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[2022] ZAFSHC 205
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Mphuthi and Another v S (A155/2021) [2022] ZAFSHC 205 (19 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:
A155/2021
Reportable
Yes/No
Of
Interest to other Judges
Yes/No
Circulate
to Magistrates:
Yes/No
In
the matter between:
MOSIUWA
MATTHEWS
MPHUTHI
First
Appellant
JAN
MOFOKENG
Second
Appellant
and
THE
STATE
Respondent
CORAM:
OPPERMAN
J et SNELLENBURG, AJ
HEARD
: 9
MAY 2022
JUDGMENT
BY:
SNELLENBURG, AJ
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, and release to
SAFLII.
The date and time for hand-down is deemed to be 19 August 2022 at
15h00.
[1]
The first and second appellants (accused one and two
a quo
),
together with Mr. Fusi Samuel Motaung (Mr. Fusi Motaung), were
charged with one count of assault with the intent to do grievous
bodily harm (assault GBH). In addition, the first and second
appellants were also charged with one count of kidnapping and one
count of rape (in contravention of s 3 of Act 32 of 2007 and read
with s 51(1) Part I of Schedule 2 of Act 105 of 1997) originating
from the same events. On 28 August 2020 the Regional Court, Bethlehem
convicted the appellants and Mr. Fusi Motaung on all the
charges
proffered against them. Relevant for these proceedings are the fact
that the appellants were each sentenced to 24 months
for the assault
GBH; 2 years for kidnapping and life imprisonment in terms of the
provisions of s 276(1) of Act 51 of 1977 for
the rape.
[2]
Since a sentence of life imprisonment was imposed on count 3, the
appellants have
an automatic right of appeal. This appeal gives
effect to that right. The appeal is directed against both the
conviction on the
three counts as well as the sentences which the
court
a quo
imposed.
[3]
The state case established the following:
3.1 On
3 March 2019 the complainant, her boyfriend Moeketsi Andries Motaung
(Mr. Moeketsi Motaung) and a friend
Motlalepula Solomon Mosia (Mr.
Mosia) attended a tavern in Bohlokong, Bethlehem. They spent the
evening at the tavern in each other’s
presence.
3.2 The
appellants and Mr. Fusi Motaung were also present at the tavern. They
were known to the complainant, Mr.
Moeketsi Motaung and Mr. Mosia.
The complainant, Mr. Moeketsi Motaung and Mr. Mosia sat at a table
separately from the appellants
and didn’t consume any of their
alcohol.
3.3 The
complainant and her two companions left the tavern in the early
morning hours of 4 March 2019 to make
their way home. As they were
making their way from the premises of the tavern, the complainant was
assaulted by the appellants
and Mr. Fusi Motaung. The appellants told
the complainant, Mr. Moeketsi Motaung and Mr. Mosia during the
assault, in crude terms,
that they were assaulting the complainant
because she had consumed R120 of their alcohol.
3.4
According to Mr. Mosia, he and Mr. Fusi Motaung left the scene during
what may be termed to be the initial
assault. The appellants went on
to force the complainant to accompany them to the second appellant’s
home. This they did
by dragging her against her will. The complainant
resisted throughout and was subjected to further assaults at the
hands of the
first and second appellants to enforce their will on
her. When they arrived at the second appellant’s home, the
latter opened
the door, and the first appellant forced the
complainant into the house.
3.5 Mr.
Moeketsi Motaung, who is physically challenged, notwithstanding
valiant attempts, was not able to prevent
the assault or the
appellants from taking the complainant against her will to the second
appellant’s home.
3.6 The
appellants smoked dagga and thereafter took turns to rape the
complainant. In the meantime, Mr. Moeketsi
Motaung made his way to
the police station, where he was told to wait until a police vehicle
became available.
3.7 The
complainant was allowed to leave the second appellant’s home
later that morning after sunrise. The
complainant went to Ms.
