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[2023] ZAECMKHC 101
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Msutu v S - Appeal (CA&R24/2022) [2023] ZAECMKHC 101 (14 September 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
(EASTERN
CAPE DIVISION, MAKHANDA)
Case
No.: CA&R24/2022
Date
of hearing: 23 August 2023
Judgment
delivered on: 14 September 2023
In
the matter between:
SIFUNDO
MSUTU
APPELLANT
And
THE
STATE
RESPONDENT
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
JUDGMENT
MTSHABE
AJ:
INTRODUCTION
[1]
The appellant, (Sifundo Msutu), was convicted of rape and sentenced
to 10 years imprisonment.
He has appealed against his conviction and
sentence.
[2]
As he was a first offender the court
a quo
was obliged to
sentence him to a minimum of ten (10) years’ imprisonment in
terms of section 51(2) of the Criminal Law Amendment
Act, (Act 105 of
1997), unless the court finds that there are compelling and
substantial reasons to deviate from the prescribed
minimum sentence.
[3]
At all the relevant times, the appellant was legally represented in
the court below. Leave to
appeal was granted by the court
a quo
against
both conviction and sentence.
[4]
The grounds of appeal as listed in the notice of appeal are that the
court
a quo
erred in the following respects:
4.1
in not applying the requisite caution during his evaluation of the
evidence of the first witness for
the respondent, being the
complainant who was a single witness at all material times.
4.2
in not evaluating the evidence of the complainant with circumspection
and in finding that she was a
credible witness, accepting her version
of events to have constituted the true state of affairs without
reservation to the exclusion
of the appellant’s version, thus
patently disregarding the improbabilities and inconsistencies in her
evidence as well as
her vague, evasive and often argumentative
demeanor.
4.3
in not having comprehensive regard to the significance of the
contradictions in the evidence of the
complainant and that of Siya
(the second state witness).
4.4
in disregarding the appellant’s evidence to the effect that the
complainant had made sexual advances
to him through dancing prior to
the incident.
4.5
in finding that the state had proved its case beyond reasonable doubt
despite the appellant’s evidence
that the sexual intercourse
between him and the complainant was consensual.
4.6
in finding that there was no consent on an assessment of the
circumstantial evidence.
4.7
in finding that the complainant had no reason to falsely implicate
the appellant despite evidence that
she had a relationship with Siya
which she had every reason to protect at the appellant’s
expense.
FACTS
[5]
The complainant in this matter is Y[…] S[…], an adult
female. On 9 June 2018 she
was drinking alcohol at the place of the
appellant.
[6]
The appellant also invited his friend by the name of Siya as well as
other people to his place.
Siya and Y[…] S[…] (the
complainant) were known to each other as they used to work together.
[7]
Siya had on previous occasions attempted to court the complainant who
at the time had shown no
interest because she was involved in a
relationship with somebody else. On the night in question,
however, she was single
and when everybody else left in the early
hours of the morning, she stayed behind with Siya.
[8]
The house of the appellant had two bedrooms. The complainant
and Siya slept in one of the
bedrooms where they had consensual
intercourse around 5 o’clock in the morning. The complainant
thereafter fell asleep. As
she laid on the bed, she was wearing only
a top facing the wall.
[9]
Whilst she was still sleeping someone entered the bedroom. After
which she felt movement behind
her as the person was touching her
chest and thighs. Because she had been sleeping with Siya, she
thought that the person
touching her was Siya. This
person penetrated her vaginally from behind and had sexual
intercourse with her. She tried to
turn her face, but this person
pushed it back with his hand. She called out Siya’s name and
this person only murmured in
response.
[10]
After some time as they were still having sexual intercourse, she
heard the door opening and another person
entering the room. This
person stood next to the bed and exclaimed ‘what the hell is
going on here?’ It is at that
point that the complainant
realized that the person she was having sexual intercourse with was
the appellant and that the one who
had just entered the room, Siya.
She immediately told the appellant to get off her,
covered her face with her
hands and exclaimed ‘Oh my gosh’.
The appellant left the room.
[11]
She then asked Siya to escort her home. As they were leaving the
appellant was in the lounge. She tried to
throw punches at him, but
Siya intervened.
[12]
The complainant went to the police station where she laid charges of
rape against the Appellant. It is her
evidence that later that same
day the Appellant went to her house to ask for forgiveness but her
friends who were there shouted
and swore at him.
[13]
The complainant’s case is that she never consented to have
sexual intercourse with the appellant. The
Appellant’s case is
that Y[...] agreed to have sex with him.
