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[2021] ZAGPPHC 245
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Simelane v S (A128/2020) [2021] ZAGPPHC 245 (3 May 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: A128/2020
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED
DATE:03
MAY 2021
In the matter between:
SIMELANE,
BHEKI SITHEMBISO
APPELLANT
and
THE
STATE
JUDGMENT
DLAMINI
AJ
[1]
This is an appeal against both conviction and sentence by the Brakpan
Regional Court
on 12 April 2019, convicting the appellant on eight
counts, namely;
i.
Assault with intent to grievous bodily harm;
ii.
Kidnapping;
iii.
Attempted murder;
iv.
Rape;
v.
Attempted murder;
vi.
Kidnapping;
vii.
Attempted murder; and
viii.
Kidnapping
The appellant initially
pleaded guilty to the count of assault with the intent to
do grievous bodily harm and the court
a
quo
entered a plea of not guilty, in terms of
section 113 of the Criminal Procedure Act 51 of 1977 (“CPA”).
[2]
The appellant was then sentenced as follows:
i.
Assault with intent to cause grievous bodily harm - three (3) years;
ii.
Kidnapping - five (5) years imprisonment;
iii.
Attempted murder - eight years (8) imprisonment;
iv.
Rape - life imprisonment;
v.
Attempted murder - eight years imprisonment;
vi.
Kidnapping - five (5) years imprisonment;
vii.
Attempted murder- ten (10) years imprisonment ;
viii.
Kidnapping - five (5) years imprisonment.
The
court ordered that counts one, three and five run concurrently
with count seven, and counts two and six run
concurrently
with count
eight. The effective
sentence
was thus life imprisonment and fifteen (15) imprisonment.
[3]
The appellant was legally represented throughout the trial. At the
end of the
state’s case, the court a
quo
was satisfied
that the state had proved its case beyond reasonable doubt. It
accepted the state’s case and rejected the appellant’s
version. After conviction it then sentenced the appellant as set out
above. The appellant is now appealing against both his
conviction and sentence, on numerous grounds as contained in his
application for leave to appeal.
CONVICTION
[4]
It is common cause that the complainant and the appellant had a
romantic love relationship.
The state led the evidence of the
complainant and five other witnesses to testify, Mosima Rainy Radaba,
Dr Clement Ncuka, Dr Bongani
Milton Myeni, Constable Prestige Chauke,
and Warrant Officer Zanele Paulus Msibi. The appellant also
testified in his own
defence and did not call any witnesses to
testify on his behalf.
[5]
The complainant, Ms. T K[…], testified that she laid various
criminal charges
for injuries she sustained when she was assaulted by
the appellant on 25 December 2017. She confirms that she had a
romantic relationship
with the appellant and referred to the
appellant as her ex boyfriend.
[6]
She testified that on that day she was sitting with the appellant and
few of their
friends having fun and drinking alcohol. She then
requested one of their friends, N[…], to accompany her to her
shack
to have a look at her computer's external hard drive that had a
problem.
[7]
N[…], after looking at her computer, told her that he was
unable to fix the
computer and he advised her to take it somewhere
where they fixed computers. Soon after they left her shack, she was
confronted
by the appellant who accused her of having had sex with
N[…]. She denied this accusation. However, the appellant got
angry
and aggressive. He assaulted her punching her with his fists
and kicking her as well. She screamed for her help and some of their
friends came to her rescue and stopped the assault.
[8]
The appellant grabbed her and forcibly pushed her into her car. He
drove her to a
deserted spot at the corner of Hospital Road. There he
continued assaulting and kicking her until she fell down. The
appellant
then picked up an empty beer bottle hit her on her back. He
then told her to remove her clothes. He unzipped her jeans, he took
out his penis and inserted it in her vagina and raped her. After this
rape he took the empty beer bottle that he assaulted her
with and
inserted it in her vagina and raped her with it. After the rape
ordeal, he strangled her throat, to such an extent that
she thought
she was going to die.
[9]
After these assaults, the appellant again forcefully dragged her to
the car
and drove them both to an apartment in Kempton Park, where he
resides. As they went inside, he pushed her inside the bathroom and
locked her inside. A while later he came back and unlocked the
bathroom door. This time he was carrying a hot clothing iron. He
attacked her and burned her with the iron on her breasts, hands and
thighs. At this stage she was in so much pain and exhausted,
she got
in bed and fell asleep. The following day, she requested the
appellant to take her to the hospital but he refused. She
then got
hold of a cell-phone belonging to one of the appellant’s nieces
and she called an ambulance. The ambulance arrived
and took her to
the hospital where she was admitted for five days.
