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[2012] ZAKZPHC 32
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Mazibuko v S (AR 352/11) [2012] ZAKZPHC 32 (31 May 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 352/11
In the matter between
:
NKOSIKHONA SIZWE
MAZIBUKO
…....................................
APPELLANT
and
THE STATE
….....................................................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 31 May 2012
______________________________________________________
SWAIN J
[1] The appellant with
the leave of K. Pillay J, appeals against his conviction by the
Regional Court at Newcastle, of the rape
of a fourteen year old girl,
for which he was sentenced to life imprisonment by K. Pillay J,
acting in terms of Section 51 of the
Criminal Law Amendment Act 105
of 1997 (the Minimum Sentences Act).
[2] As correctly
appreciated by the Magistrate the evidence of the complainant has to
be approached with caution, because the complainant
was not only a
single witness to the rape, but is also youthful. The complainant’s
merits as a witness must be weighed against
factors which militate
against her credibility.
Zeffertt et al –
The South African Law of Evidence pg 800
What has to be decided by
the trier of fact is whether the evidence of the complainant 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”.
S v Sauls and
others
1981 (3) SA 172
(A)
at 180 E – G
[3] The evidence of the
complainant was that she had attended a New Year’s Eve
celebration at Mayisela’s place and left
alone at about 01h30,
intending to go to a friend’s house. Along the way she met up
with the appellant, whom she knew as
he had previously taught her
music. The appellant asked her to accompany him so that he could go
and get his jersey, which she
agreed to do because she knew him. When
they reached his home there was nobody there, the appellant entered
his home and called
her to come in. She refused to do so because she
was afraid, because she thought that it was possible the appellant
would grab
her and pull her into the house. The appellant then
approached her, grabbed her and pulled her into the house. After he
dragged
her into the house he closed the door, dragged her to his
bedroom, where he pushed her onto the bed and removed her pants and
panties.
He then hit her with an open hand, forced her legs apart and
raped her, again striking her with an open hand in her face. After
the appellant had raped her she was able to dress and leave the room
because he did not lock the door. After she had left the appellant’s
home, she met up with a police van and reported what had happened to
the police. The police asked her to point out the appellant’s
home, which she did and the appellant was arrested. The complainant
was examined by Dr. Magubane on the afternoon of 01 January
2003.
[4] When cross-examined
the complainant conceded that she was drunk on the evening in
question, but later denied being drunk, when
it was put to her by the
appellant’s legal representative, that the appellant had seen
her whilst he was braaing meat with
friends and she was drunk. She
also denied that the appellant had given her any meat. It was put to
the complainant that the appellant
would deny having raped her,
because it could not have taken place in his house, because his
girlfriend was sleeping with him in
his house on the evening in
question, which the complainant denied. It was also put to the
complainant that she did not know who
had raped her and she was
falsely implicating the appellant because the appellant had dismissed
the complainant, from a choir of
which she had previously been a
member.
[5] It is therefore clear
that the basis for the appellant’s denial that he had raped the
complainant in his home, was that
his girlfriend was with him in his
home, on the night in question.
[6] The evidence of
Sergeant Magaga, who arrested the appellant in his home on the night
in question, is therefore of vital importance.
He said he was
patrolling and on duty in the early hours of the morning on 01
January 2003. They were ordered by radio to proceed
to No. 533 at
Section 1 which is the address of the appellant’s home. When
they arrived there, they met up with the complainant
who told him
that she had been raped. She was crying and frightened and scared.
She said she had been raped by a person that she
knows and this
person was a member of the same choir as her. She gave him the name
of the person and took them to the house. She
pointed out the
appellant as the one who had raped her. There was nobody else in the
house and the appellant was alone. The appellant
was arrested. When
cross-examined it was put to Sergeant Magaga that he and his
colleague were drunk, which he denied. It was also
put to him that he
asked the appellant to produce a firearm, which he agreed he had
done, because he said the complainant had alleged
the appellant had
produced a firearm during the rape. They did not however find any
firearm. He added that the complainant told
them that she was
approached by the appellant, who asked her to accompany him to fetch
a jersey from his house. He denied that
the appellant’s girl
friend was with the appellant in the house.
