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2023
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[2023] ZAFSHC 269
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Mahlangu v S (A176/2022) [2023] ZAFSHC 269 (10 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no:
A176/2022
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter between:
NJANYANA
WILLIAM MAHLANGU
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
BERRY, AJ
HEARD ON:
15
MAY 2023
DELIVERED ON:
10 JULY 2023
JUDGMENT BY:
REINDERS J
This judgment was handed
down electronically and circulated to the parties’
representatives by electronic mail communication
on even date.
[1] The appellant,
according to the record a 31-year-old male at the time, was tried in
the Regional Court in Heilbron on two charges.
The allegation in
respect of the first charge is that on 15 October 2017 at Mahikeng in
the district of Tweeling, he kidnapped
the complainant. The second
charge is that on the same date, he raped the same complainant at his
residence. The rape is as defined
in s 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act
[1]
,
and read with the provisions of s 51(2) of the Criminal Law Amendment
Act
[2]
.
[2] Having been convicted
on both counts the State proved two previous convictions against
appellant. He admitted two previous minor
assault convictions, the
last being during 2016 and a further conviction for resisting and/or
hindering and/or obstructing members
of the police in the exercise of
their powers as set out in the South African Police Services Act
[3]
.
The magistrate sentenced him on the first charge to two years’
imprisonment of which one year was ordered to run concurrent
with the
sentence in charge 2, imprisonment for 10 years – the effective
sentence imposed being 11 years.
[3] A summary of the
complainant’s evidence reveals that during the particular
evening, she and a friend were patrons at the
Seketeng Tavern where
they consumed alcoholic beverages. The appellant was also drinking
alcohol at the tavern and at some stage
started physically pulling
her out of the tavern. She resisted, where after he hit her in the
face and eventually put her in his
vehicle. She was unsuccessful in
her attempts to escape and in the process of pulling her to his
vehicle she was dragged on the
ground causing her to sustain
injuries. He took her to his house where he raped her. Whilst they
were still at his house, members
of the South African Police Force
and family members arrived and assisted her. She was taken for a
medical examination and the
medico-legal report recorded various
injuries, including scratch marks on both arms and an injury to her
eye.
[4] Various other
witnesses, including complainant’s mother to whom she made the
first report, her sister and Capt Booysen,
testified on behalf of the
State. I do not intend repeating their evidence herein.
[5] The appellant
testified and called a witness. The crux of his defence was that he
and the complainant was in a relationship
and that the sexual act was
consensual between them.
[6] The magistrate
hearing the matter was aware of the discrepancies between the state
witnesses but considered it to be minor.
He was of the view that the
injuries confirmed by the medico-legal report is consistent with the
complainant’s version and
corroborates that she was hit on her
eye and dragged on the ground. He found further corroboration in that
witnesses present at
the tavern not only confirmed complainant’s
version, but ultimately were responsible for the police reacting and
later arresting
the accused. He rejected the appellant’s
version and was convinced of his guilt on both counts.
[7] The magistrate did
not grant leave to appeal but two judges of this Division granted
leave to appeal against both the convictions
and sentences.
[8] On appeal before us
it was not contended that the magistrate misunderstood or
misinterpreted the evidence on the merits. It
was rather submitted
that there was insufficient corroboration for the single witness and
that there were contradictions and/or
inconsistencies in the State’s
version which should have lead the magistrate to conclude that he had
a reasonable doubt wherefore
he should have acquitted the appellant.
I have carefully considered same but am in no way convinced that the
magistrate erred in
the conclusions that he came to. On the contrary,
I am satisfied that the mentioned medical report and the reporting of
the incident
constitute more than sufficient corroboration for the
version of the complainant. The complainant was a single witness in
respect
of the rape. Mr Bontes, appearing for the State,
referred us to the case of
ICM
v The State
[4]
wherein Musi AJA (writing on behalf of the unanimous full bench)
reiterated the principles when a presiding officer must adjudicate
on
the evidence of a single witness
[5]
as set out in
S
v Sauls
[6]
.
[9] I am therefore not
convinced that the magistrate erred in his findings in convicting the
appellant as he did. In respect of
the sentences imposed I have no
hesitation that the sentences could reasonably be imposed. Sentencing
is the prerogative of the
trial court and a court of appeal cannot at
will interfere therewith in the absence of a mistake or
misdirection
[7]
. None of the
above scenarios occurred herein and I am of the view that the
sentences imposed were proper.
[10] Mr Reyneke,
appearing for the appellant, in my view needs to be complimented for
his thorough and responsible arguments both
in his heads of argument
and before us. Notwithstanding this, the appeal cannot succeed. The
result is that the appeal against
both convictions and sentences
stands to be dismissed.
[11] I accordingly make
the following order:
The appeal against the
convictions and sentences on the counts of kidnapping and rape, is
dismissed.
C REINDERS, J
I
concur.
AP BERRY, AJ
On
behalf of the Appellant:
Mr
D Reyneke
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the Respondent:
Mr
L Bontes
Instructed
by:
Office
of the DPP, Free State
BLOEMFONTEIN
[1]
Act 32 of 2007.
[2]
Act 105 of 1997.
[3]
Act 65 of 1995.
[4]
(692/2021)
[2022] ZASCA 108
(15 July 2022).
[5]
At para [22] of the judgment.
[6]
1981 (3) SA 172 (A).
[7]
Director of Public Prosecutions, Gauteng v Pistorius
2016 (2) SA 317
(SCA).