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[2021] ZAKZPHC 68
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Xaba v S (198/2020) [2021] ZAKZPHC 68 (21 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 198/2020
In
the matter between:
HAWUKANI
MNTUKABONI
XABA APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Nkandla Regional Court
(sitting as court of first instance):
The appeal against
conviction and sentence is dismissed.
JUDGMENT
Mossop
AJ:
[1]
The
appellant was convicted on six counts, one of which was a count of
rape. The other counts included, inter alia, two counts of
attempted
murder and the unlawful possession of a firearm and ammunition. On
the count of rape, he was sentenced to life imprisonment.
After his
conviction, the appellant applied for leave to appeal against his
convictions and sentences from the court a quo, which
application was
unsuccessful in respect of all of the convictions and sentences. The
appellant took no further steps to have his
convictions and sentences
considered by another court. Nonetheless, by virtue of the imposition
of the sentence of life imprisonment
on the rape count, he has an
automatic right of appeal in terms of the provisions of
s 309(1)
(a)
of the
Criminal Procedure Act 51 of 1977
. This appeal accordingly
only deals with the appellant’s conviction and sentence on the
count of rape.
[2]
The
complainant on the count of rape was a young lady who resided at the
Ncanagazi area in this province. She knew the appellant
as someone
who lived in the general area where she resided but according to her
she had never spoken to him. On the afternoon of
15 February 2005,
she was at her homestead when she was informed by her younger brother
that the appellant was outside calling
for her. The complainant lived
with her grandmother, who gave her permission to leave the homestead
to speak to the appellant.
At the time, the complainant was 17 years
old. The complainant indicated that the appellant had previously
tried to court her and
had proposed his love to her. She, however,
also testified that previously the appellant had previously uttered
nasty words about
herself, which did not endear him to her.
[3]
When
she went to the appellant to find out what he wanted, he stated that
they should go up a nearby mountain on their own, an invitation
which
she forthwith declined. In response, the appellant drew a firearm
which he pointed at her forehead and indicated that they
were going
to go up the mountain. When he turned the firearm away from her
forehead, he discharged a shot from the firearm into
the ground next
to her. She was then herded up the mountain by the appellant. When
they reached the top of the mountain, the appellant
instructed her to
sit down on the ground but she refused to do so. She was then pushed
to the ground by him and, while seated,
the appellant ordered her to
remove her panties. The complainant refused to accede to the
appellant’s demand and the appellant
then forcibly ripped the
panties from her body. He then lay on top of her and forced his
tongue into her mouth. She closed her
eyes and cried whilst this was
occurring. The appellant lowered his trousers, and then inserted his
penis into her vagina and made
some movements. Having ejaculated, the
appellant got off the complainant and sat beside her. After an
interval, he got back on
top of her and had intercourse with her for
a second time, all while still holding the firearm in his hand. He
again ejaculated.
He then got off the complainant and again sat next
to her. Finally, he got back on top of her again and inserted his
penis into
her vagina and had intercourse with her for a third and
final time and again ejaculated.
[4]
The
complainant thereafter got to her feet and noticed that blood was
running down her legs. She explained that she was in a great
deal of
pain which was emanating from her private parts. She realized that
she was bleeding from her vagina and that it was this
blood that was
running down her legs. The appellant instructed her that she should
not tell anybody at home, and she then found
her way down the
mountain and went home.
[5]
Upon
arriving at her homestead, the complainant ignored what the appellant
had told her and immediately reported to her grandmother
that she had
been raped. She showed her grandmother her bloodstained panties. She
had worn them on the way down from the top of
the mountain by tying a
knot on the side of the panties where they had been ripped. Her
grandmother instructed her to bath and
then to go to the local
Inkosi, Mr Sithole. She did so but found that the Inkosi was not at
home. Nonetheless, she received assistance
in his absence and the
police were summoned. She was taken by the police to the Ekombe
Hospital at Nkandla the next day, where
she was examined by Dr
Manana.
[6]
Dr
Manana completed a J88 document as he examined the complainant, which
document was later received by the court a quo as an exhibit.
