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2024
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[2024] ZAFSHC 71
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Faniswa v S (A111/2023) [2024] ZAFSHC 71 (12 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
APPEAL NUMBER:
A111/2023
In
the matter between:
NDZEMENE
KENNETH FANISWA
APPELLANT
And
THE
STATE
RESPONDENT
HEARD
ON:
5 FEBRUARY 2024
CORAM
:
NAIDOO,
J et Hefer AJ
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
12
MARCH
2024
[1]
The appellant was convicted on 12 August
2021 on one count of Rape, in the Brandfort Regional Court, and
sentenced to life imprisonment.
The appellant approaches this
court in terms of
his
automatic right of appeal. The appeal lies against both his
conviction and sentence. Mr JD Reyneke appeared for the appellant
and
Mr TE Komane for the respondent (the state). I mention that the
appellant applied for condonation for the late filing of the
Notice
of Appeal. Mr Komane indicated that he does not oppose the
application for condonation, and condonation for such late filing
was
accordingly granted.
[2]
The Appellant’s grounds of appeal
against the conviction and sentence are, in essence, that the court
a
quo
erred in:
2.1
finding that the state had proved its
case beyond reasonable doubt;
2.2
finding that the evidence of a single
witness was satisfactory in all material respects, despite him having
proffered an alibi defence;
2.3
not placing sufficient weight on the
absence of DNA evidence;
2.4
rejecting the appellant’s evidence as
not being reasonably possibly true;
2.5
not taking into account the following
factors with regard to sentence:
2.5.1
that the appellant had no previous
convictions;
2.5.2
that he was fairly young at 32 years old
when the offence was committed;
2.5.3
that he is the father of two young children
and the breadwinner of his family;
2.5.4
by finding that no substantial and compelling circumstances exist to
justify deviating from the imposition
of the minimum sentence of life
imprisonment.
[3]
The complainant lived with her aunt
B[…], the appellant, who was B[…]’s boyfriend,
and their two children. On
16 November 2019, B[...] and the appellant
left their two young children in the care of the complainant, who was
nine years old
at the time, and went to a tavern close to their home.
A while later the complainant heard a knock on the door, and she
recognised
the voice of the appellant who asked where B[...] was, to
which the complainant replied that B[...] was not at home as she had
left to the tavern with him. He asked her to open the door, which she
did. I pause to mention that the complainant referred to the
appellant as Kadafi, which the latter confirmed was his nickname.
[4]
When the appellant entered the house, his
children were asleep in the complainant’s bedroom. He picked
her up and took her
to his bedroom, where he undressed the
complainant and himself. He initially sucked her genitals and then
raped her. Thereafter
he performed oral sex on her, and shortly
thereafter her aunt, B[...] returned home. She dressed hurriedly and
ran to her bedroom.
The appellant who was naked at the time, opened
the door for B[...]. Although she saw B[...], she did not report to
her what had
happened as she knew that B[...] would shout at her, as
she usually does.
[5]
The complainant did not go to school on the
Monday thereafter, and only went on Tuesday. She reported the
incident to her relative
K[...] and others, who in turn reported it
to the teacher. The teacher. Ms Khiba, confirmed that the complainant
informed her that
her aunt’s boyfriend had raped her on 16
November. She immediately called the police.
[6]
The appellant’s version is a bare
denial. His version is that he went to a tavern in the area with
B[...]. They sat at the
tavern and had a few drinks and at about
22h00 they returned home together. She checked on the children and
the complainant said
they were fine. They then all went to sleep.
B[...] testified as a witness for the appellant and said that she and
the appellant
left home together and went to the tavern where they
were drinking. Later that evening they left together and arrived home
together.
She did not check on the children and she was drunk and
there was not much she could do. She said it was not possible for the
appellant
to have left the tavern without her seeing him, as she sat
outside near the door and would have been able to see him leave the
tavern. The next morning she found the complainant’s panty in
her bedroom, and did not think this was unusual.
[7]
It is trite the state bears the onus to prove its case beyond
reasonable doubt, while there is no such duty
on the appellant to
prove his case. Not only was the court faced
with
two mutually destructive versions in this matter, but it also had to
deal with the evidence of a single witness, who was a
child.
The
task of analysing and evaluating evidence is vested in the trial
court. An appeal court is limited in its ability to interfere
with
the trial court’s conclusions, and may not do so simply because
it would have come to a different finding or conclusion.
The trial
court’s advantage of seeing and hearing witnesses places it in
a better position than a court of appeal to assess
the evidence, and
such assessment must prevail, unless there is a clear and
demonstrable misdirection. This is a principle that
is well
established in our law.
[8]
In
R v Dhlumayo and Another
1948 (2) SA 677
(A) at 705
the majority, per Greenberg JA and Davis AJA (Schreiner dissenting)
said: “The trial court has the advantages, which the
appeal
judges do not have, in seeing and hearing the witness and being
steeped in the atmosphere of the trial. Not only has
the trial
court the opportunity of observing their demeanour, but also their
appearances and whole personality. This should not
be overlooked.”
A similar view was adopted in
S
v Pistorius
2014 (2) SACR 315
(SCA) par 30,
which
cited,
inter
alia
Dhlumayo
with approval
:
“
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA) para 12. It can hardly be disputed that the
magistrate had advantages which we, as an appeal court, do not have
of having
seen, observed and heard the witnesses testify in his
presence in court. As the saying goes, he was steeped in the
atmosphere of
the trial. Absent any positive finding that he was
wrong,
this
court
is
not at liberty to interfere with his findings.”
