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[2013] ZAGPPHC 141
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Lubisi and Others v S (A636/2012) [2013] ZAGPPHC 141 (3 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: A636/2012
DATE:03/06/2013
In
the matter between:
PRINCE
OLOZI
LUBISI
.....................................................................................
1st
APPELLANT
SANTOS
NYAMBANGA
...................................................................................
2nd
APPELLANT
PAUL
MASHABA
..............................................................................................
3rd
APPELLANT
and
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
DOSIO,
AJ
[1]
The appellants were arraigned on charges of rape and theft in the
Nelspruit Regional court.
[2]
The appellants pleaded not guilty on both counts but were
subsequently convicted and sentenced to life imprisonment on count
one (1) and eighteen (18) months imprisonment on count two (2).
[3]
The appellants were legally represented during the proceedings
[4]
The appellants have an automatic right of appeal in terms of section
309 (1) (a) (ii) of Act 51 of 1977 as amended.
AD
CONVICTION
[5]
The counsel for the respondent stated that the conviction in respect
to the first and third appellant must stand. However, that
it cannot
support the conviction of the second appellant and concedes that his
conviction and sentence on both counts should be
set aside. The
counsel for the respondent states that the second appellant was not
previously known to either the first or second
state witness, and
there is no circumstantial evidence in support his identification.
[6]
This court cannot support the submissions made by the counsel for the
respondent in respect to the second appellant.
[7]
The complainant was adamant that the third appellant raped her,
followed by the first appellant, followed by the second appellant
and
then finally followed by the third appellant for a second time. At no
stage did she hesitate in her evidence in chief or during
cross-examination as regards the identity of the second appellant.
She states she saw them all clearly from the electric light
that
illuminated the room. Her evidence at page 6 of the transcript
states, "I know number 2 on general appearance".
This
evidence cannot be overlooked.
[8]
The complainant was an honest witness and gave her evidence in a
clear and satisfactory manner. There were no material contradictions
in her evidence.
[9]
The evidence pertaining to identification is fortified by the
corroboratory evidence of Given Sibiya, who states he saw all
three
men in the house. He remembers clearly that appellant two (2) kept
watch over the first and third appellant. He states that
although he
did not know the second appellant, he looked at all three in their
faces and identified them from general appearance.
This witness went
one step further and even stated that the second appellant had a
beard on his face and that the third appellant
had long hair. Neither
of these two identifying features in respect to either the second or
third appellant was ever disputed during
the cross-examination of
Given Sibiya.
[10]
The evidence of Given Sibiya impressed this court. This court finds
him to be an honest and trustworthy witness.
[11]
This court cannot overlook the fact that it is the first appellant
who incriminated the third appellant, and that it is the
third
appellant who told the police where to find the second appellant.
There is no other logical explanation for this, save that
all three
appellants acted together on this evening to enter the home of the
complainant, to rape her and steal her items.
[12]
The appellants denied having committed the offences.
[13]
The first appellant did however place himself on the scene. Stating
that he had sexual intercourse with the complainant and
it was
consensual. He admitted that he took the cell phone and the necklace
with the consent of the complainant.
[14]
The second and third appellants denied they were at the scene or that
they committed the offences.
[15]
In considering the judgment of the trial court, this court has been
mindful that a court of appeal is not at liberty to depart
from the
trial court's findings of fact and credibility, unless they are
vitiated by irregularity, or unless an examination of
the record
reveals that those findings are patently wrong.
1
[16]
The findings of the trial court were correct in accepting that the
State had proved the guilt of the appellants beyond reasonable
doubt.
[17]
This court does not find that the state's evidence regarding identity
amounted to dock Identification. The first appellant
and the third
appellant were well known to both the complainant and Given Sibiya.
As regards the second appellant, the court accepts
the evidence on
identification given by the complainant and Given Sibiya as correct.
[18]
If the complainant had an affair with the first appellant and they
had sexual intercourse on previous occasions, then there
would have
been no reason for her to have revealed this to her husband, as her
husband had not seen anything.
[19]
It is also highly unlikely that the complainant would have colluded
with Given Sibiya to fabricate a story of three men entering
the
house if it had only been one man, namely the first appellant.
[20]
There is no logical explanation for the first appellant to have taken
the cell phone and a necklace of a person he had had
consensual
sexual intercourse with. The more logical explanation is that he took
these items because he stole them.
[21]
The complainant and Given Sibiya both corroborated each other as to
the sequence of events that unfolded.
[22]
The version of the first, second and third appellants that they had
seen the complainant and her husband having a fight earlier
on, is
rejected by this court as false. The objective probabilities strongly
support the version of the state witnesses.
[23]
The version of the first, second and third appellants is rejected by
this court as false and not reasonably possibly true.
[24]
The findings of fact by the trial court were correct and it was
justified in rejecting the evidence of the three appellants.
[25]
The trial court did not misdirect itself as regards conviction.
AD
SENTENCE
[26]
It is trite law that in an appeal against sentence, the court of
appeal should be guided by the principle that punishment
is
pre-eminently a matter for the discretion of the trial court and the
court of appeal should be careful not to erode that discretion.
[27]
A sentence imposed by a lower court should only be altered if:
i.
An irregularity took place during the trial or sentencing stage.
ii.
The trial court misdirected itself in respect of the imposition of
the sentence.
iii.
