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Buqweni v S (CA&R70/2014) [2016] ZAECMHC 52 (29 November 2016)

85 Reportability
Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction and sentence — Appellant convicted of rape and sentenced to life imprisonment — Appeal based on alleged insufficiency of evidence and contradictions in witness testimonies — Court finds that the evidence of the complainant was clear and corroborated by another witness, despite minor discrepancies — Appellant's version rejected as lacking credibility and failing to explain the complainant's injuries — Appeal against conviction dismissed; sentence of life imprisonment upheld as no substantial and compelling circumstances found to justify a lesser sentence.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal to the Eastern Cape Local Division, Mthatha, against both conviction and sentence imposed by the Regional Court for the Regional Division of the Eastern Cape held at Sterkspruit. The appeal was heard by Brooks J (with Alkema J concurring).


The appellant, Siyabulela Buqweni, had been convicted of rape. The respondent was the State. The appellant was legally represented at trial and on appeal.


The procedural history reflected that the appellant had been tried together with a co-accused on the same rape charge. After conviction, the co-accused (who had been a minor at the time of the events) received a sentence of fifteen years’ imprisonment and did not appeal. The appellant, having been warned of the applicability of prescribed minimum sentencing (life imprisonment unless substantial and compelling circumstances were present), was sentenced to life imprisonment and appealed against both conviction and sentence.


The general subject-matter of the dispute was whether the State had proved non-consensual sexual intercourse (rape) beyond reasonable doubt, and, if the conviction stood, whether the sentencing court had erred in imposing the prescribed sentence of life imprisonment rather than finding substantial and compelling circumstances justifying a lesser sentence.


2. Material Facts


The court accepted that the complainant knew both accused persons. The appellant was in a romantic relationship with a person named Anelisa, and the co-accused was in a romantic relationship with Nashana. The complainant was not in a romantic relationship with either of them, on the version accepted by the trial court and upheld on appeal.


On the complainant’s account, on the night in question she was alone at her homestead when the appellant and the co-accused arrived, together with another man, Makhosini (who died before the trial and whose statement was admitted into evidence). The appellant searched for Anelisa, disbelieving the complainant’s statement that Anelisa was not there. An altercation followed in which Makhosini criticised the appellant’s conduct and was assaulted. The complainant attempted to intervene and was then assaulted by the appellant.


The complainant’s evidence (as accepted) was that she was tied with her hands behind her back and her feet, was gagged, and was carried by the appellant to the co-accused’s homestead. En route, she was threatened. At the homestead, she was thrown onto a bed; the gag was removed and her feet were untied, but her hands remained tied behind her back. She was assaulted with a stick and placed back on the bed. She did not raise an alarm because she feared being killed.


The complainant testified that the appellant then forced sexual intercourse upon her, including by throttling her, and that the co-accused instructed her not to make a noise. The co-accused also raped her. The complainant’s evidence was that she was raped more than once during the night. In the early morning, the men left and locked her in the room, from which she later escaped by freeing her hands and climbing out of a window.


After returning home, the complainant was found by Xatyiswa (or Qabiswa) Nigunwa, to whom she made a report of the rape. Nigunwa’s evidence was that the complainant appeared injured, had swollen wrists, and there were bloodstains on her nightdress. Nigunwa’s report led to the complainant being taken for medical examination at Empilisweni Hospital. The court treated Nigunwa’s evidence as corroborative of the complainant’s condition after the event and consistent with the report made to her.


The statement of the deceased Makhosini, admitted into evidence, was treated as confirming to a large extent the complainant’s account of the events up to the point at which Makhosini left the appellant and co-accused with the complainant shortly before the rapes occurred.


The appellant’s version materially differed. He accepted that Makhosini had been present up to a point, but claimed Makhosini had been forcefully evicted and injured his mouth in the process. The appellant denied coercion and claimed it had been the complainant’s idea to go to the co-accused’s homestead, that she walked freely there in her nightdress, removed it, and got into bed. The appellant’s evidence was that he joined her and fell asleep. The appellant claimed to have been in a romantic relationship with the complainant. Importantly for the appeal court’s assessment, the appellant did not, in his evidence, confirm sexual intercourse in the manner foreshadowed by his section 115 plea explanation, and an attempt to correct this in re-examination was not permitted.