[7] Dr. Magubane said
that he had examined the complainant on 01 January 2003, and found
that there was a tear on the posterior
fouchette. There was also a
tear on the hymenal ring at the 9 o’clock and 5 o’clock
positions, from which there was
minor bleeding. As a result he
concluded that there had been forceful penetration of the
complainant.
[8] The appellant’s
defence was that the only time he had seen the complainant on the
evening of 31 December 2002, was when
he was braaing meat with his
brother, when the complainant appeared in the company of boys and
girls, who were drinking. The complainant
asked for some meat, which
he gave her and she then walked away with the group. He only saw her
again when she arrived that evening
at his home with the police,
where he was sleeping with his girlfriend. When the police arrived
they said they wanted a gun and
searched for one but did not find
one. When cross-examined he maintained that the complainant was drunk
because of the way she
staggered and shouted. He said that while the
police searched his house his girlfriend was lying on the bed, but
could see what
was happening. He said he believed the police had seen
his girlfriend and the complainant had seen her. He said that when
the complainant
was called into the house it was alleged that he had
raped her. He said that his girlfriend was surprised to hear this and
as a
consequence she went to tell the friend of the appellant’s
mother, who lives in the same street, who telephoned the appellant’s
mother. When the appellant was asked how the complainant knew he was
at home, because according to the appellant he was at a party
at
another house, he said he did not know. He said the police were lying
that there was nobody else with him, because they were
drunk. When it
was put to the appellant that the complainant would not have known
who was at his house, when she came with the
police, he did not
respond.
[9] The appellant’s
girlfriend was called and stated that she, together with their child,
were in the house of the appellant
on the night of 31 December 2002.
The appellant had gone to a braai at another house and returned after
people had beaten drums,
indicating that it was midnight. They then
went to bed whereafter the police arrived, kicked the door open and
searched the house,
saying they wanted a gun. When the police were
searching the house she was lying on the bed and she thought they saw
her. She also
said that she knew the complainant and she saw her on
the day the police came to her house. She said there were three
persons who
had come to the house and the third person was a lady.
Later however, she said that she did not see the lady clearly and
when the
contradiction was put to her, she said she had said there
was a lady who she thought was the complainant. She then conceded
that
she had said she knew the complainant. She said the police
looked as though they had consumed alcohol. When cross-examined she
said that when the appellant returned from the party, he had consumed
alcohol and when it was put to her that the appellant said
he did not
drink alcohol at all, she said he had the smell of alcohol on him.
She said they asked the appellant for a gun but they
never spoke to
her and did not ask her who she was. She said the police never said
why the appellant had to leave with them, she
did not know why they
were taking him away and she did not ask them why. When asked how it
was possible that the police did not
notice her on the bed, she said
she thought it was because the bed was high and she estimated it to
be more than a metre in height.
When it was put to her that the
appellant said the police told him, that he was accused of raping the
complainant in the house,
she said she did not hear that.
[10] It is clear that the
evidence of the appellant and his girlfriend,
that they were together
in the house with their child on the night in question cannot be
true, for the following reasons:
[10.1] Sergeant Magaga
said the appellant was alone in the house. Although the appellant
said the police were drunk, which was denied
by Sergeant Magaga, it
would have been virtually impossible for Sergeant Magaga, not to have
seen the appellant’s girlfriend
lying on the bed, if she was
there. In addition, there would be no reason why Sergeant Magaga
would lie about such an issue.
[10.2] The appellant said
he did not know when asked, how the complainant knew he was at home
in order to direct the police there,
when on his version the
complainant had seen him braaing meat at a different location that
night.
[10.3] The appellant
could not respond when it was put to him that the complainant, on the
appellant’s version, could not
have known who was at home with
him when she arrived with the police. If there were persons in the
house with the appellant, this
would have refuted her allegation of
rape.
