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[2015] ZAGPPHC 23
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Munyai and Another v S (A952/2014) [2015] ZAGPPHC 23 (26 January 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
A952/2014
DATE: 26 JANUARY
2015
In the matter
between:
VHUTSHILO MASILO
MUNYAI
.....................................................................................
1
st
Appellant
TSUMBEDZO
SIGIDI
.......................................................................................................
2
nd
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
JUDGMENT
MUDAU AJ
[1] The two
appellants appeared before a regional magistrate in Malamulele,
Limpopo, on a charge of rape read with
ss 51
(1) of the
Criminal Law
Amendment Act 105 of 1997
. In addition, the first appellant was also
charged with housebreaking with intent to rob and robbery. Consequent
upon their conviction
they were each sentenced to life imprisonment
for the rape charge. The 1
st
appellant was in addition,
sentenced to 10 years imprisonment in respect of the second charge.
They now appeal to this court against
their conviction and sentence
on a variety of grounds. The crucial issue before this court in
respect of both charges is whether
the appellants were properly
identified by the state witnesses as well as an alleged irregularity
committed by the trial court
in accepting the evidence of the child
witness without determining whether she understood the nature and
import of an oath. With
regards to sentence, the dispute is whether
the trial court should have found that substantial and compelling
circumstances existed,
justifying a departure from the mandatory
minimum sentence of life imprisonment.
Summary of facts
[2] The evidence is
essentially as follows. On 27 April 2010 and at about 17h30, the
complainant in the rape charge whom I shall
refer to as MM (in order
to protect her identity) set off from Mokome Village to Phaphazela
Village in the company of her friend
J[...] C[...] (“C[...]”).
Along the way they noticed the two appellants had approached them
from behind. She knew both
appellants as she grew up before them. The
two appellants caught up but walked passed them. Not long thereafter
at a ditch or dry
riverbed the two appellants accosted them from the
front. At this point the first appellant was armed with a knife and
the second
appellant was armed with a big stone. The first appellant
approached and put his arm around her neck throttling her. The second
appellant approached her companion who as a result ran away. The
second appellant chased him for a short distance. She was pulled
into
the bush about 1 km away by the first appellant with a knife still in
his other hand. The second appellant had by then rejoined
them.
[3] She was pushed
to the ground and thereafter undressed. The first appellant proceeded
to rape her by inserting his penis inside
her vagina without any use
of a condom after which the second appellant raped her as well. The
second appellant did not make use
of a condom as well. She cried
during the sexual ordeal as the experience was painful. Once this was
over, she was ordered to remove
her T-shirt which the second
appellant used to wipe her private parts. Thereafter they accompanied
her and turned back 3 streets
from her home. She found J[...] waiting
for her at home. She also found her cousin M[...] to whom she
reported the rape incident.
The police were immediately contacted.
Thereafter she was taken to the hospital where a medical examination
was conducted.
[4] C[...] also
testified and essentially confirmed the complainant’s evidence
with regards to the events surrounding the
confrontation with the two
appellants. It is C[...]’s evidence that after being chased for
a short distance by the second
appellant, he returned to the scene to
fetch his jacket. He had placed two cell phones inside the jacket
pockets. The second appellant
handed him his jacket without the cell
phones. This was before the two appellants took the complainant away.
J[...] also confirmed
the report that the complainant made to Mavis
in which she referred to the two appellants by their names.
[5] Dr Langa who
examined the complainant testified and confirmed that the complainant
explained to him that she had been assaulted
and raped by two known
persons earlier the same day. The examination he conducted on the
complainant’s genital area revealed
fresh tears on the hymen
and perineum. The injuries sustained by the complainant were
consistent with forced sexual penetration.