He
recorded thereon what he observed upon examining the complainant, and
indicated that there had been forced penetration of the
complainant’s
vagina. The doctor described the complainant’s labia majora as
being erythematous, meaning they were
reddened. They had become
reddened as a result of a layer of skin having been abraded
therefrom. The same was observed with the
complainant’s labia
minora. The doctor also observed fresh tears of the complainant’s
hymen at the 5 and 7 position
(the positions being identified by
reference to a clock face). Dr Manana indicated that the removal of
the outer layer of skin
from the complainant’s private parts
would have hurt the complainant, and that enduring this injury would
not have been a
pleasant experience for her.
[7]
The
appellant testified in his defence and confirmed, as the complainant
had stated, that he had previously proposed his love to
her. The
difference was that according to the appellant, the complainant had
accepted his proposal. He indicated that on the day
in question, he
had been telephoned by the complainant and asked to come to her
homestead. The appellant confirmed that on his
arrival at the
homestead, he had requested the complainant’s brother to call
her from inside the homestead. The complainant
exited the homestead
and came towards him along a path and indicated that she had some
news to tell him. According to the appellant
‘she then moved
away from that path up until she stood in a hill, we then stood
there’.
[8]
This
would seem to indicate that it was the complaint’s idea to
climb the mountain or, at least, that she was not averse to
going up
the mountain with him. The news that the complainant wished to impart
to the appellant was that two women, whose maiden
names were Magubane
and Ndlovu respectively, had come to her homestead and stated that
they had heard that she was in love with
the appellant. She was
allegedly taken to task over this because the appellant was
apparently poor and, as the appellant put it,
the complainant was
supposed to fall in love with his brother’s son and not the
appellant. The appellant stated that the
complainant then allegedly
revealed to him that she was, indeed, in love with him, kissed him
and they then had consensual intercourse.
[9]
The
appellant testified further that during the first episode of
consensual intercourse, he came to the conclusion, on grounds that
were never revealed by him, that the complainant was not a virgin.
The complainant disputed this when he informed her of his belief
and
said they should have further intercourse. This, so the appellant
explained, was so that the appellant could prove that she
was a
virgin. However, in having sex with her for a second time, the
appellant ‘experienced again that she was not a virgin’.
How the appellant determined this was also not revealed.
[10]
The
appellant disputed that there was a third episode of intercourse as
described by the complainant. He also disputed that she
bled from her
private parts. His explanation for why the person who he professed to
love, and who had apparently expressed her
reciprocal love for him a
short while before having consensual intercourse with him, would
immediately thereafter falsely allege
that he was a rapist, was that
the two women who had previously been to the appellant’s
homestead returned to her homestead
and instructed the complainant to
lay a charge against him.
[11]
By
virtue of the fact that there are only two persons who were present
on the top of the mountain on the day in question, it is
necessary
that their evidence should be thoroughly scrutinized and evaluated.
[12]
The
defence criticized the complainant’s evidence, arguing that it
was not consistent and that she had contradicted herself.
It was
drawn to the court a quo’s attention that there were two
aspects of her oral testimony that were not mentioned in
the
complainant’s statement made to the South African Police
Services (SAPS) and she was questioned on these omissions by
the
appellant’s legal representative whilst under
cross-examination. The first instance was that she testified that she
had been raped three times, whereas her statement only recorded two
episodes of rape having occurred. The second instance was that
she
testified that the appellant had fired his firearm into the ground
before compelling her to ascend the mountain, which was
also not
mentioned in her statement. It was argued by the appellant’s
legal representative that by virtue of these differences,
the
complainant had contradicted herself.
[13]
It
must be accepted that the two points of criticism are valid. This is
because the complainant’s statement was not handed
in as an
exhibit, as the regional magistrate indicated that a previous
consistent statement was not admissible. It was, of course,
not a
previous consistent statement: it was the opposite of this as the
defence relied upon it to demonstrate an inconsistency
in the
complainant’s version.
[1]
Despite the pressure to which she was subjected to under
cross-examination, the complainant was resolute in her version,
namely
that she was raped three times and that she told this to the
policeman who recorded her statement. She also insisted that she told
the policeman about the appellant discharging his firearm and was at
a loss to explain why this fact was not mentioned in her statement.