The sentence imposed by the trial court could be described as
disturbingly or shockingly inappropriate.
2
[28]
The trial court should be allowed to exercise its discretion in the
imposition of sentence within reasonable bounds. The fact
that a
court of appeal might have imposed a different sentence is not
regarded as sufficient to interfere with the sentence imposed
by the
trial court.
3
[29]
The counsel for the appellants stated that the charge sheet makes
mention that the state was relying upon
section 51(2)
of the
Criminal
Law Amendment Act 105 of 1997
in respect to count one (1). The trial
court then applied the provisions of
section 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
and sentenced the appellants to an
effective term of life imprisonment on count one (1).
[30]
Counsel for the appellants believes the trial court misdirected
itself in applying the provisions of
section 51(1)
of Act 105 of
1997, as the appellants were not warned that this section would be
applicable, and that their right to a Constitutionally
fair trial had
been infringed.
[31]
This court notes that at page one (1) of the transcript at lines
17-19, the trial court did explain to the three appellants
that if
they were found guilty of the offence of rape, the term of life
imprisonment was applicable. The annexure to the charge
sheet, with
specific reference to count one (l),had "Life imprisonment"
written on it.
[32]
It is clear that all three appellants and their legal representative
were fully aware that life imprisonment was applicable.
[33]
In addition, the recent judgment of the Supreme Court of Appeal, in
the case of S v Kolea
2013 (1) SACR 409
stated that; unless prejudice
is shown to have resulted, the mere incorrect reference to section
51(2) instead of 51(1) cannot
preclude a life sentence being imposed.
[34]
Counsel for the appellants also submitted that the trial court erred
in sentencing the appellants to life imprisonment as it
over-emphasised the seriousness of the offence and the interests of
society and under emphasized the personal circumstances of
the
appellants. It was further submitted that a term of life imprisonment
is shockingly harsh and induces a sense of shock.
[35]
The first appellant's personal circumstances were;
i.
He was twenty two (22) years old when the crime was committed.
ii.
He is a first offender.
iii.
He is married and has one minor child.
iv.
He was employed as a welder at HP Steel.
v.
His income was R1900-00 per month.
vi.
His father passed away and he was maintaining his mother.
vii.
He is the only breadwinner.
Vii.
He has passed matric.
[36]
The second appellant's personal circumstances were;
i.
He is twenty seven (27) years old.
ii.
He was employed as a general labourer.
iii.
His income was R700-00 to R800-00 per month.
iv.
He has a minor child aged six (6) years old.
v.
He is a first offender.
vi.
He maintains his child.
[37]
The third appellant's personal circumstances were;
i.
He is 38 years old.
ii.
He is married.
iii.
He has three children.
iv.
He was self-employed and his income is R4000-00 to R5000-00 per week.
v.
He is a first offender.
vi.
He maintains his family.
[38]
Counsel for the appellants argued that the trial court did not take
into consideration the time period that the appellants
had already
spent in custody.4
4
This
court finds that the trial court had been mindful of the time spent
by the appellants in custody. This is clear from page 69
of the
transcript at line 2 to 3.
[39]
Counsel for the appellants argued that this is not one of the worst
cases of rape, and that some rapes are worse than others.
[40]
This court finds that this rape is one of those serious rapes.
[41]
The aggravating circumstances present in this case are;
i.
Three men entered the house of an innocent victim and raped her in
the presence of a child and her husband who was sleeping in
the same
room.
ii.
She was badly assaulted having sustained injuries to her right eye,
right shoulder and right cheek.
Iii.
Two of the three accused knew the complainant and at no stage did
they show any signs of remorse.
[42]
Counsel for the appellants argued that the trial court misdirected
itself in not asking questions or investigating whether
there were
substantial and compelling circumstances that could have influenced
the court to reach a different conclusion.
5
[43]
It is clear to this court that in light of the serious attack on this
innocent victim, and the number of times she was raped
that the trial
court was justified in not finding compelling and substantial
circumstances to deviate from the minimum prescribed
sentence of life
imprisonment.
[44]
The sentence imposed by the trial court is justified and the appeal
on sentence should not succeed.
[45]
In the premises the appeal is dismissed both in respect to conviction
and sentence.
D. DOSIO
ACTING
JUDGE OF THE HIGH COURT
I
concur
L.M. MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Date
Heard:3 June 2013
Handed
down judgment:3 June 2013
On
behalf of the appellant: M B KGAGARA
PRETORIA
JUSTICE CENTRE 2nd FLOOR, FNB POLOKWANE
On
behalf of the respondent: Adv. P. VORSTER
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building 28
Church
Square
PRETORIA
1
See S v Francis
1991 (1) SACR 198
(A) at 198 J-199A and S v Latha
and Another
1994 (1) SACR 447
(A) on 453 d-g
2
See
S v De Jager and Another
1965 (2) SA 616
(A), S v Rabie
1975 (4) SA
855
(A) and S v Petkar
1988 (3) SA 571
at 574 C
3
See
S v Pillay
1977 (4) SA 531
(A) at 535 E-G, and S v Holder
1979 (2)
SA 70
(A) at 75 C-D
4
See
S v Brophy and another 2007(2) SACR 56 (W) and S v Vilakazi
2009 (1)
SACR 552
(SCA) See
5
S
v Dhlamini
2000 (2) SACR 266
(T)