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[2016] ZAGPPHC 1061
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Khumalo v S (A195/2016) [2016] ZAGPPHC 1061 (14 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: A 195/2016
14/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
Essau
Bheki
Khumalo Appellant
And
The
State Respondent
JUDGMENT
Maumela
J.
1.
With leave of the trial court, this matter came before court as an
appeal against both conviction and sentence. Before the regional
court for the district of Mpumalanga, held at Secunda, (the court a
quo
)
,
appellant, Essau Bheki Khumalo, who was legally
represented throughout the trial, was charged with multiple counts.
2.
He pleaded not guilty when the charges were put. The state led
evidence. Appellant testified in defence. He did not call any
witnesses. In most of the offences, the appellant was linked as the
perpetrator through DNA evidence. In counts where appellant
was not
linked through DNA evidence, the court relied on the evidence led. In
that regard, identity parades were conducted on the
25th of February
2011 and 1st of March 2011 respectively. A number of witnesses
testified for the state. On his side appellant
testified and did not
call witness.
3.
At the close of trial, the court a
quo
rejected the version of
the defence and upheld that of the state on the following:
2.1. Sixteen counts of
kidnapping.
2.2. One count of
attempted rape.
2.3. Three counts of
rape, (common law), read with the provisions of
section 51
of the
Criminal Law Amendment Act 1997
.
2.4. Seventeen counts of
rape as contemplated in section 3 of the Sexual Offences and Related
Matters Act 2007.
2.5. Five counts of
Robbery with Aggravating circumstances
as intended in
section 1
of the
Criminal Procedure Act
1977
.
2.6. One count of
robbery, (common).
2.7. One count of murder
read with
section 51
(1) of the
Criminal Law Amendment Act.
>
4.
Appellant was sentenced as follows:
3.1. For each of the
sixteen counts of kidnapping he was sentenced to undergo ten years of
imprisonment.
3.2. Ten years
imprisonment for attempted rape.
3.3. Life imprisonment in
respect of each of the three counts
of rape, (common law),
read with the provisions of
section 51
of the
Criminal Law Amendment
Act 1997
.
3.4. Life imprisonment in
respect of each of the seventeen counts of rape, as contemplated in
section 3 of the Sexual Offences and
Related Matters Act 2007: (Act
No 32 of 2007); read with the provisions of section 51 (2) of the
Criminal Law Amendment Act 1997
.
3.5. Fifteen years
imprisonment in respect of each of the five counts of Robbery with
Aggravating circumstances as intended in
section 1
of the
Criminal
Procedure Act 1977
.
3.6. Ten years
imprisonment in respect of one count of robbery, (common).
3.7. Life imprisonment in
respect of one count of murder read with
section 51
(1) of the
Criminal Law Amendment Act.
CONVICTION
.
5.
All in all, the state called no less than 28 witnesses. Appellant
testified in defence without calling witnesses. In respect
of counts
18 to 20 and 34 to 38, no DNA link was established. The complainant
in these counts did not partake in the identity parade.
It was
contended on behalf of the appellant that the state in these counts
relied singularly on what is referred to as dock identification.
It
is contended that this identification was incorrect.
6.
Appellant makes the point that the complainant in counts 23 to 24, J.
R. was a single witness. He contends that she was frightened
and
traumatised, much as her attackers were unknown to her. He also
raises the point that there is no feature through which complainant
identified him. Whereas the incident is alleged to have happened on
the 13th of August 2009, complainant only saw the appellant
on the
13th of August 2013, at which occasion she did the contested dock
identification.
7.
Appellant argues that this complainant is not even aware of the
number of occasions at which each of the perpetrators raped her.
Appellant argues that it is therefore only on the basis of assumption
that the complainant claims to have been raped by more than
one
person. He argues that it could still have been only one person who
raped the complainant.
8.
In testifying, the complainant indicated that she had ample time to
view the appellant as he attacked her. She looked at him
so as to be
able to remember him in future. Besides, the appellant's semen was
found within complaint's body earlier than the timing
at which he
claims to have had consensual sex with her. His story about it is
fraught with contradictions, so much so that the
court a
quo
was
correct in not upholding his version.
9.
Concerning counts 32 to 34 the appellant was linked through DNA
evidence. However he claims to have been in a love relationship
with
the complainant, Nurse Bettie Maphangela. He contends that sex with
the deceased was consensual. He argues that the state
did not
successfully rebut his contention. He charges that the state did not
prove the case against him beyond a reasonable doubt.
10.
It is trite that appellate courts have to be loath to interfere with
,
findings by trial courts. In S v Hadebe and others
[1]
,
the court stated that:
"It
was well to recall yet again the well-established principles
governing the hearing of appeals against findings of fact,
which
were, in short, that in the absence of demonstrable and material
misdirection by the trial court, its findings of fact were
presumed
to be correct, and would only be disregarded
if the
recorded evidence showed them to be clearly wrong."