[14]
Comparing
the oral evidence of a witness against an earlier extra curial
written statement made by that witness is a legitimate
method of
cross-examination regularly employed by defence counsel in criminal
trials. Where a difference is perceived to exist
between the two
versions, however slight that difference may be, it is seized upon
and exploited to its maximum benefit.
[2]
[15]
Statements
taken from witnesses by the SAPS are notoriously lacking in detail
and are often inaccurate and incomplete and ‘not
taken with the
degree of care, accuracy and completeness which is desirable. .
.’.
[3]
They are not
recorded by the policeman involved in the case, with a view to the
potential evidence later being given by the witness
at trial. The
policeman does not possess the forensic skills of a prosecutor, and
he or she may not have the insight to know what
may or may not be
relevant at the later trial. The statement is primarily taken to
permit the prosecuting authority to consider
and determine whether
there is sufficient evidence to justify a prosecution. The statement
also alerts the prosecuting authority
to what evidence is available
and which witness will give that evidence if the matter proceeds to
trial. It is unrealistic to expect
that a witness will record in his
or her witness statement exactly what will be said in oral evidence
months or even years later.
The witness in all probability has no
knowledge of what should be in the statement, and responds to
questions posed by the policeman.
The witness may filter out aspects
of his or her version that are perceived by him or her as being
unimportant, but which later
at trial are revealed to be crucial. The
fact that such details do not appear in the statement do not mean
that they did not occur.
The witness is not expected to record every
fact in the minutest detail.
[16]
In
my view, ‘[t]here will have to be indications other than a mere
lack of detail in the witness's statement to conclude that
what the
witness said in court was unsatisfactory or untruthful’.
[4]
The court will in the final analysis consider the evidence as a whole
in order to determine in what respects the witness's evidence
may be
accepted and in what respects it should be rejected. The test is
whether the differences were material,
[5]
‘always bearing in mind that a witness's testimony in court
will almost without exception be more detailed than what the
witness
said in his written statement’.
[6]
Deviations which are not material will not discredit the witness.
[17]
The
court a quo was impressed with the complainant’s evidence and
described her as giving a very clear, precise explanation
of what
transpired on the day in question. It is difficult to criticize this
finding. Based on the discussion above it does not
strike me as being
improbable that the policeman recording the complainant’s
version may have misunderstood what she said
or inaccurately recorded
it for some other reason. The complainant was consistent in her
evidence that she did not consent to intercourse
with the appellant
on the mountain top. What is in dispute is not whether intercourse
occurred, or even how many times it occurred.
What is in issue is the
question of consent. The complainant’s evidence was that she
did not consent and her subsequent conduct
reinforced that evidence:
she immediately reported what happened to her grandmother and
reported the matter to the Inkosi.
[18]
There
was also collateral evidence which supported the complainant’s
version. Her evidence was that she was a virgin, notwithstanding
what
the appellant had to say about this matter. As evidence of this, she
testified that she had actually been a participant in
virginity
testing at the Inkosi’s homestead. This could not be denied by
the appellant, nor was it, and it accordingly went
unchallenged. The
complainant remained adamant that she was a virgin and resolutely
rebuffed suggestions to the contrary. There
was, furthermore, medical
evidence on this point. Dr Manana testified that he saw fresh tears
in her hymen when he examined the
complainant. The fact that there
was still a hymen in place to be torn meant there could not be any
truth in the appellant’s
allegations that he had determined
that she was no longer a virgin.
[19]
The
complainant gave a good account of herself in the witness box. Her
narrative had the ring of truth to it, and was recounted
in a logical
sequence that explained exactly what happened.
[20]
Whilst
the complainant fared well in the witness box, the same cannot be
said for the appellant. The first difficulty for him was
that in his
plea explanation delivered by his legal representative, the following
was stated:
‘
Your
worship, specifically with regards to count 6 the accused instructs
me that the complainant in that matter was his girlfriend
at the
time, however he did not have any sexual intercourse with her on the
alleged date.’
Count
6 in the court a quo was the count of rape.