The co-accused also claimed to have been in a romantic relationship with the complainant and alleged consensual intercourse with her while the appellant was asleep. The co-accused said he only learnt during the complainant’s testimony that the appellant had had sexual intercourse with the complainant.


3. Legal Issues


The central question on conviction was whether, on the evidence as a whole, the trial court had been correct to find that the State proved rape beyond reasonable doubt, notwithstanding that the complainant was, in relation to the rapes, effectively a single witness, and notwithstanding alleged contradictions and unsatisfactory aspects in her evidence and that of Nigunwa.


This aspect of the appeal concerned the application of law to fact, including evaluation of credibility and reliability, the treatment of discrepancies, and application of the cautionary approach applicable where the complainant is a single witness in respect of the material act.


The central question on sentence was whether the regional magistrate erred in concluding that there were no substantial and compelling circumstances justifying deviation from the prescribed minimum sentence of life imprisonment. This question involved the application of the statutory sentencing framework to the facts found in mitigation and aggravation, and an evaluative judgment as to whether the cumulative circumstances reached the threshold described in the authorities.


4. Court’s Reasoning


On conviction, the appeal court noted that the magistrate was alert to the need for caution, given that the complainant was a single witness regarding the rape itself. The appeal court considered the criticisms directed at the complainant’s testimony and at Nigunwa’s testimony, including alleged discrepancies between the complainant’s police statement and her later evidence. The court’s assessment was that the discrepancies identified were not material to the issues that established the elements of rape, and therefore did not undermine the core of the State case as accepted by the trial court.


A significant feature in the reasoning was the contrast between the complainant’s version, which was described as clear and consistent on the core elements, and the appellant’s version, which the appeal court found to be materially weakened by the appellant’s failure to give evidence consistent with his plea explanation (which had been that intercourse occurred with consent). The appeal court treated this failure as substantially diminishing the creditworthiness of the appellant’s version. In addition, the appellant’s version was found not to account for the complainant’s injuries, including the swollen wrists observed by Nigunwa and the bloodstains on the nightdress.


The appeal court further emphasised the corroborative value of Nigunwa’s evidence regarding the complainant’s post-event condition and the consistency between the complainant’s report to Nigunwa and her trial testimony. The court also referred to the statement of the deceased Makhosini, admitted at trial, as confirming in large measure the complainant’s account of the events leading up to the point shortly before the rape. Against this body of evidence, and given the internal difficulties in the defences advanced (including the co-accused’s claim of a relationship with the complainant and his assertion that he did not know of any intercourse between the complainant and the appellant), the appeal court concluded that the trial court had been correct in accepting the State witnesses and rejecting the appellant’s version.


On sentence, the appeal court applied the approach articulated in the cited Supreme Court of Appeal authority dealing with appeals under the prescribed minimum sentence regime. The court treated the enquiry on appeal as directed primarily to whether the circumstances considered by the sentencing court were indeed substantial and compelling, rather than whether the appellate court would itself have imposed a different sentence.


The appeal court identified the appellant’s personal circumstances placed before the sentencing court, including that he was twenty-six years old at the time, had a young child, had left school after grade 10, suffered from epilepsy for which he received treatment, had last worked in 2009, and had no previous convictions. The court then assessed the submissions advanced in mitigation, including the contention that the appellant could be assumed to be of “sub-intellect” and that he had good prospects of rehabilitation. The court rejected these inferences on the basis that they lacked a specific evidential foundation, and particularly noted that the appellant had not taken the court into his confidence by demonstrating insight into the impact of the offence or contrition.


In weighing aggravation, the appeal court highlighted the complainant’s youth (the judgment recorded that the charge sheet referred to her as fifteen, while the address and sentence judgment referred to her as sixteen), the use of violence, the binding and gagging, removal by force from her home, repeated rapes during the night, and the fact that she was locked in and had to escape through a window. It also treated as aggravating that the perpetrators were known to the complainant in the local community, and that the appellant showed no remorse.


