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[2023] ZAECMKHC 126
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Magopheni and Another v S - Appeal (CA&R:195/2022) [2023] ZAECMKHC 126 (17 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MAKHANDA]
CASE NO:
CA&R:195/2022
In
the matter between:
BULELANI
MAGOPHENI
FIRST
APPELLANT
BAXOLISE
MSESIWE
SECOND
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGMENT
NORMAN J :
[1]
The appellants were arraigned before the
Regional Court Magistrate, sitting in Port Alfred on two counts;
first count was kidnapping
and a second count of rape. They pleaded
not guilty to both counts. They were found guilty on both counts and
were both sentenced
to undergo three years imprisonment for
kidnapping the complainant and to life imprisonment in respect of the
rape charge. The
two sentences were ordered to run
concurrently. In the exercise of their automatic right of appeal, the
appellants lodged the appeal
against the convictions and sentences.
Relevant facts
[2]
On 31 July 2016, during the early hours of the morning, the
complainant was in the company of
her friend Mr Ayanda Baliti
(Ayanda). They were walking together from Wolves Tavern to
Ayanda’s home. They had
consumed alcohol but were not
drunk. There was illumination on the road from the municipal street
lights. The appellants approached
them. The first appellant is the
complainant’s ex- boyfriend. Ayanda was chased away. The
appellants accosted the complainant
and forced her to go with them to
the shack of the second appellant’s brother. Both appellants
had sexual intercourse with
the complainant. She requested them
to use a condom because she still had young children. They did.
[3]
It is common cause that the second appellant’s brother, Mr
Sivuyile Msesiwe (Sivuyile) entered
the shack when the second
appellant was on top of the complainant having sexual intercourse
with her. The complainant was crying
and she reported to him “
Boetie
these guys are raping me.”
Sivuyile assaulted the second
appellant with a stick whilst he was having sexual intercourse wih
the complainant. He went out to
call his neighbour Mr Luthando Binza
(Luthando).
[4]
They both went to the shack and instructed the complainant, who was
crying and shivering,to get
up. The second appellant was pulling the
complainant refusing to let her go with Luthando. A struggle ensued
as the second appellant
continued to pull the complainant while
Luthando was also pulling her from him. Luthando testified that the
second appellant was
very strong and he overpowered him. It was at
that stage that Luthando hit the second appellant with a pick handle.
He managed
to walk with the complainant to his house. The complainant
also reported to him that she was raped by the appellants. He
called the police and complainant was taken to hospital.
Complainant’s evidence was corroborated by Luthando and
Sivuyile
in material respects. She was examined by a forensic nurse
who did not find any injuries. She recorded in her conclusions:
“
There are no injuries noted but that doesn’t make me
say she wasn’t raped.”
She also recorded that
:
“She was clapped on the face no injuries observed yet”.
The J88 report was admitted into evidence by consent.
[5]
Sivuyile was called to testify. He corroborated the evidence of the
complainant. Sivuyile is related
to the second appellant as they are
cousins. He confirmed that upon his arrival the complainant was
crying. He confirmed that she
reported to him that the two appellants
were raping her and she had even requested them to use condoms. He
saw the second
appellant on top of the complainant on his arrival. He
assaulted the second appellant with a stick.
[6]
Ayanda also testified. He corroborated the
evidence of the complainant that the appellants forced the
complainant to go with them against her will. The second appellant
was known to this witness. The State closed its case.
[7]
The first appellant testified that he had
consensual sexual intercourse with the complainant. The complainant
went with him willingly on the night in question as they were
ex-lovers.
[8]
The second appellant also testified. He
testified that he had consensual sexual intercourse with
the
complainant. He disputed that he kidnapped the complainant. His
version was that he had paid the complainant to have sexual
intercourse with him.
Grounds
of appeal
[9]
The grounds of appeal against the convictions are that the trial
court erred in its assessment
of the evidence and in finding that the
appellants’ guilt had been proved beyond reasonable doubt. The
court erred in not
treating the evidence of the complainant as a
single witness, with caution.