Mamoqebelo Motlokoa’s (the first report) home where she
informed Ms. Motlokoa that she had been assaulted
by the appellants
and Mr. Fusi Motaung and raped by the first and second appellants.
When the complainant arrived at Ms. Motlokoa’s
home, her face
was swollen and she could not ‘open her eyes’. A while
later, Mr. Moeketsi arrived at Ms. Motlokoa's
place with the police.
[4]
The appellants admitted being in the presence of the complainant and
spending the
night with the complainant, but denied assaulting the
complainant, kidnapping her, or raping her. It is appropriate to
consider
the appellants’ version.
[5]
In summary, the appellants’ version was that the complainant,
although she was
in the company of Mr. Moeketsi Motaung and Mr.
Mosia, requested to join them at the tavern where she consumed
alcohol which were
bought by the first appellant. When the tavern
closed, they, the appellants and Mr. Fusi Motaung as well as the
complainant agreed
to continue drinking at the second appellant’s
house. The second appellant left the tavern before the first
appellant and
complainant. The first appellant testified that whilst
they were outside the tavern, he noticed that the complainant was
bleeding
from her mouth. When asked what had happened, the
complainant replied that Mr. Fusi Motaung had slapped her through the
face and
caused the injury to her mouth. He did not witness this
incident. The complainant accompanied the first appellant of her own
accord
and Mr. Moeketsi Motaung walked with them. The second
appellant was waiting for them at the front gate of his house. When
the first
appellant, the complainant and Mr. Moeketsi Motaung
arrived, Mr. Moeketsi Motaung was invited to join them, but he
declined. Because
he was disturbing the neighbours (‘making
noise’) they requested him to leave. Once inside the second
appellant’s
house the three of them, the appellants and
complainant continued to drink beer. The first appellant and
complainant were both
seated on crates and the second appellant sat
on his bed. The television and a heater were on. The second appellant
smoked some
dagga whilst they were drinking and at some point, they
all fell asleep; the first appellant and complainant where they were
seated
on crates and the second appellant on his bed. They woke later
after daybreak and left the house.
[6]
Mr. Fusi Motaung admitted in terms of ss115 read with 220 of the
Criminal Procedure Act 51 of 1977
that he assaulted the complainant
with an open hand to reprimand her after she had accidently hit the
first appellant with a beer
bottle. He elected not to testify.
[7]
Regarding the conviction, the appellants contend that the court below
erred in (a)
‘not evaluating the evidence of the state
witnesses properly’; (b) concluding that their guilt was proved
beyond a
reasonable doubt despite the contradictions in the state’s
case; and (c) by rejecting their versions as opposed to finding
that
their versions were reasonably possibly true.
[8]
The advantages of the trial court to observe witnesses in court is
well established.
Although a court of appeal is not hamstrung by the
findings of the court
a
quo
,
lest the appellant’s appeal become illusionary, a court of
appeal will not lightly interfere with credibility findings.
Naturally the court
a
quo’s
observations and findings must be borne out by the record of
proceedings.
S
v Heslop
2007
(4) SA 38
(SCA)
para 13;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000
(1) SA 1
(CC)
paras 77– 80.
[9]
The three contradictions the appellants rely on to impugn the
complainant’s
credibility, all relate to the initial assault on
the complainant outside the tavern. The contradictions, paraphrased,
are set
out in the heads of argument on behalf of the appellants to
be following:
9.1 The
complainant never testified that she was urinating when she was
accosted by the first appellant. According
to the complainant the
first appellant was the first person to slap her in the face. She did
not mention the first appellant kicking
her. Mr. Moeketsi Motaung,
the second state witness, however testified that he heard the
complainant saying: ‘Why are you
kicking me?’. The
aforesaid witness also testified that the complainant was behind the
vehicle when the assault started.
9.2 The
complainant testified that the second appellant was also present when
the first appellant assaulted her.
Mr. Mosia, the third state
witness, however testified that the second appellant was standing at
a distance when the commotion was
ongoing.
