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2014
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[2014] ZAFSHC 176
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Nkabinde v S (A 69/2014) [2014] ZAFSHC 176 (18 September 2014)
THE HIGH COURT OF
SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
CASE
NO. A 69/2014
DATE:
18 SEPTEMBER 2014
In the matter
between:
OUPA ELLIOT
NKABINDE
.........................................................
APPELLANT
Versus
THE
STATE
...............................................................................
RESPONDENT
CORAM: NAIDOO, J
et WRIGHT AJ
JUDGMENT
BY: NAIDOO,J
HEARD ON: 28 July
2014
DELIVERED ON: 18
September 2014
NAIDOO J
[1] The appellant
was charged with two counts of Rape, in contravention of section 3,
read with other relevant provisions of Act
32 of 2007(the Sexual
Offences Act), together with the relevant provisions of the Criminal
Procedure Act 51 of 1977 (the Act) and
sections 51, 52 and Schedule 2
of Act 105 of 1997 (the Minimum Sentences Act). He was convicted on
both counts and sentenced, on
20 May 2010, to life imprisonment in
the Harrismith Regional Court, both counts being treated as one for
the purpose of sentence.
He now appeals to this court against his
conviction and sentence, by virtue of his automatic right of appeal.
Mr JS Makhene appeared
for the appellant and Mr Chalale appeared for
the State in this court.
[2] The complainants
in both counts are sisters who live alone with their six year old
younger sister. The complainant in count
1, TM, is 14 years old,
while the complainant in count 2, MA, is 11 years old. Both
complainants testified with the assistance
of an intermediary, and
although no specific mention of this was made on the record, a
written admission by the appellant in terms
of section 220 of the
Act, admitting the qualifications and competence of the intermediary
and that the complainants would suffer
prejudice if an intermediary
was not used, is attached to the record.TM testified that she and her
sisters were asleep. She woke
up to go and urinate when she realised
there was someone in the room. She told her sister MA, who at first
did not believe her.
When MA realised this was true, she covered her
head. By this time the intruder asked TM to climb onto the bed and
when she refused,
he threatened her with an object which she later
testified was a panga. He then climbed on the bed and held TM and MA
by their
necks, informing them that he is Oupa Tshabalala who is at
school in grade 8. He also told them that their brother had asked him
to look after them and that he can pay himself by sleeping with them.
The intruder then proceeded to remove her underwear, as she
lay on
her stomach and raped her by penetrating her anally. He then went to
her sister, MA and raped her. When he was done with
MA, he returned
to TM, turned her around onto her back and raped her again, this time
penetrating her vaginally. During the second
rape on her, she
recognised her assailant. He then jumped off the bed, wiped himself
with the blanket and as he was leaving, he
ordered her to close the
door. She locked the door and peeped through a hole to make sure that
the person who raped her was the
person she thought it was. She saw
the appellant as he was leaving her house, and was able to do so
because there was light outside.
Under cross examination she said
that she recognised him three times, firstly when he was in the
house, then when he turned her
around (to rape her for the second
time) and thirdly when she peeped through the hole and saw him
outside. TM testified that the
appellant was not friends with her
brother. She reported the incident to her family the next morning,
and was taken to a doctor
to be examined. A charge was presumably
thereafter laid.
[3] The evidence of
MA, the complainant in count 2, was the same as that of the first
complainant in all material respects.
[4] The neighbour
of the complainants, Evelyn Nomvula Mokoena (whom both complainants
referred to as their grandmother) confirmed
that the complainants had
reported to her that they had been raped by Oupa who owns a shop, and
she advised them that as she is
elderly, she can do nothing about it
and asked them to report it to their family.
[5] Nomvula Celina
Vilakazi confirmed that she is related to the complainants, and that
early on the morning of 12 September 2009,
they reported to her that
they were raped by the person called Oupa and that he is the person
who owns a shop. She further testified
that she was informed by the
complainants that they did not scream as they were threatened with a
panga and told by their assailant
that he would kill them if they
screamed. This witness confirmed that it is well known in the area
that the complainants lived
alone, and also that the accused was not
friends with the brother of the two complainants. She said that when
the complainants
made this report to her they looked scared and kept
peeping outside. This witness called the police, who came and took
them to
the police station.
[6] The version of
the appellant which was put to the two complainants was that he was
never at their house, but was in fact at
his home with his wife. He
repeated this when he testified and added that at the time the
complainants allege he raped them, he
was also playing cards with
some friends at his house. He denied going to the house of the
complainants or raping them, and said
that they are mistaken in
identifying him as the person who raped them. He knew them both as
they were customers at his shop, and
he knew where they lived because
he would pass their home when he went to buy stock. He said he was
not aware that they lived alone.
He also testified about the Apollo
lights that the first complainant mentioned, but said it was far away
from the area where they
lived. It provided very dim lighting and
denied that one could see clearly in that light. He did, however,
concede that at close
proximity a person could identify another.
[7] It is not in
dispute that the complainants were raped and neither is the sequence
of events as narrated by them. The only issue
in this matter is one
of identity. The court a quo analysed the evidence in detail and
concluded that the evidence presented by
the state was reliable and
could be accepted as true, whereas the version of the appellant fell
to be rejected as false. Regarding
the identification of the
appellant, the court held that, given the proximity of the assailant
to the two complainants, the fact
that he was known to them, and the
action of the first complainant in looking through the hole to
confirm the opinion she had formed
regarding the identity of the
assailant, it was satisfied that the identification of the appellant
by the two complainants was
reliable. I agree, and so too did Mr
Makhene who appeared for the appellant.
