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[2018] ZAGPJHC 639
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Sebogo and Another v S (A55/2018) [2018] ZAGPJHC 639 (12 November 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A55/2018
In
the matter between:
SEBOGO,
LESLEY
First
appellant
KHASELA,
TSEPO
Second
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
MAIER-FRAWLEY
AJ:
1.
The appellants were convicted in the
regional court presiding at Randfontein of the crimes of robbery with
aggravating circumstances
(count 1) and attempted robbery with
aggravating circumstances (count 2). In addition, the first appellant
was convicted of four
counts of rape (counts 3 to 6).
2.
The trial court sentenced the appellants as
follows:
Appellant 1:
Count 1: 15 years of
imprisonment.
Count 2: 6 years of
imprisonment.
These two sentences were
ordered to run concurrently.
Counts
3 to 6: 15 years of imprisonment in respect of each count, however,
these sentences were ordered to run concurrently.
The
first appellant’s effective term of sentence is thus 30 years
imprisonment.
Appellant 2
Count 1: 15 years of
imprisonment;
Count 2: 6 years of
imprisonment.
These two sentences were
ordered to run concurrently.
Appellant
2 was acquitted on counts 3 to 6 (rape) at the end of the State’s
case.
The
first appellant’s effective term of sentence is thus 15 years
imprisonment.
3.
In addition, both appellants were declared
unfit to possess a firearm in terms of section 103 (1) of Act 60 of
2000.
4.
The appeal to this court is with the leave
of the trial court and lies against both conviction and sentence.
5.
A summary of the matter is that one of the
complainants was raped twice by the first appellant, and twice by
another person, who
was not arrested or charged, hence, the four
counts of rape in the case of appellant 1. He was charged with these
offences in terms
of the provisions of section 51(
2
)
of the Criminal law Amendment Act, 105 of 1997 (‘CLAA’),
and not section 51(1) in terms of which rape by a person
more than
once or by more than one person would have been punishable by means
of a minimum sentence of life imprisonment.
Background:
6.
The first complainant (Ms. M) testified
that she and Mr. Eric Witbooi (second complainant) were accompanying
another friend en-route
to his destination when they passed by a
group of people of which the appellants formed part. On their return,
the first complainant
noticed that both appellants were standing with
one other person who was dressed in a maroon t-shirt, at a different
spot located
in the middle of a football field. She recognised the
appellants as she had passed by them earlier. As the complainants
reached
the area of a tuck shop, the appellants, accompanied by the
unknown suspect, approached them from behind. They were in possession
of a knife when they grabbed the complainants. Cell phones and money
were demanded from both the complainants. Mr Witbooi was searched
and
assaulted by the second appellant and the unknown suspect. Ms. M was
assaulted by the first appellant when she tried to walk
away. The
appellants and the unknown suspect robbed Mr. Witbooi of his belt,
identity document and ATM bank card. They also demanded
his pin
number, which Mr. Witbooi eventually provided in the struggle.
7.
The complainants were thereupon taken to an
abandoned house where they were initially locked inside a toilet
whilst the appellants
and the unknown suspect were having a
discussion. When the toilet was opened, the second appellant was not
present any longer.
They were told that the second appellant had gone
to the ATM to withdraw money. The complainants were then taken to
another area
and ordered to lie on the ground until the second
appellant returned, which is when Mr. Witbooi was again assaulted. He
managed
to escape, leaving the first complainant behind. The first
complainant was taken to a darker spot in the veld where the first
appellant
tied her to a tree with a belt and removed her clothes. She
was later untied and ordered to lay on the ground, whereupon the
first
appellant proceeded to rape her by penetrating her vagina with
his penis without her consent. Afterwards, the unknown suspect also
raped the first complainant whilst the first appellant was standing
aside, watching. When the unknown suspect had finished, the
first
appellant raped the first complainant for a second time, followed by
the unknown suspect who also raped the first complainant
for a second
time.
8.
