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[2016] ZAGPPHC 1189
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Sibanyoni v S (A691/2012) [2016] ZAGPPHC 1189 (9 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A691/2012
Date: 9/11/16
Reportable: No
Of interest to other
judges: No
Revised.
In
the matter between:
PAULUS
VELAPHI
SIBANYONI
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J
(1)
The appellant was charged in the Regional Court Evander with two
counts of rape and one count of pointing a firearm. He pleaded
not
guilty to all the charges on 10 May 2007. He was convicted on one
charge of rape and the pointing of a firearm on 24 February
2010. He
was sentenced to 8 years' imprisonment on each of the two charges on
27 January 2011 - almost a year after he had been
convicted and 4
years after he had been arrested. It was ordered that the two
sentences had to be served concurrently.
(2)
The magistrate did not grant leave to appeal. Leave to appeal was
granted by this court on 19 April 2012 and we are adjudicating
this
matter more than 4 years after leave to appeal had been granted. The
appellant was legally represented during the hearing.
It is common
cause between counsel for the appellant and counsel for the State
that, although all parties tried their utmost to
obtain a
reconstructed, full record that it was impossible to do so. The
Director of Public Prosecutions subsequently enrolled
the matter.
Both parties are satisfied to proceed on the record as is.
(3)
Counsel for the appellant set out that the learned Regional Court
Magistrate had erred in finding that the State had proved
the guilt
of the appellant beyond a reasonable doubt, due to the fact that the
Magistrate had not considered the facts, contradictions
and
improbabilities of the State witnesses properly and correctly. This
is so, according to the defence, due to the fact that Ms
T. K., the
complainant, was heavily under the influence of liquor at the time
the incident took place.
(4)
Ms K., the complainant, testified
in camera.
Her evidence was that on 17 February 2006 she
attended a party at the Highveld Inn in Evander. She met the
appellant at the party
and he told her to tell him when she wanted to
return home, as he would take her home. She knew and trusted him and
told him she
was leaving together with her friend Ms P. S. at 2h00.
The appellant was accompanied by a male friend at the time. According
to
the complainant she was in the front passenger seat and the
appellant was driving. He first dropped off her friend. He pointed a
firearm at her, whilst the car was moving. She shouted and screamed,
but he informed her that her mother had sent him to kill her,
but
that he would not kill her, but rape her.
(5)
At a certain veldt he stopped and placed her seat in "a
lying
position".
He then alighted, came around
the car to her side, undressed her by taking off her trousers and
raped her, after taking off his
trousers and placing the firearm next
to it. The appellant's friend was in the backseat of the car whilst
this rape took place.
Her evidence was that after he had finished
raping her, he pointed the firearm at her again and instructed his
friend to rape her.
She closed her eyes and as a result of this could
not explain what the firearm looked like. She did not try to run away
as she
was scared that the appellant would shoot her.
(6)
She admitted that her mother had obtained a protection order against
her and that was the reason she was not living with her
mother at the
time. Thereafter the appellant took her home where she was crawling
out of the vehicle and shouting and crawled into
the house. She then
immediately told the lady, Ms Mgune, who lived in the house
everything that had happened and that the appellant
had raped her.
(7)
The complainant eventually went to the police during March 2007 after
her stepfather and grandmother urged her to report the
incident. Her
evidence was that she did not want to open a case as she did not want
to damage her relationship with her mother
any further. During
further cross-examination the complainant testified that the
appellant approached her family and offered to
pay money. This was
denied by the appellant and it was put to the complainant by the
appellant's counsel that he could not pay
the money to have the case
withdrawn as he had not raped the complainant. According to the
complainant the appellant apologised
to her, also on behalf of his
friend.
(8)
The complainant's mother only became aware of the rape incident
during September 2006 and spoke to the complainant about it.
The
appellant had approached her mother at her house and apologised and
wrote down that he would pay an amount of money to have
the matter
withdrawn. This note was taken to the police, but did not find its
way to court. Thereafter she and the complainant
were re-united and
the complainant is once more staying with her mother.
(9)
Ms P. S.'s evidence was that she was the complainant's friend who had
accompanied the complainant to the Highveld Inn on 17
February 2006.
She and the complainant got into the appellant's vehicle after she
had asked him to take her home as well. They
were four people in the
vehicle. The complainant had
"consumed
a
lot of alcohol"
and
"I saw her drinking and she was, she had
episodes of being, of dozing off in the car and I would wake her".
Her evidence was that she and the complainant
had been seated in the back of the car. The next morning she went to
the complainant
as she was anxious to find out if the complainant had
returned home safely, as the appellant had driven past the
complainant's
home to first drop Ms S. and did not drop the
complainant first when passing her house.
