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2023
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[2023] ZAKZPHC 159
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Ndlovu v S (AR369/2022) [2023] ZAKZPHC 159 (1 December 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR369/2022
In
the matter of:
ZAKHELE
NDLOVU
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from:
Greytown Regional Court (Magistrate Masikane
presiding):
1.
The appeal against conviction and sentence is dismissed
JUDGMENT
PIETERSEN
AJ (MLABA J concurring):
Introduction
[1]
The appellant was convicted in the Regional Court, Greytown, on two
counts of sexual
assault as well as kidnapping and rape. The
appellant was sentenced to five and seven years’ imprisonment
in respect of the
two counts of sexual assault, five years’
imprisonment on the count of kidnapping, and life imprisonment on the
count of
rape. The appellant successfully applied for leave to appeal
against both conviction and sentence in respect of the sexual assault
and kidnapping charges and exercised his automatic right of appeal to
this court in respect of the count of rape.
Conviction
[2]
It is common cause that at some point in time, the appellant and the
complainant were
engaged to be married in terms of customary law. The
complainant’s aunt introduced her to the appellant for the
first time
during December 2017. At the time, the complainant was a
17 year old scholar. The proposed marriage was subsequently arranged
between
the appellant and the complainant’s step-mother. It is
further common cause that the complainant initially agreed to marry
the appellant but that she subsequently changed her mind and declined
the marriage.
[3]
The appellant had already paid part of the agreed lobola to the
complainant’s
family and spoilt the complainant with gifts
before the complainant refused to marry the appellant. The
complainant testified that
she felt that the appellant, who was 57
years of age at the time, was too old and the complainant also had a
boyfriend. The result
was that the complainant refused to continue
with the proposed marriage to the appellant.
[4]
The complainant testified that the appellant sexually assaulted her
on two occasions.
The first incident occurred during February 2018 at
the appellant’s rented house in Greytown where the appellant
tried to
have sexual intercourse with her. The complainant refused
and managed to successfully resist the appellant.
[5]
The second incident occurred shortly thereafter on the way to the
complainant’s
home from Greytown, when the appellant parked his
vehicle inside a forest in the middle of the night and again tried to
have sexual
intercourse with the complainant. The complainant again
successfully resisted the appellant’s attempts.
[6]
The complainant testified that after the two incidents of sexual
assault she went
back to school in Empangeni. Some months later,
during the June/July 2018 school holidays, the complainant was in her
hometown
of Muden and walking home from church in the company of a
friend. The appellant, with the assistance of two men, proceeded to
find
the complainant and physically removed her from the company of
her friend and placed her in the back seat of a waiting vehicle.
The
appellant was seated in the front passenger seat and the two men who
had grabbed the complainant, sat at the back with the
complainant
between them, effectively preventing her from escaping.
[7]
After the kidnapping of the complainant, she was taken by the
appellant and the two
men to the appellant’s home at
Ntembisweni. It was common cause that on the night of their arrival,
no sexual intercourse
took place because the complainant was in her
menstrual period. The complainant testified that when her menstrual
period was over,
the appellant had sexual intercourse with her on
several occasions and against her will. The appellant had used
physical violence
to overcome her resistance. The appellant testified
however that the sexual intercourse was consensual, and claimed that
he was
in fact raped by the complainant as he was forced at times to
have sexual intercourse with her against his will.
[8]
The complainant testified that she was unable to escape from the
house as the doors
were locked and the windows had burglar bars. The
complainant said that she was kept in this house against her will for
a period
of 10 days. During this time, the appellant would leave for
work every morning and she would remain alone at the appellant’s
house. She did not see any neighbours and was unable to leave the
house in order to seek assistance. Eventually, on the last day,
the
complainant screamed out the windows which alerted the neighbours,
who then called the police. It was common cause that upon
their
arrival, the police forcefully opened the door to the house and found
the complainant handcuffed to a table.
[9]
When the complainant was rescued by the police, she was taken to a
medical practitioner
who examined her and found injuries to her
vagina that were consistent with her having recently been penetrated.
[10]
The appellant submitted that the State had failed to prove beyond
reasonable doubt that he had
kidnapped and raped the complainant, or
committed any acts of sexual violence against the complainant. The
appellant had pleaded
not guilty on all four counts.