Mr Witbooi testified that R1000.00 had been
withdrawn from his bank account. He said that he knew the first
appellant by sight prior
to the incident. In addition, the
complainants identified the perpetrators by means of their clothing,
height and complexion. During
the commission of the robbery and
attempted robbery, both complainants were in close proximity to the
perpetrators in a well-lit
area located near a Spaza shop. They thus
had both the means and opportunity to observe their features. The
undisputed evidence
was that the complainants were in the presence of
the same three assailants, at least until such time as the second
appellant left
the group to go and withdraw money and the second
complainant managed to escape. The appellants were initially pointed
out by the
second complainant after the incident and arrested. The
first complainant’s evidence that she identified the second
appellant
as one of the robbers amongst 7 other people inside a
police cell at the police station was never disputed by the second
appellant.
9.
Both appellants denied that they were at
the scene or that they participated in the commission of the
offences. They relied upon
alibis. The primary issue in dispute
concerned the identity of the perpetrators, that is, whether the
first and second appellants
were two of the robbers, and whether the
first appellant was one of the persons who had raped the first
complainant.
10.
As regards the defence of mistaken
identity, the defence relied upon the leading cases on
identification, amongst others,
S v
Mehlape
1963 (2) SA 29
(A) ,
R
v Shekele
1953 (1) SA 636
(T) at 638;
S
v Charzen and another
2006 (2) SACR
143
;
S v Mthetwa
1972 (3) SA 766
(A) at 768A and
S v
Nango
1990 (2) SACR 450
(A). The
principles relating to identification are trite.
11.
The
courts have long recognised that alibi evidence should be approached
with caution. The principle is aptly stated in
R
v Cleghorn,
[1]
where
the following is said:
‘…
there
is good reason to look at alibi evidence with care. It is a defence
entirely divorced from the main factual issue surrounding
the
corpus
delicti,
as it rests upon extraneous facts, not arising from the
res
gestae.
The
essential facts of the alleged crime may well be to a large extent
incontrovertible, leaving but limited room for manoeuvre
whether the
defendant be innocent or guilty. Alibi evidence, by its very nature,
takes the focus right away from the area of the
main facts, and fives
the defence a fresh and untrammelled start. It is easy to prepare
perjured evidence to support it in advance.
’
[2]
12.
The
first complainant was deemed to be a single witness in respect of the
rapes committed against her. In terms of
s 208
of the
Criminal
Procedure Act, 51 of 1977
, an accused can be convicted of any offence
on the single evidence of any competent witness. It is, however, a
well-established
judicial practice that the evidence of a single
witness should be approached with caution, his or her merits as a
witness being
weighed against factors which militate against his or
her credibility (see, for example,
S
v Webber
1971
(3) SA 754
(A)
at 758G-H). The correct approach to the application of this so-called
‘cautionary rule’ was set out by Diemont JA
in
S
v Sauls and Others
1981
(3) SA 172
(A)
at 180E-G as follows:
‘
There
is no rule of thumb, test or formula to apply when it comes to a
consideration of the credibility of the single witness…
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied that the
truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 [in
R
v Mokoena
1932
OPD 79
at 80] may be a guide to a right decision but it does not mean “that
the appeal must succeed if any criticism, however slender,
of the
witnesses’ evidence were well-founded” (per Schreiner JA
in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955
(2) SA 566
(A)
at 569.) It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common
sense.’
13.
The trial court considered the issue of
identification of the robbers at
inter
alia,
page 152 of the record where it
is stated:
‘
They
also corroborated each other that the visibility was good and clear
at the spot where they first met the accused.
This
must be viewed in light of the fact that the complainants testified
that they had seen both the first and the second appellants
prior to
the robbery and that the first appellant was known to the second
complainant by sight, since they resided in the same
area. More
significantly, blood which was found on the complainant’s
underwear was found to match the DNA of the first appellant.
This
evidence independently corroborates the first complainant’s
version. As opposed to this, the first appellant relied
upon an
alibi, which was, in my view, rightly rejected by the court in the
light of the overwhelming conspectus of evidence pointing
against its
credence.