[21]
There
were two falsehoods in that plea explanation: firstly, the
complainant was not the appellant’s girlfriend and secondly,
the appellant did have intercourse with the complainant on the day in
question. The latter fact he later freely admitted and gave
great
detail about his experience in having intercourse with the
complainant and his conclusion that she was not a virgin. As was
pithily remarked by the learned regional magistrate, he and his legal
representative appear simply to have forgotten what had initially
been pleaded. He clearly and unequivocally changed his version.
[22]
There
were, in addition, a number of imponderables in the appellant’s
version. The alleged involvement of the two women, Mrs
Magubane and
Mrs Ndlovu, needs some scrutiny. They play two roles: they allegedly
chastised the complainant for falling in love
with the appellant, and
they later pressurized her into laying a charge against the
appellant. The most obvious question is how
could they have known of
the complainant’s affections for the appellant? The appellant
himself did not know this and mentioned
that he was informed of the
complainant’s love for him on the top of the mountain. As
regards the laying of the charge, how
could the two women have come
to know of the events that had transpired on the top of the mountain?
On the complainant’s
unchallenged evidence, she returned home,
bathed, and went to the Inkosi’s home. There simply was no
opportunity for the
two women to become involved in the narrative and
insist on the complainant laying charges against the appellant. But
perhaps the
most baffling aspect of this part of the appellant’s
version is how he came to know of the alleged involvement of the two
women in the laying of the charge. It was never suggested that the
complainant told him of this, so how did he come to receive
this
information? This was never revealed.
[23]
As
regards the events that unfolded on top of the mountain, the
appellant’s version again raises more questions than answers.
How did he conclude that the complainant was not a virgin? This was
also never stated. How could having intercourse with the complainant
a second time reveal that she was, indeed, a virgin? The proposition
simply has to be stated to be rejected. How could the appellant
not
have noticed the injuries sustained by the complainant? They were,
after all, capable of being observed the next day by Dr
Manana.
[24]
The
State’s case against the appellant was credible and reliable
and the regional magistrate found that the appellant’s
exculpatory version, on the totality of the evidence, was not
reasonably possibly true. In my view, he was correct in so finding
and he was correct in accepting
the
evidence of the complainant, supported by the objective facts
discovered by Dr Manana when he examined the complainant. The
appeal
against conviction must therefore fail.
[25]
On
the question of an appropriate sentence, it is so that punishment is
pre-eminently a matter for the discretion of the trial court
and a
court of appeal should be careful not to erode that
discretion. Interference is only warranted if it is convincingly
shown that the discretion has not been judicially and properly
exercised by the trial court. The test is whether the sentence
is vitiated by irregularity, material misdirection or is disturbingly
inappropriate.
[7]
[26]
On
any version, the complainant in this matter was raped more than once:
the appellant on his own version admitted to having had
intercourse
with her twice. This brings the provisions of
section
51(1)
of the
Criminal Law Amendment Act 105 of 1997
into
play.
[8]
Unless
the regional magistrate was satisfied that substantial and compelling
circumstances existed,
[9]
which
justified the imposition of a lesser sentence, he was statutorily
obliged to impose the prescribed minimum sentence of imprisonment
for
life for the appellant’s conviction of rape.
[27]
The
appellant’s personal circumstances were placed before the
regional magistrate by his legal representative in mitigation
of
sentence. He was gainfully employed, was 38 years of age and had
eight children. He supported his parents who are still alive,
and he
suffered from a kidney complaint that left him walking with a crutch.
He was a first offender and had no pending cases.
When he was
sentenced, he had already been in custody for three years.
[28]
In
addressing the question of sentence, the regional magistrate took
into account the traditional considerations of the appellant’s
personal circumstances, the seriousness of the offence as well as the
interests of the broader community. He found that, in considering
all
the offences for which the appellant was convicted, the appellant was
an extremely violent person. Moreover, the regional magistrate
found
that the appellant was blasé as regards those offences and
appeared to demonstrate no remorse for his actions. The
court
accordingly found that there were no substantial and compelling
circumstances which justified the imposition of a sentence
other than
the prescribed sentence of life imprisonment.
[29]
In
Malgas
[10]
the
court stated that:
‘
B.
