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[2010] ZASCA 69
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Damgazela v S (633/09) [2010] ZASCA 69 (26 May 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
In the matter:
Case No:633/09
No precedential
significance
PETRUS THEMBA DA
MGAZELA First
Appellant
ISAAC LINGELILE MKHEHLANE Second Appellant
and
THE STATE
Respondent
Neutral citation:
Damgazela v The
State
(633/09)
[2010] ZASCA 69
(26 May 2010).
Coram:
Nugent,
Heher, Shongwe JJA, Majiedt et Seriti AJJA
Heard:
18
May
2010
Delivered:
26 May
2010
Summary:
Conviction
on rape – identification evidence credible and reliable –
approach to be adopted where oral evidence is at
variance with
statement restated – cautionary approach to single witness –
sentence – 18 years' imprisonment
not excessive.
ORDER
On appeal from:
Free
State High Court, Bloemfontein (Rampai, Kruger JJ and van Rooyen AJ
sitting as court of appeal).
1. The first appellant's appeal
against conviction and sentence is dismissed. The second appellant's
appeal against conviction,
so far as it might be properly before this
court, and his appeal against sentence, are dismissed.
JUDGMENT
MAJIEDT
AJA (Nugent, Heher, Shongwe JJA and Seriti AJA
concurring)
[1]
The
appellants were convicted of rape after a trial in the Regional
Court. The matter was referred for sentencing to the Free State
High
Court, Bloemfontein in terms of
s 51(1)(b)(i)
of the
Criminal
Procedure Amendment Act 105 of 1997
. The regional magistrate was
requested by Van der Merwe J to furnished additional reasons for
convicting the first appellant. When
those additional reasons had
been furnished the matter was placed before Milton AJ who was
satisfied that both appellants had been
correctly convicted and they
were each sentenced to imprisonment for 18 years.
[2] The first appellant applied to
the learned judge for leave to appeal against both his conviction and
sentence. The second appellant
applied for leave to appeal only
against sentence. Milton AJ granted both applications, with leave
being granted to the Full Court.
[3] The appeals came before Kruger and Rampai JJ and Van
Rooyen AJ. A majority (Kruger and Rampai JJ) dismissed 'the appeal of
both
appellants in respect of conviction and sentence'. (Van Rooyen
AJ was of the view that the first appellant was wrongly convicted
but
concurred with the majority so far as the sentences were concerned.)
So far as the order of the majority purported to dismiss
an appeal by
the second appellant against conviction clearly that was an
inadvertent error because no such appeal was before it.
[4] Both appellants then applied to
this court for special leave to appeal, in each case against both
conviction and sentence. In
truth the application by the second
respondent for leave to appeal against conviction was irregular
because no such appeal had
been before the Full Court. Both
applications were nonetheless granted. Although leave to appeal
against conviction ought not to
have been granted to the second
appellant by this court, I have nonetheless considered whether the
second appellant was correctly
convicted. For the reasons that follow
the convictions of both appellants are unassailable.
[
5] The
State adduced the evidence of the complainant and her boyfriend, Mr
Chrisjan Khuduga (Khuduga). Their version in broad terms
was that at
approximately 20h30 on the evening in question, they were making
their way from a shop towards their home. Khuduga
was then struck by
a stone behind his head. The stone had been thrown from behind by the
first appellant. Khuduga left the complainant's
company and moved off
in a direction back towards the shop from where they had come,
ostensibly to seek help from his friends at
the shop. In venturing
back, Khuduga had to walk past the first appellant. According to the
complainant while Khuduga was away
the first appellant and another
man, whom she later identified as the second appellant, forcibly
dragged her off to a nearby informal
settlement where they took turns
to have sexual intercourse with her without her consent, behind a
shack. Upon Khuduga's return
later, the two appellants fled the
scene. Khuduga was unable to recognise the fleeing attackers, due to
the poor visibility. The
appellants' identification as the alleged
rapists rests solely on the testimony adduced by the complainant.
[
6] Both
appellants testified and advanced a diametrically opposite version to
that of Khuduga and the complainant. According to
this version the
second appellant had met the complainant (whom he did not know
previously) in a tavern on the evening in question.
