About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 40
|

|

Baba and Others v S (A504/16) [2019] ZAWCHC 40 (27 March 2019)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number:  [High
Court]:
A504/16
Case Number [Lower
Court]:
SH/109/09
In
the matter between:
MALIPHATHWE
BABA
1
st
Appellant
MASIXOLE
MAQANA
2
nd
Appellant
MONWABISI
MOSES
3
rd
Appellant
and
THE
STATE
Respondent
Coram
:
Cloete J
et
De Waal AJ
Hearing:
15 March 2019
Judgment:
27 March 2019
JUDGMENT
De
Waal AJ
:
[1]
The three Appellants in
this matter were convicted of gang-raping the 17-year old complainant
on 27 October 2007.
The Appellants were sentenced to
10 years imprisonment by the Regional Court (per Ms A Van
Leeve), the Court
a
quo
having found
that there are substantial and compelling circumstances to deviate
from the minimum sentence of life imprisonment
prescribed by
s 51
of the
Criminal Law Amendment Act 105 of 1997
.  In the present
instance the sentence of life imprisonment was prescribed because the
victim was raped by more than one person,
and the rapists acted in
the execution or furtherance of a common purpose.
[2]
The Appellants were
granted leave to appeal to this Court against the convictions and
sentences in terms of s 309B(1)(a) of
the Criminal Procedure Act
51 of 1977 (“
the
CPA
”).
[3]
Before dealing with the
grounds of appeal, I briefly sketch the factual background and the
reasoning of the Court
a
quo
, both in
respect of the convictions and the sentences imposed.
[4]
The case originally
started with five accused.  First Appellant, Mr Maliphathwe
Baba, was the first accused.  Second
Appellant, Mr Masixole
Maqana, was the fourth accused and Third Appellant, Mr Monwabisi
Moses, the fifth.  The second
accused was A B and the third
accused was Xolisa Nxusani.  I shall refer to the Appellants as
they were referred to during
the course of the trial, i.e. Accused 1,
4 and 5 but to Accused 2 as “
A
”
and to Accused 3 as “
Xolisa
”.
[5]
Before the commencement
of the trial, charges were withdrawn against A on the instruction of
the Director of Public Prosecutions,
Western Cape.  The trial
also did not proceed against Xolisa because he had by then passed
away.
[6]
As was stated above,
the convictions relate to the events of 27 October 2007, a
Saturday night.  On that night, the
complainant and some of her
friends were at Tshepo’s Tavern drinking ciders and wine.
They spent approximately three
hours at the tavern and left at about
22h00 that night, accompanied by A and the others (except Accused 4).
[7]
The complainant and A
walked slightly ahead of her friends.  A then told the
complainant that her boyfriend, S M (“
S
”),
sent him a text message asking A to take her to his house and to wait
for him there.  The complainant did not see
a problem with this
because her boyfriend and A were friends.  They (A and S) lived
opposite each other.
[8]
The complainant
testified further that she went to A’s place, which she
described as a side flat close to the main house on
the property.
A then told her that he was going to call her boyfriend and left.
The complainant testified that she
started to panic at this time
because it was getting late and she wanted to go home.  She
tried to open the door but the door
was locked from the outside with
a latch and a piece of wire.
[9]
A returned, not with
the complainant’s boyfriend, but with the other accused, who
then proceeded to pin her down to the bed,
took her clothes off and
raped her in turn.  The complainant testified that she bit at
least one of the accused and they were
laughing about it.  She
further testified that at one point she pretended to faint in order
to make the accused stop raping
her but that A then threw water on
her.
[10]
Eventually all the
accused but A left.  The latter begged the complainant not to go
to the police.  She told him that
she would not do so and
persuaded A to call her boyfriend.  When S came over, the
complainant immediately told him that she
had been raped, except
that, because she was in the presence of A, she did not say that he
also participated in the gang rape.
[11]
S then accompanied the
complainant to the police station where she laid charges against four
of the accused (she later added Xolisa).
A medical examination
and subsequent report found the DNA of Accused 5 inside the
complainant’s vagina, and that the
SDR profiles  of the
DNA obtained reflected that of more than one person.
