About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 413
|
|
Dywili v S - Appeal (A55/2023) [2023] ZAFSHC 413 (24 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A55/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
NTSIKELELO
SIMON DYWILI
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, ADJP
et
VAN RHYN, J
JUDGMENT
BY:
REINDERS, ADJP
HEARD
ON:
23 OCTOBER 2023
DELIVERED
ON:
24 OCTOBER 2023
[1]
The appellant was arraigned in the Regional
Court in Bloemfontein on a charge
of
rape of a minor boy, aged 12 years, in contravention of s3 of the
General Law (Sexual Offences
and
Related Matters) Amendment Act
[1]
,
read with the provisions of
s51(1)
of the Criminal Law Amendment Act.
[2]
[2]
Appellant pleaded not guilty but, having
heard the evidence of the state witnesses and the appellant,
the
trial court on 30 November 2022 convicted him of rape and on even
date sentenced him to imprisonment for life.
[3]
The appeal came before us by way of the
appellant’s automatic right of appeal in terms of s309 (1)
of
the Criminal Procedure Act
[3]
,
read together with s10 and 43 (2) of the Judicial Matters Amendment
Act
[4]
, by virtue of the imposed
sentence of life imprisonment. This appeal lies against both
conviction and sentence.
[4]
The nub of the state’s version of
events, as accepted by the learned magistrate, entailed that
the
complainant on the specified date went to the appellant (their
neighbour) to request assistance with his mathematical home
work. He
went back home to fetch his books. Shortly after his return the
appellant offered the complainant water to drink,
where after the
complainant could recall immediately feeling dizzy and disorientated.
The accused anally raped the complainant
and, upon arriving at home
after some hours, the complainant’s mother observed him to be
sleepy, very emotional and upset.
A report was later made by the
complainant and a case of rape was opened against the appellant.
[5]
The appellant’s grounds of appeal against his conviction (as
contained in the appellant’s application
for leave to appeal),
read as follows:
“
1.5.1
The Court a quo erred in finding that the State proved its case
beyond reasonable doubt.
1.5.2
The Court a quo erred in finding that the evidence of a single
witness was satisfactory in all material
respects;
1.5.2
The Court a quo erred in not placing enough weight on the
contradictory versions of the complainant and
his mother regarding
the disagreement of the dog and not finding that they were hiding
their motive to falsely implicate the appellant.
1.5.3
The Court a quo erred in accepting the evidence of the state and
rejecting the evidence of the defence in
finding that the appellant
was not a credible witness and therefore rejecting the version of the
Appellant as not reasonably possibly
true;”
[5]
[6]
In respect of the appellant’s conviction, the learned
magistrate provided a comprehensive
typed judgment (“the
judgment”) which was annexed to the record and marked as
“Exhibit E”.
[6]
In
his judgment the magistrate fully summarised the evidence of the
state witnesses and the appellant, both in respect of their
evidences-in-chief, cross-examination and re-examination.
6.1
It is evident that the magistrate was well aware of the fact that the
complainant was not only a single
witness, but also a child witness.
He applied the cautionary rules in his evaluation of the
complainant’s evidence and found
him to be a good and reliable
witness. The magistrate likewise deemed the rest of the state
witnesses, having taken proper consideration
of minor discrepancies
between them, to be reliable.
6.2
The magistrate was not impressed with appellant’s testimony and
found his version to be “clearly
opportunistic, unreliable and
untrustworthy”, with reference to several contradictions,
improbabilities and discrepancies
in the appellant’s version.
This included, amongst others, the ground of appeal heavily relied
upon by the appellant in respect
of his version that a false charge
of rape was laid against him as an act of revenge relating to the
complainant’s dog. The
magistrate in his judgment recorded that
the appellant himself testified that the incident of the dog
transpired only after the
charge of rape was laid against him.
Appellant’s version
in all respects was rejected as being false. On that basis the
magistrate found the state to have proven
its case beyond a
reasonable doubt.
[7]
It is trite that in the absence of an irregularity or
misdirection by the trial court, a
court of appeal is bound by
credibility findings thereof, unless it is convinced that such
findings are clearly incorrect.
[7]
[8]
In my view the magistrate was correct in convicting the appellant as
he did. There is no indication
of any misdirection in respect of any
relevant evidence. He took a holistic view of all the evidence
tendered before him, applied
the legal principles in considering the
matter and the appellant’s guilt, and comprehensively indicated
his reasoning for
finding the state to have proven its case beyond a
reasonable doubt. Therefore, there is no basis upon which we should
interfere
with the conviction. The result is that the appeal against
conviction should be dismissed.
