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[2021] ZAGPJHC 83
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Nene v S (A87/2020) [2021] ZAGPJHC 83 (8 July 2021)
THE
REPUBLIC OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED:
Date:
8
th
June 2021
APPEAL
CASE NO
:
A87/2020
COURT
A QUO
CASE NO
:
43/56/2018
DPP
REF NO
:
10/2/5/1-(2020/067)
DATE
:
8
th
June 2021
In
the matter between:
NENE
,
MUZIWENHLANHLA
Appellant
and
THE
STATE
Respondent
Coram:
Twala
et
Adams JJ
Heard
:
25 February 2021 – The matter was disposed of without an oral
hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
8 June 2021 – This judgment was handed down electronically
by circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
digital system of the GLD and by
release to SAFLII. The date and time for hand-down is deemed to be
11:00 on 8 June 2021
Summary:
Criminal Law – rape and kidnapping –
appellant convicted of one count of kidnapping and three counts of
rape, read with
s 51(1) of the Criminal Law Amendment Act 105 of 1997
(‘minimum sentence regime’) – as a single witness,
the
complainant’s testimony was required to be satisfactory in
all material respects, or there had to be adequate corroboration
for
it – did the State prove appellant’s guilt beyond a
reasonable doubt
–
Factual
findings of trial court – absent demonstrable, material
misdirections and clearly erroneous findings, an appeal court
is
bound by the trial court’s factual findings
–
appeal dismissed –
conviction and sentence confirmed –
Evidence – admission of hearsay –
s 3(1)(c)
of the
Law of Evidence Amendment Act 45 of 1988
– ‘first report’
statement admitted into evidence.
ORDER
On
appeal from:
The
Soweto Regional Court, Protea (Regional Magistrate Zakwe sitting as
Court of first instance):
(1)
The appellant’s appeal against his
conviction is dismissed.
(2)
The appellant’s appeal against his
sentence is dismissed.
(3)
The appellant’s conviction by the
Protea Regional Court and his sentence be and are hereby confirmed.
JUDGMENT
Adams J (Twala J
concurring):
[1].
This is an appeal by the appellant against
his conviction on one count of kidnapping and three counts of rape by
the Soweto Regional
Court, as well as against the effective sentence
of life imprisonment imposed by the trial court. On 21 November 2019
the appellant,
who was legally represented, was convicted on charges
of having kidnapped the complainant, a 27-year-old female, in the
early hours
of Saturday, 6 January 2018, and having thereafter raped
her three times whilst holding her against her will. The rape charges
on which the appellant was convicted was formulated as a
contravention of sections of the
Criminal Law Amendment Act (Sexual
Offences and Related Matters), Act 32 of 2007, read with s 51 and
schedule 2 of the Criminal Amendment Act, Act 105 of 1997. The
‘minimum sentence regime’ is therefore applicable.
[2].
On 10 December 2019 the appellant was
sentenced as follows: -
(a)
On
count 1 (kidnapping): direct imprisonment for a period of five years;
(b)
On
count 2 (rape): direct imprisonment for life;
(c)
On
count 3 (rape): direct imprisonment for a period of ten years;
(d)
On
count 4 (rape); direct imprisonment for a period of ten years;
Ex lege
, the
sentences run concurrently.
[3].
In view of the appellant’s sentence
of imprisonment for life, the appeal is before us on the basis of s
10 of the Judicial
Matters Amendment Act, Act 42 of 2013, in terms of
which the appellant has an automatic right to appeal against both his
conviction
and sentence.
[4].
The appeal against conviction principally
turns on the reliability of the evidence of the complainant and her
witnesses as contrasted
against the evidence of the appellant, who
claimed, in a brief plea explanation in terms of section 115 of the
Criminal Procedure
Act 51 of 1977 (‘the CPA’), that the
sexual intercourse with the complainant was consensual. The appellant
also denied
the allegations against him in relation to the kidnapping
charge. In essence, there are two mutually destructive versions of
the
events which happened on the morning in question – one
being that of the state and the other being that of the defence.
