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[2018] ZAGPPHC 767
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Malambu v S (A526/16) [2018] ZAGPPHC 767 (5 February 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
Number: A526/16
5/2/2018
In
the matter between:
BONGANI
TSHEPO
MALAMBU
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
HUGHES J AND
RANGATA AJ
JUDGMENT
RANGATA
AJ
Introduction
[1]
This is an appeal against both conviction and sentence imposed by the
Regional Court
Magistrate, Mr E Jonker sitting at Piet Retief against
the appellant, Mr Bongani Tshepo Malambu on the following charges:
Count 1: Kidnapping ;
Count 2: Assault (second
complainant , Ms Thembelihle Lushaba);
Count 3: Assault with intent to do
grievous bodily harm (first complainant , Ms Selindile Lushaba) ;
Count 4: Rape falling under Part
I, Schedule 2 of Act 105 of 1997 of the Criminal
Procedure Act in respect of the
first complainant ;
Count 5 and 6: Rape , both counts
falling under Part I rape charge in respect of the second
complainant.
[2]
The appellant having been charged and
convicted by the Regional Magistrate Court of the charges stared
above , was sentenced to
three years imprisonment in respect of
counts 1, 2 and 3, all taken together for the purpose of sentence.
With regard to count
4, the appellant was sentenced to 10 years
imprisonment, the trial court having found that there were no
compelling and substantial
circumstances justifying a lesser
sentence. As for counts 5 and 6, the appellant was sentenced to life
imprisonment for each count.
Similarly the trial court having found
that there were no compelling and substantial circumstances
justifying a lesser sentence
, the sentences in counts 5 and 6 were
ordered to run concurrently . The court further ordered that the
sentences were to run concurrently
with the sentence of life
imprisonment. Furthermore, the appellant was declared unfit to
possess a firearm as contemplated in section
103 (1) of Act 60 of
2000. The appellant was legally represented throughout the trial.
[3]
In a nutshell, the evidence by the state
was that the two complainants who are sharing the same surname were
fetched at their home
by the appellant on 8 December 2014 , under the
pretence that the appellant's father wanted to talk to them as
regards allegations
made against one Thokozane , the appellant's
brother. On their way the appellant changed course and took them to
his place of residence
. Upon having entered the house he locked the
door and chased away his brother who was with them. There he ordered
the complainants
to undress and when they refused he attempted to
assault the second complainant with an assegai. In the process, the
first complainant
was injured, as she tried to block the appellant
from stabbing the second complainant.
[4]
The appellant put his finger into the
first complainant's vagina and when he discovered that she was
menstruating, he hit her with
an open hand. Thereafter, he went for
the second complainant and raped her. The complainants could not
leave for home as the appellant
had locked his house. The following
morning, on 9 December 2014, under guard the appellant ordered the
complainants to go and fetch
water. The complainants were unable to
leave as he had in his possession the assegai at all times,
threatening them with it if
they raised an alarm.
[5]
The evening of 9 December 2014, and in
the early hours of 10 December 2014, the appellant continued to have
sexual intercourse with
the second complainant without her consent on
more than one occasion. The second complainant's was rescued from the
appellant by
the arrival of three boys in the course of the morning
of the 1O December 2014. He refused to allow the first complainant to
leave
together with the second complainant. Later that morning the
first complainant's sister arrived and subsequently the first
complainant
was also rescued from the appellant's place.
[6]
The appellant in his evidence did not
deny that he had sexual intercourse with the second complainant as
described, but contends
that it was with her consent. This is with
reference to count 5. With regard to count 6 it was his evidence that
he does not know
why the second complainant stated that he had sexual
intercourse with her more than once. As regard to count 4 his version
was
that the first complainant was his girlfriend and that he had
sexual intercourse with her consent on a Monday and that on Friday
when he wanted to have sexual intercourse with her she indicated that
she was menstruating. With regard to the kidnapping and the
two
assault charges, his evidence was a bare denial.
[7]
This court is confronted with the
following issues:
(a)
Firstly, whether the alleged
sexual intercourse with both the complainants took place with their
consent;
(b)
Secondly, whether the state has
proven without a reasonable doubt that the kidnapping and the two
assault charges indeed took place;
(c)
Lastly, whether the usage of an
intermediary with regards to the evidence of the second complainant
was .as contemplated in section
170A of the Criminal Procedure Act 51
of 1977 ( the Act) and if not, whether the entire proceedings have
been vitiated by the non-compliance
of the aforesaid provision.
