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[2023] ZAFSHC 395
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Tlaki v S - Appeal (A182/2022) [2023] ZAFSHC 395 (12 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Appeal
number: A182/2022
In
the Appeal between:
STEVEN
ZULU TLAKI
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
VAN
RHYN, J
HEARD
ON:
28 AUGUST 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
12 OCTOBER 2023
[1]
The appellant appeared in the Bethlehem Regional Court where he was
indicted on two
counts of rape
in contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
read with section 51(1) of the
Criminal Law Amendment Act 105 of 1997 (“the CLAA”). It
was the State’s case that
on
06 September 2015
the
appellant together with an unidentified male gang
raped the
complainant in count 1 more than once. She was 17 years old at that
time. Approximately three years later on 02 November
2018, the
appellant raped the complainant in count 2, a child aged 12 years.
[2]
After pleading not guilty to both counts, the appellant tendered a
plea explanation
in relation to the first count. He denied having
raped the complainant and admitted that on the said date
he
had sexual intercourse with her. His
admission
was accordingly recorded by the trial court in terms of section 220
of the Criminal Procedure Act
[1]
(“the CPA”). With regard to the remaining count, the
appellant elected not to disclose the basis of his defence.
[3]
On 28 May 2020, the appellant was convicted on the first count based
on the evidence
of the complainant, the first report, Mr Simon
Tshabalala and warrant officer Marius Nel. He was subsequently
sentenced to 25 years’
imprisonment the trial court having
found substantial and compelling circumstances to deviate from the
prescribed sentence of life
imprisonment. A consequential order was
also made as contemplated in section 103 of the Firearms Control
Act.
[2]
He was acquitted in
respect of count 2.
[4]
The appellant’s application for leave to appeal both the
conviction and sentence
was dismissed by the trial court. Leave to
appeal
was subsequently granted by
this court by way of a petition in terms of section 309C of the CPA.
[5]
The conviction is assailed on the grounds that in convicting the
appellant, the trial court relied
on contradictory and unreliable
evidence to conclude that the State proved its case against the
appellant beyond reasonable doubt.
The appellant contends that there
were material contradictions between the complainant’s evidence
and that of her first report
witness Tshabalala in that, the
complainant had
testified that she was nearby Bossie’s
tavern when she met her assailants whilst Tshabalala testified that
the complainant
told him that she was nearby the dam in the area
called Egypt when she met her assailants.
[6]
Regarding sentence, the appellant is aggrieved that the following
factors were not taken into
account by the trial court for the
purpose of sentencing namely: the fact that this was not the most
severe case of rape, the complainant
did not sustain any physical
injuries, there was no evidence of lasting emotional trauma and he
was in custody since he was arrested.
He
contends
that the sentence of 25 years’ imprisonment is
shockingly inappropriate. It
must be reduced to a
sentence of
15 years’ imprisonment.
[7]
The appeal is opposed essentially on the grounds that the
discrepancies between the complainant’s
testimony and that of
her first report witness were not material. The State is not required
to close every loophole available to
an accused to secure a
conviction. The trial court correctly evaluated the evidence
proffered in its totality, it duly considered
the inherent
probabilities and improbabilities present in both the State’s
and appellant’s versions and having done
so, it concluded that
truth was told by the complainant. Regarding sentence, it is the
State’s case that the sentence imposed
is in accordance with
the law.
[8]
The circumstances which gave rise to the appellant’s conviction
are as follows:
immediately before the complainant was attacked she
had a good time partying with her friends Relebohile, Mamello and
Mathapelo
at Relebohile’s home. The friends then decided to go
to Steve’s tavern where they continued having a great time and
enjoying alcoholic beverages until around 1am when the complainant
decided that she had had enough and decided to heed home. Her
friends
tried to accompany her but had to turn back when Mamello fell sick.
