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[2022] ZAECGHC 15
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Gqika v S (CA&R 112/2021) [2022] ZAECGHC 15 (1 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE
NO. CA&R 112/2021
THANDISIZWE
GQIKA
Appellant
and
THE
STATE
Respondent
JUDGMENT
LAING
J
[1]
This
is an appeal against conviction and sentence of the appellant in the
Gqeberha Regional Court.
[2]
The
appellant was charged with rape, in contravention of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, read with sub-section 51(1) and Schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
. He was convicted and sentenced to 20
years’ imprisonment.
[3]
The
incident occurred on or about 5 October 2020 when the appellant met
the complainant for the first time at a tavern. Later that
night, the
appellant invited the complainant to join him for a smoke in his
taxi, whereafter they departed for his flat. Whether
the complainant
accompanied the appellant willingly and whether they had sexual
intercourse at his flat were both issues in dispute
before the court
a
quo
.
The
evidence of the parties in the court
a quo
[4]
The
complainant testified that she had objected to being driven away and
had asked the appellant to return to the tavern. The appellant
did
not respond, whereupon the complainant called her friend, prompting
the appellant to snatch her phone away from her. He was
aggressive
towards her. In contrast, the appellant testified that the
complainant had never objected. There was an understanding
between
the two of them that they would have intercourse at the appellant’s
flat and that he would take her home in the morning.
[5]
Describing
events at the flat, the complainant testified that the appellant had
removed her underwear forcefully. She had removed
her dress herself
because it was very special to her and she did not want the appellant
to touch it. He had pushed her onto his
bed and spread her legs,
whereupon she asked him to wear a condom. The appellant left the
bedroom. Upon his return, the complainant
begged him not to have
intercourse with her and asked to use the toilet, where she pretended
to urinate. When she returned to the
bedroom, the appellant inserted
his fingers into the complainant’s vagina, against her will.
She attempted to devise a way
in which to turn him off and said that
she needed her asthma pump, which the appellant simply rejected.
Thereupon the complainant
asked for a bucket because she wished to
vomit. She vomited twice. The complainant stated that she had
requested the appellant,
on several occasions, to take her home but
he had refused. She had also begged the appellant continuously not to
go ahead with
his intentions. The appellant appeared to have relented
and said that the complainant should stop wasting his time. However,
just
before falling asleep and while they were both lying on the bed,
the appellant opened the complainant’s legs again and inserted

his penis into her vagina. She had not been lubricated, causing the
appellant to insert his penis a second time. He fell asleep
soon
afterwards. The complainant confirmed that the appellant had been
under the influence of alcohol.
[6]
For
his part, the appellant’s version was that after the
complainant had removed her dress, she started to vomit. She returned

from the bathroom and asked the appellant to use a condom, which he
retrieved from a neighbouring room. The complainant vomited
a second
time. After that, she asked for her phone because she was worried
that her sister would have been wondering what had happened
to her.
The appellant found the complainant’s phone and gave it to her.
He said that the appellant began to vomit for a third
time, whereupon
he went to sleep while she was in the bathroom. He had been highly
intoxicated and had lost patience with the complainant’s