The second
appellant bought her some drinks and he 'proposed love' to her, which
she immediately accepted. They were joined later
by the first
appellant who, at the second appellant's invitation, also joined them
in drinking at the tavern. Khuduga arrived and
took exception with
the first appellant entertaining his girlfriend (the complainant)
there. It was pointed out to Khuduga that
the complainant was in fact
in the second appellant's company, but Khuduga persisted with his
confrontation with first appellant,
and the altercation became
violent. Khuduga left the tavern, unhappy with the state of affairs
there.
The first appellant also left and at
the complainant's suggestion, the second appellant and the
complainant left for the second
appellant's
parental home where they slept for the rest of the night. They had
consensual sexual intercourse once during the course of the
night.
Both appellants were arrested the following day by the police who
were accompanied by Khuduga.
[7
] The
common cause facts are as follows:
(a)
The
two appellants were at some stage in each other's presence that
evening where an altercation occurred between first appellant
and
Khuduga.
(b)
It
was dark outside with poor visibility and the only source of
illumination was a light at the shop, some distance away from the
informal settlement.
(c)
Second
appellant had sexual intercourse with the complainant that evening.
(d)
Second
appellant has a nickname, 'Madice'.
(e)
The
first appellant lives in the same area as Khuduga and the
complainant.
(f) The appellants were arrested by
the police the following day after Khudu
ga
had pointed them out. At that time the complainant was being examined
in Welkom by a doctor.
[8
] The
appellants' primary attack against their conviction was directed at
the first appellant's identification by the complainant,
the
differences between the complainant's oral evidence and her witness
statement as well as the differences between the versions
of Khuduga
and the complainant. The regional magistrate was alive to all these
pitfalls and found that the complainant, as a single
witness to the
actual alleged rape, was sufficiently credible and reliable. The
regional magistrate found Khuduga to be a very
good witness and
rejected the appellants' version as false beyond reasonable doubt,
mainly because of the improbabilities contained
therein.
[9
] Counsel
for the appellants was driven to concede in the course of his
argument that the first appellant was known to the complainant
and
Khuduga. The fact that an identification witness knows an accused
provides a significant safeguard against a mistaken identification.
1
As far as the second appellant is concerned, identification is not in
issue, because his defence amounts to consensual sexual intercourse.
While the illumination was admittedly quite poor at this scene and
while events must have happened quite fast, I am satisfied beyond
reasonable doubt that the complainant's identification is reliable.
2
A further safeguard against mistaken identification is provided by
the fact that it became common cause that the appellants were
in each
other's company at some stage during the course of that evening
(although of course, the place where and the circumstances
under
which they were together are in issue). There is no plausible
explanation as to why Khuduga should the very next day point
out the
first appellant who coincidentally happened to have been in the
company of the second appellant at some stage the previous
evening –
the very same person who on the common cause facts had sexual
intercourse with the complainant that previous evening
(the consent
to such intercourse is of course in issue).
[10
] The
discrepancies between the complainant's oral evidence and her witness
statement were subjected to fierce criticism by the
appellants'
counsel. But those inconsistencies relate mostly to her description
of the clothing which the appellants wore. This
issue becomes moot
where the first appellant was known to the complainant (and to
Khuduga) and where the second appellant admits
intercourse with the
complainant, as discussed in the previous paragraph.
In any event this case is a classic
illustration of the rationale underlying the caution expressed by
Olivier JA in
S v
Mafaladiso & others
3
against the summary
rejection of a witness' contradictory evidence vis-a-vis the witness'
police statement, without a careful evaluation
of underlying factors,
such as language and culture differences between the witness and the
author of the statement and the fact
that a witness is seldom
required to explain his or her statement. In this instance the
complainant made her statement in English,
although according to her,
she spoke to the police officer in Afrikaans and Sesotho. The
statement was read back to her by the
police officer in Sesotho, a
language which she testified she did not know very well. The police
officer in turn, informed the
complainant that he does not understand
Afrikaans, which the complainant testified is her home language. When
reading her evidence
on the record, it is plain that she is an
unsophisticated person of a modest educational level. In these
circumstances the contradictions
between her oral evidence and her
statement are mitigated by the obvious language difficulties outlined
above.
[11
] The
isolated incidences of contradictions within the complainant's own
evidence and between her and Khuduga are not material,
concerning
matters such as the first appellant's clothing, what was said on the
scene and whether the police were contacted that
same evening or the
next morning. The proper approach to such contradictions is
well-established.
4
The contradictions, of which there are but a few, are of the type
which suggest absence of fabrication rather than unreliability.