9.3
According to Mr. Mosia, the second appellant did nothing to the
complainant in his presence. It was however
the complainant’s
testimony that the first appellant assaulted her, thereafter the
second appellant and thereafter Mr. Fusi
Motaung.
[10]
The judgment accounts for all the evidence, including the aforesaid
contradictions in the evidence
of the witnesses on behalf of the
state.
S v Doorewaard and Another
2021 (1) SACR 235
(SCA);
S v Trainor
2003 (1) SACR 35
(SCA) ([2003]
1 All
SA 435
;
[2002] ZASCA 125)
para 9 and
S v Hadebe and Others
1998
(1) SACR 422
(SCA) at 426E – H. Insofar as the appellants
contend that the court did not properly evaluate the evidence of the
state witnesses,
the argument cannot be sustained.
[11]
The court
a quo
appropriately collated and considered the
contradictions between the state witnesses during the evaluation of
the evidence. Contradictions
per se
do not necessarily lead to
the rejection of a witness' evidence, they may simply be indicative
of an error. Not every error made
by a witness affects his
credibility. In each case the trier of fact must make an evaluation
taking into account
inter alia
the ‘nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness' evidence.’
S
v Mkohle
1990 (1) SACR 95
(A) at 98f – g and
S v
Oosthuizen
1982 (3) SA 571
(T) at 576B – C and 576G –
H.
[12]
A critical analysis of all the evidence establishes that these
contradictions were not material.
It must be borne in mind that the
assault was unexpected and understandably the witnesses testified to
the matters as each of them
observed and experienced it. As stated
above, the evidence establishes that the assault on the complainant
by the appellants did
not come to an end at the tavern, they
continued to assault the complainant, who continued to struggle to
get away from them, to
enforce their will on her whilst making their
way to the second appellant’s home. In short, the
complainant was the
victim of a brutal and callous attack. She
recounted the attack on her outside the tavern as best she could.
[13]
The court below held, correctly in my view, that the contradictions
did not render the state
witnesses’ evidence unreliable. The
state witnesses were found to be honest and credible witnesses,
notwithstanding the shortcomings
in their evidence. The findings are
borne out by the record.
[14]
The court
a
quo
was
certainly mindful of the cautionary rule pertaining to the evidence
of the complainant as a single witness to the rape, namely
that in
order to convict the first and second appellants on the single
evidence of a competent witness, the evidence must be substantially
satisfactory in every material respect or there must be corroboration
for the evidence. The said corroboration need not necessarily
link
the accused to the crime.
S
v Mahlangu and Another
2011
(2) SACR 164
(SCA)
at 171b – c;
S
v Heslop
2007
(4) SA 38
(SCA)
para 12. By corroboration is meant other evidence which supports the
evidence of the witness and which renders the evidence
of the accused
less probable on the issues in dispute.
S
v Heslop
, supra;
S
v Gentle
2005
(1) SACR 420
(SCA)
at 430j – 431a.
[15]
The court concluded that the complainant’s evidence surpassed
the required standard for
a single witness. Her version of the rape
was clear and cohesive. I agree with the observations and findings.
In addition, the
complainant’s evidence of how she was forced
to make her way with the appellants was corroborated in all material
respects
by the evidence of Mr. Moeketsi. The injuries to her face
the next morning as recalled by Ms. Motlokoa, the first report, was
not
challenged in cross-examination on behalf of the appellants. In
fact, Ms. Motlokoa’s evidence in its entirety was not
challenged.
[16]
The court approached the first and second appellants’ testimony
objectively and, in the
end, rejected it quite correctly in my view.
Their version can quite simply not be reasonably possibly true when
all evidence is
considered.
