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[2024] ZALMPPHC 26
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Phori v S (A30/2022) [2024] ZALMPPHC 26 (13 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA;
LIMPOPO
DIVISION; POLOKWANE.
CASE NO:
A30/2022
(1)
REPORTABLE: YES
(2)
(2)
OF INTEREST TO THE JUDGES: YES
(3)
REVISED.
DATE:
13 March 2024
DJP SEMENYA
SIGNATURE:
In
the matter between:
DONALD
SOPHONIA PHORI : APPELLANT
And
THE
STATE
: RESPONDENT
JUDGMENT
HEARD
ON:
24 NOVEMBER 2023
CORAM:
SEMENYA AJP
AND MANZINI AJ
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email and publication
and release
to SAFLII. The date and time for hand-down is deemed to be
13
March 2024
at
16:00
.
SEMENYA
AJP:
[1]
The appellant was convicted in the Sekhukhune Regional Court on two
counts of rape in contravention of section 3 of the Criminal
Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
(Sexual Offences Act). He was sentenced to life imprisonment
in
accordance with the provisions of section 51 (1) of the Criminal Law
Amendment Act 105 of 1997 (Act 105 of 1997). The appeal
is against
both conviction and sentence imposed by the trial court.
[2]
The evidence that led to the conviction of the appellant is as
follows:
The
complainant testified that on the 26 July 2008, she and her cousin,
E[…], went to a certain house at Ga-Moloyi to see
people who
had returned from the circumcision school (initiates). Those
initiates did not stay long at that house as they had to
go to the
appellant’s sister’s house which is situated at
Mogalakwena for celebrations. The appellant, whom the complainant
and
her sister were seeing for the first time, was among those who were
travelling with the initiates. The complainant and her
sister decided
to join the group and to go and celebrate the return of the initiates
at Mogalakwena.
[3]
At about 19:00 she, Portia and Oscar decided to go to a tavern where
drinks were sold. She realised that the appellant was walking
behind
them on their way to that place. When the complainant saw that none
of them was buying cooldrink, she suggested that they
should return
to the appellant’s sister’s house. As they were leaving
the tavern, the appellant followed them and told
Portia and Oscar to
go away. Portia stopped at a distance and told the complainant to go
and sleep with them at a certain house.
The complainant refused
because there was no older person at that place and also because she
wanted to go back to the place that
she had visited.
[4]
Instead of proceeding back to the party, the appellant grabbed her
hand and dragged her to the mountain and threatened to kill
her if
she screams. He looked angry as he was swearing at her. Upon their
arrival at the mountain, the appellant ordered her to
undress. He
strangulated her when she refused to do so. She only undressed her
pants when she was beginning to find it difficult
to breath. The
appellant throttled her again to force her to take off her panties as
well, which she ultimately did. He continued
to throttle her for the
third time and forced her to lie down. He climbed on top of her and
throttled her again when she refused
to open her legs. He then
proceeded to rape her.
[5]
After the act of sexual penetration they stood up, put on their
clothes and walked away for a short distance. The complainant
tripped
and she fell on top a thorny tree and injured herself in an attempt
to run away. The appellant caught up with her and ordered
her to
undress again. She refused. He throttled her again and forced her to
undress. He raped her for the second time at that spot.
[6]
The two proceeded back to the appellant’s sister’s house
where they found the appellant’s wife and the complainant’s
cousin sleeping in the same room. They joined them. In the
morning, the appellant’s wife saw the scratches on her body.
She wanted to know about the cause of those scratches. The
complainant told her that her husband raped her. The appellant’s
wife proceeded to where the appellant was seated and confronted him
about the information she received from the complainant. She
overheard the appellant’s wife telling him that she had warned
him to desist from continuing with his deeds. Elsie was within
earshot when she was reporting to the appellant’s wife.
[7]
The complainant was cross-examined at length by the appellant’s
legal representative. She denied that she refused to leave
with
Portia because she had agreed with the appellant that they will go to
the mountain to have sexual intercourse. She also denied
that it is
for the same reason that she did not scream when the appellant was
raping her. She maintained that she did not do so
because the
appellant had threatened to kill her. When it was put to her that to
show that she was in a love relationship with
the appellant, the two
took photos closely together at the appellant’s sister’s
place, she stated that there was a
time when the guests were asked to
shoot photographs with the initiates. She joined the others but she
denied that she was intimately
closer to the appellant as suggested.
