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[2021] ZAGPPHC 403
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V.M.M v S (A303/2020) [2021] ZAGPPHC 403 (17 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A303/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
V[…]
M[…] M[…]
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
STRJJDOM AJ
1.
The Appellant was convicted and sentenced in the Regional
Court
Pretoria North on 4 (four) counts of contravention of section 3 of
Act 32 of 2007 read with section 51 of Act 105 of 1997,and
1(one)
count of kidnapping. He was sentenced to life imprisonment on the
count of rape and 5 (five) years imprisonment on the count
of
kidnapping.
2.
The Appellant was not legally represented during the trial.
He gave
Pretoria Justice Centre power of attorney to argue the appeal against
his convictions and sentence.
3.
The Appellant approached this court by virtue of an automatic
right
to appeal against his conviction and sentence in terms of section 10
of the Judicial Matters Amendment Act, No 42 of 2013.
4.
It needs to be noted that this section of the Judicial
Matters Act
Amendment Act, amended
section 309
of the
Criminal Procedure Act, No
51 of 1977
in that it provides for an automatic appeal in
circumstances like the case we have to decide today.
5.
In the heads of argument , the Appellant claims that ad
the merits of
the case, the trial court erred on the following grounds of fact and
law:
a)
The Appellant was not afforded a fair trial. He was not
given copies of
the docket to prepare himself for trial as he was
conducting his own defence;
b)
The complainant was a single witness. Her evidence was not
satisfactory in all material
respects;
c)
Material evidence could not be obtained to corroborate the evidence
of the Complainant.
The failure of the Appellant to testify and
to call witnesses did not strengthen the State's case.
6.
Regarding
the merits
i
t
was he
l
d
i
n
S
v
Van
der Meyden
[1]
:
"The
onus of
proof
in the
criminal
case
i
s
discharged
by the
State
i
f
the evidence establ
i
shes
the
g
u
i
l
t
of the accused beyond reasonable
doubt.
The
corollary is
that he
i
s
entitled
to be
acquitted if it is reasonably
possible
that
h
e
might be
i
nnocent.
These are not separate and independent
test
s
,
but
the
expression
of
the
same
test
when
viewed
from
opposite
perspectives.
A
court does
not
l
ook
at the evidence
im
pl
i
cating
the
accused
i
n
i
solation
in
order
to determine
whether
there is proof
beyond
reasonable
doubt, and
so too does it
not
look
at
the
exculpatory
evidence
i
n
isolation
i
n
order
to
determine
whether
it
is
reasonably possible that it might be true."
7.
I
t
is settled that a Court of Appeal will
not
interfere easily with a finding of fact and credibil
i
ty
made
by
the
trial
court
and
I refer
to
R
v
Dlumayo
and
Another
.
[2]
I
n
the absence of demonstrable and material misdirection by the tr
i
al
Court,
i
ts
findings of fact, are presumed to be correct and will only be
discarded if,
the
recorded evidence showed
them to be
clear
l
y
wrong. The reason
for this
i
s
simp
l
y
that the trial court sees and hears, the
witnesses
and
i
s
steeped
i
n
the
atmosphere of
t
h
e
trial.
Other than the court
of
appeal
who
considers only the mute trial record of first instance is in a
position to take into account the witness' appearance, demeanor
and
personality.
8.
In the
absence
of
factual
error
or
m
i
sdirection
on
the
part
of the
trial Court,
i
ts
finding
i
s
presumed
to be
correct.
This
was also
he
l
d
to
be
the
pos
i
tion
in
S
v Bailey
[3]
and Minister
van
die
Suid-Afrikaanse
Pol
i
sie
en
'n
ander
v
Kraatz
en
'n
ander
[4]
.
This
princip
l
e
has
been
confirmed and properly enunciated
i
n
S
v Ha
d
ebe
and
others
.
[5]
The Court
cautions
that
one
must
guard
against
a
tendency
to
focus
too
i
ntently
on
-
"separate
and individual parts of what is after all a mosaic of proof.
Doubts about
one aspect of the evidence led in the
trial may arise when that aspect is viewed in
isolation.
Those
doubts may be set at
rest
when
it is
evaluated again together with
all the
available evidence."
9.
The evidence given in the trial court was fairly and accurately
summarised in the judgment. The Appellant had issue with the trial
Court accepting the evidence of the complainant, who at the
occurrence of the incidents was 16 years old. Appellant advances the
argument that this witness is a single witness and that her
evidence
should have been "satisfactory in all material respects"
and ought to have been treated with the necessary caution.
10.
The trial Court adequately reflects on the witness' testimony. It is
clear from the
judgment that the trial court considered the
complainant's testimony with the necessary caution.
11.
