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[2016] ZAFSHC 88
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Ngantweni v S (A161/2015) [2016] ZAFSHC 88 (31 May 2016)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal Number: A161/2015
In
the appeal between:
LAZOLA
MAXWELL NGANTWENI
Appellant
and
THE
STATE
Respondent
CORAM
:
NAIDOO, J
et
MOHALE, AJ
JUDGMENT
BY
:
MOHALE, AJ and NAIDOO J
HEARD
ON
:
9 DECEMBER
2015
DELIVERED
ON
:
31
May 2016
[1]
The appellant was charged in the Regional Court, Welkom with
contravening the provisions of Section 3 of Criminal Law (Sexual
Offences and Related Matters) Amendment Act, Act 32 of 2007 (the
Sexual Offences Act), read with Sections 51(1) of Criminal Law
Amendment Act 105 of 1997 (the Minimum Sentences Act). He
pleaded not guilty on 2 February 2015 and was convicted as charged
on
18 May 2015. He was sentenced to Eighteen (18) years’
imprisonment. The appellant, with the leave of the trial court,
appeals against his conviction and sentence. Ms S Kruger represented
the appellant in this court and Ms M Moroka appeared for the
respondent.
BACKGROUND
[2]
On the evening of 11 August 2014, the complainant, a twelve year old
girl
was left by her older sister at the house of a friend called R., in
Thabong, Welkom. It was late and her sister had not returned,
so she
slept over at this house. At about midnight the appellant and another
male person called Malifu came to this house, while
the complainant
was asleep. After speaking to R. and ascertaining that the
complainant was one of the occupants of the house, the
appellant and
Malifu left. The appellant returned a few minutes later and forced
the door open to gain entry. He was alone.
He then dragged the
complainant out of the house and took her to his house somewhere
across the street. He took her to the bedroom
of this house and had
sexual intercourse with her.
[3]
The complainant’s evidence is that when the appellant was at
R.’s house, he had turned on the torch on his cellular
telephone and she was able to see his face. En route to his house,
she was able to see his face by the light of the moon and the
stars.
At his house, the appellant lit a paraffin lamp, which was in the
bedroom where he raped her. She was able to see his face
clearly by
the light of this lamp. She knew the appellant prior to this day, as
she used to see him on the street. She, however,
did not know his
name. R., who witnessed the appellant dragging her out of R.’s
house told the complainant his name.
[4]
The appellant denied the version of the complainant and said that he
was never at R.’s house at the relevant time. He
knew R. and
was a friend of her brother. He had been to R.’s house
previously. He did not know the complainant and that time
in question
he was asleep at his home. He was arrested a week later. With regard
to sentence, the appellant avers that the sentence
is out of
proportion to the totality of the accepted facts in mitigation.
[5]
The appellant placed identity in issue and the trial court, in
arriving at its decision, examined all the factors that need
to be
considered when deciding the issue of identity. The grounds of appeal
raised by the appellant are, in essence, as follows:
5.1
The court erred in finding that the evidence of the complainant as a
single witness was clear
and satisfactory in all material respects.
5.2
The court erred in finding that the complainant correctly identified
the appellant.
5.3
The court erred in rejecting the appellant’s evidence as false
and not reasonably possibly
true.
5.4
The sentence of 18 years’ imprisonment is out of proportion to
the accepted facts in mitigation.
[6]
The only issue is one of identity. The trial court made a thorough
analysis of the evidence, especially that of the complainant
who was
a child and a single witness. The trial court is steeped in the
atmosphere of the trial and is in the best position to
assess the
conduct and demeanour of the witnesses and consider those factors, in
conjunction with the evidence given in court.
The appellant proffered
an alibi defence, which only came to light when he was being
cross-examined by the prosecutor. When the
complainant was being
cross-examined it was not put to her that his denial of the charge
was based on his assertion that he was
asleep at home at the time in
question. The state therefore, had no reasonable opportunity to
investigate or disprove the alibi
defence. It does appear that this
defence was an after-thought on the part of the appellant. The court,
therefore assessed this
defence in the light of all the other
evidence, and particularly the opportunity the complainant would have
had to see the face
of the appellant and properly identify him.
[7]
There was no issue with her evidence that she had previously seen the
appellant in the street and knew him, but not his name.