[8]
Dr Nomsa Jaqueline Mogasetse examined the complainant at St Ritas
hospital a day after the date of the incident. She recorded
her
observations on medical report commonly known as form J88 which was
admitted as evidence. She noted that the complainant had
abrasions on
her spine, on her left arm posteriorly as well as superficial
abrasions on the left leg anteriorly and below her knee.
The
complainant told her that her last consensual sexual intercourse was
in May that year. Her hymen was not intact. There was
a foul smell
coming from her genitalia. When asked for her opinion with regard to
the absence of injuries on the complainant’s
genitals, the
doctor stated that absence of injuries on the complainant’s
genitals do not necessarily exclude rape.
[9]
E[…] M[…], the complainant’s cousin, confirmed
that she was with the complainant on the date of the incident
and
that they went together to Mogalakwena. She saw the complainant
leaving with Portia and Oscar. She remained behind and later
went to
sleep in the same room with the appellant’s wife. The appellant
and the complainant returned during the course of
the night and found
them sleeping. In the morning the appellant’s wife came to
where she and the complainant were seated
and asked her about what
she had been up to did the previous night. The complainant cried and
said the appellant dragged her to
the bush the previous night and
raped her there. The appellant’s wife yelled at the appellant
saying she is leaving him because
it was not the first time for him
to do that. She stated that she could see that the complainant was
injured and bleeding from
her legs and elbows.
[10]
At the close of the State case the appellant testified and confirmed
that he was at a party at his sister’s place on
the date of the
incident. His version is that he and the complainant agreed to be in
a love relationship from that day. They also
agreed that they will
engage in an act of sexual intercourse so that she can convince him
that she loves him. Late in the afternoon
the complainant, Portia and
Oscar decided to go and buy soft drinks at a certain tavern. Oscar
came to him and said the complainant
says he, the appellant, should
go with them to the shop. They proceeded to Maphanga’s place
where he bought liquor that he
shared with the complainant and
Portia, with the complainant sitting on his lap at all times.
[11]
When they were about to leave, he told the complainant that they
cannot go and sleep at his mother’s house because he
is
married. He further told her that they cannot go and sleep at his
sister’s house where there was a party because his wife
was
also at the party. They agreed to go to a mountain where they engaged
in acts of sexual intercourse. Portia and Oscar walked
with them but
decided to go back to Maphanga’s place before they could reach
the mountain. He testified that the two acts
of sexual penetration
took place with the complainant’s consent.
[12]
According to the appellant, the complainant freely and voluntarily
walked with him to the mountain. He neither, throttled her,
dragged
her nor threatened to kill her. In support of his version, the
appellant stated that they came across ten boys on their
way back to
his sister’s place and the complainant could have alerted them
if it was true that she was raped. Upon their
arrival there they
slept in the same room with his wife and E[…]. He heard for
the first time in court that his wife confronted
the complainant in
the morning.
[13]
It appears from the judgment of the trial court that the appellant
called Oscar as his witness, although his evidence is missing
from
the transcribed record. According to the summary of the evidence of
the trial court, Oscar testified that the appellant and
the
complainant were in a love relationship because he saw them talking.
He also saw the complainant sitting on the appellant’s
lap
during photo shooting. He confirmed the appellant’s version
that it is the complainant who sent him to go and call the
appellant
so that he can accompany them to the tavern. He also confirmed that
the complainant refused to go and sleep at Portia’s
place when
the latter invited her because she preferred to go back to the
ceremony with the appellant.
[14]
Counsel for the appellant submitted heads of argument in which he
criticises the manner in which the judgment of the trial
court is
written. He contends that the regional magistrate simply repeated the
evidence before him without evaluating it as required.
He further
argues that the learned regional magistrate applied the cautionary
rule incorrectly with regard to single evidence of
the complainant. I
agree with counsel for the appellant that the judgment is poorly
written and further that the regional magistrate
appears to have a
poor command of the English language.
