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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU – NATAL DIVISION, PIETERMARITZBURG
Case No: AR7/2023
In the matter between:
SIFUNDO NKOSI APPELLANT
and
THE STATE
ORDER
On appeal from: the Regional Court, Mtubatuba, sitting as court of first instance:
1. The appeal is dismissed.
2. The conviction and sentence by the trial court is confirmed.
JUDGMENT
Delivered on: 16 February 2024
Ntlokwana AJ et Hadebe J concurring
Introduction
[1] This is an appeal brought by the appellant against conviction and sentence on a
charge of rape, in terms of the provisions of section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007.
[2] Upon conviction on the charge of rape, the appellant was sentenced to ten years
imprisonment. He is currently on bail pending this appeal.
[3] the appeal is before this court with the leave of the trial court.
[4] the complainant, who was raped in 2018 on 1 January, had earlier on enjoyed the
New Year’s Eve at her home in the company of her brothers and two friends. The rape
occurred in the early hours of the morning in a bushy area along the road whist on her
way accompanying her two friends ton their home. The complainant was 16 years of age
at the time of the rape incident.
[5] on conviction, the appellant challenges the credibility and reliability of the
evidence presented by the State, in that:
(a) the complainant is a single witness, the trial court should have applied the
cautionary rule, the appellant believes that the trial court not properly apply caution and
the trial court misdirected itself in so doing;
(b) the trial court erred in not considering the contradictions in the State case,
specifically on the incident of rape as the complainant is the only witness in so far as that
aspect is concerned;
(c) the defence was not furnished with the DNA results despite the fact that the state
alleges examination of the complainant by the doctor.
As a result, the argument in this regard is that the state failed to discharge the onus
resting on it to prove its case beyond reasonable doubt.
[6] on sentence, the ground of appeal is that another court would find the sentence of
ten years harsh, and it is submitted on behalf of the appellant that a lesser sentence
would be appropriate and proportionate to the crime, taking into account the appellant’s
personal mitigating factors.
Factual background
[7] At the start of the proceedings , the state, in terms of section 212(4) and (8) of the
Criminal Procedure Act 51 of 1977 (as amended), handed in the J88 medico – legal
report, (J88) compiled by Dr. Newman from Hlabisa Hospital. The defence had no
objection to the handing in of the medical report. It was then admitted as evidence and
marked exhibit “A”. According to the report, Dr. Newman examined the complainant on
1
st January 2018 at Hlabisa Hospital at about 15h00. In the medical report, it is recorded
that the complainant had a dusty skirt, and scratch marks on the inner thighs and calves
on both sides, as well as on the right arm. These scratch marks were in the form of
multiple longitudinal abrasions. On gynaecological examination, Dr. Newman observed
that the complainant’s private parts had swelling and bruising. The medical report
concluded that these findings were in keeping with the history of assault and forced
penetrative vaginal sexual intercourse.
[8] The evidence of the complainant is that on 1 January 2018 at about 4:00 am the
complainant left home with two of her friends, Z and M, the two friends were going
home. The complainant was accompanying them to their home. ON their way they came
across three boys, the complainant mentioned the name Sifundo, the appellant, being
one of the three boys. The three boys came up to the three girls, the appellant
specifically approached the complainant telling her that ‘there’s this child that I always
wanted’. The appellant paid personal attention to the complainant, and together with the
others, they walked in pairs. The appellant grabbed the complainant by the hand and
continued walking with her up to a muddy place.
[9] At this muddy place, the appellant told the complainant that he was going to carry
her across the muddy place. In reply, the complainant told the appellant not to carry her
as she could walk on her own, however, the appellant proceeded to carry her anyway.
From there on, they proceeded to walk. The appellant continued holding the
complainant’s hand, in the presence of the others. During this period, the complainant
was under the impression that the appellant was just playing with her, as he had seen
him before. The appellant had transported the complainant and other young women on
two previous occasions to the traditional reed dance, an annual event hosted for virgin
maidens at the Zulu King’s Palace.
[10] Thereafter things took an ugly turn, the complainant testified that the appellant
grabbed her on both hands. M noticed this and she told the appellant to ‘leave the child
alone.’ The appellant told M to walk a bit, and that he and the complainant will remain
behind. The appellant thereafter pushed the complainant into the bushes. At this stage
one of the appellant’s friends told the appellant to leave the child alone, the appellant
took out a knife and chased them away. The complainant tried to run away but could not
get far due to the long grass in the area, the appellant caught up with her.
