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[2021] ZAGPPHC 6
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Masuku and Another v S (A402/2019) [2021] ZAGPPHC 6 (12 January 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A402/2019
In
the matter between:
DANIEL
MASUKU
First
Appellant
AYANDA
MNISI
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
This
appeal has been heard in terms of the Directives of the Judge
President of this Division dated 25 March 2020, 24 April2020
and 11
May 2020. The judgment and order are accordingly published and
distributed electronically.
DAVIS, J
[1]
Introduction
This is the judgment in a criminal appeal against both
the convictions and the sentences imposed on the two appellants.
They
were both convicted of the rape of a 21 year old female
complainant and the second appellant was also convicted of kidnapping
the
complainant. A third accused (accused no 1 in the court a
quo), who was also convicted of kidnapping and rape of the
complainant,
was not before us as an appellant. The sentences
for the kidnapping were 5 years imprisonment and for the rapes, life
imprisonment.
[2]
The accusations against the accused,
including the appellants
The version of the complainant and the defences thereto,
as summarised by the learned magistrate, are briefly the following:
2.1
All three of the accused were independently
legally represented and pleaded not guilty.
2.2
The defence of accused no 1 to the charge
of rape was consent and the defences of the appellants, who were
accused numbers two and
three, were alibis.
2.3
The complainant was, at the time of the
incidents in question, undergoing training as a traditional healer.
After the complainant
and her trainer had attended a ceremony on the
day in question, they were on their way home when they were dropped
off by someone
who had offered them a lift, close to a certain
tavern. It was after dusk. The reason for this point of
drop-off, was
that the trainer had reason to believe her brother
might be at this tavern. As the complaint was, due to her
status as trainee
traditional healer, precluded from entering the
tavern, she waited outside while her trainer went inside. Upon
the trainer’s
return from the inside of the tavern a short
while later she found the complainant in the company of accused no 1
and the second
appellant, who she knew. She then requested the
second appellant to look after her trainee, the complainant, whilst
she continued
looking for her brother inside the tavern. Upon
her later emergence from the tavern, the complainant was nowhere to
be found
and neither were any of the accused.
2.4
In the interim, accused no 1 and the second
appellant, armed with a knife and a firearm respectively, had taken
the complainant
under threat of violence to a certain shack where
accused no 1 had forceful intercourse with her while the second
appellant waited
outside.
2.5
Thereafter the two men took the complainant
to a second tavern where they met up with the first appellant.
The three of them
then took the complainant to the first appellant’s
home. There, the complainant testified “
the
guy with the gun raped me first, after him the owner of the room
raped me
”.
2.6
Accused no 1 then took the complainant to
his home, where she was raped again while the said accused’s
brother was also present.
The bother was a youngster who at
some stage told the complainant not to cry.
[3]
Evaluation
3.1
It is immediately clear from the above that
the evening’s events involved multiple logistics: first the one
tavern, then a
shack, then a second tavern, then the first
appellant’s home and then to the first accused’s home.
3.2
The above resulted in some discrepancies
between the various descriptions given by the complainant, upon which
the appellants pounced
for purposes of their appeal. In my
view, these discrepancies were minor and to be expected from the
array of occurrences.
The three main facts, namely the initial
abduction, the two locations of where the rapes took place and
indeed, the occurrences
of rape, by all the accused, were not
disturbed by either the discrepancies or cross-examination.
3.3
The fact that the complainant was the
victim of violent intercourse, was corroborated by the report of the
medical practitioner
who examined the complainant the next day.
Swelling around the remnants of the hymen was noted with fresh tears,
as well
as lacerations of her perineum and bleeding from her cervix
were observed, all “consistent with trauma of a blunt object
such as an erect penis” (in the words of the medical
practitioner).
3.4
The medical examination followed on the
report of the rapes to the police. This, in turn, occurred
after the complainant had,
the morning after the incidents, returned
to where she and her trainer had been living at the time.
There, the complainant
not only told the trainer what had happened,
but also telephoned her mother to tell her of the ordeal.
Although the “medieval
hue-and-cry rule” has been removed
as a legal impediment as part of “
sexist
gender norms … woven into the very fabric of rape law in the
form of iniquitous obstacles to prosecution
”
(
S v Tshabalala and Another
2020 (5) SA 1
(CC) at [80] and [81]), the complainant has, at the
first instance after the event, reported the crimes and sought help.