[
12] The
trial court was faced with two mutually destructive versions of the
events on the night in question. One of them must be
false. In such
circumstances, apart from considering the credibility and reliability
of the witnesses, it was justified in assessing
the probabilities of
the two versions and to reach a finding as to which one is true and
which one is not.
5
It could, of course, only dismiss the defence version as false in the
event that it reached that conclusion beyond reasonable doubt.
And
it had to do so after giving consideration to the evidence before it
as a whole.
6
[13
] The
regional magistrate correctly found the complainant to be
satisfactory in all material respects as a single witness in respect
of the rape. She is corroborated in some respects by Khuduga, whom
the regional magistrate found to be a very good witness, a finding
which was not attacked with any modicum of vigour before us. He
testified that, upon his arrival at the scene of the alleged rape,
he
found the complainant in a frightened and tearful state, with her
skirt full of dust and drawn down as far as her knees and
with her
panties missing. And it became common cause, as I have said, that at
least the second appellant had sexual intercourse
with her that night
(whether it had been consensual or not was in issue).
[1
4] The
regional magistrate correctly, in my view, rejected the defence
version as false beyond reasonable doubt by reason, inter
alia, of
the following glaring improbabilities:
(a)
That
the complainant, who was some 8 years older than the second
appellant, would at their very first encounter immediately agree
to
have intimate relations with him.
(b)
That
Khuduga, having been informed that the complainant was with the
second appellant at the tavern, would nonetheless continue
with his
altercation with the first appellant.
(c)
That
Khuduga would meekly depart the scene without confronting the second
appellant and leave his girlfriend, the complainant, there
particularly after his violent confrontation with the first appellant
concerning the very complainant.
[15
] On
a proper conspectus of all the evidence, the regional magistrate
cannot be faulted in her finding and the majority below was
correct
in upholding both appellants' convictions.
[16
] No
misdirections on sentence were relied upon on appeal by the
appellants. Their appeal is restricted to a contention that it
is
shockingly excessive. Pre-sentence reports concerning the appellants'
personal circumstances were handed in at the trial. Both
appellants
were first offenders, had left school prematurely and they were aged
18 and 19 years respectively at the time of the
incident. They had
both spent 20 months in custody awaiting trial. Aggravating features
are the gravity of the offence and the
prevalence thereof, the
appellants' lack of remorse and the fact that there appears to be a
degree of premeditation involved in
the commission of the offence.
Appellate interference in respect of
sentence on the
striking
disparity criterion is only competent in instances where the
appellate court has formed a definite view as to the sentence
it
would have imposed and where the degree of disparity between that
sentence and the one imposed by the sentencing court is so
striking
that interference on appeal is warranted.
7
The sentence in the present matter does not meet that criterion. I do
not find it shockingly excessive at all.
[17
] In
the result, the first appellant's appeal against conviction and
sentence is dismissed. The second appellant's appeal against
conviction, so far as it might properly be before this court, and his
appeal against sentence, are dismissed.
___________________
S A MAJIEDT
ACTING
JUDGE
OF APPEAL
APPEARANCES:
For appellant: N L SKIBI
Instructed by: Legal Aid South
Africa, Bloemfontein.
For respondent: S GIORGI
Instructed by: Director Public
Prosecutions, Bloemfontein.
1
R v Dladla and others
1962
(1) SA 307
(A) at 310B-E;
S v Zitha
1993 (1) SACR 718(A)
at 721d-e.
2
Cf
S v Charzen
2006
(2) SACR 143
(SCA) para 11;
S v
Mavinini
2009 (1) SACR 523
(SCA) para
21 and 22.
3
2003 (1) SACR 583
(SCA) at 594 a-c ([2002]
4 All
SA 74
(SCA) at 83).
4
S v Mkohle
1990
(1) SACR 95(A)
at 98f-g;
S v Mafaladiso
& others
at 83.
5
Stellenbosch Farmers' Winery Group Ltd &
another v Martell et Cie and others
2003
(1) SA 11
(SCA) at para 5;
S v Saban
1992 (1) SACR 199(A)
at 203i-204b.
6
S v Trainor
2003
(1) SACR 35
(SCA) para 9;
S v Mbuli
2003 (1) SACR 97
(SCA) para 57.
7
S v Pieters
1987
(3) SA 717(A)
at 734F-I;
S v Matlala
2003 (1) SACR 80
(SCA) at para 10.