[17]
The appellants admit spending the evening with the complainant. On
their versions the complainant
joined them at the tavern, consumed
alcohol with them, left with the first appellant and spent an
uneventful evening at the second
appellant’s house in their
company. The only physical altercation involving the complainant
according to the first appellant,
would be a slap to the face at the
hands of Mr. Fusi Motaung. The only injury to the complainant
according to the first appellant,
was bleeding from her mouth which
she cleaned up at his request before they went to the second
appellant’s home. Save that
this version is not reconcilable
with the assault described by the complainant, Mr. Moeketsi Motaung
and Mr. Mosia, it also does
not account for the complainant’s
facial injuries as described by Ms. Motlokoa who saw the complainant
when she arrived at
her house at approximately six o’clock. Ms.
Motlokoa’s evidence was corroborated by Mr. Moeketsi Motaung.
The evidence
reveals that the complainant took a severe beating,
inter alia
, to her face, far removed from only her mouth
bleeding from a single slap as described by the first appellant.
[18]
In addition, the first and second appellants contradicted each other,
and the statements made
to state witnesses on their behalf. The fact
of the matter is that when these contradictions are evaluated, they
are of some moment;
they are material. I focus on some of the more
prominent issues in this regard.
18.1 The appellants
testified that the second appellant left the tavern before the first
appellant and the complainant did,
and that they met up with him
afterwards when they arrived at his house where he was waiting for
them at the gate to the premises.
Apart from the complainant’s
and Mr. Moeketsi Motaung’s evidence, Mr. Mosia also testified
that the second appellant
was outside the tavern during the initial
assault. Mr. Mosia’s evidence in this regard was not challenged
during cross-examination.
The second appellant instead sought to
confirm his evidence to the effect that he, the second appellant, did
not assault the complainant
in Mr. Mosia’s presence.
18.2 It was put to
the state witnesses that the complainant approached the three accused
persons and a certain Vusile at the
tavern with the request to join
them and consume their alcohol. According to the first appellant he
explained to his companions,
including the second appellant, that
although he paid for the alcohol, it belonged to all of them. He also
informed his companions
that he did not have any objection to the
complainant joining them, whereafter the complainant was allowed to
join them. The second
appellant however testified that he was playing
table pool at the tavern and was not present when the complainant
approached ‘the
first appellant’. He testified that he
did not hear the discussion between the first appellant and the
complainant and did
not see in whose company she arrived at the
tavern. The second appellant testified that the first appellant
informed him that the
complainant would join them.
18.3 It was put to
the complainant that ‘Pule’ (Mr. Mosia) would have said
that he ‘was going to stab’
the first appellant because
‘he wants to take’ the complainant. The complainant
testified that she did not hear Mr.
Mosia saying this. Significantly,
this was never canvassed during cross-examination when Mr. Mosia
testified nor did either appellant
refer to this issue during their
evidence in chief.
18.4 The first and
second appellants’ evidence also contradicted their plea
explanation in terms of
s115
of the
Criminal Procedure Act. According
to the plea explanation, the first appellant would have expressed
himself, before the complainant joined them, by saying that they
(he
and his company, which includes the second appellant on his version)
did not want any trouble, because they saw that she was
with two
other ‘guys’, one who may be her boyfriend, upon which
the complainant supposedly said that her boyfriend
was not amongst
the two ‘guys’. The aforesaid was put to the complainant
who denied this version. Neither the first
nor the second appellant
testified to this effect.
18.5 Mr. Mosia
testified that Mr. Fusi Motaung told him that ‘it is not our
intention to do that (referring to the assault
on the complainant),
but it was according to the intentions of accused 2 (the second
appellant)’. I may add that it is not
entirely clear when
exactly these gentlemen left the scene. This testimony of Mr. Mosia
was however not challenged.
[19]
The state produced evidence by means of which such a high degree of
probability was raised that
the ordinary reasonable man, after mature
consideration, would come to the conclusion that there exists no
reasonable doubt that
the appellants committed the crimes charged.
R
v Mlambo
1957 (4) SA 727
(A) at 738A.
[20]
The challenge to the conviction of the appellants on the charges
proffered by the state is without
merit.