[15]
It appears from the record of the proceedings in the trial court that
the learned regional magistrate was of the view that
courts are
required to be “v
ery
[very] careful
”
in their application of the cautionary rule. This statement loses
sight of the importance of the well-established principle
of
precedent. In
S
v Sauls and Others
[1]
,
the court stated that what is expected of the trial court is to weigh
the evidence of a single witness, to consider its merits
and demerits
and to decide whether the testimony is trustworthy and that, despite
the shortcomings, defects or contradictions in
the witness’
testimony, is satisfied that the truth has been told. In
S
v Artman and Another
[2]
the court said that “
while
there is always a need for caution in such cases, the ultimate
requirement is proof beyond reasonable doubt and courts must
guard
against their reasoning tending to become stifled by formalism. In
other words, the exercise of caution must not be allowed
to displace
the exercise of common sense.
”
It follows from these cases that it is not a requirement, as the
trial court has stated, that the court has to be “very
very
careful” in its evaluation of the evidence of a single witness.
Counsel for the appellant’s submission that the
trial court
erroneously applied the test has merit.
[16]
Counsel for the appellant argues further that the trial court failed
to appreciate that the burden of proof was on the State
and that the
appellant had no duty to prove his innocence. Counsel’s
contention arises from a passage in the judgment of
the trial court
where the following was stated:
“
Keeping
in mind that the burden of proof is on the State, the Court has to
make sure that the truth comes out in the totality of
the evidence.”
Counsel
for the appellant argued that the implication of the words used by
the trial court is that an accused person is required
to assist the
State in proving its case against him.
[17]
I fail to find any justification in the criticism levelled against
the statement made by the trial court as quoted above. This
statemen
is simply a shortened version of the principle laid down in
S
v van der Meyden
[3]
where it was stated that:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonable
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of the test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none must be
simply ignored.”
Although
the trial court did not use the exact words as they were used in
Meyden above, there can be no interpretation other than
that the
court meant that it must consider the evidence presented before it by
the State and by the appellant in order to arrive
at a conclusion as
to whether the appellant is guilty or innocent.
[18]
Counsel for the appellant argues that the trial court erred in
finding that the evidence of the complainant is reliable, trustworthy
and credible. Counsel contends that the complainant failed to inform
the doctor that the appellant throttled her on more than one
occasion. Further that the doctor did not observe any visible
injuries on the complainant’s neck. The complainant testified
that she did not sustain visible injuries on the neck, she only felt
pain. She further said that she did not think of telling the
doctor
about the pain because she was still confused. It follows that there
is no way the doctor could have seen injuries on the
neck, as there
was none to see. The only injuries seen by the doctor were those that
she has noted on form J88. I find that the
submissions made by
counsel for the appellant that the trial court ought to have found
that the complainant was lying on the aspect
to be without merit.
[19]
Counsel for the appellant contends that the court should have drawn
an adverse inference out of the complainant’s failure
to tell
the ten boys that they came across about her plight. The explanation
furnished by the complainant is that she was already
told that she
will be killed if she makes people aware of the situation she was in.
Not only that, the appellant had already raped
her at that time. A
negative inference cannot be drawn out of the fact that she believed
that her life was in danger. A reasonable
16 years old faced with
similar circumstances would have behaved in the same way.
[20]
Counsel for the appellant contends that the trial court should have
rejected the version of the complainant because she failed
to report
to her sister upon her arrival back to the appellant’s sister’s
place. The version of the complainant and
that of E[…]
is that they were slipping in the same room with the appellant’s
wife. She further stated
that the appellant arrived shortly
thereafter and slept with them in the same room. It cannot be said
that the threat of harm was
remote at that stage. In any event,
section 59 of the Sexual Offences Act provides that no adverse
inference should be drawn out
of the delay in reporting the offence.
[21]
The argument that the complainant lied about the rape because the
wife was swearing at her is without justification. The evidence
presented before the court by the complainant is that the wife saw
the injuries on her and wanted to know what had happened. The
complainant burst into tears and reported that she was raped by the
appellant. The question was not why did she engage in acts
of sexual
penetration with the appellant. The contention that she lied is not
supported by any evidence other than the appellant’s
version.
