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[2015] ZAGPPHC 338
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Zungula v S (A366/2014) [2015] ZAGPPHC 338 (2 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO:
A366/2014
DATE: 2 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between
ZUNGULA, FEZILE
MATHEWS
.........................................................................................
APPELLANT
and
THE
STATE
..........................................................................................................................
RESPONDENT
JUDGMENT
MUDAU AJ:
[1] The appellant, a
male aged 50, was convicted in the regional court, Ventersdorp, on 3
counts of rape in contravention of the
provisions of section 3 of the
Criminal Law Amendment Act (Sexual Offences and Related Matters), Act
32 of 2007, of a female person,
aged 15. Consequently, he was
sentenced to life imprisonment. He was declared unfit to possess a
firearm. In addition, the trial
court ordered that his personal
particulars be entered on the register for sexual offenders. He
appeals to this court to overturn
the conviction, and failing that,
his sentence. The sole issue for determination by this Court is the
reliability and acceptability
of the complainant’s evidence
with regard to the allegations of rape.
[2]
From the onset, the appellant who was legally represented at his
trial had pleaded guilty to the charge of rape in that, at
15 years
of age, the complainant could not have given consent to sexual
intercourse. A number of admissions were by consent recorded
inter
alia, the complainant’s age, the J88 report in which, it was
noted that the complainant had a “tear
inside
the vagina which is consistent with forceful intercourse".
There
was "slight” bleeding of the vagina. According to the
medical report the injuries were
“
consistent
with sexual assault.
[3] The evidence by
the complainant, AM, briefly stated is as follows. On 17 December
2010, she went to visit her sister, MM, where
she stays with the
appellant in Goedgevonde, North-West Province. Upon her arrival, she
found the appellant only. The appellant
explained that her sister was
around and would be home shortly. After putting away her luggage, the
complainant went to visit a
neighbouring friend, Palesa. When she
returned later during the evening with Palesa and the latter’s
friend, her sister was
still not yet back. Instead, she found the
appellant in the company of his friend, Dangwe, and the latter’s
wife. They all
had dinner. After dinner, she informed the appellant
that she was going to spend the night with her friend Palesa as her
sister
was not yet back. However, the appellant refused and excused
Palesa and her friend.
[4] Not long
thereafter, Dangwe and his wife also left. The complainant remained
alone with the appellant. In the meantime, she
had changed into her
sleepwear and sat on a sofa whilst watching TV in the living room.
The appellant closed the door which he
then locked and put away the
key. He thereafter approached her where she was seated, covered her
mouth, and dragged her into his
bedroom. He put her on the bed.
Thereafter, he took off her underwear and sleepwear. She screamed,
but he increased the volume
of the DVD that was playing. The
appellant thereafter raped her by inserting his penis inside her
vagina. It was painful and she
cried. She was a virgin at the time
she was raped. As she cried, he covered her mouth. The attempts to
push him away failed. Once
he was done, he slept for a while. In the
meantime she again put on her underwear and sleepwear.
[5] A few minutes
later, he wanted to have sex with her. She again refused. Again he
took off her underwear and sleepwear after
which he raped her for the
2
nd
time. At about 5 AM, she requested him to open the
door for her, which he refused. Again he raped her for the 3
rd
time. Once more, she asked him to open the door for her. He told her
that, his friend Dangwe, left with the keys. Shortly thereafter,
her
friend, Palesa, came and knocked at the door whilst calling out her
name. When she wanted to answer, the appellant covered
her mouth. The
appellant told her that her sister, MM, owed a lot of people in the
neighbourhood, which is why he was reluctant
to open the door.
However, the appellant opened the door shortly thereafter. After she
had had breakfast, the appellant told her
he was leaving to see his
friend, Dangwe. She refused his offer for money to buy school
requirements.
[6] After the
appellant had left, she too left to call her friend, Palesa, to
accompany her. On the way, she sent her other sister,
MCM, a “please
call me” message using her cell-phone. MCM obliged and called
her back. She then reported to MCM that
the appellant raped her. The
latter told her to return to Tshing, where she had visited the day
before. Thereafter, the matter
was reported to police and she was
referred to the hospital for medical examination which, was
conducted.
[7] The appellant's
erstwhile girlfriend, MM, testified and confirmed that she was not
home (where she stayed with the appellant)
at the time of the alleged
rape incidents. She was away visiting a friend and returned a few
days later. It is her version that
complainant had phoned previously
and requested to visit during the holiday period. She disputed a
suggestion made by the defence
on behalf of the appellant that, she
would only visit him occasionally, and did not live with him.
[8] The 1
ST
report witness, MCM, confirmed in her evidence that the complainant
who was crying, informed her that the appellant had raped her
after
she had responded to her request for a “please call me"
message. According to the report received, the complainant
was raped
while she slept on the sofa. In my view however, this apparent
contradiction does not help the appellant, for in his
version, the
intercourse took place in the bedroom. One can therefore, not rule
out an honest misunderstanding.
