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[2023] ZAFSHC 326
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Thomas v S (A44/2023) [2023] ZAFSHC 326 (10 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case no: A44/2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES: NO
In
the matter between:
LEFA
PAULUS THOMAS
Appellant
and
THE
STATE
Respondent
CORAM:
MOLITSOANE, J
et
MTHIMUNYE, AJ
HEARD
ON:
31 JULY 2023
DELIVERED
ON:
10
AUGUST 2023
JUDGMENT
BY:
MTHIMUNYE,
AJ
This judgement was handed down
electronically by circulation to the parties’ representatives
by email, and released to SAFLII.
The date and time for hand-down is
deemed to be 13:00 on 10 August 2023
[1] The
appellant was convicted on a charge of Housebreaking with intent to
rape and rape in contravention
of section 3 of the Sexual Offences
and Related Matters Amendment Act 32 of 2007) read with the
provisions of Section 51 of the
Criminal Law Amendment Act 105 of
1997(count 1); Housebreaking with intent to steal and theft (count 2)
and Sexual assault in Contravention
of section 5(1) of the Criminal
Law Amendment Act 32 of 2007 (count 3). He was sentenced to life
imprisonment in respect of Count
1, five years’ imprisonment in
respect of Count 2 and five years’ imprisonment in respect of
Count 3. The sentences
were ordered to run concurrently. He enjoys an
automatic right of appeal and appeals both the conviction and
sentence.
Ad Conviction
[2] The
appellant assails the conviction on the following grounds:
(a)
That the trial court erred in finding that
his identity was proved beyond a reasonable doubt and not considering
that the offences
took place at night or in the early hours therefore
it would not have been possible for the complainants to positively
identify
him.
(b)
That the trial court erred in not taking
into account that cautionary rules were applicable because the
complainant, in respect
of count 1 was a minor and in Count 2 and 3
relied on the evidence of a single witness in so far as identity is
concerned.
[3] M[…]
P[…], the complainant in count 1 testified that on the night
of 26
th
October 2014, after hearing someone walk in the
house, woke up to find the appellant, who was wearing a white T-shirt
and dark
blue jeans standing in her room by the bed she shared with
her younger brother. She knew the appellant as Kofifi and could see
him well as the kitchen light was still on. The appellant got into
the bed and the complainant told her little brother to go alert
the
elders. The appellant undressed her and penetrated her vaginally,
when she tightened her thighs, he penetrated her anally.
She
tried to scream but the appellant covered her mouth with his hand.
When the Appellant heard the complainant’s brother
T[…]1
P[…] talking and coming towards the house he stopped and that
is when the complainant ran out of the house
towards the Pastor’s
house, the appellant followed her and tripped her with his feet
causing her to fall and he fell on top
of her. As T[…]1
approached, the appellant ran away. She was eleven years old at that
time.
[4]
T[...]1 testified that on the day of the incident at about 3am he was
sleeping when he was woken
up by T[...]2, one of his siblings and
N[...], the younger brother screaming that the appellant was doing
nasty things to his sister.
He went out of the room and as he came
towards the other door, the complainant was coming out of the room
and the appellant was
coming behind him. He came face to face with
the appellant whom he had known for 7 years and grabbed him by the
T-shirt. He
also described the appellant’s scar between
his eyebrows. The appellant managed to free himself from his grip and
chased
the complainant. T[...]1 followed suit and chased after the
appellant. When the appellant reached the complainant by the pastor’s
gate he tripped her, causing her to fall and in turn fell on top of
her. T[...]1 tried to get some stones to throw at the
appellant
but he managed to escape and ran into a passage and got away.
T[...]1 returned to the house and that is when the
complainant
told him that the appellant had penetrated her vagina and anus.
[5]
Nomvuyo Jonas testified that on 26
th
October 2014 she went
to bed around 02:00am in her uncle house. At about 3:30am she woke up
to find the appellant next to her bed.
Thinking it was her uncle and
perhaps he had fought with his wife and needed some space to sleep,
she moved over. The appellant
got into the bed and started touching
her buttocks and genitals. Knowing her uncle would never do such, she
reached for her phone
and turned on the light onto the face of the
person. She saw the face and the scar between the eyebrows. The
appellant then wrestled
the phone from her as she was screaming her
uncle’s name and ran out of the room with the phone. As the
uncle came, he met
the appellant in the sitting room and there was a
struggle until the appellant got away through the window. All doors
had been
and were still locked. The phone was found behind the couch.
The following day the police called her to identify the appellant and
she did as she remembered his face well.