[12]
Apart from the
complainant herself, the State also called as witnesses S and the
medical doctor who performed the gynaecological
examination of the
complainant on the morning of 28 October 2007.  For
purposes of the appeal, it is not necessary
to discuss the evidence
of the latter two State witnesses.
[13]
Each of the Appellants
testified in their own defence.
[14]
Accused 1
testified that he was drinking at Tshepo’s Tavern on the
evening of 27 October 2007.  He left
the tavern with
the group and walked with one of the complainant’s girlfriends,
one M. The group scattered when they bumped
into M’s older
sister, who reprimanded them about drinking and being out late.
In the process Accused 1 was separated
from M.  He then
went looking for M at A’s place.  Accused 1 claimed
that he saw the complainant in the side
flat but he then left.
[15]
Accused 4
testified that he was drinking at a different tavern, namely the
White House.  He too went to A’s flatlet
thereafter and he
also saw the complainant there.  Accused 4 claimed that she
was lying in A’s bed, covered with
a duvet.  Accused 4
then left to buy cigarettes and when he returned, A told him not to
come in.  He then left.
Accused 4 claims that the
reason why the complainant claims that he raped her is because his
sister had an altercation with
her sister over a cell phone.
[16]
After testifying in his
own defence, Accused 4 also called and led evidence of A.
A testified that on the evening of
27 October 2007 he was
at Tshepo’s Tavern and that he saw the complainant when he
left.  He started walking
with her and flirting with her.
He asked her if she wanted to go home with him and she agreed.
At his flat she got
onto the bed and they started kissing.  The
complainant then consented to having sexual intercourse with him.
Whilst
in the process of having intercourse with the complainant, A
felt someone “
removing
”
him from the complainant.  He tried to push the person off but
there were also other intruders. During his evidence-in-chief,
A
testified that it was dark and that he could not identify any of the
intruders.  However during cross-examination, he accepted
that a
statement drafted by his advocate at the time was correct in that he
could in fact identify the three Appellants and Xolisa
as the men who
barged into his room; pulled him off the complainant; and then
gang-raped her.
[17]
Accused 5, whose
DNA was found inside the complainant, testified that on
27 October 2007 he was at Tshepo’s
Tavern drinking
with his friends, including A, Xolisa and Accused 1.  He
left with his friends and wanted to go to another
township but needed
to fetch a jacket at his home.  On his way he met Xolisa, who
told him that some friends were at A’s
house.  He then
also went there.  At the flat, he met with A and the
complainant.  A then left to buy cigarettes.
At this stage
the complainant got up, came to sit on him and started kissing him.
They undressed and had sex.  When
A returned he wanted to sleep
and Accused 5 then left.
[18]
I now turn to the
reasoning of the Court
a
quo
.
[19]
The Court
a
quo
commenced its
analysis by referring to some
dicta
in the Supreme Court of Appeal judgments dealing with the principles
relating to convictions based on the evidence of a single
witness.
It is well-established that such evidence must be approached with
caution.  The merits of the evidence must
be weighed against
factors which militate against the credibility of the single
witness.  Even if there are shortcomings,
or defects or
contradictions in the testimony, the Court may convict the accused if
satisfied that the truth has been told.
[20]
In applying the
principles, the Court
a
quo
held that the
complainant gave a coherent version of the events which took place on
27 October 2007 and that her evidence
was clear and
satisfactory in all material respects.  In this regard, the
Court
a quo
reasoned that certain contradictions in the evidence of the
complainant were not material.  For instance, it was not clear

why she agreed to go to A’s house when she was in a hurry to
get home after drinking at the tavern.  It also seems that
she
was untruthful when she claimed that it was the first time that she
consumed alcohol at the tavern because her boyfriend testified
that
she previously drank there.
[21]
According to the Court
a quo
,
the complainant gave a satisfactory explanation for why she did not
implicate A immediately when her boyfriend first arrived at
the
latter’s flat.
[22]
The Court
a
quo
further
referred to authority for the proposition that less caution is
required where the evidence of a single witness is corroborated
in
some or other way so that it is firmly established that the whole
story is not concocted.  On this aspect, it was found
that the
evidence of S lends credibility to the complainant’s story.
