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[2016] ZAGPPHC 381
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SVN and Others v State (A523/2012) [2016] ZAGPPHC 381 (20 April 2016)
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IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
Case number: A523/2012
Date: 20 MARCH 2016
In the matter between:
SVN First Appellant
NS
Second Appellant
S M
Third Appellant
E D
Fourth Appellant
And
THE
STATE
Respondent
JUDGMENT
DE
KLERK A
J:
Introduction
:
[1] The four appellants were charged in the Regional Court, Graskop,
with one count of housebreaking with intent to rape and rape
and one
count of kidnapping.
[2] The first appellant denied all knowledge of the crimes and
pleaded not guilty. His defence was an alibi. (He was not linked
to
the rape by the DNA results.)
[3] In his plea explanation he averred that on the day in question he
and his friend, the second appellant, went to S. On their
arrival
they met with his friends from S Township and they went together to
The R Tavern. After his girlfriend, a certain L M (who
had knocked
off from work at about 21:00) arrived at the tavern he started to
feel sick. He then told L that he wanted to go to
sleep. L,
accompanied by the second appellant, took him to a shack where he got
into bed. L and the second appellant locked him
inside the shack and
went back to the R Tavern. When he woke up the next morning, L was
asleep next to him in bed.
[4] The second, third and fourth appellants also pleaded not guilty.
They admitted that they had sexual intercourse with the complainant
at the time and place as indicated in the charge sheet but averred
that the sexual intercourse took place with her consent. (They
were
linked to the rape by the DNA results.)
[5]Save for the identity of the first appellant and whether the
complainant
consented to
sexual intercourse with the second, third and fourth appellants, all
the elements of the crimes were formally admitted.
[6] All four the
appellants were found guiltycharged.
[7]They were sentenced as
follows:
• A sentence of life imprisonment was imposed in respect of the
housebreaking with intent to rape and rape count; and
• A sentence of 3-years imprisonment in respect of the
kidnapping.
The sentences were ordered
to run concurrentl
The appellants were
legally represented throughout the proceedings.
[9]Leave to appeal against the conviction was refused, but leave to
appeal against sentence was given by the Magistrate.
[1O] In terms of the provisions of Section 10 of the Judicial Matters
Amendment Act, Act No. 42 of 2013, the appellants have an
automatic
right to appeal.
They appealed against
conviction and sentence.
Contentions:
[11]The State’s case against the first appellant rested upon
his identification by the complainant, a certain L M.
[12]On appeal it was contended by the first appellant that the Court
did not treat the evidence of the complainant with the necessary
caution.
[13] It was further contended by the first appellant that there were
no basis for the Court to reject his alibi.
[14] It was contended by the second, third and fourth appellants that
the Court erred in accepting as truthful the complainant's
evidence
and rejecting their evidence as being false beyond a reasonable
doubt.
Legal Principles:
[15] In
S
v
Artman
and
Another
1968
(3)
SA
339
A
at
341
it was held:
"In
this
Court
the
main
contention of
counsel
for each
appellant
was that
the
trial
Court
was
wrong in
its
appraisal
of
Noreen's
evidence. It
was
further
contended
that, in
the light
of the evidence as
to
the
alibis
there
was
a
reasonable
possibilitythat
they
might
be
true,
and
accordingly the verdicts
were
not
justified.
Before dealing with the various points submitted in this Court, I
wish to say something about the approach of Courts of appeal in
cases
of fact. The reluctance of an appellate tribunal to interfere with
findings of fact and credibility made by the trial Court
is all the
greater where the latter consisted of a Judge and assessors, for in
that event three triers of fact, instead of one,
had the real
advantage of seeing and hearing the witnesses. This applies
particularly where the points raised on appeal were considered
by the
trial Court, in relation to the persons whom it was observing.
In
the present
case
the
learned
acting
Judge President
was assisted
by
two assessors
who are counsel
of experience. The three members
of the Court
observed
the
witnesses
under
thorough
cross-examination.