[10.4] The evidence of
the appellant’s girlfriend is implausible and riddled with
contradictions. She suggested that the police
did not see her because
it was a high bed. In addition, the appellant said that she had heard
the police accusing him of raping
the complainant, because she was
surprised. She also knew why he had been arrested because the
appellant said she had told a friend
of his mother’s in that
street about it, who had telephoned his mother. The girlfriend
however said that she had never heard
the police accusing the
appellant of rape and did not know why they had arrested him. In
addition, she contradicted herself as
to whether she knew the
complainant and had seen her there in the company of the police.
[11] A finding that the
appellant has lied about the presence of his girlfriend at his home,
obviously has a profound effect upon
an assessment of his credibility
in denying that he had raped the complainant. This is because he
sought to justify his denial
of raping the complainant by this false
evidence.
[12] When this evidence
is taken together with the evidence of the doctor, that there had
been forceful penetration of the complainant’s
vagina and the
evidence of Sergeant Magaga that when he found the complainant, she
was crying and frightened, shortly after she
had been raped, I am
satisfied that the allegations of the complainant that the appellant
raped her, are proved beyond a reasonable
doubt. Of particular
significance is the evidence of Sergeant Magaga that the complainant
told him at the outset that the appellant
has asked her to accompany
him to his home to fetch a jersey, which is what she said when giving
evidence. Such detail has the
ring of truth to it and excludes the
possibility that the complainant’s evidence in this regard was
a recent fabrication.
[13] In coming to this
conclusion I do not overlook the evidence of Sergeant Magaga that the
complainant had said the appellant
had produced a firearm during the
rape, which is why they searched the appellant’s premises, but
did not find a firearm.
The complainant never mentioned a firearm
when giving evidence, but it was equally never put to her by the
appellant’s legal
representative, that the police had searched
the appellant’s house for a gun, because she had alleged that
the appellant
had threatened her with it. The complainant was
accordingly never given an opportunity to deal with this evidence. Be
that as it
may, I agree with the view of the Magistrate that this is
not such a material defect in her evidence, to justify the rejection
of her version. I also do not overlook the evidence of the appellant
that he had dismissed the complainant from the choir of which
she was
a member. The appellant however when asked why the complainant would
falsely implicate him said he did not know and did
not rely upon this
incident. The fact that the complainant had something to drink and
was walking alone in the middle of the night,
obviously does not
constitute any grounds for doubting the veracity of her evidence.
[14] I am accordingly of
the view that the appeal against conviction must fail.
[15] As regards the
appeal against the sentence imposed of life imprisonment, the
relevant facts are as follows. The appellant was
at the time of the
trial twenty one years of age which means he was nineteen years of
age when the offence was committed. He was
a first offender, married
with two children who rely upon him for support, and he had a grade
eleven education. K. Pillay J referred
to the fact that the appellant
had taken advantage of the complainant as a young girl and subjected
her to violence. More than
ordinary force was used in raping the
complainant, because there were injuries to her vagina.
[16] In the case of
S v Vilakazi
2009 (1) SACR 552
(SCA) 562 A - D
the Supreme Court of
Appeal stressed that in a case such as the present, the Court was
required to apply its mind to the question
of whether the sentence
was proportional to the offence. Proportionality was to be determined
on the circumstances of the particular
case. When regard is had to
the relative ages of the complainant (fourteen years) and the
appellant (nineteen years) at the time
of the offence, together with
the fact that the appellant is a first offender, I am satisfied that
a sentence of life imprisonment
is disproportionate on the facts of
this case. As pointed out in Vilakazi (at pg 557 b – c) the
factor that distinguishes
a minimum sentence of ten years’
imprisonment, from one of life imprisonment for rape (in the absence
of the other aggravating
feature set out in part 1 of Schedule 2 to
the Minimum Sentences Act) is whether the complainant is under the
age of sixteen years.
The following remarks of Nugent J A at
paragraph 59 are apposite to the facts of this case.