vomiting. The appellant denied having penetrated the complainant, he
said that he could not proceed to have intercourse with her
because
she had been ill.
[7]
Turning
to what happened later that night, the complainant testified that she
had charged her phone and then used it to contact
her friend, Ms
Bontle Monahadi, while the appellant was asleep. She said that she
had been raped. When her friend asked whether
she should call for the
police, the complainant said yes and sent her a location pin. While
waiting for them to arrive, the complainant
called her sister.
Eventually, Ms Monahadi arrived with the police, whereupon the
complainant woke up the appellant and said that
he should let them
inside. This was at about 5.00 am. The police arrested the appellant
and took the complainant to the Dora Nginza
Hospital for a medical
examination. She confirmed that she did not sustain any injuries but
took anti-retroviral medication, which
made her nauseous, and sought
counselling from a private psychologist. The experience had left her
traumatised and had affected
her relationship with her boyfriend.
[8]
Ms
Monahadi testified on behalf of the State. She confirmed that she had
received a strange call from the complainant in the early
hours of
the morning. The complainant had been whispering and had sounded
scared, prompting Ms Monahadi to ask what was wrong.
The complainant
indicated that she had been raped and asked her to call the police
and to fetch her as soon as possible. She had
also told Ms Monahadi
that it was not safe for her to come alone because the appellant had
threatened to shoot anyone who attempted
to fetch her. After some
delay, Ms Monahadi managed to persuade the police to accompany her to
the appellant’s flat, using
the location pin provided by the
complainant. Upon their arrival, they found the complainant in a
state of hysteria and crying.
During cross-examination, Ms Monahadi
was adamant that she had not suggested that she call the police; the
complainant had requested
her to do so immediately, during their
conversation on the phone.
[9]
The
appellant stated that he had not been able to take the complainant
home; he had been very drunk at the time. He had told her
that he
would take her home in the morning. Later, the complainant had woken
him up and said that the police had arrived and that
he should let
them inside. The police had searched for a firearm and just as they
were about to leave, they had returned and arrested
him after having
been told that the complainant had been raped.
[10]
A
forensic nurse, Sister Mookiekazi Qwebalele, testified that she was
based at the Thuthuzela Care Centre, Dora Nginza Hospital.
She had
completed a J 88 -medical report after having examined the
complainant. She had not noticed any gynaecological or other
injuries
but the complainant had informed her that a man whom she had met at a
tavern had inserted his finger into her vagina and
had later
penetrated her with his penis. Sister Qwabalele stated that it was
possible for penetration to have occurred with either
a finger or a
penis but not to have caused any injuries.
The
issues and the approach to be taken on appeal
[11]
The
issues in this matter were essentially whether the parties had sexual
intercourse and, if so, then whether the complainant had
consented
thereto. However, the approach to be taken by a court of appeal has
been described in E du Toit et al
Commentary
on the Criminal Procedure Act
(Jutastat, 31 January 2021) as follows:
“
A
court of appeal is aware that in principle a trial court is in a
better position than the court of appeal to make reliable findings
of
fact. The court
a
quo
indeed sees and hears the witnesses and is steeped in the atmosphere
of the trial. In addition, the trial judge is in a position
to take
into account a witness’s appearance, demeanour and personality.
For these reasons a court of appeal would not be
inclined to reject a
trial judge’s findings of fact... On the other hand, if such
findings are plainly wrong, the court of
appeal will indeed
interfere… However, it is not enough that, after a careful
trawling through the whole of the transcript
and exhibits, a court of
appeal thinks that it might have come to different factual
conclusions… A court of appeal would
be even more opposed to
overturning findings of fact that are based on oral evidence.”
[1]
[12]
In
the case of
S
v Hadebe and others
1997 (2) SACR 641
(SCA), Marais JA held, at 645e-f, that:
“…
there
are well-established principles governing the hearing of appeals
against findings of fact. In short, in the absence of demonstrable

and material misdirection by the trial Court, its findings of fact
are presumed to be correct and will only be disregarded if the

recorded evidence shows them to be clearly wrong. The reasons why
this deference is shown by appellate Courts to factual findings
of
the trial court are so well known that restatement is unnecessary.”
Findings
on conviction
[13]
The
magistrate heard the evidence of the parties and other witnesses,
carefully examined same, and prepared a comprehensive and

well-reasoned judgment. She found that the complainant’s
conduct was not of a person who had agreed to go to the appellant’s