11.
In S v Ntsele
[2]
the court held
that:
"the
onus which rested upon the State in
a
criminal
case was to prove the guilt of the accused beyond reasonable doubt
-
not
beyond all shadow of
a
doubt.
Our law did not require that
a
Court
had to act only
upon
absolute certainly, but merely upon justifiable and reasonable
convictions
-
nothing
more and nothing less."
12.
Concerning conviction there is no demonstrable and material
misdirection committed by the court a
quo
which could be a
basis for interference with its findings. The court finds that the
court was correct in finding that the state
proved its case against
the appellant beyond a reasonable doubt in the counts on which the
latter was convicted. Consequently the
appeal against conviction
stands to be dismissed.
ON
SENTENCE.
13.
The appellant contends that the sentence imposed on him induces a
sense of shock. He charges that the court a
quo
erred in not
finding substantial and compelling circumstances to be attendant to
his person which could justify the court in avoiding
the imposition
of the prescribed minimum sentence.
14.
The appellant was 35 years old when he was sentenced. It is contended
on his behalf that he was middle aged and he could still
be
rehabilitated. He was unmarried but was cohabiting. He has two minor
children aged 8 and 5 respectively. He passed grade 7.
He grew up in
a broken family. He lost his parents at the age of 5 and was brought
up by foster parents. He was employed and was
earning R 1 800-00 per
month. He was a first offender.
15.
The court a
quo
had to consider whether or not substantial and
compelling circumstances are attendant to the person of the appellant
which can justify
the court in avoiding the imposition of the
prescribed minimum sentence. Appellant contends that the court a
quo
erred in not finding that substantial and compelling
circumstances are attendant to his person.
16.
In S v Roslee
[3]
, the supreme
court of appeal in considering a contention by the defence to the
effect that substantial and compelling circumstances
obtain in an
accused expressed the following principle at
545
E: ''Although there is no onus on the accused to prove the presence
of substantial and compelling circumstances, it is so that
an accused
who intends to
persuade
a
court
to impose
a
sentence
Jess than that prescribed should pertinently raise such circumstances
for
consideration."
17.
The personal circumstances of the appellant can hardly be described
as substantial and compelling. Were the court a
quo
to have
found differently; such a finding would have been based on flimsy
reasons as defined within the reasoning expressed in the
case of S v
Malgas
[4]
.
18.
In that case the court stated the following:
"When applying
the provisions of
section 51
,
a
trial court is not in trial
mode. It is not confronted by
a
prior exercise of judicial
discretion attuned to the particular circumstances of the case and
which is
prima facie
to be respected. Instead it
is faced with
a
generalized statutory injunction to impose
a
particular sentence, which injunction rests, not upon all the
circumstances of the case, including the personal circumstances of
the offender, but simply upon whether or not the crime falls within
the specific categories spelt out in Schedule 2. Concomitantly,
there
is
a
provision which 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."
19.
On sentence again appellant charges that the court a
quo
erred
in failing to order concurrency to be applicable to the sentences
imposed. However there is consensus between the parties
about the
provisions of section 280 (2) of the Criminal Procedure Act 1977:
(Act No 51 of 1977). This section addresses; "cumulative
or
concurrent sentences and provides in subsections 2 as follows:
"(2) Such
punishments, when consisting of imprisonment,
shall commence
the one after the expiration, setting aside or remission of the
other, in such order as the court may direct, unless
the court
directs that such sentences of
imprisonment shall run
concurrently.
"
20.
It is a well-established fact that where life imprisonment is imposed
together with one or more custodial sentences, then the
life sentence
runs concurrently with the other sentences. As a result the sentences
imposed upon the appellant in this case shall
run concurrently with
the other sentences imposed. It was therefore not necessary for the
court
a quo
to order concurrency onto the sentences imposed.
His appeal against sentence therefore stands to be dismissed.
21.
In the result, the appeal against conviction and sentence stands to
be dismissed and the following order is made:
ORDER.
The
appeal against conviction and sentence is dismissed.
____________________
T.A
MAUMELA
JUDGE
OF THE HIGH COURT
NORTH
GAUTENG H GH COURT
I
agree
____________________
A.C
SASSON
JUDGE
OF THE HIGH COURT
NORTH
GAUTENG H GH COURT
[1]
1997 (2) SACR 641
(SCA), at page 642.
[2]
1998 (2) SACR 178
(SCA), at page 180 D - F.
[3]
[2006] ZASCA 14
;
2006 (1) SACR 537
(SCA).
[4]
2001 (1) SACR 469
, at page 479.