The appeal court accepted the magistrate’s view that the complainant suffered a horrific and demeaning experience with likely deep emotional scarring, and placed this within the broader societal concern about sexual violence, particularly against younger persons. On the cumulative assessment required by the substantial and compelling circumstances test as restated in the cited authority, the court concluded that the magistrate could not be faulted for finding no substantial and compelling circumstances and for imposing the prescribed sentence of life imprisonment.


5. Outcome and Relief


The appeal against conviction was dismissed. The appeal against sentence was also dismissed. The High Court confirmed both the conviction and the sentence of life imprisonment imposed by the regional magistrate. The judgment, as provided, did not record a separate costs order.


Cases Cited


S v PB 2013 (2) SACR 533 (SCA).


S v Mahlangu and Others 2012 (2) SACR 373 (GSJ).


S v PN 2010 (2) SACR 187 (ECG).


Legislation Cited


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61.


Criminal Procedure Act 51 of 1977, sections 92(2), 94, 115, 256, 257 and 281.


Minimum sentence provisions referred to in the judgment as sections 51(1) and 52(2) read with Schedule 2.


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the regional magistrate had been correct to accept the complainant’s evidence (treated with appropriate caution as single-witness evidence in respect of the rape) and the corroborative evidence of Nigunwa, and to reject the appellant’s version. The court held that the State proved the appellant’s guilt beyond reasonable doubt, and that the appeal against conviction therefore could not succeed.


The court further held that the regional magistrate had not erred in concluding that there were no substantial and compelling circumstances justifying a departure from the prescribed minimum sentence. The court accordingly held that the appeal against sentence must fail and confirmed the sentence of life imprisonment.


LEGAL PRINCIPLES


The judgment applied the principle that, where a complainant is effectively a single witness in relation to the act constituting rape, the evidence must be approached with appropriate caution; however, conviction may follow where the evidence is clear and reliable on material elements and is not displaced by the accused’s version when evaluated against the totality of the evidence, including corroboration where present.


The judgment treated immaterial discrepancies, including differences between a police statement and viva voce testimony that do not affect the core elements of the offence, as insufficient to undermine proof beyond reasonable doubt where the central narrative remains consistent and is supported by other evidence.


The judgment applied the principle that an accused’s failure to testify consistently with a plea explanation may materially undermine the credibility of the defence version, particularly where the pleaded basis of defence (consent) is not borne out in the evidence and where the version fails to explain objectively observed injuries consistent with coercion.


On sentence, the judgment applied the minimum sentence appeal approach that an appellate court’s primary enquiry is whether the circumstances relied upon are substantial and compelling, and that prescribed minimum sentences are not to be departed from for flimsy reasons. The judgment endorsed the restated test that substantial and compelling circumstances require truly convincing reasons, assessed cumulatively, and that marginal personal circumstances or unsubstantiated assertions (including assertions about intellect or rehabilitation prospects without an evidential basis) do not suffice.


The judgment further applied the principle that the presence of aggravating features such as violence, restraint, threats, repeated rape, confinement, youth of the complainant, absence of remorse, and abuse by known persons within a community may strongly militate against a finding of substantial and compelling circumstances, supporting the imposition of the prescribed sentence.

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[2016] ZAECMHC 52
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Buqweni v S (CA&R70/2014) [2016] ZAECMHC 52 (29 November 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION:   MTHATHA
CASE
NO.  CA&R 70/2014
SIYABULELA
BUQWENI

