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[2019] ZAKZPHC 69
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Mjoli v S (AR391/16) [2019] ZAKZPHC 69 (1 November 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 391/16
In the matter between:
ZABAPHI
MJOLI
Appellant
and
THE
STATE
Respondent
JUDGMENT
Date
delivered: 1 November 2019
Masipa J (Potgieter AJ
concurring):
[1]
The appellant in this matter was charged with one count of rape read
with the provisions
of s 51 and Schedule 2 of the Criminal Law
Amendment Act 105 of 1997 (‘the 1997 Act’) and one count
of kidnapping.
He pleaded not guilty to both charges and was
convicted on the count of rape by the Regional Court Maluti on 29
October 2014.
[2]
At the time of the commission of the rape, the complainant was 15
years old and according
to the charge was raped more than once. The
appellant was sentenced on the same day to life imprisonment.
Pursuant
to s 10 of the Judicial Matters Amendment Act 42 of 2013, the
appellant enjoys an automatic right to appeal against his
conviction
and sentence.
[2]
The evidence of the complainant was that on 21 November 2012, in the
evening, she
was at a place called Hostel visiting her friend T[….]
who was in the company of her other two friends R[….] and
D[….]. Whilst there, she was called by a young man by the name
of P[….] who asked to talk to her outside. They went
outside
and P[….] said they should go. They continued walking until
they reached the appellant. The appellant was known
to her for a
period of about five years since he is the uncle of her other friend
B[….]. P[….] informed the complainant
that it was the
appellant who was calling her, and he then left.
[3]
When the complainant asked the appellant what he wanted to say to
her, he responded
by saying “I have come to fetch you, let us
go”. He forced her to go with him to his home by grabbing her
after she
refused to go with him. He also told her to think of her
life. She observed that he had an iron rod in his possession. When
they
arrived at his home, they entered the house whereupon he
instructed her to sit down. She had seen B[....]but could not talk to
her as she was far away and she was afraid of the appellant. She did
not know if B[....]had seen her. The appellant then proposed
love to
her and she informed him that she did not love him and that he was
older than she was. She disputed that she had prior
to that day
accepted the appellant’s proposal and was in a love
relationship with him.
[4]
The complainant told the appellant that she wanted to go home. The
appellant again
told her to think of her life. When the appellant
said this, she believed that he was going to kill her. He went to
lock the door
and when the complainant tried to pull the door, he
fought her off and pushed her on top of the bed. He instructed her to
undress
and when she did not comply he threatened her with the iron
rod and showed her a knife which was under the pillow. He told her to
consent to having sexual intercourse with him and mentioned to her
that he was aware that she was a virgin. The appellant said
that he
would not cause her pain. She did not comply with his instruction to
undress and he undressed her then undressed himself.
[5]
Having undressed her, the appellant inserted his penis into her
vagina and made up
and down movements until he ejaculated. The
appellant thereafter slept. Sometime during the night, the appellant
woke up and raped
her again in a similar manner. The complainant
denied that the appellant had non-penetrative sex with her. The
appellant went back
to sleep and around 06h00 in the morning told the
complainant that she must go. The complainant went to the Hostel and
reported
the incident to her three friends who advised her to report
the incident to the police. She sought the assistance of her
neighbour
Thabang who then accompanied her to the police station
where she reported the matter and she was then taken to the hospital
by
the police. At the hospital, the doctor examined her private parts
and took her underwear. She was provided with ARV treatment amongst
others.
[6]
The complainant conceded that the appellant had gone to look for her
at her home prior
to him going to the Hostel. Although she could not
say whether the appellant was aware of her age, she said that she
used to go
and play at his home with B[....]who was 14 years of age
at the time. The complainant used to attend traditional
virginity
testing and stopped after the rape.
[7]
The complainant’s evidence was corroborated by R[….]
L[….] who
stated that they were at Hostel and confirmed the
sequence of events as testified to by the complainant. In respect of
the rape
incident, she was one of the first reports to whom the
complainant reported the rape. Her evidence in respect of what was
reported
to her and her other two friends was consistent with the
complainant’s evidence. She confirmed that the complainant
underwent
traditional virginity testing which she stopped attending
after the incident. Her evidence was also that she was unaware of any
love relationship between the complainant and the appellant.