[9]
As mentioned, the appellant was charged with and convicted of a count
of rape to be read with
the provisions of Act 105 of 1997, Part I of
Schedule 2. The trial court was well aware of the principles
enunciated in
S
v Malgas
[8]
in
respect of a deviation from the minimum ordained sentence of
imprisonment for life. He considered same and declined to find any
substantial and compelling circumstances.
[10]
The main thrust of the appellant’s grounds of appeal in
respect of his sentence entails that it is shockingly inappropriate
and not proportionate to the offence committed, his personal
circumstances and other surrounding circumstances. Moreover, it was
submitted that the magistrate erred in his conclusion of not finding
any substantial and compelling circumstances to be present.
[11]
From the record it is evident that the learned magistrate was well
appraised of the time honoured triad
in
Zinn
[9]
,
the purposes of sentence and the principles to be applied in arriving
at a fair and just sentence:
11.1
The personal circumstances of the appellant were fully dealt with by
the magistrate. The magistrate took
into account that the appellant
was a first offender who contributed to the financial needs of his
minor children who resided with
their respective biological mothers.
11.2
The magistrate considered the crime and the seriousness thereof. He
alluded to the fact that the Victim Impact
Report of the complainant
indicated that the complainant after the incident “has no
confidence left; does not want to leave
the house; he is thinking
about committing suicide as a result of this”. The
magistrate deemed it to be aggravating
that the appellant was a
neighbour of and in a trust relation with the victim but, instead of
assisting the victim, raped the victim.
11.3
The interest of the community and the deterrence of would-be
offenders were addressed by the magistrate and
he, in my view
correctly so, rejected the submission by appellant’s legal
representative that the absence of physical injuries
to the appellant
warranted a deviation from the prescribed minimum sentence.
[12]
It has long been established that sentencing is pre-eminently the
prerogative of
the trial court and a court of appeal should be
careful not to erode this discretion.
[10]
Interference is warranted in the sentence where there has been
a failure of justice, or when the court a quo misdirected
itself to
such an extent that its decision on sentencing is vitiated, or the
sentence is so disproportionate or shocking that no
court could have
imposed it.
[11]
[13]
Mindful of the aforementioned principles, the submissions placed
before us for interference
with the sentence imposed by the trial
court, were considered.
[14]
The magistrate considered all factors to reach a balanced and just
sentence as indicated
in para 11. It must be stressed that the
seriousness of rape can never be overemphasized. Our courts have
consistently condemned
rape in the strongest expressions as an
invasion of the dignity, privacy, integrity and personal
freedom of the victim.
[12]
[15]
The views expressed by the Supreme Court of Appeal in
S
v MM
[13]
are apposite:
‘
It is necessary
to reiterate a few self-evident realities. First, rape is undeniably
a degrading, humiliating and brutal invasion
of a person’s most
intimate, private space. The very act itself, even absent any
accompanying violent assault inflicted by
the perpetrator, is a
violent and traumatic infringement of a person’s fundamental
right to be free from all forms of violence
and not to be treated in
a cruel, inhumane or degrading way.’
[16]
Moreover, rape of a vulnerable child is a reprehensible crime that
can and should never be tolerated in a
civil society.
[17]
Having applied the principles warranting interference with the
sentence imposed by a trial court the magistrate
can in my view not
be faulted, resulting therein that the appeal against conviction
should likewise be dismissed.
[18]
Accordingly the following order is made:
The appeal against
conviction and sentence is dismissed.
C
REINDERS, ADJP
I
concur.
I
VAN RHYN, J
On
behalf of the Appellant:
Ms S
Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent:
Adv M
Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
32 of 2007.
[2]
105 of 1997.
[3]
51 of 1977.
[4]
42 of 2013.
[5]
Record p 225-226.
[6]
Record (supplementary bundle) p 26-32.
[7]
See:
S
v Francis
1991 (1) SACR 198
(A) at 204c;
J
v S
[1998] 2 All SA 267
(A) at 271c
[8]
2001(SACR) 469 (SCA).
[9]
S
v Zinn
1969 (2) SA 537 (A).
[10]
See:
S
v Rabie
1975 (4) 855 (AD).
[11]
See:
S
v Boggards
2013 (1) SACR (CC) at [4].
[12]
See:
S
v Chapman
1997 (2) SACR 3(SCA).
[13]
2013 (2) SACR 292
(SCA) at [17].