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[2012] ZAFSHC 226
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Lunga and Others v S (A292/2011) [2012] ZAFSHC 226; 2013 (1) SACR 578 (FB) (6 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A292/2011
In
the appeal between:
SEUN BUYA LUNGA
........................................................
First
Appellant
LAWRENCE MAKHUBO
.............................................
Second
Appellant
MOLEFI HLABANE
.........................................................
Third
Appellant
MBUYESELO BOTHA
...................................................
Fourth
Appellant
TIMOTHY
MOKHOETSI
....................................................
Fifth
Appellant
and
THE
STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
MATLAPENG, AJ
_____________________________________________________
JUDGMENT BY:
MATLAPENG, AJ
_____________________________________________________
HEARD ON:
12 NOVEMBER 2012
DELIVERED ON:
6 DECEMBER 2012
_____________________________________________________
[1] The five appellants
were charged and convicted of rape in the regional court Sasolburg.
They were sentenced as follows:
Appellant 1 15 (fifteen)
years imprisonment.
Appellant 2, 4 & 5
Each 15 (fifteen) years imprisonment and the court ordered that the
sentences should run concurrently with
the sentences they were
serving at the time.
Appellant 3 20 (twenty)
years imprisonment and it was also ordered that the sentence should
run concurrently with the sentence he
was serving.
They applied for leave to
appeal, which was refused by the trial court. Leave to appeal against
both conviction and sentence was
only granted after they petitioned
the Judge President of this court.
[2] The five appellants,
together with the complainant, were involuntary visitors of the state
penitentiary. They shared a cell.
On the day of the incident,
according to the complainant, first appellant and fifth appellant
approached him whilst he was sitting
on his bed watching TV. First
appellant ordered him to go to the showers and when asked the reason
therefor he started hitting
complainant with open hand. Fifth
appellant approached him and wrapped a sheet around his face and the
two appellants took him
to the shower.
[3] At the shower he
managed to unwrap the sheet from his face. Fourth appellant
approached, slapped him and ordered him to undress.
He did not do as
ordered. At that stage appellant 4 was with appellants 1, 2, 3 and 5.
The appellants started arguing among themselves
as to who was going
to start first. First appellant undressed him and ordered him to face
the wall; applied vaseline in his anus;
ordered him to bend over; put
on a condom and penetrated him through the anus.
[4] Thereafter the four
other appellants ravished him. He could not tell in what order they
followed each other. He also mentioned
that No 4’s condom burst
while busy raping him. After the incident he was instructed not to
tell anyone as his life would
be in danger should he do so. He went
to sleep and the following day he reported the incident to a prison
warder, who took him
to the clinic and was then referred to hospital
where a doctor examined him and gave him anti-retrovirals as post
exposure prophylaxis
therapy.
[5] The prison warder and
the doctor were called. The prison warder confirmed that the
complainant approached him and informed him
about the rape and the
doctor too confirmed that. She examined the complainant after
allegation of rape was made to her. She could
not find any injuries
on the complainant and was not surprised by lack of injuries as it
was alleged that vaseline was used and
it acts as a lubricant. The
complainant’s anus could without any resistance admit one
finger. The doctor confirmed that she
had completed the J88 form
although none could be found. She further based her testimony on the
notes she made in the hospital
file, the same notes she used to
complete the J88. That concluded the state’s case.
[6] Only first appellant
testified in his own defence. The others closed their cases without
testifying. Appellant no 1 stated that
he knows the complainant as
they shared a cell. The complainant was his “girlfriend”.
On the day in question he asked
for sexual favours from the
complainant, who agreed. They went to the showers where they had
sexual intercourse. Whilst busy the
curtain to the shower was opened
and he saw appellant no 5. He finished the sexual act, left the
complainant, who was busy putting
his clothes on and he saw all four
other appellants at the door. He walked past them and went to his
bed. Later the complainant
came and made a report that he was
assaulted by the four appellants.