[11] Once the appellant caught the complainant, he made her lie down on the grass ,
facing up , he then took out his penis and inserted it in the complainant’s vagina, raping
her in the process.
[12] The next witness called by the State is N N M (M). She confirmed that she was in
the company of the complainant when they left the complainant’s residence at about four
o’clock in the morning of 1 January 2018, and on their way, theu came across three
boys. The three boys seemed to be passing them, then suddenly, they turned back and
joined them, and they greeted them cordially. The boys thereafter walked with them.
While walking, Sifundo, the appellant, grabbed the complainant’s hand and kept on
talking to her.
[13] M confirmed that the vicinity around which they encountered the appellant and his
friends, was muddy as it was raining. She further confirmed that the appellant had taken
it upon himself to carry the complainant across the muddy patch.
[14] Having passed the muddy area, the appellant kept on grabbing the complainant,
refusing to let her go, despite the complainant’s request to let go of her. What was
happening between the appellant and the complainant at that stage did not raise alarm,
as according to M, the complainant and the appellant were known to each other, and the
impression created was that they were just playing.
[15] Soon thereafter, things took a turn for the worst when M heard that the appellant
wanted the complainant to kiss him by force, a quarrel ensued, and the complainant
demanded to be let go. Whilst walking along the road, they came across a place that
had trees. M saw the appellant pulling the complainant into the bushes, M’s sister Z
requested the appellant to let go of the complainant. The appellant aggressively told her
to get lost.
[16] According to M the appellant continued pulling the complainant into the bushes,
and her sister Z was brave enough to follow them into the bushes. M did not follow them
to the bushes because she was afraid. Seeing what was happening both M and Z left
and went to report the incident to the complainant’s brothers. The brothers came
together with Z and M, they found the complainant in the bushes where the appellant
had pulled her to.
[17] The third witness by the State is the brother of the complainant, Zwelakhwe
Thulasizwe Ncube. Mr Ncube testified that on arrival at the scene, he was told by the
complainant that she had been raped, and the name given to him by the complainant as
the person who raped her was Sifundo. Mr Ncube found the complainant hysterical and
crying with her bottom clothing stained with blood. Thereafter, Mr Ncube together with
the complainant and others embarked on a search for the appellant . The search ended
up at the homestead of the appellant. The appellant was not at home but was called and
he arrived later.
[18] When the appellant arrived at his homestead, Mr Ncube had already reported the
incident to the elders at the appellant’s homestead. Mr Ncube stated that when
questioned by the family members about the incident, the appellant admitted to having
committed the rape, the police were thereupon called, and the appellant was arrested.
[19] In his defence, the appellant testified that on 1 January 2018, he was in the
company of his cousin, and another male friend. On their way from a tavern, they met
the complainant and two other ladies, coming from the opposite direction. The appellant
confirmed that he and the complainant knew each other as they had met on previous
occasions. After greeting the three ladies, the appellant walked to the complainant her
cell phone number, the appellant’s phone went off, thus he was not able to get the
number from the complainant.
[20] Thereafter, according to the appellant, he and the complainant greeted and
hugged each other, walked along, and came across a muddy place. The appellant then
requested to carry the complainant, he picked her up and carried her across the mud.
The appellant and complainant broke away from the group and continued walking
behind them. At some point both the appellant and the complainant stood on the road
and continued talking, according to the appellant. He further stated that whilst standing
along the road, the complainant informed him that her brothers were approaching them,
upon that statement by the complainant the appellant immediately separated from her
and walked away leaving the complainant along the road.
[21] The appellant denied that he raped the complainant, he also denied that he
admitted to raping the complainant when asked about the rape at his homestead. He
further denied going to the bush with the complainant, stating that the complainant was
lying and that he never penetrated her vaginally.
Thubelihle Buthelezi, the appellant’s cousin, testified in support of the defence case. He
stated that he appellant did not rape the complainant and that the appellant did not pull
the complainant into the bushes. According to Thubelihle Buthelezi, the appellant and
the complainant were walking and talking, nothing appeared suspicious from what he
saw. He denied that the appellant had a knife and according to him, there was never a
stage that appellant was chasing any of the girls whilst with them.
