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[2021] ZAKZPHC 59
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Hadebe and Others v S (AR545/2018) [2021] ZAKZPHC 59 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No:AR545/2018
In
the matter between:
NKOSINATHI
VUKANI HADEBE 1
ST
APPELLANT
STHEMBISO
STHE
NDLOVU 2
ND
APPELLANT
NKANYISO
MVANYELI
SHEZI 3
RD
APPELLANT
and
THE
STATE RESPONDENT
ORDER
Appeal
from:
Regional Court , Pietermaritzburg (Mr.
Jordaan sitting as a court of first instance)
1. The appeal against
both conviction and sentence on count 1 is dismissed.
2. The appeal against
both conviction and sentence on count 2 is dismissed.
JUDGMENT
Mngadi
J (Laing AJ concurring)
[1] The
appellants with leave granted on petition appeal against conviction
and sentence on the count of rape.
In addition, also by leave granted
on petition, the second appellant appeals against conviction and
sentence on the charge of assault
with intent to do grievous bodily
harm (count 2).
[2] The
appellants were charged before the regional court with one (1) count
of rape in contravention of section
3 of the Sexual Offences Act and
Related Matters Act No: 32 of 2007 (count 1). The charge was read
with the provisions of section
51 and schedule 2 of the
Criminal Law
Amendment Act No; 105 of 1997
in that the victim was raped more than
once by the accused or by any co-perpetrator or accomplice. In count
2 it was alleged that
on the same date as in count 1, the second
appellant stabbed Dumisani Dlamini with a knife causing him certain
injuries with intent
to do grievous bodily harm. One legal
representative represented the first and third appellants and the
second appellant had his
own legal representative. When the charges
were put to the appellants, they pleaded not guilty and elected not
to disclose the
basis of defence. The learned regional magistrate
after hearing evidence convicted the appellants as charged. The court
sentenced
each appellant to ten (10) years imprisonment on count 1.
The court sentenced the second appellant on count 2 to three (3)
years
imprisonment.
[3] The
State to prove the case against the appellant called eight witnesses.
The appellants after the application
for discharge in terms of
section 17
4
of the
Criminal Procedure Act 51 of 1977
was refused
closed the defense case without testifying and without leading any
evidence.
[4] The
incident took place on 9 October 2010. The case against the appellant
commenced on 14 March 2014. On 30
April 2014, the regional magistrate
refused the application for leave to appeal. On 13 February 2019, the
appellants on petition
were granted leave to appeal. On two previous
occasions this court ordered the reconstruction of the record of the
proceedings.
The reconstruction was partly done. The reconstruction
of the judgment on conviction is very poor. It does not contain any
proper
analysis and evaluation of the evidence. The regional
magistrate deposed to an affidavit to the effect that no further and
better
reconstruction could be done. The appellants did not testify
in the trial. In my view, the view of the trial court relating to the
credibility of the witnesses cannot be given much weight in the
absence of proper reasons. The duty falls on the appeal court to
closely scrutinize the evidence on record, make its own analysis and
evaluation and form its own conclusions.
[5] The
complainant testified that she was 37 years old. She knew the first
and third appellants. She stayed in
the same area with them. She did
not know the second appellant prior to the incident. She was on
friendly terms with first and
third appellants although they were
much younger than she was.
[6] The
complainant testified that at about 8PM, she left Y2K tavern walking
with Dumisani Dlamini. Dumisani was
her neighbor and she walked with
him because it was late. She was proceeding to her home. She
testified that not far from the tavern
they met with the three
appellants. The appellants were proceeding to the tavern. They
greeted each other and proceeded in opposite
directions. The
appellants turned around and followed her and Dumisani. They caught
up with them. They asked Dumisani whether he
was in her company. He
answered in the affirmative. The appellants said from now they were
going with her. The third and second
appellant said that. She and
Dumisani laughed because they thought the appellants were joking.
[7] She
testified that the second and third appellants grabbed her. They
dragged her up along the road. Dumisani
tried to intervene. The
second appellant took out the knife. He stabbed Dumisani in the arm.
Dumisani ran away. The appellants
took the complainant to the third
appellant's home. She was resisting and screaming but nobody came to
her assistance. At the gate,
she broke loose and she ran to the main
house. She found the third appellant's mother sitting on the bed. She
told her that the
appellants wanted to rape her. She asked the third
appellant's mother to accompany her to her home but she refused. She
hid herself
under the bed.
[8] She
testified that she heard the appellants entering the house. They
enquired from the third appellant's mother
of the complainant. They
assured her that they did not intend to do anything to her. The third
appellant's mother showed them the
complainant under the bed. The
appellants dragged the complainant out. The third appellant's mother
scolded the appellants and
she told them to leave alone the
complainant. They released her and they pretended to be leaving.
[9] The
complainant testified that she was crying. She pleaded with the third
appellant's mother to accompany her
home but she refused and told her
to spend the night with her. She asked her to lock the door to keep
the appellants out. The third
appellant's mother agreed and they
slept. In less than an hour the appellants returned. They got into
the house. They grabbed her.
