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[2015] ZAKZPHC 5
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Dlamini v S (AR171/2014) [2015] ZAKZPHC 5; 2016 (1) SACR 229 (KZP) (6 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 171/2014
REPORTABLE
In
the matter between:
SIPHAMANDLA
DLAMINI
.................................................................................
APPELLANT
v
THE
STATE
..........................................................................................................
RESPONDENT
APPEAL
JUDGMENT
POYO
DLWATI J (CHILI J et BOOYENS AJ Concurring):
[1]
The appellant, who had been charged together with one other (accused
no 2), was convicted of 2 counts of kidnapping (counts
4 and 5), 3
counts of rape (counts 2, 6 and 7) and 2 counts of assault with the
intention to do grievous bodily harm (counts 3
and 8). The provisions
of section 3 read with the provisions of section 1, 55, 58, 59 and 60
of the Criminal Law (Sexual Offences
and Related Matters) Amendment
Act 32 of 1997, further read with section 256 and 261 of the Criminal
Procedure Act 51 of 1977 (the
Act) and the relevant provisions of
section 51 and schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, were applicable. It was alleged that the appellant had raped
the complainants in counts 6 and 7 more than once. In respect of
counts 4 and 5 the appellant was sentenced to 5 years imprisonment on
each count. In respect of counts 3 and 8, he was sentenced
to 2 years
imprisonment. He was sentenced to 10 years imprisonment on count 2
and life imprisonment in respect of counts 6 and
7 individually. All
sentences were ordered to run concurrently with the life imprisonment
sentences imposed on counts 6 and 7.
With the leave of the
court a
quo
the appellant appeals against the convictions in counts 4, 5,
6 and 7 and sentences in count 6 and 7.
[2]
The evidence tendered by the prosecution revealed that all charges
arose out of incidents that happened in the early hours of
26
December 2011 at Epanekeni in Inchanga. The complainants (N[…]
M[…], complainant in counts 1,2 and 3; G[…]
M[…],
complainant in counts 4,6 and 8; and No[…] M[…],
complainant in counts 5 and 7) had been at the S[…]
homestead
during that evening, where they were chased away by M[…] S[…]
(G[…]’s boyfriend) and his brother.
As they ran in
different directions, No[…] and N[…] came across an
unknown young man (referred to as “the boy”
in the
record) who offered to accompany them to their place of residence.
Along the way, they met with the appellant who enquired
from them as
to where were they going. They told him that the boy was accompanying
them home. They also told him that they want
to go home and call the
other girl who was with them but got lost when they were running away
from the S[…] homestead. The
appellant then suggested that
they should proceed to the S[…] homestead, told them (No[…]
and N[…]) that he
was not afraid of the S[…] boys and
undertook to help them find G[…]. The appellant thereafter
told N[…] that
she would go with him and the young man would
go with No[…]. No[…] and the young man left.
[3]
As they were walking near the sports field the appellant instructed
N[…] to stop and she did. He asked her to kiss him
but she
refused. He slapped her with an open hand. At that stage No[…]
and the young man were at a distance from them.
N[…]
could not see them. The appellant was carrying a torch, a stick and a
broken bottle neck. After he slapped her,
she fell on the
ground. The appellant stamped over her with his feet and also put his
foot on her cheek. Her left arm and leg were
sore as a result.
He then removed the leggings that she was wearing and her panty. He
climbed on top of her, inserted his
penis into her vagina and had
sexual intercourse with her. When he finished he told her to get up
and dress as he was done with
her. He told N[…] that he was
going to take No[…] and that N[…] was to go with the
young man. The appellant
also dressed up and they went to where No[…]
and the young man were. N[…] walked home with this young man
and left
No[…] with the appellant.
[4]
The appellant asked No[…] to kiss him but she refused. He told
her that he would do to her what he had done to N[…].
No[…] then kissed him. The appellant then went to a certain
homestead
[1]
and told No[…]
to go with him otherwise he would assault her. The appellant pushed
open the door to the house and they got
into a bedroom. The appellant
searched No[…] but did not find anything. He took off her
trousers and the tights that she
was wearing. He told her to take off
her panty but she refused. He slapped her with an open hand. She then
took off her panty.
He undressed and put No[…] on the bed and
told her to open her thighs. She refused and he slapped her again.
