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[2023] ZAFSHC 225
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Dintwe v S (A160/2022) [2023] ZAFSHC 225 (6 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case No.: A160/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In the matter between:
SEBUTI
DINTWE
Appellant
And
THE
STATE
Respondent
Coram:
Mhlambi, J
et
Opperman, J
Date
of hearing:
29
May 2023
Delivered:
The judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and release to SAFLII
on 6 June 2023. The
date and time for hand-down is deemed to be 6 June 2023 at 15h00
Judgment
by:
Opperman, J
Summary:
Appeal – rape
– conviction & sentence – evaluation of evidence –
appellant 19 years old at time of the
offence – complainant
raped more than once
JUDGMENT
INTRODUCTION
[1]
The appeal came to this court against the conviction and sentence in
terms of section 309(1)(a)
of the Criminal Procedure Act, Act 51 of
1977; if a person was sentenced to imprisonment for life by a
regional court under section
51(1) of the Criminal Law Amendment Act,
Act 105 of 1997, he or she may note such an appeal without having to
apply for leave in
terms of section 309B.
[2]
The appellant was convicted on 20 August 2020 in the regional court
of rape that was alleged to
have occurred on 29 September 2019 and in
contravention of section 3 read with sections 1, 56(1), 56A as
amended, 50(2)(a) and
50(2)(b), 57, 58, 59, 60 and 61 of the Criminal
Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of
2007. Sections
94, 256 and 261 of the Criminal Procedure Act, Act 51
of 1977 and
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
also find application on the facts of this case.
[3]
Following conviction and on 10 September 2020 the appellant was
sentenced to life imprisonment
in terms of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
The
facts proven were that the complainant was raped more than once by
the accused during the night that he held her captive.
[1]
[4]
The
grounds on which the appellant relies as to why his conviction and
sentence cannot stand are briefly:
[2]
Conviction:
(a)
The
Court
a quo
erred in finding that the State proved its case beyond reasonable
doubt;
(b)
the
Court
a quo
erred
in finding that the State witnesses gave evidence in a satisfactory
manner;
(c)
the
Court
a quo
erred in not properly analysing the evidence of the State witnesses;
(d)
the
Court
a quo
erred in rejecting the version of the appellant as not being
reasonably possibly true.
Sentence:
(a)
The
effective term of life imprisonment is shockingly inappropriate and
induces a sense of shock;
(b)
the
Court
a quo
did not take into account the personal circumstances of the
Appellant;
(c)
the
Court
a quo
over-emphasized the seriousness of the offence, the interests of
society and the deterrent effect of the sentence;
(d)
the
Court
a quo
erred in finding that there were no substantial and compelling
circumstances for it to deviate from the imposition of the minimum
sentence of life imprisonment.
CONVICTION
[5]
The general principles according to which a court of appeal should
consider the conviction in
a criminal case are:
[3]
(a)
The
court of appeal must bear in mind that the trial court saw the
witnesses in person and could assess their demeanour.
(b)
If
there was no misdirection of facts by the trial court, the point of
departure is that its conclusion was correct.
(c)
The
court of appeal will only reject the trial court’s assessment
of the evidence if it is convinced that the assessment is
wrong.
(d)
If
the court is in doubt, the trial court’s judgment must remain
in place.
[4]
(e)
Courts
of appeal have greater liberty to disturb findings of a court
a
quo
when dealing with inferences and probabilities.
[5]
(f)
The
court of appeal does not zealously look for points upon which to
contradict the trial court’s conclusions, and the fact
that
something has not been mentioned does not necessarily mean that it
has been overlooked.
(g)
The
court of appeal’s doubts about the trial court’s
correctness on the facts are insufficient to set aside the
decision.
[6]
(h)
Nevertheless,
it is the duty of the court of appeal to reject the conclusion of the
trial court on a factual question if the appeal
court is convinced
that that conclusion is wrong. In
Protea
Assurance Co Ltd v Casey
1970 (2) SA 643
(A) at 648E it was warned that the advantages the
trial court enjoys should not be overemphasised, otherwise the
appellant’s
chances on appeal would be illusory.
