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[2018] ZAGPPHC 545
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Ndlovu and Another v S (A725/16) [2018] ZAGPPHC 545 (16 February 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER : A725/16
DATE: 16 February 2018
SMANGAUSO
JEFFREY NDLOVU
First Appellant
SPHIWE
METON MOTSOTSO
Second
Appellant
v
THE
STATE
Respondent
JUDGMENT
MABUSE
J
:
(F Diedericks AJ concurring)
[1] This
is an appeal by the appellants Smangaliso Jeffrey Ndlovu, the first
appellant
and Sphiwe Meton Motsotso, the second appellant, against
their conviction on 29 July 2016 by the regional court magistrate and
their subsequent sentences imposed on them by the court
a quo.
[2] The
appellants appeared before the regional court in Nigel where they
were charged
with four counts, namely:
Count
1: Kidnaping;
Count
2: Robbery with aggravating
circumstances read with the provisions of
s 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
;
Count
3: Rape read with the provisions of s
51(1) of the Criminal Law Amendment Act 105 of 1997;and
Count
4: Rape read with
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[3] The
appellants, who enjoyed legal representation by a certain Mr. du
Plessis throughout
the entire trial, pleaded not guilty to all the
four counts. Through the said Mr. du Plessis, both the appellants
made plea-explanations
in respect of each count in terms of s 115 of
the Criminal Procedure Act 51 of 1977 (''the CPA"):
3.1
in
respect
of
count
1, the plea-explanation tendered was that the complainant accompanied
the appellant freely and voluntarily and that there
was no forced
deprivation of freedom;
3.2
with
regard to count 2 the appellant denied that they together or
individually threatened the complainant with knife or with grievous
bodily harm. They further denied that they forcefully took anything
from the complainant. In respect of count 2, the first appellant
explained further that on 10 August 2014 the complainant, K M, gave
him a Blackberry cellular phone and asked him to load music
into it.
She asked the first appellant to keep the said cellular phone until
they would have reached their destination. The said
cellular phone
was found at the first appellant's place;
3.3
with
regard to counts 3 and 4 the two appellants denied that they raped
the complainant. They admitted, though, that both of them
had sexual
intercourse with the complainant but contended that the complainant
had consented to such sexual intercourse.
[4]
The State proceeded thereafter to hand in the J88, a medico-legal
examination report
by a certain Dr. Kruger. This was accepted by the
court as Exhibit 'A'. It was handed in without any objection by the
defence.
This Exhibit 'A' was completed by the said medical doctor on
10 August 2014 during the examination of the complainant. During such
examination the doctor took certain samples. The contents of the J88
were not in dispute.
[5]
The next document that the State handed in was an affidavit in terms
of s 212 of the
CPA. It related to the DNA. This affidavit was handed
in as Exhibit 'B'. The contents hereof were not in dispute. Lastly,
the State
handed in Exhibit 'C', a photo album of the scene of the
offence by the complainant. The photographs contained in it, seven of
them, were not in dispute.
[6]
The charges against the appellant arose from the following
circumstances. The incident
in question took place on 10 August 2014
in the early hours of the morning. At a certain time before the
incident that is the subject
of this appeal, took place, the
complainant was at a certain tavern with a friend of hers. That
friend went away, leaving her at
the tavern. When it was about to
close she arranged with a certain M, a male person who was known to
her, that when they left for
home, in particular for [….] they
should leave together. When he left M informed the complainant. They
left the tavern.
He was not alone though, but was with a group of
other people. When they all came to the corner of Ratanda Town Hall,
there they
stopped and waited for transport that would take them to
Extension 23.
[7] Matwaleni
and his group of friends decided all of a sudden that they would be
going
to Ratanda Hostel and no longer to Extension 23. He left her
behind with two friends of his. Those two friends of his were the
appellants in this matter . The first appellant then said that he did
not have small change. So he decided that he, the second appellant
and the complainant would go to a tavern in Extension 1 where he
would buy a beer so that he could be given small change. That
particular tavern to which they had walked had closed. So they walked
to Extension 3. There it was also closed.