[22] The last witness called by the defence is Mandlenkosi Buthelezi, the appellant’s
uncle who was present at the homestead when the appellant is said to have admitted to
raping the complainant. Mandlenkosi Buthelezi acknowledged that the complainant’s
family came to the homestead to report the rape allegedly committed by the appellant.
The appellant was not at home at the time when the complainant’s family arrived at the
homestead, he had to be called to come home. When he arrived home, the appellant
was asked about raping the complainant, the response was that he did not do it, thus
denying that he raped the complainant. Mandlenkosi Buthelezi denied that the appellant
admitted to raping the complainant. Mandlenkosi Buthelezi denied that the appellant
admitted to raping the complainant. The defence then closed its case.
Issues to be determined
[23] The fundamental question to be determined is whether the state has proven, that
the appellant is the person who raped the complainant, beyond reasonable doubt. There
are two significant issues in this regard, one being the reliability of the complainant’s
version considering that he is a single witness on the issue of rape. The second issue is
the sufficiency of the evidence presented by the state which points to the appellant as
the perpetrator who committed the crime of rape on the complainant.
Legal framework
[24] The state relied on the evidence of a single witness, the complainant, who was
the only witness testifying on the actual act of rape allegedly committed by the appellant.
In evaluating the evidence of a single witness section 208 of the Criminal Procedure Act
51 of 1977 (the Act) provides that an accused person can be convicted of any offence on
the single evidence of a competent witness. In the matter of Stevens v S
1 it is stated that
the cautionary rule is:
‘a well-established judicial practice that the evidence of a single witness should be
approached with caution.’
1 Stevens v S [2005] 1 ALL SA 1 (SCA) para [17].
[25] In applying this judicial practise, courts have set out an approach on how the
cautionary rule should be applied, in this regard, S v Sauls2 provides that:
“There is no rule of thumb test or formula to apply when it comes to a consideration
of the credibility of the single witness… 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, even though there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the truth has been told.”
It is critical to note that the exercise of caution must not be allowed to displace the
exercise of common sense. In this regard see S v Banana.3
Analysis on conviction
[26] On behalf of the appellant, it was argued that the learned Regional Magistrate
should have approached the evidence of the complainant with caution on the basis that
the complainant was a singe witness to the actual act of rape. This begs the question as
to whether the cautionary rule was applied by the learned Regional Magistrate in
evaluating the evidence presented before the court a quo. The point of departure from
the appellant’s submission was that the learned Regional Magistrate failed to approach
the complainant’s evidence with caution. This proposition is not supported by what is
recorded in the judgment of the Learned Regional Magistrate. In the matter,
acknowledged that it was only the complainant who implicated the appellant.
[27] In the judgment it is stated further that the appellant was a child under the age of
18, this the evidence of the complainant attracted the cautionary rule, as such it had to
be approached with great caution, and the Learned Regional Magistrate further stated
that before convicting on the evidence of the singe witness , the court must be satisfied
that the witness in question is an honest witness who testified clearly and credibly in all
material respects. This is what is stated in S v Sauls, as quoted above, as the correct
approach in dealing with the evidence of a single witness.
[28] The complainant was very clear on what occurred on the day, her evidence was
straightforward, and she stuck to her version throughout when testifying before the court
2 S v Sauls and others 1981 (3) 172 (A) at 180E-G.
3 2000 (2) SACR 1 (ZSC); 2000 (3) SA 885 (ZS).
a quo and she was unshaken. ON the issue of sexual intercourse, the complainant
remained unshaken in that, the appellant took her to the bush and then inserted his
penis into her vagina.
The Learned Regional Magistrate found that the evidence of the complainant that she
was sexually penetrated on the day in question was corroborated by the medical
evidence. I am in agreement with the findings of the learned Regional Magistrate that
indeed the complainant was sexually penetrated on the day in question, and I can find
no misdirection on the par of the learned Regional Magistrate in arriving at this
conclusion, based on the evidence presented before the court aquo.
[29] In line with the principle enunciated in S v Chabalala
4 that the court required to
evaluate all the elements of the evidence that point towards the guilt of the accused
against all those that are indicative of his innocence, looking at probabilities and
improbabilities on both sides, the learned Regional Magistrate embarked on evaluating
the evidence presented to establish if it was the appellant who sexually penetrated the
complainant by inserting his penis in her vagina without her consent.