In
particular,
the
Judge’s
report
says
of
the principal
State
witness,
N K,
'she went through a
harassing
cross- examination by
two
very
experienced counsel'.(The
appellants were
separately represented in
both
Courts.) In
the
result,
it
seems
to
me
that, unless
an
analysis
of
the
record
reveals
material errors
in
the
reasoning
or
findings
of
the trial Court,
this
Court
would
not
be
justified
in interfering.
It
would
only
be
entitled
to
do
so
if persuaded
that
the
trial
Court
was
wrong."
[16]In
S
v
Francis
1991
(1) SACR
198
A
at
198 J-199A
and
S
V Hadebe
and Others
1997 (2)
SACR
641
SCA at
645
E-F
it was held:
"The fundamental
rule
to be
applied
by
a
Court of
Appeal
is
that
while
the
appellant
is
entitled
to
a rehearing,
because
otherwise
the
right
of
appeal become
illusory
a
Court of
appeal
is
not
at
liberty to depart
from the
trial
Court's
findings
of
fact
and credibility,
unless
they
are
vitiated
by
irregularity, or unless, an examination
of the
record of evidence
reveals
that
those
findings
are
patently
wrong. The
trial
Court's
findings
of
fact
and credibility are
presumed
to be correct, because the
trial
Court,
and
not
the
Court
of
Appeal has had
the
advantage
of
seeing and hearing
thewitnesses
and is in
the best position
to determine where
the truth lies."
[17] In
R
v
Hlongwane
1959
(3)
SA
337
A
at
340
the Court
held that:
"The
legal
position
with
regard to
an
alibi
is
that
there
is
no
onus
on
an
accused
to establish
it,
and
if
it
might
reasonably
be
true he
must
be acquitted.
In
R
v Biya
1952 (4)
SA
514
(AD)
the Court held that:
But it is important to point out that in applying this test, the
alibi does not have to be considered in isolation . . .
The correct
approach
is to consider
the alibi in
the light
of the
totality
of the evidence
in the case, and
the
Court's
impression
of
the
witnesses."
[
18] In
S v Mthetwa
1972
(3)
SA
766
A
at
768
the Court held as follows:
"Because
of
the
fallibility of
human observation, evidence
of identification
is approached
by
the Courts with some
caution.
It is not
enough
for the identifying witness
to
be
honest;
the
reliability
of his observation
must also be tested.
This
depends
on
various
factors,
such
as
lighting, visibility and
eyesight;
the proximity
of the witness;
his opportunity
for observation,
both as
to
time and
situation;
the
extent
of his prior
knowledge
of the
accused,
the
mobility
of the
scene;
corroboration; suggestibility; the
accused's
face, voice,
build,
gait,
and
dress;
the
result
of identification parades, if
any
and,
of
course,
the evidence
by
or on
behalf
of the
accused.
The list is not
exhaustive.
These factors,
or such
of
them
as are applicable
in
a particular
case, are not individually
decisive,
but
must
be
weighed one against
the
other.
In
the
light
of
the
totality
of
the evidence, and
the
probabilities.
See
cases
such as
R
v
Masemang,
1950
(2)
SA
488
(AD);
R
v
Dladla
and
Others,
1962
(1)
SA
307
(AD)
at
p. 310C;
S v Meh/ape,
1963
(2) SA
29
(AD).”
[19]In
S
v
Jackson1998
(1)
SACR
470
(SCA)
(1998
(2)
SA
984
;
1998
(4)
BCLR
424
;
[1998]
2 All
SA 267)
at 476
E-F
it was held:
"The
cautionary rule in sexual assault cases is
based
on
an
irrational and
out-dated
perception. It
unjustly
stereotypes complainants
in
sexual
assault
cases
(overwhelmingly
woman)
as particularly unreliable.
In
our
system
of
law,
the burden is
on
the State
to
prove the
guilty of
an
accused
beyond
reasonable
doubt
-
no
more
and no
less.
The evidence in
a
particular case may call
for
a
cautionary approach
but
that
is
a
far
cry from
the
application
of
a
general
cautionary
rule."
[20]In
S
v
Sauls
and
Others
1981
(3)
SA
172
A
at
180
E-G
the Court held that:
"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 his testimony,
he is satisfied that the truth
has been told. The cautionary rule 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 was
well
founded.