[23]
The Court
a
quo
considered the
evidence of the Appellants and found their versions to be riddled
with contradictions.  What was however clear
is that the three
Appellants and Xolisa were at A’s house on the night in
question.  Besides the evidence of the complainant
and that of
A, the Appellants
themselves
placed them on the scene of the crime on that night.
[24]
As to the rest of their
evidence, the Court
a
quo
concluded that
the Appellants’ versions made no sense and had to be rejected
as lies.  The Court
a
quo
held that there
must have been a plan to meet at A’s house as Accused 5
testified that he went home to fetch a jacket
and then went back to
A’s house because the latter had beers and whiskey.
[25]
The Court
a
quo
further relied
on A’s evidence, which implicated each of the three Appellants.
[26]
After the above
analysis, the Court
a
quo
concluded that
the State had proved its case beyond a reasonable doubt against each
Appellant.
[27]
As to sentencing, the
Court
a quo
found, in mitigation, that alcohol played a major role on the night
of the commission of the offence.  The Court further took
into
account that the matter had been running since 2007 and that the
Appellants only pleaded in 2015.  In this regard, account
was
taken of the fact that the Appellants were unable over this very long
period to move on with their lives; to get careers; or
to enter any
kind of institution to finish their education.  All three
Appellants were first offenders and Accused 1
was only 17 years
old at the time of the commission of the offence.  Accused 4
and 5 were barely over 18 years old.
[28]
As to aggravating
factors, the Court
a
quo
recorded that
the complainant, according to a victim impact report, became
unmotivated; lost energy and attempted to commit suicide
as a result
of the horrific ordeal.
[29]
The Court
a
quo
concluded that
all three Appellants had potential to rehabilitate but that such
rehabilitation could take place inside the walls
of the prison.
Taking all circumstances into consideration, the Court held that
there were compelling and substantial circumstances
why life
imprisonment was not appropriate.  Sentences of 10 years of
imprisonment were imposed on each of the three Appellants.
[30]
I now turn to deal with
the contentions made on behalf of the Appellants in this appeal.
Accused 1
[31]
Mr Simon, who
appeared for Accused 1, contended that his client could not have
been properly identified as the complainant
was not sober and the
attack on her happened suddenly and in the dark.  A, it was
argued, could not see the attackers but
claimed to identify them by
“
feeling
”
them.
[32]
The above leaves out of
account that:
31.1
It was common cause
that the complainant knew her attackers.
31.2
The attackers made no
attempt to mask their identities.
31.3
Although she admitted
that she was under the influence of alcohol, the complainant was not
inebriated to the extent that it impaired
her ability to identify
someone she knew.
31.4
The complainant was
further raped multiple times over a period of time in a small room.
The attack was intense, brutal and
invasive.  She bit at least
one of accused on the upper arm, showing how close she was to the
face of this attacker (a few
centimetres).
31.5
At the first
opportunity she identified the accused by name.  This evidence
was independently verified by S.
31.6
There was no
satisfactory explanation as to why she would have implicated the
accused if they were innocent.  It is in my view
far-fetched to
suggest, as Accused 1 and 4 did, that she accused them of rape
just because they saw her in A’s bed.
It is in any event
highly unlikely that the complainant had consensual sex with A that
night, for reasons that I shall explain
below.  That is another
reason why the motive alleged by Accused 1 and 4 cannot be
correct.  Accused 4’s
claim that the reason why the
complainant claims that he raped her is because his sister had an
altercation with her sister over
a cell phone merely has to be stated
in order to reject it.
31.7
Then there was the
evidence of A.   Although the charges against him were
initially withdrawn on the basis that he will
testify against the
other accused in terms of s 204 of the CPA, the State did not
call him. Accused 4 however decided
to call him.  I deal
below with the manner in which his testimony should be approached.
For present purposes it suffices
to say that although A may not have
been truthful about his own involvement in the gang-rape, he
corroborated the complainant’s
version of the events as far as
the conduct of the Appellants is concerned.  He did so in a
carefully prepared statement,
the veracity of which he confirmed
under cross-examination.  There was no reason given for why A
would falsely implicate the
Appellants.
[33]
It was further
contended on behalf of Accused 1 that if the complainant knew
him then it is strange that she did not ask him
by name why he was
raping her or why she did not cry out his name during the attack.