[5].
The issue to be decided in this appeal is
whether the trial court was correct in accepting the State’s
version and rejecting
that of the appellant. There is also an issue
relating to the admissibility of the ‘first report’
statement by the
complainant’s sister, who was not available to
give
viva voce
evidence. The said statement was admitted by the learned Regional
Magistrate in terms of the provisions of
Section 3(1)(c)
of the
Law
of Evidence Amendment Act, Act
45 of 1988 (‘the Act’). I
shall return to this aspect of the matter in due course.
[6].
The complainant testified that on Saturday
morning, 6 January 2018, between 06:00 and 07:00, she was walking
home from a tavern
at the Nancefield Hostel. She was then accosted by
the appellant, who approached her from behind, brandishing a knife.
Under threat
of stabbing her, he forcefully dragged her to a nearby
graveyard. During this process and because of the violent manner in
which
the appellant tugged her, she lost her shoes and the appellant
did not give her an opportunity to get them back. At the cemetery,
he
raped her once by inserting his penis into her vagina, whilst lying
on top of her with her lying on her back. Before the rape,
the
appellant had taken off her pants and her underwear, leaving her
completely naked from the waist down. During this ordeal the
complainant also cut two of her fingers, when she grabbed the knife
when the appellant attempted to stab her.
[7].
After he was done, the appellant then
yanked her backed to her feet and dragged her to his shack, which,
according to the complainant,
was ‘quite a distance’ from
the graveyard. The complainant was naked from the waist down. She had
not been given a
chance to retrieve her clothes and to get dressed
before she was marched unceremoniously to the appellant’s
shack, where,
so she testified, her ordeal continued. On their way to
his shack, the appellant gave her his track suit top to cover the
lower
part of her body.
[8].
Once inside his shack, the appellant locked
the door and proceeded to rape her a second time. This time around
the appellant raped
the complainant by inserting his penis into her
vagina and into her mouth – twice into the mouth and twice into
the vagina.
The complainant’s evidence furthermore was that,
after he had ejaculated, he got off her and laid beside her. After
just
five minutes he raped her again by inserting his penis into her
vagina.
[9].
Bizarrely, so the complainant’s
evidence went, the appellant, after raping her, asked her whether she
loved him. She responded
in the affirmative and she did so, so she
explained, only ‘to soften him up’ so that she could make
her get away when
the opportunity presents itself. The appellant also
asked her if she wanted a beer and she confirmed that she would like
to have
one. The appellant then left to go and buy the beer after
locking the door to the shack with her inside. He returned with a
Hunters
Dry cider.
[10].
She furthermore testified that after he had
returned to the shack with the beer, the appellant gave her one of
his shorts and a
vest to wear. Thereafter, the two of them went
outside, sat under a tree and consumed the Hunters Dry, which the
appellant had
bought. She observed another male person sitting nearby
at a neighbouring shack. At that point, she did not try to escape or
attempt
to solicit assistance from the neighbour, her plan being,
instead, to ‘soften up’ the appellant and, as soon as he
let down his guard, she would make a run for it.
[11].
The opportunity presented itself when the
appellant went to buy another cider. She took the opportunity and
made a run for it. She
went home, where she found her sister, and
went straight to bed, without telling the sister what had happened to
her. At about
13:00 she was awoken by her sister, who noticed that
she was crying and enquired from the complainant what the matter was.
At first,
the complainant was reluctant to tell her sister about the
incident, but she eventually confided in the sister and explained to
her that she had been raped, whereupon her sister advised her to go
and report the matter to the police, which she did.
[12].