14.
The crisp issue which this court has to determine is whether
the findings of the trial court are in accordance with justice or
whether
such court erred in its findings.
15.
The correct approach to the evaluation
of evidence in a criminal trial was enunciated by the Supreme Court
of Appeal as follows
in S
v Chabalala
2003(1) SACR 134 (SCA), at paragraph
15:
'The
trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen
2001
(2) SACR 97
(SCA). The correct approach is to weigh up all the elements which
point towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an
ex
post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence... .'
16.
Higher
courts have cautioned that an accused’s claim to the benefit of
a doubt, when it may be said to exist, must not be
derived from
speculation but must rest upon a reasonable and solid foundation
created either by positive evidence or gathered from
reasonable
inferences which are not in conflict with, or outweighed by, the
proved facts of the case.
[3]
17.
In the determination of its verdict, the trial court looked at
the totality of the evidence. See:
S v van der Meyden
1999 ( )
SACR 97 (W). Secondly the trial court accepted that the onus was on
the prosecution to prove its case beyond reasonable
doubt, and, on
the question of an alibi, that the alibi was false beyond reasonable
doubt.
18.
The first appellant’s version was a denial of his
involvement the incident or that he knew the first complainant. The
version
of the first complainant was bolstered by the objective DNA
results, which to my mind, constitutes corroborating evidence that
the first appellant in fact had sexual intercourse with the
complainant. That evidence was, to say the least, compelling.
19.
The trial court was, in my view, correct in convicting the
first appellant of rape, at least on the two counts in respect of
which
she alleged he had intercourse with her without her consent.
20.
The
prosecution also relied upon the two counts of rape of the unknown
suspect who was not arrested or charged. It relied upon the
principle
of common purpose. Once again the principle of common purpose is well
established. See:
S
v Sefatsa
1988
(1) SA 868
(A),
S
v Mgedezi
1989 (1) SA 687
(A) at 705I-706C,
[4]
S v
Thebus and Another
2003 (6) SA 5005
(SCA).
21.
On the evidence of the first complainant, which was accepted
by the trial court, the complainant was raped four times, twice by
the first appellant and twice by the suspect who was not arrested.
The question is whether the appellant must pay for the wrongs
of
another. The issue of common purpose and its requirements, as set out
in Mgedezi
supra
, clearly indicate that that can be the case.
The doctrine of common purpose was ratified in the constitutional era
by Justice Moseneke
in
Thebus
and Another v S
2003
(6)
SA 505 (CC) at paras 65 & 68
.
It was not contended on
behalf of the first appellant at the hearing of the appeal that the
requirements of common purpose were
not met on the facts of the
present case.
22.
When appraising the alibi evidence, the trial court found that
the alibi of the first appellant should be rejected on the basis that
his blood was found on the underpants of the first complainant. It
reasoned that if he was not there, this begs the question as
to how
his blood could have been identified on the first complainant’s
underpants by means of DNA.
23.
As
regards the second appellant’s alibi, in my view, when
evaluated in the light of all the evidence, the alibi of the second
appellant was also rightly rejected by the trial court.
[5]
24.
The appeal in respect of conviction should accordingly be dismissed.
Sentence
25.
It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court.
[6]
As pointed out in
Hewitt
v The State
(637/2015)
[2016] ZASCA 100
(9 June 2016),
[7]
an appeal court
‘…
may
not interfere with this discretion merely because it would have
imposed a different sentence. In other words, it is not enough
to
conclude that its own choice of penalty would have been
an
appropriate penalty. Something more is required; it must conclude
that its own choice of penalty is the appropriate penalty and
that
the penalty chosen by the trial court is not.
[8]
Thus, the appellate court must be satisfied that the trial court
committed a misdirection of such a nature, degree and seriousness
that shows that it did not exercise its sentencing discretion at all
or exercised it improperly or unreasonably when imposing it.