Appellant
and
THE
STATE

Respondent
APPEAL
JUDGMENT
BROOKS
J
[1]
The appellant was charged in the Regional Court for the Regional
Division of the Eastern Cape held at Sterkspruit with the crime
of
rape in contravention of the provisions of section 3 read with
sections 1
,
55
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, read
with sections 256, 257 and 281 of the Criminal Procedure Act 51 of
1977 (“the Act”) and sections 92 (2) and 94
of the CPA.
[2]
The appellant was legally represented in the court
a
quo
.
After be had been warned that in the event of a conviction on the
charge he would be sentenced in accordance with the provisions
of
sections 51(1), 52(2) and schedule 2 of the Act to life imprisonment
unless there were substantial and compelling circumstances
which
justified the imposition of a lesser sentence, the appellant pleaded
not guilty to the charge.  In explanation of the
plea in
accordance with the provisions of section 115 of the CPA the
appellant stated that his sexual intercourse with the complainant
was
with her consent.
[3]
It is necessary to record that the appellant was one of two accused
who were charged with the same offence in the court
a
quo
.
The appellant’s co-accused also pleaded not guilty and tendered
the same plea explanation.  As the appellant’s
co-accused
was a minor at the time of the occurrence of the sexual intercourse,
upon conviction he was sentenced to a term of fifteen
years’
imprisonment.  The appellant’s co-accused has not appealed
against either the conviction or sentence.
[4]
The present appeal is directed against both the conviction of the
appellant and the sentence of life imprisonment imposed upon
him.
[5]
In essence, the appeal against conviction is based upon a submission
that the court
a quo
erred in finding that the state had
proved the guilt of the appellant beyond a reasonable doubt.  In
particular, the submission
is made that the complainant and the
second state witness, Xatyiswa or Qabiswa Nigunwa, did not give
evidence in a satisfactory
manner and that there were contradictions
in their evidence.
[6]
It is clear from the judgment that the magistrate was alive to the
need to treat the evidence of the complainant with caution
as, in
respect of the rape itself, she was a single witness.
[7]
According to the complainant, she knew both the appellant and his
co-accused.  The appellant was in a romantic relationship
with
one Anelisa and his co-accused was in a romantic relationship with
one Nashana.  It is apparent that Anelisa was sometimes
to be
found at the complainant’s home.  On the night in question
however, she was not there.  The complainant was
alone when the
appellant and his co-accused called, together with another man,
Makhosini, who had died before evidence was led
in the court
a
quo
.
The complainant stated that the appellant did not believe her when
she told him that Anelisa was not there and he proceeded
to search
the room for her.  Makhosini told him that what he was doing was
wrong and the appellant responded by assaulting
him.  The
appellant’s co-accused joined in and the complainant tried to
intervene.  The appellant then turned his
attention to the
complainant, assaulting her and tying her hands behind her back and
her feet.  She was then gagged before
being carried away by the
appellant over his shoulder and to the homestead of his co-accused.
[8]
On the way, the appellant and his co-accused threatened the
complainant.  On arrival, the appellant threw her on the bed.

Makhosini tried to alert the grandmother of the appellant’s
co-accused.  An unhelpful exchange between the two of them
seems
to have occurred before Makhosini left.  The appellant and his
co-accused then removed the gag from the complaint’s
mouth and
untied her feet.  The complainant took the opportunity to
urinate.  Thereafter the appellant assaulted her
on the back
with a stick and caused her to fall.  He then put her back on
the bed.  The complainant explained that she
did not raise the
alarm because she feared that she would be killed if she did so.
[9]
The appellant then proceeded to force himself upon the complainant
and raped her.  During the process he throttled her.
She
began to cry but was commanded by the appellant’s co-accused
not to make a noise.  This caused her to remain silent.

The appellant’s co-accused then also raped her.  It seems
that both the appellant and his co-accused raped the complainant
more
than once again during the night.  In the early morning they
left, locking the complainant in the room.  A couple
of hours
later she managed to release her hands from behind her back and
climbed out of the window.
[10]
The complainant went straight back to her homestead.  She sat
for some time on the stoep until she was discovered by Nigunwa,
to
whom she reported what had happened to her.  Nigunwa in turn
made a report, which led to the complainant being taken to

Empilisweni Hospital for a medical examination.
[11]
Nigunwa gave evidence which repeated the content of the report made
to her by the complainant.  In its content, the report
was
consistent with the complainant’s evidence.  Nigunwa
stated that she could see that the complainant had sustained

injuries.  Her wrists were also swollen.  Blood stains were
evident on the nightdress which she was still wearing when
Nigunwa
found her.  The witness confirmed that the appellant was in a
romantic relationship with Anelisa and that his co-accused
was in a
romantic relationship with Nashana.  Neither the appellant nor
his co-accused was in a romantic relationship with
the complainant.
[12]
Under cross examination, several differences between the statement
made by the complainant to the police and her later evidence
in the
court
a
quo
were explored.  In my view, none of the discrepancies exposed
were material and it is not necessary to have regard thereto.
[13]
After unsuccessful opposition on behalf of the appellant, the
magistrate accepted into evidence the statement of the deceased