3.5
A further consequence of the help sought
from the authorities came in the form of a police officer, Constable
Podile. After
having laid the charge against accused no 1,
being the only one of the perpetrators whose identity and place of
residence were
known to the complainant, she accompanied
Constable Podile to the home of accused no 1. Upon his arrest,
he indicated
that the first appellant had also been present during
the incident. Thereupon Constable Podile proceeded to the home
of the
second appellant. After having questioned him, Constable
Podile brought him to the police car where the complainant was, who
then identified him as one of the perpetrators. Acting on the
complainant’s complaint that she was raped by three men,
Constable Podile’s questioning of those already arrested led
him to the home of the first appellant. There the first
appellant was arrested and four used condoms found on the floor of
his room were secured into evidence.
3.6
The complainant’s trainer also
testified and corroborated all aspects of her evidence at which she
was present, that is, the
training as a traditional healer, the
stopping at the first tavern, the presence of the first accused and
the second appellant
as well as the complaints after the incidents
and the telephone call to the complainant’s mother.
3.7
The first accused testified that he knew
the complainant and on the evening in question, he had met her inside
the tavern.
They both left late and went to his home. He went
to the main house to get food from his father which he offered the
complainant,
but which she refused. His younger brother was
watching TV, laying under some blankets. The complainant removed her
clothes
and joined the younger brother while he, accused no 1, smoked
dagga and then fell asleep. He explained his plea explanation
of consent as having referred to “sleeping together”, but
denied sexual intercourse. In cross-examination he
changed his
version and included both appellants in the evening’s sequence
of events. He confirmed that the complainant
had been taken by
the second appellant, of whom the complainant was fearful, to the
first appellant’s home, where he had
intercourse with her.
According to accused no 1, that is when the first appellant locked
the door with all three accused
and the complainant inside and told
the complainant that all three wanted to have intercourse with her.
According to accused
no 1, he declined. The remainder of
chronology thereafter, as related by accused no 1 was so riddled with
changed versions
that it became difficult to follow on the record,
let alone repeat it in any sensible fashion. His common intent
of wanting
to have intercourse with the complaiant is perhaps best
displayed by his following words: “
However,
on my side, your Worship, I did not get a chance, your worship,
because I thought that when I arrive at my place, I will
not find
anyone. So unfortunately, Your Worship, my brother was there.
Because I thought that when we arrive at my
place, that is when I
will get a chance, your worship, to sleep with her
”.
This explanation was given as part of the defence of alleged
consent. His further explanation as to why to
he gave a false
version to his attorney (and to the court in chief examination) was
that he had been “coached” by the
two appellants as
follows: “
Your worship, I did ask
them and they said, you know what, just stick to your story in saying
you took her to your place and we
will have the witness, that is now
Thabiso, he will testify that I did not sleep or did not have sexual
intercourse with her and
then all of us will be released from
detention or custody
”. When
confronted with the fact that even this explanation did not accord
with his plea explanation of consensual intercourse,
accused no 1
answered “…
that version,
however it was not true
”.
At the end of his evidence, after consulting with his attorney, it
was decided between the two of them, not to call
the proposed witness
Thabiso.
3.8
The first appellant also testified.
His version was that he did not know the appellant. He had been
drinking all day
from 12h00 until about closing time at the second
tavern mentioned in the sequence of events, whereafter he had gone
straight home.
At some earlier stage however, when the second
appellant had arrived at the tavern after having attended church, he
loaned the
second appellant a pair of nail clippers to which was
attached to his home keys. The keys were returned to him at
closing
time after the second appellant had gone to take off his
church uniform. His explanation about condoms found at his
place,
which he initially denied in his evidence in chief, was that
only one was found and that was one which he had used the previous
day with his girlfriend and which he had left in his room. No
other witnesses were called by the first appellant.
3.9
The second appellant also testified.
He denied all knowledge of the incidents in question and alleged that
accused no 1, being
the youngest of the three accused, was the one
who got him arrested. He said that this was not the first time
this happened.
The year before, “…
I
was appearing in this court on a charge of murder, he was the one
that got us arrested … it is not the first time accused
number
1 gets me arrested, he has done it before in different cases
”.