[10] She was
subjected to a lengthy cross-examination. She stuck to her evidence
and admitted that the appellant
did assault her on 16
th
December 2017, but she did not lay any chargers against the
appellant. However, she was steadfast and insisted that the various
assaults, kidnappings, rape and burning her with the iron by the
appellant, occurred on 25 December 2017 and she was then hospitalized
the following day. She admitted that she withdrew these chargers
against the appellant. However, she testified that she was afraid
of
the appellant and that the withdrawal was a tactical move, as the
appellant was threatening her, and he was running away from
the
police. She wanted to lure him into a false sense of thinking that
she has withdrawn the charges, he could then relax and the
police
could then arrest him, as they did.
[11]
Mosima Rainy Radaba (Ms Radaba) testified that she is employed as a
professional nurse by the Ekurhuleni
Clinical Forensics based at the
Far East Rand Hospital. She consulted and examined the complainant
on 30 December 2017,
and completed the J88 form. She noted
various injuries on the complaint’s body amongst others, the
back of her head had some
scars, right eye had inside redness and was
bruised. Scars on the neck, burn wounds on both breasts. She
concluded that the
complainant's injuries were in keeping with
being physically
assaulted,
with a blunt object used with force.
[12]
She further conducted a gynaecological examination on the complainant
and noticed that there were clefts,
at six o’clock, seven
o’clock and five o’clock at the complainant’s
vagina. She concluded that these findings
were consistent with being
forcefully penetrated by a blunt object used by force.
[13]
The state then called Doctor Clement Ncuka (Dr Ncuka). He testified
that he is
a
qualified medical doctor presently stationed at the Far East Rand
Hospital. He confirmed that he consulted and examined the complainant
on 26 December 2017. His observation of the complainant following the
examination
was that she had
a puffy face, her eyes were swollen and she had various burn marks on
her hands and breasts. The burn marks were
severe and life
threatening. He stabilised the complainant
and
referred her to
a specialist
burn
surgeon for further attention and treatment.
Under cross examination
he
was
adamant that the
complainant had fresh wounds.
[14] Dr
Bongani Milton Myeni (Dr Myeni) testified that he is medical doctor
stationed at Far East Rand Hospital.
He consulted and examined the
complainant on 26 December 2017, as he was the surgeon on call on
that day.
His observations
after the examination were that the complainant had partial thickness
burns of the body, the abdomen and the thigh.
There were also bruises
on the face, neck and upper back.
[15] The state then
called Constable Prestige Bongani Chauke (Constable Chauke) to
testify. He was on duty on
30 December 2017, when the complainant
came to lay the charges against the appellant. He approached the
complainant to enquire
whether she had been helped. Another police
officer than requested the complainant to take pictures or
photographs of the appellant.
He then realized he knows the
appellant.
[16] Around 30
January 2018 he came across the appellant driving a vehicle. He then
questioned the appellant about
this pending case. The appellant
advised him that this case was withdrawn by the complainant. He then
called the complainant who
replied that this case was not withdrawn
and was still pending. He averred that the reason it took them so
long to arrest the appellant,
is that he was told by the
investigating officer that the appellant was evading arrest.
[17] The last
witness to be called by the state was Warrant Officer Zanele Paulus
Msibi (W/O Msibi) . He testified
that he has been in the police force
for the past thirty years. He avers that he visited the place of the
appellant several times
but the appellant was nowhere to be found. He
confirmed that he was aware that the complainant had filed a
withdrawal statement,
but he insisted that he did not accept the
withdrawal statement as he wanted same to be decided by the court.
[18] The appellant
took to the stand and testified in his own defence. He confirmed that
he was in a romantic
relationship with the complainant. According to
him, he admits to assaulting the complainant. However, he insists
that the assault
occurred on 17 December 2017 and not on 25 December
2017, as alleged by the complainant. He says on the day of the
assault, he
was in the presence of the complainant at the squatter
camp of Old Location and in the company of their friends consuming
alcohol.
Later, he followed the complainant to her shack.
[19] There he
discovered that the complainant was having sexual intercourse with
one N[..]. He got angry and started
to assault the complainant with
clenched fists. The friends who were around stopped the assault and
calmed the situation. He and
the complainant got into her car and
drove to his flat. They got into the flat and went to bed. He was
woken up by the omplainant
who was attacking him with a hot clothing
ing iron. He took the iron and in revenge , burned the complainant on
her breast, thighs
and arms.
[20] A day later,
the complainant told him that she was in pain and wanted to go to the
hospital. He denied all
the kidnapping charges, the two rape counts,
and attempted murder. He denies that he threatened the complainant to
withdraw the
charges against him. Under cross-examinaiton, he could
not explain why his evidence that he only assaulted the complainant
on 17
December 2017, was sharply contradicted by the complainant, the
three medical doctors who treated her and the hospital records.