[8]
The relevant portions of section 170A of
the Act are set out below:
"(1) Whenever criminal
proceedings are pending before any court and it appears to such court
that it would expose any witness
under the biological or mental age
of eighteen years to undue mental stress or suffering if he or she
testifies at such proceedings,
the court, may subject to subsection
(4), appoint a competent person as an intermediary in order to enable
such witness to give
his or her evidence through that intermediary.
(2)(a)...
(3)...
(4)(a)...
(5)(a)
No
oath , affirmation or admonition which has been administered through
an intermediary in terms of section 165 of the Act, shall
be invalid
and no evidence which has been presented through an intermediary
shall be inadmissible solely on account of the fact
that such
intermediary was not competent to be appointed as an intermediary in
terms of a regulation referred to in subsection
(4)(a) , at the time
when such oath , affirmation or admonition was administered or such
evidence was presented.
(b)
If
in any proceedings it appears to a court that an oath, affirmation or
admonition was administered or that evidence has been presented
through intermediary who was appointed in good faith, but at the time
of such appointment , was not qualified to be appointed as
an
intermediary in terms of a regulation referred to in subsection
(4)(a), the court must make a finding as to the validity of
that oath
. affirmation or admonition or the admissibility of that evidence, as
the case may be, with due regard to :
(i) the reason why the
intermediary concerned was not qualified to be appointed as an
intermediary , and the likelihood that the
reason concerned will
affect the reliability of the evidence so presented adversely;
(ii) the mental stress or
suffering which the witness . in respect of whom that the
intermediary was appointed, will be exposed
to if that evidence is to
be presented anew. whether by the witness in person or through
another intermediary; and
(iii) the likelihood that real and
substantial justice will be impaired if that evidence is admitted".
[9]
Starting with the latter issue, it is
important to make mention that the second complainant was 16 years at
the commission of the
offences and was just over 17 years old when
she testified. At the request of the prosecution she testified in
camera through an
intermediary. Upon the enquiry by the court on the
usage of an intermediary, the defence indicated that it had no
objection. The
court proceeded to admonish the second complainant to
tell the truth after there was a clear misunderstanding between the
court
and the second complainant as to whether she knows what it
meant to take an oath.
[10]
Counsel for the appellant submitted that there is no evidence on
record to show that the intermediary
satisfied the requirements
provided for in section 170A, in particular her qualification, her
full names and occupation were not
placed on record. Hence, the
appellant sought to vitiate the entire proceedings as regards the
testimony of the second complainant.
[11]
In my view, the second complainant's
evidence could not be impaired as the usage of an intermediary was
done with the consent of
the defence. Whilst, the second complainant
in the course of questioning by the court indicated that she did not
know what it means
to take an oath, this cannot be seen as suggesting
that she did not know the difference between truth and lie.
Furthermore, the
evidence of the second complainant was not
standalone evidence . as it was materially corroborated in all
respects by the first
complaint. It is also so that she made a report
of the incident at the first opportune time.
[12]
In the case of S v Booi and Another
2005
(1) SACR 599
(B), the court held that "whenever the oath or
affirmation was actually administered to an intermediary and an
intermediary
was actually appointed. the names, qualifications and
occupation of each intermediary used had to be captured somewhere in
the
record of the proceedings, to signify a proper administration of
the oath or affirmation and the appointment of intermediaries.
Had
this procedure been followed the particulars of the intermediary and
the substance of the oath would have been recorded in
the court a
quo".
[13]
In the case of S v. Motaung
2007 (1)
SACR 476
(SE), the accused had been convicted of the rape of a 13
year old girl and the matter was remitted to the High Court for
sentencing.
The preliminary question before the court was whether the
proceedings had been fatally flawed because an intermediary, a duly
appointed
social worker, had not been sworn in. It was held by the
court that although the magistrate's failure to swear in the
intermediary
was an irregularity, it did not mean that the
proceedings were not in accordance with justice. There was no
evidence that the proceedings
had caused any prejudice for the
accused.
