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[2022] ZAKZPHC 45
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Msomi v S (AR191/2020) [2022] ZAKZPHC 45 (2 September 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR191/2020
In
the matter between:
MASIBONGWE
MSOMI
APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Umzimkulu
Regional Court (sitting as court of first instance):
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence imposed by the regional court is set aside and
substituted with
a sentence of 25 years’ imprisonment.
4.
The sentence is antedated to 27 June 2018, in terms of
section 282
of
the
Criminal Procedure Act 51 of 1977
.
JUDGMENT
Khallil
AJ (Seegobin J concurring)
Introduction
[1]
The appellant, who was legally represented throughout his trial in
the Umzimkhulu
Regional Court
,
stood
accused on a single count of the rape of a 15-year old child in
contravention of section 3 of the Criminal Law (Sexual Offences
and
Related Matters) Amendment Act 32 of 2007 (‘SORMA’). It
is unfortunate that the substantive charge, as it is framed
in the
charge sheet, whilst stipulating the relevant sections of SORMA,
makes no reference to the Act and the part of the charge
sheet where
the Act ought to have been inserted was left blank.
[1]
[2]
As the complainant was under the age of 16 years at the relevant
time, the offence
fell within the ambit of Part 1 of Schedule 2 of
the Criminal Law Amendment Act 105 of 1997 (‘CLAA’)
making the sentencing
regime in section 51(1) of the CLAA applicable.
The charge preferred was framed with reference to the CLAA.
[3]
The appellant pleaded not guilty to the charge of rape, and elected
to remain silent
and to not disclose the basis of his defence.
[2]
At the end of proceedings, the appellant was convicted as indicted,
and the learned magistrate, having found no substantial and
compelling circumstances, imposed the prescribed sentence of life
imprisonment.
[3]
[4]
The matter serves before us by way of an automatic right of appeal in
terms of section
309(1)
(a)
of the Criminal Procedure Act 51 of 1977 (‘CPA’).
[4]
[5]
Although the appeal noted is against both conviction and sentence,
counsel for the
appellant, at the inception of the hearing, did not
pursue the appeal against the conviction. However, since the appeal
against
conviction was neither withdrawn or conceded, it becomes
necessary for the sake of completeness to evaluate the evidence
relating
thereto.
Conviction
The
State’s case
[6]
The charge arises from an incident which occurred on the night of 25
March 2017 at
about 8.30 pm, when the complainant, whilst walking on
her way home, was accosted by an unknown male person, who was later
identified
as the appellant.
[7]
The complainant was grabbed by the neck and pushed to the ground by
the assailant
who removed her pants and underwear. He then proceeded
to have sexual intercourse with her twice in quick succession,
without her
consent. On both occasions he ejaculated and when she
began crying aloud, he threatened her with a knife. The injuries
sustained
were limited to scratch marks on the complainant’s
legs and right hand.
[8]
Although the complainant saw the assailant for the first time on the
night in question,
she was able to see his face as he had switched
the torch of his cellular phone on, and the screen light of his phone
reflected
on his face. She described the assailant as having
dreadlocks and that he wore white gumboots, a straight cap, and grey
trousers
at the time of the incident. She was confident of being able
to identify the assailant as she had clearly seen his face.
[9]
She managed to escape in a half-naked state at a time when the
assailant lay resting
on the ground after he had ejaculated for the
second time. She sought help from an educator from her school, Ms
S[....], whose
house was close-by. She related the incident to Ms
S[....] and was eventually fetched by her mother and taken home. The
complainant
was asked by Ms S[....] not to bath as DNA tests would be
conducted. She followed that advice.
[10]
She was taken to the doctor for an examination the following day, and
the medico–legal
examination confirmed her injuries as well as
an old rupture of the hymen. The fact that her vagina admitted two
fingers was, according
to the doctor, indicative of sexual
intercourse.
[11]
The medico-legal report was handed in by consent as Exhibit ‘B’.
According to the
report, a forensic specimen sample was taken from
the complainant for analysis purpose. The kit was sealed and handed
to the police
officer, Mr Gambusha, who had taken the complainant for
the medical examination. It was unfortunate that the doctor, when he
testified,
was not led nor cross-examined on this. The kit was kept
under lock and key at the police station and entered into the SAP 13
register.