It
has
been
said more
than once that
the
exercise of caution must
not
be allowed
to displace
the
exercise
of
common
sense."
Evidence: State's
Case
:
[21] The complainant testified that on 19 July 2009 at about 03:00
she was asleep in her bed. The four appellants forced the door
open
and entered her shack. In the light from outside she recognised the
third and fourth appellants. She screamed for help. The
second
appellant produced a knife and while he held it to her throat told
her that if she did not do as she was told he would kill
her. Her
grandmother heard her screams and came out and stood at the door. She
told her grandmother under duress to go back. At
that stage she also
recognised the first appellant. She was then ordered to undress. They
discussed amongst themselves to rather
rape her elsewhere. They then
took her outside. .She was forced to walk naked to. a nearby railway
line. At the railway line she
was told to bend down on her hands and
knees and gang raped by the appellants. Thereafter they took her back
to her shack where
they raped her again. The second and third
appellants also forced her to have oral sex with them.They then left.
[22] After they left she cried for a long time.She wanted to go out
but it was still dark. At first light she went to report what
had
happened to her to her aunt. She was at the time still crying. Her
aunt then accompanied her to her mother to whom she also
reported
same. She was also still crying. From there they first went to her
uncle and then to her grandmother to informed them
about what had
happened to her. Thereafter they went to the police station to report
the matter. She informed the police that two
of her assailants were
known to her and gave them the names of the third and fourth
appellants.
[23] She later identified the first and second appellants at an
identification parade.
[24] She further testified that earlier the night in question she was
in the company of her female friend, a certain H M. At about
19:00
while they were standing at the door of the "Pakistani Shop"
the fourth appellant approached her and made advances
to her to which
she did not respond.
[25] They later went to H place. They however did not stay long. The
complainant then went home.
[26] H corroborated her
evidence and testified in this regard as follows:
"Accused
four came and stood next to
Land
he
said
that
he
has
an
interest
in
her.
He touched her. L
moved
backwards.
He then left."
[27] She further testified that the complainant sent her a "please
call me". When she called the complainant the complainant
told
her that she reached home safely.
[28] The third State witness, a certain D N, testified that the
complainant was his girlfriend. They had been dating for more than
3-
years. He also knew the first, third and fourth appellants. On the
day in question he had not seen the complainant. In response
to a
question whether he didn't think that the complainant was hiding
something, he replied that he trusted her.
[29] The fourth State witness, a certain Constable K, testified that
the complainant reported that she had been raped by four men.
She
named the third and fourth appellants as two of her assailants. The
complainansaid that she did not know the names of the other
two
assailants. As a result of information obtained from informers the
first and second appellants were arrested. They were subsequently
pointed out by the complainant at an identification parade. After his
arrest the third appellant implicated a certain B in the
commission
of the crimes. The complainant however maintained that the said B was
not involved in the commission of the crimes.
Defence
case:
[30] All four appellants
testified in their own defence.
The first
appellant's alibi
[30]The first appellant called as a witness his girlfriend one L M. L
supported the first appellant's alibi.
[31] She testified that after she knocked off from work she joined
the first and second appellants at the R Tavern. After the first
appellant complained of not feeling well the three of them left.
[32]The first appellant however testified in this regard that he and
the second appellant met Lena outside the tavern when she
alighted
from a taxi.
[33] The second appellant on the other hand testified that L was
accompanied by a certain Z when she met them at the tavern. He
and
the first appellant were at the time sitting at a table together with
the third and fourth appellants. After L and Z arrival
he and the
first appellant went to sit with them at a table. When the first
appellant complained that he was feeling sick, the
four of them left
together.
[34] In his judgment the Magistrate remarked with regard to L’s
evidence as follows:
"A remarkable feature of the witness evidence in chief at
first is that she, without being led, appeared to be reciting a
well-known
(or we/1- rehearsed) story which she knew she had to come
and relate to the Court. Furthermore, from the very outset she was
giggling
and laughing while testifying, which at more than one
occasion Jed to me reprimanding her as the trial was no joke but a
serious
matter."
[35] The Magistrate
further remarked as follows:
''Accused No.
1's evidence
was at
first a little more confusing than that of his witness.
