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[2023] ZAKZPHC 134
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Mtambo v S (AR71/2021) [2023] ZAKZPHC 134 (3 November 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR71/2021
In
the matter between:
In
the matter between:
SABELO
MTAMBO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The
appeal against convictions and sentences on both counts is dismissed.
JUDGMENT
Sipunzi
AJ
[1]
On 23 October 2019, the appellant was convicted in the Regional
Court, sitting at
Vryheid, on charges of kidnapping and rape. He was
sentenced to three years’ imprisonment on the charge of
kidnapping and
life imprisonment on the charge of rape. With the
leave of the trial court on count 1, he appeals against his
conviction and sentence.
In relation to count 2, the appellant
appeals in terms of the automatic right of appeal against
the
conviction and sentence.
[2]
According to the complainant, during the evening of 2 June 2016, she
had been sent
to the shop by her grandmother. On her way home, she
encountered the appellant, who was unknown to her. He held her by her
arm
and led her to his house in a nearby locality. He warned her not
to cry or raise alarm, as he would kill her. As they were walking
towards his home, they went past people, but she was too afraid to
alert them to her situation. When some people asked where he
was
taking her, the appellant told them that she was his child. When they
arrived at his house, he sexually penetrated her. She
started to cry
but the appellant told her to stop crying, and threatened to kill
her.
[3]
During the night, the appellant led her to a forest where he sexually
penetrated her
for the second time. When he finished, he took her to
a mud house at Msimango homestead and sexually penetrated her on two
further
occasions. In the morning, the appellant left her alone in
the house. She remained in that house until she was fetched by the
local
councillor Bonginkosi Maxwell Nxusa (“Mr Nxusa).
[4]
From the said house, the complainant was taken to the police station
and later examined
by Doctor Nkosinathi Mkhwanazi (“Dr
Mkhwanazi”). Dr Mkhwanazi recorded his examination of the
complainant in the J88
form, marked exhibit C. With regard to the
gynaecological examination, he recorded that the complainant was at
tanner stage 1 of
her development. She looked scared, presented with
a tear on the right labia minora, a torn hymen and had a discharge on
her vagina.
Dr Mkhwanazi further explained that he did not insert his
finger in the complainant’s vagina, as he observed from the
complainant’s
mental state that she looked scared. He did not
want to cause any further trauma by putting his fingers in her
vagina. He concluded
that there was ‘
evidence of genital
trauma
’. He opined that his findings were consistent with
the history that was provided.
[5]
According to the complainant’s aunt, N[...] P[...] N[...]
(“Miss N[...]”),
she alerted their neighbours and the
police that the complainant could not be traced, since she was sent
to the shop by her grandmother.
The search for the complainant
continued until she was found alone inside Msimango homestead on the
following morning. She also
testified that she was present when Dr
Mkhwanazi examined the complainant. When it was put to her that
during the bail application,
she had said that Dr Mkhwanazi had
inserted his finger into the complainant’s vagina, she denied
it:
‘
Ms P[...]-
…Okay, you told the Court previously that the doctor, when
examining T…, he put on his gloves and he inserted
his finger
in to T…’s vagina, do you recall that? … Ms
N[...]- Well, the doctor took that object and then he
used it to
inspect it, and then he said we must come and observe. He pointed,
not that he inserted. Court- He pointed his finger?
--- He was
pointing to that object, the one that we were watching. Well, at the
time, as he was taking that machine, on his finger
on that glove,
there was blood. And then he showed us…’
And
further:
‘
Ms N[...]- …
in actual fact, he did not insert his finger, he was just picking up,
or lifting up that object.’
(My emphasis.)
[6]
Mr Nxusa confirmed the version of Miss N[...] on how the complainant
was found. He
added that during the search, he acquired the
appellant’s cell phone number, and it was the appellant who
directed him to
the house where the complainant was found.
