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[2023] ZAECMKHC 61
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Beyi v S (CA & R 185/2022) [2023] ZAECMKHC 61 (23 May 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Case
No.: CA & R 185/2022
Date
Heard: 17 May 2023
Date
Delivered: 23 May 2023
In
the matter between:
SIYABULELA
BEYI
Appellant
and
THE
STATE
Respondent
JUDGMENT
RONAASEN AJ:
Introduction
[1]
The appellant faced two counts of rape and
one count of kidnapping in the Regional Court, Gqeberha.
[2]
On 23 March 2021 the appellant was
acquitted and discharged of one count of rape, pursuant to the
provisions of
section 174
of the
Criminal Procedure Act, 51 of 1977
.
On 3 June 2021 he was convicted of the remaining count of rape
(“Count 2”) and the charge of kidnapping (“Count
3”) and on 23 September 2021 he was sentenced as follows in
respect of these counts:
2.1.
Count 2 (rape) - imprisonment for life. The
minimum sentence of life imprisonment was triggered by virtue of the
provisions of
section 51(1)
of the
Criminal Law Amendment Act, 105 of
1997
read with
Part I
of Schedule 2 to this Act in that it was found
that he had raped the complainant twice; and
2.2.
Count 3 (kidnapping) - imprisonment for a
period of five years, which sentence was ordered to run concurrently
with the sentence
of life imprisonment.
[3]
This appeal lies against the appellant’s
conviction and sentence on the two abovementioned counts. The
appellant enjoys an
automatic right of appeal in respect of his
conviction and sentence on Count 2 (rape). His appeal on his
conviction and sentence
in respect of Count 3 proceeds with the leave
of the Regional Court.
The evidence adduced by the
State at the trial
[4]
The State adduced the evidence of six
witnesses at the trial. Only the evidence of three of these witnesses
has any real bearing
on the outcome of this appeal and their evidence
is summarised in the following paragraphs.
The complainant, Ntombovuyo Kete
[5]
During the evening of 7 July 2019, the
complainant, who was 21 years old at the time, was enjoying the
company of friends at a tavern
known as E[....] T[....] in W[....]
T[....], Gqeberha. She confirmed the presence of the appellant in the
tavern at the same time.
The appellant wanted to socialise with her
but she spurned his overtures as she said she was afraid of him.
[6]
Later she joined some acquaintances outside
the tavern, one of whom was a witness for the State, Sandiswe Baskiti
(the latter accompanied
by her boyfriend). The appellant followed her
outside the tavern. The group who had gathered outside the tavern,
including the
complainant and the appellant, decided to go to another
tavern, known as Judge’s Tavern.
[7]
The complainant decided not to follow her
friends to the other tavern and headed off in a different direction.
She noticed the appellant
following her. He caught up to her and
grabbed the front of her jacket, forcing her to accompany him.
[8]
At one stage, in an effort to escape from
the appellant, she ran to a house nearby and gained the attention of
two ladies who resided
there. She asked for their help and, in
particular whether they could offer her a bed for the night. The
appellant told the ladies
that the complainant was his girlfriend.
They refused to assist her.
[9]
The complainant did not want to go with the
appellant and tried to resist him. In this process the appellant hit
the complainant
with a bottle causing a cut above her right eye,
which resulted in bleeding. Because of this violent action by the
appellant the
complainant was constrained to go with him.
[10]
The appellant forced the complainant into a
house, pushed her onto a couch and had sexual intercourse with her
against her consent.
She tried to resist him up to the point where he
penetrated her vagina with his penis, whereafter she felt that she
could no longer
resist him.
[11]
After this had occurred, she managed to go
to a next-door house where an acquaintance resided. She spoke to the
acquaintance and
his girlfriend, asking for their assistance, which
was refused. The appellant again forced her to go to the house where
they had
been previously and again forcibly and without her consent
had vaginal intercourse with her.
Fezile Mtini
[12]
This witness, a forensic nurse employed by
the Department of Health at Dora Nginza Hospital, Gqeberha in a
department specialising
in the examination of patients who were the
victims of sexual abuse, examined the complainant the day after the
incident described
above.
[13]
He confirmed that the complainant had
suffered a blunt-force injury, causing a three centimetre cut above
her right eye, which was
consistent with being hit with a bottle.
[14]
According to him the plaintiff did not
display any obvious vaginal injuries as a result of the trauma she
had allegedly suffered,
but he said that this was not unusual
particularly as the complainant was a young, sexually active woman.
Sandiswa Baskiti
[15]
The following aspects of the evidence of
this witness require attention, namely:
15.1.
when she and her boyfriend arrived at
E[....] T[....], she saw the complainant drinking inside with the
appellant at the same table;
15.2.
her confirmation of the fact that at a
certain stage the complainant and the appellant had gone their
separate ways and that she
did not know where they had gone; and
15.3.
prior to them parting company, the
complainant did not display any visible injury to her face.
The evidence adduced by the
appellant at the trial
[16]
The appellant gave evidence in his own
defence but did not call any witnesses.