[12]
The uncle of the complainant, Mr Dlamini, after he
had been provided with a description of the apparel worn
by the
assailant, stated that he had earlier on the day in question attended
a traditional ceremony in the area and had seen only
one person at
the ceremony who had dreadlocks and who had worn white gumboots and a
straight cap. This person served the guests
food at the ceremony. Mr
Dlamini made enquiries on the same night of the incident and the name
of the person was obtained as well
as his employment details.
[13]
A few days after the incident, the complainant was taken by the
police to the suspect’s
workplace, and without prompting,
pointed out the appellant as the perpetrator. The appellant was
arrested and it is common cause
that a DNA sample was taken from him
for analysis. The investigating officer, Sergeant Hlongwa, testified
to this effect.
[14]
The complainant, who was 16 years old, and in
grade 12 at the time of testifying, was a credible witness
who
testified in a clear, coherent, and satisfactory manner in all
material respects. She withstood cross-examination well and
did not
contradict herself. The trial magistrate was mindful of the need to
treat her evidence with caution, not only because she
was 16 years
old at the time of testifying but also because she was a single
witness. Our appeal courts have said it often enough
that the
exercise of caution, in assessing evidence, should however not be
allowed to displace the exercise of common sense.
[5]
[15]
An assessment of the record reveals that the complainant was an
honest, trustworthy and intelligent
witness whose evidence was bound
to be reliable. We have little hesitation in endorsing the findings
of the trial magistrate that
the complainant made a good impression
on the trial court and that her evidence was credible.
[16]
The evidence of Ms S[....] (to whom the first
report was made) not only established consistency in the version
of
the complainant
[6]
but also
corroborated the complainant’s version of her condition at the
time, and of what had happened from the time that
the complainant
sought assistance at her place until the time she was fetched by her
mother.
[17]
The DNA evidence, which was handed in by consent and marked Exhibit
‘A’,
[7]
clearly
establishes that the reference DNA sample obtained from the appellant
upon his arrest, matched the result of the DNA sample
obtained from
the complainant (swab under serial number 15DIAC2294). The most
conservative occurrence for the DNA result
is one in 23 billion
people.
[8]
[18]
The chain evidence relating to the DNA evidence, and not the result
of the analysis, was challenged
at trial. We are satisfied that the
evidence of Sergeant Hlongwa, who procured the DNA sample from the
appellant, and Constable
Gambusha, who received the sealed kit
containing the DNA sample of the complainant from the examining
doctor, that the samples
together with the relevant serial numbers
were stored safely, free of contamination, until such time as the
samples were handed
to the forensic science laboratory for analysis.
There has been no suggestion to the contrary. The apparent
contradiction relating
to which of the aforementioned two police
officers handed in the samples for analysis, is of no consequence,
and does not in any
way detract from the reliability of the chain
evidence.
[19]
The Supreme Court of Appeal in
S
v SB
[9]
held that DNA evidence is circumstantial evidence, the probative
value of which depends on:
‘
(i) The
establishment of the chain evidence, ie that the respective samples
were properly taken and safeguarded
until they were tested in the
laboratory.
(ii) The
proper functioning of the machines and equipment used to produce the
electropherograms.
(iii) The
acceptability of the interpretation of the electropherograms.
(iv) The
probability of such a match or inclusion in the particular
circumstances.
(v) The
other evidence in the case.’
[10]
These
factors (save for the factor listed in (v)) are dealt with in the
section 212
[11]
affidavit, and
the appendix thereto, by Colonel Khelawanlall (Exhibit ‘A’),
which was admitted into evidence by consent.
[12]
There is accordingly no issue that these factors have been
satisfactorily established to the requisite degree. The DNA evidence,
in my view, assists in overcoming the cautionary rule applicable when
assessing the evidence of the identification of the perpetrator
and
enhances the reliability of the complainant’s version.
Evidence
by the appellant
[20]
The appellant testified that on the day in question, he had indeed
attended the traditional ceremony,
and that he had served food,
thereby confirming the evidence of the uncle of the complainant, Mr
Dlamini.
[13]
Importantly, he
also conceded that at the time of the incident, he had dreadlocks
which have since been cut off. He further confirmed
that a DNA sample
had been taken from him.
[14]
He however denied owning any white boots, and when being led by his
counsel, he could not remember if any white boots were recovered
from
his home by the police.
[15]
He
could not explain how his DNA got onto the complainant but denied
knowing the complainant. When confronted with the DNA evidence,
his
response was ‘No comment your Worship’.