(i)
It
is not only the finding which must be considered but also, and
especially, the trial court’s reasons. Therefore, such reasons
ought to be properly formulated and mentioned in the trial court’s
judgment.
[7]
(j)
When
the trial court did commit a misdirection in relation to the facts,
the court of appeal is at liberty to disregard the trial
court’s
factual findings, depending on the nature of the misdirection and the
circumstances of the case, and to reach its
own conclusion. In
S
v Tshoko
1988 (1)
SA 139
(A) at 142F–143A, however, the court pointed out that,
even when the trial court errs in relation to the burden of proof,
its credibility findings are still important in so far as they are
not affected by the misdirection.
(k)
The
burden of proof plays a very important part. In an ordinary criminal
case this means that doubt of the court of appeal results
in the
acquittal of the accused.
(l)
If
the trial court committed a misdirection on a point of law, the court
of appeal has to determine whether the evidence nevertheless
establishes beyond reasonable doubt, whether the accused is guilty. A
point of law can thus be decided in favour of an accused
and the
conviction nevertheless upheld.
[8]
[6]
The court
a
quo
acted with
judicial wisdom when adjudicating the testimony of the complainant.
The detail and simplicity of her evidence stands
out. It is of the
nature that cannot be fabricated.
[7]
The court
a quo
gave due regard to the vulnerability of the
complainant at the time of the incident without tolerating material
contradictions
or improbabilities. The complainant was exposed to the
psychological stress and trauma that resulted from the exposure to a
sexual
offence that are private and intimate and embarrassing.
[8]
The court found objective corroboration in the probabilities of the
case and the evidence of the
sister of the complainant and the
medical legal report that depicted the injuries sustained by the
complainant. It is not the injuries
to be sustained during consensual
intercourse.
[9]
She was cautious and careful when she measured the evidence of the
witnesses and reminded herself
that the State carries the onus of
proof beyond reasonable doubt.
[10]
The probabilities are against the defence of the appellant. It must
be noted that the accused elected not
to call any witnesses; not even
the brother
[9]
or the friends he
referred to in his testimony that could have corroborated his
evidence.
[11]
Advocate Tunzi for the State, in her heads of argument, gave an
effective and convincing summary in support
of the manner in which
the presiding magistrate navigated her judgment. She referred to the
judgments of S
v Francis
1991 (1) SACR 198
(A) at 204 C-D,
S
v Sithole and Others
1999 (1) SACR 585
(W) at 590 F,
S v Sauls
1981 (3) SA 172
(A) at 180 e-g and
S v Chabalala
2003 (1) SACR
134
(SCA) at 139 I – J and observed as follows:
5
5.1
This
finding is supported by the following material parts of the evidence
viewed cumulatively by the regional court Magistrate in
her
judgement:
5.1.1
The complainant was an
honest and credible witness.
5.1.2
In
giving her evidence she was calm and coherent and her evidence finds
corroboration in parts of the accused own version.
[10]
5.1.3
The
complainant testified that the accused was an unknown person to her.
She indicated that she could only identify him with his
clothing and
sutures on his head. The identification of the accused is confirmed
by the accused placing himself in her company
and admitting to having
had sexual intercourse with her.
[11]
5.1.4
The
complainant`s sister also provided consistency in her version with
regards to the complainant`s emotional state and the condition
of her
clothing when she arrived at her place.
[12]
5.1.5
She
did not change her evidence during cross examination.
[13]
6
6.1
The trial court was correct in finding that Ms Mosoeu, complainant`s
sister was an honest and a credible witness. Her evidence
did not
only prove consistency from the complainant, but also corroborated
the complainant`s version that she was sober at the
time of the
incident as she observed that the complainant appeared to be sober at
the time she arrived at her place.
[14]
7
7.1 The Appellant
admitted having had sexual intercourse with the complainant but
contend that the intercourse was consensual.
