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[2017] ZAKZPHC 23
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Ngwadla v S (AR208/2012) [2017] ZAKZPHC 23 (10 May 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR208/2012
In
the matter between:
MZWANDILE
NGWADLA
Appellant
and
THE
STATE
ORDERS
[1.]
The appeal against conviction is dismissed.
[2.]
The application for an increase in the sentence is refused.
JUDGMENT
HENRIQUES
J
[1]
The appellant was convicted of rape in the Ixopo Regional Court. He
was sentenced to 8 years’ imprisonment. With the leave
of the
court
a quo
he now appeals against his conviction only.
[2]
The hearing of the appeal was initially enrolled for 13 September
2012. However, the appeal was adjourned to 26 September 2012
as the
State had indicated and gave the appellant notice of its intention to
apply for an increase in sentence.
Conviction
[3]
In convicting the appellant, the court
a
quo
essentially relied on
the evidence of the complainant, S M. Ms M testified that during the
evening of 16 December 2006 she attended
a function at the Memla
homestead. She had consumed alcohol at the function and was somewhat
under the influence thereof. She left
the party and proceeded on her
way home. The path that she took led to a small river or stream which
she had to cross. Upon reaching
this stream she met the appellant who
offered to carry her across the river. In return he informed her that
he wanted her vagina.
He indicated this by touching her on her vagina
as well. She rejected his advances but he picked her up and carried
her across
the river. He thereafter lay her down and got on top of
her, asking once again for her vagina. She screamed and the appellant
summoned
his erstwhile co-accused
[1]
who assisted him by blocking her mouth. She testified that she then
felt a penis being inserted into her vagina. Of importance
is her
testimony that she did not see who inserted his penis into her
vagina. However, at the time the appellant was on top of
her. The
following day the appellant attended at her homestead and apologised
to her for having grabbed her and requesting that
she give him her
vagina.
[4]
Ms M’s evidence is corroborated by the medical evidence, which
was handed in by consent. The J88 recorded the doctor’s
findings which were ‘consistent with forced vaginal entry’.
[5]
Mr Musawakhe Dweku testified that on the night of 16 December 2006 he
was at his home in the company of his mother and sister.
Their dogs
were continually barking and he and his sister went out to
investigate. He saw people running away and went to the area
from
which they were running from. There he found the complainant and upon
enquiring as to what had transpired, was informed that
the appellant
and his erstwhile accused 2 ‘were strangling her and they were
also opening her legs’.
[2]
Mr Dweku and his sister thereafter assisted the complainant. Of
importance was Mr Dweku’s testimony that he was present when
the appellant arrived at the complainant’s home and apologised
for his behaviour the previous evening.
[6]
The complainant’s son Mr G M testified and confirmed that he
was also present when the appellant arrived at his home and
apologised to his mother for his behaviour the previous night. The
appellant also then revealed the identity of the others who
had
assisted him.
[7]
The appellant testified and confirmed that he met the complainant on
the evening of the incident at the river. The complainant
had asked
him to assist her in crossing the river and he and his companions
obliged and assisted her. Once they crossed the river
and having
ascertained that she was safe and capable of walking home alone, they
left her and returned to their own homes. He emphatically
denied
touching the complainant on her private parts and having requested to
have sexual intercourse with her. He further denied
that the
following day he had apologised to the complainant for his behaviour.
He testified that he was questioned by the complainant’s
son as
to why he had simply left his mother at the river and had not
accompanied her home and he apologised for not doing so.
[8]
The court
a quo
was alive to the fact that the complainant was
a single witness and that her evidence had to be treated with
caution. The court
a quo
was also alive to the fact that the
complainant was somewhat under the influence of liquor at the time of
the incident. The issue
before the court
a quo
was the
identity of the person who had inserted his penis into the vagina of
the complainant. Relying on the circumstantial evidence
before it,
the court
a quo
found that it was none other than the
appellant who had inserted his penis into the complainant’s
vagina. In reaching this
conclusion the court
a quo
found that
it was the only inference which could have been drawn from the proven
facts. These facts were,
inter alia
, the following:
(a) that the appellant met with the
complainant at the river;
(b) that he assisted the complainant
to cross the river;
(c) that the medical report confirmed
that the findings were consistent with forced vaginal entry;
(d) that the complainant testified
that she had been raped; and
(e) when she screamed, the erstwhile
accused 2 was summoned to block her mouth and silence her.