[21]
As far as the sentences imposed are concerned, the appellants contend
that the court below erred
in the following respects: (a) concluding
that life imprisonment is the only
appropriate
sentence; (b)
failing to properly take the appellants’ personal circumstances
into consideration; (c) overemphasising the
element of retribution
whilst failing to accord sufficient consideration to the element of
mercy; (d) overemphasising the appellants’
lack of remorse; (e)
failing to take into account that the rape of which the appellants
were convicted did not fall within the
category of the ‘worst
cases of rape’; and (f) concluding that there were no
substantial and compelling circumstances
which would justify
deviation from the prescribed minimum sentence.
[22]
Sentencing is pre-eminently a matter for the trial court's
discretion. In
S
v Malgas
2001
(1) SACR 469
(SCA) para 12
[1]
the court held as follows:
'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. …However,
even in the absence of material
misdirection, an appellate court may yet be justified in interfering
with the sentence imposed
by the trial court. It may do so when the
disparity between the sentence of the trial court and the sentence
which the appellate
Court would have imposed had it been the trial
court is so marked that it can properly be described as shocking,
startling or disturbingly
inappropriate.'
[23]
In
S v Hewitt
2017 (1) SACR 309
(SCA) para 8 Maya, DP
said:
'It is a trite principle
of our law that the imposition of sentence is the prerogative of the
trial court. An appellate court may
not interfere with this
discretion merely because it would have imposed a different sentence.
In other words, it is not enough
to conclude that its own choice of
penalty would have been an appropriate penalty. Something more is
required; it must conclude
that its own choice of penalty is the
appropriate penalty and that the penalty chosen by the trial court is
not. Thus, the appellate
court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that
it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it. So,
interference
is justified only where there exists a ''striking'' or
''startling'' or ''disturbing'' disparity between the trial court's
sentence
and that which the appellate court would have
imposed. And in such instances the trial court's discretion is
regarded
as having been unreasonably exercised.'
(Emphasis
in original text and the footnotes are omitted.)
[24]
The appellants elected not to testify in mitigation during the
sentencing stage as they were
entitled to do. Their personal
circumstances were put on record by their legal representative. The
court
a quo
duly took these personal circumstances into
consideration. These were as follows:
24.1 The first
appellant was 35 years of age at the time. He was married but
separated from his wife since 2014. He is father
to one daughter who
was 13 years of age during the sentencing phase. The daughter resides
with her mother at the parental home.
The first appellant was a
carpenter at the time of his arrest. He earned approximately R3000.00
to R3500.00 per month. He was in
custody, awaiting trial since 3
March 2019. His highest level of education is grade 10 as he left
school during his grade 11 year.
24.2 The second
appellant was 35 years of age at the time, married and the father of
two children respectively 10 and 16 years
of age during the
sentencing phase. Both children reside at his parental home as their
mother passed away. The second appellant
was self-employed as hawker
selling various things including airtime and cigarettes at date of
his arrest. He had an average monthly
income of R4000.00. He was in
custody awaiting trial since 3 March 2019. His highest level of
education is grade 10 as he also
left school during his grade 11
year.
[25]
On behalf of the appellants it is contended that the court
a
quo
failed to exercise its discretion properly, seeing that
it should have found that there were substantial and compelling
circumstances
present. The argument postulates that the court
a
quo
erred by not deviating from the prescribed minimum
sentence in view of alleged substantial and compelling circumstances.
[26]
When sentencing the appellants, the court
a
quo
appropriately took into account the personal
circumstances when balancing the relevant interests applicable. No
factors appear
from either the submissions before us or the record
which can be said not to have been properly considered. The sentences
are not
shockingly inappropriate. Having regard to all the
circumstances encountered in this matter, the minimum sentences
imposed are
manifestly fair and just. The court
a quo
balanced
the appellants’ personal circumstances against the other
circumstances and quite correctly also against the interests
of the
community.
[27]
In this matter life imprisonment on the count of rape is prescribed
as minimum sentence. The
sentencing court may only impose a lessor
sentence if it is satisfied that substantial and compelling
circumstances exist which
justify the imposition of a lesser sentence
than the sentence prescribed.