[8]
They then took a road that led them to Khanya Lesedi Secondary
School, knowing there
was no other tavern in the direction in which
they were walking, she asked the appellants where they were going.
The first appellant
told the complainant that there was another
tavern that she did not know of to which they were going. Upon that
reassurance she
continued walking with the appellants into that
direction.
[9] At
the one end of the school premises the first appellant, out of the
blue, started
to throttle her. He warned her not to make noise and
threatened that he would kill her if she did. The second appellant
assisted
to drag her into the bush. She asked them not to harm her
but instead she was prepared to let them have her cellular phone and
money. The first appellant took her cellular phone from her while the
two appellants continued dragging her into the bush. The first
appellant pulled her pants down while the second appellant dragged
her down. The first appellant undressed her of her panty and,
having
done so, undressed himself. While she was lying on the ground the
first appellant asked the second appellant to pull her
legs apart .
The second appellant obliged. The first appellant inserted his penis
into her vagina. She pleaded with the first appellant
to use a condom
at least because she was pregnant. The first appellant dismissed her
plea and told her that she was lying.
[10]
Having
put his penis into her vagina, the first appellant moved up and down.
At some stage he tried to kiss her but she bit him.
It was after she
had bitten him that the first appellant grabbed both her hands and
pressed them down on the ground. When he had
finished having sexual
intercourse with her he withdrew his penis from inside her vagina.
The second appellant then got on top
of her and put his penis into
her vagina. Despite the complainant warning him that she was
pregnant, the second appellant did not
believe her. He too had sexual
intercourse with the complainant after which he withdrew his penis
out of her vagina. He stood by
and put on his clothes.
[11]
Both
appellants asked her not to lay any charges against them. She
promised that she would not do so. The second appellant then
told the
first appellant to give the complainant her phone back but the first
appellant refused. Both of them just walked away
and left her in the
bush. She stood up, took a piece of tissue and wiped her private
parts and put the tissue in her pocket and
put on her clothes.
[12]
She walked to the nearest house where there was a boy who was known
to her. From there she called her
boyfriend who promised to come
where she was. In the meantime she explained what had happened to the
people in the house.
[13]
After
a few minutes her boyfriend arrived at that particular house. Both of
them went to the police station where she explained
her experiences
at the hands of the appellants to the police. She visited, in the
company of the police, the scene where she was
assaulted. There she
found her hairpiece, her house keys and a knife. The police took her
and her boyfriend home where they found
her brother, T. She explained
to T what had happened to her in the early hours of the morning. From
her home they drove to the
house of the first appellant. The first
appellant jumped over the fence on seeing her and the police walking
in his premises and
fled. But her brother and boyfriend gave chase,
caught him, and brought him back. She and the police then went to the
second appellant'
s house. They did not find him. From the second
appellants house they drove to the police station where she laid
charges against
both the first and second appellants.
[14]
The
police took her to the hospital where she was examined on her private
parts by Dr. Kruger as already admitted. While she was
being
examined, another police officer arrived at the said hospital with
her cell phone.
[15]
She
explained that while the first appellant was throttling her, her head
was on his chest; that while her head was in that position,
the
second appellant was pulling her hair as she was unwilling to move
into the direction into which they were pulling her.
[16]
The second State witness, one N M, told the court that in the early
hours of 10 August 2014 and while
he was still asleep, he heard a
knock at his door. He opened the door and saw the complainant who was
crying. He asked her why
she was at his place so early in the
morning. She told him that she had been raped by her brothers'
friends. She named them. She
asked him to contact her boyfriend
because she did not have airtime. He too had no airtime. He managed,
however, to secure airtime
from someone after which he was able to
call the complainant's boyfriend, who arrived later in a green BMW
motor vehicle.
[17]
M T, the third witness, was, at the time of this incident, a member
of the South African Police Services
and stationed at Ratanda Police
Station. He was on duty on 10 August 2014 when the complainant
arrived at the said police station.
She was in the company of her
boyfriend and they were having an argument with each other.
[18] The
complainant spoke to a constable Ndaba and laid a charge of rape with
her. She also
told constable Ndaba that she knew where one of the
suspects stayed. His driver and the complainant then got into the
police motor
vehicle and drove to the place that the complainant
would point out. It was in Extension 23, Ratanda.