7.2
His version does not make sense and the trial court correctly found
it to be improbable and rejected
it as false.
·
The
appellant wanted the court to believe that the complainant was the
one who pestered him inside the tavern to the point that
he agreed to
leave with her.
·
At
the time they were unknown to each other but he testified that he met
her briefly on the street earlier that day.
·
The
appellant indicated that at the time they left the tavern he did not
know where the complainant was taking him to and yet the
complainant
took him to his brother`s place in Extension 8 where the incident
occurred.
·
Furthermore,
the appellant indicated that the complainant was not injured at all
even when they parted ways in the morning, she
was still uninjured.
If this was the case, why was a statement put then to the complainant
that she got injured during her altercation
with a gentleman before
she approached the accused.
SENTENCE
[12]
The act of rape is in itself a serious injury; it injures the body,
the integrity, the privacy, the sense
of security and the soul of the
victim. An act of rape without “additional injuries” or
less severe injuries does not
compound into compelling and
substantial circumstances.
Section 51(3)(aA)(ii)
of the
Criminal Law
Amendment Act 105 of 1997
makes it patently clear that this fact
cannot be used as compelling and substantial to cause a deviation
from the prescribed minimum
sentences.
(3)(a): If any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which
justify the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances
on the record of the proceedings and
must thereupon impose such lesser sentence: Provided that if a
regional court imposes such
a lesser sentence in respect of an
offence referred to
Part 1
of Schedule 2, it shall have jurisdiction
to impose a term of imprisonment for a period not exceeding 30 years.
(aA) When
imposing a sentence in respect of the offence of rape the following
shall not constitute substantial and
compelling circumstances
justifying the imposition of a lesser sentence:
(i)
The
complainant's previous sexual history;
(ii)
an
apparent lack of physical injury to the complainant;
(iii)
an
accused person's cultural or religious beliefs about rape; or
(iv)
any
relationship between the accused person and the complainant prior to
the offence being committed.
[13]
The balancing of the factors by the court
a
quo
was in accordance with the law and the inquiry into the existence of
compelling and substantial factors proper. As Terblance
[15]
noted:
It
is regularly stated that balance is an important consideration in
sentencing. Balance, in this context, has been said to mean
that the
trial court should consider all the relevant facts, factors and
circumstances evenly, and strive for the attainment of
all the
purposes of punishment.
As
long as balance is understood in these terms there is little
objection to its use. This is not, however, balance in the ordinary
sense of the word. The seriousness of the crime may totally outweigh
the mitigating factors and the personal factors of the offender.
This cannot amount to balance, since the scales would be heavily
weighed against the offender. It would therefore be more accurate
to
state, as in
S v De Kock
, that the three factors of
the
Zinn
triad have to be considered in conjunction
with one another and that each should be
afforded a certain
weight
depending on the facts of the case.
[14]
The vital substance of an effective sentence is that i
f
the court can impose a sentence with the real potential to prevent
future crime and serve the community the same, such sentence
will be
in the interests of society.
a)
Retribution
is significant in every sentence.
b)
The
punishment should fit the crime. This is related to the retributive
aspect of punishment.
c)
The
punishment should fit the criminal as well.
d)
The
sentence must serve the society. The demands of the time are
important. Presiding officers should take cognizance of the times
in
which sentencing takes place. It takes place in reaction to a crime
committed in the reality of the present, not of the past
or the
future. The prevailing crime situation in South Africa demands
consistent and strict sentencing in an attempt to curb the
onslaught
against the people. The scourge of rape in South Africa is directive
of the nature of the sentences.
However,
the demands of the times should not be equated to the demands of
society, especially not the demands of uninformed
members of
society
.
[16]
A civilized society reflects more; there are other factors such as
the individualization of sentences and compassion or mercy towards
the perpetrator.
e)
“
[Mercy]
has nothing in common with maudlin sympathy for the appellant. While
recognizing that fair punishment may sometimes have
to be robust,
mercy is a balanced and humane quality of thought which tempers one’s
approach when considering the basic factors
of letting the punishment
fit the criminal as well as the crime and being fair to society”.
