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[2019] ZAGPPHC 223
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Kekana v S (A348/2019) [2019] ZAGPPHC 223 (6 May 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO:
A348/2019
6/5/2019
In the matter between:
STEPHANUS
MATSOBANE
KEKANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOKOSE
J
[1]
The appellant was charged in the Regional Court of Pretoria with
three counts of rape in
contravention of Section 3 of Act 32 of 2007
read with the provisions of Section 51 of Aa 105 of 1997, one count
of kidnapping,
one count of assault and one count of assault through
threats. The appellant pleaded not guilty but was found guilty of
rape and
one count of kidnapping. He was found not guilty of assault
and assault through threats.
[2]
The appellant was sentenced to life
imprisonment on all the rape counts and 4 years' imprisonment for
kidnapping which sentence
was ordered to run concurrently with the
sentence in respect of rape. Furthermore, the appellant was declared
unfit to possess
a firearm.
[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 following grounds:
(i)
that
the court did not treat the complainant's evidence with the necessary
caution of a single witness;
(ii)
that
the court erred in that there were contradictions in the
complainant's
evidence
and
despite the improbabilities in the evidence
weighing
heavily
against
the State, the court found for the
State; and
(iii)
that
the court erred in finding that the cumulative effect of mitigating
factors does not constitute substantive and compelling
circumstances.
[4]
The charges arise from an incident on 19 February 2015 when the
appellant was
arrested
for unlawfully and intentionally
committing an act of sexual penetration with R[….] N[….]
M[….] who was sixteen
(16) years old at the time of the
incident. The complainant's case is that she had moved to Mamelodi a
month before the incident
and was
in a relationship with the
state witness, T[….] L[….] B[….] at the time.
[5]
The complainant testified that she and her boyfriend went to a
secluded spot where
they sat and kissed. The appellant, who was
unknown to the appellant, suddenly approached them, threw a brick at
the complainant
and threatened them with a knife. T[….] B[….]
then ran away, whereupon the appellant dragged the complainant into
the bushes. She tried to scream but was throttled and bitten on the
cheek. The complainant testified further that the appellant
raped her
three times and
kept
her for approximately seven (7) hours in
the bushes. The appellant then told her that she must meet with him
the next day at the
same place so that he could give her R200,00.
[6]
The next day, the complainant, her mother and the police went looking
for the appellant. They went to the site of the rape being the place
the appellant had suggested they should meet the next day.
They could
not find him at the appointed place. As the complainant walked back
with her mother, she saw the appellant and pointed
him out to her. He
was then accosted by members of the community who then handed him
over to the police.
[7]
The appellant's case is that he was in a relationship with the
complainant
for almost three months. He also testified that the
complainant had told him that she was twenty five (25) years
old. He testified
further that he had seen the complainant in the
company of a young man whom she accused of taking her phone. She
subsequently told
him that she alone would collect the phone from him
on another occasion.
[8]
The appellant testified further that he had wanted to have sexual
intercourse
with the complainant at his house as his wife and child
were not present but that the complainant had insisted that his home
was
too far. It is for this reason that they had consensual
intercourse in the park.
[9]
In cross-examination and in response to questions about their
relationship,
the appellant suggested to the court that after he had
met with the complainant, he would set an appointment for the next
meeting.
He explained further that they never contacted each other by
cell phone. He averred further that if he could not meet her as
agreed,
he would inform her by going to the meeting place to inform
her personally that they could not meet.
[10]
The appellant did not call any witnesses.
[11]
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 guilt by
providing an explanation. If the appellant's version
is only
reasonably possibly true he would be entitled to be acquitted. The
court
a quo
referred to the
matter of Shackle v S
[1]
where the court said the
following:
“
The
court does not have to be convinced that every detail of an accused's
version is
true,
if the accused’s
version is188Sonably 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.”
[12] Heher
AJA in the matter of
S v Chabalala
2003 (1)
SACR
134
(SCA)
at page 140 A B said:
“
The
correct approach is to weigh up all the elements which points towards
the guilt of the accused against all those which are 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 tht1 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.”
[13] The
appellant avers that the complainant was a single witness. In
casu,
the ,evidence of
T[….] B[…] that he witnessed a part of the assault on
the complainant and the medical evidence corroborate
the
complainant's version. Guidelines were enunciated in the matter of S
v Sauls
[2]
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....It has been
said
more than once that the
exercise
of caution must not be allowed to displace the
exercise of common sense.”
[14]
The appellant testified in his own defence and called no witnesses.
He submitted that the court
a
quo
had no reason to reject his
version which is reasonably possibly true and is accordingly entitled
to an acquittal.
[15]
There were no material contradictions in
the evidence of the State. The evidence of the State witnesses
corroborated that of the
complainant. In consideration of all the
evidence, it is evident that the appellant's submissions were clearly
false. In view of
the evidence presented, this court is of the view
that it will not interfere with the credibility findings of the court
a quo and
accordingly dismisses the appeal against the conviction.
[16]
The appellant appealed against the
sentence imposed by the court a quo in the grounds that the court
erred in finding that the cumulative
effect of mitigating factors
does not constitute substantive and compelling circumstances.
Furthermore, the
sentence is
shockingly harsh and induces a sense
of shock.
[17]
It
is trite law
that sentence is pre-eminently at the
discretion of the trial court. The court of
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.
[18]
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 Matyityi
2011 (1) SACR 40
(SCA) at 53
E-F.
[19]
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.
The overall guiding principle is that the sentence must
befit the
crime.
[20] In
mitigation of sentence, the court a
quo
considered
inter
alia,
the following circumstances of
the appellant:
(i)
that he
was
a
first offender and had two minor
children;
(ii)
that he was gainfully employed and
supported his family;
(ii)
that he was educated up to Grade 10;
(iv)
that the appellant had spent over 3 years in custody awaiting the
finalisation of the trial.
[21] In
aggravation
of sentence, the following circumstances were
considered:
(i)
the seriousness of the offence committed;
(ii) the
effect of the rape on the complainant resulting in her not feeling
comfortable even
among her friends;
[22]
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.
[23] Given
the seriousness of the crime as well as the mitigating and
aggravating 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 provisions 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] In
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
THOBANE AJ
Acting Judge of the High Court
of South Africa
Gauteng, Division,
Pretoria
For
the Appellant:
Mr
MB Kgagara instructed by
Pretoria
Justice Centre
Pretoria
For the State:
Adv
CP Harmzen instructed by
The Office of the Director of
Public Prosecutions
Pretoria
Date
of hearing:
22 May 2019
Date
of judgement:
6 May 2019
[1]
2001(1) SACR 279 (SCA) at 288 E - F
[2]
1981 (3) SA
172
(A)