[16]
[21]
The complainant’s description of the clothing worn by the
perpetrator on the day in question
was not disputed when she was
cross-examined. The appellant alluded to having a problem with his
ear when he encountered difficulty
in answering straightforward
questions. During cross-examination, after he had initially testified
that he did not discuss the
DNA results with his legal
representative, later recanted by saying: ‘No its lies your
Worship, that I did not discuss with
him’.
[17]
[22]
An assessment of the appellant’s evidence
reveals that he was not only dishonest and evasive but even
went to
the extent of blaming his legal representative for not disputing
material aspects of the complainant’s version. In
short, the
appellant was a poor witness.
[23]
It is trite that the appellant’s conviction can only be
sustained if, on a consideration
of all the evidence, his version of
events is so highly improbable that it cannot reasonably possibly be
true or where his version,
in the face of credible evidence, can be
rejected as false beyond a reasonable doubt.
[24]
In
S
v MM
[18]
the Supreme Court of Appeal stated that:
‘
Whilst
in many cases the fact that an accused person gives a false version
of events is not decisive of the merits of a conviction,
in this
case, where the falsity relates to events on a particular day at a
particular place involving him and the complainant,
if his version
cannot reasonably possibly be true, its falsity lends strong support
to the truth of the complainant’s
evidence.’
[25]
In the light of the evidence (both direct and
circumstantial), I am of the view that the court a quo was
correct in
rejecting the version of the appellant as false beyond a reasonable
doubt. I am satisfied that the undisputed and objective
evidence
considered in totality, establishes the guilt of the appellant beyond
a reasonable doubt. The conviction, to my mind,
is sound.
[26]
There is one further issue relating to the conviction that merits
comment. The learned magistrate,
in her analysis of the evidence,
concluded that:
[19]
‘
Therefore
the court cannot just reject the evidence of these witnesses of the
State because of these DNA results. Because there
is also other
evidence and even the other bit of that (sic). The defence was also
proved to be false by state, which means therefore
that the evidence
of the state is accepted as reasonably possibly true and that of the
defence is totally rejected.’
[27]
Firstly, upon the rejection of the defence’s
version, it is not axiomatic that the evidence led by
the State is to
be accepted. The one does not follow the other. The correct approach
is whether, in the light of all the evidence
adduced at the trial,
the guilt of the appellant has been established beyond a reasonable
doubt.
[20]
[28]
Secondly, it is apparent from the passage quoted
above that the learned magistrate applied the incorrect
standard of
proof. The magistrate appears to have convicted the appellant on the
basis that the evidence led by the State was accepted
as reasonably
possibly true. It is trite that in the criminal matters, the State
must prove its case beyond a reasonable doubt.
[21]
[29]
I am however satisfied that this misdirection (if
not a slip of the tongue by the magistrate), in the light
of the
totality of evidence, had no impact on the finding of guilt.
Sentence
[30]
The ground of appeal against sentence is premised on the court a
quo’s failure to find
substantial and compelling circumstances
to deviate from the mandatory sentence of life imprisonment.
[31]
It is trite that an appeal court can only interfere with a sentence
imposed if there is a material
misdirection by the trial court or if
there is such a grave disparity between the sentence imposed by the
trial court and the sentence
which the appeal court would have
imposed if it were the trial court. It is also trite that the
disparity should be shocking or
disturbingly inappropriate or
vitiated by irregularity, to justify interference.
[22]
[32]
Rape, particularly of women and children, has
reached alarming levels in South Africa. It constitutes a
vile,
humiliating, degrading, and brutal invasion of their privacy,
dignity, and self-worth as human beings. Children look up to
adults
in society to nurture, guide, care for, and protect them. They
comprise one of the most vulnerable of all vulnerable groups
in
society.
[33]
When the duty of care owed to them by adults and
their trust is breached, it often leaves children in a
helpless
situation. Society looks to the courts to act decisively against
persons convicted of such shameless acts. The severe
sentence of life
imprisonment that the Legislature has prescribed for the kind of rape
as in this matter, underlies its gravity
and abhorrent nature.
[34]
The prescribed sentence to be imposed for an offence referred to in
Part 1 of Schedule 2 is life
imprisonment, unless of course, there
are substantial and compelling circumstances which justify the
imposition of a lesser sentence
or if the prescribed sentence is
found to be disproportionate to the crime, the offender and members
of society, so that an injustice
would be done by imposing that
sentence, which then entitles the court to impose a lesser
sentence.
