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[2016] ZAGPPHC 1096
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Mthombeni v S (A752/2015) [2016] ZAGPPHC 1096 (4 November 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A 752/2015
SIPHO
LAWRENCE
MTHOMBENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
MBONGWE,
AJ:
[1]
This appeal in terms of Section 309 C of the
Criminal
Procedure Act 51 of 1977
came before this court consequent to a
successful petition by the appellant against the decision of the
trial Regional Court
Magistrate, Lydenburg, refusing him
leave to appeal against his convictions and sentences.
The appellant had
been convicted on three counts of rape, in
contravention of the provisions of
Section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, for
which he was sentenced to terms of imprisonment of fifteen years per
count. The trial court had not warned the appellant
of the
applicability of the provisions of the Criminal Law Amendment Act 105
of 1997 ("the Act"); had found that substantial
and
compelling circumstances exist which justified a deviation from the
imposition of the prescribed minimum sentence of life imprisonment.
In effect, the appellant was sentenced to a total of forty five (45)
years imprisonment. The appellant was legally represented
throughout
his trial. He had pleaded not guilty to all three counts. He admitted
to having had sexual intercourse once with the
complainant on the day
of the incident and further stated that the complainant was his
girlfriend and had consented to sexual intercourse.
[2]
A court hearing an appeal against a conviction will not interfere
lightly with the trial court evaluation of evidence, the factual
and
credibility findings, unless it is convinced that the trial court had
misdirected itself and that its evaluation was wrong
[See
Rex
v
DHLUMAYO
and
Another 1948(2)
SA
677
(A)
at 705 -706].
With this principle
in mind I now consider the evidence of the witnesses.
EVIDENCE
OF THE COMPLAINANT
[3]
The complainant met the appellant for the first time in the week
preceding her sexual molestation by him when she had accompanied
a
friend to appellant's home for a loan from the appellant. She was
asked by the appellant whether she was also seeking a loan.
She
responded by stating that she did not need a loan at the time, but
would need it the following week. The complainant was about
to leave
her home the following week to go to the appellant for a loan when
her friend, S., who was the second State witness, came
to visit her.
She then requested S. to accompany her without disclosing where they
were going nor the purpose of going there.
[4]
When they arrived at the appellant's house the appellant was absent.
The complainant phoned the appellant on his cellular phone
telling
him that she was at his house and inquiring where he was. The
complainant had obtained appellant's numbers from S. when
she first
met the appellant. The appellant was at a nearby tavern, and he
arrived within a few minutes, opened the door and
invited the
complainant and S. in and sat in his dining room with them. S. was
ordered by the appellant to leave the room and wait
outside as she
had not herself come to ask for a loan. She complied with the order.
[5]
The complainant and the appellant were discussing a form which the
former was required to complete to get the loan when the
appellant
received a call. His cellular phone was lying on the floor and
plugged to a charger when he answered. After a short conversation
the
appellant had remained on the floor and was quiet, leading to the
complainant standing up to find out what was happening. She
found
that the appellant had fallen asleep and decided to leave
the house. She advised S., who was outside of what
had transpired and
suggested they leave. No sooner had they reached the corner of
the street than the appellant emerged
and asked the complainant to
return. S. told the complainant that she was not going back, but
would rather wait for the complainant
at the corner.
[6]
Back in the house, the complainant and the appellant were still going
through the form to be completed when the appellant declared
his love
for the complainant. She informed the appellant that she did not love
him. When he insisted, she told him that she will
never love him. The
appellant was irked by her response, and told the complainant that
she was arrogant and that he was going to
rid her of that arrogance.
The appellant assaulted the complainant with an open hand and cut her
on her face with a knife. He instilled
further fear in the
complainant by telling her that he is an ex-convict who was not
scared of the police and would take her intestines
out and throw her
body on the street. The complainant was subdued and, to avoid
further torture, she asked the appellant
what he wanted. The
appellant told her he wanted to sleep with her. He
then pushed her to his bedroom where he
raped her thrice, taking
smoke breaks after each rape incident. The
complainant had attempted to
get dressed after each rape,
but was told by the appellant that
"
we
are
not
done
yet” .
The
appellant did not use a condom initially, but wore one before the
second rape.
[7]
It was during the rapes that the complainant, with a
view to securing her release, decided
to tell
the appellant that she loved him. The appellant suggested that she
spent the night with him. She told him she had to go
and prepare
dinner for her grandmother. It was agreed that she would return after
serving dinner and seeing her grandmother to
bed. The appellant
walked her up to the gate of her home. It was already dark as
they walked with the appellant repeatedly
telling the complainant how
much he loved her and how good he was going to treat her.
"All
along
he
did not
realise
that
I
was crying",
she testified. The complainant reported her ordeal to the police
very late that night and the appellant was arrested the next morning.
EVIDENCE
OF S. AND DR RIBA
[8]
S. corroborated the complainant's evidence with regards to her
and the complainant's visitation to the appellant's house,
the
purpose of their visit which she gathered on her
own, from the discussions between the complainant
and the
appellant, that the appellant had ordered her out of his house when
she advised him that she was not looking for a loan
and, that she and
the complainant had already left the appellant's house when the
appellant asked the complainant to return. She
further testified that
she had waited for the complainant at the corner for more than an
hour before deciding to go home without
the complainant.