[10]
The grounds of appeal advanced against sentence
are that both appellants are first offenders in so far as
rape
charges are concerned. It is contended by the appellants that
the effective sentence of life imprisonment is shockingly
harsh and
unjust having regard to the cumulative effect of their personal
circumstances.The appellants argued that the court
a quo
should have found that their personal circumstances serve as factors
that traditionally play a role in sentencing and should have
found
that those factors constitute substantial and compelling
circumstances justifying a departure from the minimum sentence of
life imprisonment.
Mitigating
factors
[11]
The first appellant submitted that he was 35 years at the time of his
sentence. He was raised by his maternal
grandmother because his
mother disappeared and his father got arrested. He passed matric. His
father played a role in his life
when he was a teenager. He is
married with three children born of the marriage. He is
separated from his wife and their children
reside with her in
Bathurst. He has two other children from other relationships. His
wife is a casual worker at one of the restaurants
in Bathurst. He was
working but resigned in 2006. At the time of his arrest he was not
employed. He passed matric in 2002.
He could not further his
studies due to financial constraints. He worked for BUCO as a
general worker prior to his arrest.
He was earning R1900 per
week. Prior to him working for BUCO he worked at the Caltex
Garage earning R3 400.00 per month.
[12]
He had the following previous convictions: in 1998 he was convicted
of housebreaking with intent to steal
and theft . His sentence
was postponed for four years. In 2004 he was convicted of
housebreaking with intent to steal and
theft and was sentenced to
undergo 18 months imprisonment, 6 months of which was suspended for 5
years. In 2006 he was again
convicted of housebreaking with
intent to steal and theft . He was sentenced to undergo 18 months
imprisonment with 6 months suspended.
In 2015 he was convicted
for
crimen injuria and
was sentenced to pay a fine of R500.00.
On 08 June 2017 he was convicted of escaping from lawful
custody and was sentenced
to undergo 12 months imprisonment.
[13]
According to the pre-sentencing report compiled by Ms N. Sakata in
respect of the first appellant, she recommended
that the only
appropriate sentence would be a term of imprisonment and she
highlighted the benefits thereof as being that:
(a)
the appellant would be detained in a structural
and secured environment; and
(b)
a multi-disciplinary team would be available in
the correctional centre and he would have access to a variety of
professionals that
would impact positively on his rehabilitation such
as educators, religious ministries for spiritual upliftment, social
workers,
psychologists and nurses.
[14]
Ms Sakata also compiled a pre-sentencing report in respect of the
second appellant. The second appellant
was born on 27 December 1982.
He is not married and does not have any children. His family reported
to Ms Sakata that he started
displaying criminal behaviour from the
time he was 13 years old. From then onwards he was in and out of
prison until he became
an adult. His sister reported that he did not
learn from his criminal mistakes, he continued doing so even after
his release from
prison.
[15]
He was raised by his biological parents who separated when the second
appellant was 10 years old. Thereafter
the second appellant went to
reside with his biological father in King Williams Town. His paternal
aunt took care of him. His father
provided for his needs. Prior to
his arrest for these offences he was doing odd jobs. He reported that
he was working for a civil
construction company in Port Alfred where
he was receiving an amount of R1 400 per month. He went up to
Grade 10 at school.
He has previous convictions which are listed as:
(a)
On 31 March 2004 he was convicted of house
breaking with intent to steal and theft and was sentenced to 2 years
and 6 months imprisonment.
(b)
On 5 December 2006 he was convicted of theft and
was sentenced to 2 years imprisonment with 1 year suspended for 5
years.
(c)
On 4 August 2011 he was convicted of robbery and
theft and was sentenced in respect of count 1 to 3 years imprisonment
and count
2 he was sentenced to 2 years imprisonment.
[16]
At the time of commission of these offences the second appellant was
34 years old. Ms Sakata also recommended
that imprisonment was the
only appropriate form of sentence that would suit the aggravating
nature of the offence committed.