According to him, a condom was also removed from his bedroom during
his arrest. His explanation about using
the first appellant’s
nail clipper was that he did not frequent taverns but, peeping into
the tavern form the outside, he
saw the nail clipper “hanging
on the accused’s person” and that is why he went into the
tavern. No other
witnesses were called by the second appellant.
3.10
The learned magistrate found the
complainant, her trainer and the police officer to be credible
witnesses. Apart from the
fact that a court of appeal should
recognize that the trial court had the opportunity to observe the
demeanour of witnesses when
testifying and was “steeped in the
atmosphere of the trial” (
R v
Dhlumayo and Another
1948 (2) SA
677(A))
, a reading of the record indicate that these witnesses had
testified in clear and direct fashion, made concessions when
reasonably
they should have done and corroborated each other where
areas of their evidence overlapped. The acceptance of their
evidence
was clearly correct and proper.
3.11
Once this evidence is accepted, as in this
case it must, then, when contrasted with the multiplicity of
contradictions, inherent
and unexplained improbabilities of the
accuseds’ versions, including that of the appellants, the
finding that the accuseds’
denials cannot be accepted as being
true, was a correct one by the court a quo.
3.12
It was not necessary to consider whether
the various accused had acted with a common intention that night as
the court a quo has
found them individually guilty as follows: “
The
court therefore finds that accused 1 and 3 both had intercourse with
the complainant twice as she testified and accused 2 had
forceful
intercourse with her at least once. She was also forcefully
taken from Betty’s tavern by accused 1 and 3 to
different
locations … having regard to the evidence before the court,
perhaps accused 2 (the first appellant) was not aware
of the fact
that accused 1 and 3 had taken the complainant without her consent …
. In respect of count number 1, we
will give accused 2 the
benefit of the doubt
”.
3.13
On a conspectus of all the evidence, as per
S v Van Aswegen
2001 (2) SACR (SCA) and
S v Mbuli
2003 (1) SACR 97
(SCA), the findings of the learned magistrate appear
to be correct and the convictions in the court a quo must stand.
[4]
Ad Sentence
4.1
As aforestated, the two appellants were
sentenced to life imprisonment each in respect of the charges of
multiple rape.
4.2
From the record, it is clear that the
learned magistrate properly considered all the required principles
applicable to sentencing
before a conclusion was reached.
Pre-sentencing reports were also obtained and considered.
4.3
In relation to the personal circumstances
of the two appellants, the following were noted: The first appellant
was 40 years of age
at the time of sentencing, he had been raised by
his mother until the age of 13 and had thereafter stayed at “Kids
Home”
for 3 years. He had completed Grade 10. From
this, it appears that he had a difficult upbringing. However,
he
was not a first offender. He had committed rape on 27
October 2000 for which he was found guilty on 22 December 2004 and
sentenced to 20 years imprisonment. After having served some 8
years, he was released on parole on 3 December 2012, which
was to be
supervised until 11 March 2023. The rapes in question in this
appeal took place on 17 July 2016, that is 4 years
into the parole
period. The magistrate observed that the first appellant’s
mother was “totally devastated and
heartbroken due to the fact
that [he] has now committed a similar offence for the second time”.
4.4
In relation to the second appellant, who
was 25 years at the time, it was observed that he dropped out of
school in Grade 10 and
was a father of two at the time. He
denied a previous conviction contained in a SAP 69 form and the State
elected not to
prove the conviction. He was taken as a first
offender. It appeared further that he had been in custody,
awaiting conclusion
of the trial, for 2
½
years. He was the one who had
actively participated in the kidnapping of the complainant for
purposes of raping her, which
he did.
4.5
When balancing the personal interests of
the appellants, the seriousness of the crimes and the interests of
society, the learned
magistrate correctly pointed out that,
unfortunately gender based crimes has reached epidemic proportions.
The magnitude
and extent of crimes such as the ones forming the
subject matter of this appeal has been repeatedly expounded on by our
courts.
See:
S v Matyityi
2011 (1) SACR 40
(SCA);
Masiya v
Director Public Prosecutions, Pretoria
2007 (5) SA 30
(CC). To this must be added the comment
made in the first appellant’s pre-sentencing report, namely
that the
crime of rape is not attributed to one’s
socio-economic status, but more to do with domination, selfishness
and inflection
of pain on a victim without considering the
repercussions.