[11]
It was the appellant’s case that he chose the complainant to be
his wife and he then proceeded
to take part in the customary ceremony
and paid the agreed lobola. The appellant then regarded the marriage
to have been complete
and expected the complainant to move in with
him as she was now his wife.
[12]
The appellant denied that he sexually assaulted, kidnapped and raped
the complainant. The appellant
denied that he sexually assaulted the
complainant on two occasions and testified that he merely fetched the
complainant from her
home according to his cultural norms and took
her to his rented house in Greytown as they were married. The
appellant denied that
he at any stage raped the complainant and
maintained that all sexual intercourse was consensual. The appellant
further testified
that he expected the complainant to resist his men
when they removed her from the company of her friend in Muden, as it
is part
of the appellant’s culture for a bride to feign
resistance. The appellant also denied that the complainant was kept
at his
house in Ntebisweni against her will. The appellant submitted
that there were no burglar bars in front of the windows and that it
was the decision of the complainant to stay with him as her return
would bring shame to her family as they were married in terms
of
customary law.
[13]
When the matter was heard in the court
a quo
during 2021 and
2022, the complainant was already an adult. However, at the time of
the offences being committed, the complainant
was 17 years of age.
[14]
In argument before us, the principal issue was whether the court
a
quo
was correct in its findings that the complainant had not
consented to the acts of sexual penetration, that the complainant was
sexually assaulted, and that she had been taken to the appellant’s
home against her will. Mr Leppan, who appeared on behalf
of the
appellant, submitted that the complainant’s evidence was
riddled with inconsistencies and that the court should not
accept her
evidence, especially considering that she was a single witness in
respect of the counts of sexual assault and rape.
[15]
The court
a
quo
correctly found that the counts of sexual assault, kidnapping and
rape rest on the evidence of a single witness and that the
complainant’s
evidence therefore has to be viewed with caution
and circumspection.
[1]
In
R
v Nhlapo
[2]
it was held that:
‘
.
. . a cautionary rule of the kind mentioned may well be helpful as a
guide to the right decision. It naturally requires judicious
application and cannot be expected to provide, as it were
automatically, the correct answer to the question whether the
evidence
of the [State] witness should be accepted as truthful an
accurate.’
[16]
In conclusion on the issue of a single witness, in
S
v Sauls
[3]
it was held that:
‘
.
. . t
he exercise of caution must not be allowed
to displace the exercise of common sense
.’
[17]
In assessing the evidence, the court a
quo
took into account that the complainant was 17 years old at the time
of the incidents and remarked that there may have been some
discrepancies in the complainant’s evidence. However, it found
that these discrepancies were not sufficient enough to reject
the
complainant’s evidence in its totality. In this regard it was
held in
S
v Cwele
[4]
:
‘
The
State must therefore satisfy the court, “not that each separate
fact is inconsistent with the innocence of the [appellants],
but
that the evidence as a whole is beyond reasonable doubt inconsistent
with such innocence”.’
[18]
In assessing the evidence, the court
a quo
accepted that there
may have been some errors in the complainant’s evidence but it
duly took into account that the complainant
was a child with no
biological parents, who was being introduced into a marriage by her
aunt who also received payment of the lobola.
The court
a quo
found that the marriage was arranged by the complainant’s
step-parents, her aunt and the pastor of the family’s church.
The complainant testified that she informed these adults that she no
longer wanted to marry the appellant but they insisted that
the
marriage must proceed as a failure to marry would result in the
lobola having to be returned.
[19]
In any event, in respect of the count of rape, the complainant’s
evidence was corroborated
by medical evidence. Dr Madi testified that
the complainant was sexually violated and her injuries were depicted.
This evidence
was not challenged in cross-examination except for
suggesting that the injuries are also consistent with acts of robust
sexual
conduct, which Dr Madi conceded could be possible.
[20]
I agree with the court
a
quo
that it is not necessary to dwell on whether the complainant and the
appellant concluded a valid marriage in terms of customary
law,
[5]
as the crux of the matter is whether the complainant consented to be
taken away by the appellant and to have sexual intercourse.
[21]
In dealing with the count of kidnapping, the court
a quo
had
the benefit of hearing the evidence of another State witness, who saw
the complainant being taken away by the appellant’s
men. The
appellant conceded under cross-examination that the complainant
resisted being taken away and the court
a quo
found, correctly
in my view, that the complainant was taken against her will.
