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[2021] ZAGPPHC 341
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Hadebe v S (A282/2020) [2021] ZAGPPHC 341 (24 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO : A282/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
DATE:24/5/2021
In
the matter between:
SAMUEL
NKOSANA
HADEBE
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
The appellant was charged in the Regional Division of Gauteng sitting
at Benoni with one count of rape in contravention of Section 3
of Act 32 of 2007 read with the provisions of Section 51 of
Act 105
of 1997 and one count of t heft. The appellant, who was represented,
pleaded not guilty to the charges.
[2]
The appellant was found guilty and sentenced to life imprisonment on
the charge of rape of a child
in terms of Section 51(1) of Act 105 of
1997 and a further three months’ imprisonment for theft. The
Magistrate did not make
an order for the sentences to run
concurrently stating that it would be superfluous to do so as the
appellant would be serving
a life sentence. Furthermore, the
appellant was declared unfit to possess a firearm and his particulars
were ordered to be placed
on the register for sexual offenders.
[3]
On an automatic right of appeal in terms of Section 10 of the
Judicial Matters Amendment Act 42
of 2013, the appellant appealed
against both conviction and sentence. The appellant appealed on the
grounds that the State failed
to prove beyond a reasonable doubt that
the complainant was raped by the appellant. The appellant furthermore
submits that the
Magistrate misdirected himself in not properly
analysing and evaluating the evidence before the court. In
particular, the appellant
contends that the Magistrate erred in
finding that the DNA evidence had not been tampered with.
[4]
The charges arise from an incident which occurred on 1 July 2018 when
the appellant, the father of the
complainant’s friend, arrived
at the home of the complainant and enquired as to the whereabouts of
his daughter . He requested
the complainant to bring her phone to him
so that he could check it. She handed over her phone to the appellant
who then drove
off with it. He was in the company of a friend.
[5]
On 2 July 2018 the appellant returned to the complainant’s home
and told her that the phone
had been taken by his friend and that she
should accompany him to collect it from him. She agreed and
accompanied the appellant.
On the way, the appellant told the
complainant that the phone was with his wife at his home. Thereafter,
he told the complainant
that the phone was at his wife’s place
of employment.
[6]
The complainant testified that as they walked in a bushy area towards
the wife’s place of
employment, the appellant tripped her up,
pulled out a firearm and proceeded to rape her. She testified that
after he raped her,
they boarded a taxi to an unknown house where she
refused to enter . The appellant entered the house alone whereupon
she escaped
from the appellant and reported the matter to the police
at Actonville Police Station .
[7]
The second witness, Mr Dershen Chetty, a warrant officer in the
employ of the Forensic Science
Laboratory, testified that the DNA
sample obtained from the complainant matched the DNA of the
appellant. This evidence was not
disputed by the appellant .
[8]
Dr Muka testified that she examined the complainant on 2 July 2018 at
which time she took a DNA sample.
She testified that she did not
observe any fresh injuries on the complainant but that did not
exclude a sexual assault .
[9]
Sargeant Angelina Mfolo testified that she had taken a buccal sample
from the appellant which was duly
sea led and in the presence of the
appellant then handed to the investigating officer for safe-keeping .
[10]
Constable Masondo testified that he had taken the statement of the
complainant and also taken
the Complainant together with the crime
kit to the doctor. He testified that after the complainant had been
examined, he received
the crime kit back from the doctor and placed
it in a safe place.
[11]
The sixth witness was Constable Modiba who transported the specimens
to the Forensic Science Laboratory.
[12]
It is trite law that the onus of proof rests with the State to prove
the guilt of an accused
beyond reasonable doubt. It is not for the
appellant to rebut an inference of guilt by providing an explanation
. If the
appellant’s version is only reasonably possibly
true, he would be entitled to be acquitted.
The
court in the matter of
Shackle
v S
[1]
held
:
“
The
court does not have to be convinced that every detail of an accused’s
version is true, if the accused’s
version is reasonably
possibly true, in substance
the
Court must
decide the matter on
acceptance of that version. Of course, it is permissible to test the
accused’ s version
against the inherent probabilities; but it cannot be rejected merely
because it is improbable.
It
can only be rejected on the basis of inherent probabilities if it can
be said that it will be
so
improbable
that it cannot be reasonably
possibly true.”
[13]
Heher AJA in
the
matter
of
S
v
Chabalala
[2]
said:
“
The correct approach
is to weigh up all the clement which point toward the guilt of the
accused against all those which ore 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
to the accused’s
guilt. The result may prove that one scrap of evidence or one defect
in the case for either party (such
as failure to call a material
witness concerning an identity parade) was decisive but that can only
be on an ex post facto determination
and a trial court (and counsel)
should avoid the temptation to latch onto one (apparently) obvious
aspect without assessing it
in the context of the full picture in
evidence.”
[14]
The
complainant’s evidence called for a cautionary approach as a
single witness in some aspects of the alleged rape. Guidelines
were
enunciated in the matter of
S
v Sauls
[3]
where
the court said:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness...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
his
testimony,
he
is satisfied that
the
truth has been told.