[14]
The record of the proceedings does not
reflect any information on the intermediary as provided in section
170A. In my view, the
function of the intermediary is to minimise the
mental stress upon the witness by employing her special expertise
whilst giving
evidence.
[15]
The fact that the appellant through his
legal representative at the trial stated explicitly that he had no
objection to the appointment
of the intermediary, I find no grounds
to hold that the accused was prejudiced by the use of an intermediary
to the extent that
he was not been afforded a fair trial. This view
is further supported by the decision in
S
v Sin
[2012] JOL 29507
(GNP)
wherein,
the court also had to decide the following, "whether the use of
an intermediary amounted to an irregularity and resulted
in the
evidence of the complainant being inadmissible and if it did, whether
the balance of evidence could sustain any of the convictions".
The court found that even though the intermediary used was not
qualified, he successfully and competently bridged the communication
gap between the minor witnesses (including the complainant) and the
officials of the court. Further. there was no irregularity
or breach
in the proceedings which could be so serious as to vitiate the entire
proceedings.
[16]
I am therefore of the view that the
irregularity in the appointing and use of the intermediary without
qualifying her as is required,
prior to her assisting the complainant
in this instance, does not render the evidence inadmissible. There is
no evidence to suggest
that failure to appoint the intermediary in
accordance with section 170A has rendered the proceedings invalid and
that the irregularity
prejudiced the appellant. In my view, it cannot
be that the mere fact that the intermediary was not appointed as
provided for in
the Act rendered that evidence through him
inadmissible, solely on the basis that the intermediary was not
qualified as such .
This failure will not in itself render the
witness's evidence inadmissible and does not result in a failure of
justice. I am therefore
satisfied that the appellant had a fair trial
, thus the
point in limine
must
fail.
[17]
As regards appeal against conviction, the two complainants
corroborated each other in all material
respects . Starting with the
first complainant. there is nothing on record to suggest that she was
not a credible and reliable
witness. The evidence of the first
complainant that the appellant inserted his finger into her vagina
and that he got upset when
he discovered that she was menstruating
was corroborated by the second complainant.
[18]
The appellant in his testimony confirmed that he inserted his finger
into the vagina of the first
complainant. He further testified that
he had consensual sexual intercourse with the first complainant on
the Monday and when he
requested her to have sexual intercourse on
Friday, the first complainant told him that she was menstruating. I
am satisfied that
the rape with reference to the first complainant
took place as explained by both complainants .
[19]
The appellant sort to suggest that the first complainant was with him
at his place at her own
will and that she was his girlfriend . This
evidence can safely be rejected as false, seen in the light of
corroborative evidence
by the second complainant. The evidence of the
complainants were also corroborated by the appellant' s brother who
testified that
the appellant changed route as to where they were
supposed to go and on arrival at the appellant's place , he chased
him away .
Furthermore , the evidence by the sister of the first
complainant, who rescued the first complainant from the appellant ,
corroborated
the evidence of both complainants. Therefore . the
kidnap ping charge in respect of both complainants was proven beyond
reasonable
doubt and the trial court was correct in convicting the
appellant on count 1.
[20]
With regards to count 3, which is
assault with intent to do grievous bodily harm on the first
complainant , her evidence was also
corroborated by the second
complainant, with regard to the circumstances under which she was
stabbed with an assegai . It was when
the first complainant tried to
block the appellant from stabbing the second complainant and despite
her intension to do so, the
appellant continued to stab the first
complainant with the assegai. I am therefore satisfied that the
appellant was correctly convicted
with assault with intention to do
bodily grievous harm on count 3.
[21]
With regard to count 4, the appellant
was convicted of a Part Ill rape. The appellant in his testimony
admitted to inserting his
finger into the first complainant's vagina
. I am therefore satisfied that the appellant was correctly convicted
with rape by the
regional court. On count 2, the appellant was
convicted of assaulting the second complainant. The second
complainant testified
that the appellant had ordered her and the
first complaint to undress the first night when they arrived at his
place . When the
second complainant refused to undress, the appellant
slapped her twice on her face. The first complainant corroborated the
evidence
of the second complainant. The appellant pleaded a bare
denial to count 2. I am satisfied that the regional court correctly
convicted
the appellant with assault on count 2.