4.6
The magistrate found that, due to the fact
that the complainant was raped more that once, the minimum sentence
of life imprisonment
became the prescribed minimum sentence in terms
of
Section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
, in
the absence of compelling and substantial circumstances. This
section refers to offences listed in
part 1
of schedule 2 of the said
Act, the relevant part of which for purposes of this appeal refers to
“
rape, when committed in
circumstances where the victim was raped more than once, whether by
the accused or by any co-perpetrator
or an accomplice
”.
4.7
Much has also been said by our courts about
life sentences and the imposition thereof as part of the minimum
sentence-regime.
See
S v Malgas
2001 (2) SA 1222
(SCA),
S v Abrahams
2002 (1) SACR 116
(SCA),
S v Mahomotsa
2002 (2) SACR 435
(SCA) and
S v Nkomo
2007 (2) SACR 198
(SCA).
4.8
In considering whether life sentences were
appropriate in the circumstances, it is proper to have regard to the
impact of the crimes
on the victim. For this purpose a
victim-impact report was obtained and considered by the learned
magistrate. The complainant
was scarely 21 years old at the
time of the incident and had a 5 years old son. She was a
trainee traditional healer at the
time and although she subsequently
completed her training, the incidents have left her feeling
physically dirty, depressed and
resorting to alcohol as a coping
mechanism. As a result she has also twice attempted suicide,
being only saved by the intervention
of others. She had
apparently been told by the appellants that they are used to being
arrested for serious crimes and they
would soon be free. As a
result she developed a phobia for walking outside and alone.
Her emotional impairment also
impacted on her mother.
4.9
The complainant in this case
is, distressingly, yet another victim of the crime so prevalent in
our country which, more than 20
years already had been
described as follows:
‘
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
civilization. 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
tranquility of their homes without the fear, the apprehension and the
insecurities which
constantly diminishes the quality and enjoyment of
their lives
’.
S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA).
4.10
In
S v
Tshabalala
(supra at [1]) the learned
Constitutional Court Judge lamented “
for
far too long rape had been used as a tool to relegate the women of
this country to second-class citizens, over whom men can
exercise
their power and control, and, in so doing strip them of their rights
to equality, human dignity and bodily integrity
”.
4.11
In my view, the learned magistrate
correctly found no substantial and compelling circumstances, meriting
a deviation from the prescribed
minimum sentences. The
magistrate gave the first appellant the benefit of what little doubt
there was by considering that
he raped the complainant only once.
However, he was a re-offender of this heineous crime and the minimum
prescribed sentence
appears to be a fitting one in his case.
The second appellant although without a previous conviction in
similar vein, participated
in the kidnapping and logistics of the
evening with a view of facilitate multiple rapes of the complainant,
in which he participated.
He similarly had no qualms about
destroying her emotional future and ripping from her, her rights to
dignity and bodily integrity
as described above
4.12
A court of appeal should further be mindful
that sentencing is pre-eminently a matter for the discretion of the
trial court.
Once such discretion had been judicially, and
properly exercised, a sentence should only be altered if it is
“vitiated by
irregularity or misdirection or is disturbing
inappropriate”. See
S v
Rabie
1975 (1) SA 855
(A) at 857 E –
F and
S v Pillay
1977 (4) SA 531
(A) at 535 E – G. As already
demonstrated, there was no irregularity or misdirection and the
magistrate exercised his
discretion judiciable. The sentences,
including that of the second appellant, both in respect of the
kidnapping and rape
charges, are also not “disturbingly
inappropriate” and I find no cause to interfere.
[5]
The order should be that the appeals are
dismissed and the convictions and the sentences are confirmed.
_______________________
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
I
agree.
________________________
K PHAHLAMOHLAKA
Acting Judge of the High
Court
Gauteng Division, Pretoria
Date
of Hearing: 14 October 2020
Judgment
delivered: 12 January 2021
APPEARANCES:
For the First
Appellant:
Adv LA Van Wyk
Attorney
for First Appellant:
Legal Aid SA, Pretoria
For the Second
Appellant:
Adv JP Marais
Attorney
for Second Appellant:
Legal Aid SA, Pretoria
For the
Respondent:
Adv JJ Kotzé
Attorney for Respondent:
Director of Public Prosecution, Pretoria