The short answer to this is that she
was not asked about this during
the trial.  It is no use to speculate about this issue on
appeal.  For all we know, the
complainant may have called out
the names of her attackers.  She indeed testified that she
begged her attackers to stop doing
to her what they were doing.
[34]
To the above one must
add that the accused placed himself on the scene, first at Tshepo’s
Tavern and thereafter at A’s
flat.  His explanation as to
how he got there and why he left is difficult to understand, to put
it mildly.  It is inconceivable
that a group of young men and
women would, after a drinking session at a tavern, scatter about at a
reprimand from M’s sister,
to the extent that they lost contact
with each other and Accused 1 then had to go looking for M at
A’s flat.  Even
harder to believe is the testimony of
Accused 1 to the effect that he went all the way to A’s
place but when he saw
the complainant sitting there on a bed, he
simply left.
[35]
For these reasons, the
appeal in respect of the conviction of Accused 1 is dismissed.
[36]
Turning to the
sentence, it was argued that Accused 1 was a first offender and
furthermore that he was only 17 years at the
time when he committed
the offence.  In this regard, reference was made to
s 77
of
the
Child Justice Act 75 of 2008
, which provides in subsection 1(b)
that when sentencing a child who is 14 years or older at the time of
being sentenced for
the offence, the Court must only impose a
sentence of imprisonment as a measure of last resort and then for the
shortest appropriate
period of time.  It was further contended
that Accused 1 was a junior under the influence of seniors when
the offence
was committed.
[37]
The problem with the
first of the above arguments is that Accused 1 was no longer a
child when he was sentenced.  He was
sentenced some 9 years
after the offence was committed and when he was already about
26 years old.  There was also no
evidence led at the trial
which suggested that Accused 1 was under the influence of the
other accused when he committed the
offence.  This is not
surprising given that he was only a few months younger than them.
[38]
While it is ordinarily
so that a different approach to sentencing is adopted in respect of
children, it would be artificial in the
extreme to distinguish
between the offenders in this matter.  Accused 4 (the
Second Appellant) was for instance only
11 days older than 18 when he
committed the offence.  The conduct of Accused 1, who was a
few months younger than 18,
was as reprehensible and indeed sickening
as that of Accused 4.  There would be no logic in
differentiating between the
two.
[39]
As to the sentence of
10 years, I see no reason to interfere.
[40]
One can never leave out
of account, as the SCA recently emphasised again in
S
v Hewitt
2017 (1)
SACR 309
(SCA) at para 9, that rape is “
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 brutal invasion of the privacy, the
dignity and the person of the victim
”.
[41]
In the present instance
one is dealing with gang rape, which is one of the most horrific
crimes imaginable and one for which the
legislature has dictated that
a sentence of life imprisonment must be imposed unless there is
substantial and compelling reasons
to do otherwise.  In light of
that guide, I do not believe that the sentence of 10 years of
imprisonment is disproportionate.
It was just even though
Accused 1 was only 17 years old at the time of the offence and a
first offender.
[42]
The appeal against the
sentence is accordingly also dismissed.
Accused 4
[43]
At the outset it is
worth pointing out that Accused 4’s version of the events
of the evening are strange, even more so
than that of the other
Appellants.
[44]
Accused 4 claimed
to have started the evening at a different place to the others.
He testified that he was not at Tshepo’s
Tavern but at another
location, named the White House.  Thereafter he took a 15 minute
walk to A’s place and met the
latter there with Xolisa and
Accused 5.  When he arrived, the complainant was lying on
the bed sleeping.  He then
went to go buy cigarettes and met
with up one Jarvis, who had died by the time of the trial.  When
he went back, five minutes
later, the complainant was standing at the
door.  A asked him not to come into the room even though Xolisa
and Accused 5
were also still in the room.  Accused 4
then went back to Jarvis and he then received a phone call from his
brother asking
him to “
fetch
stuff in Cape Town
”.
This was at 01h00 on the Sunday morning.
[45]
Mr Mtini of Legal
Aid South Africa, who appeared for Accused 4, raised much of the
same argument already discussed above
regarding the identification of
his client.  I do not find this argument persuasive.