[14]
Siya, whose full name is Siyabulela also testified in court. He
corroborated the evidence of the complainant
in all material
respects.
[15]
He testified further, that after he and the complainant had fallen
asleep, after having engaged in sexual
intercourse, he woke up to see
the Appellant who entered the bedroom whilst naked and stood at the
end of the bed. The appellant
was busy putting on a condom.
Puzzled at the Appellant’s conduct, he took him out of the room
into the bathroom and
asked him what he was doing. In response the
Appellant simply asked, “
why are you not giving me ass
?”,
referring to the complainant.
[16]
Siya told him that he could not do that. The Appellant left and Siya
continued to use the bathroom. Unbeknown
to Siya, on leaving the
bathroom the appellant went back to the bedroom where he had sexual
intercourse with the Complainant. When
Siya entered the bedroom, the
complainant was very upset and angry on realizing that it was
actually the appellant, and not Siya
who was having sexual
intercourse with her. Siya then escorted the complainant home.
On the way the complainant did not want
to speak about the incident
as she was still angry.
[17]
The appellant testified in his defence, and confirmed there was a
party at his house on the night in question.
He also confirmed that
the complainant and other people were present at the party. It was
his first time to meet the complainant
at the said party. He also
confirmed inviting Siya who joined the party later.
[18]
According to him, the complainant and Siya were only colleagues and
friends. He never saw them kissing or
hugging. He testified that Siya
left his house, fully dressed, about 5 to 6 am in the morning.
[19]
After Siya had left, he entered the room where he found the
complainant sleeping. They started talking and
he asked if he could
join the complainant in bed, to which the complainant agreed. She was
wearing only a panty and a top at the
time. He took off his shoes and
trousers and joined the complainant in bed. He asked the complainant
if she likes him, and she
said yes. They started kissing d each
other.
[20]
They then engaged in sexual intercourse, and both were
naked at the time. The complainant was
lying on her back, and he was
on top of her, and they changed positions n and she lied on her
stomach whilst he got on top of her.
On his version he
never penetrated the complainant from behind.
[21]
He then noticed Siya who was standing next to the bed whilst fully
dressed, asking, “
what the hell is going on here?”
.
At that point the Complainant told him to get off her and he
complied.
[22]
He was later informed about the rape allegation. He then decided to
go to the complainant’s house where
he tried to talk to the
Complainant. However, her friends who were there with her
started shouting and throwing bottles at
him, so he left
[23]
According to him therefore, the sexual intercourse with the
complainant was consensual, therefore, he denies
raping her.
[24]
The only determinable issue at the trial court therefore, was,
whether the sexual intercourse between the
appellant and the
complainant
was consensual.
LEGAL
PRINCIPLES
[25]
The learned Magistrate was alive to the fact that the Complainant was
a single witness
[1]
. (But the
complainant was not a single witness-Siya witnessed the sexual
intercourse after a request was made to him, for the appellant
to
have sex with the complainant-which request he had denied)
[26]
The learned Magistrate considered the cautionary rule not on the
basis of the nature of the offence, but
because the Complainant was
single witness. (See par 29 above)
[27]
The learned Magistrate correctly evaluated the version of the state
and appellant taking to account the probabilities
and improbabilities
and found that the state has proven its case beyond reasonable
doubt
[2]
.
[28]
In determining whether the State has proved its case beyond
reasonable doubt, reference can be made to the
case of
S
v Chabalala
[3]
,
when a court is faced with two irreconcilable versions, as the court
was in this case, in
Chabalala
case, the court stated as follows:
“
The
Correct approach is to weigh up all the elements which points towards
the guilty of the accused against all those which are
indicative of
his innocence, taking proper account of inherent strengths and
weakness, probabilities and improbabilities on both
sides and, having
done so, decide whether the balance weighs so heavily favour of the
State as to exclude reasonable doubt to the
accused’s guilt.
The results may prove that once scrap of evidence or one defect in
the case for either party (such as the
failure to call a material
witness concerning an identity parade) was decisive but that can only
be on ex post facto determination
and a trial court (and counsel)
should avoid the termination to latch on to one (apparently) obvious
aspect without assessing it
in context of the full picture in
evidence”.
[29]
In
S
v Trainor
[4]
,
it was held that;
“
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated as must corroboratively evidence,
if any.
Evidence, of course, must evaluated against the onus on any
particular issue or in respect of the case in its an entirely”.
[30]
The court
a
quo
correctly
applied the above principles and found that the complainant and Siya
were reliable and credible witnesses
[5]
,
that their evidence was objective and that they did not attempt to
exaggerate the issues.
