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[2021] ZAGPPHC 335
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S.S.M v S (A 67/2017) [2021] ZAGPPHC 335 (31 March 2021)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
CASE NO: A
67/2017)
DPP REF NUMBER: MA 20/2017
In the matter between:
M[....]:
S[....] S[....]
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
HUGHES J AND DLAMINI AJ
J U D G M E N T
This judgment
is handed down electronically by circulation to the parties’
representatives by way of electronic mail and by
uploading it to the
electronic file of this matter on the application called Caselines.
The date for handing down judgment of this
matter is 31 May 2021.
DLAMINI AJ
[1] This is an appeal against
both conviction and sentence. On 06 May 2016 at the Regional
Court
sitting at Balfour, Mpumalanga Province, convicted the Appellant on
the charge of rape. He was then sentenced to ten years
imprisonment.
The Appellant was represented throughout the trial.
[2] His application for leave to
appeal both the conviction and sentence was dismissed on 1
June
2016.
[3] The Appellant then filed a
petition application against the dismissal of the leave to appeal
application. On 29 October 2016 the petition was successful.
The Honourable Mothle and Bam J granted leave to appeal against
both
the conviction and sentence.
[4] The general principle is that
the court of appeal will be hesitant to interfere with the
factual
findings and evaluation of the evidence by a trial court.
[5] In the
court
a quo
the
state led the evidence of the Complainant, Sergeant Mngomezulu, the
Complainant’s boyfriend, K[....] and Sergeant Bongani
Joseph
Radebe. The Appellant testified in his own defence and did not call
any witnesses.
[6] The
Complainant testified that on 14 March 2015 she was at Mavis’
Tavern at Grootvlei in
the company of K[....] and the Appellant. It
was late at night and they were drinking. She was looking for
transport to go back
home to Balfour. The Appellant then requested
her not to leave as it was late and he offered to accommodate her and
K[....] at
his shack.
[7] All three of them went to the
Appellant’s shack. On arrival,the Appellant left them at
the
shack, she and K[....] went to bed and had sexual relations.The
Appellant returned an hour later to the shack and advised them
that
he was looking for his jersey. He went to a bath that had clothes, he
took out the jersy and left. K[....] then asked her
to go check if
all her belongings were still in order.When she searched her clothes
, she discovered that one of her two phones
was missing. She told
K[....] about her missing phone. He then advised her to stay behind
as he was going to look for the Appellant
to check if he did not take
her phone. However K[....] did not return. It was only the Appellant
that returned to the shack. She
asked the Appellant where K[....]
was, he told her that he did not know his whereabouts.
[8] The
Appellant then ordered the Complainant to get into bed, which she
complied. Whilst lying in
bed the Appellant undressed both her
trouser and panties.He then undress himself. He inserted his penis in
her vagina and raped
her. After he finished, he laid down and told
her that he would never ejaculate inside her. She then sat in the
shack from about
three in the morning until around five in the
morning, because she did not know where the police station was.
She got out of the shack, since she
was not familiar with the area, she asked a gentleman that she met
where the police station
was. He gave her directions, she found the
police station and she laid a charge of rape.
[9] Under cross-examination she
admitted that she had consensual sex with her boyfriend K[....].
When
asked why the DNA result excluded the Appellant, the Complainant
replied that the Appellant had told her that he was not going
to
ejaculate inside her.
[10] K[....] K[....] also testified. In short, he
confirms that he is the Complainant’s boyfriend. On
the day, he
was in her presence and the Appellant. The Appellant then offered
them a room at his shack to sleep as it was late
at night. They left
for the Appellant’s room. He and the Complainant had sex and
slept. The Appellant returned to the room
during the night as he
wanted to collect his jersey. After the Appellant had left, the
Complainant told him that her cell phone
was missing.
[11] He then left to look for
the Appellant to check whether he took the cell phone. When he
returned the following
morning, he discovered that the Appellant was
arrested.
[12] Sergeant Mngomezulu testified that he was
attached to the Grootvlei police station. He confirmed that on
the
morning of 4 March 2015 he was on duty when the Complainant came to
the police station and reported that she has been raped.
That the
Complainant appeared to be confused, her clothing was dirty,
nevertheless she appeared calm. She made a statement and
informed him
that the Appellant had raped her in his shack in the early hours of
that morning.
[13] The investigating office
r
in the case Sergeant Bongani Joseph Radebe also testified. He is a
member of the South African Police Service, stationed at Balfour
Police Station in the Family Violence Child Protection and Sexual
Offences Unit. He took the warning statement from the Appellant.
He
said he explained fully all his rights to the Appellant, including
his rights to remain silent and that he is not compelled
to answer
any question or to make any statement. However, the Appellant despite
his rights having been fully explained chose to
make a statement. At
this stage the defence objected and intimated that the Appellant’s
statement was not made freely and
voluntary in that the Appellant was
at the time of the making of the statement intoxicated and under the
influence of alcohol.