She cried and she requested the third
appellant's mother to intervene. She did not intervene and she told
the complainant that
she was less concerned about her. The appellants
dragged her out into the outside building of the third appellant.
They pushed
her into the room and on to the bed. The second appellant
slapped her and he put a knife on her neck. He undressed her of the
pants
and panty. He forced her thighs open and he raped her by
inserting his penis into her vagina. The second appellant finished.
The
third appellant came and he also raped here. He forced her to
bend over and he inserted his penis into her vagina.
[10]
The
complainant testified that when the second and third appellants were
raping her, the first appellant was present he was seated
on another
bed and he was watching. He also raped her. While the appellants were
busy chatting, she noticed that the door was not
properly closed. She
ran out and she went to the third appellant's mother again. She was
naked from the waist. She told her that
the appellants had raped her.
The third appellant's mother called the third appellant, she sked the
third appellant why they raped
the complainant. The third appellant
laughed. His mother told him to bring the complainants clothes. The
third appellant brought
the clothes, the complainant dressed up, and
she went away.
[11] She
passed by Dumisani's home. She found his aunt and her daughter. She
told them what happened and that the
appellants raped her. She was
told that Dumisani had not returned. The matter was reported to the
police on Tuesday. It was on
Friday evening when she left the tavern
with Dumisani. She also reported the matter to her father. The police
referred her for
medical examination and the doctor examined her.
[12] Dumisani's
aunt and her daughter as well as Dumisani were called as state
witnesses. They confirmed that the
complainant in the morning arrived
at their home, and she told them that the appellants raped her.
Dumisani too confirmed that
he was with the complainant. He testified
that they met with the appellants. He told the appellants not to take
the complainant
by force. The second appellant stabbed him with a
knife on his arm and he ran away.
[13] The
first and third appellants put to the complainant that the first and
the third appellants bought beers.
They went to the home of the third
appellant and that they found her at the home of the third appellant
and they all consumed beers.
They all drank together. She left in the
early hours on Sunday. The first appellant left the complainant with
second and third
appellants. The complainant denied what was put to
her. She admitted that during the incident she lost her cellphone.
The complainant
confirmed what was in a police statement that the
first appellant also raped her.
[14] The
complainant stated that whilst third and second appellant held her by
her arms, the first appellant held
from the back. It was put to the
complainant on behalf of the second appellant that he met complainant
at Y2K tavern and consumed
alcohol with her and she agreed to go home
with him to the third appellant's home who is his cousin. She drank
with him and the
first and third appellant arrived. Third appellant
said he wanted to sleep and he did not want any disturbance. The
second appellant
asked the complainant to leave and she left. She
returned after 45 minutes and she accused the second and third
appellants for
stealing her cellphone and threatened to punish them.
[15] The
complainant testified that she had not drunk any alcohol on the
evening in question. In my view, the evidence
of her spending
sometime in the tavern and that of Dumisani suggested that she had
consumed some liquor. However, it is not the
defense version that she
was so drunk that she would not know what happened. Therefore, the
issue of whether she consumed some
alcohol or not is not material.
The complainant did not immediately report the matter to the police.
However, there is ample evidence
that she reported the rape at the
earliest available opportunity to the mother of the third appellant
and to Dumisani's family.
The caution in an approach to the evidence
of a single witness requires that it be clear and satisfactory in all
material respects
(R v Mokoena
1956 (3) SA 81
(A) at 85-86).
[16] In
my view, the evidence of the complainant is logical and
straightforward. It is satisfactory in all material
reports. The
appellant's suggestion that the complainant went voluntarily with
them to the home of the third appellant and she
shared drinks with
them until she left without anything untoward happening is not
supported by any other evidence.
[17] The
complainants in her evidence is clear and detailed regarding how she
was taken to the home of the third
appellant. She is also clear and
detailed in her evidence relating to what happened at the home of the
third appellant. It is significant
that the complainant testified
that the third appellant's mother was at the home of the third
appellant and she saw what happened
to her. It is understandable that
the state would not easily succeed to call the third appellant's
mother as a state witness. However,
second and third appellants
failure to call the third appellant's mother as a witness justify the
inference that she would not
have supported their version.
[18] The
evidence of Dumisani Dlamini although he appeared hesitant and
reluctant supported the version of the
complainant that the
appellants took her away from the company of Dlamini on her way to
her home. The appellants' election not
to testify and not to call any
witness left the trial court with one version. It is trite that the
accused has no onus to prove
his innocence or persuade the court that
his version is correct, if his version is reasonably possibly true,
he is entitled to
an acquittal. The fact that the accused has elected
to give no evidence is factor leaning in favour of the acceptance of
the evidence
of the single witness (
Mokena
at 86G).
[19] What
is put to the state witnesses as the version of an accused is
intended to give a witness an opportunity
to comment on it. It is no
substitute for placing by means of evidence the accused version
before court. Where an accused does
not testify and he does not place
any evidence constituting his version before court, the court is left
with one version presented
by the state. In addition, the medical
examination found some injuries in the vaginal area of the
complainant consistent with forceful
sexual penetration.