(10)
Ms Mgune confirmed the complainant's evidence that in the early hours
of 18 February 2006 the complainant came home and immediately
told
her that she had been raped by the appellant. Although Ms S.'s
evidence was that she had seen injuries in the form of red
marks on
both her arms and on her leg, Ms Mgune did not see any injuries. Ms
Mgune was surprised that the complainant did not want
to go to the
police. Her evidence was that the complainant entered the house,
walking slowly, contrary to the complainant's evidence
that she had
crawled to the house.
(11)
The application in terms of section 174 of the
Criminal
Procedure Act
[1]
by counsel for the
appellant was refused.
(12)
The appellant testified that he was at the Highveld Inn on the night
in question where the complainant asked him for a lift
home. He and
three of his friends then got into his car with the complainant and
Ms S.. According to him, his friend Machako proposed
to the
complainant, which resulted in her slapping him. He then let him out
of the car. He then dropped off Ms S. and then dropped
the
complainant off. The first time he saw the complainant again was in
September. The appellant confirmed Ms S.'s evidence that
she was
sitting in the front. After the complainant's family had approached
him, he went to her family as his wife indicated that
he should do
anything to get this incident to go away. After negotiations he was
prepared to pay the complainant R70 000. His wife
was prepared to
help him as she just wanted the whole matter to go away. This
evidence was in contrast to the version put to the
complainant by
appellant's counsel.
(13)
The appellant did not call any witnesses to confirm his evidence
that
his wife would do and pay anything to
make the case to go away. He also did not call Sussie, who according
to him accompanied him
to the complainant's house to negotiate a
settlement. One would have expected him to call either his wife or
Sussie. No explanation
was given that there was no attempt to call
these witnesses. He furthermore did not call any of the two friends
who were with him
in the car on the night in question, and gave no
explanation as to why they were not called as witnesses.
(14)
In
Scagell
and Others v Attorney-General, Western Cape, and Others
[2]
O'Regan J held:
"It is well
established in our law that, when an evidential burden is imposed
upon an accused person,
there needs to
be evidence sufficient to give rise to a reasonable doubt to prevent
conviction."
(Court emphasis)
(15)
In the
South African Law of Evidence, Zeffert and Paizes, 2
nd
edition, Lexis Nexis,
the learned authors set out at page 132:
"If it lies
exclusively within the power of
a
party
to show what the true facts were, his failure to do
so
may entitle the court to infer that the truth
would not have supported his case."
(16)
In
S v
Veldthuizen
[3]
the Appellate
Division held:
"The words 'prima
facie evidence' cannot be brushed aside or minimised. As used in this
section they mean that the judicial
officer will accept the evidence
as prima facie proof of the issue and, in the absence of other
credible evidence, that that prima
facie proof will become conclusive
proof.
"
(17)
In
S v
Van Der Meyden
[4]
Nugent J held:
"What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must
account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be unreliable; and
some of it might be found to be
only possibly false or unreliable; but none of it may simply be
ignored."
(18)
In
S v
Chabalala
[5]
Heher JA found:
"The trial
court's approach to the case was, however, holistic and in this it
was undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA).
The
correct approach is to weigh up all the elements which point 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 about
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 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
presented in evidence. Once that approach is applied to the
evidence
in the present matter the solution becomes clear."
(Court
emphasis)
(19)
It is thus clear from the above authorities that the court has to
consider all the evidence presented to court, before making
a
decision. According to the
dicta
in
Veldhuizen
and Scagell cases
[6]
there should be
evidence to give rise to a reasonable doubt to enable a court to
acquit an accused. The court has to consider all
the evidence and not
rely on parts of the evidence only.
(20)
It is so that there were some contradictions in the evidence of the
state witnesses, but it is clear that the learned magistrate
dealt
with all these
contradictions in the
evidence in his judgment. His finding that the version of the
appellant that his friend, Machaka, had proposed
to the complainant,
which resulted in her slapping him, was never canvassed with the
victim, was correct. The evidence that the
appellant had met the
complainant a few months later, where she tried to borrow R100 from
him, was similarly not put to the complainant.
(21)
It is further important to note that the complainant had immediately
informed Ms Mgune that she had been raped when she returned
home. The
complainant maintained throughout that she was scared that the
appellant would shoot her and that was the reason she
did not go to
the police. She conceded that on her mother's insistence she
eventually reported the case of rape to the police.
(22)
Ms S.'s evidence corroborates the complainant's evidence that they
were only four people in the car, and not five as testified
by the
appellant. The complainant's mother, Ms K.'s evidence that she
insisted on the complainant laying the charge, as she had
never asked
the appellant to kill her daughter, is accepted as the true version.
The question of the offer of money to the complainant's
mother by the
appellant, after the complainant had testified, was first disputed.
The court a
quo
was
correct in dealing with the State's evidence and accepting it but was
conceded when the appellant gave evidence.