[9]
So, interference is justified only where there exists a ‘striking’
or ‘startling’ or ‘disturbing’
disparity
between the trial court’s sentence and that which the appellate
court would have imposed. And in such instances
the trial court’s
discretion is regarded as having been unreasonably exercised.
[10]
’
26.
The rape of the first complainant warrants a sentence of 15
years on each count in terms of
section 51(2)
of the CLAA. The CLAA
prescribes that upon conviction and in the absence of substantial and
compelling circumstances, the court
is to impose such a sentence. In
S v Malgas
2001 (1) SACR 461
SCA at para 25D, Marais JA
cautioned that courts should not deviate from the prescribed
sentences lightly or for flimsy reasons.
This view was subsequently
endorsed in
S v Matyityi
2011 (1) SACR 40
SCA at para [11].
27.
The courts are duty bound to send out a clear message that
perpetrators of serious crimes will be punished appropriately and
courts are moreover required to show due deference to the
legislature’s enactments of laws. See: Matyityi
supra
.
28.
Rape under
any
circumstances is a deplorable and terrible
crime. See:
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
at 8. It is an act of
heinousness that defies logic and disaffiliates from sense and
sensibility. In my view, it is nothing more
than a show of power and
control which is aimed at annihilating the dignity of its prey.
Moreover, it is known to leave far-reaching
yet oft unseen wounds
upon the psyche of its victims. That is undoubtedly why the
legislature enacted such serious punishments
for such offences.
29.
The question which needs answering is whether the sentence imposed
induces a sense of shock in that it offends one’s sense
of
justice, being disproportionate to the interests of the individual
and society and the seriousness of the offence.
30.
The first appellant was 25 years of age when the crimes were
perpetrated. He was a mature man. His behaviour, by any stretch
of
the imagination, cannot be accepted, nor should it be tolerated. He
has shown no remorse for his actions and furthermore denied
that he
committed the crimes, notwithstanding the overwhelming evidence
against him.
31.
Although the second appellant was 23 years old when the crimes of
which he was convicted were committed, he had a previous conviction
for robbery with aggravating circumstances. He likewise showed no
remorse for his actions, remaining unrepentant instead. His prior
sentence seemingly failed to deter him from committing another
violent crime.
32.
As pointed out in
Director of Public Prosecutions, North Gauteng,
Pretoria v Thusi
2012 (1) SACR 423
(SCA) at para 19, ‘when
weighed against the objective gravity of these offences, their
prevalence in South Africa and the
legitimate expectations of society
that such crimes must be severely punished, neither the youthfulness
of the respondents not
their prospects of rehabilitation tip the
balance in their favour.’
33.
It was
submitted on behalf of the appellants that the trial court ought to
have considered the period each appellant had spent in
custody
awaiting trial.
[11]
As pointed
out by counsel for the respondent, this factor, taken on its own,
does not constitute a substantial and compelling circumstance.
The
correct approach is rather whether the effective sentence meted out
is proportionate to the crimes committed. In my view, the
effective
sentence of 30 years imprisonment in respect of the first appellant
and that of 15 years imprisonment in respect of the
second appellant,
is in accordance with the prescribed minimum sentencing regime and is
proportionate to the serious and highly
prevalent crimes committed.
Had the first appellant been charged under the provisions of
section
51
(1
)
of the CLAA, as he could have been, he would have been given a
sentence of life imprisonment in respect of his rape conviction.
The
fact that the magistrate ordered the sentences to run concurrently in
respect of the counts of robbery and rape, indicates
that the learned
magistrate properly applied his mind to the imposition of sentence,
taking into account the time spent by the
appellants in custody
whilst awaiting trial and the triad of traditional factors mentioned
in
S v
Zinn
1969
(2) SA 537
(A).
34.
In my view, having found that there were no substantial and
compelling reasons to deviate from the prescribed minimum sentence,
the court was entitled and indeed enjoined to impose the sentence it
did in respect of the offences for which the appellants were
respectively convicted. The effective sentence given to the
appellants is neither unreasonable nor shockingly inappropriate. The
appeal in respect of sentence should accordingly be dismissed.