[7]
The appellant did not deny that he met the complainant during the
evening of 2 June
2016, and that he spent that night with the
complainant. He contended that he had consumed alcohol and was
intoxicated when he
met the complainant. He admired her for her good
manners that she displayed. For this, he had bought her snacks at the
shop. The
complainant then followed him to his home. He allowed her
to remain in his company, gave her food and they were together at his
home until he fell asleep. He denied the allegations that he had
kidnapped and raped the complainant. He also denied that he had
threatened to kill her if she cried out.
[8]
The main issue arising on appeal, is whether the learned magistrate
misdirected herself
in finding that the evidence of the state
established the guilt of the appellant beyond reasonable doubt on the
following grounds,
namely:
a.
Whether the evidence of the complainant, upon which the State mainly
relied, was unreliable when measured against
the totality of the
evidence on record and was properly considered;
b.
Whether the bodily and gynaecological injuries, or lack thereof, were
inconsistent with the alleged prolonged
forced sexual activity;
c.
Whether the absence of fresh tears to the hymen, as recorded in the
J88 form, had any significance;
d.
Whether the absence of semen after the alleged four instances of
rape, as apparent in the DNA report, and the
presence of vaginal
discharge within 24 hours of the alleged rape merited further
questioning of Dr Mkhwanazi by the court;
e.
Whether the trial court erred and misdirected itself in its judgment
when it evaluated the evidence and made
favourable findings on the
credibility of complaint; the medical evidence of Dr Mkhwanazi and/or
his opinion; and
f.
Whether it erred when it found that the appellant’s alleged
state of intoxication was inherently
improbable and when it found
that his version was false and not reasonably possibly true.
[9]
It is not in dispute that the appellant and the complainant met
during the evening
of 2 June 2016, after which they spent the night
in each other’s company. It is common cause that the
complainant was seven
years old at the time, and she had been sent to
the shop by her grandmother. It is also not in dispute that the
complainant was
found in a house alone after Mr Nxusa had been
directed by the appellant on where to find her.
[10]
The State mainly relied on the evidence of a single witness on how
she alleged the appellant
forced her to his home and how he had raped
her repeatedly. The fundamental principle on the evaluation of the
evidence of a single
witness is that it must be approached with
caution. In
S
v Sauls and others
[1]
,
the court held:-
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single 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. The cautionary rule referred to by De Villiers JP
in
1932 [in
R
v Mokoena
1932
OPD 79
at
80] may be a guide to a right decision but it does not mean
that
the appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded.’
[11]
The evaluation of the evidence of all the witnesses by the court
revealed a clear and substantial
application of these principles and
included due regard being had to the age of the complainant. On a
closer look at the trial
court’s evaluation of the evidence of
the complainant, it clearly and satisfactorily applied due caution to
the complainant’s
credibility and reliability, in light of her
age and when tested against the evidence of other witnesses.
[12]
The argument raised on behalf of the appellant was mainly based on
the lack of genital injuries
that were inconsistent with the alleged
prolonged forced sexual activity. Much was also made of the apparent
absence of semen and
blood from the complainant’s genitals
during the examination by Dr Mkhwanazi. It was further argued that
the trial court
failed to accord sufficient weight to the
improbabilities of the evidence of the complainant. There was
specific reference to the
allegation that the appellant dragged the
complainant by her arm in full view of other people and that even
after having been placed
on a rocky surface, she presented with no
injuries.
[13]
The argument about the lack of or minimal genital injuries appears to
be oblivious to the elements
of rape as provided for in
section 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
, and in particular ‘sexual penetration’ as
defined in
section 1.
Sexual penetration is defined as including
‘
any
act which causes penetration
to any
extent whatsoever
by-
(a)
the genital organs of one person into or
beyond the genital organs, anus, or mouth of another person. . .’
From
the above extract, there is no requirement to show the extent to
which a complainant’s genital organ was penetrated by
the
alleged rapist.
[14]
In
H v
S
[2]
,
the complainant was 12 years old at the time of the incident.