The evidence is that the wife shouted at the appellant saying she has
reprimanded him from doing this thing again. The
evidence that the
wife shouted at the appellant is corroborated by E[…].
[22]
The State did not call Portia and Oscar as witnesses. Based on the
principle in
S
v Teixeira
[4]
,
counsel for the appellant argues that the trial court erred in
failing to draw an adverse inference against the State for failing
to
call these two witnesses. Any prudent prosecutor would not risk the
State case by calling a witness who is closely related to
the
appellant. The evidence before court is that the appellant started to
drag the complainant only after they had parted with
Portia and
Oscar. It is common cause that the complainant is a single witness.
This is so in that Oscar and Portia did not witness
the dragging and
the rape. They could not have taken the State’s version further
on that aspect. A further common cause evidence
is that the
appellant, Portia and Oscar were seeing the complainant for the first
time on that date. There were many other people
at the appellant’s
sister’s house because of the party. The evidence of Oscar that
the appellant and the complainant
were in a love relationship, simply
because he saw them talking to each other and despite the fact that
he was seeing her for the
first time on that date, leaves much to be
desired. A conclusion that a reasonable court can arrive at is that
he connived with
the appellant to create a false story.
[23]
I have agreed with counsel for the appellant that the judgment of the
trial court is not well written. However, I find that
the evidence
presented before that court, with its strengths and weaknesses,
points to the guilt of the appellant. The State is
not required to
close every avenue of escape which may be said to be open to the
accused. All it is required to do is to produce
evidence by means of
which such a high degree of probability is raised that the ordinary
reasonable man, after mature consideration,
will conclude that there
exists no reasonable doubt that an accused has committed the crime
charged-
R
v Mlambo
[5]
.
[24]
The appellant raised consent as a defence. I find that the trial
court correctly rejected his version and the defence raised.
He
testified that met the complainant for the first time on that date.
He was 29 and the complainant was 16 years old. The
evidence is
that they met by coincidence at a place where the initiates were
first taken to. The presence of injuries on the body
of the
complainant is consistent with her unwillingness to engage in acts of
sexual intercourse with the appellant. It is highly
improbable that
the complainant would have willingly subjected herself to an act that
inflicted the injuries that she sustained
on the date of the
incident.
[25]
In
S v
Blaauw
[6]
the court stated that mere and repeated acts of penetration cannot,
without more, be equated to repeated and separate acts of rape.
In
this case the evidence is that the appellant penetrated the
complainant for the first time when they arrived at the mountain.
He
stopped and they put on their clothes. They walked for a short
distance. The complainant tripped and fell to the ground. The
appellant penetrated her for the second time. I am satisfied that
these are two separate acts of rape. The evidence proves that
there
were two separate acts of sexual penetration. A conviction on both
counts is found to be in order. In line with
R
v Dhlumayo
[7]
I find no reason to interfere with the trial court’s factual
findings. The trial court’s factual finding is correct.
The
conviction shall stand.
[26]
The appeal court’s approach to sentence imposed by the trial
court in terms of Act 105 of 1997 as been laid down as follows
in
S
v PB
[8]
:
““
[20]
What then is the correct approach by a court on appeal against a
sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the trial court's
exercising its discretion properly, simply because it is not the
sentence
which it would have imposed or that it finds shocking? The
approach to an appeal on sentence imposed in terms of the Act should,
in my view, be different to an approach to other sentences imposed
under the ordinary sentencing regime. This, in my view, is so
because
the minimum sentences to be imposed are ordained by the Act. They
cannot be departed from lightly or for flimsy reasons.
It follows
therefore that a proper enquiry on appeal is whether the facts which
were considered by the sentencing court are substantial
and
compelling or not”
On
sentence, the appellant was convicted on an offence that attracts a
prescribed minimum sentence of life imprisonment. The offence
he was
found guilty on falls under Part I of Schedule 2 of the
Criminal Law
Amendment Act. The
evidence proved that he penetrated the complainant
more than once. The trial court found that there are no substantial
and compelling
circumstances that justify imposition of a lesser
sentence as envisaged in
section 51(3)
of this Act. The court had
regard to the pre-sentence report presented before it and found that
there is sufficient facts before
it that justify the sentence of life
imprisonment.
