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[2018] ZAGPJHC 520
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Makgotho and Another v S (A251/2017) [2018] ZAGPJHC 520 (7 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: A251/2017
In the matter
between:
MALEYA
MAKGOTHO
First
Appellant
ABEL
MAKHURA
Second
Appellant
and
THE
STATE
Respondent
J U D G M E N T
MAHALELO,
J
:
[1] The appellants appeared before the
Regional Magistrate of Roodepoort charged with the following;
kidnapping ( appellant 2 only)
and assault with intent to do grievous
bodily harm. They were legally represented and pleaded not guilty. On
18 May 2017, the first
appellant was convicted of assault with intent
to do grievous bodily harm and the second appellant was convicted of
kidnapping
and assault with intent to do grievous bodily harm. On 22
August 2017 they were each sentenced to 5 years’ imprisonment
in
terms of Section 276(1)(i) of Act 51 of 1997, the two counts
having been taken as one for the purpose of sentence in respect of
the second appellant. With the leave of the trial Court the
appellants appeal against conviction and sentence.
BRIEF OVERVIEW OF
THE FACTS AND EVIDENCE
[2] The facts
underlying the conviction are briefly as follows. Ms Manavhela,
the complainant, testified that she knew the
first appellant from 24
March 2017 when he proposed love from her and she did not accept. On
the same day she consumed alcohol
with the first appellant at a
tavern and spent that night at his place. In the morning when she
woke up she put on his underwear
and took the second one with her
without his permission and left whilst he was still sleeping. On the
day of the incident he had
gone to fetch her jersey from her friend
known as Papiki who was a DJ at Sithole’s tavern. It was late
at night. She waited
for Papiki to finish after which he was to
accompany her home. Whilst seated there, the first appellant
approached her and requested
her to leave with him and she refused.
[3] The first
appellant left and came back in the company of the second appellant
and the second appellant grabbed her by her clothes
and pulled her
forcefully out of the gate of the tavern. At that stage the first
appellant walked behind them until they reached
his room.
Inside the first appellant’s room she was assaulted by both
appellants. The first appellant assaulted
her with open hands
on her head and the second appellant hit her with fists and open
hands on her face. The first appellant then
brought a pressing iron
and plugged it in. When it was hot the second appellant took it and
burnt her on her cheek. This he did
whilst she was screaming and
crying. During the assault the second appellant further kicked her.
People came knocking at the door
as a result of her screams but the
appellants refused to open. She then told the first appellant that
she would go and fetch his
other underwear and the cell phone, he
then opened for her. She testified further that she had lied to the
first appellant that
she had his cell phone because she wanted them
to open for her. She was injured on her left cheek and her upper lip
was swollen.
Thereafter she went home and reported the incident to
her brother and later to her sister.
[4] Germina
Manavhela testified that she is the older sister and guardian of the
complainant. She told the Court that the complainant
was brought to
her house by her brother on 25
March
2017. She observed that she had a triangular burn wound on her left
cheek and the outer layer of the skin was peeling off
and her mouth
was swollen. The complainant informed her that she was assaulted by
the two appellants. She took her for medical
examination on 27 March
2017.
[5] The medical examination by Dr
Tukhelo Ramakula recorded as usual on the J88 form, revealed that the
complainant presented with
3 X 5 centimetre burn wound under her left
eye on the cheek. The doctor described the injury as being unique
because it was triangular
in shape and was consistent with the
history furnished by the complainant that she was assaulted and burnt
with an iron on her
left cheek. According to Dr Ramakula the burns
were superficial and in different stages of healing. Dr Ramakula also
observed that
the complainant’s upper lip was swollen.
[6] According to Dr
Ramakula, it is possible that the injuries were inflicted on the
complainant on 25 March 2017 as part of the
burns were healing and
others were still red and inflamed. He concluded that the state of
healing of the burn wounds was consistent
with the history given and
that it was possible that falling onto a hot iron could cause the
same burn marks.
[7] Both appellants
testified and denied that they assaulted the complainant. The first
appellant denied that he kidnapped the complainant.
He testified that
he is friends with the second appellant and the complainant was his
girlfriend at the time. He added that the
complainant slept at his
place on more than one occasion before the incident and she stole his
underwears, money and a cell phone.