The learned Regional Court magistrate stated on page 118-119;
"When
the
Court
evaluates
the
evidence
that
was
presented,
firstly
that
the
evidence
of the complainant is, that of a
single
witness and thus
her
evidence will
be
subject to the cautionary rules applicable to the evidence of
a
single
witnes
s
…
The
complainant's
version
is
supported
by the following to
a
certain
extent
by
the
accused
's
version that he did have consensual sexual intercourse with her as
per
his
warning
statement
to
the
police;
[6]
by
the
evidence
of
the
grandmother
and
T[…]
with
regard
to the
preceding
and following events, and the
objective
facts
of
the medical examination and Doctor Ntuli's conclusion that the
secretions
from the vagina is semen and an indication of penetratio
n
.
The complainant
's
version
is
further
supported
by
the evidence of
the
circumstances
and
the
time and
the
condition the complainant
was
found by
the
police."
12.
This Appellant decided to close his case without placing any evidence
before the court
a quo.
13.
I
t
was stated
i
n
S
v
Mthethwa
that:
[7]
“
Where
however there is
prima
facie
evidence implicating
the accused in the
commission
of
the offence, his
failure to give evidence,
whatever his reasons, may
before
such
failure,
in
general ipso facto, tends
to
strengthen
the
stat
e
's
case
because
there is then nothing
to
gainsay
it, and
therefore less reason
for doubting
its
credibility
on reliability
."
14.
The
accused
does
have
the
right
to
remain
si
l
ent
but
that
does
have
certain
consequences and adverse consequences to his
case.
I
n
S
v
Brown
& Another.
[8]
it was held that:
"No
adverse inference could be made against an accused merely by
virtue of the
fact that he had exercised his right to
silence. The exercise of the right to silence had
however
certain
consequences,
for
instance, that
it
left
the
prima facie
evidence on behalf of the State
uncontradicted. This uncontradicted
prima
facie
evidence could
in
appropriate
circumstances constitute sufficient evidence
against
the
accused.
Whether
this
occurred would
depend on
the
facts
and circumstances
of every
case.
“
In
certain cases, the exercise of the right
of silence
in terms of section
25
(3)(c)
could
therefore have
prejudicial consequences for an
accused.
15.
The cross examination of the Appellant did not raise any significant
issues. In my
view mainly left uncontested or agreed with.
16.
On 24 July 2017 the Appellant requested a copy of the J88,
Vide:
Record: Volume 1:p4 para 16
He
was duly supplied with a copy of the J88 as requested by him.
Vide:
Record: Volume 1 p 5 para 1-9
During
the evidence of Dr Ntuli, it was clear that the Appellant was in
possession of a copy of the case docket.
Vide:
Record: Volume 1 p 57 para 26.
Volume
1 p 58 para 1-3
On
page 60 para 19-21 the Appellant admit that he had a copy of the case
docket. The prosecution also placed on record that a copy
was
supplied by the State to the Appellant. The Appellant did not deny
this.
Vide;
record Volume 1 p 80 para 17-22.
17.
In my view there is no merit in the Appellants' submission that he
was not afforded
a fair trial because he was not given copies of the
docket to prepare himself for trial.
18.
After scrutinizing the record and applying the test explained in
S
v
Hadebe
supra, this court cannot find a
justifiable reason to interfere with the trial court's decision to
accept the evidence of the complainant.
The trial court did not
summarily decide the case on the basis of the Complainant's version
alone. The Court
a
quo
analysed the
testimony of all the State witnesses and accepted the evidence
proffered.
19.
When the whole mosaic of evidence is considered , there is no basis
for this court
to step in and interfere with the trial court's
evaluation of the evidence.
20.
Pertaining to the sentence , a court of appeal does not have an
unfettered discretion
to interfere with the sentence imposed by a
trial court. The Court of Appeal may only interfere where it is clear
that the trial
court did not exercise its discretion judicially or
reasonably. Where there is no clear misdirection the question is
whether there
exists such a disparity between the sentence imposed
and the sentence the appeal, Court would have imposed as to warrant
interference
.
21.
It was
stated
in
S
v
Gquabi
[9]
that
an
accepted
test
for
determ
i
ning
whether
a sentence
i
s
so severe as
to be
u
n
just
is
to
enquire
whether the
sentence gives the Court of Appel a sense of shock.
22.
It was submitted by the Appellant that the trial Court did not
explain the consequences
of the provisions of
section 51
(1) of the
Criminal law Amendment Act to the Appellant before he could plead
and/or after he had pleaded.
23.
It was further submitted that the minimum sentence on each Count is
10 years' imprisonment
for a first offender.
24.
On each of the four rape counts it is alleged in the charge sheet
that the accused
raped the victim more than once.
25.
On 11 April 2017 the Appellant was informed of the implications of
section 51 of Act
105 of 1977. In his judgment of the sentence the
presiding Officer also referred to the fact that he extensively
explained to the
Appellant the consequences of Act 105 of 1977.
Vide:
Record: Vol 1 p "L"
Vide
Record: Vol 2 p 135 para 12-16
26.