[6] The
fourth witness was Mr Mateto Cane Jonas, the uncle to Nomvuyo. He
corroborated Nomvuyo’s
evidence in respect of being woken up by
her scream and met an unknown person by the sitting room. He grabbed
him and they struggled
a bit until the person managed to get out
through a broken window. When he was outside and he observed that he
was wearing a t-shirt.
When they tried to call the police they
discovered that his and his wife’s phones, a Samsung Galaxy and
a Huawei were missing.
The phones were found in the appellant’s
possession by the police.
[7] The
fifth witness was Ms Phokwane Maria Mosala, a forensic coordinator at
Moroka Hospital in Thaba
Nchu. She examined M[…] on 26 October
2014 at about 09:56 and completed the J88. The J88 depicted that the
complainant had
been penetrated and sustained injuries. The J88 was
accepted as evidence with no objection.
[8]
Sergeant Angus Faltimus Steyn was the state’s sixth witness and
he testified that on 26
th
October 2014 at about 10:00am he
was approached with information about a rape suspect and given the
address. On arrival he knocked
and the appellant opened the door. He
searched the shack and found two cell phones i.e. a Samsung Galaxy
and a Huawei between the
mattress and the base. He recovered them as
he suspected they were stolen. He took the appellant back to the
station and he found
one of the complainants who pointed the
appellant out as the rape suspect. He asked about the cell phones and
they were positively
identified by one of the complainants. He then
arrested the appellant on the spot.
[9] The
appellant denied all charges and claimed an
alibi.
His version
was that on the night in question he was at a tavern playing pool. He
left the tavern around 5am and on his way home
met a certain Sbongile
who sold him the two phones for R200. He knew both the complainant in
count 1 and her brother as they stay
on the same street and the
complainant grew up before him. He admitted that they both also know
him very well. He said T[...]1
had previously laid a complaint of
rape against him for raping the same complainant and he had served 10
years for that. According
to him, the reason they lay false charges
against him is because they owed him money and did not want to pay
him. He said he was
circumcised when he was in prison in 2013 but
they cut too much skin and his penis could not heal properly. As a
result his penis
hurts when he gets an erection and he could not have
raped M[…].
[10] Under
cross-examination he changed and said the rape charge was in respect
of a lady next door not the complainant
and it was not Mr T[...]1 who
owed him money but the mother. Within a minute, he changed
again and said the complainant had
ganged up with other ladies to
bring a charge of rape against him. The amount he bought the cell
phones with also changed to R250
and the seller was now Mzwandile.
It was no longer T[...]1 who had brought previous rape charges
against him but M[…]
with other group of girls.
[11] The appellant
argues that the court a quo erred in finding that his identification
was proven beyond a reasonable
doubt as it relied on a single witness
who could not have seen the attacker properly as it was night or
early hours of the morning.
[12] It is settled
law that the evidence of a single witness must be approached with
caution. It is within the
competence of a court to convict on the
evidence of a single witness. In
S v Sauls and Others 1981 (3) SA
at 172 at E-G
the court said the following:
“
There is no
rule of thumb test or formula to apply when it comes to consideration
of the credibility of a witness…The trial
judge will weigh his
evidence, will consider its merits and demerits and, having done so,
will decide whether it is trustworthy
and whether, despite the fact
that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the
truth has been told… It
has been said more than once that the exercise of caution must not be
allowed to displace the exercise
of common sense.”
[13] In
S v
Mthethwa
1972 (3) SA 766
(A)
, the Appellate Division, as it then
was, set out the following approach where identification is in
dispute:
“
Because of
the fallibility of human observation, evidence of identification is
approached by the courts with some caution.
It
is not enough for the identifying witness to be honest.
The
reliability of his observation must also be tested. This depends on
various factors such as
lighting,
visibility and eyesight, the proximity of the witness
,
his opportunity for observation, both as to time and situation;
the
extent of his prior knowledge
of the
appellant,
the mobility of the scene
;
corroboration;
suggestibility;
the appellant’s
face, voice, built gait and dress
; the
result of identification parades; if any, and
of
course evidence by or on behalf of the appellant.
The list is not exhaustive, these factors or such of them as are
applicable in a particular case, are not individually decisive,
but
must be weighed one against the other,
in the light of the totality of evidence and the probabilities.
”
[14] The factors
listed in the above paragraph have to be considered in the light of
the totality of evidence
and the probabilities and they are not
individually decisive, see
R v Dladla and Others,
1962 (1) SA
307(AD).