[21] It is trite
that in a criminal trial that the onus is on the state to prove the
case against the accused
beyond reasonable doubt. There is no such
onus on the accused. In determining the guilt of the appellant beyond
reasonable doubt,
the correct method of approaching evidence as a
whole was set out in
S v Chabalala
2003 (1) SACR 134
(SCA),
at
para 15, where Heher AJA remarked:
“
[15]
The correct approach is weigh up all the elements which point towards
the guilt of the accused against all those
which are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities
on
both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable
doubt about the accused’s guilt. The
result may prove that one scrap of evidence or one defect in the case
for either patty
was decisive but that can only be an ex post facto
determination and a trial court (and counsel) should avoid the
temptation to
latch on to one (apparently) obvious aspect without
assessing it in
the
context
of
the full picture presented
in evidence. Once that approach is applied
to the evidence in the
present
matter the solution becomes clear.”
[22] It is so that
the Complainant was the only witness that the state called to testify
on all the charges. 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 law that the evidence of a single witness
be approached with caution.
Section 208
of the
Criminal Procedure Act
51 of 1977
provides:
“
(208) An
accused may be convicted of any offence on the evidence of
any competent witness.”
[23]
In
S v Sauls
1981 (3) SA
172
(A), at 180E-H,
the
court said:
“
The absence of
the word “credible” is of no significance; the single
witness
must
still be credible, but there are,
as
Wigmore
points out, “indefinite degrees in this character we call
credibility”. (Wigmore on
Evidence
vol Ill
para
2034 at 262.) There is no rule of thumb test or formula to apply when
it comes to a consideration
of
the credibility of the 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 witnesses' evidence were well founded”.”
[24] The
appellant, in his grounds of appeal, did not put much challenge to
the evidence of the complainant,
except to submit that his version of
the incident is reasonably possibly true. Further that the various
charges emanate from one
continuous incident that occurred on the
same day and the state should not have split the various charges. I
will deal with this
aspect later.
[25] I
concur with the court a
quo
findings that the complainant’s
evidence is beyond reproach. She gave a consistent and chronological
order of how she was
brutally attacked by the appellant on that day.
She testified in detail about the assaults that occurred at the
shack, the deserted
spot and at the appellant’s flat. She gave
a full account of how the various kidnappings occurred. She was
dragged, threatened
and forced into her car and the appellant drove
her to the deserted spot. After being assaulted, the appellant again
forced her
into her car and drove to his flat. There he locked her in
the bathroom and she was unable to leave.
[26]
Further, she gave a clear testimony of how the appellant raped her
and soon thereafter also raped
her using an empty beer bottle. The
rape incidents are corroborated by independent medical evidence. Mrs
Radaba testified that
when she examined the complainant, she
discovered that she had clefts at six o’clock, seven o’clock
and five o’clock
in her vagina. Mrs Radaba confirmed that the
clefts were consistent with being forcefully penetrated by a blunt
object used by
force.
[27]
The appellant admitted that he burnt the complainant with the hot
iron, but says he did so in self-defence.
His plea of self-defence is
untenable and is dismissed. If the complainant
attacked
him
first
he
could have grabbed the iron, as he did, and
simply put it away. Instead he burnt her on her hands, continued on
her breasts and
her
thighs.
His actions are consistent with the complainant’s testimony
that the appellant indiscriminately burnt her and
told
her that he wanted to
kill her.
[28]
The complainant’s
evidence
is furthermore corroborated by other various state witnesses, in
particular the doctors of Far East Rand Hospital. They
confirmed that
the complainant was seriously injured when she came to the
hospital on 26 December 2017. They said she was
bleeding, had red eyes and
burn
wounds.
[29]
From the record, I align myself with the court a
quo
finding that the appellant was not a good
witness
He avoided answering
questions mostly because he
was not able to give
plausible explanations for various improbabilities in his version.
His version that this incident occurred
on 17 December
2017 and not 25 December 2017, cannot stand and
is dismissed. His evidence is further dismissed by the hospital
records, the two
doctors who admitted the complainant
and the
charge
sheet.
[30]
Also his evidence
that the
complainant had later on withdrew the charges, in my view, does not
take this matter further, it is no defence to the charges
that he is
facing. The complainant’s version is that she only temporarily
withdrew the
charges
as she was afraid of the appellant, and he was running away from
the police. She wanted to calm him and assure him
that the case is withdrawn, so as to not run away, is accepted and
reasonably
possibly true. Indeed he stopped running and the police
arrested him. Overall, the appellant’s
evidence is so improbable that it cannot be said
that it is reasonably possibly true.