[17]
The appellant’s version was to the
following effect:
17.1.
he and the complainant knew each other and
were enjoying drinks together at E[....] T[....];
17.2.
the complainant and he had enjoyed a
relationship previously which included sexual relations, but which
had ended because of the
unhappiness of his girlfriend;
17.3.
the complainant joined her friends outside
E[....] T[....] and she called him to come out too;
17.4.
he and the complainant went along to
Judge’s Tavern, but because there was no place to sit, the
complainant had suggested
to him that they “
must
go to sleep
”;
17.5.
later in the evening he saw the complainant
kissing another man, which angered him as “
she
was mine
”. On observing her
interaction with this other man he slapped her in her face with his
right hand on which he was wearing
a number of rings;
17.6.
thereafter he went away to go to sleep. He
did not have sexual intercourse with the complainant;
17.7.
she only accused him of raping her, as his
girlfriend, two months prior to 7 July 2019, had assaulted the
complainant due to her
involvement with the appellant.
General legal principles
relating to the question of the appellant’s conviction on the
two counts concerned
[18]
The following principles can be gleaned
from
Tshiki v The State
[2020] ZASCA 92
(18 August 2020) at [13]:
18.1.
in criminal proceedings the State,
throughout, has the onus to prove an accused’s guilt beyond a
reasonable doubt;
18.2.
an accused’s version cannot be
rejected only on the basis that it is improbable, but only once the
trial court has found,
on credible evidence, that the explanation is
false beyond a reasonable doubt;
18.3.
thus, if the accused’s version is
reasonably possibly true, he/she would be entitled to an acquittal;
and
18.4.
the conviction of an accused can
accordingly only be sustained if, after consideration of all the
evidence, his/her version of events
is found to be false.
[19]
The version of an accused cannot be
rejected merely because the court finds the evidence of the witnesses
for the State to be credible.
The correct approach is for the court
to apply its mind not only to the merits and demerits of the evidence
of the witnesses for
the State and the defence, but also the
probabilities of the case.
S v Singh
1975 (1) SA 227
(N) at 228.
Was the appellant correctly
convicted
[20]
In my view this question must be answered
in the affirmative. The salient evidence was correctly and well
evaluated by the Magistrate.
He correctly applied the cautionary rule
applicable to single witnesses, where the evidence of the complainant
was such.
[21]
The evidence of the complainant was
corroborated in the following crucial respect by the evidence of the
witnesses:
21.1.
Mtini, who confirmed that the injury the
complainant had sustained above her right eye was consistent with
being hit by a bottle;
and
21.2.
Baskiti, summarised in paragraphs 15.2 and
15.3, above.
[22]
The evidence of the complainant was
plausible and unembellished. It was correctly characterised by the
Magistrate as being truthful.
For the reasons set out below her
evidence was not seriously challenged in cross-examination. The
discrepancies between her evidence
and that of Baskiti were not
material. She denied any relationship with the appellant.
[23]
The appellant, on the other hand, was
correctly characterised by the Magistrate as a poor witness whose
demeanour in the witness
box confirmed the lack of credulity and the
improbability attaching to his evidence. Vitally, none of the
important aspects of
his evidence in chief had been put to the
complainant in cross-examination, which confirms the Magistrate’s
finding that
the appellant had endeavoured to adapt his evidence to
fit in with certain of the aspects of the witnesses for the State
(particularly
that of Baskiti) which suited him.
[24]
The improbability of the version of the
appellant is confirmed by his allegation that the complainant had
accused him of rape as
some form of revenge for the fact that the
appellant’s girlfriend had assaulted her some two months prior
to 7 July 2019,
if you consider his evidence that the relationship
between him and the complainant was one of friendship.
[25]
The credible evidence of the complainant
and the corroborative witnesses confirmed that the appellant’s
version and explanation
were not only improbable but were false
beyond a reasonable doubt.
[26]
Given the falsity of the appellant’s
explanation his conviction on the two counts concerned must be
sustained.
Sentencing
[27]
In terms of the charge sheet in respect of
Count 2, the State requested that in the event of a conviction a
sentence of life imprisonment
be imposed in respect of the appellant
given that he had raped the complainant twice. The Regional Court,
correctly, found that
that had occurred. In such event
section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
provides that “
a
regional court or a High Court shall sentence a person who it has
convicted of an offence referred to in
Part I
of Schedule 2 to
imprisonment for life
”.
[28]
Section 51(3)
of the said Act provides that
where a court is satisfied that substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence
than the prescribed minimum sentence of life imprisonment, it shall
enter those circumstances on
the record of the proceedings and must
thereupon impose such lesser sentence. In this case the Magistrate
found that no substantial
and compelling circumstances existed which
would justify the imposition of a lesser sentence than the prescribed
minimum sentence
of life imprisonment.
[29]
In
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) at
[11]
the Constitutional Court endorsed and
adopted the interpretation of the words “substantial and
compelling circumstances”
applied in
S
v Malgas
2001 (2) SA 1222
(SCA) at [25]
in terms of which the Supreme Court of Appeal, in interpreting the
words, detailed a step-by-step procedure to be
followed in applying
the test to the actual sentencing situation. This operational
construction is summarised in the judgment as
follows:
“
A.