She then opened
her thighs and he thereafter inserted his penis into
her vagina and had sexual intercourse with her. After he finished he
told
her to dress up and he would walk her home. They then left that
house and used a different route than the one they used when they
went to the said house. The appellant told her it was a short cut. As
they were walking she noticed someone who looked like G[…]
in
another homestead and she went to her. They were happy to be
reunited. The appellant told them to go inside that home.
[5]
This was the home of his erstwhile co-accused, accused no 2.
[2]
They went inside that house where G[…] had been sleeping,
sharing a bed with accused 2. The appellant locked the door and
asked
accused 2 why he was sleeping with a woman facing opposite
directions. The appellant then told accused 2 that he could not
just
sit with G[…], without giving him anything. He then took G[…]
and went with her to the bedroom. No[…]
thereafter heard G[…]
crying. Thereafter the appellant appeared from the bedroom and asked
accused 2 why they were just
sitting there doing nothing. He asked
accused 2 for condoms and they found 1 condom which the appellant
took. He then instructed
accused 2 to sleep with No[…]. The
appellant undressed No[…] and put her in bed. Accused 2 then
inserted his penis
into her vagina and had sexual intercourse with
her. After that the appellant went to the bedroom where G[…]
was.
After the appellant had finished with G[…] he took No[…]
to the bedroom and again had sexual intercourse with her.
After he
finished with No[…] he took G[…] to the bedroom again
and had sexual intercourse with her. After a while
G[…] and
the appellant came out of the bedroom and G[…] asked for
water. The appellant accompanied her to a nearby
tap where she drank
water and they came back to accused 2’s home. The appellant
locked the door again. They requested to
go home but the appellant
refused. After sometime accused 2 asked if they wanted to go home and
they agreed. They all left accused
2’s home. On their way the
appellant went with accused 2’s brother in search of beer.
Accused 2 was guarding No[…]
and G[…]. They managed to
run away from accused 2 and got to their home.
[6]
At home they found N[…] and they related what had happened to
them to their aunt, M[…] T[…] M[…].
The police
were summoned to the scene and the appellant and accused 2 were later
arrested.
[7]
During his trial, the appellant was legally represented. He pleaded
not guilty to all charges. Various admissions were made
in terms of
section 220 of the Act. In a statement made in terms of section
115 of the Act the appellant admitted having
had sexual intercourse
with N[…] and No[…] but averred that it was by their
consent. He denied having had any sexual
intercourse with G[…]
at all. He further denied having assaulted G[…], No[…]
and N[…]. With regards
to the kidnapping charges, he denied
having kept the complainants at accused 2’s home without their
will. The learned judge
a quo
, after hearing all the evidence
acquitted the appellant on count one only and convicted him on all
the remaining charges. Accused
no 2 on the other hand was acquitted
on all charges.
[8]
At issue is whether the learned judge
a quo
erred in finding
that the State had proven beyond reasonable doubt that the appellant
had raped the 3 complainants, had assaulted
them and also kept them
at accused 2’s home against their will. Furthermore it was
argued that the kidnapping charges led
to the duplication of
convictions as the evidence that led to the conviction in the rape
charges was the same as that of the kidnapping
charges. It was
further argued that the sentences of life imprisonment were
disturbingly shocking and were disproportionate to
the offences
committed.
[9]
On the rape charges on No[…] and N[…] the issues for
determination are whether they consented to have sexual intercourse
with the appellant and whether it was more than once. The other issue
is whether the appellant raped G[…]. I have alluded
to the
State evidence in this regard. I pause to mention that the DNA
evidence admitted into evidence as exhibit “J”
confirmed
that the appellant was indeed the donor of the DNA found in No[…]
and N[…]. The evidence of No[…]
was that the appellant
had said he would go with N[…] first and later took No[…]
and told her that he would do to
her what he did to N[…]. At
different occasions he slapped them and forced them to take off their
clothes. N[…] was
limping as a result of the assault. Her
injuries are corroborated by the J88 report admitted into evidence as
exhibit “G”.
N[…]’s evidence is further
corroborated by the report she made to T[…], No[…] and
G[…] a few
hours after the rape. Given the circumstances of
the present case, I am of the view that it is highly improbable that
N[…]
would cry rape a few hours after having had sexual
intercourse with the appellant if she had consented to it.