[30] The learned Regional Magistrate reasoned that, at some stage, the complainant
and the appellant were holding hands, the appellant even lifted the complainant over a
muddy place, happy and fine. Suddenly, things changed, the appellant pulled the
complainant to the bushes. Attempts to rescue the complainant were warded off by the
appellant, who was at this stage carrying a knife and was aggressive.
[31] The learned Regional Magistrate stated that it was at this stage that those in the
company of the complainant left, going to the home of the complainant, they came back
with the brothers of the complainant. The complainant was found in the bushes, she
immediately informed her brothers that she was raped by Sifundo. The appellant denied
that he raped the complainant. His version was that he only left when the brothers came
while he was standing on the road and the appellant. This was found by the learned
Regional Magistrate to be inconsistent with the factors that are common cause, stating
that if the appellant was indeed standing on the road with the complainant, why then
would he suddenly leave when the complainant’s brothers were approaching.
[32] This court accepts that the evidence before the Learned Regional Magistrate
pointed to the appellant as the person who raped the complainant. The contradictions
4 S v Chabalala 2003 (1) SACR 134 (SCA) para 15.
relating to whether the appellant had a knife or not are not material to the extent that the
Magistrate misdirected herself in her findings in evidence. It has been held that, where
there has been no misdirection on facts, a court of appeal will assume that the court
aquo’s findings are correct and will accept the findings unless it is convinced that the trail
court is clearly wrong.5
Analysis on sentence
[33] With regards to the appeal on sentence, the annexure to the charge sheet
provided that, section 51(2) and Part III of Schedule 2 of the Criminal Law Amendment
Act 105 of 1997 was applicable in that, the appellant upon a conviction on a charge of
rape, would attract the imposition of the prescribed minimum sentence, which in the
case of the appellant being the first time offender, would be imprisonment for a period of
not less than ten years, unless the appellant could show the existence of substantial and
compelling circumstances which warrant deviation from the prescribed minimum
sentence of ten years.
[34] On the first day of the trial, the appellant was represented, and he acknowledged
that he understood the implications of the minimum sentence he was facing should he
be convicted, he also confirmed that he understood that he would be required to place
ton the satisfaction of the trial court substantial and compelling circumstances to warrant
the imposition of a lesser sentence.
[35] The court aquo imposed the prescribed minimum sentence of ten years. Section
51(3)(a) of the Criminal Law Amendment Act 105 of 1997 as amended, provides that:
“if any court referred to in subsection (1) or (2) is satisfied that substantial and
compelling circumstances exist which justify the imposition of a lesser sentence
than the sentence prescribed in those circumstances, it shall enter those
circumstances on the record of the proceedings and must thereupon impose such
lesser sentence.”
Section 51(3)(aA) of Act 105 of 1997 goes further by listing instances where the court is
precluded from considering such as constituting substantial and compelling
circumstances justifying the imposition of a lesser sentence. According to this provision,
5 R v Dhlumayo and others 1948 (2) SA 677 (A) at 705 – 706.
when imposing a sentence in a rape matter, an apparent lack of physical injuries to the
complainant shall not constitute substantial and compelling circumstances for imposition
of a lesser sentence. This also applies to a situation where there was a relationship
between the accused and the complainant prior to the offence being committed.
[34] It is on the basis of this legislative provision that the court aquo imposed a
sentence of 10 years. It is trite that the imposition of a sentence is basically a matter of
discretion conferred upon the trial court. The trial court is also empowered in terms of
section 51 of the Criminal Law Amendment Act 105 of 1997, to exercise a discretion in
imposing prescribed minimum sentences for certain serious offences, rape being one of
them.
[35] It is so that an appellate court cannot in the absence of material misdirection by
the trial court, impose its own sentence, or substitute the sentence imposed by the trial
court solely because it prefers it own sentence. The trial court’s decision is not absolute,
any material misdirection by the trial court will vitiate its exercise of the said discretion.
Where there is material misdirection by trial court, the appellate court may be justified in
imposing its own sentence if the trial court’s sentence is disturbingly inappropriate or
shocking.
