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[2013] ZAGPPHC 106
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Mazibuko v S (A310/10) [2013] ZAGPPHC 106 (18 April 2013)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: A310/10
DATE:18/04/2013
In the matter between:
WALTER MANDLA
MAZIBUKO
…....................................
APPELLANT
V
THE
STATE
...........................................................................
RESPONDENT
JUDGMENT
RATSHIBVUMO (AJ):
1. The appellant, then aged 41 was
charged and convicted of kidnapping and theft by the Regional Court,
Nelspruit. On 27 November
2008 he was sentenced to 5 years
imprisonment for kidnapping and 18 months imprisonment for theft. The
court ordered the sentences
to run concurrently, meaning the
appellant has to serve an effective sentence of 5 years’
imprisonment. This appeal might
turn out academic, as, in few months
from now, the appellant would have served the full sentence, if he
was not released on parole
earlier. The appeal, with leave of this
court, is only against the conviction.
2. The appeal was on the roll on the
6th September 2011, on which occasion it was struck off the roll
after the appellant failed
to file the heads of argument. There is
nothing on record or from the heads of arguments that explains this
delay, especially since
the appellant had instructed the Justice
Centre to represent him during trial and for this appeal. This
inordinately lengthy and
unexplained delay since it has a the
potential to defeat the whole purpose of appeal.
3. Back to the merits of the appeal.
The appellant pleaded not guilty to both counts. In his plea
explanation, he stated met the
complainant and proposed love after
which she accompanied him to his home voluntarily. He spent R30 to
buy her food from a shop
which they took home with. He paid R15 for
each one of them as taxi fare. Once at his place and he wanted to
have sex with her,
she demanded to see if he has money saying she
would charge him R100 since it was at his home. If it was in town,
she told him
she would have charged him R50. The reason he did not
pay is that he had with him only R12. Before she left the next day,
he offered
to go and borrow R20 from his uncle so he would give her
but she declined this saying she would be fine since it was day time.
Once at his home he wanted to have sex with her but then she
demanded money from him, at which point he realised that she was a
sex worker. He did not have money with him and as a result, he did
not have sex with her.
4. The complainant’s version was
that she was walking home after she had alighted from a bus when a
taxi stopped near her.
The appellant who was a passenger in it
offered her lift to her home. She declined the offer saying she was
near home. He then
approached her, slapped her with an open hand and
forced her into the same taxi with the help of the driver. She had
with her a
hand bag and a bag containing groceries she had bought
after work. The taxi was stopped at the appellant’s house. The
appellant
alighted and pushed the complainant into this house. The
driver drove off with her groceries in the taxi.
5. Once in the house, the appellant
instructed her to undress so they would have sex and she refused.
They had a physical struggle
and argued until late. He tried
undressing her forcefully, causing her clothes buttons to fall off
and her panties’ seam
became loose as a result. In an effort
to put him off, she suggested to him that she was suffering from a
dreaded disease. She
believes this discouraged him. He then took
cash, R270 from her handbag damaging it in the process. He kept the
house locked and
only opened for her in the morning so she could go.
She remained in the house the whole night and only left the next
morning. She
went straight to the police station to lay charges
against him. She was not familiar with the area and she did not have
money for
taxi fare when she left the appellant’s house. After
laying the charges with the police, she led them to his home and he
was arrested.
6. The trial court rejected the
appellant’s version and convicted him of all the charges. It is
now submitted on his behalf
that this court should set aside his
conviction since the case for the State was not proved beyond a
reasonable doubt and the accused’s
version is reasonably
possibly true which entitled him to an acquittal.
7. The State is indeed expected to
prove the case for the State beyond a reasonable doubt – see
S
v Van der Meyden
1999 (1) SACR 447
(W)
. The complainant was a
single witness and her evidence should be approached with caution –
see R v Mokoena
1932 OPD 79
and S v M
2000 SACR 484
(W). The
cautionary rules do not require than common sense should be replaced
– S v Sauls and Others
1981 SA 172
(A). Further to this, court
can convict on the basis of a single competent witness see section
208 of Act 51 of 1977.
8. In this case, the trial court found
the complainant to have been a credible witness and there is nothing
from the arguments advanced
that suggests that such a finding was
misplaced. She was steadfast in her version of events and she stood
firm during cross examination
without contradicting herself.
9. The
appellant’s
version on the other hand cannot be said to be reasonably possibly
true, having regard to the improbabilities
inherent in it. If his
version is accepted as true, there would be no sense in the
complainant not divulging to him the first time
they met that she was
a sex worker and the fee she would charge. She would not have waited
to tell him after he was undressed,
ready for sex in his house, at
which stage she could find he does not even have sufficient cash.
There would equally be no logic
why the complainant would agree to
join him in a long journey for which he paid R15 in a taxi, only to
stop without finishing what
she started (the journey towards having
sexual intercourse with the appellant) once inside his house.
10. There would have to be an
explanation on how the two adult and responsible lovers would embark
on a journey with no money that
can secure the safe return of the
complainant (who according to the appellant was a newly found
girlfriend) by taxi since from
his version, she had no money with her
and he only had R12. In an attempt to show how caring he was, the
appellant told of how
he offered to borrow R20 from his uncle so he
could give her as taxi fare, an offer that for unknown reasons she
declined. But
a proper calculation of what he earlier claimed to have
in his pocket leaves R55 that he must have had at that stage. Why
would
there be a need to borrow R20 from the uncle while he still had
this amount? To explain his way out he claims he had reserved this
to
buy electricity. He expects the court to believe that he was willing
to go out of his way to borrow R20 from an uncle so his
newly found
lover would fetch a taxi to work, because it was urgent; but not
urgent enough for him to use R55 which he had reserved
for
electricity. This version was correctly rejected as improbable.
11.It follows therefore that the
appeal must fail and it is dismissed.
_______________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
I agree,
_______________________
T. M MAKGOKA
JUDGE OF THE HIGH COURT
DATE HEARD: :08 APRIL 2013
JUDGMENT DELIVERED :18 APRIL 2013
FOR THE APPELLANT :ADV J. VAN ROOYEN
INSTRUCTED BY :PRETORIA JUSTICE
CENTRE PRETORIA
FOR THE STATE :ADV K.M. MASHILE
INSTRUCTED BY :DIRECTOR OF PULIC
PROSECUTIONS, PRETORIA