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2022
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[2022] ZAFSHC 218
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Jikela v S (A135/2021) [2022] ZAFSHC 218 (1 September 2022)
IN THE
HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
APPEAL
NUMBER: A135/2021
Reportable: NO
Of Interest to
other Judges: NO
Circulate to
Magistrates: NO
In the matter
between:
PHEELO EDWARD
JIKELA
APPELLANT
and
THE
STATE RESPONDENT
HEARD
ON:
11
APRIL 2022
CORAM
: NAIDOO,
J et AFRICA, AJ
JUDGMENT
BY:
NAIDOO, J
DELIVERED
ON:
1
SEPTEMBER
2022
[1]
The appellant and his
co-accused (accused 2) were convicted on 19 July 2017 and sentenced
on 20 July 2017, in the Bloemfontein Regional
Court, for the rape of
a minor girl, who was 14 years old at the time. The charges related
to contraventions of section 3 of the
Criminal Law (Sexual and
Related Matters) Act 32 of 2007 (the Sexual Offences Act), read with
the relevant provisions of the Criminal
Procedure Act 51 of 1977 (the
CPA), the Criminal Law Amendment Act 105 of 1997 (Minimum Sentences
Act) and the Children’s
Act 38 of 2005. The appellant and his
co-accused were sentenced to life imprisonment. Only the appellant
has lodged an appeal against
his conviction and sentence, and
approaches this court in terms of his automatic right of appeal.
Adv. P Mokoena appeared
for the appellant and Adv. (Ms) MM
Moroka for the respondent.
[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;
2.2
finding that
the state witnesses gave evidence in a satisfactory manner;
2.3
over-emphasising
the seriousness of the offence (in respect of sentence);
2.4
not
attaching adequate weight to the appellant’s personal and
mitigatory circumstances;
2.5
finding that
no substantial and compelling circumstances existed for it to deviate
from imposition of the minimum sentence.
[3]
The background to this matter, briefly, is that the complainant, who
was 14 years
old at the time, was at a tavern and when the tavern
closed she and her friend left the tavern to go home. On the way,
they met
the appellant and accused 2. She testified that they wanted
to “take” her friend. She reprimanded them, after which
her friend ran away from them, leaving the vicinity with her
boyfriend. She continued to walk with the appellant and accused 2
when they said to her that because she had refused to let them take
her friend they were going to take her. They dragged her to
a shack
while accused 2 was armed with a broken bottle. There they took turns
to rape her. Thereafter they escorted her out of
the shack and walked
with her until they parted ways, threatening to kill her if she told
anyone what had happened. Shortly thereafter
she saw a police vehicle
and explained to the policeman what had happened. She was thereafter
taken to the police station and a
few hours later to the hospital to
be medically examined. The fact that she was raped and sustained the
injuries reflected on the
J88 form were not disputed. It was also not
in dispute that the complainant knew the appellant and accused 2
prior to this incident.
The policeman, Constable Majela was called as
a witness for the state and confirmed the complainant’s version
regarding her
meeting and interactions with him.
[4]
The appellant tendered an alibi defence, alleging that he was at his
home at the relevant
time (between 11pm and 12 midnight) where he
resides with his mother and younger brother. He denied being at the
tavern, or in
the company of accused 2 that evening and he also
denied raping the complainant and alleged that she is “framing”
him,
which can be accepted to mean that she is falsely implicating
him. He was extensively cross-examined, and confirmed that he knew
the complainant’s ex-boyfriend as she had testified, and that
he knew the complainant by sight. He further confirmed that
there was
no bad blood between them. He called his mother as a witness to
confirm his alibi.
[5]
The trial court bears the task of analysing and evaluating evidence.
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 has
the advantage of seeing and hearing witnesses, which 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.
[6]
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.”
Dhlumayo
has been applied and cited with approval in a long line of cases
since 1948. More recently, the SCA in
AM
and Another v MEC for Health, Western Cape
2021 (3) SA 337
(SCA)
applied the dicta in Dhlumayo as set
out above.
[7]
In the present matter, the trial court undertook a comprehensive
analysis of the evidence
for the state and the appellant, as well as
the law applicable to the facts. The Court reminded itself
extensively of the caution
required when dealing with the evidence of
children. In this case the complainant was 14 years old when the
incident occurred,
and 17 years old when she testified. The court
a
quo
eloquently articulated that the reason for caution when
presented with evidence of a young child is that such a child is
“highly
imaginative” and her “evidence may be the
product of suggestion by others”. The manner in which the court
approached
the evidence of the complainant demonstrated amply that it
never lost sight of the caution to be exercised. The court referred
to a “three-pronged cautionary rule”, where it reminded
itself that it was dealing with a single witness, that the
complainant was young and that identity was in dispute.