[3]
The trial court had found that full penetration had not occurred. The
appeal court held that for a rape conviction to stand, a
full
penetration was not required, even in instances where sexual abuse
had been long-standing, and that it sufficed that it had
occurred. It
was held: -
‘
Our common law
held that the slightest penetration was sufficient to complete the
act of sexual intercourse. Burchell (3rd edition)
puts it as follows
at 706; “it is thus irrelevant that the male does not emit
semen, nor does it matter that the woman’s
hymen is not
ruptured”. See cases such as
S v K
1972 (2) SA
898
(A) at 900C where rape occurred even though the woman’s
hymen was not ruptured.’
[15]
The record is silent on whether the extent of the penetration was
canvassed with the complainant.
There had been no indication that the
appellant may have lacked the ability to have an erection or perform
sexual acts on anyone,
other than a blanket denial of any sexual
penetration of the complainant. Therefore, the argument that the
inconsistent, or lack
of, injuries on the complainant’s genital
organs or absence of the semen during the examination should raise
doubt about
the veracity of her version, cannot be sustained. The
reference that was made to the appellant’s state of sobriety
and how
it would have influenced the nature of the complainant’s
injuries was respectfully unconvincing.
[16]
With regard to the argument that the trial court did not afford
sufficient weight to the improbabilities
in the complainant’s
version, there are various factual statements that required
consideration. Much was made about whether
the doctor inserted his
finger into the vagina of the complainant. This appeared to be
fuelled by the allegation that Miss N[...]
testified that Dr
Mkhwanazi had inserted his finger when she testified during bail
application. Miss N[...] repeatedly denied that.
At page 124 of the
record, she stated categorically that ‘
he did not insert his
finger
,
he was just
picking up, or lifting up that
object.’
This explanation by Miss N[...] is corroborated by
Dr Mkhwanazi’s evidence that he did not insert his finger. It
is furthermore
consistent with Dr Mkhwanazi’s explanation on
why he decided not to insert his finger. When Dr Mkhwanazi was
questioned about
the nature of the injuries and the method of
examination, he explained that he decided not to insert his fingers
in her vagina
because she appeared to be scared, and he also did not
want to subject her to secondary trauma.
[17]
Further, during cross-examination, the complainant also explained
that when the appellant was
questioned why she was in his company and
holding her hand, he responded to say that she was his child. This
explanation was not
challenged. The complainant also explained that
she did not offer any resistance or raise alarm because the appellant
had warned
her against such and threatened to kill her if she did.
There was also an argument that the absence of bruises or injuries on
the
complainant’s arm where she was held by the appellant
should be regarded as another inconsistency. This contention failed
to take into account that according to the complainant, the appellant
held her arm. It also would not be expected of her to present
with
any injuries if regard is had to her explanation that the appellant
was telling people that she was his child and that she
was not
offering any resistance. Thus, the criticism that the trial court
failed to give due regard to these improbabilities is
not supported
by the record of proceedings.
[18]
In earnest and fairness to the nature of the evidence and the
probabilities in allegations of
sexual misconduct, the presence of
vaginal discharge and the absence of semen and/or blood during the
examination of the complainant,
should have no bearing on the
veracity of her allegations of rape by the appellant. The argument
that same should be regarded as
inconsistencies and improbabilities,
were not supported by the objective facts which minimized any chances
that the complainant
may have fabricated her version of events since
she met up with the appellant.
[19]
If regard is had to the caution expressed in
R
v Manda,
[4]
there is evidence that shows consistency in the complainant’s
version. Dr Mkhwanazi examined her within 24 hours after the
alleged
incident. For instance, he found that the complainant presented with
genital injuries that had ‘evidence of genital
trauma’.
According to Miss N[...], when the complainant was brought to her by
Mr Nxusa, she would not respond when asked
if she was well; she
appeared nervous; and in her encounter with Dr Mkhwanazi, she
appeared to be scared. This is all consistent
with the experience she
alleged she had in the company of the appellant. Her version of
events also has many similarities to that
of the appellant, albeit
his denial that he forcefully took her to his home and repeatedly
sexually penetrated her. The appellant
contended that he was
intoxicated and almost implying that he should not be held
accountable for most of his actions on the night
in question.