[17]
An appropriate sentence is not reduced in order to make provision for
mercy.
f)
Remorse
dictates mercy. The perpetrator must have perception of his deeds.
Remorse can only be genuine if the appellant declared
it with
sincerity. The appellant
in
casu
showed no remorse at all. He denied culpability, he put all the
witnesses through the trauma of a trial and never explained to
the
court that he is; or even if he is, why he is remorseful.
g)
The
main purposes of punishment are deterrent, preventive, reformative
and retributive.
h)
One
should guard against allowing the heinousness of the crime to exclude
all other relevant considerations. What is needed is a
balanced and
judicial assessment of all the factors. The most severe sentence is
not necessarily the most appropriate.
i)
A
sentence will only be regarded as shockingly harsh and inappropriate
when it lies on appeal if it is in contradiction with the
judgement
of Rumpff, JA in
S v
Anderson
1964 (3)
SA 494
(A) at 495 wherein he captured the essence of the duty and
power of a court on appeal concisely and precise:
Over the years our Courts
of appeal have attempted to set out various principles by which they
seek to be guided when they are asked
to alter a sentence imposed by
the trial court. These include the following: the sentence will not
be altered unless it is held
that no reasonable man ought to have
imposed such a sentence, or that the sentence is out of all
proportion to the gravity or magnitude
of the offence, or that the
sentence induces a sense of shock or outrage, or that the sentence is
grossly excessive or inadequate,
or that there was an improper
exercise of his discretion by the trial Judge, or that the interests
of justice require it. Some
of the cases in which these principles
are mentioned are referred to in the judgment of SELKE, J., in Rex v
Zulu and Others,
1951 (1) SA 489
(N) at p. 490.
A Court that interferes
with a sentence imposed by a lower court, itself exercises a
discretion when it imposes a new sentence and
there cannot,
therefore, be a ready-made test in the strict sense of the word. Nor
is it advisable to attempt to lay down a general
rule as to when the
Court's discretion to alter a sentence will be exercised, see Rex v
Sandig,
1937 AD 296
and Rex v Ramanka,
1949 (1) SA 417
(AD). The
decisions clearly indicate that a Court of appeal will not alter a
determination arrived at by the exercise of a discretionary
power
merely because it would have exercised that discretion differently.
There must be more than that. The Court of appeal, after careful
consideration of all the relevant circumstances as to the nature
of
the offence committed and the person of the accused, will determine
what it thinks the proper sentence ought to be, and if the
difference
between that sentence and the sentence actually imposed is so great
that the inference can be made that the trial court
acted
unreasonably, and therefore improperly, the Court of appeal will
alter the sentence. If there is not that degree of difference
the
sentence will not be interfered with.”
(Accentuation added)
[15]
Substantial and compelling circumstances are not the average day to
day factors in an appellant’s life.
There must be more. The
appellant was 19 years of age at the time of the commission of the
alleged offence, he is not married,
he is not employed, his highest
standard of education is Grade 10, he is a first offender, he was in
custody for six (6) months
before paying bail and he was residing
with his mother and his siblings.
[16]
I align myself with the statement by Justice Bosielo and as was
concurred with by Brand JA, Heher JA, Malan
JA and Pillay JA in
S
v PB
2013 (2) SACR
533
SCA at paragraphs [19] and [20]:
[20] What then is the
correct approach by a court on appeal against a sentence imposed in
terms of the Act? Can the appellate court
interfere with such a
sentence imposed by the trial court's exercising its discretion
properly, simply because it is not the sentence
which it would have
imposed or that it finds shocking?
The approach to an appeal on
sentence imposed in terms of the Act should, in my view, be different
to an approach to other sentences
imposed under the ordinary
sentencing regime. This, in my view, is so because the minimum
sentences to be imposed are ordained
by the Act. They cannot be
departed from lightly or for flimsy reasons. It follows therefore
that a proper enquiry on appeal is
whether the facts which were
considered by the sentencing court are substantial and compelling, or
not.