If he was
nowhere near R.’s house on the night in question, it begs the
question why his name would come up in the conversation
between the
complainant and R.. The probabilities certainly favour the
complainant’s version that R. saw the appellant forcibly
remove
the complainant from her house, which would have initiated the
subsequent conversation between them regarding his name.
The fact
that the complainant did not mention to R., upon her return, that she
had been raped does not bear on the identity of
the perpetrator, but
rather the complainant’s state of mind. She was a child and did
not have sufficient maturity to realize
that rape was not something
to be ashamed of. But ashamed she did feel, and that was the reason
she did not tell R.. The trial
court was correct in holding that she
probably felt more comfortable telling her sister about the incident.
The fact that she did
so when they had left R.’s house
strengthens the conclusion by the trial court that the complainant
did not tell R. about
the rape because she was embarrassed. It is
unfortunate that R. could not be located and hence did not testify. I
cannot, however,
find fault with the conclusions of the trial court.
I am satisfied therefore, that there is no ground for this court to
interfere
with the conviction in this matter.
[8]
With regard to sentence, an appeal court should interfere with the
sentence imposed by a trial court only if the trial court
has
misdirected itself in the imposition of sentence, resulting in a
sentence which is so inappropriate that it induces a sense
of shock.
It has been held that
“
As
the essential inquiry in an appeal against sentence, however, is not
whether the sentence was right or wrong, but whether the
Court in
imposing it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle
the Appeal Court
to interfere with the sentence; it must be of such a nature, degree,
or seriousness that it shows, directly or
inferentially, that the
Court did not
exercise
its discretion at all or exercised it improperly or unreasonably.
Such a misdirection is usually and conveniently termed
one that
vitiates the Court's decision on sentence."
(See
S
v Pillay
1977 (4) SA 531
(A) at p 535 E-F
).
An Appeal Court should be
guided by the principle that punishment is pre-eminently a matter for
the discretion of the trial Court
and it should be careful not to
erode such discretion. The sentence should only be altered if the
discretion of the trial court
has not been “judicially and
properly exercised”. (See
S
v Rabie
1975 (4) SA 855
).
[9]
The accused’s personal circumstances are that
he was unmarried and
26
years old at the date of conviction. He has a 7 year old daughter.
Prior to his arrest he worked for the Harmony Mine, and earned
R7500
00.00 per month. At the date of sentencing, he had spent
approximately nine months in custody, awaiting trial. The accused
has
a previous conviction for assault, where the offence was committed in
2008 and in respect of which he paid an admission of
guilt fine. It
was argued in mitigation, on his behalf, that he is capable of being
rehabilitated. It was also pointed out that
it did not appear that
the complainant suffered any physical injuries. The aggravating
factors in this case are that the complainant
was a child of 12
years, she was asleep when she was forcibly removed from the house in
which she was sleeping, taken to another
house and raped.
[10]
Section 51(1) of the Minimum Sentences Act prescribes a minimum
sentence of life imprisonment for a person who has been convicted
of
raping a child under the age of 16 years. The prosecutor and the
defence attorney both acknowledged this and both were of the
opinion
that a lengthy term of imprisonment would be appropriate in this
case. I interpret this to mean that both the prosecutor
and the
defence attorney were of the view that substantial and compelling
circumstances existed to justify the imposition of a
lesser sentence
than life imprisonment.
The
trial court thoroughly considered the mitigatory factors and weighed
these up against the aggravating factors in performing
the fine
balancing act required of it in the consideration of these factors.
The court was consequently of the view that the accused’s
personal circumstances viewed against all the circumstances relevant
to this matter, were substantial and compelling, and justified
it in
departing from the prescribed minimum sentence. It consequently
imposed the sentence of 18 years’ imprisonment. I am,
therefore, unable to fault the reasoning or the approach of the trial
court. In those circumstances, this court will not be justified
n
interfering with the sentence imposed by the trial court.
[11]
In the circumstances, it is proposed that the following order be
made:
11.1
The appeal against the
conviction and sentence is dismissed.
11.2
The sentence and conviction in this matter are confirmed.
_________________
MOHALE,
AJ
I
agree and it is so ordered
________________
NAIDOO,
J
On
behalf of the appellant:
Adv. S Kruger
Instructed
by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv.M Moroka
Instructed
by:
The State