Legal
submissions
[17]
Mr Charles for the appellants submitted that the complainant was a
single witness in relation to what
transpired at the place
where the sexual intercourse took place. In this regrad, he submitted
that her evidence should be treated
with caution. He further
submitted that the trial court erred in its assessment of the
evidence and in finding the appellants guilty
of the offences they
were charged with. He urged the court to allow the appeal against the
convictions.
[18]
In relation to the sentences, he submitted that both appellants were
first offenders in relation to rape.
He submitted that the trial
court misdirected itself by not affording proper weight to a factor
relevant to the imposition of sentence
such as the appellants’
personal circumstances and the seriousness of the crime. That , he
argued, justified interference
by this court in the convictions
and the sentences. He relied on
S
v Zinn
[1]
submitting
that the sentence imposed was overly harsh.
[19]
The trial court should have found that there were substantial and
compelling circumstances and thereafter
impose a lesser sentence. He
relied on
S
v Fazzie
[2]
.
[20]
Ms Phikiso, for the State, submitted that on the issue of consent the
trial court was correct to reject the
versions of the appellants on
the basis that they were improbable and were not reasonably possibly
true. The evidence of
complainant was found to be satisfactory
in every material respect and was corroborated hence it was accepted
by the trial court.
[21]
In respect of sentence she submitted that the trial court correctly
considered the personal circumstances
of the appellants. The
appellants were not first offenders. She relied on
S
v Matyityi
[3]
for
the submission that the appellants showed no remorse:
“
[13]
Remorse is a knowing pain of conscience for the plight of another.
Thus genuine contrition can only
come from an appreciation and
acknowledgement of the extent of one’s error. Whether the
offender is sincerely remorseful
and not simply feeling sorry for
himself or herself at having been caught, is a factual question.”
[22]
She further submitted that the finding by the trial court that the
absence of physical injuries does not
constitute substantial and
compelling circumstances was correct. In this regard, she relied on
the provisions of section 5(3)(A)
of the Criminal Law Amendment Act
38 of 2007. The trial court considered the psychological trauma
suffered by the complainant as
contained in the victim impact report
and the probation officer’s reports. She argued that rape is a
very serious offence
as it was found in
S
v Chapman
[4]
.
[23]
The trial court also found that the versions of the appellants were
irreconciliable with the facts before
court and it accordingly
rejected them. It also found that the State proved beyond reasonable
doubt that there was no consent.
Both appellants had sexual
intercourse with the complainant without her consent. The trial court
found that the State succeeded
in proving both charges against the
appellants beyond reasonable doubt.
Test
on appeal
Discussion
[24]
It is trite that a court of appeal may only interfere with
convictions where it appears that the trial court
misdirected itself
in relevant or material respect in its assessment of the evidence and
in its findings of fact pursuant thereto.
[5]
[25]
The trial court applied the cautionary rule in assessing the
complainant’s evidence. It found that there
was sufficient
evidence adduced by the State to prove that the complainant was
kidnapped by the appellants. They took her
from the company of
Ayanda against her will. Ayanda corroborated her evidence in
this regard. The two witnesses Sivuyile
and Luthando corroborated the
complainant’s evidence in relation to the rape charge and the
reports she made to them. The
emotional state that the complainant
was in was observed by these witnesses and was also recorded under
“mental health and
emotional status’ on the J88 medical
report by the nurse who examined her after the ordeal, as “
Looks
depressed – kept crying during the interview”.
[26]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides:
“
208.
C
onviction may follow on evidence
of single witness.
An accused may be
convicted of any offence on the single evidence of any competent
witness.”
It is apparent from this
section that the testimony of a single witness must still be
credible, her evidence should be clear and
satisfactory in every
material respect.