After the evidence of the complainant was
completed, a professional nurse, Ms Patience Pikoli, gave evidence,
confirming the contents
of the Form J88 Medico-Legal report, which
she completed at about 21:30 on 6 January 2018. Ms Pikoli
confirmed that she examined
the complainant and found certain
injuries, which ‘seem consistent with history of vaginal
penetration’. Importantly,
the report given to Ms Pikoli by the
complainant on 6 January 2018 accorded with the complainant’s
version. So, for example,
the Sister found that the second and the
third fingers of the complainant’s left hand had been cut,
which confirmed the version
of the complainant that she grabbed the
knife at the cemetery when the appellant tried to stab her.
[13].
The state thereafter applied for the
admission into evidence of the written statement by the complainant’s
sister. In support
of its application, which was in terms of s
3(1)(c) of the Act, the state led the evidence of Warrant Officer
Thaba, who testified
that, notwithstanding his every endeavour to
that end, he had been unable to secure the attendance at court of the
complainant’s
sister, who apparently was avoiding appearing in
court. His evidence was that he had arranged with the witness to pick
her up on
the day on which she was scheduled to give her evidence in
court. This arrangement was made in person between W/O Thaba and the
witness one day before the day on which she would have given her
evidence. However, on the following day on which she was due to
testify, the witness was nowhere to be found. She had apparently gone
to the Eastern Cape, but W/O Thaba was not able to ascertain
her
exact whereabouts.
[14].
Despite fierce opposition from the defence,
the trial court ruled admissible the statement by the sister, which,
in a nutshell,
confirmed that the complainant had reported to her
that she had been raped by the appellant. The trial court was of the
view that
the appellant would not be prejudiced by the admission of
the hearsay evidence, hence its ruling that the statement should be
received
into evidence. This may be an appropriate juncture at which
to deal with the correctness of the ruling by the trial court.
[15].
The statement by the sister of the
complainant was admitted and received into evidence by the learned
Regional Magistrate in terms
of the provisions of
s 3(1)(c)
of
the
Law of Evidence Amendment Act 45 of 1
988 (‘the Act’),
which reads as follows:
‘
3
Hearsay
evidence
(1)
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless-
(a)
… … …
;
(b)
… … …
;
(c)
the
court, having regard to-
(i)
the
nature of the proceedings;
(ii)
the
nature of the evidence;
(iii)
the
purpose for which the evidence is tendered;
(iv)
the
probative value of the evidence;
(v)
the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any
prejudice to a party which the admission of such evidence might
entail; and
(vii)
any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should be
admitted in
the interests of justice.
[16].
In his very helpful written Heads of
Argument, Mr Guarneri, the appellant’s Counsel, submitted that
the trial Court erred
in admitting the statement of the complainant’s
sister into evidence. The trial court did not have regard to all of
the considerations
mentioned in the subsection, so Mr Guarneri
contended. The question to be considered by this court is therefore
whether the requirements
for admissibility in terms of s 3(1)(c) of
the Act had been met.
[17].
As was pointed out by the SCA (per Navsa
JA) in
Makhathini v Road Accident
Fund
[1]
,
a decision on the admissibility of evidence in
terms of s 3 of the Act is one of law. A court of appeal is therefore
fully entitled
to enquire into the correctness of such a decision by
a lower court.
[18].
The purpose of the Act is to allow the
admission of hearsay evidence in circumstances where justice dictates
its reception. In
Metedad v National
Employers' General Insurance Co Ltd
[2]
it was stated as follows at 498I - 499G:
'It
seems to me that the purpose of the amendment was to permit hearsay
evidence in certain circumstances where the application
of rigid and
somewhat archaic principles might frustrate the interests of justice.
The exclusion of the hearsay statement of an
otherwise reliable
person whose testimony cannot be obtained might be a far greater
injustice than any uncertainty which may result
from its admission.
Moreover, the fact that the statement is untested by
cross-examination is a factor to be taken into account
in assessing
its probative value … There is no principle to be extracted
from the Act that it is to be applied only sparingly.
On the
contrary, the Court is bound to apply it when so required by the
interests of justice.'
[19].
In each case the factors set out in s
3(1)(c) are to be considered in the light of the facts of the case.