[8]
Doctor Tshuku examined the complainant and in her gynecological
examination recorded
a tear at 6 o’clock, a bruising in the
posterior
fourchette
,
bruising around the entrance of the vagina and fresh tears on the
hymen. Based on the injury, her conclusion corroborated that
of the
complainant that there was vaginal penetration. According to her
clinical findings, the complainant was a virgin before
she was raped.
[9]
The appellant’s evidence is that he had a secret love affair
with the complainant.
He confirmed that he went to Hostel where he
sent P[....] to call the complainant. When he met the complainant, he
was carrying
a stick, not an iron rod. They walked to his home where
they sat and were talking about their relationship. When it was time
to
sleep, the complainant asked him if he would not damage her
virginity as she was undergoing virginity testing. The complainant
consented to having sexual intercourse with him and they had
non-penetrative sexual intercourse on two occasions. There was no
vaginal penetration.
[10]
According to the appellant, while the complainant was in his room
B[....]came in and saw her.
He testified that subsequent to him
having sexual intercourse with the complainant, she attended
virginity testing and it was found
that she was still a virgin. This
version was of course new and was not put to the complainant and Dr
Tshuku to comment on. When
questioned about this, he said that the
doctor was wrong. The appellant knew that B[....]was 14 years of age
and that she used
to play with the complainant. He agreed that there
would be no reason for the complainant to cry rape if it had not
occurred.
[11]
When B[....]was called to testify, she portrayed herself as an
unreliable witness. According
to her evidence, she and the
complainant were very close friends. According to her, the
complainant and the appellant were in a
love relationship. On the
night of the incident, she heard dogs barking from outside her house
and went out to investigate the
cause. She saw the complainant and
the appellant about to get into his room. She told her grandmother
that the dogs were barking
at the appellant which she said was a lie
since they had been barking at he complainant. She went to the
appellant’s room
to fetch her belongings and found the
complainant on the appellant’s thighs. She added that both the
complainant and the
appellant were smoking dagga. And when she asked
the complainant if she was okay, the complainant answered in the
affirmative.
She then closed the door and left. The sum total of the
evidence given by B[....]was of course new evidence which was not put
to
the complainant.
[12]
B[….]’s evidence was that she did not see the
complainant after that night. When
asked about a version she gave to
the police she said that she had lied to the police. She had lied to
the police that she met
the complainant who said she was going to
report the appellant to the police and it looked like she was crying.
She sympathised
with her and decided to give her support. She also
lied that she had seen the appellant in possession of a stick like
object and
that the complainant seemed like she was crying and asking
the appellant to let her go.
[13]
B[....]stated that she lied to protect her friend but was not lying
in her evidence before court.
When it was put to her that her
evidence was framed in order to protect her uncle, her response was
that she did not know what
to say. She said it was important to
mention that the complainant and the appellant were cuddling as they
were lovers. She could
not explain why the appellant had not
mentioned this in his testimony.
[14]
The court a quo found the evidence of the complainant and that of the
other State witnesses to
be reliable and logical. It accepted that
the complainant was scared of the appellant. It rejected the
appellant’s version
that he had non-penetrative sexual
intercourse with the complainant.
[15]
The challenge against the decision of the court a quo in respect of
conviction is that it ought
to have found that the appellant’s
version that he had non-penetrative consensual intercourse with the
complainant was reasonably
possibly true and consequently, that the
State failed to prove the appellant’s guilt beyond reasonable
doubt. Although counsel
for the appellant Ms A
nastasiou
initially took a point that there was no penetration, she abandoned
this accepting that the evidence of Dr Tshuku was objective
medical
evidence corroborating the version of the complainant. She also
argued that there were several opportunities for the complainant
to
call out for help but that she failed to do so. In view of this, it
was argued that the appellant’s version that the complainant
had consented carried more weight.
[16]
Mr
Mazi
for the State argued that there was no misdirection by
the court a quo and that this court can only interfere where there is
a
misdirection and if convinced that the decision of the court a quo
was clearly wrong. In view of the corroborating evidence
by Dr
Tshuku the issue whether there was penetration fell away and it could
not be said that the complainant was a single witness
in this regard.
In
S v Ramulifho
2013 (1) SACR 338
(SCA) para 11, the court
stated that in rape cases, objective evidence provided by the
medico-legal examination of the complainant
is essential to determine
where the truth lies. Dr Tshuku’s evidence amounts to such
objective evidence and confirmed the
complainant’s version. It
was argued that in any event,
s 208
of the
Criminal Procedure Act 51
of 1977
makes provision for an accused person to be convicted on the
evidence of a single witness where it is found that such witness is
competent and reliable.