[23]
[35]
Counsel for the appellant, in her written heads of argument,
submitted that the cumulative effect
of the appellant’s
personal circumstances should be regarded and treated as substantial
and compelling circumstances. Those
personal circumstances are the
following: he was 23 years old at the time of his conviction and
sentence, he was a first offender,
he was self-employed selling meat,
and his highest level of education was standard 10 (grade12).
[36]
It was also submitted that the rape in this matter was not the worst
type of rape that warrants
life imprisonment, and further that no
victim impact statement was submitted in the court a quo to evaluate
the extent of the trauma
that the complainant suffered.
[37]
I did not think that the absence of a victim
impact statement by itself, can lead to the conclusion that
this is
not the worst kind of rape as suggested by the appellant. The
complainant was 15 years old at the time. She was walking
alone,
returning home at 8.30 pm when the appellant grabbed her by the neck,
pushed her to the ground, forcibly removed her pants,
tights, and
underwear. When she began to cry, he threatened her with a knife. He
opened her legs and forcibly inserted his penis
into her vagina. She
described this act as painful. As he perpetrated this act, he had
gripped her roughly with up and down movements.
No condom was used.
After he ejaculated for the first time, he did not remove his penis
and shortly thereafter continued having
sexual intercourse with the
complainant until he ejaculated for the second time. He thereafter
refused her permission to urinate.
She escaped and went to her
teacher’s house for assistance in a state of semi-nakedness.
She understandably cried during
this ordeal, and suffered scratch
injuries to her legs and hand. Whilst a victim impact statement would
have been helpful to assess
how the complainant is coping, if at all,
its absence, in my view, does not make the rape any less serious. The
complainant was
a soft target, walking alone in the dark when she was
accosted and raped. It remains however that there is very little upon
which
to measure the emotional and psychological impact of the
offence on the complainant. The court a quo ought to have informed
itself
sufficiently on this aspect. It is regrettable that this was
not done, and has become a common feature in many rape cases that
serve on appeal.
[38]
It is so that the appellant was relatively young and a first
offender, which increases his prospects
of being rehabilitated. In
dealing with serious and violent crimes, retribution and deterrence,
however, overshadow rehabilitation.
Sight cannot however be lost that
the appellant was 23 years old at the time and a first offender which
increases his prospects
of being rehabilitated.
[39]
It seems from the record
[24]
that the learned magistrate, in arriving at the conclusion of an
absence of substantial and compelling circumstances, misdirected
herself by searching for factors out of the ordinary. The learned
magistrate stated as follows:
‘
I
don’t see (sic) and I don’t find any compelling and
substantial circumstances. There is nothing out of the ordinary
which
means therefore, that the penalty clause which is contained in this
section 51 (1) (2) of the Criminal Procedure Amendment
Act 105 of
1977 (sic) is the suitable sentence. The court will not deviate from
that, which means therefore that you are sentenced
to life
imprisonment.’
[25]
[40]]
Section 51(3)
(aA)
of the CLAA provides that when
imposing a sentence in respect of the offence of rape, the
complainant’s previous sexual history
and apparent lack of
physical injury, among other factors provided therein, shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence.
[41]
There is clearly no such requirement of ‘out
of the ordinary’ in section 51(1) of the CLAA.
The
circumstances to be considered include those factors traditionally
taken into account in sentencing; both mitigating and aggravating.
But none of these need to be out of the ordinary.
[42]
In my view, this constitutes a material
misdirection justifying interference. The sentence of life
imprisonment
is the most serious that can be imposed. It effectively
denies the appellant the possibility of rehabilitation. Moreover, the
mitigatory
factors alluded to above are not speculative or flimsy,
particularly when considered cumulatively. Given the aggravating and
mitigating
factors in this matter, while being conscious of the fact
that the Legislature has ordained life imprisonment, I consider the
prescribed
sentence of life imprisonment disproportionate and unjust.
[43]
The learned magistrate, in suggesting that because the appellant had
pleaded not guilty, he had
wasted the court’s time and was
therefore deserving of severe punishment, also committed a
misdirection.
[26]
There is no
onus on the appellant to prove his innocence, and it is his
constitutionally guaranteed right to plead not guilty.
To punish the
appellant ‘severely’ for exercising this right is unjust
and untenable. At most, one can perhaps conclude
that he was not
remorseful. Nothing more.