Importantly, the factors
set out in s 3(1)(c)(i) - (vii) should not
be considered in isolation. One should approach the application of
s 3(1)(c) on
the basis that these factors are interrelated and
that they overlap.
[20].
In considering the application of s 3(1)(c)
to the facts of the present case, the trial court appears to have
emphasised the possibility
of prejudice to the appellant. The learned
Regional Magistrate concluded that the appellant would not suffer any
prejudice if the
statement was to be received into evidence, and
accordingly admitted same. This is however not to say that other
factors mentioned
in the sub-section were not considered by the trial
court.
[21].
Section 3(1)(c)(i) requires a consideration
of the nature of the proceedings.
In
casu
, one is dealing with a criminal
trial, with its attendant consequences. The effect of the
introduction of hearsay evidence may
be such that an accused person
may suffer prejudice of a kind such that it would not be in the
interests of justice to admit the
evidence. However, in this case the
hearsay evidence does not relate to an issue central to the matter,
but only to corroboration
of evidence relating to the core issue in
the trial. This point applies equally to s 3(1)(c)(ii), which
requires that the nature
of the evidence be considered, because as
stated earlier, the various factors are interrelated.
[22].
Section 3(1)(c)(iii) requires scrutiny of
the purpose for which the evidence is tendered. The main purpose of
the evidence was to
prove the ‘first report’. As such it
is not a central issue. Importantly though the evidence carries the
hallmark of
truthfulness and reliability in that it accords in all
the material respects with all of the other evidence led by the
State. On
this basis alone, it is arguable that its reception is
justified.
[23].
Section 3(1)(c)(iv) requires that the
probative value of the evidence be considered. Again, questions of
relevance and reliability
arise in the application of this
subsection. The Warrant Officer who received the report was an
impartial outsider. The statement
was made on the day of the alleged
rape at about 23:30. Regard being had to these factors one is led to
the conclusion that the
statement sought to be admitted has relevance
and probative value.
[24].
Section 3(1)(c)(v) of the Act requires that
a court enquire into the reason why the evidence is not given by the
person upon whose
credibility the probative value of such evidence
depends. I have already alluded to those reasons
supra
.
Counsel for the appellant criticised the State for failing to place
evidence before the trial Court about the steps taken to trace
the
whereabouts of the sister. In my view, it is a legitimate point of
criticism against the State’s case, but is not, in
itself,
decisive.
[25].
Section 3(1)(c)(vi) requires a
consideration of prejudice to the party against whom the evidence is
sought to be adduced. The inability
on the part of the appellant to
test by cross-examination the accuracy of the statement recorded by
the policeman is obviously
prejudicial but prejudice of that nature
is implicit when hearsay evidence is admitted. It is the degree of
the prejudice that
must in each case be taken into account to
determine whether an injustice will be done to the party against whom
it is sought to
be adduced and that, as has been stated earlier, is a
matter of fact to be determined in the circumstances of each case. In
my
view, the prejudice in this case to the appellant is minimal at
best. As already indicated, the statement and the evidence contained
therein relates only to the fact that the complainant reported the
rape to her sister on the same day on which it occurred. There
is a
warrant of reliability to be found in the probabilities, particularly
the fact that the statement accords with all of the
other evidence
led by the State.
[26].
Finally, in terms of s 3(1)(c)(vii) of the
Act, the Court is required to take into account any other factor,
which must refer to
any relevant factor not yet covered by any of the
preceding categories. I can think of no others.
[27].
When all of the factors enjoined to be
weighed are taken together I think that it is in the interests of
justice to admit the statement
of the complainant’s sister.
The deficiencies in the statement – such as the
contradiction relating to the number
of times that the complainant
was raped – must obviously be taken into account when the
ultimate question to be determined
is what reliance, if any, can be
placed on the contents thereof. Bearing all these factors in mind, I
have come to the conclusion
that the learned Regional Magistrate was
correct in admitting the statement of the complainant’s sister
into evidence.
[28].