[6] The evidence
implicating the first appellant in the housebreaking and robbery
charge is briefly as follows. It is Mrs. M[...]’s
(second
complainant) evidence that she went to bed on the night of 30 June
2012 after ensuring that the windows of her shack were
closed and the
door locked. At about 6 AM the morning of 1 July 2012 she woke up to
the sound of her cell phone ringing. It was
only then after answering
her cellphone that she realized that there was an intruder inside the
shack. The intruder was a man who
proceeded to punch and grab the
cellphone from her hand after which he fled through the door. She
screamed whilst chasing after
the intruder.
[7] Her screams must
have alerted her neighbours for they came out and joined in the
chase. Some of them overtook her during the
chase but some approached
from the front. By the time she caught up with them the first
appellant had already been apprehended.
A search of the first
appellant yielded her cellphone which was then handed back to her. It
is Mrs. M[...]’s evidence that
whilst chasing after the first
appellant she noticed that the attire he was wearing. Except for the
brief period when people had
overtaken and surrounded the appellant
she had him within sight. This was the same person (the first
appellant).
[8] The second
complainant’s neighbour, Mr. S[...] C[...] M[...] (“M[...]”),
who had also joined in the chase,
confirmed her evidence. It is
M[...]’s evidence that the first appellant was searched in his
presence by a man named Robert
who removed a cellphone from the
appellant’s pocket which the complainant identified as hers.
The complainant was handed
the same cellphone which she identified as
hers. Before the trial court Mr. M[...] identified the same cellphone
that had been
recovered.
[9] Briefly stated,
the first appellant’s evidence regarding the first count is
that he spent the entire day at work. Shortly
after 6 PM he arrived
home where he spent time with his family and never left the house.
Although he knew the complainant as well
as the second appellant, he
denies that he participated in the crime. Regarding the allegations
of housebreaking and robbery in
the second count, his evidence is
that at about 3 AM that day he was at Mokome in the vicinity of the
complainant’s home
when he heard screams. He was later accosted
by members of the public who confronted him about the break-in and
robbery which he
disputed. Although members of the public assaulted
him, he was never searched. Neither was any cell phone recovered from
him.
[10] The second
appellant also testified and denied any participation in the rape. It
is his version that at about 5 PM that day
he had soccer practice
with others at a village called Dididi which endured until about 6:30
pm. He returned home in the company
of three others with who he was
in soccer practice with. Although he knew the first appellant they
were not together that day.
[11] The trial
magistrate accepted the State’s version and rejected the
appellants' alibi defences as false beyond reasonable
doubt. He found
the State witnesses' identification of the appellants as not only
credible but reliable. He was satisfied that
the identification
occurred in circumstances where there was adequate opportunity for a
reliable identification in repect of both
counts. It remains to deal
with the merits of this appeal which I deal with below.
[12]
It is common cause that complainant in respect of the rape charge was
14 years of age at the time of the incident. By the time
she
testified she was two days short of her 18th birthday. In this regard
it was contended on behalf of the two appellants that
the trial
magistrate committed a fatal irregularity in administering the oath
without determining whether she understood the nature
and import of
the oath. In this regard this court was referred to S
v
Matshivha
2014 (1) SACR 29
(SCA).
In
this case, it is common cause that the oath was administered by the
interpreter in open court and in the presence of the trial
magistrate
as
s165
permits. Section s162 of the Criminal Procedure Act 51 of
1977 (the Act) provides that no one can be examined as a witness
unless
the oath has been administered, except where the provisions of
ss 163 and 164 apply. It is trite that in the absence of an objection
by a witness the oath must be administered (see S
v
Ndlela
1984 (1) SA 223
(N)).
Section
163 deals with making an affirmation in lieu of an oath by a witness
who objects thereto.
[13] Section 164 (1)
of the Act provides as follows:
“
Any
person, who is found not to understand the nature and import of the
oath or the affirmation, may be admitted to give evidence
in criminal
proceedings without taking the oath or making the affirmation:
Provided that such person shall, in lieu of the oath
or affirmation,
be admonished by the presiding judge or judicial officer to speak the
truth. ”
It
therefore goes without saying that the provisions of s164 kick in and
are operational in the event of a finding that the witness
does not
“
understand
the nature and import of the oath or the affirmation”.