(23)
The court a
quo
dealt
extensively with the fact that the complainant was a single witness
at trial, but then her version was corroborated by Ms
Mgune. Ms
Mgune's evidence was accepted as that of an independent witness. She
was the first person to see the complainant after
the rape. Her
evidence was not challenged that she had not known the appellant.
When she saw the complainant, the complainant's
clothes and hair were
in disarray and she was crying.
(24)
This court cannot find that the learned magistrate had misdirected
himself in this regard.
(25)
In
S v
Matyityi
[7]
the Supreme Court
of Appeal held:
"'Rape is
a
topic that abounds with myths and
misconceptions. It is
a
serious
social problem about which, fortunately, we are at last becoming
concerned. The increasing attention given to it
has
raised our national consciousness about what is always and foremost
an aggressive act. It is
a
violation
that is invasive and dehumanising.
The
consequences for the rape victim are
severe
and permanent. For many rape victims the process of investigation and
prosecution is almost as traumatic as the rape itself."
'
(Court emphasis)
In
the present matter the complainant's evidence that she was too scared
to go to the police as she was afraid the appellant would
shoot her,
as he had threatened to do, was accepted by the learned magistrate. I
cannot find any fact to upset the magistrate's
finding in this
regard.
(26)
The court agrees that the court a
quo
applied
the approach as expounded in
State
v Van Der Meyden
[8]
by carefully
considering all the evidence in convicting the appellant.
(27)
It is furthermore clear from the complainant's evidence that she
believed that the item she was threatened with by the appellant
was a
firearm. The court finds that objectively that the item was likely to
lead her to believe that it is a firearm.
(28)
The court finds that the convictions on both counts must be
confirmed.
(29)
The court has carefully considered all the submissions made in regard
to sentence.
(30)
In
S v
Vilakazi
[9]
the court held:
"If
a
court is indeed satisfied that
a
lesser sentence is called for in
a
particular case, thus justifying
a
departure from the
prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence. That was also made clear
in Ma/gas,
which said that the relevant provision in the Act vests the
sentencing court with the power, indeed the obligation,
to
consider whether the particular circumstances of the case require
a
different sentence to be imposed. And
a
different sentence must be imposed if the
court is satisfied that
substantial and
compelling circumstances exist which justify'
...
it."
(31)
In
S v
Matyityi
[10]
the court found:
"As Malgas makes
plain, courts have
a
duty,
despite any personal doubts about the efficacy of the policy or
personal aversion to it, to implement those sentences. Our
courts
derive their power from the Constitution and, like other arms of
State,
owe their fealty to it. Our
constitutional order can hardly survive if courts fail to properly
patrol the boundaries of their own
power by showing due deference to
the legitimate domains of power of the other arms of State. Here
Parliament has spoken. It has
ordained minimum sentences for certain
specified offences. Courts are obliged to impose those sentences
unless there are truly
convincing reasons for departing from them. "
In
this case the learned magistrate, after carefully considering both
the aggravating and mitigating circumstances, imposed a lesser
sentence than the prescribed sentence.
(32)
The court
a quo
dealt
with all the aggravating and mitigating circumstances and came to the
conclusion that there were substantial and compelling
circumstances
to impose a lesser sentence than the prescribed sentence of 10 years.
(33)
This court can find no reason to interfere with the sentence on the
rape charge.
(34)
The 8 years' imprisonment for the charge of pointing a firearm is
extremely harsh, as conceded by counsel for the State, even
if it was
ordered to be served concurrently with the sentence on count 2. In
the circumstances the court will interfere and impose
a lesser
sentence on count 1.
(35)
In the result the following order is made:
1.
The appeal on
conviction against both counts is dismissed;
2.
The conviction on both
counts 1 and 2 is confirmed;
3.
The sentence on count
2, that is 8 years' imprisonment on the count of rape is confirmed;
4.
The sentence on count
1, pointing of a firearm is set aside;
5.
A sentence of 2 years'
imprisonment on count 1 is imposed.
It
is ordered that the sentence on count 1 is to be served concurrently
with that on count 2.
-------------
Judge
C Pretorius
I
agree.
--------------
Acting
Judge J Du Plessis
Case
number : A691/2012
Matter
heard on : 1 November 2016
For
the Appellant : Adv F Roets
Instructed
by : TMN Kgomo and Associates
For
the Respondent : Adv PW Coetzer
Instructed
by : Director of Public Prosecutions
Date
of Judgment
[1]
Act 51 of 1977
[2]
1997(2) SA 368 CC at paragraph 12
[3]
1982(3) SA 413 (A) at 416 G-H
[4]
1999(2) SA 79 (W) at 82 E
[5]
2003(1) SACR 134 (SCA) at paragraph 15
[6]
Supra
[7]
2011(1) SACR 40 (SCA) at 46 A
[8]
Supra
[9]
2009(1) SACR 552 (SCA) at paragraph 15
[10]
Supra
at paragraph 23