That then brings me to the version of the
appellant, whose evidence was that he and the complainant, whom he
knew by a name totally
different from her actual name, had been
involved in a relationship since the previous month, that being
December 2017. It bears
emphasising that in his evidence-in-chief the
appellant made reference to the complainant by a name and a surname,
which have no
resemblance to those of the complainant. On the morning
in question, so the evidence of the appellant continued, he had been
with
the complainant at the tavern. In the early hours of the
morning, the appellant and the complainant left the tavern together.
This
was at about 07:00, after the complainant had told the appellant
that she was tired and requested him to accompany her.
[29].
Whilst on their way from the tavern,
the two of them were confronted by the father of her child, who
enquired from the complainant
where she had been as he had been
looking for her for a long time. The appellant came to her defence by
putting his arms around,
thus protecting her from a possible attack
from the aggressor, who then stabbed the appellant on the nose. The
appellant thereafter,
so his evidence went, threw a brick at the
attacker, thus chasing him away. After the altercation, the two of
them, at the insistence
of the complainant, so the appellant
testified, went to his shack where they engaged in consensual sex on
two occasions.
[30].
An important part of his evidence-in-chief
reads as follows:
‘
Accused:
Your Worship, I dispute that. The court can call Shegle and Mbongeni,
the people whom I was with at that shebeen, they
can come and
corroborate what I say.
Mr Bantwini: And she further
informed the court that you also raped her on two occasions, while
you were at the hostel.
Accused: Your Worship, I did not
kidnap her, neither did I rape her. We had consensual sex and it was
not the first time being intimate
with her.
Mr Bantwini: She does not know
you and she further denied that the other names as you call her. She
said her name is known as [A…
D…].
Accused: Your Worship, she told
me that she is [M…], surname [T…]. I even went an extra
mile by making her have a
conversation with a person who comes from
Nameti, since she mentioned that her father is from Nameti. I then
asked her that how
come you are [T…], whereas you speak
isiXhosa. She then mentioned that [T…] is her father's surname
and she grew
up in the Eastern Cape where her mother is based.
Mr Bantwini: She further
informed the court that it was her first time to come into contact
with you.
Accused:
Your Worship, that is a lie. Mr Madondo is known to her. Therefore,
we ended up having a conversation together. Therefore,
I dispute
that.’
[31].
In sum, the appellant denied that he raped
the complainant at the cemetery – there was no incident there.
And, as regards
the intercourse in his shack, that he claimed was
consensual. His explanation for the fact that she ended up wearing
his clothes
and his tekkies was that she, after taking a bath at his
place, asked to wear his clothes. Why she ended up wearing his
oversized
shoes remained unexplained. ‘Those clothing items,
that I borrowed her, I was going to collect them in the evening’,
so his evidence on that aspect went.
[32].
His evidence was furthermore that they
parted company on the day in question at about midday, after the
complainant indicated that
she was meeting up with friends to drink
some more and it was arranged that they (the appellant and the
complainant) would meet
up later that evening.
[33].
The appellant, also called a witness, who
testified that he had seen the complainant and the appellant together
on the morning of
the incident. They told him about the incident with
the father of the complainant’s child. The complainant,
according to
this witness, appeared happy to be in the company of the
appellant and he did not observe any trouble between them.
[34].
The evidence on behalf of the State I have
summarised above. The question is whether this evidence is sufficient
to prove the guilt
of the appellant beyond a reasonable doubt. Put
another way, the question is whether, at the end of the trial, the
evidence as
a whole was sufficient to ground the conviction of the
appellant.
[35].
To determine whether the state had proved
the guilt of the appellant beyond a reasonable doubt, the whole
mosaic of evidence must
be considered. This evidence as a whole
should be considered in deciding whether the version of the appellant
that he had consensual
sexual intercourse with the complainant in his
shack, is reasonably possibly true.
[36].
It is trite that the State bears the onus of establishing the guilt
of the appellant beyond
a reasonable doubt, and the converse is that
he is entitled to be acquitted if there is a reasonable possibility
that he might
be innocent (
R v Difford
[3]
).