[20]
A careful evaluation of the evidence of the appellant; and that of
the complainant, which finds
consistency in the versions of Dr
Mkhwanazi, Miss N[...] and Mr Nxusa, I am satisfied that the
appellant was correctly convicted
on both counts. In my view, there
was no misdirection committed by the trial court on both convictions.
The appeal against convictions
should therefore fail.
[21]
Following his conviction of kidnapping on count 1 and rape on count 2
(which rape fell within
the provisions of
s 51(1)
and
Part I
of
Schedule 2 of the Criminal Law Amendment Act 105 of 1997, (the Act)),
the appellant was sentenced to undergo 3 years’
imprisonment on
count 1 and life imprisonment on count 2.
[22]
There was no criticism or argument against the sentence imposed in
count 1, hence focus shall
be on the remainder of the sentence. The
appellant’s challenge to the sentence imposed on count 2 was
that:
(a) The court
a
quo
failed to clear the misconception of whether the court was
required to consider exceptional or substantial circumstances.
(b) The appellant
further argued that had the court paid attention to such confusion
and addressed the circumstances as contemplated
in the Act, the
appellant might have escaped the sentence of life imprisonment.
[23]
The question to be answered is whether the trial court erred and
materially misdirected itself
in failing to find substantial and
compelling circumstances that would have warranted a departure from
the life sentence it imposed.
Furthermore, whether the court
exhibited any confusion on what circumstances it was required to
consider in its determination on
sentence.
[24]
Where sentencing involves offences that are listed in the Act, the
court must adopt an approach
that is conscious of the purpose and the
spirit that informed the enactment of the Act. Section 51(1) reads as
follows:
‘
Notwithstanding
any other law, but subject to subsections (3) and (6), a Regional
Court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part I of Schedule 2 to imprisonment for
life.’
[25]
With regard to rape, Part I of Schedule 2 reads 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…’
[26]
A court of appeal may interfere in the sentence imposed by the trial
court if it is found that
there was a misdirection in the exercise of
judicial discretion.
[5]
[27]
In
S v
PB,
[6]
and with regard to the approach that should be adopted where the
provisions of the Act are applicable, Bosielo JA expressed himself
in
the following terms:-
‘
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.
’
[28]
The main guiding principle in the exercise of judicial discretion on
the sentencing of an offender,
is outlined in
S
v Zinn.
[7]
The court is required to impose an appropriate sentence, which must
reflect a consideration of the personal circumstances of the
offender; the nature of the offence committed; and the public
interest.
[29]
The following personal circumstances of the appellant were placed on
record through his legal
representative:
(a)
He was 27 years old at the time of sentencing but 23 years old when
the
offences were committed;
(b)
He had no previous convictions;
(c)
He was a father, and his son was four years old;
(d)
He was unmarried and was in a stable relationship with the mother of
his
child;
(e)
He was employed by DSTV MultiChoice as a technician; and
(f)
He had been in police custody from 5 June 2016 until 17 March 2017,
when he was released on bail.
[30]
In
S v
Matyityi,
[8]
the court provided the following approach to be adopted when dealing
with these types of cases:-
‘
To
paraphrase from
Malgas
:
the fact that Parliament had enacted the minimum sentencing
legislation was an indication that it was no longer “business
as usual”. A court no longer had a clean slate to inscribe
whatever sentence it thought fit for the specified crimes. It had
to approach the question of sentencing, conscious of the fact that
the minimum sentence had been ordained as the sentence which
ordinarily should be imposed, unless substantial and compelling
circumstances were found to be present.
’ (Footnote
omitted.)
[31]
From the onset, the trial court noted that the applicable provision
was section 51(1) of the
Act. Throughout the judgment, it appeared to
be fully conscious of the established applicable principles. This is
evident in its
engagement with the trite principles set out in
Malgas
[9]
and
Matyityi
[10]
.