[19] Upon
the arrival at a certain house, the driver parked the motor vehicle.
All three of them
alighted from the motor vehicle and walked towards
a shack in those premises. Before they could reach the shack, which
was at the
back of a house, Smangaliso fled. He chased him but
Smangaliso jumped over the fence. He asked the family members of the
complainant
to assist to apprehend Smangaliso. They gave chase in
their motor vehicle and managed to apprehend him. He took him from
the people
and locked him in the back of the police van. The
complainant then told him that Smangaliso was cine of the people who
raped her.
He told Smangaliso that he would be arrested for rape.
Smangaliso was taken to the police stat ion. He denied that the
complainant's
boyfriend was present when they walked into the
premises where Smangaliso's shack was located. Furthermore , he
denied that any
person in his company had a firearm as th ey were
walking to Smangaliso 's shack. Smangaliso was the first appellant.
[20] The
first appellant testified but called no witnesses in support of his
case. He told the
court,
inter alia,
that he had sexual
Intercourse with the complainant with her consent. He told the court
that the complainant consented to sexual
intercourse because she did
all that on her own freewill; she allowed him to grab her. She pulled
her tight, she went down on her
knees and she held him from behind
and pulled him towards her from behind. After he had had sexual
intercourse with the complainant
the second appellant also did so. He
went home. While he was at his home, he decided to go out to the
toilet. As he got out of
the house or shack, he saw a black BMW
stopping at the gate. The complainant's boyfriend alighted from the
said BMW . He was with
other strange people. As he got out of the
motor vehicle the complainant ' s boyfriend, a certain M, was
carrying a firearm. When
he looked at M he could see that he was
going to fight him. He then fled. At the time he saw M for the first
time he did not see
the police officers. He was arrested by M and
other people after he had fled into a certain house in the
neighbourhood.
[21]
The
people who arrested him assaulted him and inflicted bodily injuries
on him. He was injured in the left shoulder where M hit
him with
something that looked like a brick or a roof tile. He also hit him in
the head.
[22]
The
second appellant testified, among others, that he aligned himself
with the evidence of the first appellant. He told the court
furthermore that the complainant said to him that she wanted them to
enjoy and to forget about many things. He had sexual intercourse
with
the complainant because he was sexually aroused. He too called no
witness in support of his case.
[23] After
the evidence of the second appellant, both the appellants indicated
that they would
call no witnesses. The public prosecutor, being
satisfied with the evidence of the State witnesses, was argued that
the State had
proved its case beyond reasonable doubt and for that
reason applied for the conviction, as charged, of the appellants. On
the other
hand, Mr. du Plessis, for the appellants in the court
a
quo,
asked the court to acquit both the appellants after arguing
that there were two mutually destructive versions before the court.
He had contended that the appellants should enjoy the benefit of the
doubt.
[24]
COMMON CAUSE FACTORS
As
correctly pointed out by the court
a quo
in its judgment, the
following factors were common cause factors between the appellants
and the respondent:
24.1
that
on the early hours of 10 August 2014 and in Ratanda, Heidelberg, the
complainant and the appellants were at a certain tavern;
24.2
that
the complainant left the tavern on foot and that at a certain stage
she was in the company of the two appellants;
24.3
that
on that morning, and in the bush, the two appellants had sexual
intercourse with her;
24.4
that
at the time of the sexual intercourse she was in possession of a
Blackberry cell phone;
24.5
that the said cell phone ultimately
ended up in the possession of the first appellant;
24.6
that
on 10 August 2014 the complainant w s taken to Heidelberg Hospital
for medical examination where she was examined by Dr. Kruger
who
recorded his findings in the J88, Exhibit 'A';
24.7
that
blood samples were taken from the two appellants for analysis at the
forensic laboratory;
24.8
that
samples were taken also from the complainant for analysis at the
forensic laboratory;
24.9
that the DNA result confirmed that the
appellants had sexual intercourse with her.
[25] The
court
a quo
correctly pointed out that the only issue between
the State and the defence was whether or not sexual intercourse
between the appellants
and the complainant took place by consent.