In
S v Van der Meyden
[4]
,
which was adopted and affirmed by the SCA in
S v Van Aswegen
[5]
,
it was reiterated that in whichever form the test is applied it must
be satisfied upon a consideration
of all the evidence
. Just as
a court does not look at the evidence implicating the accused in
isolation to determine whether there is proof beyond
reasonable
doubt, so too does it not look at the exculpatory evidence in
isolation to determine whether it is reasonably possible
that it
might be true.
[37].
What is important is the overall picture.
If the version of the appellant is to be accepted, it would mean that
the state witnesses
fabricated and concocted their entire story from
beginning to end. The version of the appellant also does not explain
the medical
evidence of the injuries sustained by the complainant.
Viewed holistically the version of the appellant is not tenable. What
is
also instructive is the fact that the appellant did not know the
correct name of the complainant, who supposedly had been his
girlfriend
for about a month. Also, he did not know where exactly she
lived.
[38].
Although the complainant was a single
witness in respect of the incident, the court
a
quo
evaluated her evidence with
caution, as it was required to do. See:
R
v Mokoena
[6]
;
S v Stevens
[7]
.
Section 208 of the CPA provides that a Court is entitled to convict
an accused person on the evidence of a single witness. I am
of the
view that the appellant was convicted upon the evidence of a single
witness which was substantially satisfactory in all
material respects
and corroborated. (
S v Ganie
[8]
).
[39].
I am of the view that the Court
a
quo
correctly approached the evidence
of the complainant with extra caution. The Court
a
quo
correctly found that the
complainant's version is substantially corroborated by independent
evidence, notably the clinical findings
in the Form J88 Medico-legal
Report, which is clear evidence that the complainant was threatened
with a knife.
[40].
The evidence that the complainant ended up
wearing the clothes and shoes of the appellant fits in with and
corroborates the version
of the complainant 100%. She had an injury
on her hand and her clothes were missing. She reported to her sister
on the same day
that she had been raped. In my view, this is not the
natural behaviour of a young woman who had consensual sexual
intercourse.
[41].
There are almost always some contradictions
to be found between the evidence of state witnesses. If the
inconsistencies and differences
which exist are of a relatively minor
nature and the sort of thing to be expected from honest but imperfect
recollection, observation
and reconstruction, if anything the
contradictions points away from any type of conspiracy between the
witnesses. See:
S v Mkohle
[9]
.
[42].
I am of the view that the court
a
quo
, after considering all the
probabilities and improbabilities and particularly the fact that
there is no onus on the appellant to
convince the court of the truth
of his explanation, correctly held the evidence of the appellant was
inherently improbable and
false beyond a reasonable doubt. The
learned Magistrate’s finding that sufficient corroboration
existed for the evidence
of the complainant cannot be faulted. The
improbability or implausibility of the appellant’s version,
particularly the fact
that on his version the state witnesses
concocted the whole story against him, is apparent. The version of
the appellant also does
not explain the injury sustained by the
complainant to her fingers.
[43].
Mr Guarneri submitted that there are a
number of discrepancies in the version of the complainant, which was
not considered by the
trial court in its assessment of the evidence.
These include the fact that the complainant claimed to have grabbed
the knife that
the appellant was brandishing. Yet on her own version
she only sustained superficial cuts, when one would have expected a
more
serious injury. Also, so the appellant submitted, it is
improbable that the complainant at no stage screamed for help during
her
ordeal, be it at the graveyard or at the appellant’s shack.
One other aspect viewed by the appellant as an improbability in
the
version of the complainant relates to the fact that, according to
her, the appellant was able to have intercourse a mere five
minutes
after he had ejaculated.
[44].
I am not persuaded by these submissions.
The explanation by the complainant for her failure to shout out for
help is simply that
the appellant was threatening to stab her. It
could not be expected of the complainant to be a brave heart
especially after the
appellant tried to stab her at the graveyard.