<
At
first
he lacked detail, but as he
progressed,
he
recited detail that
is astounding .
.
.
Towards
the end of the Prosecutor's cross-examination, I observed certain
behaviour
by the previous
defence
witness sitting
in
the gallery,
and
remarked
as
follows:
...
the
previous witness
is
sitting
behind
in
Court and she
is
constantly
making
remarks
and shaking
her
head.
She
must
refrain
from
doing
so."
[36] The second, third and fourth appellants testified in support of
the first appellant's alibi he was not with them when they
had
consensual sexual intercourse with the complainant.
[37] It transpired from the evidence that the first and second
appellants were friends with each other and that the third and fourth
appellants were friends with each other. The first and fourth
appellants knew each other and the first appellant referred to the
fourth appellant as his brother-in-law because the latter had a child
with the first appellant's sister. The second and third appellants
knew each other from jail.
The second, third and fourth appellants' versions:
[38] The second, third and
fourth appellants' versions of events were inconsistent and vague
e.g. in respect of the circumstances
under which they left the
tavern, had sex at the railway line and in the complainant's shack
and how they left the complainant's
shack.
[39] In broad terms their
version can be summarised as following:
After the first appellant, second appellants and L left the tavern
the third and fourth appellants went to the third appellant's
house
to have something to eat. Sometime later the second appellant and L
returned to the tavern. L however shortly thereafter
left again. The
second appellant, whilst sitting alone at a table saw the complainant
and a girlfriend sitting at a table drinking.
He then called the
complainant's girlfriend who told him that their boyfriends had just
left. He then asked whether he could join
them. He then bought liquor
for them. Later on the third and fourth appellant joined them.
Complainant and the fourth appellant
who knew each other hugged one
another. While the second appellant was chatting complaint's friend
up, complainant and the fourth
appellant were "getting it on".
They all eventually left and ended up having sex with each other at
the railway line
near the complainant's shack. From there they all
went to the complainant's shack where they once again had sex with
each other.
Theirboyfriends then arrived at the shack, broke the door
open and the appellants fled.
[40] The second appellant in cross-examination testified with regard
to the identity of the complainant's girlfriend as follows:
"When she said she
knows
me
from
Nelspruit
and in Nelspruit
I
am
using
public
phones
and
that areawhere I
am
working in, most of these prostitutes they
are
roaming around
there.
That means
that
other
lady
was
a
prostitute."
[41] As to the circumstances under which they had left the tavern the
evidence varied from: The second appellant wanted to go to
sleep; The
complainant invited them to a "sex party" to thank them for
the liquor which they have bought for them; The
complainant and the
fourth appellant were making out and the complainant then suggested
to him that it was time for them to leave.
The third appellant was
invited along by the complainant because she did not want him to tell
tale on them.
The
Magistrate's Judgment:
[42] The Regional Magistrate delivered a lengthy, well-reasoned and
balanced judgment.
[43] He found that the complainant's evidence was clear
and satisfactory in all material respects.He remarked that
the
complainant had made a good impression as a witness. He was satisfied
that the complainant was telling the truth and that her
evidence was
reliable.
[44] He further found that the evidence of the other State
witnesses was also reliable and acceptable. H M corroborated
the
complainant's evidence in all material aspects in respect of the time
they were in each other's company.
[45]He
severely criticised the evidence of the appellants.
[46]The
Magistrate concluded that they were unreliable witnesses.
[47] The Magistrate also
criticised the evidence of the defence witness.
[48]The Magistrate held that the appellants' versions were so
improbable that it could simply not be accepted as reasonably
possibly
true. He came to the conclusion that the four appellants and
the defence witness had lied.
Evaluation:
[49]The complainant is a single eye-witness and her evidence must be
looked at closely.
[50] With regard to identification the complainant's evidence
relating to factors such as lighting, visibility, proximity,
opportunity
for observation, the extent of her prior knowledge of the
first appellant were as follows:
"Court:
Yes,
just
a
moment,
I think
there might
be
a
misunderstanding
here. You
said
when they entered, in the light
of outside you
recognised
two people who
were
known
to
you
from
before
and that is accused
three
and four.