[22]
I now turn to deal with counts 5 and 6.
Though there are three rape charges only two were afforded life
imprisonment, that being
counts 5 and 6. There is no question that
the state succeeded to prove the commission of the charges of rape
against the appellant.
According to the second complainant and also
as corroborated by the first complainant , on the first night that
the complainants
were at the appellant's place , the second
complainant was raped once. On the second night she was raped more
than once which constitutes
repeated rape as averred. I am satisfied
that the appellant was correctly convicted in terms of Part I
Schedule 2 rape in respect
of counts 5 and 6.
[23]
In addressing the issue of sentence I am
mindful of the dicta in
S v Rabie
1975 (4) SA 855
(A) at 866 A-C
where
Corbett JA states as follows :
"A judicial officer should
not approach punishment in a spirit of anger because, being human,
that will make it difficult for
him to achieve that delicate balance
between the crime , the criminal and the interests of society which
his task and the objects
of punishment demand of him. Nor should he
strive after severity; nor, on the other hand, surrender to misplaced
pity. While not
flinching from firmness, where firmness is called
for, he should approach his task with a humane and compassionate
understanding
of human frailties and the pressures of society , which
contribute to criminality. It is in the context of this attitude of
mind
that I see mercy as an element in the determination of the
appropriate punishment in the light of all the circumstances of the
particular case" .
[24]
In the case of
Director of Public Prosecutions v Mngoma (404 /08)
[2009) ZASCA 170, page 5 at para [11],
Bosielo JA stated that:
"The
powers of an appellate court to interfere with a sentence imposed by
a lower court are circumscribed. This is consonant
with the principle
that the determination of an appropriate sentence in a criminal trial
resides pre-eminently within the discretion
of the trial court. As to
when an appellate court may interfere with the sentence imposed by
the trial court, Marais JA enunciated
the test as follows in
S v
Malgas
2001 (1) SACR 469
(SCA )
al
478d-g :
"A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the
question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers
it. To do so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates
its exercise of
that discretion. an Appellate Court is of course entitled to consider
the question of sentence afresh . In doing
so, it assesses sentence
as if it were a court of first instance and the sentence imposed by
the trial court has no relevance.
However, even in the absence of
material misdirection. an appellate court may yet be justified in
interfering with the sentence
imposed by the trial court. It may do
so when the disparity between the sentence of the trial court and the
sentence which the
appellate Court would have imposed had it been the
trial court is so marked that it can properly be described as
"shocking",
"startling" or "disturbingly
inappropriate".'
[25]
In the circumstances, in 2003 the appellant was previously convicted
of assault and was sentenced
to six months. I am mindful of the
factors surrounding the offences that he was charged with as
contained in counts 1, 2, 3, 4,
5 and 6 and convicted. In mitigation
at the time of sentencing, it was submitted that the appellant was 23
years of age when he
committed the offences and he has two minor
children, aged 11 and 5 years . His highest level of education is
standard 9 and prior
to his arrest he was employed, supporting his
two minor children.
[26]
As stated in the case of
Ndlovu v S
[2017] ZACC 19
at
paragraph
[53]
,
the court stated that,
" Mr Ndlovu '
s
crime
was
one of the
most
harrowing and malignant
crime confronting South Africa today-rape . Rape
is
perhaps
the
most
horrific and dehumanising violation that
a
person
can live through and
is a
crime that not only violates the
mind and body of a complainant , but
also
one that vexes the
soul . This crime
is
an inescapable and seemingly ever-present
reality and scourge on the nation and the collective conscience of
the people of South
Africa".
[27]
There is no justification for this court
to interfere with the conviction and the sentence of the regional
court on counts 1, 2,
3, 4, 5 and 6. Having considered the personal
circumstances of the appellant, and the seriousness of the offence
committed, I confirm
that there was no misdirection on the part of
the trial court. I therefore confirm the sentence imposed by the
Regional Magistrate
on all counts.
[28]
In the circumstances I make the
following order:
(a)
The
appeal against conviction and sentence is dismissed.
B Rangata
Acting Judge of the High Court
Gauteng,
Pretoria
W. Hughes
Judge of the High Court Gauteng,
Pretoria