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[2016] ZAGPPHC 868
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Msiya v S (A850/2015) [2016] ZAGPPHC 868 (23 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: A850/2015
DATE:
23/9/2016
In
the matter between:
MXOLISI
MSIYA
….......
APPELLANT
and
THE
STATE
….......
RESPONDENT
JUDGMENT
TWALA
AJ
[1]
The appellant was on the 22 April 2014 convicted of rape
and sentenced to life imprisonment in terms of Section
51 of
the Criminal Law Amendment Act, Act 105 of 1997 ("The Act")
by the Magistrate Court sitting in Benoni. He was further
declared
unfit to possess a firearm in terms of Section 103 of the Firearms
Control Act, Act 60 of 2000. He was legally represented
at the trial
of the matter and now is exercising his automatic right to appeal the
life imprisonment sentence.
[2]
It is apparent from the record that the complainant and the appellant
knew each other since they lived together in the same
house. The
issue that is in dispute is whether the appellant did have sexual
intercourse with the complaint and without her consent.
[3]
The complainant was thirteen years old when the rape incident took
place. She testified that she met the appellant at a street
corner.
The appellant called her to join him and they walked together to the
appellant's friend's house. They found the appellant's
friend, Mr N,
who testified in the trial as well. As they were seated in the house,
Mr N walked out of the house to go and buy
cigarettes from the nearby
Tuckshop.
[4]
Immediately Mr N walked out of the house, the appellant grabbed her
and threw her on the bed. He lifted her skirt and raped
her. When Mr
N came back from the Tuckshop, the appellant got off her. Mr N asked
the appellant what he was happening and he said
nothing was
happening. Mr N then ordered them to leave his house and they left.
Only a month later the complainant reported to
the girlfriend of the
appellant that he raped her. She even described how her private parts
look like to confirm that he raped
her. The appellant's girlfriend
then took her to the South African Police Service to report the
incident.
[5]
Mr N testified that the appellant came at his house on that day
accompanied by a young girl. When they got into his house, he
left
them for a few minutes to go to the Tuckshop. When he came back he
found the girl relaxing on his bed and the appellant standing.
He did
not ask them what was happening but decided to chase them away.
[6]
Ms M, testified that she was the girlfriend of the appellant and that
the complainant was a friend to her children. Complainant
reported to
her that the appellant raped her. To confirm that the appellant raped
her, she described her penis to her that it had
pimples. She then
took her to the Police to open a case of rape.
[7]
The appellant denied having seen or met the complainant on that day.
He denied having been to the house of Mr N on that day.
He denied
having raped or had sexual intercourse with the complainant. He
accused his girlfriend of fabricating the rape story
of the
complainant to get rid of him because he is refusing to commit crimes
in order to buy her nyaope.
[8]
The complainant was a thirteen year old child. She was a single
witness and therefore the Court has to approach her evidence
with a
measure of caution. In the case of
OPP v S
2000 (2) SA 711
(T) Kirk Cohen J
stated the following:
"The
proper judicial approach is not to insist on the application of the
cautionary rules but to consider each case on its
own merits. It is
so
that children lack the attributes of adults and, generally
speaking,
the younger the more
so.
However, it
cannot be said that
this consideration ipso facto
requires of
a
court that it apply the
cautionary
rules of practice
as
though they are matters of rote: on
a
parity of reasoning it cannot be said that the evidence of
children, in
sexual and other cases, where they are
single witnesses, obliges the court
to apply the
cautionary rules before
a
conviction can take
place."
[9]
The testimony of the complainant is plain and unambiguous. Her
testimony is corroborated in all material respects by the
testimony
of Ms M and Mr N. The appellant proffered a bare denial and concocted
a collusion between the complainant, his girlfriend
and Mr N to get
rid of him. He could not give any plausible explanation why his fried
and girlfriend would lie about him. The appellant
has denied meeting
the complainant in the street on that day. He denied going to the
house of Mr N with the complainant on that.