Now
we know
that
you
said
that
accused
two
was
not
known
to you from
before but
could
you at
that
stage
already
see
his
face
well
enough
to identify
him
as
one
of the persons who
entered?
...
Yes, I
saw
his
face
well that if
I see him
again
I
will identify
him.
And
the fourth person,
could
you see him well enough
at
any
stage
of
the
insident,
well
enough to later
identify
him?
...
Yes, the fourth
one
I saw and
l
even
hear
his
voice.
,
Did you
see
his
face
well
enough
to
later
identify him and when did
you see him
well enough to later identify
him?
...
Whilst accused
two
had
pressed the
knife on
my
neck I
was
facing
on
the
side. Then I could
see
accused
one
at that
stage.
I put
it
to you
that
at
three
am
of
the
19th
of July 2009 the accused
was
sleeping
and he
was not at your
homestead .
.
.
The
S whom I was staying with for a long time I used to play
with
him. I know his
voice
very
well.
I
will
never
confuse
him
with another
person.The
appolo
light
that
lit
on
your
homestead was there
a
reflection at
the
railway
line at
that particular time
from
this
particular
appolo
light
or any
other
light?
...
Yes.
You see
when
it
is
dark in
the
house,
when
you open
the
door
forty percent of
that
light
illuminates
inside
the
house. That forty
percent
is
the
forty
percent
which
I
am talking
about
from
outside."
The second appellant
testified in this regard as follows
"When
we
were
standing
there
at
the
railway
line
I
could
see there is an RDP
and
there is a shack
next
to the
RDP.
I saw M having sex with the complainant while S was seated a
distance from them but not far away, just a distance away.
How far was the complainant
and M in relation
to where you were busy making sex?
...
From here
to that door.
And
where was S?
...
At the corner
there.
You could see him?
...
Yes.
He
could
also
see
you?
...
Yes, he
could
see
although
it
was dark but if he can
look properly
he could
just
see.
There at the railway
line
it
is
better
because
we
could
see
what
was
happening
and
it
happened
at
the
same
time
there
and
I
can see
them, but
in
the shack,
there inside
the house
it
was dark. I
was
using
my
cell
phone,
my 1100
cell
phone
to
see,
even
the condom
I was searching
that
with the light of the cell phone.Was there light
at
the railway
station.
I mean
the
railway
line?
.
...
There is
light
there,
not
that
much
but
there
is
light
there. The Apollo
is a bit
far but you
can see."
Conclusion:
[51] There is no ground to justify interference by this Court with
the credibility findings by the Magistrate.
[52] The Magistrate, in my view, in any event correctly held that the
complainant's evidence was reliable and compelling and that
her
identification of the first appellant was beyond doubt.
[53] It was further correct of the trial Court to reject the evidence
of the appellants and L as false.
Sentencing:
[54] Now I turn now to the appeal against the sentence of life
imprisonment imposed in respect of the housebreaking with intent
to
rape and rape count and the 3-years imprisonment in respect of the
kidnapping.
[55] It is trite law that the determination of a sentence is
pre-eminently a matter for the discretion of the trial court and the
Court hearing the appeal should only alter the sentence if the
discretion has not been judicially and properly exercised (See:
S
v Rabie
1975 (4) SA
855
A
at p.
857
D)
[56] In
S
v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W)
it was reiterated that a Court of Appeal
even if it is of the opinion that it would have imposed a lighter
sentence, is not free
to interfere if it is not convinced that the
trial Court could not reasonably have passed the sentence that it
did.
[57]
Section
51
(1)
of
Act
No.
105
of
1997
provides that a High Court must sentence a person convicted
of rape to imprisonment for life where the victim was raped more than
once by the perpetrator or by any co- perpetrator or accomplice and
where the victim was raped by more than one person and such
persons
acted with a common purpose. The Court is obliged to impose the
prescribed minimum sentences unless there are substantial
and
compelling circumstances justifying the imposition of a lesser
sentence as provided for in Section 51 (1) (3) (a) of Act No.
105 of
1997.