[9]
The trial court, in evaluating the evidence
before it, was eminently aware that the complainant was
a single,
child witness and reminded itself of the caution to be exercised when
dealing with such evidence. The trial court cited
the relevant case
law as well as section 208 of the Criminal Procedure Act 51 of 1977
(the CPA), which provides for the admission
of the evidence of a
single witness, upon which a court can convict an accused person. The
learned authors
Du Toit et al
in the
Commentary on the
Criminal Procedure Act
introduce
their commentary on
section 208
of the CPA thus:
“
The
danger of relying exclusively on the sincerity and perceptive powers
of a single witness has evoked a judicial practice that
such evidence
be treated with the utmost care. This practice seems to have
originated in the following remarks made by De Villiers
JP in R
v Mokoena
1932 OPD 79
at 80:
'Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[
section
*
256
],
but in my opinion that section should only be relied on where the
evidence of a single witness is clear and satisfactory in every
material respect. Thus the section ought not to be invoked where, for
instance, the witness has an interest or bias adverse to
the accused,
where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he has
been found
guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc.’
(RS 67, 2021 ch24-p1).
[*Section
256 of the old CPA 56 of 1955 was the predecessor of the current
section 208)]
[10]
The guidelines set out in Mokoena have
solidified the manner in which courts approach the evidence of a
single witness. It
has become trite that the final evaluation
of the evidence of a single witness can rarely be made without
considering whether such
evidence is consistent with the
probabilities. Where there is even a small measure of corroboration,
the court is no longer dealing
with the evidence of a single witness,
and such corroboration renders the accused’s version less
probable on issues in dispute.
Courts generally employ corroboration
as a safeguard against the dangers of relying on the evidence of a
single witness. [
See S v Teixeira
1980(3) SA 755 (A); S v Letsedi1963(2) SA 471 (A); S v Gentle 2005(1)
SACR 420 (SCA
)]
.
[11]
In the present matter, the complainant was nine years old when the
incident happened. The court
a quo
, examined the complainant’s
evidence in detail and found it to be detailed and “a model of
clarity”. The court
correctly found that the complainant was
consistent in her version, as relayed to her teacher and the medical
practitioner who
completed the J88 medical examination form,
following his examination of the complainant. The injuries described
by the doctor
are consistent with the complainant’s version.
Her narration to these two officials, in my view, provides the
corroboration
the court relied on to make the credibility findings in
respect of the complainant
[12]
Similarly, the trial court evaluated the evidence of the appellant
and B[...] in the light of the probabilities
of the case as well as
the version of the complainant, and found that their versions were
not credible. This was especially so
in view of the detailed version
of complainant, where the trial court, in citing with approval the
case of
S v V 1995(1) SACR 22 (O)
,
agreed with that court’s dictum that
“
children
do not fantasise over things that are beyond their own direct or
indirect experience”.
I am in
agreement with the court’s assessment of the quality of the
complainant’s evidence, as it was clear that a nine
year old
child has neither the intellectual development nor the mental
sophistication to fabricate such a detailed and chronologically
sound
version. The court’s rendering of a guilty verdict cannot be
faulted, and consequently the grounds of appeal in respect
of the
conviction, which I set out earlier in this judgment, cannot be
sustained.
[13]
With regard to sentence, it is well established that
sentencing
is a matter which is within the discretion of the trial court. It is
trite that an appeal court will only interfere with
a sentence if the
trial court misdirected itself in imposing sentence or its discretion
is vitiated by irregularity, or if the
sentence is unreasonable,
unjust or disproportionate to the offence. This trite principle has
been well settled in our law, and
was succinctly enunciated
approximately 50 years ago in the case of
S
v Rabie 1975(4) 855 (A) at 857
, where
Holmes JA said:
“
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 test under
(b)
is whether the sentence is
vitiated by irregularity or misdirection or is disturbingly
inappropriate”.
This principle was
subsequently re-iterated in the much-quoted case of
S v Malgas
2001(1) SACR, 469 (SCA)
at, 478 para12
, where the court
remarked that:
“…
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh…”.
[14]
In this matter, the appellant’s personal circumstances, as
placed on record by his legal representative,
are that he was a 34
year old, unmarried man who was living with his partner, with whom he
had two children, who were aged four
and five years old. He held a
Grade 11 education and was, at the time of his arrest, employed as a
general worker, earning R3 600.00
per month. He is a first
offender, and the breadwinner of the family.
[15]
The court undertook a comprehensive examination of the case law
relevant to sentencing and applied the established
principles of
sentencing in its consideration of the appellant’s personal
circumstances. The court found that such personal
circumstances did
not individually or cumulatively amount to substantial and compelling
circumstances, justifying a departure from
imposing the prescribed
minimum sentence of life imprisonment.
The trial court’s comprehensive
analysis of the various factors relevant to sentencing in this matter
cannot be faulted, and
I am unable to find any misdirection in the
imposition of the sentence of life imprisonment in this
matter,
[16]
In the circumstances, the
following order is made:
16.1
The appeal in respect of the conviction and sentence is dismissed
16.2
The conviction and sentence imposed on the appellant are confirmed.
NAIDOO, J
I concur.
HEFER, AJ
On
behalf of appellant:
Mr
JD Reyneke
Instructed
by:
Legal
Aid South Africa
Bloemfontein
Local Office
On
behalf of respondent:
Mr
TE Komane
Instructed
by:
The
Office of the DPP
BLOEMFONTEIN