The complainant then decided to carry on and walk home
alone. On her
way, next to Bossie’s tavern she met two men who at first
appeared to be kind to her and even offered to accompany
her home but
they then started to attack her. They slapped, strangled and dragged
her to an open veld where they undressed her
and took turns raping
her more than once. After they were done raping her they robbed her
of the alcohol she had in her handbag
and her keys. They shoved some
white powder inside her mouth and forced her to drink alcohol to wash
it down. One of the men contemplated
killing her but the other one
reasoned that she did not know them therefore they should leave her
alone. They ran off leaving her
in the veld. She stood up, got
dressed and went back to Relebohile’s home where she reported
the rape to Relebohile’s
brother, Tshabalala. It was the
complainant’s testimony that the men were unknown to her, she
was only able to identify the
appellant later at a photo identity
parade.
[9]
Tshabalala corroborated the complainant’s first report of the
rape incident. He confirmed
that the complainant arrived at his home
crying and spontaneously reported that she was raped by two unknown
men she had met next
to the dam on her way home. An ambulance was
called. The complainant was taken to the hospital thereafter a rape
case was opened
with the police.
[10]
A medical report (the J88) compiled by a nursing sister on 06
September 2015 was handed in by concurrence
of the State and the
defence as Exhibit “I”. It indicated that no visible
injuries were noted. The gynaecological examination
revealed a fresh
tear at 6 o’clock area and a between a 3 o’clock and 6
o’clock area. The injuries were consistent
with forceful
genital penetration.
[11]
At the conclusion of the State’s evidence, the court invoked
the provisions of section
186 of the CPA and called warrant officer
Nel who confirmed that when the complainant reported the case she did
not know the identity
of the men who had raped her. The appellant was
linked to the rape through
deoxyribonucleic
acid evidence (
DNA).
[12]
Following the applicant’s failed application for a discharge in
terms of section 174 of
the CPA, the appellant testified in his
defence. He stated that the complainant was actually his girlfriend.
They met earlier on
the day of the incident at around 8pm at Steve’s
tavern. He approached her and proposed love to her. Due to the noise
in
the tavern they agreed to go and continue their conversation
outside and this is where the complainant positively responded to his
love proposal. When he asked her to prove to him that she indeed
loved him she kissed him. They then decided to move to a passage
situated in a more private and dark area where they engaged in
consensual intercourse. When they were done, the complainant
confirmed
her satisfaction when he asked her whether she was
satisfied sexually. He asked her for her contact numbers but she told
him that
she did not have her phone with her. They then agreed that
they would meet at the taverns. He left the complainant at Steve’s
tavern as he had to work the following day.
[13]
On the facts germane to this matter the complainant was a single
witness to the rape. The learned
magistrate was alive to the
cautionary rule applicable under these circumstances. It is clear
from the record of the proceedings
that the learned magistrate’s
conclusion that the complainant had told the truth about the rape is
premised on the fact that
despite having had imbibed on alcohol the
complainant was not intoxicated in that, she was able to comprehend
and observe her surroundings
and was later able to relay to the trial
court a succinct and detailed description of not only where and how
the rape occurred,
but also which role was played by the respective
perpetrators.
[14]
As correctly pointed out by the appellant, the learned magistrate did
allude to the contradictions
between the State’s witnesses’
evidence regarding where the complainant met her assailants and found
that the contradictions
were immaterial to warrant a rejection of the
State’s case in
toto.
[15]
I cannot fault the trial court’s conclusion in this regard
because, n
ot
every
discrepancy in the evidence affects the credibility of a witness.
Evidence as a whole must be taken into account including
the nature
of the discrepancy, its importance and bearing on the matter under
consideration.
[3]
The issue of
whether it was near the dam or near Bossie’s tavern where the
complainant met her assailants is not material
for the determination
of the issue namely, whether the complainant was raped by the
appellant or not.
[16]
On the other side, the appellant’s version was rejected
essentially on the basis that it
was improbable and fabricated. I
also agree with this finding for the reason that, the appellant
waited until the complainant left
the stand to relate to the trial
court minutely the details from the time he saw the complainant, how
he approached her and spoke
to her. He detailed their intimate
conversation which led to them going outside the tavern to continue
with their talk, the complainant
kissing him to prove her love for
him and voluntarily had sexual intercourse with him. He also
mentioned that he was such a gentleman
that after the sexual
encounter he even asked the complainant if she was satisfied and she
confirmed that she was indeed satisfied.