[9]
The court
a quo
found that the only inference to be drawn was
that the appellant was the person who had raped the complainant as he
admitted to
meeting her at the river and carrying her across the
river. According to the complainant, he is the one who touched her
vagina
and stated that he wanted it in return for having assisted her
across the river. He was the person directly on top of her at the
time when she started to scream and when the erstwhile accused 2 was
summoned to silence her. Indeed, it is improbable that the
appellant
would have wanted her vagina, touched it, climbed on top of the
complainant and suddenly allowed someone else to penetrate
the
complainant.
[10]
I can find no reason to fault the finding of the court
a quo
in reaching this conclusion.
[11]
The court
a quo
also found that notwithstanding her having
consumed intoxicating liquor, the complainant was well aware of what
was transpiring
on that evening. This version of events is further
corroborated by the finding of the erstwhile accused 2’s belt
at the scene.
It was not disputed that the appellant and the
erstwhile accused 2 were in each other’s company that evening
and that they
met the complainant at the river. The erstwhile accused
2 could not explain how his belt came to be found at the scene.
[12]
I am accordingly satisfied that the court
a quo
did not
misdirect itself in convicting the appellant and the appeal against
the conviction must fail.
Sentence
[13]
The wording of the charge sheet in the court
a quo
is as
follows:
‘
The
accused is/are guilty of the crime of Rape (read with Section
51 Act
105/1997)
in that on or about 16/12/2006 and at or near GABAZI in the
District/Regional Division of Ixopo, the accused did unlawfully have
sexual intercourse with S M aged 67 years Without her consent
.’
[14]
At the commencement of the trial, the magistrate informed the
appellant as follows:
‘
Gentlemen,
in terms of section 51 of section 2 of the Criminal Law Amendment
Act, Act 105 of 1997, as amended, a minimum sentence
that can be
imposed is that of 10 years’ imprisonment, if you are found
guilty, unless the Court finds that there are substantial
and
compelling circumstances. I must also warn you that if the Court
finds you guilty and if it also finds that you all had committed
the
offence in the furtherance of common purpose, then the possible
sentence that can be imposed is that of life imprisonment,
unless the
Court finds that there are substantial and compelling
circumstances
.’
[3]
[15]
The court
a quo
did not find that the appellant and his
erstwhile co-accused had acted in the furtherance of a common
purpose. The court
a quo
was therefore of the view that a
minimum period of 10 years’ imprisonment was applicable and
reiterated this saying so in
the judgment on sentence.
[16]
Counsel for the State has submitted that the sentence imposed was a
misdirection and that the sentence ought to be increased.
One of the
glaring difficulties encountered in this approach is that the
appellant was warned, at the commencement of the trial,
of the
minimum sentence applicable. The court did not find that the
appellant and his erstwhile co-accused acted in the furtherance
of
common purpose and therefore did not consider imposing the minimum
sentence of life imprisonment. I am of the view that to impose
a
sentence or to consider a sentence of life imprisonment or any
sentence greater than that imposed by the court
a quo
would be
prejudicial to the appellant. At no stage was he warned that he faced
life imprisonment as the court a quo had now found
that the
provisions of the Criminal Law Amendment Act, relating to the
imposition of life imprisonment, were now applicable.
[17]
In
Director of Public Prosecutions v Mngoma
2010 (1) SACR 427
(SCA) at para 11, the court held that the powers of an appellate
court to interfere with a sentence are circumscribed. The reason
for
this is that the determination of an appropriate sentence is
pre-eminently within the discretion of the trial court.
[18]
It is indeed trite that a court of appeal may only interfere with a
sentence imposed by the trial court where the sentence
imposed can be
described as shocking, startling or disturbingly inappropriate.
[19]
I am not persuaded that the court
a quo
misdirected itself in
imposing the sentence which it did, nor am I of the view that the
sentence imposed is shocking, startling
or disturbingly
inappropriate. As stated earlier, there is, in my view, no basis to
impose the minimum sentence of life imprisonment
and in any event,
should same be applicable, it would be prejudicial to the rights of
the appellant, given the findings of the
court
a quo
in its
judgment.
[20]
I accordingly grant the following orders:
[20.1] The appeal against conviction
is dismissed.
[20.2] The application for an increase
in the sentence is refused.
___________________
HENRIQUES
J
I
AGREE
___________________
STRETCH
J
Case
Information
Date
of argument
:
13
and 26 September 2012
Date
of judgment
:
10
May 2017
Appearances
Counsel
for Appellant
:
Mr
K L Singh
Instructed
by
:
Justice
Centre, Pietermaritzburg
Counsel
for State
:
Adv
B Manyathi
[1]
The co-accused arrived after the complainant had been carried across
the river.
[2]
Record, pg 6 line 21
[3]
Record, pg2 lines 19-25 and pg 3 lines 1-2.