[14] The court
a quo
then ordered a trial
within a trial be held to determine the admissibility of the
statement. At the end of the trial within a trial
the court
a quo
ruled that the statement was made freely and voluntarily by the
Appellant and is admissible as evidence. I will deal with this aspect
later.
[15] The Appellant testified in his defence and did not
call any witnesses. He confirms that he had met the Complainant
and
her boyfriend K[....], the previous evening. Since it was late at
night he offered the Complainant and her boyfriend a room
to sleep at
his shack.
All three proceeded to his
shack, he opened his room, and they all went inside.
[16] He left the Complainant and her
boyfriend there and went to a night vigil. In the morning, he went
back to his shack.
He found the Complainant alone and K[....] was not
around. He asked her where K[....] was, she advised that he left
during the
night and he did not come back. He told her that he also
did not know where he was.
[17] He got into bed and slept. Two
hours later he was awoken by the police and he was arrested. He
denies that he
raped the Complaint.
[18]
At the end of trial, the court has to decide on the guilt or
innocence of the accused after having
assessed all the evidence
presented. The onus of proof in a criminal case is discharged by the
state if the evidence establishes
the guilt of the accused beyond
reasonable doubt. The corollary is that the accused is entitled to be
acquitted if it is reasonably
possible that he might be innocent.
This is not a separate test but an expression of the same test when
viewed from the opposite
perspective. This means that in order to be
a reasonable possibility that an innocent explanation of an accused
might be true,
there must be, at the same time a reasonable
possibility that the evidence implicating him might be false or
mistaken.
[19] It was submitted on behalf of the
Appellant that the court a
quo
erred when it allowed the
warning statement of the Appellant as evidence against him. That the
court
a quo
erred when it dismissed the DNA results excluding
the Appellant as the donor of the DNA swaps taken from the
Complainant. Further
that the court
a quo
erred in dismissing
the Appellant’s version as not reasonably possibly true.
[20] It is common cause that the Complainant
was the only witness that the state called to testify on the
rape
itself. The question therefore is whether the court
a quo
was
correct in convicting the Appellant on the evidence of a single
witness. It is trite that the evidence of a single witness
shall be approached with caution. Section 208 of the Criminal
Procedure Act 51 of 1997 provides that:
“
an accused may be convicted of
any offence on the evidence of a single witness, provided that it is
satisfactory in all material
respects.”
[21] In
S v Sauls
1981(3)
SA 172 at
para180 E-H, the court said:
“
the
absence of the word “credible” (as was the case before)
is of no significance; the single witness must still be
credible, but
there are as Wigmore points out “the indefinite degrees in this
character we call credibility.” the court
continues to say
“there is no rule of thumb or formula to apply when it comes to
a consideration of the credibility of a
single witness (see the
remarks of Rumpff JA in S v Webber, 1971(3) SA 754(A) at 758. The
trial judge will weigh his evidence,
will consider its merits and
demerits and having done so, will decide whether it is trustworthy
and whether, despite the fact that
there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the truth
has been told. The cautionary
rule referred to by De Villiers JP in
1932 may be a guide to a right decision but it does not mean that the
appeal must succeed
if any criticism,
however
slender of the
evidence
were well founded.”
[22] The Complainant in this case did not
hesitate. She gave a clear description and chronology of the
events
of that night and how the Appellant raped her. She described in
detail how the Appellant undressed her, took out his penis,
inserted
it in her vagina and raped her.
[23] She stuck to her version of evidence,in
fact there is no evidence in the record that indicated that
she
contradicted herself under cross-examination. She is an honest
witness and admitted that she had earlier in the night had consensual
sex with her boyfriend, K[....]. She further admitted that she was
angry at K[....], for leaving her alone at the Appellant’s
shack and never returned back. In fact, if she was malicious she
could have simply laid a charge of rape against K[....] as she
was
angry at him, but she did not. There is no reason why the Complaint
will falsely accuse the Appellant of the rape. This is
the very man
that helped her and provided her with accommodation for the night.
[24] I now turn to deal with the issue
relating to the admissibility of the warning statement. The only
witness who testified with regard to admissibility of or exclusion of
the warning statement was Sergeant Radebe. During the hearing
the
parties advised this court
that
the original warning statement is no longer available and does not
form part of this record.
[25] I concur with the court
a quo’s
findings that Sergeant Radebe was an honest and credible witness.
He gave a detailed account of how the interview occurred with the
Appellant. That he has almost twenty years experience in the police
service. His testimony was clear and concise, that he informed
the
Appellant of his rights before conducting the interview.
That
he informed the Appellant of his rights to remain silent and that the
Appellant had a right to legal representation. According
to him the
Appellant voluntarily waived his rights and selected to make a
statement.
[26] Further, the Appellant selected not to
testify during the trial within a trial. As a result I cannot
find
fault in the court
a quo
ruling that the Appellant made this
statement freely and voluntarily and admitted it as evidence.