[9]
Dr Riba was the doctor who examined the complainant the morning after
she had been raped. In my view, there were two aspects
of his
evidence that were relevant and corroborated the evidence of the
complainant and that of the appellant: although he did
not record it
in the J88, he recalled noticing that the complainant had an injury
on her face beside one eye and that her other
eye was red. This
confirmed the injuries the complainant stated she had sustained when
assaulted by the appellant. His evidence
that he had found a piece of
a condom inside the complainant's genitalia was indirectly confirmed
by the appellant who testified
that he had later discovered that the
condom he had been wearing was torn in front.
ASSESSMENT
OF THE EVIDENCE OF STATE WITNESSES
[10]
I could find no material, if any, contradictions in the evidence of
the State witnesses nor did their evidence suggest an inclination
of
bias against the appellant. Instead, there was corroboration on
crucial aspects such as the purpose of the complainant's going
to the
appellant's house. The doctor's evidence regarding a piece of condom
he found in the complainant's genitalia was indirectly
corroborated
by that of the appellant himself regarding his discovery that the
condom he had on had broken. The issue whether it
was a full or a
piece of a condom that was found was not material, but sadly sought
to be relied on by the appellant to discredit
the otherwise unshaken
evidence of his commission of the offences. As will appear hereunder,
the evidence of the appellant was,
in my view, an adaptation to the
complainant's evidence of his fabricated facts meant to exonerate him
from his unlawful actions.
APPELLANT'S
VERSION
[11]
The appellant's version was that he had consensual sexual intercourse
with the complainant whom he alleged was his girlfriend.
He denied
that he assaulted her prior to raping her. He also denied that he had
ordered S. to leave his house after she had told
him she had not come
for a loan. It is apparent from the record of the proceedings in the
court a
quo
that the appellant had avoided responding directly
to questions put to him by either the prosecutor or the trial
magistrate preferring
to give long responses that were not answering
the questions. While denying that he instilled fear to the
complainant by telling
her that he was an ex-convict, but could not
give a direct response to the question how the complainant
could have known
that he is an ex-convict. He speculated that
she may have known by virtue of her living in the same community. His
denial
of the complainant's evidence that it was already dark when he
finally released and walked her home is at odds with his evidence
that the complainant had told him that while they were in a love
relationship, they could not go openly together as she had a jealous
boyfriend. The appellant's evidence that the complainant
sustained an injury to her face due to them falling from the bed
and
that she bled, even if it were to be believed, suggests that it would
have been unlikely that the sex would have continued
had there been a
genuine love relationship between the two. His evidence of
continuation with sexual intercourse points to his
insensitivity and
lack of care that is inconsistent with a normal love relationship
[12]
I can find no misdirection in the trial magistrate's assessment of
the evidence and her factual findings in this case.
I, agree
with her judgment and reasons therefor. The appellant's version
cannot be reasonably possibly true and
ought to be
rejected as false. Consequently, I propose that the convictions of
the appellant on all three counts of rape be upheld.
SENTENCES
[13]
It is a time honoured principle of our law that the sentence to be
imposed on a convicted accused is discretionary to the trial
court
and that a court hearing an appeal should refrain from interfering
with the exercise of such discretion, unless it is clear
that the
trial court, in imposing the sentence, misdirected itself or failed
to exercise its discretion in a judicial manner or
the sentence is so
inappropriate that it induces a sense of shock.
[See S
v
Rabie
1975(4) SA 855 (A)]. In the present case
the trial court erred, in the first instance, by its failure to
inform the accused that
in the event of him being convicted, the
provisions of section 51 (1) (a) of the Act will be applicable.
Similarly, the trial court
erred having found the existence of
substantial and compelling circumstances in respect of the
appellant's personal circumstances,
it nevertheless imposed an
extremely long term of imprisonment totalling 45 years. The
sentencing of the accused to
a total effective imprisonment term of
forty five years can hardly be a display of a proper exercise of a
judicial discretion.
On the contrary, it is a manifestation of a
misdirection which, led to the imposition of a sentence that induces
a sense of shock,
thus necessitating intervention by this court.
[14]
In my view, and in light of the seriousness and the prevalence of the
offences the appellant was convicted of and the fact
that he showed
no remorse for his actions, an appropriate sentence would be one of a
direct imprisonment term of twenty years,
five years of which
suspended for five years on the condition set out in the order
hereunder.
[15]
I therefore propose that the following order be made:
1.
The appeal
in respect
of
the
convictions
is
dismissed.
2.
The appeal
in
respect
of
the sentences
is
upheld.
3.
The sentences
imposed
by
the
trial
magistrate
are
set
aside
and
replaced
with
the
following:
The
accused
is
sentenced
to
direct
imprisonment
for
a
period
of
twenty
(20)
years,
five years
of
which
is suspended
for five years on condition
that
the accused
is not
found guilty
of
a
similar
offence
during
the
period of suspension.
4.
The sentence
is
ante-dated
to
the
date
of
sentence
being
5
February
2015
in terms
of section
282
of the
Criminal
Procedure
Act
51 of
1977
.
5.
The
accused is declared unfit to possess
a
firearm.
___________________________
M
MBONGWE
ACTING
JUDGE OF THE HIGH COURT
___________________________
D
S MOLEFE
JUDGE
OF THE HIGH COURT
I
AGREE. AND IT IS SO ORDERED.