Bizarrely, in both his
direct evidence and under cross-examination the appellant was also
adamant that although the complainant
was in the company of her
friends sitting at a table inside the tavern, her friends did not see
him.
[17]
It is trite that a party who intends to lead evidence to contradict
an opposing witness, should
first cross-examine the witness upon the
facts which he intends to prove in contradiction, so as to give the
witness an opportunity
for explanation. Similarly, if the court is to
be asked to disbelieve a witness, that witness should be
cross-examined upon the
matter which it will be alleged to make her
case unworthy of credit. It is highly irregular to let a witness’
evidence go
unchallenged in cross-examination and afterwards relate a
variant version. While there is no obligation on an accused person to
prove his innocence, where he provides a version of his defence it
must be reasonably and possibly true to obtain an acquittal.
The
appellant’s version did not pass muster to the extent that the
ineluctable conclusion is that his defence of consensual
intercourse
was an afterthought merely fabricated to explain his DNA on the
complainant’s vaginal swabs.
[18]
The trial court painstakingly weighed up all the elements which
pointed towards the guilt of
the appellant against all those which
are indicative of his innocence. It took proper account of inherent
strengths and weaknesses,
probabilities and improbabilities on both
sides and, having done so came to the conclusion that the balance
weighed so heavily
in favour of the State as to exclude any
reasonable doubt about the accused’s guilt. I am thus satisfied
that the correct
approach to the evaluation of evidence as
articulated in
S
v Chabalala
[4]
was properly applied in rejecting the appellant’s version as
false beyond a reasonable doubt.
[19]
There is also no merit in the appellant’s complaint about the
appropriateness of the sentence.
In the trial court, it was common
cause that the offence that the appellant was convicted of due to it
being a gang rape and the
complainant was also raped more than once,
the applicable sentence was that of life imprisonment.
[20]
The record of the proceedings reveals that the appellant’s
personal circumstances namely
that: he was 30 years old, unmarried
with no children, he was self-employed and earned R2500.00 per month
and that he was a first
offender who spent a year and five months in
custody awaiting trial were taken into account for the purpose of
sentencing and also
as substantial and compelling reasons to deviate
from the applicable sentence of life imprisonment.
[21]
The fact that the complainant had no physical injuries does not make
the crime less heinous, rape leaves
the victims with life-long
emotional and psychological scars which do not heal easily as
compared to physical scars. This was clearly
evident from the
demeanour of the complainant in court. The mental anguish was still
apparent when she testified as a result the
court had to adjourn to
allow her some time to compose herself.
[5]
[22]
Having regard to the degrading nature and brutality of the offence
the appellant was convicted of including
the prevailing aggravating
factors namely that: the complainant was assaulted, strangled,
threatened with death during the rape
and also denigrated in court by
being labelled as the appellant’s girlfriend who had also
consented to the degradation of
her dignity in imposing a lesser
sentence than the prescribed sentence the appellant was shown mercy.
There is no basis to interfere
with the sentence, it reflects the
gravity of the crime and it also speaks to the plight of the victims
and the society at large.
[23]
In the
result,
I would make the following order:
Order
(1)
The appeal against both conviction and sentence is dismissed.
N.S.
DANISO, J
I
concur
I.
VAN RHYN, J
On
behalf of appellant:
Mr.
PL van der Merwe
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent:
Adv
DW Bontes
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
Act No, 51 of 1977.
[2]
Act No, 60 of 2000.
[3]
S v
Francis
1991
(1) SACR 198
(A) at 204 c-e;
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 706;
S
v Oosthuizen
1982 (3) SA 571
(T) at page 576 para G-H.
[4]
2003
(1) SACR 134
(SCA)
paragraph 15.
[5]
Record page 0161 at line 15 to 22.