[31]
(In the case of
Kruger
AM v State
[6]
the court stated as follows;
“
The
fact that the Complainant informed her sister of what happened
immediately after the incident, is not only admissible under
section
58 of the Criminal Law (Sexual Offences and Related Matters, Amended
Act, 32 of 2007), but shows consistency on her part
in regard to her
complaint, and factor that serves to rebut any suspicion that she may
have fabricated her allegations. Moreover,
in a case such as this,
where the Complainant is in a state of distress and whipping almost
immediately after the incident is also
relevant and serves to rebut a
defence of consent.”) I am not sure if this is applicable given
that no first report was made
in this regard given that the witness
Siya witnessed the rape firsthand).
[32]
The court
a quo
correctly found that both the complainant and
Siya’s reaction on what was happening painted a picture of
exasperation and
surprise or shock.
See: Record; page 202 lines
5-7 volume 2.
[33]
The court
a quo
correctly applied the principle in the
Chabalala
(supra)
and was satisfied that the
probability in this case favour the State.
[34]
(The court
a
quo
,
as I have indicated above was alive the cautionary rule. In the case
of
S
v Sauls and others
[7]
the court stated the following:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S v Webber
1971 (3) SA 754
(A) at 758). 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 defects or
contradictions in the testimony, he is satisfied
that the truth has
been pulled. The cautionary rule referred to De Wiliers JP in 1932
may be a guide to a right decision but it
does not mean that the
appeal must succeed on any criticism, however slender, of the
witness’s evidence were well founded.”)
See my comments
at paragraph 29 above-the complainant was not a single witness and
therefore, in my view, the cautionary rule was
not applicable).
[35]
On the basis of all the evidence, court
a quo
was satisfied
that there is sufficient corroboration for the evidence of the
Complainant to justify the findings that the appellant’s
guilt
had been established.
[36]
The power of the court of appeal to interfere with a trial court’s
factual findings is limited.
In the case of
S
v Francis
[8]
,
the court stated the following:
“
The
court’s powers to interfere on appeal with findings of fact of
a trial Court are limited. Accused No 5’s complained
is that
the trial court failed to evaluate D’s evidence properly. It is
not suggested that the court misdirected itself in
any respect. In
the absence of any misdirection the trial Court’s conclusion,
including its acceptance of D’s evidence
is presumed to be
correct. In order to succeed on appeal accused No. 5 must therefore
convince us on adequate grounds that the
trial court was wrong in
accepting D’s evidence- a reasonable doubt will not suffice to
justify interference with its findings,
bearing in mind the advantage
which a trial Court has of seeing, hearing and appraising a witness,
it is only in exceptional circumstances
that this court will be
entitled to interfere with a trial Court’s evaluation of oral
testimony.
[37]
It is trite that as a court of appeal will have to show deference to
the factual and credible finding made
by the trial court. This is so
as the trial court has the advantage which an appeal court never has
of hearing and observing the
witness as they testified and under
cross-examination. As it was stated in
R v Dhlumayo
1948 (2) SA
647
(A) at 705
:
“
The
trial court is steeped in the atmosphere of the trial. A court of
appeal may only interfere where it is satisfied that the trial
court
misdirected itself or where it is convinced that the trial was
wrong”.
SENTENCE
[38]
The appellant, after he was convicted of rape, was sentenced by the
Court
a quo
to ten (10) years’ imprisonment in section
of terms of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
.
[39]
The issue here, is whether the Court
a
quo
erred when
it found that there were no substantial and compelling circumstances
justifying a deviation from the prescribed minimum
sentence of 10
years imprisonment.
[40]
Rape is serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy,
dignity and the person
of victim in this case Complainant.
[41]
In the case of
S
v Chapman
[9]
the court stated the following:
“
The
rights to dignity, to privacy and integrity of every person are basic
to the ethos of the Constitution and to any defensible
civilization.
Women in this kind are entitled to protection of these rights. They
have legitimate claim to walk peacefully on the
streets, to enjoy
their shopping and their entrainment, to go and come from work and to
enjoy the peace and tranquility of their
homes without the fear, the
apprehension and the security which constantly diminishes the quality
and enjoyment of their lives.
[42]
In the same matter of
S v Chapman
(
supra
) the
court went further and stated as follows:
“
Courts
are under duty to send a clear message to the accused, to other
potential rapist and to the community. We are determined
to protect
the quality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.”