[8]
The court indicated
that the complainant made an “excellent impression” upon
it, in that she maintained her version
throughout and no material
discrepancies were apparent in her evidence. The court undertook a
detailed analysis her evidence, in
support of its assertion that she
made a good impression on the court. The court touched upon aspects
of her evidence that were
the subject of criticism, namely that
certain aspects of her evidence only emerged in cross-examination.
The court, in dealing
with these aspects adopted the practical and
common-sense approach that she was not led on these aspects in
evidence in chief and
hence did not mention those aspects. It must be
borne in mind that this is a young girl who would be unfamiliar with
the intricacies
of court proceedings and evidence required in a
matter such as this, if she was not pertinently asked.
[9]
The court
a quo
’s
analysis and manner of dealing with the discrepancies demonstrated
amply that the court was very cognisant of the caution
it had to
apply in dealing with such evidence. The court’s impression of
the honesty and reliability of the complainant was
correctly
fortified by the many common-cause facts, which it detailed, namely,
that the complainant and appellant were known to
each other prior to
this incident, the nickname by which she knew him, the fact that she
was raped and the injuries she suffered.
I cannot fault the reasoning
of the court in this regard and its conclusion that that it was
satisfied that her evidence in respect
of the rape and how it
occurred was reliable and that despite her youthfulness, the
requirements for the application of the cautionary
rule were met. The
court dealt extensively with the issue of identity and analysed the
evidence of the complainant in relation
to the surrounding evidence,
weighing the “negatives” such as the fact that it was
dark, with the “positives”,
being that she knew both her
assailants, named them to the police, even though she did not point
them out. The police knew exactly
who the assailants were, as
Dewetsdorp, where the incident occurred, was such a small town. The
court also held that there was
no evidence that the alcohol that the
complainant had consumed, had any effect on the reliability of her
evidence.
[10]
The court then analysed the appellant’s version and especially
the evidence of his mother,
who was the alibi witness. In this regard
too, I cannot fault the court’s reasoning for rejecting the
alibi evidence. The
court
a quo
, was in a much better position
than this court to assess and analyse the evidence presented to it,
and I am unable to find that
the court misdirected itself in
convicting the appellant, as charged.
[11]
With regard to sentence, the appellant argued that the sentence of
life imprisonment was inappropriate,
as the court failed to properly
consider his personal circumstances and to find that substantial and
compelling circumstances existed
to justify imposition of a lesser
sentence. The appellant’s circumstances placed on record are
that he was at the time of
commission of the offence, 19 years old,
was unmarried, with no children. He is a first offender who was
earning an amount of R2500.00
per month from a six-month programme
that he engaged in, and that he supported his mother financially. In
his Heads of Argument,
Mr Mokoena argued that the complainant did not
sustain serious physical injuries and that this was not the worst
kind of rape.
This together with the youth of the appellant was
deserving of a lesser sentence. He suggested a term of imprisonment
of 20 years,
antedated to 20 July 2017.
[12]
In its Heads of Argument, the state supported the conviction and
sentence in this matter, but
in oral argument in court stated that
perhaps life imprisonment was a bit harsh, and did not appear to
raise any objection to the
proposal of a 20-year term of imprisonment
by the defence. The court took into account and analysed all the
personal circumstances
of the appellant, including the part that
alcohol may have played in the commission of the offence. The court
emphasised that it
had to perform the very difficult task of
balancing all the various factors relevant for sentencing and
considered the cumulative
effect of all these circumstances in
concluding that it could find nothing substantial or compelling in
the appellant’s circumstances
that warranted imposition of a
sentence lesser than the prescribed minimum. An appeal court is also
limited in its ability to interfere
with the sentence imposed by a
trial court as sentencing is within the discretion of that court,
unless an irregularity has been
committed or the discretion of the
court has been improperly applied. I can find no such irregularity or
improper application of
the trial court’s discretion.
[13]
In the circumstances, the following order is made:
13.1 The
appeal is dismissed
13.2 The
conviction and sentence imposed on the appellant are hereby
confirmed.
NAIDOO,
J
I concur.
AFRICA, AJ
On behalf of
appellant:
Adv P Mokoena
Instructed
by: Legal
Aid South Africa
Bloemfontein
Local Office
On behalf of
respondent: Adv.
(Ms) MM Moroka
Instructed
by:
The Office of
the DPP
Bloemfontein