[8] Although the
court a quo did not specifically deal with the alibi defence
proffered by the appellant, it is noteworthy that
both complainants
appeared to have knowledge of the family situation of the appellant,
both testifying that his wife had left his
home as a result of
domestic discord between them. The state, which bore the onus to
disprove the alibi defence, made attempts
to trace the appellant’s
wife, without success. The mother of the appellant’s wife was
contacted and she advised that
his wife was in Sasolburg, thus
lending credence to the evidence of the two complainants regarding
the absence of the appellant’s
wife. It also indicates that his
alibi defence cannot be true. It is furthermore telling that no
effort was made by the appellant
to secure the attendance at court of
the two friends who were allegedly playing cards with him on the
night in question, or to
furnish their details to the investigating
officer for that purpose. In any event, the version that he was also
in the company
of these two friends emerged only when he testified.
It was never put to the complainants so that the state could have
been alerted
that the two friends would have to be located in order
to confirm or disprove the alibi defence.
[9]Turning to the
question of sentence, Mr Makhene argued that the sentence of life
imprisonment was too harsh in view of the personal
circumstances of
the appellant. The appellant’s legal representative in the
trial court specifically refrained from addressing
the court on
whether substantial and compelling circumstances existed that would
have justified the court’s departure from
imposition of the
prescribed minimum sentence.
It is well settled
in our law that an appeal court should interfere with the sentence
imposed by a trial court only if the trial
court has misdirected
itself in the imposition of sentence, resulting in a sentence which
is so inappropriate that it induces a
sense of shock. The principle
in this regard is expressed as follows by Trollip JA in S v Pillay
1977 (4) SA 531
(A) at p 535 E-F:
"Now the word
'misdirection' in the present context simply means an error committed
by the Court in determining or applying
the facts for assessing the
appropriate sentence. As the essential inquiry in an appeal against
sentence, however, is not whether
the sentence was right or wrong,
but whether the Court in imposing it exercised its discretion
properly and judicially, a mere
misdirection is not by itself
sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature,
degree, or seriousness that it
shows, directly or inferentially, that the Court did not exercise its
discretion at all or exercised
it improperly or unreasonably. Such a
misdirection is usually and conveniently termed one that vitiates the
Court's decision on
sentence."
In the case of S v
Rabie 1975(4) SA 855 (A) Holmes JA set out on page 857 the following
guiding principles with regard to interference
with a sentence on
appeal:
“1.In every
appeal against sentence, whether imposed by a magistrate or a Judge,
the Court hearing the appeal –
(a)should be guided
by the principle that punishment is “pre-eminently a matter for
the discretion of the trial Court”;
and
(b)should be careful
not to erode such discretion: hence the further principle that the
sentence should only be altered if the
discretion has not been
“judicially and properly exercised”.
2. The test under
(b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly inappropriate”
This principle was
confirmed by Holmes JA in Sv Giannoulis 1975(4) SA 867 (A)
[10]In the present
matter, the appellant’s personal circumstances that were put on
record are that he:
10.1 is 30 years
old
10.2 is married and
has two children, aged 7 and 5 years old
10.3 is
self-employed, owns a “spaza” shop and is thesole
breadwinner of his family
10.4 left school in
Standard 9
10.5 has no parents
as they are deceased.
[11]The trial court
balanced these personal circumstances against what it considered to
be aggravating factors, namely that the
crimes committed by the
appellant were serious and very prevalent in South Africa, that
children were vulnerable and were increasingly
being abused and
violated, that the complainants in both counts were very young, that
the appellant had taken advantage of the
vulnerable situation of the
complainants who lived alone. The trial court also correctly pointed
out that the provisions of Act
105 of 1997 (the Minimum Sentences
Act) applied in this matter and prescribed a minimum sentence of life
imprisonment. The court
was further correct in pointing out that it
is entitled to take into consideration factors which were substantial
and compelling
in order to justify a departure from the prescribed
minimum sentence. It is clear that the trial court did not consider
that the
personal circumstances of the appellant were substantial and
compelling, justifying it in departing from the prescribed minimum
sentence of life imprisonment.
[12]I cannot fault
the reasoning of the trial court with regard to sentence. It is also
apparent that it gave proper consideration
to all pertinent
circumstances for the purpose of sentencing, and in the fine
balancing act that it was required to perform, it
ordered that the
convictions be taken as one for the purposes of sentence, so that the
sentence would be fair, would address the
seriousness of the offence,
the interests of society and give the appellant an opportunity to
rehabilitate himself.
[13]I am, therefore,
unable to find any misdirection on the part of the trial court to
warrant the interference of this court in
the sentence imposed in
this matter. In my view the sentence is not inappropriate or so
excessive as to induce a sense of shock.
[14]In the
circumstances, the following order is made:
14.1 The appeal is
dismissed;
14.2 The convictions
and sentence are confirmed.
S. NAIDOO, J
I agree
JM Wright, AJ
Counsel for
Appellant: Mr. JS Makhene
Instructed
by: Bloemfontein Justice Centre
Charlotte Maxeke
Street
Bloemfontein
Counsel for the
Respondent: Mr S Chalale
Instructed
by: The State