[43]
A court’s discretion to interfere with a sentence on appeal is
circumscribed. In
S
v Malgas
[10]
the court stated the following:
‘’
A
court exercising appellant jurisdiction cannot, in the absence of
material midsection by the trial court, approach the question
of
sentence as if it was the trial court and then substitute the
sentence arrived by it simple because it prefers it. To do so
would
be to usurp the sentencing distraction of the trial court.”
[44]
In this matter the court
a quo
dealt with issues of sentence
carefully and thoroughly, having regard all the traditional factors
and objectives of sentence, the
prescribed minimum sentence, the
appellant’s personal circumstances, the probation officer’s
report as well as the
impact that the offence had on the complainant.
[45]
The court
a quo’s
approach in considering whether
substantial and compelling circumstances exist cannot be faulted and
I am of the view that there
was no misdirection on the part of the
court
a quo
.
[46]
The court a quo found that the following were aggravating
circumstances in this matter;
46.1
That the Appellant used deceit in satisfying his carnal desires.
46.2
The Appellant’s disregard that Siya could enter the room at any
moment did not stop him.
46.3
The Appellant was goal directed in that he went to the in room which
the complainant and Siya were sleeping,
already naked and even asked
Siya if he could also have
ass
.
46.4
The complainant was vulnerable at that stage as she was asleep and
the appellant took advantage of the situation;
46.5
The Appellant has shown no signs of remorse for his actions and in
this regard the court
a
quo
quoted the well-known case of
S
v Matyityi
[11]
where it was held:
“
There
is, moreover, chasm between regret and remorse. Many accused persons
might well regret their conduct, but that does not without
more
translate to genuine remorse. Remorse is gnawing pain of conscience
for the plight of another. Thus genuine concretion can
only come from
an appreciation and acknowledgement the extent of one’s error”.
[47]
In this matter the court a quo correctly found that there were no
circumstances regarding remorse that were
applicable. The appellant
remained steadfast in his denial and refused to take responsibility
for his actions.
[48]
Furthermore, I find that the court did not over-emphasized the
interests of society over and above the personal
circumstances of the
appellant ad the offence committed in this matter. In the case
S
v Msimanga Ander
[12]
the court stated the following;
“
The
reason for the existence of criminal justice system is to serve the
interests of the public in sentencing, as an integral part
of that
system, has the same raison d’etre. Violent conduct any form is
no longer to be tolerated, and courts, by imposing
heavier sentences,
convey the massage, on the one hand to prospective criminal that such
conduct is unacceptable and, on the other
hand to the public that the
courts take seriously the restoration and maintenance of safe living
conditions. Deterrence is the
over-arching and general purpose of
punishment. Since no civilized community should have to tolerate
barbaric conduct, in cases
of crime in particular the deterrence and
retribution aims of punishment are to be preferred over those of
prevention and rehabilitation
which in such cases play a subordinate
role.”
[49]
The court
a quo’s
approach in considering whether
substantial and compelling circumstances exist cannot be faulted and
I am of the view that there
was no misdirection on the part of the
court
a quo
.
[50]
Having regard to the above considerations, in my view the learned
magistrate did not misdirect himself in
any way in his consideration
of conviction and sentence. As such, the appeal cannot succeed.
[51]
In the circumstances, following order is made:
1.
The appeal by the appellant against both
conviction and sentence are dismissed.
N.R
MTSHABE
ACTING
JUDGE OF HIGH COURT
MAKHANDA
I
agree.
V.
NONCEMBU
JUDGE
OF THE HIGH COURT MAKHANDA
Appearances
Counsel
for the Appellant:
Adv.
VM Sojada
Legal
Aid South Africa
69
High Street
MAKHANDA
Counsel
for Respondent:
Adv.
MM Van Rooyen
The
Director of Public Prosecution
High
Street
MAKHANDA
[1]
Record
195 line-12 -17 (volume 2)
[2]
Record
p210 line 3-9 (volume 2)
[3]
2003
(1) SACR 134
(SCA) 140 a-b
[4]
2003
(1) SACR35 (SCA) para 9
[5]
Record
p195 line 18-24 volume (2) and p199 lines 20-21 (volume 2)
[6]
2014
(1) SACR 647 (SCA)
[7]
1981
(3) SA 172
(A) @ 180 E-G
[8]
S
v Francis
1991 (1) SACR 198
A 204 C-E
[9]
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA) 345 (A)
[10]
2001
(1) SACR 122
(SCA at para 12
[11]
2001
(1) SA CR 40 (SCA)
[12]
2005
1 SA CR 377
(O)