Makhosini.  The content thereof confirms in large measure the
evidence of the complainant relating to the events of the evening
up
until the time that Makhosini left the appellant and his co-accused
with the complainant shortly before she was raped.
[14]
The appellant’s evidence, and indeed the evidence of his
co-accused, confirmed that Makhosini was with them up to a point
in
the evening.  According to him, he evicted Makhosini forcefully,
saying that Makhosini was going to bring trouble upon
them.  In
the process Makhosini fell and injured his mouth.  The appellant
said that he refused Makhosini’s invitation
then to fight with
him.  The appellant then stated that it was the complainant’s
idea to move to the homestead of the
appellant’s co-accused.
He claimed that she walked there freely and in her nightdress.  On
arrival she removed
her nightdress and got under the blankets on the
bed.  The appellant joined her and fell asleep.  No mention
is made
in his evidence in chief or his evidence under cross
–examination of sexual intercourse with the complainant.
An objection
to an attempt to correct this under re-examination was
objected to with success.  The appellant claimed to have been in
a
romantic relationship with the complainant.
[15]
The appellant’s co-accused also claimed to have been in a
romantic relationship with the complainant at the same time.
He
claimed to have had consensual sexual intercourse with the
complainant whilst the appellant was asleep.  He stated that
he
heard for the first time that the appellant had had sexual
intercourse with the complainant when the complainant gave her
evidence
in court.
[16]
Both the appellant and his co-accused confirmed that there was no bad
blood between them and the complainant.  Neither
of them could
give any explanation for the complainant’s decision to lay
charges against them.
[17]
In my view, the failure on the part of the appellant to give evidence
in accordance with his plea explanation diminishes substantially
any
creditworthiness which his version may otherwise have had.
Moreover, his version offers no explanation for the injuries
seen on
the complainant by Nigunwa.  It is completely different on
salient points from the evidence given by the complainant.

Whilst her evidence may contain some discrepancies on minor issues,
it is clear and consistent on those issues which establish
the
elements of the offence of rape.  It is not displaced by an
application of the cautionary rule to those areas where the