There were two versions before the court, one by the complainant in
which she told the
court that she had been raped by the two
appellants and the other by the two appellants who, having admitted
sexual intercourse
with the complainant, contended that such sexual
intercourse took place with the complainants' consent.
[26]
The
court
a quo
was
aware that the respondent bore the onus to prove its case beyond
reasonable doubt and furthermore that the appellants bore no
such
onus to prove their innocence. He correctly pointed out that in the
event of there being a reasonable possibility that the
appellant's
version was true they should be acquitted. With regard to the
complainant the court
a quo
felt
beholden to the archaic rule that the cautionary rule was still
applicable. In S v J
1998 (2) SA 984
(SCA) at 987G the Court had the
following to say:
'The
cautionary "rule" pertaining to the perceived need for
Judicial caution in evaluating the evidence of the complainants
in
sexual cases is inherently unfair towards such complainants, promotes
inequality before the law, reflects, in the main, traditional
bias,
notably against woman, and is profoundly unsuited to an open and
democratic society based on freedom and equality. This court
is
called upon, in the circumstances, to declare the approach which
underlies the application of this so-called rule to be invalid,
and
to direct that it be dispensed with forthwith."
See
also S v D and Another 1992(1) SACR 143 NM.
[27]
The
court
a quo
was
aware, as enjoined by S v Van der Meyden
1999 (2) SA 71
[WLD] that
the decision it arrived at in the evaluation of the evidence must be
based on the entire evidence and furthermore that
it was bound to
consider the strengths and weaknesses of the evidence of all the
witnesses.
[28] The
court
a quo
was
satisfied with the evidence of all the State witnesses. It remarked
that they were credible, honest and truthful witnesses;
that they
gave their evidence in a logical, clear and concise manner. It made
this finding after it had scrutinised their evidence
thoroughly and
in doing so found no contradictions or improbabilities in their
evidence. In analysing the judgment of the court
a
quo
the lapidary of Davis AJ in R v
Dhlumayo and Another
1948 (2) SA 676
AD, 705 must always be borne in
mind that:
"3.
The trial Judge has advantages
-
which
the appellate court cannot have
-
in
seeing and hearing the witnesses and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and whole
personality. This should never be overlooked.
4.
Consequently the appellate court is very reluctant to upset the
findings of the trial
Judge.
6.
Even in drawing inferences the trial Judge may be in a better
position than the
appellate court, in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom
he has observed at the trial."
[29]
In its evaluation of the probabilities, this is what the court
a
quo
correctly pointed out:
"...
and then the question comes to mind, why would this intelligent
lady subject her to all this humiliation of making a rape matter
or
saying she was raped, whereupon it served no purpose because she
could have just gone home and tell some other story why she
was late.
It is always so convenient to say yes, she is making a false
allegation because she came late at home, but why would
this clearly
intelligent lady go and lay down in the veld in grass, soil her
clothes. Why is her hair extensions found at the place?
It does not
add up....
If
this was so consensual, why not go to accused 1's or 2's house."
[30]
The court
a
quo
found corroboration of the
complainant's version in the fact that when she arrived at
Nkululekho's house, she was crying. A further
corroboration, it may
be added, can be found in the fact that when the first appellant saw
the police and the complainant arrive
at his place of residence,
before he could establish why they were there, he fled. This flight
may indicate consciousness of guilt.
Another piece of evidence that,
as correctly pointed out by the court
a
quo,
supports the complainant's
version that she was raped was the fact that her hair piece was found
at the scene when she visited it
in the company of the police. This
corroborates her evidence that she was pulled or dragged by her hair
to the bush. Finally, if
indeed the complainant had consented to
having sexual intercourse with the appellants, why did they not go to
have it at either
the first or the second appellants' place. With
regard to the cellular phone there is no reasonable explanation why
she would ask
the first appellant to keep it if she went to a tavern
with it, had it in her possession all the time while she was at the
tavern
and kept it in her possession all the time until she was
dispossessed of it by the appellant. Therefore, the first appellants'
version that the complainant asked him to keep the cellular phone
because she was wearing tight trousers is pure lies.