[45].
The version of the complainant is, in my
view, not improbable. Far from it. It is a plausible and natural
story, with a ring of
truth to it. The same cannot be said of the
version of the appellant, who wanted the trial court to believe that
he did not know
the correct name of the person he claimed to be his
girlfriend.
[46].
In any event, as was pointed out by Majiedt
JA in
Naidoo v S
[10]
,
it is essential for an appeal court to remain cognisant of the
strictures on it as far as the trial court’s factual findings
are concerned. Absent demonstrable, material misdirections and
clearly erroneous findings, an appeal court is bound by the trial
court’s factual findings. (
S v
Hadebe & others
[11]
;
S v Modiga
[12]
).
As was held by the Constitutional Court in
Mashongwa
v PRASA
[13]
,
it is not for an appellate court ‘to second-guess the
well-reasoned factual findings of the trial court’. We, as the
appeal court, are not the triers of fact at first instance.
[47].
The point is that, even if an appeal court
has reservations about certain aspects of a trial court’s
factual findings, it
shall interfere in those findings in exceptional
circumstances, and only when there are demonstrable, material
misdirections and
clearly erroneous findings.
[48].
I am accordingly of the view that there is
no reason for disturbing any of the factual findings made by the
court
a quo
.
The case against the appellant was overwhelming and the Regional
Magistrate was correct in his finding that the appellant raped
the
complainant three times, as per her evidence.
[49].
As far as the kidnapping charge is
concerned, there can be no doubt that the appellant had deprived the
complainant of her freedom
by forcing her to the graveyard and
thereafter to his shack. The offence of kidnapping stood separate and
distinct from the rape,
and it cannot be said that there was an
improper duplication of charges.
[50].
I am therefore satisfied that the
appellant’s conviction should be confirmed.
Sentence
[51].
I now turn to deal with sentence. The
appellant was sentenced effectively to direct imprisonment for life.
It is trite that an appeal
court can interfere with sentence only
where the sentence is affected by an irregularity or misdirection
entitling this court to
interfere.
[52].
This was a particularly serious case of
rape where a young woman was forcibly taken against her will by the
appellant first to a
cemetery and thereafter to his place of
residence, where he subjected her to rape on three occasions.
[53].
A convenient starting point is the fact
that the provisions of s 51(1) of the CLAA, read with Part I of
schedule 2 of the said Act,
apply. This means that a minimum sentence
of imprisonment for life finds application. The question is whether
substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence.
[54].
Section 51(1) of the CLAA reads as follows:
‘
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall
sentence a person it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.’
[55].
Section (3) of the said Act provides as
follows:
‘
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances
exist which justify the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those
circumstances on the record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court
imposes such a lesser sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose
a term of imprisonment for a period not
exceeding 30 years.
(aA) When imposing a
sentence in respect of the offence of rape the following shall not
constitute substantial and compelling
circumstances justifying the
imposition of a lesser sentence:
(i)
The
complainant's previous sexual history;
(ii)
an
apparent lack of physical injury to the complainant;
(iii)
an
accused person's cultural or religious beliefs about rape; or
(iv)
any
relationship between the accused person and the complainant prior to
the offence being committed.’
[56].
Part
I of Schedule 2 list the crime of ‘Rape as contemplated in
section 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
-
‘
(a)
when committed-
(i)
in
circumstances where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice;
(ii)
by
more than one person, where such persons acted in the execution or
furtherance of a common purpose or conspiracy;
(iii)
by
a person who has been convicted of two or more offences of rape or
compelled rape, but has not yet been sentenced in respect
of such
convictions; or
(iv)
by
a person, knowing that he has the acquired immune deficiency syndrome
or the human immunodeficiency virus;
(b)
where the victim-
(i)
is a person under the age of 16 years;
(iA) is an
older person as defined in section 1 of the Older Persons Act, 2006
(Act 13 of 2006).’
[57].
