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[2017] ZAKZPHC 5
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Mxolisi v S (AR483/16) [2017] ZAKZPHC 5 (23 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR483/16
In
the matter between:
MXOLISI
THABANI
DUMISA Appellant
and
THE
STATE Respondent
APPEAL JUDGMENT
Delivered on: 23
February 2017
ME
NKOSI AJ:
[1]
The appellant was convicted of the crime of rape of an adult woman
and sentenced to ten (10) years direct imprisonment. He is
now
appealing, with the leave of the court
a quo
, against both his
conviction and sentence.
[2]
In essence the appellant has based his appeal on numerous grounds,
the most significant of which is that the court
a quo
had
erred in finding that his guilt was proved beyond a reasonable doubt.
It was further argued by Mr Pillay on behalf of the appellant
that
the evidence of the complainant, who is a single witness, was not
reliable for a number of reasons. Without going into any
detail on
the reasons cited by Mr Pillay in support of his argument, I must
point out that I find nothing in the evidence given
by the
complainant which suggests that her evidence ought to have been
rejected by the court
a quo
as unreliable.
[3]
In essence, it is common cause that the evidence in this matter
consists of two diametrically opposed versions. On the one hand,
the
evidence given by the complainant is that the appellant had raped
her. The appellant, on the other hand, testified that he
did not rape
her and insinuated that this is all part of a family squabble
relating to a certain piece of land he owns. In the
circumstances,
one needs to determine which of the two versions is more plausible
when weighed against the other.
[4]
In weighing the two conflicting versions against each other, one of
the arguments raised by Mr Pillay is that the evidence of
the
complainant ought to be approached with caution because she is a
single witness. The cautionary approach of a single witness’
evidence was confirmed in a number of judgments, including those
cited by Mr Pillay in support of his argument.
[1]
I think it is safe for one to regard it as trite law.
[5]
Needless to say, the crime of rape, by its very nature, is seldom
committed in front of other witnesses who may be called upon
to
testify in corroboration of either party’s version of events.
In most instances, the testimony of another witness, like
in the
present case, is limited to such witness’ subjective
observation of the complainant after the actual act of rape.
Depending on the nature of such evidence, it may nonetheless assist
the court in determining a more probable version when confronted
with
two conflicting versions, such as those of the appellant and the
complainant in this appeal.
[6]
Besides, even if there is no corroborating evidence, it must be borne
in mind that in terms of section 208 of the Criminal Procedure
Act,
[2]
an accused may be
convicted of an offence on the single evidence of a competent
witness. Of course, this presupposes the acceptance
of such evidence
by the court as reliable.
[7]
The absence of the word “credible” from the provisions of
section 208 of the
Criminal
Procedure Act was held by Diemont JA in
S
v Sauls and Others
[3]
to be of “no significance” for the reasons explained in
his judgment as follows:
‘
the
single witness must still be credible, but there are, as
Wigmore
points out, “indefinite degrees in this character we call
credibility”. (Wigmore on
Evidence
vol III para 2034 at 262.) There is no rule of thumb test or formula
to apply when it comes to a consideration of the credibility
of the
single witness (see the remarks of RUMPFF JA in
S
v Webber
1971 (3) SA 754
(A) at 758).
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 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.’
[8]
In this appeal, it is common cause that the evidence regarding the
actual act of rape consists of the single evidence of the
complainant. The court
a quo,
in its assessment of the
evidence led before it, accepted the evidence of the complainant as
reliable. It also found the complainant’s
version of the actual
rape incident more probable than that of the appellant. Based on my
own consideration of the evidence led
before the trail court, I am
satisfied that the court
a quo
was correct in its findings
regarding the credibility of the complainant, as well as the
reliability of her evidence.
[9]
Insofar as the rest of the evidence led before the trial court is
concerned, the complainant’s version was corroborated,
to a
certain extent, by one Siphiwe Ntokozo Zulu, who is commonly known as
Kimi. By the appellant’s own admission, Kimi is
his friend and
drinking companion and, therefore, had no reason whatsoever to
fabricate evidence against the appellant or to collude
with the
complainant in implicating the appellant in a crime he did not
commit.