[9] The appellant's
version, briefly stated, that he had a relationship with the
complainant’s sister, MM, which endured until
October 2010 when
she left him. The complainant had requested if she could visit him
during the holidays. She again notified him
of the proposed visit
during December 2010. By then, he had already notified the
complainant’s family in October that, MM,
had left him.
However, MM did not stay with him permanently, she only visited him
occasionally. When the complainant visited him
on 17 December 2010,
she knew already, that MM was not there.
[10] Sometime later,
after Palesa and his visitors had left, the complainant who was
already in her sleepwear went to sleep in his
bedroom. He later
joined her in bed. She started touching him. He proposed to have a
relationship with her. She agreed to his proposal.
When he suggested
that they should have sex, she asked him if he had a condom. She told
him that she was still a virgin. He did
not have a condom with him.
However, he continued and repeatedly asked to have sex with her. She
eventually took off her sleepwear.
He thereafter had sexual
intercourse with her. The complainant screamed when he penetrated her
vagina with his penis. She also
told to stop. He again asked her if
they could try to have sex once more. She said nothing. He continued
asking until she responded
that he could proceed to have sex with her
but should stop when she told him to do so. He again had sex with
her. He was about
to ejaculate when she told him to stop. He assured
her that, she should not worry as he was about to finish having sex.
Once he
was done, she again got dressed in her sleepwear. Once more,
he had sexual intercourse with her between 6 and 8 AM for the last
time. Before he left for work, he told her that he left her R500-00.
She did not respond, however when he returned from work, the
money
was no longer where he had left it.
[11]
During cross-examination, when it was suggested to the appellant that
he had sexual intercourse with the complainant without
her consent he
responded thus:”
I
did not know your honour that I did not have permission because she
did not say to me no, neither did she refuse or cry
”
,
This response inherently contradicts the appellant's version in his
evidence in chief that, she agreed he could have sexual intercourse
with her. In my view, this amounts to a material contradiction in the
appellant’s case.
[12] The State had
sought to introduce bail proceedings into evidence at the trial of
the appellant which the court below admitted
in terms of the
provisions of section 60 (11B) (c) of the Criminal Procedure Act 51
of 1977 (the Act). Section 60 (11B) (c) of
the Act relied upon reads
thus:
"(c)
The record of the
bail proceedings, excluding the information in paragraph (a), shall
form part of the record of the trial of the
accused following upon
such bail proceedings: Provided that if the accused elects to testify
during the course of the bail proceedings
the court must inform him
or her of the fact that anything he or she says, may be used against
him or her at his or her trial and
such evidence becomes admissible
in any subsequent proceedings.”
[13] The following
jurisdictional facts must be apparent from the warning to an accused
person to constitute full compliance with
the section:
13.1 The accused’s
rights in this regard are only explained to him after he/she has
elected to testify in the bail proceedings;
13.2 The accused is
then informed that the bail proceedings (excluding the fact that
he/she has previous convictions and the fact
that there are further
charges pending against him/her) shall form part of the record at
his/her subsequent criminal trial;
13.3 The accused is
further informed that anything he says may be used against him/her at
the subsequent criminal trial;
13.4 He or she is
also informed that the evidence so given will become admissible at
the criminal trial; except the offending portions
of the evidence
contained in subsection (a) (i) (the previous convictions) and (a)
(ii) (the pending other cases) of section 60
(11B).
[14]
In S
v
Chavulla
en andere
1999
(1) SACR 39
(C) at 41d-j
(Lategan
J), it was stated thus;
"(T)he
determination of whether something was reasonable and fair could not
be done within the frame of reference of one party’s
interests
only. There had to be a simultaneous, even-handed assessment of the
interests of both parties involved. In a criminal
trial this required
that the interests of the accused, on the one hand, and the interests
of the State (i.e., of the community
represented by the State), on
the other, had to be considered. Since the implementation of the
Constitution (200 of 1993, and afterwards
108 of 1996) an accused in
any criminal case was entitled to, and was invariably upon request
furnished with, the State's entire
docket of evidence. The question
arose whether a corresponding duty did not rest upon the accused, in
an even-handed process, to
make available to the State such
statements as he, the accused, had made outside the trial court, for
the purposes of testing his
viva voce evidence during the trial). The
interests of justice could only be determined with reference to
honest evidence which
led to the determination of the truth. A
person, who, during a bail application, relied on statements which
contradicted what he
proposed to say at his trial, could not appeal
to reasonableness for protection against the revelation of
inconsistencies between
his evidence during the bail application and
his evidence at the trial. That would amount to unilateral protection
of his interests
against the opposing interests of the State and of
the administration of justice. It would also create a real
opportunity for accused
persons to mislead a court during bail
applications with evidence designed to secure an advantage, without
fear that they would
later be confronted with that mendacious
evidence, should it be in conflict with what
was
advanced by them
at the trial.