6
[36] In mitigation, the appellant’s counsel submitted that the trial court did not take into
account the appellant’s personal circumstances, it was also submitted that the trial court
did not take into account the fact that despite the seriousness of the act of rape, the
complainant did not suffer very serious injuries during the rape incident.
[37] In Maila v S
7, where it was submitted that the complainant was not physically
injured, as the matter was not one of those brutal cases, the Supreme Court of Appeal
stated that, apart from this minimising the traumatic effects of rape on any victim and
more so a child, rape always causes its victims serve harm, irrespective of the presence
of physical injuries or lack thereof. The appellant is thus precluded from relying on the
lack of physical injuries as one of the grounds for substantial and compelling
considerations. As stated above, the legislature in terms of section 51(3)(aA) of Act 105
of 1997 specifically provides that, because the complainant had suffered no physical
injuries during rape, such could not be considered as a compelling and substantial
6 S v Malgas 2001 (1) SACR 469 (SCA) para 12
7 Maila v S 429/2022 [2023] ZASCA 3 (23 January 2023)
circumstance, this the lack of physical injuries to the complainant is not a ground for
consideration on whether the appellant should get a lesser sentence than the prescribed
minimum sentence of 10 years.
[38] In aggravation, the state submitted that rape is a humiliating, degrading and brutal
invasion of the dignity and person of the victim. Despite the fact that the appellant lifted
the complainant, carrying her over the muddy area, soon thereafter he forcefully dragged
the complainant to the bushes, using violence to ward off any effort to rescue the
complainant. The appellant, the state further submitted, was very aggressive during the
rape attack, and the complainant was left bruised. It is thus not correct that the
complainant suffered no physical serious injuries.
[39] In assessing the appropriate sentence, the learned Regional Magistrate referred
to a well-known case of S v Rabie
8 where it was stated that:
“Punishment should fit the crime as well as the criminal and it must be fait to
society and be blended with a certain measure of mercy according to the
circumstances of the case.”
The court aquo acknowledged that, in relation to personal circumstances of the
appellant, his age , that he is the first-time offender, and that the offence was not
planned, counted in favour of appellant.
[40] For the act of rape committed by the appellant, the community expects the courts
to impose a heavy sentence to deter the appellant from being aggressive and them
commit rape. In S v Ncheche
9 it was stated that:
“The legislature and the community at large expect the court to punish rapists very
severely.’
The court further stated that:
“Rape is an appalling and utterly outrageous crime, gaining nothing of worth for the
perpetrator, and inflicting terrible and horrific suffering and outrage on the victim
8 S v Rabie 1975(4) SA 855
9 S v Ncheche (2005 (2) SA 386 (WLD)
and her family.’
[41] The court aquo, took into account that the appellant used violence to commit the
crime, and was aggressive when he was told to stop what he was doing. The trial court
also took into account that the complainant was a virgin when she got raped and that
throughout the trail, the appellant showed no sign of being remorseful for his actions.
The trial court concluded that there were no substantial and compelling factors that
warranted deviation from the prescribed minimum sentence of 10 years. A sentence of
10 years was therefore imposed on the appellant.
[42] It has been lamented that the crime of rape remains the single greatest violation
of women’s sexuality, the physical brutality meted out by the perpetrators goes to the
core of women’s subordination within the communities they live in
10.
[43] A clear and unambiguous message should be sent out that the courts will not shy
away from prescribing the minimum sentences where there are no grounds for deviation
as was correctly found by the trial court. The complainant was known to the appellant,
despite this, the appellant had no mercy, got aggressive and raped the complainant.
This is a heinous violation of the dignity of the complainant. The appellant deserved no
less a sentence than that imposed by the trial court. I am satisfied that the sentence is
an appropriate sentence that does not require interference by this court.
[44] I accordingly make the following order:
1. The appeal against conviction and sentence is dismissed.
2. The conviction and sentence by the trial court is confirmed.
Ntlokwana AJ
Hadebe J: I agree, it is so order.
APPEARANCE DETAILS:
10 Carmichele v Minister of Safety and Security and another 2001 (4) 938 (CC) para 29
For the Appellant: Ms T Cetera
Instructed by: Legal – Aid South Africa
For the Defendant: Mr J Khathi
Instructed by: Director of Public Prosecutions
Matter heard on: 17 November 2023
Judgment delivered on: 16 February 2024