[10]
The appellant, on the other hand, had called one Sboniso Mkhiyeleni
Biyela (“Biyela”) to testify on his behalf.
However,
except for confirming that the appellant had collected two blankets
from the room in which Biyela and his mistress were
sleeping sometime
during the night in question, and denying that loud music was playing
in the appellant’s bedroom, no other
aspects of the appellant’s
evidence were corroborated by Biyela.
[11]
Therefore, in the light of the two conflicting versions regarding the
actual act of rape, the trial court had to consider both
versions
holistically and weigh them against each other, taking into account
any probabilities and improbabilities on both sides.
Based on the
evidence led before it, as well as the exercise of common sense as
suggested by Diemont JA in the matter of
Sauls
(supra), the
finding of the trial court was that the balance of probabilities
weighed so heavily in favour of the complainant’s
version that
it excluded any reasonable doubt about the guilt of the appellant.
Based on my own assessment of the same evidence,
I am satisfied that
the effect of the complainant’s evidence, as corroborated by
Kimi’s evidence regarding the complainant’s
condition
after the actual act of rape, was to prove the appellant’s
guilt beyond any reasonable doubt. Consequently, the
appellant’s
conviction for the crime of rape must stand.
[12]
This brings me to the appellant’s appeal against the sentence
of ten (10) years imprisonment that was imposed on him
by the court
a
quo
. In my view, there is nothing in the sentence imposed by the
court
a quo
upon the appellant which indicates or suggests
material misdirection by the trial court as to justify this court’s
interference
with that sentence.
[13]
Instead, I find nothing substantial or compelling in the numerous
factors raised by Mr Pillay as supposedly mitigating the
appellant’s
guilt. The appellant is 28 years old, a first offender and has
completed a grade 11 standard of education. He
is also a father of
three minor children with three different women, and the children
live with their respective mothers. He supports
all three children
using the income he derives from piecemeal jobs, though the youngest
receives a child grant. There is no explanation
as to why the other
two children are not receiving the same grant. Be that as it may,
taken in their totality, these are ordinary
factors which are not
uncommon amongst persons who are convicted of rape and other crimes
by our courts on a daily basis.
[14]
All in all, the factors raised on behalf of the appellant in
mitigation are totally outweighed by the aggravating factors raised
by the state against him. These include, inter alia, the prevalence
of the crime of rape, as well as the appellant’s betrayal
of
the complainant’s trust. According to her testimony, the
complainant regarded the appellant as her brother and relied
on him
for protection against any harm. Little did she know that her trust
was misplaced on a sexual predator who has no regard
whatsoever for
family ties.
[15]
In conclusion, I see no reason or justification for this court to
interfere with the sentence imposed on the appellant by the
court
a
quo
. In the absence of substantial and compelling circumstances
justifying the imposition of a lesser sentence, the sentence of ten
(10) years imprisonment imposed upon the appellant by the court
a
quo
must accordingly stand.
[16]
In the circumstances, I propose that the following order should be
made:
(a)
that the appellant’s appeal against both his conviction and
sentence are dismissed; and
(b)
the appellant’s conviction and sentence imposed upon him by the
trial court are confirmed.
_________________
ME
NKOSI AJ
I
agree:
__________________
SEEGOBIN
J
Date
of hearing
: 14
February 2017
Date
delivered
: 23
February 2017
Appearances
:
For
the Appellant
: Adv TP
Pillay
Instructed
by
: Justice
Centre
Durban
For
the Respondents
: Adv N
Mlotshwa
Instructed
by
: The
Director of Public Prosecutions
Pietermaritzburg
[1]
S
v Sauls & Others
1981 (3) SA 172
(a) at 180 E-G; S v Nyembe 1982
(1) 835 (A) at 842 g; S v J
1998 (1) SACR 470
SCA
(1998) (2) SA 984
;
S v MG
2010 (2) SACR 66
(ECG) at para 7 and 8
[2]
Act
51 of 1977
[3]
1981
(3) SA 172
(AD)