[28]
The trial court did not exercise its discretion improperly or
unreasonably when imposing the
sentence, nor did it commit any
misdirection. As stated, no substantial or compelling reasons are
present in this matter that would
justify the imposition of a lesser
sentence. In my view any lesser sentence than the prescribed minimum
sentence of life imprisonment
would be totally disproportionate and
therefore not constitutionally compliant.
[29]
The assault on and rape of the complainant was clearly premeditated.
The appellants were not
deterred by the pleas of either the
complainant or Mr. Moeketsi Motaung to desist. The appellants
assaulted and kidnapped the complainant
to achieve their purpose. The
complainant must live with the emotional scars and stigma of having
been humiliated and violated
for the rest of her life. Her dignity
was taken from her in the most callous manner.
[30]
In
S v
Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at p5 c-e Mahomed CJ
[2]
issued the following warning:
‘
Rape is a very
serious offence, constituting as it does a humiliating, degrading and
brutal invasion of the privacy, the dignity
and the person of the
victim.
The rights to dignity, to
privacy and the integrity of every person are basic to the ethos of
the Constitution and to any defensible
civilisation.
Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets,
to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy the peace
and tranquillity of their homes
without the fear, the apprehension
and the insecurity which constantly diminishes the quality and
enjoyment of their lives.
The appellant showed no
respect for their rights. He prowled the streets and shopping malls
and in a short period of one week he
raped three young women, who
were unknown to him. He deceptively pretended to care for them by
giving them lifts and then proceeded
to rape them callously and
brutally, after threatening them with a knife. At no stage did he
show the slightest remorse.
The Courts are under a
duty to send a clear message to the accused, to other potential
rapists and to the community: We are determined
to protect the
equality, dignity and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.
’
(Own
emphasis added)
[31]
In
Director of Public Prosecutions, Grahamstown v Peli
2018
(2) SACR 1
(SCA) at para 11 Hughes, AJA remarked that:
‘
The curse in our
society, of rape, is considered by the courts, and society alike, as
deserving of severe punishment.’
[32]
Twenty-five years after Mahomed CJ’s warning, rape is still
rampant in our society. To
this end Phatshoane, AJA emphasised in
Director of Public Prosecutions
,
Free State v Mokati
2022 (2) SACR 1
(SCA) at para 42:
‘
The crimes which
impair the dignity of women and children, which violate their sexual
autonomy and privacy rights, such as rape
and other sexual offences,
are rampant in our society. Society craves justice and looks to our
courts to impose sentences commensurate
with the crime and fit for
the criminal.’
[33]
Both appellants have previous convictions suggesting propensity to
violence and, in the case
of the first appellant, rape.
[34]
In
S v
Matyityi
2011
(1) SACR 40
(SCA) para 13
[3]
Ponnan, JA states:
'Remorse is a gnawing
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. . .. In order for the remorse to be a
valid consideration, the penitence must
be sincere and the accused
must take the court fully into his or her confidence.'
[35]
The appellants showed no remorse for their conduct.
[36]
There is no merit in the attack on the sentences imposed by the court
a quo.
[37]
As result, the appeal against the convictions and sentences is
dismissed.
N.
SNELLENBURG, AJ
I
concur
M.
OPPERMAN, J
On
behalf of the appellants:
Ms.
V. Abrahams
Instructed
by:
Legal
Aid SA, Bloemfontein
On
behalf of the respondent:
Adv.
R. Hoffman
Instructed
by:
Director
Public Prosecutions
[1]
S v
Malgas
2001
(1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220
;
[2001]
ZASCA 30).
[2]
S v
Chapman
1997
(2) SACR 3 (SCA) (1997 (3) SA 341; [1997] 3 All SA 277; [1997] ZASCA
45.
[3]
S v
Matyityi
2011
(1) SACR 40
(SCA) ([2010]
2 All SA 424
;
[2010] ZASCA 127).