flat; her conduct of contacting her friend, Ms Monahadi, reporting
the rape to her, and requesting her to call the police, was
not
consistent with someone who had consented to intercourse. There was
no evidence to the effect that the complainant stood to
gain or
benefit from accusing the appellant of rape. The magistrate found
that she had been a good witness and that she had told
the truth.
[2]
It was improbable that the complainant had consented to intercourse
once she realised that her sister would start to wonder what
had
happened to her. The appellant would have realised, too, that the
complainant did not want to be at his flat, did not want
intercourse,
and wanted to be taken home. The appellant’s version, as the
accused, was not reasonably possibly true.
[14]
In
S
v Francis
1991 (1) SACR 198
(A), Smalberger JA summarised the approach of an
appeal court to findings of fact by a trial court, at 198i-199a:
“
The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court’s conclusion, including its acceptance of a
witness’ evidence, is presumed to be correct. In order
to
succeed on appeal, the appellant must therefore convince the Court of
appeal on adequate grounds that the trial Court was wrong
in
accepting the witness’ evidence- a reasonable doubt will not
suffice to justify interference with its findings. Bearing
in mind
the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that
the Court
of appeal will be entitled to interfere with a trial Court’s
evaluation of oral testimony.”
[15]
The
appellant in this matter argues that the evidence of the complainant,
as a single witness, should have been treated with caution.
The
medical report was a neutral factor in the proceedings. Furthermore,
argues the appellant, there was not enough evidence to
sustain a
conviction and the magistrate misdirected herself in finding that the
State had proved its case against the appellant
beyond reasonable
doubt.
[16]
Having
regard to the record, this court is satisfied that the complainant’s
evidence was properly treated and accepted. There
was no dispute that
the complainant had met the appellant for the first time at the
tavern, that night. It was not disputed that,
at the appellant’s
flat, the complainant had vomited and had visited the bathroom on
several occasions. It was not disputed
that she had been anxious and
had worried that her sister would wonder where she was. It was also
not disputed that the complainant
had contacted Ms Monahadi and that
the police had been called. The testimony of Ms Monahadi to the
effect that the complainant
had been whispering over the phone and
had been hysterical and crying upon the former’s arrival at the
flat supported the
inference that something untoward had happened to
the complainant and that, in the event that intercourse had occurred,
she had
not provided any consent thereto.
[17]
The
J 88 -medical report did not record any injuries. However, Sister
Qwabalele testified that this did not exclude the possibility
of
penetration. Moreover, the complainant had told her directly that the
appellant had inserted his finger and then his penis into
her vagina.
When taken together with the complainant’s evidence and that of
Ms Monahandi, the report is more than merely
a neutral factor; it
serves to lend credibility to the complainant’s testimony and
to undermine the appellant’s version
of the events that took
place on the night in question.
[18]
Overall,
the evidence points to a situation where the complainant found
herself being taken unwillingly to the appellant’s
flat after
having shared a smoke with him at a tavern. Despite protestations
from the complainant, the appellant made it very clear
that he wanted
intercourse with her and was not deterred, initially, by her attempts
to put him off. Inasmuch as the complainant’s
vomiting may have
served to delay proceedings, the appellant took his chances when the
opportunity presented itself, while both
parties were lying naked on
his bed. It was the complainant’s reaction, afterwards, that
seemed to have removed any doubt
in the magistrate’s mind about
the guilt of the appellant. Her contacting her friend, Ms Monahandi,
requesting that the police
be called, and sending her location pin,
was conduct that was simply not consistent with someone who had
consented to intercourse.
[19]
In
the circumstances, this court finds no reason why not to presume that
the findings of fact made by the court
a
quo
are correct or why to disregard same. There is no indication of a
demonstrable and material misdirection. Whereas a court of appeal