“
When viewed
as a whole the only material feature that the evidence discloses as
having aggravated what is inherently a serious crime
was the
complainant’s age. Bearing in mind where the complainant’s
age fits in the range between infancy and 16 I do
not think that her
age by itself justifies what would otherwise have been a sentence of
ten years’ imprisonment being raised
to the maximum sentence
permitted by law. A substantial sentence of 15 years’
imprisonment seems to me to be sufficient to
bring home to the
appellant the gravity of his offence and to exact sufficient
retribution for his crime. To make him pay for it
with the remainder
of his life would seem to me to be grossly disproportionate”.
[17] In the case of
S v Matyityi
2011 (1) SACR 40
(SCA) at pg 53 e – g
the Supreme Court of
Appeal stressed that courts are obliged to impose the prescribed
minimum sentences
“unless there are truly convincing
reasons for departing from them. Courts are not free to subvert the
will of the Legislature
by resort to vague, ill-defined concepts such
as ‘relative youthfulness’ or other equally vague and
ill-founded hypotheses
that appear to fit the particular sentencing
officer’s personal notion of fairness”.
[18] In Matyitiyi the
Supreme Court of Appeal at 53 i – 54 a however re-affirmed the
need for proportionality by finding that
the
Court
a
quo
had failed to pay sufficient attention to
the traditional triad of the crime, the criminal and the interests of
society and instead
had emphasised the personal interests of the
accused.
“
In doing so
it failed to strike the appropriate balance. It thus imposed a
sentence that was disproportionate to the crime and the
interests of
society”.
In the case of
DPP, North Gauteng,
Pretoria v Thusi
2012 (1) SACR 423
(SCA) at pg 429 i
the SCA held on the facts
of that case that
“
In my view,
when weighed against the objective gravity of these offences, their
prevalence in South Africa and the legitimate expectations
of society
that such crimes must be severely punished, neither the youthfulness
of the respondents nor their prospects of rehabilitation
tip the
balance in their favour”.
The objective gravity of
the offences in Thusi were more serious than in the present case, and
consequently in seeking to achieve
proportionality, I am satisfied
that the youthfulness of the appellant, as well as the prospects of
his rehabilitation tip the
balance in the appellant’s favour,
in finding the presence of substantial and compelling circumstances,
justifying the imposition
of a lesser sentence than life
imprisonment. When all is said and done I, with respect, adopt the
words of Navsa J A in the case
of
Director of Public
Prosecutions KZN v Ngcobo and others
2009 (2) SACR 361
(SCA) at para 22
where he said the
following:
“
Traditional
objectives of sentencing include retribution, deterrence and
rehabilitation. It does not necessarily follow that a shorter
sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one of the
considerations
when sentence is being imposed. Surely, the nature of
the offence related to the personality of the offender, the
justifiable expectations
of the community and the effect of a
sentence on both the offender and society are all part of the
equation? Pre- and post-Malgas
the essential question is whether the
sentence imposed is in all the circumstances, just”.
[19] In my view, the
imposition of the minimum sentence of life imprisonment upon the
appellant in the present case, was disproportionate
to the crime and
the interests of society. The sentence served to emphasise the nature
of the crime without due regard being had
to the fact that the
appellant was a first offender as well as the relative ages of the
complainant and the appellant at the time
of the commission of
offence. In these circumstances the sentence imposed was not just and
cannot stand. The appellant must however
be severely punished, which
will find expression in the sentence I intend imposing. The appeal
against sentence accordingly succeeds.
The order I make is the
following:
The appeal against
conviction is dismissed.
The appeal against
sentence is upheld. The sentence imposed upon the appellant is set
aside and the following sentence is substituted:
“
The
accused is sentenced to 18 (eighteen) years’ imprisonment, the
commencement of such sentence being
back dated to the date
when sentence was originally imposed, being 20 April 2005”.
__________
SWAIN J.
I agree
___________
MBATHA J
I agree
_____________
HENRIQUES J
Appearances/:
Appearances:
For
the Appellant :
Adv. J. Butler
Instructed
by :
Justice Centre
LASA.
Pietermaritzburg
For the Respondent :
Adv. E. Smith
Instructed by :
Director of Public Prosecutions: KZN
Pietermaritzburg
Date of Hearing :
25 May 2012
Date
of
Filing
of Judgment :
31 May 2012