(T)he
Botha judgment (S v Botha and others
1995
(2) SACR 605
(W))
created
the untenable situation that a person would be permitted to rely on a
dilemma which he had himself created by his decision
to change his
version of the facts, in accordance with the advantage which he
sought to secure for himself. (T)he evidence had
to be admitted,
subject only to the provisos (a) that it had to be relevant for the
purposes of the trial, and that it had to be
admissible against the
accused in terms of the ordinary rules of the law of evidence."
[15]
In S v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999
(4) SA
623
(CC)
Kriegler
summed up the position as follows at page 674D-E:
“
In
the narrow context of the right to be released from detention the
crux of the issue is that ss 60(11B)(C) not only makes the
record of
the bail proceedings part of the subsequent trial record, but makes
any evidence the accused elects to give at the bail
hearing
admissible against him or her at trial provided the court hearing the
bail application had warned the accused of the risk
of such use. The
first part of ss (11B)(c), which automatically incorporates the bail
record into the trial record, is an unremarkable
procedural provision
which merely allows a shortcut: under s 235 of the CPA a certified
copy of the bail record can in any event
be handed in at the trial.
”
In argument before
us, counsel for the appellant was constrained to concede that the
versions by the appellant are at least 3, and
regarding the same
issue.
[16]
In my view, there is no prejudice where an accused person who is
legally represented, asks that his affidavit be admitted as
evidence
in bail proceedings as the appellant did in the instant case. It
therefore stands to reason that, the appellant’s
bail
proceedings in the court below were correctly admitted as evidence
against him. To rule otherwise, would not only have been
unfair to
the state, but was likely to bring the administration of justice in
these circumstances, into disrepute. His denial that
he had no sexual
intercourse with the complainant in his affidavit, which was admitted
as evidence, can only stand to discredit
him as a witness. This is
particularly so when viewed against his volte- face during the trial
that he had sexual intercourse with
the complainant but, with her
consent, (cf S v Snyders and others
[2000] J
OL
7273
(NC)
.
In my view, the state in this case managed to discharge the onus they
had in proving the appellant's guilt beyond a reasonable
doubt regard
being had to the totality of the facts. It follows therefore, that
the appellant was correctly, convicted.
[17]
It remains to deal with the appeal on sentence. In terms of the
provisions of s 51(1) read with Part 1 of Schedule 2 of the
Criminal
Law Amendment Act
105
of 1997
.
the
appellant qualified for the mandatory minimum sentence of life
imprisonment on 2 grounds (a) the complainant was at the time
a girl
below the age of 16 and (b) that he raped her more than once (in this
case, 3 times).The trial court found no substantial
and compelling
circumstances to deviate from the prescribed minimum sentence of life
imprisonment for the rape of the complainant
and imposed that
sentence on the appellant.
[18]
It is trite that this court can only interfere with the sentence
imposed by the trial court where it is vitiated by a material
misdirection or where the disparity between the sentence of the trial
court and the sentence that the appellate court would have
imposed,
had it been the trial court, is so marked that it can be described as
‘shocking'
,
‘startling’, or ‘disturbingly inappropriate’
(see S
v
Malgas
2001
(1) SACR 469
SCA at 478 E-H).
[19] At the time of
sentencing, the appellant was 51 years old. He had 4 children of
which 3 were minors aged 15, 14 and 7 years
of age respectively. The
children were staying with their grandmother, in Mafikeng (now
Mahikeng). His highest standard of education
is grade 10. He worked
for SA Oil SA as a truck driver. He earned R8000-00 per month. He
admitted to 2 records of previous convictions
in respect of dealing
in liquor without a licence for which he paid fines. Both of them are
unrelated to the matter under consideration.
[20] The complainant
must have held the appellant in high regard and as a father figure
from whom she expected protection considering
that the appellant
often helped her when she needed money. As an adult with
responsibilities to the minor children who were dependent
on him for
their livelihood and welfare, he showed scant regard for these
obligations when he raped the complainant with whom he
had a
relationship akin to a father and daughter. In essence, he betrayed
the trust bestowed on him when he violated her as he
did in the
absence of MM, the complainant’s sister.
[21]
Even though no victim impact evidence was led, there is no doubt that
the complainant, a virgin at the time, would have endured
post-traumatic stress. The rape was, inherently, a violent and
traumatic infringement of the complainant’s fundamental right
to be free from all forms of violence and not to be treated in a
cruel, inhumane or degrading way (Mudau v S
(2013 (2) SACR 292
(SCA);
S v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA)
at 344 l-J.
[22] I am
accordingly satisfied that no substantial and compelling
circumstances are present to justify the imposition of a sentence
less than the prescribed minimum sentence of life imprisonment. In
the circumstances, I propose the following order:
22.1 The appeal
against the conviction and sentence is dismissed.
MUDAU TP
ACTING JUDGE OF
THE HIGH COURT
I agree and it is so
ordered.
HUGHES J
JUDGE OF THE HIGH
COURT
DATE OF HEARING:
26 FEBRUARY 2015
DATE OF JUDGMENT:
2 MARCH 2015
APPEARANCES:
For the
appellant: Adv. M F Sibulela (instructed by legal Aid South Africa)
For the
respondent: Adv. M T Moetaesi (NPA)