Both the appellants testified
that the complainant followed them to the first appellant’s
place voluntarily because she wanted
them to buy her a beer. The
appellants stated that the complainant sustained the injuries on her
left cheek and upper lip when
she fell on top of the second appellant
who was in possession of an iron busy ironing a jersey.
[8] This appeal turns on whether the
appellants are guilty of the offences they are charged with. The
question to be answered is
whether the learned magistrate misdirected
himself in his factual findings that the State proved the guilt of
the appellants beyond
a reasonable doubt.
[9]
The co
mplainant
is a single witness. It is trite that the evidence of a single
witness should be treated with caution. A conviction
will normally
follow only if the evidence is substantially satisfactorily in every
material respect or if there is corroboration.
It is clear from the judgment of the court a quo that the learned
magistrate was alive to the need to evaluate the evidence in
its
totality. As the version of the appellants is in conflict with the
evidence presented by the state witnesses, the trial court
correctly
considered the probabilities and improbabilities which emerged in
both the state and the defence case as well as the
credibility of all
the witnesses who testified.
The
magistrate considered the totality of the evidence including the
evidence of the complainant’s sister who testified that
she
observed burn wounds on the complainant’s left cheek which were
peeling off and oozing when the complainant arrive
d
at home.
[10]
The court
a
quo
critically evaluated the complainant’s evidence and after
considering the totality of the evidence and in light of the injuries
sustained by the complainant rejected the appellants’ version
that the complainant fell on top of the first appellant who
was
holding a hot iron in his hand. The magistrate found that the
version of both appellants is not reasonably possibly true
and
correctly rejected it. I agree with his finding more so that the
appellants failed to explain how the complainant fell onto
a hot iron
with her left cheek. I am satisfied that the guilt of the appellants
has been established beyond a reasonable doubt.
I am mindful of the
fact that in
S
v Francis
[1]
it was held that the powers of a court of appeal to interfere with
the findings of fact of a trial are limited bearing in mind
the
advantage which a trial court has of seeing, hearing and appraising a
witness. In the absence of any misdirection the trial
court’s
conclusion, including its acceptance of witnesses’ evidence is
presumed to be correct.
[11] A court on appeal will only
interfere if the court
a quo
has misdirected itself materially
on either the facts or the law. I have read the judgment of the
magistrate and I have carefully
analysed the evidence. I come
to the conclusion that the trial court exercised the necessary
caution in its approach to the
complainant’s evidence and that
there was no misdirection. I am therefore not at liberty to interfere
with the court
a quo’s
finding. The appellants’
appeal against conviction stands to fail.
SENTENCE
[12]
With regard to sentence both appellant alleged that the sentence of
five years’ imprisonment in terms of section 276(1)(i)
of the
CPA is disproportionate given the circumstances of the case, so a
lesser sentence ought to have been imposed.
It would be appropriate to state the principles when an appeal Court
is asked to interfere with a sentence imposed by the trial
Court.
Sentencing is pre-eminently a matter within the discretion of the
trial Court. The discretion must be exercised judicially.
An appeal
court will interfere only if the sentence is vitiated by an
irregularity or a misdirection, or is one which no reasonable
Court
would have imposed. In other words, whether there is a striking
disparity between the sentence imposed and that which the
appeal
Court considers appropriate. If there was a misdirection, whether it
is of such a nature or degree of seriousness that shows
that the
trial Court did not exercise its discretion at all or exercised it
improperly or unreasonably. See S v Collet
1990 (1) SACR 465
(A).
[13] There are aggravating factors in
this matter. Both appellants took the law in their own hands. They
inflicted serious injuries
on the complainant’s face. She is
left with life- long scars on her face. The learned magistrate took
into account the principles
applicable to sentencing and arrived at a
just sentence. The sentence imposed does not instil a sense of shock
in us and is not
inappropriate. I would dismiss the appeal on
sentence.
[14] In the result the following order
is made.
14.1 Appeal against Conviction and
Sentence by both appellants is dismissed.
________________________________________
M B MAHALELO
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree:
______________________________________
U BHOOLA
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
For the
appellant
Adv M Buthelezi
Instructed
by
Legal Aid South Africa
For the
respondent
Adv I Bayat
Instructed
by
Director of Public Prosecutions, Gauteng
Date of
hearing
02/08/2018
Judgment delivered
on
07/09/2018
[1]
1991(1)
SACR 198 (A)