[31]
The court
a
quo,
and in our unanimous view,
quite correctly so, made adverse remarks about the evidence of the
appellants. In a nutshell, it found
that their evidence was false and
fabricated. For that reason it rejected it. Accordingly, in respect
of count 2 robbery and count
3 rape we have concluded that the first
appellant was correctly convicted and that his appeal against his
convictions in respect
of the said counts cannot be sustained.
[32] It
is the court
a quo's
conviction of the appellants on the count
of kidnapping that is to us somewhat worrisome. The i1llegation
against the appellant
in that count, which was count 1, was that on
10 August 2014 the appellants did unlawfully and intentionally
deprive the complainant
of her freedom of movement by means of
grabbing her and forcing her to go with them. According to the
complainant the two appellants
dragged her into the bush where they
had sexual intercourse with her and thereafter left her. One needs to
scrutinise the purpose
of the said kidnapping. Kidnapping must have
the intention to take away the liberty of a victim. It does not
matter how long it
endures but the intention must be clear. There
cannot be kidnapping if the intention of such deprivation of liberty
is merely to
have sexual intercourse with the victim. A robber who
pulls the victim from the public to a dark passage where he robs the
victim
does not, by pulling such victim into the passage, commit
kidnapping. The interest that is protected by the kidnapping is the
liberty
of the victim. A fundamental human right is that of freedom,
not only of a person but also of movement.
[33]
Section 12 (1) of the Constitution of the Republic of South Africa
Act 108 of 1996 ("the Constitution")
provides that:
"Every
person has the right of freedom and security of the person, which
includes the right
-
(a)
not to be deprived of freedom
arbitrarily or without just cause.”
Accordingly,
the crime of kidnapping is committed where the intention of the
kidnapper is to deprive the victim of his or her freedom
of movement.
Now Mokgoatlheng J and Badenhorst AJ dealt with a similar set of
facts in their unreported case of Dlamini
v
The State
(A466/2009) [2010] ZAGP JAC 123 [3 December 2010) stated that:
“
20.
The deprivation of the complainant of liberty was predicated on a
continuous intent in pursuance of their criminal transaction to
rape
the complainant. The commandeering of the complainant from the train
into the waiting room was with the continuous criminal
intention of
executing the rape which could not occur without depriving the
complainant of her liberty in that "specific period"
when
the complainant was raped.”
See
also S
v
Grobbelaar and Another
1966 (1) SA 507
A at page 500
G-H. In Ex Parte Minister of Justice: in re: Moseme
1936 AD 52
, 57 De
Villiers JA had the following to say:
“
The
question of splitting of charges can only arise In a case where on
accused is charged, in one
and the same
trial, with several 'that is two or more' offences arising out of the
some act or connected series of acts or transactions.”
[34]
In our view charging the appellants with kidnapping and rape in the
circumstances of this case amounted
to splitting of charges or
convictions. This is so because, as we pointed out earlier, the true
intention of the appellants was
more to have sexual intercourse with
the complainant than to deprive her of her liberty. They could not
have sexual intercourse
with her in the open without dragging her
into the bush. The conviction of the appellants by the court
a quo
in respect of this count cannot stand. We therefore agree with
counsel for the appellant. The appeal against their conviction in
respect of count 1 should, in our view, be upheld.
[35] The
conviction of the second appellant on the charge of robbery does not
enjoy the support of
evidence. While the two appellants were dragging
the appellant into the bush, it was the first appellant who took her
cell phone
from her, according to the complainant's evidence. After
they had raped the complainant, and were about to leave, the second
appellant
asked the first appellant to give the complainant her phone
back but the first appellant refused. In our unanimous view, the
State
has not proved that the second appellant committed the offence
of robbery or any offence in respect of the cellular phone. He should
not have been convicted of robbery.
[36]
We now turn to the sentence imposed by the court
a quo
on the
appellant. The starting point with regards to sentence in R v
Maphumulo and Others
1920 AD 56
, 57 where the Court had the following
to say:
"The
infliction of punishment is pre-eminently a matter for the discretion
of the trial court. It can better appreciate the
atmosphere of the
case and can better estimate the circumstances of the locality and
the need for a heavy or light sentence than
an appellate tribunal,
and we should be slow to interfere with its discretion."