In
casu,
M[...] had prior knowledge of the
appellant. She could see the appellant properly as the kitchen light
was on and there was no barrier
between the kitchen and the bedroom
they were sleeping in as the door only had a frame but no physical
door. Her evidence was also
corroborated in all material respects by
that of her brother T[...]1 who testified that the appellant was
wearing a t-shirt and
blue jeans. In fact, he grabbed him with his
t-shirt before he got away. T[...]1 also testified about the kitchen
light being on
and the appellant tripping the complainant and falling
on top of her. Nomvuyo, the complainant in count 3 was also
able to
positively identify the appellant with the scars between his
eyebrows.
[15] M[...] and
Nomvuyo’s evidence ticks a majority of boxes in the Mthethwa
test. The extract from
S v Sauls
is self-explanatory,
the application of cautionary rules should not be allowed to trample
on the use of common sense. There
is no merit in the
appellant’s arsenal against the findings of the court
a quo.
[16] The appellant’s
evidence on the other hand was fraught with inconsistencies and
contradictions. He
was evasive and argumentative and his evidence was
just everywhere. He seemed to be focused on getting sympathy from the
court
about his allegedly injured penis and him not being able to
bury his mother because of these allegations. One minute he is
related to Nomvuyo the next minute only to the wife of the uncle. The
name of the person who sold him the phones was Sbongile when
his
version was put to the state witnesses and during cross-examination
his name became Mzwandile. He was circumcised in prison
in January
2013, under cross it was May 2013 and a minute later in was in
September 2013. Throughout his evidence when caught out,
he would
simply plead a mistake.
[17] In respect of
count 2, the stolen phones were found in his possession within hours
of the theft and positively
identified by the complainants. Further,
both Nomvuyo and Mr Jonas testified that they locked the doors before
going to sleep and
the doors were still locked when the appellant
escaped through a broken window. His version could under no
circumstances be reasonably
possibly true and this court must agree
with the learned magistrate that his version stood to be rejected and
finding that the
state had proven the appellant’s identity and
the overall case beyond a reasonable doubt.
Ad Sentence
[18] The appellant
assails the sentence on the basis that the trial court erred in
finding that there were no
substantial and compelling circumstances
justifying a deviation from prescribed minimum sentence in respect of
Count 1, overemphasizing
the seriousness of the offence, the interest
of the community and the complainant and giving no weight to the
personal circumstances
of the appellant. He is appealing to
this court to reduce his sentence in respect of Count 1 from life
imprisonment to twenty-five
(25) years, from five years to three
years in respect of Counts 2 and 3 respectively.
[19] It is trite
that in an appeal against sentence, the appellate court must be
guided by the principle that
punishment is pre-eminently a matter for
the discretion of the trial court and the appeal court can only
interfere if the sentence
imposed by the trial court is disturbingly
inappropriate or if an irregularity occurred during sentencing
(S
v Giannoulis
1975 (4) SA 871
(A); S v Malgas
2001 (1) SACR 469
SCA at
para 12); S v De Jager and Another
1965 (2) SA 616
(A) at 629.
[20] The court
a
quo
sentenced the appellant to a minimum sentence as prescribed
by
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
which
reads:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
who has been convicted
of an offence referred to in
Part I
of Schedule 2 to imprisonment for
life. …”
[21] The charge with
which the appellant was convicted of in respect of Count 1 is listed
in
Part 1
of Schedule 2 as follows:
“
Rape as
contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007-
(a) …
(b)
Where the victim-
(i) is a person under the age of 16
years;
…”
[22] Having been
convicted of a rape of a person under the age of 16 years, the
Appellant fell squarely into the
ambit of Section 51(1) of Act 105 of
1977. It is a trite principle that courts can only deviate from
minimum prescribed sentences
where there are substantial and
compelling circumstances to do so and these cannot be flimsy reasons
(S v Malgas
2001 (1) SACR 469
(SCA))
. The responsibility
to present and prove the existence of substantial and compelling
circumstances rests with the Appellant.
[23] The appellant
contends that the court completely disregarded his personal
circumstances, which if were duly
considered, the court would have
found them to constitute compelling and substantial circumstances on
the basis of which the court
could deviate from the minimum
prescribed sentence. The question this court must answer then is
whether or not the Appellant’s
personal circumstances as
presented before the trial court, are substantial and compelling to
justify a departure from a prescribed
sentence.
[24] The appellant’s
personal circumstances were that he was 31 years old at the time of
the commission
of the offence, doing odd jobs that paid him between
R150.00 to R250.00 a day. He was unmarried and has two minor children
who
were 7 and 12 years old then. The children stay with the
appellant’s sister as both his parents are deceased. He has
previous
convictions of rape and possession of drugs. At the time of
sentencing. he had been in custody for one year and ten months.