[44]
The appellant must of course be suitably punished and society demands
this of our courts. At
the same time, the imposition of sentence
should not be likened to taking revenge but should be the culmination
of a process, having
proper regard to the personal circumstances of
the appellant, the nature of the offence, and the interests of
society, mindful
all the while of the sentence that the Legislature
has considered appropriate for the rape of a child under the age of
16 years.
[45]
In
S
v Malgas
,
[27]
the ‘determinative test’ espoused by the Supreme Court of
Appeal, which was endorsed by the Constitutional Court in
S
v Dodo,
[28]
for when the prescribed sentence may be departed from was expressed
as follows:
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime,
the criminal and the needs of society, so that an injustice
would be done by imposing that sentence, it is entitled to impose a
lesser sentence.’
Conclusion
[46]
For the reasons stated above, life imprisonment is
not only unjust but also disproportionate. However, a
lengthy
sentence of imprisonment is warranted. I consider that a period of 25
years’ imprisonment is justified and will send
a message to the
community that rape, and especially the rape of a young girl, will be
visited with severe punishment.
Order
[47]
In the result, the following orders are proposed:
1.
The appeal against conviction is dismissed
2.
The appeal against sentence is upheld.
3.
The sentence imposed by the regional court is set aside and
substituted with
a sentence of 25 years’ imprisonment.
4.
The sentence is antedated to 27 June 2018, in terms of
section 282
of
the
Criminal Procedure Act 51 of 1977
.
KHALILL
AJ
I
agree.
SEEGOBIN
J
Appearances:
For
Appellant: Ms
P. Andrew
INSTRUCTED
BY:
Legal Aid South Africa
Pietermaritzburg
For
Respondent: Mr
M Gula
INSTRUCTED
BY:
The Director of Public Prosecutions
Pietermaritzburg
DATE
OF APPEAL : 19
AUGUST 2022
DATE
OF JUDGMENT: 02
SEPTEMBER 2022
[1]
Record
at A4.
[2]
Record
at 4, lines 2-9.
[3]
Record
at 148, lines 7-8.
[4]
Section
309(1)
(a)
of Act 51 of 1997 provides that upon conviction of an accused by a
regional court ‘. . . if that person
was
sentenced to imprisonment for life by a regional court under section
51 (1) of the Criminal Law Amendment
Act, 1997 (Act No.
105 of 1997), he or she may note such an appeal without having to
apply for leave in terms of section
309B . . .’
[5]
S
v Artman and another
1968 (3) SA 339
(A) at 341.
[6]
S
v Ganga
2016 (1) SACR 600
(WCC) paras 27-30,
S
v Heroldt
2018 (2) SACR 69
(KZP); and
Director
of Public Prosecutions, Western Cape v Regional Magistrate, Wynberg
and others
2022 (1) SACR 8
(WCC);
[2022] 1 All SA 154
(WCC) para 63.
[7]
Record
at 23, lines 1-15 and at 150-153.
[8]
Record
at 18 and at 151-152.
[9]
S
v SB
[2013] ZASCA 115; 2014 (1) SACR 66 (SCA).
[10]
Ibid
para 18.
[11]
Of
the CPA.
[12]
Record
at 18 and 150-153.
[13]
Record
at 104, lines 1-4.
[14]
Record
at 100, lines 16-17.
[15]
Record
at 99, line 25 and at 100, lines 1-3.
[16]
Record
at 106, lines 18-22.
[17]
Record
at 105, lines 4-5.
[18]
S
v MM
[2011] ZASCA 5
;
2012 (2) SACR 18
(SCA);
[2012] 2 All SA 401
(SCA)
para 18.
[19]
Record
at 137, lines 17-22.
[20]
S
v Trainor
2003 (1) SACR 35
(SCA) para 8.
[21]
S
v Heslop
[2006] ZASCA 127
;
2007 (4) SA 38
(SCA) para 10; and
Shusha
v S
[2011] ZASCA 171
para 9.
[22]
S
v Malgas
2001 (2) SA 1222
(SCA);
[2001] 3 All SA 220
(A) para 12,
S
v Bogaards
[2012] ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[23]
S
v Malgas
2001 (1) SACR 469
(SCA);
[2001] 3 All SA 220
(A) para 25, and
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) para 40.
[24]
Record
at 148, lines 4-8.
[25]
Record
at 148, lines 3-8.
[26]
Record
at 147, line 5.
[27]
S
v Malgas
2001 (2) SA 1222
(SCA);
[2001] 3 All SA 220
(A) para 25.
[28]
S
v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC);
2001 (5) BCLR 423
(CC) para 11.