[31]
It is therefore my finding that the court a
quo
was correct in rejecting the appellant’s
version and the finding that the state had proved its case beyond a
reasonable doubt. The appeal on conviction fails.
DUPLICATION OF CHARGES
[32] I
now turn to deal briefly with the question
whether there was a duplication of convictions.
Section 83
of the
Criminal Procedure
Act 51 of
1977
grants the state the right to put an accused as many charges as
may be justified by the facts in the form of main or alternative
charges. I have shown above that the evidence tendered by the
complainant proved that the assaults occurred in three different
places, there were two rape incidents and the kidnapping also
occurred in different places. As a result, the appellant’s
submission that there
was a
duplication of convictions is dismissed.
SENTENCE
[33]
There are recognised grounds in our law on the basis of which an
appeal court may interfere with
the sentence imposed by the trial
court. The court of appeal may only interfere if the sentence has not
been judicially and properly
exercised.
[34] In
the case of
Director of Public Prosecutions v Mngoma,
3
Bosielo JA stated that:
“
[11]
The
powers
of
an
appellate
court
to
interfere
with
a
sentence imposed by
a
lower court are circumscribed. This is
consonant with the principle that the determination of an appropriate
sentence in
a
criminal
trial resides pre-eminently within the discretion of the trial court.
As
to when an
appellate court may interfere with the sentence imposed by the trial
court, Marais JA enunciated the test
as
follows in
S
v
Malgas
2001 (1)
SACR
469
(SCA) at p 478 d-g:
‘
A
court
exercising appellate jurisdiction cannot,
in the absence of material misdirection by the trial court, 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 has no
relevance. As it is said, an appellate Court is at large.
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 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 in appropriate”.
”
[35] On
count four, the appellant was sentenced to life imprisonment, in
terms of Section 51(1) of the Minimum
Sentence Act 105 of 1997. In
terms of the provisions of Section 51(3) of the Minimum Sentence Act,
the legislature has
indicated
that the prescribed minimum sentence can only be deviated from when
there are substantial and compelling circumstances.
[36]
Further in
S v Vilakazi
2009 (1) SACR 552
(SCA),
at para 15, it was held
thus:
“
[15]
It is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent
upon a court in every
case,
before if imposes a prescribed sentence, to
assess, upon a consideration of all the circumstances
of the particular case, whether the
prescribed sentence is indeed proportionate to the particular
offence. The Constitutional Court
made it clear that what is meant by
the 'offence' in that context
consists
of
all factors relevant to the nature and seriousness of the criminal
act
itself,
as
well
as
all
relevant personal and other circumstances relating to the offender
which could have a bearing on the seriousness of the offence
and the
culpability of the offender.”
[37] At the time of
the commission of these offences the appellant was 34 years old. He
is single and had two
minor children. He was employed as a driver and
earned approximately R3 000.00 per month. He never finished
school and he
dropped out in Grade 7. He was kept in custody as an
awaiting trial prisoner for a period of about 18 months. The court
a
quo
did not find any substantial and compelling circumstances
present in this matter with regard to count four. I cannot find any.
These
factors taken cumulatively do not justify a departure from the
prescribed minimum sentence.
[38] The offences
that the appellant was convicted are undeniably serious. The attacks
on the complainant were
most brutal and vicious. The complainant
expected love, caring and support from the appellant. Instead the
appellant assaulted
her, raped her twice, burned her with an iron
cloth and he nearly killed her.
[39] In this case, society
demands rightly so that courts should impose very harsh sentences
that would serve as punishment
and also serve as a deterrent from
those would be offenders.
[40] Mathopo
AJ, writing for the majority in the matter of
S
v
Tshabalala
[2019] ZACC 48
,
when dealing with the
crime of rape, observed;
“
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 civilisation.
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 tranquillity of their homes without the
fear, the apprehension and the insecurity
which constantly diminishes the quality and enjoyment of their
lives.”
[41]
I am therefore satisfied that this court
should
not interfere with the sentence
imposed.
[42]
The
following
order
is
made:
42.1. The appeal on both
conviction and sentence is dismissed.
J DLAMINI
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
I agree
MOSOPA J
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Appearances
For
the Appellant:
Adv JL Kgokane
Instructed
by:
Legal Aid SA
For the Respondent:
Adv SD Ngobeni
Instructed
by:
Director of Public Prosecutions
Date
of hearing:
10 March 2021
Date
of judgment:
Electronically transmitted: 03 May 2021.