[10]
No[…] was first raped in a certain homestead which she was
able to identify in the photo album, exhibit “D”.
She
denied having consented to having sexual intercourse with the
appellant as he alleged, in that house. She was again raped by
the
appellant at accused no 2’s house. Her evidence in that regard
is to a large extent corroborated by G[…] who testified
that
she heard No[…] crying when she was in the bedroom with the
appellant. On the other hand, G[…] and No[…]
corroborated each other when they testified that when G[…]
returned from the bedroom where she had been with the appellant,
she
was crying. The appellant came out of accused 2’s bedroom and
asked accused 2 why he was just sitting with No[…].
He
instructed him to sleep with her. It could, in my view, safely be
inferred that the appellant had had sexual intercourse with
G[…]
and wanted accused no.2 to do the same with No[…]. The
appellant took turns raping No[…] and G[…].
He was the
one instructing others as to what to do in accused 2’s home. He
was even feared by accused 2 according to G[…]
and No[…]’s
evidence. Shortly after they made good their escape No[…] and
G[…] related what had happened
to them to Thabile and that is
when the police were called. Their reporting of the rape to Thabile
is inconsistent with people
who had consensual intercourse with the
appellant. The court
a
quo
found G[…], N[…] and No[…] to be good witnesses.
They told a clear, coherent story to the court. They were
unshaken
under cross examination. I am satisfied that the version they related
to the court
a
quo
is a correct account of what transpired during that fateful evening.
It is clear on record, that the court a quo was fully alive
to the
fact that it was dealing with single witnesses whose evidence had to
be approached with caution and further, that it called
for sufficient
safeguards in order to reduce the risk of a wrong conviction. One
such safeguard is corroboration. By corroboration
is meant other
evidence which supports the evidence of the State witness and which
renders the evidence of the accused less probable
on the issues in
dispute.
[3]
With regard to N[…]
and No[…]’s evidence there is sufficient corroboration
of the rapes. They are further corroborated
by their reports to
Thabile and the injuries depicted on the J88. In my view, the only
reason why the appellant admitted that he
had sexual intercourse with
N[…] and No[…] is because he had his back against the
wall. He found himself in
a position where he felt obliged to
explain how his DNA landed on the two complainants (N[…] and
No[…]).
[11]
G[…] is corroborated by No[…] and accused 2 that at
some point during that evening she was with the appellant
alone in
the bedroom. She testified that she was raped twice by the
appellant. She shortly thereafter reported the rape to
Thabile. The
J88 report admitted into evidence as exhibit “H” also
confirms that there were fresh injuries in her vagina.
I therefore
believe that there is sufficient corroboration of her evidence.
On the other hand, the appellant’s version
that he was never in
the bedroom with G[…] is not reasonably possibly true. In
my view, the learned judge
a
quo
correctly considered the conspectus of the evidence and weighed the
pros and cons and made a judiciously considered judgment. It
is trite
that the court that is best placed to check the demeanour of a
witness is the trial court. The court of appeal can
therefore
interfere with a trial court’s evaluation of oral testimony
only in exceptional circumstances.
[4]
As held in
R
v Dhlumayo and Another
1948
(2) SA 677
(A), a court of appeal will not disturb the factual
finding of the trial court unless the latter has committed a
misdirection.
Where there has been no misdirection on facts by the
trial court, the presumption is that his conclusion is correct.
[12]
This leads me to the kidnaping charges, (counts 4 and 5). The
evidence of G[…] and No[…] was that the appellant
locked the door after they had entered accused 2’s home. They
could not remember if he kept the key with him. G[…]
testified that her request for water was an attempt to escape from
the appellant. Little did she know that the appellant would
guard her
to and from the tap. After their return from the tap the
appellant again locked the door. They wanted to leave
accused 2’s
home but the appellant told them that they were mad, they could not
leave as it was late at night. In my
view they must have wanted
to leave irrespective of the fact that it was at night because all
the appellant was doing was taking
turns to rape them. In my
view G[…] and No[…] were honest witnesses. If they
wanted to falsely implicate the
appellant they would have told the
court, for instance, that the appellant kept the key in his pocket
after locking the door.
But they were honest and told the court
that they could not remember. I am satisfied therefore that on the
totality of the evidence
the trial court was correct in concluding
that the guilt of the appellant in respect of the kidnapping charges
was established
beyond reasonable doubt.
