before accepting LM’s
evidence. The
record reflects that LM’s testimony, considered as a whole, was
rightly accepted in its material dimensions.
There were neither
material contradictions or inconsistencies in the testimony, nor
improbabilities to the extent that the evidence
was rendered suspect.
The supporting evidence confirms this assessment, as does the
assessment of the appellant’s own testimony,
which was rightly
rejected as being so improbable and replete with falsities that it
could not be reasonably possibly true.
[9]
The appeal against conviction must,
therefore, be dismissed.
[10]
As
for the sentence imposed, it is trite that punishment is
pre-eminently a matter for the discretion of the trial court. Imposed
sentences should only be altered on appeal if the trial court’s
discretion has not been ‘judicially and properly exercised’.
The test is whether the sentence is ‘vitiated by irregularity
or misdirection or is disturbingly inappropriate’.
[10]
[11]
In
this instance a minimum sentence of life imprisonment was imposed
when considering that the complainant was a person with a mental
disability.
[11]
The imposition
of life imprisonment is criticised as inducing a sense of shock and
disbelief, over-emphasising the interests of
society and the crime
committed at the cost of the appellant’s personal
circumstances. This includes poor health and advanced
age.
[12]
These
matters were considered by the trial court and rejected in the face
of the nature and seriousness of the crime and its impact
on society.
Whether or not the sentence imposed was ‘right or wrong’
is not the test. Instead, the question is whether
the alleged
misdirection is of a nature, degree or seriousness sufficient to
demonstrate the trial court’s failure to exercise
its
discretion properly or reasonably. It is a misdirection of this
extent that would vitiate the trial court’s decision
on
sentence.
[12]
[13]
To the contrary, consideration of the
judgment on sentence reflects a careful weighing of the various
considerations and applicable
authorities. This was coupled with the
exercise of a judicial discretion, the trial court concluding that
there was an absence
of substantial and compelling circumstances
warranting deviation from the prescribed minimum sentence. The
sentence imposed is
also not strikingly disproportionate to any
sentence this court might have imposed in the circumstances. There is
therefore no
basis for this court to interfere with the outcome, so
that the appeal against sentence must also be dismissed.
Order
[14]
The following order is issued:
1.
The appeal against conviction and sentence
is dismissed.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
I agree
N GQAMANA
JUDGE OF THE HIGH
COURT
Heard:
14
February 2024
Delivered:
14
February2024
Appearances:
For
the Applicant:
Ms HL
McCallum
Legal
Aid South Africa
Makhanda
Local Office
69
High Street
Makhanda
Email:
HelenM@legal-aid.co.za
For
the Respondent:
Adv AA
Nohiya
Director
of Public Prosecutions
94
High Street
Makhanda
Email:
wdevos@npa.gov.za
[1]
Act
51 of 1977.
[2]
See
s 1 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 (Act 32 of 2007) (‘the Act’).
[3]
Act
32 of 2007.
[4]
S
1(2) of the Act.
[5]
Ss
1(3) of the Act.
[6]
‘
Sexual
act’ is defined to mean an act of ‘sexual penetration or
an act of ‘sexual violation’, both notions
being defined
separately.
[7]
S 40 of the Act.
[8]
S
v Francis
1991
(1) SACR 198 (A).
[9]
Ibid
at 204D–F.
[10]
S
v Rabie
[1975]
4 All SA 723
(A) 724;
1975 (1) SA 855
(A) 857E–F.
[11]
Schedule 2 Part I of the
Criminal
Law Amendment Act 105 of 1977, read with the s 1 of the Act.
[12]
S
v Pillay
[1977]
4 All SA 713
(A) at 717;
1977 (4) SA 531
(A) at 535E–G.