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2023
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[2023] ZAFSHC 157
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Duda v S (A 179/2022) [2023] ZAFSHC 157 (26 April 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
no
.
A 179/2022
In
the appeal of:
PAPI
PETRUS DUDA Appellant
and
THE
STATE Respondent
CORAM:
MHLAMBI, J
et
VAN RHYN,
J
HEARD
ON:
19 APRIL 2023
DELIVERED:
26 APRIL 2023
JUDGMENT
BY:
VAN RHYN, J
[1]
The appellant was convicted in the Regional
Court Bloemfontein on a count of contravening section 3
of Act 32 of
2007, read with the provisions of section 51(1) of Act 105 of 1997.
The provisions of section 51 (1) of Act 105 of
1997 were duly
explained to the appellant at the commencement of the trial. On 19
April 2022 the appellant was sentenced to life
imprisonment.
[2]
Appellant has an automatic right of appeal and filed a Notice of
Appeal against his conviction and sentence.
Appellant was duly
represented during the trial which commenced on 5 September 2018. He
pleaded not guilty to the charge of rape
levelled against him and did
not tender a plea explanation.
[3]
The record reflects that before the complainant, who was 9 years old
at the time of
the incident, presented her testimony, the trial court
made a ruling in terms of the provisions of Section 170A(1) of the
Criminal
Procedure Act
[1]
that
her evidence be presented through the assistance of an intermediary.
The complainant presented her testimony
in
camera
.
[4]
The grounds upon which the appellant’s appeal against the
conviction rest are that the court
a quo
erred in:
4.1
finding that the guilt of the appellant was proved beyond reasonable
doubt;
4.2
finding that the complainant’s and other State witnesses’
identification
of the appellant is reliable beyond reasonable doubt;
4.3
drawing a negative inference from the appellant’s version and
failing
to find the appellant to be a credible witness
[5]
The facts underlying the conviction are briefly as follows: The
complainant and her minor brother, who
was 7 years old at the time of
the incident, were sent by their mother to visit relatives at
Rocklands with the purpose to ask
for money. While they were walking
they came upon a man who, initially requested assistance to carry
bags and showed them R10.00,
but eventually grabbed the complainant
by her arm and insisted that both children walk with him until they
came to a park. At the
park he left the minor boy and took the
complainant by her hand. He walked with her to a tree where he raped
her.
[6]
The complainant testified that she had seen the man who raped her on
many occasions prior to the incident.
According to her, the accused
on several occasions passed her family’s place of residence and
she recognised him due to the
fact that his face is familiar to her.
Subsequent to the incident that occurred underneath a big tree,
the man took her back
to the park where she again met up with her
little brother. Two ladies were standing at the gate to the park with
her brother.
The man then ran away, back through a passage, the same
way in which she, her brother and the accused arrived at the park.
[7]
One of the ladies succeeded in stopping a police vehicle and two
members of the South African Police
Services went after the man.
Shortly thereafter, the police officials brought the same man back to
them where after she was able
to positively identify him as the man
who raped her. He was wearing a yellow MTN hat, a brown jersey, a
shirt with blue and white
stripes and brown trousers. Although
some confusion existed regarding the date of the incident due to the
testimony of the
first State witness, Vivian Veldschoen, it was found
to have occurred on 2 January 2018.
[8]
The sole issue for determination in this appeal is the adequacy of
the evidence of identification of
the appellant. The appellant,
although admitting that he was the person who was arrested by the
police on 2 January 2018 in close
vicinity to the park, denied that
he was the person who had raped the complainant. At the trial,
4 witnesses testified on
behalf of the State. They were Vivian
Veldschoen, her sister, Tandiwe Veldschoen, the complainant and
Constable Phukuntsi, the
arresting officer. The appellant was the
only witness to testify in his defence.
[9]
It is common cause that the evidence of the complainant in respect of
the rape, is
evidence of a single witness and needs to be treated
with caution. In criminal proceedings a conviction will normally
follow only
if the evidence of a single witness is substantially
satisfactory in every respect or if there is corroboration.
[2]
[10]
The second question which needed to have been considered by the court
a quo
was whether, on the totality of the evidence, it can be
said that the State had proved its case against the appellant beyond
reasonable
doubt.
[11]
The trial court was alert to the fact that the complainant was a
child and a single witness and properly
dealt with it. The
complainant was taken to the National Hospital, Bloemfontein and
examined by a forensic nurse on the day of
the incident, as per the
medico-legal examination report, “Exhibit C”.
[12]
On behalf of the appellant it was submitted that the court
a quo
was not alert to the contradictions between the evidence presented by
the State witnesses. However, contradictions, per se, do
not lead to
the rejection of a witness’s evidence. Taking into
account the nature of the contradictions, their number
and
importance, and the testimony of the other State witnesses, I agree
with the finding of the court
a quo
that the contradictions
referred to by the appellant, are immaterial.
[13]
The appellant furthermore argued that discrepancies exist in the
description provided to the police
officials regarding the clothing
worn by the complainant’s assailant. I am of the view that the
description of the clothing
worn by the complainant’s assailant
matches the description regarding the clothing worn by the appellant
in respect of the
shirt with blue and white stripes, the jersey and
the fact that he was wearing a hat at the time of his arrest. On
behalf of the
appellant it was contended that the identification of
the appellant as the complainant’s assailant remains doubtful
on the
basis that it was only later, subsequent to the appellant
being brought back to the witnesses, discovered that the trousers
worn
by the appellant also had stripes or consisted of a “check-
pattern”. In my view the fact that Vivian Veldshoen testified
that she initially did not see that the trousers worn by the
appellant also consisted of fabric with a check –pattern, is
an
indication that same was only visible when the appellant was close by
Vivian Veldschoen, which is consistent with her testimony
in court.