These
also appear in detail in the consideration of the personal
circumstances of the appellant and when it made a value judgment
in
all the factors that were set out in the triad principle in
Zinn
[11]
.
The argument that the court failed to clear the confusion about
whether the court had to consider substantial or compelling
circumstances
cannot stand.
[32]
A profound characterization of rape and its negative impact on a
person’s quality of life
has been set out in
S
v Chapman
,
[12]
where it is said:-
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of
the
Constitution and to any defensible civilisation. Women in this
country are entitled to the protection of these rights. They
have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from
work, and to
enjoy the peace and tranquility of their homes without the fear, the
apprehension and the insecurity which constantly
diminishes the
quality and enjoyment of their lives.
’
[33]
This passage brings about the question of the proportionality of
sentences in rape cases, which
has also been a subject of debate
amongst the courts. In
S
v Mahomotsa
[13]
the court held that ‘
[i]f
substantial and compelling circumstances are
found to
exist, life imprisonment is not mandatory nor is any other mandatory
sentence
applicable’
.
This implied that the proportion of the sentence must still be
informed by those factors that are unique to such case, when judicial
discretion is exercised.
[34]
The age of the appellant, both at the time of the incident (23 years)
and at sentence (27 years),
are neutral factors. To that extent in
S
v Matyityi
[14]
the court held:-
‘
Thus,
whilst someone under the age of 18 years is to be regarded as
naturally immature, the same does not hold true for an adult.
In my
view a person of 20 years or more must show by acceptable evidence
that he was immature to such an extent that his immaturity
can
operate as a mitigating factor. At the age of 27 the respondent could
hardly be described as a callow youth. At best for him,
his
chronological age was a neutral factor
.’
The
appellant, who is a father, displayed no elements of immaturity or
reduced moral blameworthiness if regard is had to the manner
in which
he conducted himself during the commission of the offences involved.
Instead, it can be gathered that he carefully and
skilfully went
about all the details of how the offence was committed and as such
cannot be classified as youthful offender.
[35]
In summary, there were no factors to suggest that the prescribed
sentence of life imprisonment
may have been disproportionate when the
unique circumstances of the appellant’s case were applied to
the trite guiding principles
in sentencing. The record shows a
substantial engagement with all the principles and a diligent
application to the facts that informed
the ultimate finding that the
appropriate sentence on court 2 was life imprisonment.
[36]
With all the above considerations, the trial court indeed correctly
found that no substantial
and compelling circumstances existed.
Therefore, there was no apparent misdirection by the trial court and
nothing warrants an
interference. The sentence of life imprisonment
was justified.
[37]
I therefore, propose an order in the following terms:
The appeal against
convictions and sentences on both counts is dismissed.
SIPUNZI AJ
I agree, and it is
so ordered.
NCUBE J
Date of hearing:
6 October 2023
Date Judgment
delivered:
3 November 2023
APPEARANCES
For the appellant:
Mr GJ Leppan
For the respondent:
Mr R Du Preez
Director of Public
Prosecutions
Pietermaritzburg
[1]
1981 (3) SA 172
(A) at 180E- G.
[2]
[2014]
ZAGPJHC 214.
[3]
Ibid
para 6.
[4]
1951
(3) SA 158
(A) at 163E.
[5]
1975
(4) SA 855
(A) at 857E;
S
v Pieters
1987 (3) SA 717
(A) at 737F–H.
[6]
[2012]
ZASCA 154
;
2013 (2) SACR 533
(SCA) para 20.
[7]
1969
(2) SA 537 (A).
[8]
[2010]
ZASCA 127; 2011 (1) SACR 40 (SCA).
[9]
2001 (1) SACR 469 (SCA).
[10]
Ibid.
[11]
Ibid.
[12]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) at 344J-345B.
[13]
2002
(2) SACR 435
(SCA) para 18.
[14]
Supra
(n13) at para 14.