[25] A critical duty
of a sentencing court is balancing the Zinn triad i.e. the
seriousness of the crime, the
interests of society and the personal
circumstances of the offender
(S v Zinn
1969 (2) SA 537
(A)
.
It is inarguable that the offence for which the applicant was
convicted is very serious. It is one of the most horrendous criminal
acts the impact of which is severe and permanent. Even more
aggravating when such an act is committed against a minor child. The
impact of this act on the child cannot be understated. What is more
saddening is that the child was raped in the safety if her
home by a
neighbour, someone she trusted and to whom she should be able to look
up to for protection.
[26] The
Constitutional Court in
S v Jansen
1999 (2) SACR 368
(C
) at
378 G – 379B, asserted this as follows
“
Rape of a
child is an appalling and perverse abuse of male power. It strikes a
blow at the very core of our claim to be a civilised
society…The
Community is entitled to demand that those who perform such perverse
acts of terror be adequately punished and
that the punishment reflect
societal censure”.
[27] Courts of
appeal, and more specifically the Supreme Court of Appeal has been
consistent in upholding sentences
of life imprisonment or lengthy
sentences in cases of rape of children. In
Abrahams v S
[2019]
ZAWCHC 62
, the accused was convicted of rape of an 11-year-old
and was sentenced to life imprisonment. On appeal, his sentence was
confirmed.
In
Konstabel v S
[2020] ZAWCHC 75
the accused was
convicted of rape of an 8-year-old child and was sentenced to life
imprisonment. The Supreme Court of Appeal confirmed
this sentence on
appeal.
[28] In
casu
,
the victim was a child below the age of 16 years (she was 11 years at
the time of the rape). Further the appellant has a previous
conviction of a similar nature. Clearly the first sentence did
nothing to deter him, and it is quite clear that he has no or very
little regard for the law. Having considered this and the
decisions of other appeal courts as cited above, I agree with the
learned Magistrate that none of appellant’s personal
circumstances, individually or cumulatively, constitute substantial
and compelling circumstances for the court to deviate from the
prescribed minimum sentence. The learned Magistrate, correctly so,
sentenced the appellant to life imprisonment as prescribed in Section
51(1) of Act 105 of 1977.
This court finds no
misdirection on the part of the learned Magistrate and therefore,
there is no reason for this court to
interfere with the sentence
imposed in respect of Count1.
[29] The appellant
further avers that the fact that the Complainant in Count 1 did not
sustain serious physical
injuries should have been considered as a
mitigating circumstance by the trial court. Evidence was placed
before the trial court
that the victim sustained injuries as a result
of forced penetration in a form of a J88. The appellant further
tripped the victim,
an 11-year-old, with his leg causing her to fall
and sustaining abrasions on her elbow and knee. It puzzles this court
therefore
how the Appellant is making this averment. Be that as it
may, even if this averment was true, the following provisions of
Section 51(3) (a) of Act 105 of 1977
provide an answer
thereto:
“
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:
1.
…
2.
An apparent lack of physical injury to the complainant”
[30]
Applying this provision, in
Maila v S (429/2022)
2023 ZASCA 3
,
the Supreme Court of Appeal held that the fact that a victim did not
sustain grievous bodily injuries does not constitute a substantial
and compelling circumstance warranting deviation from the prescribed
minimum sentence of life imprisonment. It follows therefore,
that the
assertion that these factors are substantial and compelling, must be
rejected as it was, correctly so, by the learned
Magistrate.
[31] Neither in the
notice of appeal nor in the heads of argument did the appellant
address this court on why
it should interfere with the sentences in
respect of Counts 2 and 3. I have considered same and similarly,
found no misdirection
on the part of the learned magistrate and as
such no reason to interfere with the sentences imposed in respect of
Counts 2 and
3 as they are neither shocking and there was no
irregularity during sentencing. Resultantly, the appeal must fail.
Consequently, I make the
following
Order
:
1.
The appeal in respect
of the conviction is dismissed.
2.
The convictions in
respect of Counts 1, 2 and 3 are confirmed.
3.
The appeal in respect
of the sentence is dismissed.
4.
The sentences imposed
by the court
a quo
in respect of Counts1, 2 and 3 are confirmed.
D.P. MTHIMUNYE, AJ
I agree.
P.E. MOLITSOANE, J
Appearances:
For
the Appellant:
Mr D
Reyneke
Instructed
by
Legal
Aid South Africa
Bloemfontein
For
the Respondent:
Ms L
Mkhabela
Office
of the Director of Public Prosecutions
Bloemfontein