Section
164 (1) is a vehicle through which evidence of a young child is
permitted or for that matter any other person, who, because
of their
condition is unable to understand the nature and import of the oath
or the affirmation. At almost 18 years of age at the
time of giving
testimony, it cannot be argued that she was a young child. Neither
was it conveyed back by the interpreter that
she does not understand
the nature and import of the oath or affirmation. In the
Matshivha
case
supra,
the
complainant and her brother were 8 and 13 years old respectively when
they testified. It is therefore clear that this case is
distinguishable from that of
Matshivha
because
of the difference in the ages of the children involved. It follows
accordingly that the evidence of the complainant in this
matter was,
in my view, properly admitted.
[14]
In this matter both the denial of complicity and the alibi defence
rested solely on the two appellant’s say-so with neither
witnesses nor objective probabilities to strengthen them. In S
v
Mathebula
2010 (1) SACR 55
(SCA)
at
para 11 the court put it as follows:
“
the
vulnerability of unsupported alibi defences is notorious, depending,
as it does, so much upon the court’s assessment of
the truth of
the accused’s testimony.”
I can find no fault
with with the trial court’s findings that the identification of
the appellants is reliable. With regard
to the rape charge the
complainant and her companion (Chauke) had ample opportunity to
observe the appellants who were not covered.
Similarly, in the
robberry charge, the first appellant was identified and arrested
shortly after the incident of the crime whislt
in possession of the
stolen cellphone.
[15]
In addition hereto, the identification of the appellants undoubtedly
passes muster when measured against the cautionary approach
enunciated in a long line of cases (see S
v
Ngcamu
2011 (1) SACR 1
(SCA)
para
10, where the court made reference to an earlier
locus
classicus
on
identification evidence, S
v
Mthetwa
1972 (3) SA 766
(A)
at
768A-C as the trial magistrate did. The cumulative weight of the
factors enumerated by Holmes JA in
Mthetwa
such
as 'lighting, visibility and eyesight; the proximity of the
witnesses]. . . opportunity for observation, both as to time and
situation . . . the [appellant's] face,’ were in both instances
favourable in this matter. Any criticism on the merits of
both
charges against the conviction of the two appellants in light of the
evidence as a whole lacks merit.
[16]
The appeal against the sentence of a life imprisonment imposed
against the two appellants is, firstly, that, they were not
warned by
the trial court that the offence charged attracts such a sentence at
the beginning of the trial. It is trite that an
accused faced with
life imprisonment must from the outset know what the implications and
consequences of the charge are. The question
is whether the
appellants knew what the charges were and what possible sentence they
would get if they were convicted. According
to S
v
Ndlovu
2003 (1) SACR 331
(SCA)
the
accused must be alerted of the possible sentence at the outset of the
trial,
‘
if
not in the charge-sheet then in some other form’.
However,
in S
v Legoa
2003 (1) SACR 13
(SCA)
at
para 21 it was stated that “the matter is one of substance and
not form” (see also
Makatu
2006 (2) SACR 582
(SCA)
as
well as
Mashinini and Another
v S
2012 (1) SACR 604
(SCA)).
[17]
In my view however, the facts of this case are distinguishable from
the cases in which the accused’s substantive fair
trial rights
were impaired for the reason that reference is made in the charge
sheet to
section 51
(1) of the
Criminal Law Amendment Act. In
addition, the appellants were, throughout their trial legally
represented. This is borne out by the fact that in mitigation of
sentence their legal representative asked the court to
“
deviate
from the applicable sentence of life"
(at
page 140, line 10 of the record.) I am therefore satisfied that the
proceedings were conducted fairly.