complainant was a single witness and substantial corroboration for
her evidence of the events which occurred after the rape, and
her
condition after the rape, is provided by the evidence of Nigunwa.
Accordingly, the magistrate was correct in accepting
the evidence of
the complainant and Nigunwa and in rejecting the appellant’s
version.
[18]
It follows that the appeal against conviction cannot succeed.
[19]
No previous convictions were proved against the appellant.
[20]
After hearing argument both in mitigation and in aggravation of
sentence, the magistrate delivered his judgment on sentence.
He
imposed life imprisonment upon the appellant.
[21]
The correct approach to be adopted towards the appellant’s
appeal against the sentence of life imprisonment has been
enunciated
by the Supreme Court of Appeal
[1]
as
follows:
“
What
is then the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate court interfere
with
such a sentence imposed by the trial court exercising its discretion
properly simply because it is not the sentence which
it would have
imposed, or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should, in
my view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime.  This, in my view, is
so because the minimum
sentences to be imposed are ordained by the Act.  They cannot be
departed from lightly or for flimsy
reasons.  It follows,
therefore, that a proper enquiry on appeal is whether the facts which
were considered by the sentencing
court are substantial and
compelling, or not.
”
[22]
Ultimately, the question to be answered is whether “the court
below erred in failing to find that the circumstances of
this case
were so substantial and compelling as to justify a departure from
imprisonment for life.”
[2]
In considering what response would be appropriate to such enquiry in
the present matter, I have had regard to the following
useful
restatement
[3]
of the nature of
the enquiry:
“
Substantial
and compelling circumstances means truly convincing reasons.
There must not be marginal differences in personal
circumstances or
degrees of involvement.  At the end of the day, the ultimate
cumulative impact of the circumstances must
be such as to justify a
departure.”
[23]
The appellant’s personal circumstances were disclosed in the
argument in mitigation of sentence.  They can be listed
shortly
as follows:
·
the
appellant was twenty-six years of age at the time of the commission
of the offence;
·
he
has a five year old daughter who is in the custody of her mother;
·
the
child’s mother is unemployed;
·
the
appellant dropped out of school after grade 10 (standard 8) as he was
unable to cope with his studies;
·
he
suffers from epilepsy, for which he receives treatment;
·
the
appellant last worked in 2009, when he was employed on a mine in
Klerksdorp;
·
the
appellant is a first offender;
[24]
In argument before the magistrate, the appellant’s legal
representative stressed the personal circumstances to which
I have
referred.  She submitted that although there was no evidence on
the point, the magistrate could safely assume that
the appellant was
“a person of sub-intellect”.  In my view, in the
absence of specific evidence, that conclusion
cannot be drawn simply
from the fact that the appellant dropped out of school because he
found his studies difficult.  The
appellant’s legal
representative also submitted that the appellant enjoyed good
prospects of rehabilitation.  Once again,
in the absence of
specific evidence on the point, this conclusion does not emerge
readily from the evidence.  Notably, the
appellant did not take
the court into his confidence, thereby demonstrating insight into the
effect of his crime upon the complainant
and demonstrating
contrition.  No evidential basis having been laid for the
submission that the appellant enjoyed good prospects
of
rehabilitation, this cannot simply be inferred from the relative
youthfulness of the appellant.
[25]
In the charge sheet the complainant is referred to as a fifteen year
old girl.  No evidence was led on the point.
In his
address, and in the magistrate’s judgment, reference is made to
the complainant as a sixteen year old.
[26]
The prosecutor argued that there were no substantial and compelling
circumstances present in the matter.  It was his submission
that
the facts demonstrated aggravating circumstances which militated
against any prospect of a finding that substantial and compelling

circumstances could be identified in the matter.  These included
the facts that the complainant was only sixteen years of
age and that
she was assaulted by the appellant.  It is evident from her
evidence that she was bound and gagged before being
taken by force
from her home to the place where the rape occurred, and that her
hands remained tied behind her back throughout
the ordeal.  She
stated that both the appellant and his co-accused raped her more than
once during the night.  She was
then left in a locked room,
obliging her to escape through a window in the early morning.
In my view, the fact that the appellant
and his co-accused were known
to the complainant, who was a member of their local community, is a
further aggravating factor.
There was no demonstration of
remorse on the part of the appellant during his trial.
[27]
In my view, the complainant was subjected to an horrific and
demeaning experience which must have left deep emotional scarring
in
its wake.  The vulnerability of the younger members of society
to abuse, usually by those who think they can get away with
it, is of
the utmost concern in the times in which we live, particularly in the
Eastern Cape.
[4]
It is
right that our courts set their faces against this scourge as
vehemently as possible.  In my view, the magistrate
cannot be
faulted for his failure to find that substantial and compelling
circumstances exist in this matter and for the resultant
imposition
of the prescribed minimum sentence of life imprisonment upon the
appellant.
[28]
In the circumstances, the appeal against the sentence imposed upon
the appellant must fail.
[29]
The following order will issue:
“
1.
The appeal against both the conviction and sentence imposed upon the
appellant is dismissed.
2.
The conviction and sentence imposed by the magistrate upon the
appellant are
confirmed.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
ALKEMA
J:
I
agree.
S
ALKEMA
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant:         Mr
Kuzane
Mthatha
Justice Centre
For
the respondent:       Adv Triesch,
The
Director of Public Prosecutions
Mthatha
Date
heard:
25 November 2016
Date
delivered:
29 November 2016
[1]
S v P B
2013 (2) SACR 533
(SCA) par [20].
[2]
NOTE 1 (supra) par [22].
[3]
S v MAHLANGU AND OTHERS
2012 (2) SACR 373
(GSJ)
377 (g)–(h).
[4]
S v P N
2010 (2) SACR 187
(ECG).

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