[10]
In the case of
S v Chabalala
2003 (1) SACR 134
(SCA)
it
was stated as follows:
''The
correct approach is to weigh up all the elements which
points
towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths
and weaknesses, probabilities and
improbabilities on both sides
and, having done so, to
decide whether the balance weighs so heavily
in favour
of the State as to exclude any reasonable doubt to
the
accused's guilt. The result may prove that one scrap of evidence or
one defect in the case for either party (such as the failure
to call
a
material witness concerning an identity parade) was decisive
but
that can only be on an ex post facto determination
and
a
trial court
(and counsel) should avoid the
temptation to latch on to one
(apparently) obvious
aspect without assessing it in the context of the full picture in
evidence."
[11]
It is my respectful view that, having considered the totality
of the evidence in this case, it cannot be said that the
Court a quo
misdirected itself or erred in finding that the State has proved the
guilt of the appellant beyond any reasonable doubt.
The only probable
version before the Court is that of the complainant which is
corroborated in all material respect by the evidence
of Mr N.
[12]
I now turn to deal with the sentence imposed by the court a quo in
this case. It is trite law that sentencing is pre-eminently
the
domain of the trial court. The court of appeal may only
interfere with the sentence if the court a quo misdirected itself
or
the sentence imposed is shockingly inappropriate. It was state in the
case of
S v QAMATA
1997 (1) SACR 479
€ 483a
that:
"An
appropriate sentence actually means
a
sentence in
accordance with the blameworthiness of every individual
offender. The
punitive sanction should be proportionate
in severity to the degree of blameworthiness and
seriousness
of
the
conduct."
[13]
The appellant is convicted of serious offence for which the
Legislature has prescribed that a minimum sentence should be imposed
by the Courts, unless there are substantial and compelling
circumstances existing which compels the court to deviate from
imposing
such a sentence. The Courts were warned not to deviate from
imposing the prescribed minimum sentence for flimsy reasons.
[14]
In the case of
S v MALGAS
2001 910 SACR 469
(SCA)
the court
stated the following:
"What
stands out quite clearly is that the courts are
a
good deal
freer to depart from the prescribed sentences than has been supposed
in some
of
the previously
decided
cases
and
that it is
they
who are
to judge whether or not the
circumstances of any particular case are such to justify a departure.
However, in doing so, they are
to respect, and not merely pay
lip service to the legislature's view that
the
prescribed periods of imprisonment are to be taken to be ordinarily
appropriate when crimes of the specified kind are committed.
Section 51 has limited but not eliminated the courts'
discretion in
imposing sentence in respect of offences
for which minimum sentences have been
prescribed."
[15]
As indicated above, the appellant has committed a serious crime on a
defenceless young girl child. She trusted him as a brother
and called
him "Buti Mxolisi" but he violated her. Worse still, the
appellant knew his status that he was "HIV"
positive but
decided to rape this young girl without using any
protection whatsoever. He knowingly and deliberately
destroyed the
young life of the complainant. It is not that I am
unmindful of the problems that beset the complainant
before this
incident. She has been sexually active at a very young age. She has
testified that she has a 15 year old boy-friend.
However, there was
no reason for the appellant to take advantage of her situation and
violet her. It does not justify the conduct
of the appellant towards
the complainant.
[16]
I agree with Counsel for the appellant that the complainant did not
sustained any physical injuries and that there is no victim
impact
report that has been placed before the Court. However, rape on
its own is an injury on the body and person of the victim.
She does
not have to bear physical scars to her body to show that she has been
raped.
[17]
I therefore conclude in the circumstances that the personal
circumstances of the appellant do not outweigh the aggravating
factors. In fact, the aggravating factors far outweigh the mitigating
factors - hence it cannot be said that the court a quo misdirected
itself in imposing the prescribed minimum sentence of life
imprisonment.
[18]
In the circumstances, I propose the following order:
The
appeal is dismissed
_______________
TWALA
ACTING
JUDGE OF THE HIGH COURT
I
agree
_______________________
TLHAPI
JUDGE
OF'THE HIGH COURT
Counsel
for the APPELLANT:
…...........
Adv.
S MOENG
Instructed
by:
............................
...........
PRETORIA
JUSTICE
CENTRE
…
.........................................................
TEL:
012 401 9200
Counsel
for the Defendants:
…..........
Adv.
M M
SONO,
Instructed
by:
......................................
OFFICE
OF THE STATE
ATTORNEY
…
........................................................
TEL:
Date
of Hearing:
…......................................
...
5
SEPTEMBER
2016
Date
of Judgment:
...........................
23
E
PTEMBER
2016