[58]
In
S
v Ma/gas
2001
(2)
SACR
469
SCA
it was held that:
"If the sentencing Court on consideration of
the
circumstances
of
the
particular
case is
satisfied
that
they
render
the prescribed
sentences
unjust
in
it would be
disproportionate to the crime, the criminal
and
the
needs
of society,
so that an injustice
would be
done
by
imposing
that
sentence,
it
is
entitled
to impose
a
lesser
sentence ...
...
The
specified
sentences
should
not
be
departed lightly, based on
flimsy reasons and that the prescribed sentences should ordinarily be
imposed,
however
in
the
event
of
circumstances of
a
case calls for
a
departure the court should not hesitate to do so. In
determining whether
departure
is
called
for
the
Court should
weigh
all
the
considerations that
would
traditionally be relevant
to
sentencing."
[59] In
Director
of
Public
Prosecutions
v Magoma
2010 (1) SACR 427
(SCA) at para
14,
the following
was held:
"A failure by our Courts
to
impose
appropriate sentences,
in particular
for
violent crimes
by men against women,
would
lead
to
society
losing
its confidence
in
the criminal
judicial
system."
[60] With regard to the seriousness of the offence it was held in the
case of
Chapman
1997
(2)
SACR
(3)
(SCA)
at p5
A-D
that:
"Rape is
a
serious
offence,
constituting
as
it
does
a humiliating,
degrading
and
brutal
invasion
of
the privacy,
the dignity and the person
of the victim.
The right
to
dignity,
to
privacy
and
the
integrity
of
every
person are
basic
to
the
echoes
of
the
Constitution
and to
any
defensible civilization.
Women
in
this country
are
entitled
to the protection
of
these
rights. They
have
a
legitimate
claim
to
walk
peacefully on the streets,
to enjoy their
shopping
and their entertainment,
to
go and come from
work
and to enjoy
the
peace and
tranquillity
of
their
homes without fear,
the apprehension
and
the
insecurity which
constantly
diminishes
the
quality and enjoyment of their lives.
The Courts are under a duty to send out a clear message
to the accused,
to other potential rapists
and
to
the
community
we
are determined
to protect
the
quality,
dignity and freedom
of
all
women,
and
we shall
show
no
mercy
to
those
who
seek
to
invade
those
rights."
• A first offender
•Under the influence
of alcohol;
•He has a 7-year old
child;
•His parents are
deceased and he was staying with his brothers.
The
fourth appellant:
[64] He was, at the time
when these crimes were committed by them:
•27-years old;
• Under the influence
of alcohol;
•He had two minor
children aged 7-years and 8-years old respectively.
Aggravating
circumstances:
[65]The second and fourth
appellants had previous convictions.
[66] The manner in which
these crimes were committed by the appellants.
[67] The appellants displayed no remorse. On the contrary they
degraded the complainant further by
inter
alia
averring that she was drunk and invited them to a "sex
party".
Discussion:
[68] In the assessment whether substantial and compelling
circumstances were present, I find in respect of the first and third
appellants that the fact that they were first offenders combined with
the fact that they were under the influence of alcohol when
they
committed these offences constitute substantial and compelling
circumstances and leaves open the possibility of rehabilitation.
[69] I am of the view that a sentence of 18-years imprisonment in
respect of the housebreaking with intention to rape and rape
would be
just in their cases.
[70] I however find no substantial and compelling circumstances in
respect of the second and fourth appellants.
In the result it is ordered that:
1.
The appeal against the convictions of all four the appellants is
dismissed.
2.
The appeal against sentence in respect of the Second and Fourth
Appellants is dismissed.
3.The appeal against the sentence of life imprisonment in respect of
the First and Third Appellants is upheld.
4. The sentence of ·life imprisonment in· respect of
the First and Third Appellants is set aside and a sentence
of
18-years imprisonment is imposed.
5.The sentences are antedated in terms of the provisions of Section
282 of the Criminal Prosedure Act, Act No. 51 of 1977, to 1
February
2012
6.The sentence of 3-years imprisonment in respect of the kidnapping
is confirmed.
7. The two sentences are
ordered to run concurrently.
DE KLERK
Judge
of the High Court
I agree and it is so
ordered.
MULLER
Judge of the High Court
For the
Appellant
Advocate Instructing
attorney
For the
Respondent
Advocate Instructing attorney