[7] On appeal it was
submitted that the trial court erred in convicting the appellants,
based on the following:
7.1. the complainant was
a single witness and his evidence was not satisfactory in all
material respects if regard is had to the
following inconsistencies:
7.1.1. the evidence of
the first report contradicted the complainant by failing to indicate
how many rapists there were; or where
in the cell the complainant was
raped.
7.1.2. Complainant failed
in his statement to the police to mention that he was assaulted by
fifth appellant and further that fifth
appellant wrapped a sheet over
complainant’s face.
7.1.3. Complainant
testified that he saw only appellants 1 and 4, as he did not see what
is going on.
[8] As a starting point,
the court sitting on appeal will always defer to the factual findings
of the trial court unless recorded
evidence clearly shows that they
were wrong. This was stated as follows in
S v HADEBE AND OTHERS
1998 (1) SACR 422
(SCA) at 426 B:
“
... the
absence of demonstrable and material misdirection by the trial Court,
its findings of fact are presumed to be correct and
will only be
disregarded if the recorded evidence shows them to be clearly wrong.
The reasons why this deference is shown by appellate
Courts to
factual findings of the trial Court are so well known that
restatement is unnecessary.”
[9] The major complaint
levelled against the decision by the trial court to accept the
evidence of the complainant, is that such
evidence does not accord
with the guidelines laid in
R v MOKOENA
1932 OPD 79
at
80 where it is stated:
“’
the
uncorroborated evidence of a single competent and credible witness is
no doubt declared to be sufficient for a conviction by
s284 of Act 31
of 1917, but in my opinion that section should only be relied on
where the evidence of the single witness is clear
and satisfactory in
every material respect.’”
[10]
In subsequent decisions notably
R v ABDOORHAM
1954
(3) SA 163
(N);
R v MOKOENA
1956 (3) SA 81
(A) and
R
v T
1958 (2) SA 676
(A) the courts were unanimous that the
remarks in
R v MOKOENA
must not be elevated to an
absolute rule of law. In
S v SAULS AND OTHERS
1981 (3)
SA 172
(AD) at 180C – g it was stated that:
“
Section
256 has now been replaced by
s 208
of the
Criminal Procedure Act
51 of 1977
. This section no longer refers to ‘the single
evidence of any competent and credible witness’; it provides
merely that
‘
an accused
may be convicted on the single evidence of any competent witness"’.
The
absence of the word ‘credible’ is of no significance; the
single witness must still be credible, but there are,
as
Wigmore
points
out, ‘indefinite degrees in this character we call
credibility’. (Wigmore on
Evidence
vol
III para 2034 at 262.) There is no rule of thumb test or formula to
apply when it comes to a consideration of the credibility
of the
single witness (see the remarks of RUMPFF JA in
S
v Webber
1971
(3) SA 754 (A)
F
at 758). The trial Judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether
it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony, he is
satisfied that
the truth has been told. The cautionary rule referred to by DE
VILLIERS JP in 1932 may be a guide to a right decision
but it does
not mean
‘
that the
appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded’
(
Per
SCHREINER
JA in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955
(2) SA 566
(A)
at
569). It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common sense.”
[11]
With regards to contradictions regard should be had to the principles
enunciated in
S v MKOHLE
1990 (1) SACR 95
(A) at
98F – G where it was stated that:
“
Contradictions
per
se
do not lead to the rejection of a witness' evidence. As Nicholas J,
as he then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at 576B-C, they may simply be indicative of an
error. And (at 576G-H) it is stated that not every error made by a
witness affects
his credibility; in each case the trier of fact has
to make an evaluation; taking into account such matters as the nature
of the
contradictions, their number and importance, and their bearing
on other parts of the witness' evidence.”
[12] In this court
several contradictions and inconsistencies apparent in the
complaint’s evidence were referred to and it
was submitted that
they were material contradictions. I do not agree.