[14]
It is trite that a court of appeal will rarely interfere with
findings of fact of the trial court,
including credibility findings
with regard to witnesses. In the absence of material misdirections by
the trial court, its findings
of fact are presumed to be accurate,
and would be disregarded only if the recorded evidence shows them to
be wrong.
[15]
Taking cognisance of the fact that the appellant was apprehended
within 2 minutes after the members
of the South African Police
Services left the complainant and the Veldschoen-sisters to look for
him, there can be no doubt regarding
the identification of the
appellant. I am satisfied that the court
a quo
correctly
rejected the appellant’s version that he was merely in the
unfortunate position of being in the vicinity when he
was apprehended
by the police officials shortly after they received a description of
the clothes worn by the complainant’s
assailant which matched
the clothes worn by the appellant. I am convinced that the appeal on
the conviction should fail.
[16]
The following personal circumstances and aggravating facts as well as
mitigating factors appear
from the record:
16.1
appellant was born on 2 June 1970, presently 53 years old. He is a
widower
and the father of major
children.;
16.2
he never attended school and was working as
a gardener and received an income of R800.00 per week.
16.3
he is a first offender.
16.4
he was on warning for the duration of
the trial and has been in custody since November 2021.
[17]
Rape is a heinous crime and an invasion of privacy of the
individual
[3]
, in this case a
young girl aged 9 years. Due to the escalating levels of serious
crime the Legislature considered rape of a girl
under the age of 16
years as one of many serious crimes and ordained life imprisonment as
the sentence to be imposed.
[18]
The trial court, naturally, relied heavily on the contents of the
medico-legal examination report
and the testimony of the complainant
that she felt sad about what the appellant did to her. The content of
the medico–legal
examination report was, by agreement between
the State and the defence, admitted as part of evidence before the
court
a quo
. From the medico-legal examination report it is
evident that the complainant suffered genital injuries in the form of
red abrasions
on the
fossa navicularis.
No victim impact
statement emanating from the complainant or her parents were
submitted during the trial.
[19]
Taking cognisance of the complainant’s age, the injuries
sustained by the complainant were not
of a very serious nature. There
is no evidence that the appellant assaulted the complainant in any
other way. In this matter, I
take cognisance of the fact that fairly
little violence was used by the appellant.
[20]
The regional magistrate was correct that the court should not deviate
from imposing the minimum
sentence for flimsy or unconvincing reasons
as stated in
S
v Malgas
.
[4]
In my view the appellant's age, being 53, and being a first
offender, together with his prospects of rehabilitation were
not
sufficiently considered by the court
a
quo
. In
fact, the court a quo held that when regard is had to the personal
circumstances of the appellant and the circumstances surrounding
the
commission of the offence, nothing special in his personal
circumstances exists. The court
a
quo
found that the mitigating factors outweigh the many aggravating
factors and therefore found no substantial and compelling
circumstances
to exist for the trial court to deviate from the
prescribed sentence of life imprisonment.
[21]
I am of the view the court
a quo
ought to have balanced the
other objects of sentencing, with rehabilitation. This is
particularly so when dealing with an accused
who is a first offender,
a person who had a stable past, a fixed income and who was 48 years
old at the time when the crime was
committed. It ought to have
imposed a sentence which, whilst achieving retribution, deterrence
and prevention, allowed the
possibility of the appellant's
rehabilitation. Due to the insufficient consideration of the
prospects of the appellant’s
rehabilitation, the court a quo,
in my view, misdirected itself in this regard. This calls for this
Court to intervene and consider
the issue of sentencing afresh.
[22]
I am of the view that, when the circumstances of this particular
matter are considered, the prescribed
sentence of life imprisonment
would be rendered unjust in that it would be disproportionate to the
crime, the criminal and the
needs of society, so that an injustice
will be done by imposing the prescribed sentence. I agree with the
submission by Mr Van
der Merwe, on behalf of the appellant, that in
this matter the court is not dealing with the category of the ‘worst
rapes’
and that this ought to be considered in arriving at an
appropriate sentence.
[23]
Accordingly I propose the following order:-
1. The
appeal against the conviction is dismissed.
2. The
appeal against the sentence is upheld and the sentence of life
imprisonment is set aside.
3. The
appellant is sentenced to imprisonment for a period of 23 years, and
4. The
order in 3 is antedated to 19 April 2022.
______________
VAN
RHYN, J
I
agree and it is so ordered.
_______________
MHLAMBI
J
On
behalf of the Appellant:
Mr
P L van der Merwe
Instructed
by:
BLOEMFONTEIN
JUSTICE CENTRE
On
behalf of the Respondent:
Adv.
T E Komane
Instructed
by:
DIRECTOR
PUBLIC PROSECUTIONS
BLOEMFONTEIN
[1]
Act 51 of 1977.
[2]
Stevens
v S
[2005] 1 All SA 1
(SCA) para 17.
[3]
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA).
[4]
2001 (2) SACR 469
(SCA).