[17]
The State in its written heads of argument ventured into dealing with
the issue of caution which
must be exercised when dealing with the
evidence of a single witness. This was in my view unnecessary since
there was corroborative
evidence on the issue of whether here was
penetration or not. Aside from the evidence of Dr Tshuku, the State
argued that the evidence
of R[....] corroborated the complainant’s
evidence. While I accept that there was some corroboration, it cannot
be said that
there was corroboration on the rape itself. What the
evidence of R[....] in respect of rape does is to show
consistency of
the complainant’s evidence.
[18]
Even if it was accepted that she was a single witness, in
Modiga v
S
[2015] 4 All SA 13
(SCA) para 32 the court stated that
even when dealing with the evidence of a single witness, courts
should never allow the exercise
of caution to displace the exercise
of common sense.
[19]
As regards the fact that that the complainant failed to call for help
when she had several opportunities
to do so, Mr
Mazi
submitted
that it was unreasonable to have expected her to do this when she was
under threat. Also, the person that she could have
shouted out for
help to was B[....]who was younger and she could not have had any
hope of being assisted by her.
[20]
There is no evidence from a reading of the record to suggest that the
issue of shouting out for
help was raised with the complainant. The
argument by Ms
Anastasiou
and most of the reply by Mr
Mazi
is therefore based on suppositions. What we know from the
evidence however, is that the appellant had threatened the
complainant
with her life and was carrying a stick. When she was
asked what she understood when he said that she must think of her
life, she
stated that she understood this to mean he would kill her
if she did not comply.
[21]
The evidence of B[....]which was aimed at supporting the appellant’s
version was inconsistent
with his version and was a clear
fabrication. She mentioned things which were never mentioned by the
appellant for example, that
she found the complainant siting on the
appellant’s thighs, that they were smoking dagga and that the
dogs had barked at
the complainant. The fact that she confessed
to have lied in her statement to the police on its own show that
her evidence
could not be believed.
[22]
On a consideration of all the evidence led, I am satisfied that the
decision of the court a quo
on conviction was correct.
[23]
In respect of sentence, it is trite that when dealing with sentence,
this court will not interfere
with the discretion of the court a quo
unless the discretion is improperly exercised or the sentence is
vitiated by irregularity
or misdirection or is disturbingly
inappropriate. See
S
v Romer
2011
(2) SACR 153
(SCA) para 22. There must be a striking disparity
between the sentence passed and that which this court would impose.
See
S
v Naidoo
2010 (1) SACR 369
(KZP).
[24]
It was submitted for the appellant that the cumulative effect of his
mitigating factors amounted
to substantial and compelling
circumstances warranting a deviation from the prescribed minimum of
life imprisonment. These were
that he was a first offender;
contributing towards society and maintaining his family. The record
reveals that he was 31 years
of age at the time of sentencing,
married with and had two children aged six and two respectively. He
was self-employed and his
wife was unemployed. His income was not
stated. He left school in standard two (what is now grade four). It
was submitted that
the sentence was disproportionate to his
circumstances. In this regard, reliance was had to
S v Mahomotsa
2002(2) SACR 435 (SCA) to the effect that there is a varying degree
of seriousness in cases.
[25]
Counsel for the State submitted that in
Mahomotsa
the court
stated that the sentence should fit the crime as well as the
offender. Further, the mere fact that the offence when compared
to
others is less serious is no bar to the imposition of the maximum
sentence. It was further argued that the mere fact that a
person is a
suitable candidate for rehabilitation does not in itself mean that
life imprisonment cannot be imposed. See
S v Solomon & another
2008 (2) SACR 149
(E) paras 17, 24 and 25. It was submitted further
that the court a quo correctly found that the mitigating factors when
weighed
against the aggravating factors did not constitute
substantial and compelling circumstances to justify a deviation.
[26]
In
S v Malgas
2001 (1) SACR 469
(SCA) the court stated that
courts have to approach the question of sentencing conscious of the
fact that minimum sentences have
been ordained as the sentence which
should ordinarily be imposed, unless substantial and compelling
circumstances are found to
be present. Prescribed sentences should be
imposed and the sentencing court should not deviate from prescribed
sentences for flimsy
reasons.
[27]
In
S v Vilakazi
2009 (1) SACR 552
(SCA) it was held that in
cases of serious crime the personal circumstances of the offender
necessarily receded into the background.