_________________
Maier Frawley AJ
I agree
________________
Fisher J
Date
of hearing: 22 October 2018
Judgment
delivered: 12 November 2018
APPEARANCES:
Counsel
for Appellants: A.H. Lerm
Attorneys
for Applicant: Legal Aid South Africa
Counsel
for Respondent: J. Steyn
For
Respondent: The Director of Public Prosecutions,
Johannesburg.
[1]
100 CCC (3d) 393, quoted with approval in
Thebus
and Another v S
[2003] ZACC 12
;
2003
(6) SA 505
(CC) at para 60.
[2]
Id at para 22 from the minority judgment of Major J, which does not
appear inconsistent, on this point, with the approach found
in the
majority judgment at para 4.
[3]
See:
S
v Sauls and Others
1981
(3) SA 172
(A)
at 182G - H;
S
v Rama
1966
(2) SA 395
(A)
at 401;
S
v Ntsele
1998
(2) SACR 178
(SCA)
at 182b-h.
[4]
Where
the court in
Mgedezi
said
the following: “
In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in S v Sefatsa & others
1988 (1) SA 868
(A), only if certain prerequisites are satisfied. In the first
place, he must have been present at the scene where the violence
was
being committed. Secondly, he must have been aware of the assault on
the inmates of room 12. Thirdly, he must have intended
to make
common cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of
a common purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of others.
Fifthly, he must have had
the requisite mens rea; so, in respect of the killing of the
deceased, he must have intended them to
be killed, or he must have
foreseen the possibility of their being killed and performed his own
act of association with recklessness
as to whether or not death was
to ensue.
”
[5]
See:
para 11 above. As an aside, the trial court correctly rejected the
version of the second appellant that he did not know the
first
appellant, as false. The second appellant testified that he ‘nearly
knew’ the first appellant, yet in the next
breath, he stated
that he did not know him. Both appellants supplied their addresses
as Moteane Street in Mohlakeng and when
confronted with this, the
second appellant denied having supplied such address to the police.
Later he stated that he knew the
first appellant by sight and by the
name of Lesley. He subsequently elaborated that he knew the first
appellant since 1999 and
that they both stayed in the same area. The
learned magistrate considered the evidence in the light of the
reliable and credible
identity evidence that had been tendered by
the complainants. In the light of his evaluation of all the
evidence, it comes as
no surprise that the evidence of the second
appellant was rejected as false by the learned magistrate.
[6]
S
v Pieters
1987 (3) SA 717
(A) at 727F-H;
S
v Sadler
2000 (1) SACR 331
(SCA) at para 8;
S
v Swart
2000 (2) SACR 566
(SCA) para 21. See also,
S
v L
1998 (1) SACR 463
(SCA) at 468
f
;
S
v Blank
1995 (1) SACR 62
(A) at 65
h-i
.
[7]
At para 8.
[8]
Sadler,
para10.
[9]
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
[10]
S v
Snyders
1982 (2) SA 694
(A) at 697D;
S
v N
1988 (3) SA 450
(A) at465I-J;
S
v Shikunga
465I-466A;
S v
Shikunga & another
1997 (2) SACR 470
(NmS) at 486
c-f.
See
also
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
1987 (3) SA 717
(A) at 733E-G;
S
v Petkar
1988 (3) SA 571
(A) at 574D; 1997 (2) SACR 470 (NmSC) at 486
d.
See
also
S
v Abt
1975 (3) SA 214
(A);
S
v Birkenfield
2000 (1) SACR 325
(SCA) para 8;
S
v M
1976 (3) SA 644
(A) at 649F-650A;
S
v Pieters
fn
3 at 733E-G.
[11]
It
was accepted on behalf of the appellants at the hearing of the
appeal and in written argument presented to court, that there
was no
indication that any unreasonable delays had occurred in the conduct
of the trial.