[27] It is common cause that the DNA results
excluded the Appellant as the donor of the DNA swaps taken
from the
Complainant. This DNA result does not amount to a defence or
dismisses the evidence of the Complainant. I concur with
the court
a
quo
findings that a number of possiblties exist to explain the
absence of the appellant DNA from the samples that was recovered. The
possiblity exits that the Appellant could have used a condom, that he
withdrew before ejaculating. Having said that in my view
the most
logical and credible explanation of these results, comes from the
testimony of the Complainant herself. She was adamant
that the
Appellant told her during the rape that he was not going to ejaculate
inside her, hence the DNA excluded the Appellant.
[28] Having regard to all the above, I am
satisfied that all the state witnesses evidence was beyond reproach.
They all testified in a consistent and chronological manner. There
were no material contradictions in their evidence. That, there
were
no improbabilities, contradictions or anything that raises suspicion
in their evidence. As a result it is my finding that
the court
a
quo
correctly rejected the Appellant’s evidence as
improbable and not the truth, and that the state has proved its case
beyond
reasonable doubt. Therefore the appeal on conviction is
dismissed.
SENTENCE
[29] It is trite that the imposition of sentence
is a matter for the trial court’s discretion. The court
of
appeal may only interfere with such discretionary imposed sentence,
if it is vitiated by misdirection or startlingly inappropriate
or if
there is a striking disparity between the sentence imposed and the
sentence the court of appeal could have imposed.
[30] In determining the
appropriate sentence regard must be had to the well-known trial
factors, namely the seriousness
of the crime, the offender’s
personal circumstances as well as the interests of society. In
S
v Malgas
2001
(1) SACR 469
at 478 D
the court laid
down the principles applicable to an appeal on sentence:
“
a
court exercising appellate jurisdiction cannot, 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. In doing so, it assesses sentence as
if it were a court of first instance and the
sentence imposed by the
trial court. 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 be 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. It must be
emphasised that in the
latter situation the appellate court is not at
large in the sense in which it is at large in the former. In the
latter situation
it may not substitute the sentence which it thinks
appropriate merely because it prefers it to that sentence. It may do
so only
where the difference is so substantial that it attracts
epithets of the kind I have mentioned.”
[31] The following personal circumstances of
the Appellant were put on record. He was 25 years old at the
time of
the commission of the offence. He is single and has one minor child,
who is four years old. The child is staying with the
Appellant’s
girlfriend. Although not legally married, Appellant was staying with
his girlfriend as husband and wife. He was
employed and earned a
monthly salary of R3 200.00. He used this income to support his
mother, two sisters and two brothers.
Taking the above into account
so says the Appellant, in particular his relative youth, he was
gainfully employed and further that
he was a first time offender,
that these are substantial and compelling circumstances to deviate
from the prescribed minimum sentence.
[32] The Appellant was sentenced in terms of
Section 51(1) of the Minimum Sentences Act, Act 105 of 1997.
Substantial and compelling circumstances must exist to justify a
lesser sentence. In
S v Nkomo
2007 (2) SACR 198
at 201
E-F the court said the following:
“
But it is for the court imposing the
sentence to decide whether the particular circumstances call for the
imposition of a lesser
sentence. Such circumstances may include those
factors traditionally taken into account in sentencing-mitigating
factors factors-that
less an accused moral guilt. These might include
the age of an accused or whether or not he or she has previous
convictions. Of
course these must be weighed together with
aggravating factors. But none of these should be exceptional.”
[33] The court
a
quo
did not find any compelling or
substantial circumstances present to deviate from the prescribed
sentence. I cannot find any. The
rape of the Complainant was
perpetrated by the Appellant a person she trusted as he had provided
her with accommodation at his
room. He took advantage that she was
alone in his room and she was in area that was unfamiliar to her.
[34] The court in
S v Ndlovu
[2017] ZASC 19
at para 53, describes rape as:
“
one of the most harrowing and
malignant crime confronting South Africa today. Rape is perhaps the
most harmful and dehumanising
violation that a person can live
through and is a crime that not only violates the mind and body of a
Complainant, but also that
vexes the soul. This crime is an
inescapable and seemingly ever-present reality and scourge on the
nation and collective conscience
of the people of South Africa.”
[35] I have considered the nature of crime,
the Appellant’s personal circumstances, and the interests
of
society. I am satisfied that I should not interfere with the sentence
of the court
a quo.
[36] For these reasons the appeal against
sentence cannot be tampered with.
[37] Accordingly, the following order
is made:
The appeal dismissed
DLAMINI AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
agree
HUGHES J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing:
8
th
March 2021
Date of judgment:
Electronically transmitted on 31 May 2021
On behalf of the
Appellant:
Adv. L. Augustyn
Instructed by:
Legal Aid SA
e-Mail:
leanaa@legal-aid.co.za
On behalf of the Respondent:
Annalie Coetze
e-Mail:
Instructed by:
Director of Public Prosecution