The cautionary rule may be a
guide to
a
right decision but it does not mean that the appeal should succeed if
any criticism, however slender, of the witnesses’
evidence
were well founded
….
lt
has been said more than once that the exercise of caution
must not
be allowed
to
displace
the
exercise of
common
sense.”
[15]
The appellant testified in his own defence and called no witnesses.
He denied that the rape had taken
place at all and as such, is
entitled to an acquittal.
[16]
The complainant’s evidence was that of a single witness. As
such, the cautionary rule applicable to evaluation
of singled witness
evidence was applicable and taken into consideration by the
Magistrate who carefully evaluated the body of evidence
before the
court and found that there was no motive for the complainant to
implicate the appellant of the rape. Secondly, the Magistrate
found
that the DNA results linked the appellant to the complainant and
corroborated the evidence of the complainant.
[17]
I am of the view that there were no material contradictions in the
evidence of the St ate. The
evidence of the St ate witnesses
corroborated that of the complainant. In consideration of all the
evidence, it is evident that
the appellant’ s submissions were
clearly false and fabricated and clearly evidence that the court
could not rely upon. In
view of the evidence presented, this court is
of the view that it will not interfere with the findings of the court
a quo
and accordingly dismisses the appeal against the
conviction.
[18]
The appellant also appeals against the sentence imposed by the court
a quo.
The ground of appeal against sentence is premised on
the court
a
qu
o
’
s
failure to find
substantial and compelling circumstances to deviate from the
mandatory sentence of life imprisonment.
[19]
It is trite law that sentence is pre-eminently at the discretion of
the trial court. The court
of the appeal may interfere with the
sentencing discretion of the trial court if such discretion had not
been judicially
exercised. The test which has been enunciated
in numerous cases is whether the sentence imposed by the trial court
is shockingly
inappropriate or was violated by misdirection .The
trial court considers for the purposes of sentence, the following:
(i)
The seriousness of the case;
(ii)
The personal circumstances of the Appellant;
(iii)
The interests of society.
[20]
The provisions of Section 51(1) of Act 105 read with Part 1 of
Schedule 2 of the Criminal Law Amendment Act 51
of 1977 were
explained
to
the Appellant prior to him pleading to the
charges. The section states that an offender shall be sentenced to
imprisonment as per
the minimum sentence unless there
are
compelling and substantial reasons to deviate from the prescribed
minimum sentence. The specified sentences are not to be
departed from for flimsy reasons and must be respected at all times.
S
v M
atyityi
[4]
[21]
There is no definition of what constitutes compelling and substantial
reasons.
The court must consider all the facts of the case in
determining whether compelling and substantial circumstances exist.
To arrive
at an equitable sentence, this court is enjoined to weigh
the personal circumstances of the accused against the aggravating
factors,
in particular, the interests of the society, the prevalence
of the crime, and its nature and seriousness.
[22]
In mitigation of sentence, the following personal circumstances of
the appellant were placed
before the court
a quo:
(i)
he was 38 years of age;
(ii)
he was single with two minor children aged […] and […]
years’ old respectively
who lived with him;
(iii)
he was unemployed, so too was the mother of his two minor children;
(iv)
he dropped out of school at Grade 9 and did not obtain any life
skills;
(v)
he had spent 1 year and 5 months in custody awaiting trial.
[23]
Given the seriousness of the crime as well as the mitigating
circumstances which were taken
into consideration by the Magistrate
in the court
a quo,
I am of the opinion that the Magistrate
did not err in sentencing the Appellant. There were no substantial
and compelling reasons
to sentence the Appellant to a lesser sentence
than that prescribed by the provision s of Section 51(1) of Act
105 read with
Part 1 of Schedule 2 of the Criminal Law Amendment Act
51 of 1977
nor
is there any evidence of the discretion of the
Magistrate having been incorrectly exercised.
ORDER
[24]
ln the premises , the following order is made :
(i)
the appeal against the
conviction is dismissed;
(ii)
the appeal against sentence is accordingly
dismissed.
_
MOKOSE
J
Judge
of the High Court of
South
Africa
Gauteng
Division , Pretoria
I
agree and is
so
ordered
_
STRIJODOM
Acting
Judge of the High Court
of
South Africa
Gauteng
Division,
Pretoria
For
the Appellant :
Mr
S Moeng instructed by
Legal
Aid South Africa
Pretoria
For
the State :
Adv
A Roos instructed by
The
Office of the Director of Public Prosecution
Pretoria
Date
of hearing:
18 May 2021
Date
of judgement: 24 May
2021
[1]
2001
(1)
SACR 279
(SCA)
at
288
E
- F
[2]
2003 (1)
SACR
134
(SCA)
at
page
140 A - B
[3]
1981
(3)
SA 172
(A)
[4]
2011 (1) SACR
40
(SCA)
at page 53
E
- F