Accused 4, on his own version,
ended up at A’s flat; he
too was known to the complainant.  She indeed identified him as
the person who raped her the
most times on the night in question.
She immediately named him as a perpetrator at the first opportunity.
He was also
implicated by A.
[46]
It
was contended that the failure by the State to have called A
justifies an adverse interference to be drawn.  Such an
inference
can be drawn in certain circumstances,
[1]
but it would in my view be unfair to do so in the present instance.
Firstly, there is a reason why the State did not call
A.  A
deposed to a very detailed affidavit regarding his version of events,
which was that he had consensual sex with the
complainant but then
got pulled off her by the Appellants and Xolisa who then proceeded to
gang-rape her.  The problem with
this version is that even
though the complainant thought that she had bit Accused 4 no
bite marks were found on him.  However,
the report of the
medical practitioner contained photos of bite marks on A’s
arm.  It is inconceivable why, in these
circumstances, it was
decided to drop the charges against A.  But this probably
explains why the State did not make use of
him as a
s 204
witness.   His credibility could have been destroyed in
cross-examination.  The prosecutor indeed confronted A during

the trial and put it to him that he was trying to save himself
whereas he in fact was also involved in the gang-rape.
[47]
Accused 4 decided
to call A.  This was a blunder because A then, under
cross-examination, implicated all three Appellants.
A was
never declared a hostile witness and Accused 4 was precluded
from impeaching his credibility.  Whilst A may have
lied about
his own actions on the night in question, I fail to see on what legal
or logical basis his evidence against the three
Appellants should be
disregarded.  His evidence corroborated the complainant’s
version in respect of the three Appellants.
And none of them
had a satisfactory explanation as to why A would falsely implicate
him.
[48]
In the circumstances
the appeal against the conviction of Accused 4 is dismissed.
[49]
As far as sentencing is
concerned, I fail to see on what basis one can differentiate between
Accused 4 and Accused 1.
The former was over 18 years
old at the time of the commission of the offence.  He can
accordingly hardly contend for a lighter
sentence than the latter.
There was no other peculiar factor raised about the personal
circumstances of Accused 4 which
justifies a lesser sentence.
The sentence of 10 years is accordingly confirmed.
Accused 5
[50]
The difficulty for
Accused 5 was that the DNA evidence indicated that he must have
had sexual intercourse with the complainant.
In order to
explain this aspect, he came up with the, frankly preposterous,
version that the complainant suddenly jumped on him
when A stepped
outside to go and buy a cigarette.  This simply makes no sense
and must be rejected as a lie.  It will
further be recalled that
Accused 5 himself testified that he went to A’s house
because the latter had beers and whiskey.
In a sense he
described the plan that the accused had but then leaves out the
gruesome actions which followed.
[51]
According to the
complainant, Accused 5 even apologised to her for what he had
done.  He admitted that he apologised but
claimed that he did so
because
he
was
being falsely implicated.  This makes no sense whatsoever.
[52]
There can be no doubt
about his guilt and the conviction is confirmed.
[53]
As with Accused 1
and 4, I do not believe that the sentence of 10 years imprisonment is
disproportionate in respect of Accused 5.
Again, no
personal circumstances was raised which differentiate his position
from the others.  It was mentioned that he had
a problem with
drugs but overcame this by the time that he committed the offence.
I cannot see how one can reduce his sentence
for this reason alone.
In the circumstances the appeal against the sentence imposed on
Accused 5 is dismissed.
[54]
In the result, the
appeals against all three convictions and the resulting sentences are
dismissed.
______________
H J DE WAAL AJ
Acting Judge
of the High Court
Cape Town
27 March 2019
I
concur.
______________
Cloete J
Judge of the
High Court
Cape Town
27 March 2019
APPEARANCES
First
Appellant’s counsel: C Simon
First
Appellant’s attorneys: Legal-Aid South Africa
Second
and Third Appellants’ counsel: O Mtini
Second
and Third Appellants’ attorneys: Legal-Aid South Africa
Respondent’s
counsel: M Marshall
Respondent’s
attorneys: Office of the Director of
Public
Prosecution: Western Cape
[1]
See
S
v Texeira
1980 (3) SA 755
(A) at 763G-H.