[27]
In
Mahlangu
& Another v The State
[6]
the
Supreme Court of Appeal found that the court can base its findings on
the evidence of a single witness as long as such evidence
is
substantially satisfactory in every material respect. The
record shows that the evidence of the complainant was reliable
and
satisfactory in every material respect. The trial court was
alive to the cautionary rule and applied it. It follows that
the
attack on the convictions must fail.
[28]
The principles regarding when a court of appeal may interfere with a
sentence imposed by a trial court are
now settled. In
S
v Rabie
[7]
Holmes
JA stated:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a Judge the Court hearing the appeal –
(a)
Should be guided by the principle that
punishment is “pre-eminently a matter for the discretion of the
trial court”;
and
(b)
Should be careful not to erode such
discretion: hence the further principle that the sentence
should only be altered if the
discretion has not been “judicially
and properly exercised.
2.
The list under (b) is whether the sentence is
vitiated by irregularity or misdirection or is disturbingly
inappropriate.”
[29]
The Constitutional Court has embraced those principles
[8]
in, amongst others,
S
v Bogaards
[9]
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 would have imposed it.”
(Footnotes omitted).
[30]
It is therefore trite that this court shall not readily interfere
with the sentence imposed by the court
a quo not unless the sentence
imposed falls foul of the principles enunciated in the matters
referred to. The court
a quo
had regard to the personal
circumstances of the appellants; the impact of the rape on the
complainant (who had been affected
psychologically and was having
nightmares), and balanced the interests of the appellants
families and those of the community
at large regarding the offences
as recorded in the pre-sentence reports provided to the trial court.
[31]
There is no evidence that the trial court misdirected itself. The
personal circumstances of the appellants
are not out of the
ordinary. The fact that these were their first rape convictions
pales by comparison if this court has
regard to the indignity and
sexual violation the complaint suffered. The aggression and
resistance they displayed towards
Sivuyile and Luthando who
were rescuing the complainant was indicative of their resolve to
continue invading the complainant’s
body as if they owned it.
[32]
The trial court weighed all those factors before imposing sentences.
It concluded:
“
I
cannot find anything either individually nor collectively which
qualifies as substantial and compelling circumstances so as to
deviate from the prescribed minimum sentence for accused 1 and 3 on
count 2.”
[33] I
do not find that the trial court misdirected itself either in
relation to the convictions or the sentences
imposed. Accordingly, I
find no reason to interfere with both the convictions and the
sentences of the trial court in respect of
both appellants.
[34] In
the result, I make the following Order:
The appeals against
both convictions and sentences are dismissed.
T.V. NORMAN
JUDGE OF THE HIGH
COURT
I
agree.
A
GOVINDJEE
JUDGE
OF THE HIGH COURT
Date
Heard
25
October 2023
Judgment
Deliver on
14
November 2023
Appearances:
For
Appellant:
ADV.
H . CHARLES
Instructed
by:
LEGAL
AID BOARD SA
Tel: (046)
622 9350
Fax: (046)
622 8873
69
High Street
MAKHANDA
For
the Respondent:
ADV.
N. P.PHIKISO
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
94
HIGH STREET
MAKHANDA
[1]
S
v Zinn
1969
(2) SA 537
(A) at 540 F.
[2]
S
v Fazzie
and
Others 1964 (4) SA at 684 (A-C);
S
v Malgas
2001
(1) SACR 469 (SCA).
[3]
S
v Matyityi
2011
(1) SACR 40
(SCA) at para 13.
[4]
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at page 5 para (b).
[5]
Chapman
, supra, page 4 para (d).
[6]
Mahlangu
& Another v The State
2011
(1) SACR at page 164.
[7]
S
v Rabie
1975
SA 855
(A) at 857 D – F.
[8]
S
v Sadler
[2000] ZASCA 105
;
[2000]
2 ALL SA 121
(A);
Mbuqe
v S
(53/2021)
[2022] ZA SCA 37 (4 April (2022)).
[9]
S
v Bogaards
[2012]
ZACC 23
;
2012 BCLR 126
(CC);
2013 (1) SACR 1
(CC) para 41).