[27]
The misdirection on the part of the trial court with regard to the
basis for imposing a sentence of life imprisonment cannot
be ignored.
The court relied on the previous conviction of assault as it appears
on SAP 69’s. The court regarded this as
crucial to the
determination of sentence. It appears from the record that the
appellant denied this previous conviction. The State
sought and was
granted a postponement in that it wanted to prove it. However, on the
next sitting the prosecutor informed the court
that the State no
longer intend to lead any evidence to prove the previous conviction.
The appellant was to be regarded as a first-time
offender. The court
repeated on more than one occasion that the previous conviction shows
that the appellant is a violent person.
This constitutes a
misdirection.
[28]
The court further found that the minimum sentence of life
imprisonment is applicable in that the appellant raped a person who
was 16 years of age. As at the date of sentence, that is in 2011,
this sentence could be imposed when the victim was below the
age of
16 years. The complainant was already 16 years of age when she was
raped. Section 51(1) was not applicable due to the complainant’s
age. The court considered the evidence that the complainant is crying
whenever she thinks about the offence and that the complainant
‘apparently sustained injuries as an aggravating factor. I do
agree with the court in that regard. The court concluded that
there
are no substantial and compelling circumstances that justify
imposition of a lesser sentence.
[29]
The impact of rape on the victims of such crimes has been succinctly
stated in
S
v Vilakazi
[9]
.
Rape is indeed a repulsive crime. It is humiliating and degrading. It
also constitutes an invasion of another person’s
privacy. The
court nonetheless took cognisance of the principle laid down in
S
v Rabie
[10]
,
as restated in
S
v Dodo
[11]
that sentence must always be proportionate to the facts of a
particular case.
[30]
The fact that the trial court was persuaded to impose the prescribed
sentence by wrong facts cannot be ignored. This fact,
in my view,
constitutes sufficient ground upon which this court, as an appeal
court, may interfere with the sentence imposed by
that court. In
determining the sentence afresh, this court will take into
consideration that the appellant was 13 years older than
the
complainant as at the date of the incident. He penetrated the
complainant more than once and cause injuries on her body. I
take
cognisance of the dictum in S v Malgas
[12]
that where there is deviation from the prescribed minimum sentence,
the lesser sentence to be impose must show that the offence
has been
singled out as one where a heavier sentence is befitting.
[31]
In the result the following order is made:
i.
The conviction on the 2 counts of rape is confirmed;
ii.
The sentence of life imprisonment is set aside to be replaced by the
following:
The
appellant is sentenced to 22 years’ imprisonment in respect of
each count
The
sentence is antedated to the 3 March 2011;
iii.
In terms of section 280 of the Criminal Procedure Act, it is ordered
that the two sentences shall run
concurrently.
______________________________
MV
SEMENYA
ACTING JUDGE PRESIDENT
OF THE HIGH COURT LIMPOPO DIVISION: POLOKWANE
I
agree
___________________________
LM
MANZINI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCE:
For
the Appellant: Adv. PJC Kriel
Instructed
by: BDK Attorneys
For
the respondent: Adv. M. Mohale
Instructed
by: DPP; Polokwane
Date
of hearing: 24 November 2023
Date
of delivery: 13 March 2024
[1]
1981 (3) SA 172 (A)
[2]
1968 (3) SA 339
(a) at 341
[3]
1999(2) 79 (W)
[4]
1980 (3) SA 755 (A)
[5]
1957 4 SA 727
A
[6]
1999 (2) SACR 295 (W)
[7]
1948(2) SA 677 (A)
[8]
2013(2) SACR 533 (SCA)
[9]
2009(1) SACR 552 (SCA)
[10]
1975(4) SA 855 (A)
[11]
2001(3) SA 382 (CC)
[12]
2001(1) SACR 469 (SCA)