(Emphasis added)
[17]
“For circumstances to qualify as substantial and compelling,
they need not be ‘exceptional’
in the sense that they are
seldom encountered or rare, nor are they limited to those which
diminish the moral guilt of the offender.”
[18]
[18]
The minimum sentence promulgated by the Legislator to serve the
interest of the community and the victim
tips the scale against the
appellant and his age. Rape is a serious offence, the appellant
abducted the complainant and forced
her into submission, he raped her
more than once and showed no remorse whatsoever. The Victim Impact
Statement depicts the trauma
of the complainant and her family that
still prevails. He made her out to be the cause of the incident.
[19]
The above directs that the appeal must fail in its totality.
[20]
ORDER
The
appeal against the conviction and sentence is denied.
M. OPPERMAN, J
I concur
J.J. MHLAMBI, J
APPEARANCES
Counsel
for the appellant
ADVOCATE
P MOKOENA
LEGAL
AID, SOUTH AFRICA
BLOEMFONTEIN
Counsel
for respondent
ADVOCATE
S TUNZI
OFFICE
OF THE DIRECTOR:
PUBLIC
PROSECUTIONS,
FREE
STATE
BLOEMFONTEIN
[1]
Part
I Schedule 2 takes effect: “Rape as contemplated in section 3
of the Criminal Law (Sexual Offences and Related Matters)
Amendment
Act, 2007 – (a) when committed – (i) in circumstances
where the victim was raped more than once whether
by the accused or
by any co-perpetrator or accomplice.”
[2]
Heads
of argument for the appellant at paragraph 2.1.
[3]
Kruger,
A, Criminal Law,
Hiemstra's
Criminal Procedure,
Chapter
30 Reviews and Appeals in cases of Criminal Proceedings in Lower
Courts, 309 Appeal from lower court by person convicted,
Last
Updated: February 2023 - SI 16,
https://www.mylexisnexis.co.za/Index.aspx
on 1 June 2023.
R
v Dhlumayo
1948
(2) SA 677 (A).
[4]
S
v Robinson
1968 (1) SA 666
(A) at 675H.
[5]
Minister
of Safety and Security v Craig
2011 (1) SACR 469
(SCA) at paragraph [58].
[6]
Kunz
v Swart
1924 AD 618
at 655 and
Taljaard
v Sentrale Raad
1974 (2) SA 450 (A).
[7]
S
v Nkosi
1993 (1) SACR 709
(A) at 711e–g.
[8]
S
v Bernardus
1965 (3) SA 287
(A) at 299F.
[9]
Heads
of argument for the appellant: “3.2.2. It is improbable that
Appellant would rape Complainant at Extension 8 in the
presence of
his brother in the house and the brother did not do anything to
rescue the Complainant;”
[10]
Record:
page 95 at lines 13 to 15.
[11]
Record:
page 95 at lines 15 to 21.
[12]
Record:
page 95 at lines 23 to 25.
[13]
Record:
page 96 at lines 1 to 21 and page 97 at lines 1 to 4.
[14]
Record:
page 90 at lines 4 to 12.
[15]
A
Guide to Sentencing in South Africa
,
Last Updated: 2016 - Third Edition at Chapter 6 at 5,
https://www.mylexisnexis.co.za/Index.aspx
on 18 January 2021.
[16]
A
Guide to Sentencing in South Africa
,
Last Updated: 2016 - Third Edition at Chapter 6,
https://www.mylexisnexis.co.za/Index.aspx
on 18 January 2021.
[17]
S
v Rabie
1975 (4) SA 855
(A) at 862 and
S
v de Jager and Another
1965 (2) SA 616
(A) at 628 – 629.
[18]
S
v Pillay
2018 (2) SACR 192
(KZD) at paragraph 10 as quoted by Mdhluli ST,
What
are substantial and compelling circumstances in terms of
s 51(3)(a)
of the
Criminal Law Amendment Act?
,
March 1st, 2021, De Rebus in 2021 (March) DR 7.