[13] In this matter the
trial court was alive to the principles mentioned above when it
evaluated the evidence on record. It made
a finding on the
credibility of the complainant and the reasons for its finding. I
cannot fault the approach adopted by the trial
court. The
contradictions referred to in the complainant’s evidence,
namely whether Banyane (the warder) confronted the five
appellants or
not, whether the lights in the cell were on for twenty four hours or
were switched off at 22h00, were of such a minor
nature that it
cannot be said that they go to the root of his credibility. The mere
fact that complainant failed to inform (according
to the statement
that he made to the police) the investigating officer that
appellant’s condom burst, cannot be held against
him. He
explains that because of the language barrier he could not mention
this fact to the investigator. Of importance is that
he informed the
doctor about this which led to him being given prophylaxis. He also
mentioned this to the court. When he made the
statement to the police
it must be kept in mind that he was not under cross-examination.
[14] In my view although
the other appellants other than no 1 did not testify under oath, when
their case was put to the complainant,
it complemented the
complainant’s testimony. Appellant no 1 also in his testimony
placed the other four appellants at the
shower. This supports the
complainant’s version that all five appellants were at the
shower where the rape took place.
[15] Only first appellant
testified. His testimony contradicted what was said to be his defence
during plea explanation stage. His
plea explanation was that him and
the complainant were hit by appellants 2 – 5, because they had
sex in the cell against
the rules. He later stated that he was only
assaulted by appellant no 2. He also contradicted the version put on
his behalf and
that of other co-appellants, which was to the effect
that appellant 2 – 5 hit the complainant because he contravened
the
rule prohibiting sex. He later stated that he does not know why
the other appellants hit the complainant. He was clearly economic
with the truth. I am by no means convinced that the trial court erred
in rejecting his evidence as false beyond reasonable doubt.
[16] Regarding the four
appellants who did not testify, what was said in
S v BOESAK
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at 923E – F is apposite, namely:
“
The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching to
a decision to
remain silent during the trial. If there is evidence calling for an
answer and an accused person chooses to remain
silent in the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of
an explanation to prove the
guilt of the accused.”
[17] Appellants no 2 –
5 in the face of the evidence that needed explanation, elected to
exercise their right to silence.
Their silence strengthened the
state’s case in that only the version before the court was that
of the state. However, the
trial court adopted a proper approach when
evaluating the evidence. It looked at and took into account both the
probabilities and
improbabilities in both the state version and
defence’s version emanating from cross-examination before
reaching a conclusion.
In the circumstances I am of the view that the
convictions are in order.
SENTENCE
[18] A court of appeal is
not at liberty to interfere with the exercise of a discretion in
imposing a sentence unless it is satisfied
that the discretion has
not been exercised judicially. See
S v MAKONDO
[2002] 1
ALL SA 431
(A) at 435d.
[19] It was submitted
that the trial court erred in that the sentence it impose, is
inordinately harsh and shocking. I disagree.
The offence the accused
were convicted of attracts a minimum sentence in terms of the
Criminal Law Amendment Act 105 of 1997
. The sentence delineated is
life imprisonment unless the court finds that substantial and
compelling circumstances are present
which merits the imposition of a
lesser sentence.
[20] In mitigation the
court took into account that all five appellants were reasonably
youthful; they have been incarcerated for
some time before the case
was finalised. Although they were sentenced prisoners there was a
possibility that they could be rehabilitated
and the cumulative
effect of the sentences the appellants were already serving and the
one imposed by the court was also taken
into account. The trial court
came to the conclusion that substantial and compelling circumstances
were present and it deviated
from the minimum sentence it could have
imposed.
[21] In my view the trial
court was correct in this finding: The sentence imposed falls within
the bench mark delineated by the
legislature cannot be said to be
shockingly disproportionate.
[22] In the result the
appeals are dismissed and the convictions and sentences confirmed.
__________________
D.I. MATLAPENG, AJ
I
agree.
_______________________
C.H.G. VAN DER MERWE,
J
On
behalf of the appellants: Mr J D Reyneke
Instructed
by:
Legal
Aid SA
BLOEMFONTEIN
On
behalf of the respondent: Adv M Strauss
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/spieterse