Once it was clear that a
substantial jail term was appropriate questions of whether or not the
accused was married, or employed,
or of how many children he had were
largely immaterial. However, they remained relevant in assessing
whether the accused was likely
to offend again.
[28]
It is common cause from the evidence that the complainant was a
virgin and that she treasured
this. She participated in traditional
virginity testing. As a result of the appellant’s conduct she
can no longer do this.
The appellant took away something sacrosanct
to her. Ms
Anastasiou
argued that the court a quo found that
there was slight penetration. This is in fact incorrect and what the
court a quo found was
that there was actual penetration. It then
ventured to state that it was irrelevant whether such penetration was
slight or not.
There was never a finding by the court a quo that
penetration was slight. In view of this, her argument that because
the penetration
was slight, meant that this was not the worst kind of
penetration and that there can be a deviation from the prescribed
minimum
sentence cannot be sustained.
[29]
In
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA), the court stated that,
at 5B-C:
‘
The rights
to dignity, to privacy and the integrity of every person are basic to
the ethos of the Constitution
and
to any defensible civilisation.
Women in this country are entitled to
the protection of these rights. They have a legitimate claim to walk
peacefully on the streets,
to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy the peace and
tranquillity of their homes
without fear, the apprehension and the
insecurity which constantly diminishes the quality and enjoyment of
their lives.’
[30]
At 5A-B of
Chapman
, the court stated the following:
‘
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 court went further to say at 5D-E:
‘
The Courts
are under a duty to send a clear message to the accused, to other
potential rapists and to the community: We are determined
to protect
the equality, dignity, and freedom of all women, and we shall show no
mercy to those who seek to invade those rights.’
[32]
In
S v Mojaki
2006 (2) SACR 590
(T) the court at 591H-I
described rape as follows:
‘
Rape is a
very serious offence, so serious that I doubt whether those who are
not women will ever be able to fully understand its
effect on the
victim. It violates the dignity of the person being raped. More so
when it is perpetrated on young, defenceless and
innocent ones.
Children are entitled to be children.’
[33]
Ms
Anastasiou
submitted that the appellant was a first
offender while in recent times you would find youth of 18 and 19
years of age as second
and third rape offenders. If the submission is
correct, then the justice system is clearly failing society, the
accused and the
victims themselves. It would beg the question as to
how these offenders would be out in the community when there was
clear legislation
dealing with sentencing in such serious matters. It
would also suggest that rehabilitation has failed to achieve its
purpose.
[34]
In
S v PB
2013 (2) SACR 533
(SCA) para 16 Boshielo JA stated
that by slavishly following a trend not to impose life imprisonment
for rape, courts would be
‘acting improperly and abdicating its
duty and discretion to consider sentence untrammelled by sentences
imposed by another
court’. Such a sentence would be appealable
as the court would have failed to exercise its sentencing discretion
properly
or at all. In
S v PB
, the court considered the
appellant’s personal circumstances. Having done so, it found
that the fact that he was married
to the complainant’s mother,
had three children, was 38 years old when the offence was committed,
was in gainful employment
and maintaining his children, pleaded
guilty and had a drug habit were insufficient to meet the threshold
of substantial and compelling
circumstances. This, when it compared
with the fact that the appellant was the complainant’s father,
that she was 12 years
old when she was raped the extent of the
emotional and psychological suffering as appears from the victim
impact assessment report
which it found as mitigating. Similar
conclusions were arrived at in
S v Bailey
[2012] ZASCA 154
(1
October 2012) and
S v Kwanape
2014 (1) SACR 405
(SCA).
[35]
I am of the view that on the facts of this case, there exist no
circumstances that can be said
to be substantial and compelling to
warrant a deviation from the prescribed minimum sentence.
Consequently, I find no misdirection
or irregularity by the court a
quo.
Further,
that there was no misdirection by the court a quo in sentence.
[36] In the
result, I propose the following order:
1.
The
appeal against the conviction and sentence is dismissed
.
2.
The
decision of the court a quo is confirmed.
Masipa,
J
I agree,
Potgieter, AJ
DETAILS OF THE HEARING
Appearances:
For The
Appellant:
Ms Z Anastasiou
Instructed
by:
Legal Aid South Africa
For the Defendant:
Mr
M Miza
Instructed
by:
Director for Public Prosecutions, Pietermaritzburg
Matter heard
on:
25 October 2019
Judgment
delivered:
1 November 2019