enjoys a somewhat wider discretion to interfere with findings in
relation to inferences and probabilities,
[3]
the conclusions reached by the magistrate are supported by the
evidence. There is no basis upon which to challenge these.
Findings
on sentence
[20]
With
regard to sentence, the court
a
quo
enjoys pre-eminent discretion and the court of appeal will not
lightly interfere with the exercise of same.
[4]
Du Toit describes the approach to sentence on appeal as follows:
“
The
sentence will not be altered unless it is held that no reasonable
court ought to have imposed such a sentence, or that the sentence
is
totally out of proportion to the gravity or magnitude of the offence,
or that the sentence evokes a feeling of shock or outrage,
or that
the sentence is grossly excessive or insufficient, or that the trial
judge had not exercised his discretion properly, or
that it was in
the interest of justice to alter it.”
[5]
[21]
The
appellant has argued that the court
a
quo
was correct in finding substantial and compelling circumstances,
which included the fact that the appellant was employed at the
time,
he is a first offender, and he is the father of two minor children.
Nevertheless, in light of all the factors placed on record,
together
with the appellant’s personal circumstances, it was contended
that the court
a
quo
imposed an overly harsh sentence.
[6]
[22]
In
her determination of sentence, the magistrate unmistakeably took into
consideration the factors mentioned by the appellant, viewing
them as
substantial and compelling circumstances that justified a departure
from the prescribed minimum sentence. Nevertheless,
she remained of
the view that the offence required the imposition of a lengthy term
of imprisonment, owing to the seriousness of
its nature.
[7]
[23]
The
offence of rape, in a situation such as the present,
[8]
attracts a sentence of imprisonment for life. This is the prescribed
minimum sentence. In
S
v Singh
2016 (2) SACR 443
, Tshiqi JA held, at [23], that:
“
The
task of imposing an appropriate sentence is in the discretion of the
trial court. A court of appeal may only interfere if the
sentence is
shockingly inappropriate.”
[24]
The
magistrate departed from the prescribed minimum sentence and imposed
a sentence of 20 years’ imprisonment. For a person
of the
appellant’s age,
[9]
this
is significantly less than a sentence of life imprisonment. Whether
another court would have been prepared to have departed
from the
prescribed minimum sentence is a question that this court finds
unnecessary to explore further; the actual sentence meted
out to the
appellant was a lengthy term of imprisonment but it can certainly not
be deemed to be overly harsh.
Relief
and order to be granted
[25]
Having
had regard to the record and the arguments led on behalf of the
appellant and respondent, respectively, the court is satisfied
that
there is no basis upon which to interfere with the findings of the
court
a
quo
.
[26]
Accordingly,
I hereby dismiss the appeal against both conviction and sentence.
_________________________
JGA
LAING
JUDGE
OF THE HIGH COURT
I
concur.
________________________________
M
MFENYANA
ACTING
JUDGE OF THE HIGH COURT
APPEARANCE
Counsel for the
appellant
:
Adv
Charles, instructed by The Legal
Aid
Board, Grahamstown.
Counsel for the
respondent
:
Adv
Zantsi, instructed by the Director
of
Public Prosecutions, Grahamstown.
Date of
hearing

:           09
February 2022
Date of delivery of
judgment       :
01
March 2022
[1]
See
R v Dhlumayo and
another
1948 (2) SA 677
(A) 705-6;
S
v Robinson and others
1968 (1) SA 666
(A) 675G-H; S v Siphoro (unreported, GJ case no A399/2012, 14 August
2014);
S v Mshudulu
(unreported, WCC case no A137/2013, 4 November 2014); and
Swain
v Society of Advocates, Natal
1973 (4)
SA 784 (A).
[2]
At 108-110 of the record.
[3]
To that effect, see
S
v Horn
2020 (2) SACR 280
(ECG) at [74]
and
Minister of Safety and Security and
others v Craig and others NNO
2011 (1)
SACR 469
(SCA) at [58].
[4]
See
S v Romer
2011 (2) SACR 153
(SCA);
S v Hewitt
2017 (1) SACR 309
(SCA); and
S v
Livanje
2020 (2) SACR 451 (SCA).
[5]
See
S v Fhetani
2007 (2) SACR 590
(SCA);
Director of
Public Prosecutions, KwaZulu-Natal v P
2006 (1) SACR 243
(SCA);
S v Anderson
1964 (3) SA 494
(A);
Nevilimadi v S
[2014] ZASCA 41
(unreported, SCA case no 545/13, 31 March 2014;
S
v Asmal
[2015] ZASCA 122
(unreported,
SCA case no 20465/14, 17 September 2015).
[6]
The appellant referred to
S
v Malgas
2001 (1) SACR 469
(SCA);
S
v Fazzie
1964 (4) SA 684
; and
S
v Malgas
2001 (1) SACR 469
(SCA) in
argument. The authorities in question deal with the principles
applicable to a departure from a prescribed minimum sentence
and the
consequences of not affording proper weight to any factor that is
relevant to the imposition of sentence. They do not
serve to advance
any contentions to the effect that the court
a
quo
, in this matter, misdirected
itself.
[7]
At 127 of the record.
[8]
See sub-section 51(1) of the
Criminal Law
Amendment Act 105 of 1997
, read with
Part I
of Schedule 2 thereto.
The complainant was raped more than once.
The meaning of rape, in terms of
section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, read
with
section 1
, includes the insertion of a finger into another
person’s vagina, as was the situation here.
[9]
The appellant was 36 years old at the time that
sentence was handed down in the court
a
quo
.