[22]
When considering the two counts of sexual assault, the court
a quo
correctly found that it was common cause that the appellant fetched
the complainant from her home and took her to his rented house
in
Greytown. Whilst the appellant disputed the sexual assault, the court
a quo
found that the appellant’s denials raised further
unanswered questions, such as,
inter alia
, why new clothes
were bought for the complainant. The complainant may be criticised
for not reporting the incidents of sexual assault
to the police at
the time but the court
a quo
pointed out that the complainant
was still a child who was essentially forced into a marriage with the
appellant by her step-mother,
aunt and pastor despite the fact that
the complainant had already informed them of her unwillingness to
marry the appellant. The
court
a quo
was therefore correct in
accepting the complainant’s version in respect of these counts.
[23]
Mr Leppan submitted that there were a large number of inconsistencies
in the complainant’s
evidence and that her evidence should be
rejected in its totality. In this regard Mr Leppan relied on the
complainant’s initial
denial that the appellant bought her new
clothes, only to admit this later under cross-examination. Another
example is the complainant
contradicting herself under
cross-examination when she said she had never been to Greytown.
However, I agree with the court
a quo
that when considering
the complainant’s evidence in its totality, it is satisfactory
in all material respects considering
the complainant’s age and
circumstances at the time of the incidents.
[24]
In so far as the court
a
quo
’s
findings of fact and credibility are concerned, a court of appeal
will not ordinarily depart from such findings unless
they are
vitiated by irregularity or unless an examination of the evidence
reveals that they are patently wrong. Ultimately, the
trial court has
the advantage of seeing and hearing the witnesses and is in the best
position to determine where the truth lies.
[6]
[25]
I am unable to find any misdirection in the court
a quo
’s
consideration of the facts and the conclusion that the State had
proved the offences beyond reasonable doubt. In the result,
the
appeal against the convictions must fail.
Sentence
[26]
The jurisdiction of a court of appeal to interfere with the sentence
imposed by a trial court
is limited. In
S
v Bogaards
[7]
Khampepe J stated as follows:
‘
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court's power to interfere with sentences imposed
by courts below is
circumscribed. It can only do so where there has been an irregularity
that results in a failure of justice;
the court below misdirected
itself to such an extent that its decision on sentence is vitiated;
or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.
’ (Footnotes
omitted.)
[27]
In
S v
Malgas
[8]
Marais JA held that when a court imposes a sentence in respect of an
offence referred to in the
Criminal Law Amendment Act 105 of 1997
, it
is no longer given a
‘
.
. .
clean slate on which to inscribe whatever
sentence it thought fit. Instead, it was required to approach that
question conscious
of the fact that the legislature has ordained life
imprisonment or the particular prescribed period of imprisonment as
the
sentence which should
ordinarily
be
imposed for the commission of the listed crimes in the specified
circumstances.
’
The
emphasis, he held, was on ‘the objective gravity of the type of
crime and the public’s need for effective sanctions
against
it’.
[28]
The appellant’s conviction on the count of rape, where the
complainant was raped more than
once by the appellant, attracts the
prescribed sentence of life imprisonment in the absence of
substantial and compelling circumstances
to justify a lesser
sentence.
[9]
[29]
Mr Leppan argued that the sentence imposed by the court
a quo
was shockingly inappropriate and ought to be interfered with on this
basis. To determine whether there is any substance in the
argument,
it is necessary to consider the three sets of interests that are
required to be balanced in the sentencing process.
[30]
In assessing whether an appropriate sentence was imposed on the
appellant, it is necessary to
consider the crime, the offender and
the interests of society.
[10]
It has further been held in
S
v Rabie
[11]
that:
‘
[t]he
main purposes of punishment are deterrent, preventive, reformative
and retributive’.
[31]
In
S v
Chapman
the
court held:
[12]
‘
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 tranquillity of their homes
without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives . .
. The Courts are under a
duty to send a clear message to the accused, to other potential
rapists and to the community: We are determined
to protect the
equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.
’
[32]
The court also held in
S
v Rabie
[13]
that ‘[p]unishment should fit the criminal as well as the
crime, be fair to society, and be blended with a measure of mercy
according to the circumstances’.