This
Appeal Court can only interfere with the sentence imposed by the
trial court in the following circumstances as set out in R
v S
1958
(3) SA 103
AD, 104:
'There
are well recognised grounds on which a Court of Appeal will interfere
with the sentence; where the trial Judge ,..,or the
magistrate, as
the case may be
-
has
misdirect himself on the law or on the facts, or has exercised his
discretion capriciously or upon a wrong principle or so
unreasonable
as to induce a sense of shock.... Where no such grounds exists,
however the Appeal Court will not interfere merely
because the Appeal
Judges conceded that they themselves would not have imposed a
sentence ."
[37]
In
casu,
the
court took into account the relevant factors in the assessment of the
appropriate sentence it wanted to impose on the appellant.
In our
view, it weighed such factors properly before it arrived at the
suitable sentence. It committed no misdirection. It was
faced with a
situation where a sentence in respect of count 3 was prescribed and
it found, and in our view correctly so, no substantial
and compelling
circumstances in which case it was compelled to impose the ordained
sentence. The court a quo was satisfied upon
the consideration of all
the relevant factors that life imprisonment was, in the
circumstances, an appropriate sentence. Referring
to the rape the
court a quo correctly stated that the rape was the deliberate act of
savagery, an act which is too common In our
country at this time. In
S v Malgas
2001 (1) SACR 469
(SCA) the Court stated that:
"The
specified sentences are not to be deported from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, a version imprisoning first offenders, personal
doubts as to efficacy of the policy and marginal differences
in
personal circumstances or degrees between co-offender s are to be
excluded."
[38]
The
court a quo kept the complainant under observation during her entire
evidence. It made the observation that she was emotionally
affected;
that during the course of her evidence she was crying. Further that
two adult males, strong of body, were capable of
overpowering the
complainant and dragged her into the veld where they raped her like
an animal. The court described the two appellant's
attack of the
complainant as a deliberate act of savagery and in support of its
description of the manner in which the two appellants
attacked the
complainant relied on the case of S v Chapman
1997 (2) SA 3
(SCA)
here the court had the following to say:
"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. Women in South Africa are entitled to
protection. They hove a legitimate claim to walk peacefully
on the
streets, to enjoy their shopping and their entertainment, to go and
come from work and enjoy the peace and tranquillity
of their homes,
without the fear, the apprehension and insecurity, which constantly
diminish the quality and enjoyment of their
lives."
He
continued and quoted the following paragraph:
“
The
courts are under a duty to send a clear message to the accused, in
the present case, to other potential rapists and to the community
that the courts are determined to protect the quality, dignity and
freedom of all women and they will show no mercy, to those,
who seek
to invade those rights.”
[39]
We have unanimously reached the conclusion that the appeal against
sentence should succeed partly.
In the result we make the following
order:
1.
The
appellants' appeal against conviction in respect of count 1, and so
is the sentence in respect of that count, is hereby upheld.
2.
The
conviction of both appellants in respect of count 1 is hereby set
aside and in its place is substituted the following:
"Accused
1 and 2 are hereby found not guilty and acquitted in respect of count
1."
3.
In
respect of count 2 the conviction of the first appellant is hereby
upheld.
4.
The
second appellant's appeal against his conviction in respect of count
2 is hereby set aside and in its pl;1ce is substituted
the following:
"Accused
2 is found not guilty and acquitted in respect of count 2."
5.
The sentence imposed by the court a quo on the second appellant in
respect of count 2 is hereby
set aside.
6.
The appeal of the appellants against their conviction in respect of
count 3 is hereby dismissed.
PM
MABUSE
JUDGE OF THE HIGH COURT
F DIEDERICKS
ACTING JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the appellant:
Adv. LA van Wyk
Instructed
by:
Pretoria Justice Centre (Legal Aid Board)
Counsel
for the respondent:
Adv. JP van der Westhuysen
Instructed
by:
Director of Public Prosecutions
Date
heard:
12 February 2018
Date
of Judgment:
16 February 2018