[20] The
accused put it to the complainant that she was falsely accusing them
of the rape because she suspected
them of stealing her cellphone. The
detailed version of the complainant of what took place in the third
appellant's home in the
presence of the third appellant's mother and
her soon after the incident reporting that she had been raped makes
it unlikely that
nothing happened to her and she was making up a
story. In fact, she delayed making a report to the police, which is
not indicative
of reporting the rape as a revenge for losing the
cellphone. There are indications, in my view, that the suggested
reason is not
in accord with the probabilities.
[21]
On
appeal against findings of fact, in the absence of a material
misdirection by the trial court, its findings of fact are presumed
to
be correct. They will only be disregarded, if the recorded evidence
shows that the factual findings are clearly wrong. See S
v
Hadebe and others
1998 (1) SACR 422
(SCA) at
4266;
R v Dhlumayo and another
1948
(2) SA 677
A. The evidence given in the court below, evaluating it in
the context of the entire body of evidence, and giving appropriate
weight
to it in the light of all the evidence and the inherent
probabilities and improbabilities of the case, and exercising the
necessary
caution, I am of the view that the evidence proves the
guilt of all the appellants as charged beyond reasonable doubt.
[22]
The
personal circumstances of the first appellant were the following. He
was 32 years old. He was not married. He had a son aged
four (4)
years. He had grade 10 level of education. He was employed as a grass
cutter earning R300 per week. The second appellant
was 24 years old.
He had grade 12 level of education. He worked as a taxi conductor
earning R600.00 per week. He was not married
and he had no children.
The third appellant was 24 years old. He had standard 7 level of
education. He worked as a general labourer
for a construction company
earning R4000.00 per month. He was not married and he had a son aged
11 years.
[23]
The
trial court regarded all the three appellants as first offenders. The
first appellant had In fact two previous convictions,
one of theft
and one of assault. The third appellant had no previous convictions.
All the three appellants had been in custody
awaiting trial for three
years and a half years.
[24] The
appellants were convicted of very serious crimes of rape. The
complainant was 35 years. She had a small
build weighting 49 kg with
a height of 140 cm. The doctor found on gynecological examination
that she sustained multiple injuries
in her vaginal area.. She was
dragged screaming to the home of the third appellant. Her struggles
and screams were ignored she
escaped and she went to hide under the
bed in the third appellants' mothers room. She was dragged out under
the bed and she was
taken to the room of the third appellant. The
appellants in turn each of them raped her over the night. She managed
to escape and
she ran naked to the third appellant's mother's room.
[25] Rape
is a scourge in the society. It is directed to the vulnerable members
of the society namely; women and
children. It brutalizes the victim
in her dignity, body integrity in her emotional and psychological
profile. It leaves the victim
with a long lasting trauma. The victims
found it very repulsive. Courts are expected through sentences they
impose to reflect society's
resentment and distaste for the type of
conduct (S
v McMillan
2003 (1) SACR 27
(SCA).
[26] The
purposes of punishment are prevention, deterrence, rehabilitation and
retribution. It is accepted that
sentences in rape cases must reflect
the element of deterrence. In
S v Zinn
1969 (2) SA 537(A)
at
540G the court held that in order to determine a fair and balanced
sentence a triad consisting of the crime, the offender and
the
interests of society must be considered.
[27] The
regional magistrate noted that the appellants were convicted of a
crime for which the legislature has
prescribed a minimum sentence of
life imprisonment if no substantial and compelling circumstances are
found to exist for a court
to impose a sentence less than the
prescribed minimum sentence. He found that the mitigating factors
cumulatively constituted substantial
and compelling circumstances
resulting in the court imposing a sentence less than the prescribed
minimum sentence.
[28] Imposition
of sentence is primarily the function of the trial court. The appeal
court can only interfere on
limited grounds ,namely; if the sentence
is disturbingly inappropriate or it is vitiated by a material
misdirection or it is to
severe that it induces a sense of shock. See
S v Ma/gas
2001(1) SACR 469 (SCA) at 478e-g.
[29] Accepting
that the appellants are young-men deserving a sentence with a view of
rehabilitating them. They
spent a long period in custody awaiting
trial. The period they spent in custody is not taken into account
into consideration for
purposes of placing them on parole. However, I
am of the view that these weighty factors were taken into cons id er
at ion by the
regional magistrate in the determination of sentences
imposed on the appellants. I am of the view that there are no grounds
to
interfere with sentence.
[30] I
propose the following order:
1. The appeal against
both conviction and sentence on count 1 is dismissed.
2. The appeal against
both conviction and sentence on count 2 is dismissed.
Mngadi
J
I
agree, it is so ordered.
Laing
AJ
APPEARANCES
Case
Number: AR
545/18
For
the Appellant: Bongani
Mbatha
Instructed
by: Legal
Aid South Africa
PIETERMARITZBURG
For
the respondent: Z
M Sokhela
Instructed
by: Deputy
Director Public Prosecutions
PIETERMARITZBURG
Heard
on: 27
August 2021
Judgement
delivered on: 03
September 2021