[18] Secondly, the
attack against sentence is that the trial court should have deviated
from imposing the life terms given the cumulative
factors such as
youth, the absence of previous convictions, lack of grievous bodily
injuries, lack of victim impact evidence and
lastly that the
complainant was already sexually active. It is convenient to deal
with the last aspect regarding sexual history.
It is quite simply
irrelevant.
[19] Both accused
were 24 years at the time of the rape incident according to the
charge sheet. Approximately three years later
during the trial it was
placed on record that they were 24 years old .This fact was not
contradicted. The first appellant was married
and a father to a seven
year old child, his wife was unemployed. He ran a tuck-shop from
which he made approximately R500 -00 a
month and no previous records
of convictions were proved against him.
[20] The second
appellant was also married at the time and a father to 2 young
children. His occupation was never disclosed but
he was described as
a breadwinner. He was on medication for asthma. He too was a first
time offender.
[21]
The offence of rape has often been considered by our courts and
remains as one of the most serious crimes that should attract
severe
punishment. In S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)
at
p344/5 the Court remarked as follows:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilization.’
In
DPP,
North Gauteng v Thabethe
2011
(2) SACR 567
(SCA) 577G-I it was stated:
‘
Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our nascent
democracy, which is founded on protection and promotion of the values
of human dignity, equality and the advancement of human rights
and
freedoms. It is such a serious crime that it evokes strong feelings
of revulsion and outrage amongst all right thinking and
self-respecting members of society. Our courts have an obligation in
imposing sentences for such a crime, particularly where it
involves
young, innocent, defenseless and vulnerable girls, to impose the kind
of sentences which reflect the natural outrage and
revulsion felt by
the law- abiding members of society. A failure to do so would
regrettably have the effect of eroding the public
confidence in the
criminal justice system.’
[22]
However, as it has been held in S
v
Vilakazi
2009 (1) SACR 552
(SCA)
and
S
v Mahomatsa
2002
(2) SACR 435
(SCA)
,
life imprisonment should be reserved for more serious cases of rape.
[23]
With regard to the application of mandatory minimum sentences, Ponnan
JA, in S
v Matyityi
2011
(1) SACR 40
(SCA)
at
para 23, with reference to S
v
Malgas
2001 (1) SACR 469
(SCA)
stated:
“
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, 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.
Courts are not free to subvert the will of the legislature by resort
to vague, ill-defined concepts such
as 'relative youthfulness' or
other equally vague and ill-founded hypotheses that appear to fit the
particular sentencing officer's
personal notion of fairness.
Predictable outcomes, not outcomes based on the whim of an individual
judicial officer, is foundational
to the rule of law which lies at
the heart of our constitutional order.’
[24]
I cannot imagine a worse case than the gang raping of a young girl as
the complainant in the instant case. Not only did she
sustain
injuries in a genitalia but must have been humiliated when a T-shirt
was used to wipe her genitalia after the rape. Even
though no victim
impact evidence was led, I have no doubt that the complainant would
have endured post-traumatic stress. The rest
of the aspects raised
are common place. As in
Kwanape
case
where a sentence of a lifetime imprisonment was confirmed in respect
of the rape of a 12-year-old by a 24-year-old offender,
(Kwanape
v
S
2014 (1) SACR 405
(SCA))
the
rape in this matter had not been perpetrated in a family setting.
Consideration being had to all the material factors I do not
find
that the magistrate did not exercise his sentencing discretion
properly in imposing the mandatory life terms against both
appellants. The sentences imposed do not leave me with any sense of
shock. It accordingly follows that there are no reasons for
interference with the sentences imposed on both appellants.
[25] In the result
the following order is made:
The appeal against
the conviction and sentence by appellants is dismissed.
T P MUDAU
ACTING JUDGE OF
THE HIGH COURT, GAUTENG, PRETORIA
I agree
FABRICIUS, H J
JUDGE OF THE HIGH
COURT, GAUTENG, PRETORIA