Courts
are required to approach the imposition of sentence conscious that
the Legislature has ordained life imprisonment (or the
particular
prescribed period of imprisonment) as the sentence that
should
ordinarily
and
in the absence of weighty justification be imposed for the listed
crimes in the specified circumstances.
C. Unless
there are, and can be seen to be, truly convincing reasons for a
different response, the
crimes in question are therefore required to
elicit a severe, standardised and consistent response from the
courts.’
[30]
The
serious and horrendous nature of rape and violence against women in
our society simply cannot be over-emphasised. In
S
v Chapman
[11]
it was acknowledged that:
‘
.
. . 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.’
[31]
The
rights to dignity, to the integrity of every person, and to privacy
in this country are basic to the ethos of our Constitution.
[12]
Women in this country are entitled to the protection that these
rights offer. It is insufficient that lip service is merely paid
to
the fact that women enjoy the same rights as men and are the equal of
men in our country. There must be obvious steps taken
when the
integrity of a woman is violated and the message must resonate that
such conduct will not be tolerated. One way of doing
this is to
ensure that appropriate sentences are imposed in cases where the
bodily integrity of a woman has been violated. The
courts are under a
duty to send a clear message to the appellant, to other potential
rapists and to the community that all
are equal in this country
and that all enjoy the same rights, which were fought for in the past
for all our citizens at an enormous
cost, and that those who
disrespect the rights of others will be dealt with most severely by
the courts.
[32]
It
is beyond question that the appellant showed no respect for the
complainant’s rights. She was forced up the mountain
against her will and was injured in the act of the rape, which was
carried out at gunpoint. The fact of the injury was callously
denied
by the appellant. Humiliatingly, the complainant was made to walk
down the mountain with blood from her private parts running
down her
legs. That made no impression at all upon the appellant. The regional
magistrate, correctly in my view, emphasised the
terrible torment
which the complainant must have experienced, and the lack of remorse
shown by the appellant.
[33]
I
am unpersuaded that the regional magistrate did not judicially
exercise his discretion when imposing sentence on the appellant
on
the count of rape. I can discern no irregularity or material
misdirection nor does the sentence appear to me to be disturbingly
inappropriate. There are no compelling circumstances that make the
imposition of a lesser sentence than life imprisonment possible.
To
do so, in the circumstances of this case, would simply serve to
attenuate the horror of the complainant’s experience and
the
baseness of the act of rape.
[34]
I
would accordingly propose that the appeal against conviction and
sentence be dismissed.
Mossop
AJ
I
agree and it is so ordered.
Madondo
J
Deputy Judge President
APPEARANCES
Counsel
for the appellant: A.
Hulley
Counsel for the
respondent: T. Ramkilawon
Date of
Hearing: 21
May 2021
Date of
Judgment: 21
May 2021
[1]
Even
if the statement had amounted to a previous consistent statement, it
was still capable of being received as an exhibit in
terms of the
provisions of
section 58
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
.
[2]
S
v Govender and others
2006
(1) SACR 322
(E)
at 326c-j.
[3]
S
v Xaba
1983
(3) SA 717
(A) at 730B-C.
[4]
S
v Mahlangu and another
[
2012]
ZAGPJHC 114.
[5]
S
v Bruiners en 'n ander
1998 (2) SACR 432
(SE) at 437E-F;
S
v Mafaladiso en andere
2003
(1) SACR 583
(SCA)
at 593E.
[6]
S
v Mahlangu and another supra
.
[7]
S
v Rabie
1975
(4) SA 855
(A) at 857D-E;
S
v Malgas
2001 (2) SA 1222
(SCA) paras 12-13.
[8]
The section prescribes a minimum sentence of life imprisonment for
an offence defined in
part 1
of schedule 2 to the
Criminal Law
Amendment Act. Rape
, when committed in circumstances where the
victim was raped more than once whether by the accused or by any
co-perpetrator or
accomplice, falls into this schedule.
[9]
Section
51(3)
(a)
of the
Criminal Law Amendment Act.
[10
]
S
v Malgas supra
at
1235F-H.
[11]
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) at 5A-B.
[12]
See
sections 10, 12 and 14 of the Constitution.