Section 51(1) of Act 105 of 1997 provides that a Regional Court or a
High Court shall
sentence a person it has convicted of an offence
referred to in part 1 of Schedule 2 to imprisonment for life. Rape is
contemplated
in section 3 of the Criminal law (sexual offences and
related matters) Amendment Act 2007 as-
(a)
when committed where the victim was raped more than once whether by
the accused or by any co-perpetrator or accomplice, falls
within the
ambit of part 1 of Schedule 2.
27.
In
S
v
Mtembu
[10]
it
was
stated
that
i
t
i
s
enough
that
an
accused
person
i
s
informed
that
section
51
of
Act
105
of
1997
i
s
appl
i
cable.
It
i
s
not
necessary
that
an
accused is
i
nformed
whether
i
t
i
s
subsection
51(1)
or
51(2)
of
the
said
Act.
28.
In my view the Appellant was properly informed of the provisions of
section 51 of
Act 1997.
29.
In the present case the Appellant was found guilty of raping the
complainant a 16-
year-old girl more than once. The gravity of the
offence is enormous. In addition, the prescribed sentence on each
count is life
imprisonment.
30.
Unless the court finds that there are substantial and compelling
circumstances present to deviate from the prescribed sentence,
this
is the sentence that must be applied.
31.
The following personal circumstances of the Appellant were considered
by the court a quo.
31.1
The Appellant was 18 years and 4 months old- when he committed these
offences. He was 28 years old when he was
sentenced
31.2
He completed grade 6 in 2003.
31.3
He was not married and had no minor children to maintain.
31.4
The court also considered the fact that the Appellant is currently
serving two life sentences for rape. At the
time of the commission of
these offences , the Appellant was not yet convicted of any offence.
He was a first offender. He was
only convicted on the 28th September
2011. However, the court a quo, stated, that, "it indicates a
clear path with regard
to what your future intent was and indicates
similar offences on which you were convicted."
32.
The following can be viewed as aggravating circumstances.
32.1
The complainant was 16 years when she was raped by the Appellant.
32.2
The Appellant raped the complainant numerous times.
32.3
The Appellant held the complainant captive, until she was rescued by
the boyfriend and police.
32.4
The complainant was severely traumatized by the ordeal.
32.5
The Appellant showed no remorse.
33.
I
n
S
v
Hewitt
[11]
it
was stated
that:
"Our
court
has, in countless
cases
of
this
nature, consistently expressed societ
y
's
abhorrence of
sexual offences, which
once
earned South
Africa the
shameful title
of being
the rape capital of the
world,
and
the devastating
effect they
have on
victims, and society itself
The
courts have aptly described rape as
'a
horrifying
crime'
and
a
cruel
and
selfish act in which the
aggressor treats with
utter
contempt
the dignity and feelings
of the victim, and
as
a
very serious
offence
which is a
humiliating, degrading
and
a
brutal invasion
of
the privacy,
the dignity
and the
person of the victim."
34.
From an analysis of the Appellant's personal circumstances seen in
the context with the severity
of the crimes and the aggravating
circumstances, properly alluded to by the respondent's counsel in the
heads of argument, it is
evident that no compelling and or
substantial circumstances exist to deviate from the minimum
prescribed sentence. It is evident
that there is no misdirection on
the trial court's side that would warrant interference with the
sentence, neither do these sentences
indicate a sense of shock.
35.
The Appeal on both conviction and sentence is dismissed.
STRIJDOM
JJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
D
I
VISION OF THE H
I
GH COURT,
PRETORIA
I
agree, it is so ordered.
MOKOSE
J
JUDGE
OF THE HIGH COURT
GAUTENG
D
I
VISION OF THE
H
I
GH COURT,
PRETORIA
Date
of hearing: 18 MAY 2021
Date
of
judgment:
1
7 JUNE 2021
Delivered:
This
judgement
was
prepared
and authored
by the Judge
whose
name is
reflected
and
is
handed
down
electronically
by
circulation
to
the parties
I
their
legal representatives
by
email
and
by
uploading
it
to
the
electronic
file
of
this
matter
on CaseLines. The
date
for
hand-down is
deemed to
be 17
June2021.
Appearances:
For
the Appellant: Adv S MOENG
(Instructed
by: PRETORIA JUSTICE CENTRE.)
For
the Respondent: Adv A ROOS
(Instructed
by: DIRECTOR OF PUBLIC PRESECUTION , PRETORIA.)
[1]
1
999(
1
)
SARC 447
(W)
at
448
F
-H
[2]
1
948(2)
SA 677 (A) 705-6
[3]
2007(2)
SACR
1
(C)
[4]
1
973(3)
S
A
490 (A)
[5]
1
997(2)
SACR 641
(SCA)
[6]
Vide:exhibit
"
D"
pp
1
83
[7]
1
972
(3) SA 766
(
A
)
769 0-F
[8]
1
996
(2) SACR 49 (NC)
[9]
1
964
(1)
S
A
261 (T)
[10]
20
1
2
(
1
)
SACR 5
1
7
SCA
[11]
20
1
7
(
1
)
SACR 309
(SC
A
)
page 313
para D-F