[13]
The further argument advanced in pursuing the appeal was that there
was a duplication of convictions with regard to the kidnapping
and
rape charges. It was argued that for a person to rape another,
the rapist must hold the victim against his or her will
and therefore
deprive him or her of his or her freedom. It has been a rule of
practice in our courts that where the accused has
committed only one
offence in substance, it should not be split up and charged against
him in one and the same trial as several
offences.
[5]
The test is whether, taking a common sense view of matters in the
light of fairness to the accused, a single offence or more than
one
has been committed.
[6]
No[…] and G[…] testified that they wanted to leave
especially after the rapes were perpetuated on them but
the appellant
told them they could not leave as they were going to report them to
the police. The appellant did not only restrain
the complainants when
he was raping them but also kept them even after he had raped them
thus unlawfully and intentionally depriving
them of their liberty. I
am therefore not persuaded that the trial court misdirected itself in
any way either in its assessment
of the facts, credibility findings
it made and the separate convictions it came to. It follows that the
appeal against convictions
must fail.
[14]
Turning to the appeal against sentence, it was argued that the
sentences of life imprisonment were harsh, shocking and out
of
proportion in the circumstances of this case. It was argued that the
learned judge
a quo
failed to take into account that the age
of the appellant, the fact that he was under the influence of alcohol
or drugs when he
committed these offences were substantial and
compelling circumstances that justified the imposition of less severe
sentences than
life imprisonment. It was further argued that the
rapes were not premeditated. In support of this argument,
counsel for the
appellant submitted that had the complainants not
decided to walk at night when everybody was under the ‘spell of
Christmas’,
the appellant would not have committed these
crimes. Furthermore, the complainants were not seriously injured, it
was so argued.
[15]
It is trite that a court of appeal will not interfere with sentence
unless it is vitiated by misdirection or the sentence is
inappropriate and induces a sense of shock. In my view, the court
a
quo
did not misdirect itself in any way. The appellant became a serial
rapist in one night, committing acts of rape more than five
times
against three different complainants. Such people are dangerous to
the society especially to women and girl children. No
remorse was
shown by the appellant despite the fact that the evidence was
overwhelming against him. Furthermore, women in this
country are
entitled to the protection of their rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy
their shopping and
their entertainment, to go and come from work and to enjoy the peace
and tranquillity of their homes without
the fear, the apprehension
and the insecurity which constantly diminishes the quality and
enjoyment of their lives.
[7]
The appellant testified that even though he was drunk he was fully
aware of what was happening and did not forget what had
happened that
night. His moral blameworthiness was not diminished. In my view, the
appellant’s personal circumstances are
far outweighed by the
seriousness of the offences and the interests of society. It is the
duty of this court to send a clear message
to the appellant, other
potential rapists and to the community that the victims of rape will
be protected. Having given due regard
to all the facts presented to
the court
a
quo,
I
am not persuaded that substantial and compelling circumstances
existed that warranted deviation from the imposition of sentences
of
imprisonment for life in respect of counts 6 and 7. In the
circumstances, the appeal against sentences should also fail.
Order
[16]
I therefore make the following order:
(a)
The appeal against convictions and sentences is dismissed.
______________
POYO
DLWATI J
_______________
CHILI
J
_______________
BOOYENS
AJ
APPEARANCES
For
Appellant: L.M Phungula
Instructed
by L.M Phungula & Co.
033
342 6657
For
the Respondent: Adv duToit
Instructed
by The Director of Public Prosecutions (PMB)
033 845
4400
Date
of hearing: 28 January 2015
Date
of Judgment: 06 February 2015
[1]
Homestead depicted in photo 1, Exhibit “D”
[2]
See photographs at pages 239 and 240 of the record depicting the
house of accused 2.
[3]
In this
regard
see
S
v Gentle
2005
(1) SACR 420
(SCA) para 18 at 430j - 431a
.
[4]
In this regard see
S
v Francis
1991
(1) SACR 198
(A) at 204c.
[5]
In this regard see
Ex
parte Minister of Justice: In re R v Moseme
1936
(AD) 52 at 59.
[6]
In this regard see
S
v Grobler en ’n Ander
1966
(1) SA 507
(A) at 523B-524A
.
[7]
In this regard see
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) 5 at 5b-c
.