Section 51
has limited but
not eliminated the courts' discretion in imposing sentence in respect
of offences referred to in
Part 1
of Schedule 2 (or imprisonment
for other specified periods for offences listed in other parts of
Schedule 2).
B. Courts are required to approach the
imposition of sentence conscious that the Legislature has ordained
life imprisonment (or
the particular prescribed period of
imprisonment) as the sentence that should
ordinarily
and
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances.
C. Unless there are, and can be seen
to be, truly convincing reasons for a different response, the crimes
in question are therefore required
to elicit a severe,
standardised and consistent response from the courts.
D. The specified sentences are not to
be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the
offender, undue sympathy, aversion to
imprisoning first offenders, personal doubts as to the efficacy of
the policy underlying
the legislation and marginal differences
in personal circumstances or degrees of participation between
co-offenders are to
be excluded.
E. The Legislature has, however,
deliberately left it to the courts to decide whether the
circumstances of any particular case call
for a departure from the
prescribed sentence. While the emphasis has shifted to the objective
gravity of the type of crime and
the need for effective sanctions
against it, this does not mean that all other considerations are
to be ignored.
F. All factors (other than those set
out in D above) traditionally taken into account in sentencing
(whether or not they diminish
moral guilt) thus continue to play a
role; none is excluded at the outset from consideration in the
sentencing process.
G. The ultimate impact of all the
circumstances relevant to sentencing must be measured against
the composite yardstick ('substantial
and compelling') and must be
such as cumulatively justify a departure from the standardised
response that the Legislature has ordained.
H. In applying the statutory
provisions, it is inappropriately constricting to use the
concepts developed in dealing with appeals
against sentence as the
sole criterion.
I. If the sentencing court on
consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the
needs of society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
J. In so doing, account must be taken
of the fact that crime of that particular kind has been singled out
for severe punishment
and that the sentence to be imposed in lieu of
the prescribed sentence should be assessed paying due regard to
the bench mark
which the Legislature has provided”.
[30]
The appellant, measured against the abovementioned standards, has not
demonstrated the existence of
substantial and compelling
circumstances in respect of the offence of rape to which the
statutory minimum sentence requirements
apply and of which he was
convicted, which would have allowed the Regional Court to impose a
lesser sentence than the sentence
of life imprisonment it found it
was statutorily obliged to impose.
[31]
Objectively, considering all the relevant facts in this case, I am
unable to discern the existence
of substantial and compelling
circumstances which would justify the imposition of a lesser
sentence.
[32]
The Legislature, rightly so, in enacting
section 51
of the Act,
wished to ensure that consistently heavier sentences would be imposed
in relation to the serious crimes covered by
section 51
, while still
promoting the objects of the Constitution and the Bill of Rights.
[33]
Our courts have consistently characterised
the serious crime of rape as a repulsive crime, which is a
humiliating, degrading and
brutal invasion of the privacy, dignity
and person of a woman.
[34]
In this case the following additional
factors point to the absence of substantial and compelling
circumstances which would allow
for the imposition of a lesser
sentence:
34.1.
the absence of remorse on the part of the
appellant;
34.2.
the vicious assault inflicted on the
complainant by the appellant, with a bottle;
34.3.
the predatory manner in which he forced the
complainant to accompany him;
34.4.
the fact that the appellant, when the
complainant sought help from third parties, lied to those third
parties telling them that
he and the complainant were boyfriend and
girlfriend and were involved in a “domestic” argument
which, no doubt, motivated
them not to assist the complainant; and
34.5.
the appellant’s previous conviction
for rape. In 2005 the appellant was convicted of rape by the High
Court and sentenced
to imprisonment for a period of 14 years. He was
released in 2012 of, after having served roughly half of that
sentence. The submission
that the appellant should be regarded as a
first offender as this prior conviction occurred more than 10 years
ago is untenable.
The prior conviction demonstrates the appellant’s
propensity for violence against women and for the commission of
sexual
offences against them. The reduced period of imprisonment he
served clearly had not had the appropriate rehabilitative effect.
[35]
As stated, the appellant demonstrated no
remorse. Further, he proffered only his poor socio-economic
circumstances in mitigation
which were insufficient to establish the
existence of substantial and compelling circumstances to deviate from
the minimum sentence
requirement.
[36]
Thus, there are no grounds to interfere
with the imposition of the sentence of imprisonment for life on Count
2 (rape).
[37]
In respect of the sentence of five years’
imprisonment imposed for Count 3, (kidnapping) there is no basis for
suggesting
that the Magistrate exercised his discretion improperly or
misdirected himself. Nor is the sentence imposed disturbingly
inappropriate
or disproportionate that no reasonable court would have
imposed it. Here too, there is no basis to interfere with the
sentence.
Order
[38]
Accordingly, I make the following order:
The appeal on conviction and
sentence is dismissed.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
BLOEM
J: I AGREE.
GH
BLOEM
JUDGE
OF THE HIGH COURT
Appearances:
For
Appellant: Mr
MT Solani
Instructed
by: Legal
Aid Local Office
Makhanda
For
Respondent: Adv
S Soga
Office of the Director of Public
Prosecutions
Eastern Cape