A compulsory minimum sentence of direct
imprisonment for life was imposed in respect of one of the rape
charges by virtue of part
I(a)((i) and (iii) of schedule of Schedule
2. The question to be asked is whether there were any substantial and
compelling circumstances
justifying a deviation from such minimum
sentence.
[58].
I take into consideration what was stated
by the SCA in
S v Vilakazi
[14]
.
Nugent JA had this to say at par [58]:
‘
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two children or three, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be, and those seem to me to be the kind of 'flimsy' grounds
that
Malgas
said
should be avoided. But they are nonetheless relevant in another
respect. A material consideration is whether the accused
can be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making
at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable
employment and
apparently stable family circumstances are not indicative of an
inherently lawless character.’
[59].
It was necessary for the court to find the
existence of substantial and compelling circumstances before it was
entitled to impose
a lesser sentence. In considering whether
substantial and compelling circumstances were present, the learned
magistrate had regard
to the appellants’ personal circumstances
and the fact that the appellant was not a first offender.
[60].
Mr Guarneri, in his 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 40 years old at the time of his conviction and
sentence; he had two children aged 5 and 18 years’ old
respectively; he
was self-employed doing plumbing and tiling; and his
highest level of education was Standard 7 (grade 9).
[61].
I cannot agree with this submission. To
borrow from
S v Vilakazi
(supra), because of the seriousness of the crimes of which the
appellant had been convicted, his personal circumstances, by
themselves,
will necessarily recede into the background.
[62].
I am satisfied that, the learned Regional
Magistrate properly considered whether there were substantial and
compelling circumstances
to deviate from the minimum sentences
provided for in respect of the offences under the relevant provisions
of section 51(1) of
the CLAA as read with part I of schedule 2
thereof, and also carefully considered the triad of factors relevant
to sentencing,
namely the nature of the offence, the personal
circumstances of the appellant, including his moral blameworthiness
and the interests
of society by which I include the interests of the
victim.
[63].
The appellant’s appeal against his
sentence should therefore also fail.
Order
In the
result, the following order is made: -
(1)
The appellant’s appeal against his
conviction is dismissed.
(2)
The appellant’s appeal against his
sentence is dismissed.
(3)
The appellant’s conviction by the
Protea Regional Court and his sentence be and are hereby confirmed.
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
25
th
February 2021 – The matter was disposed of
without an oral hearing in terms of
s 19(a)
of the
Superior Courts
Act 10 of 2013
.
JUDGMENT DATE:
8
th
June 2021
FOR THE APPELLANT:
Adv A E Guarneri
INSTRUCTED BY:
Legal Aid South Africa
FOR THE RESPONDENT:
Adv L R Mashabela
INSTRUCTED BY:
The Office of the National Director of Public Prosecutions,
Johannesburg
[1]
Makhathini v Road Accident Fund
2002 (1) SA 511 (SCA)
[2]
Metedad v National Employers' General
Insurance Co Ltd
1992 (1) SA 494 (W)
[3]
R v Difford
1937 AD 370
at 373, 383
[4]
S
v Van der Meyden
1999 (2) SA 79 (W)
[5]
S v Van Aswegen,
2001 (2) SACR 97 (SCA)
[6]
R v Mokoena
1932
CPD 79
[7]
S v Stevens
2004
JDR 0505 (SCA)
[8]
S v Ganie
1967 (4) SA 203 (N)
[9]
S v Mkohle
1990
(1) SACR 95(A)
[10]
Naidoo v S
(333/2018)
[2019] ZASCA 52
(1 April 2019)
[11]
S v Hadebe & others
1997 (2) SACR 641
(SCA) at 645E-F
[12]
S v Modiga
[2015] ZASCA 94
;
[2015] 4 All SA 13
(SCA) para 23
[13]
Mashongwa v PRASA
[2015] ZACC 36
;
2016 (3) SA 528
(CC) para 45
[14]
S v Vilakazi
2009 (1) SACR 552
(SCA)