[33]
In
S v
Banda and others
[14]
it was held the court will have to take into consideration the
accused’s personal circumstances, the interests of society
as
well as the seriousness of the offences.
[34]
The court a
quo
considered the personal circumstances of the appellant. He was 57
years old at the time of the commission of the offences, a first
offender, in stable self-employment as the sheriff of Greytown and
his family’s breadwinner. He displayed no remorse for
violating
the complainant. It must be added that as a result of his false
denial, he put the complainant through the gruelling,
and unpleasant
experience of having to testify about her ordeal. While the
appellant’s lack of remorse is not an aggravating
factor,
[15]
it is indicative of a failure on his part to take responsibility for
his actions and of an absence of empathy for his victim. The
court
a
quo
took most of these factors into account.
[35]
The court
a quo
also took into account the complainant’s
circumstances as contained in the victim impact statement. It is
apparent from this
statement that the offences left the complainant
traumatised and she tried to commit suicide on several occasions. The
complainant
was an orphan, being raised by step-parents and these
step-parents together with the church and the appellant colluded to
force
the complainant into a marriage. The complainant was without
any moral support and she was fighting alone for justice. The
complainant
was an innocent, defenceless and vulnerable child at the
time, who now has to live for the rest of her life with these
emotional
scars and the stigma of having been humiliated and
violated.
[36]
The court
a quo
further took into account that the appellant
knew very well that the complainant no longer wanted to go ahead with
the marriage
and that the sexual intercourse was without the
complainant’s consent. Notwithstanding her wishes, the
appellant proceeded
to kidnap the complainant with the assistance of
two men and raped her on several occasions. On the last day, the
complainant was
handcuffed to a table leg as if she was an animal.
[37]
The court
a
quo
found that a custodial sentence was the most appropriate sentence in
the circumstances. I can detect no misdirection in the court
a
quo
’s
approach to sentence. The offences, for the reasons cited above, are
of a particular serious nature. The personal circumstances
of the
appellant have properly been weighed against the seriousness of the
offences and the interests of society. The carefully
considered
sentence imposed by the court
a
quo
is
found to be proportionate to ‘the crime, the criminal and the
legitimate needs of society’.
[16]
I am of the view that the court a
quo
correctly found that there are no substantial and compelling
circumstances to justify a deviation from the imposition of life
imprisonment in respect of the rape conviction.
[38]
In the circumstances, no basis has been established for this court to
interfere with the sentence
imposed by the court
a quo
. The
appeal against sentence must therefore also fail.
Order
[39]
In the result, I make the following order:
1.
The appeal against conviction and sentence is dismissed.
PIETERSEN AJ
I
agree.
MLABA AJ
[1]
S
v Sauls and others
1981
(3) SA 172
(A) at 180; and
ZF
v S
[2016] 1 All SA 296
(KZP) para 34.
[2]
R v
Nhlapo
1953 (1) PH H11 (A) at 17.
[3]
S v
Sauls and others
1981 (3) SA 172 (A).
[4]
S v
Cwele and another
[2012] ZASCA 155
;
2013 (1) SACR 478
(SCA) para 19.
[5]
It
bears mentioning that the existence of a marital relationship or any
other type of relationship is in any event not a valid
defence in
terms of
section 56
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
.
[6]
R
v Dhlumayo and another
1948
(2) SA 677
(A) at 705–706;
S
v Francis
1991 (1) SACR 198
(A) at 204c–f;
S
v Hadebe and others
1997 (2) SACR 641
(SCA) at 645e-f.
[7]
S
v Bogaards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[8]
S
v Malgas
2001
(1) SACR 469
(SCA) para 8.
[9]
See
section 51(1)
and
51
(3), read with
Part 1
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
[10]
S v
Zinn
1969 (2) SA 537
(A) at 540G-H.
[11]
1975
(4) SA 855
(A) at 862A-B.
[12]
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5c-e.
[13]
S
v Rabie
1975
(4) SA 855
(A) at 862G-H.
[14]
S v
Banda and others
1991 (2) SA 352
(BG) at 356E-F.
[15]
S
v Hewitt
[2016]
ZASCA 100
;
2017 (1) SACR 309
(SCA) para 16.
[16]
S
v Malgas
2001
(1) SACR 469
(SCA) para 22.