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[2024] ZAKZPHC 50
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Siwani v S (AR30/23) [2024] ZAKZPHC 50 (26 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
no: AR30/23
In
the matter between:
KHUMBULANI
LILLY
SIWANI
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date for hand down is deemed to be 26 JUNE 2024 at 14:30pm
ORDER
In the result, I make the
following order:
1
The appeal against the appellant's conviction and sentence is
dismissed.
JUDGMENT
Jikela
AJ (Chetty J) concurring:
[1]
The appellant was charged in the Regional Court, Durban of having
raped
three females, one of them on diverse occasions between the
period of 29 April 2017 and 3 August 2019, in contravention of
s 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
read with the provisions
s 51(1)
and
Part 1
of Schedule 2
of Act 51 of 1997 (counts 1 and 3) and contravention of s 3 of Act 32
of 2007 read with s 51(1) and Part 3 of Schedule
2 of Act 51 of 1997
(count 2).
[2]
The record showed the appellant was alerted to the applicability of
life
imprisonment in the event of his conviction in counts 1 and 3 in
terms of section 51 (1) of the Criminal Law Amendment Act, this
being
the prescribed minimum sentence.
[3]
The appellant pleaded not guilty to the charges. He was legally
represented
at his trial. On 21 February 2022, the trial court
convicted the appellant as charged, and on 10 March 2022, the
appellant was
sentenced to life imprisonment on counts 1 and 3, and
ten-years imprisonment on count 2. The trial Court directed that all
three
sentences shall run concurrently.
[4]
The matter serves before us as an automatic appeal in terms of
section
309 of the Criminal Procedure Act 51 of 1977 (CPA). The
appellant appeals against conviction and sentence.
[5]
The issues on this appeal can be summarised as follows:
(a)
Whether the complainant in count 1 had sufficiently identified the
appellant
as her attacker.
(b)
Whether the evidence of the complainants in all three counts, who
were
single witnesses was reliable to prove the allegations of rape
beyond reasonable doubt.
(c)
Whether the effective sentence of life imprisonment imposed is
shockingly
inappropriate.
Ad
Conviction
[6]
The facts of the matter are succinctly captured in the judgment of
the
trial Court nonetheless, it is necessary to briefly state the
facts as presented before the trial Court. I do not propose to repeat
the evidence of the first complainant, ZJ regarding her encounter
with the appellant on which she testified that on the evening
of 29
April 2017 at Nkolonga informal settlement, in the company of her
sister Zanele, whilst walking back to their home after
collecting her
mother’s cell phone from Pinky’s residence, which was
about 6 to 7 houses away from theirs, ZJ first
took note of the
appellant that he was amongst the people who were sitting outside at
Pinky’s residence drinking some beverages.
She further took
note of the appellant when he walked out of Pinky’s residence
approaching them. There was adequate lighting
on the street from the
outdoor lights of the nearby houses. As they walked, the appellant
caught up with them and rudely asked
them what they were laughing at.
Before ZJ could respond, the appellant slapped Zanele on her face. At
that stage, ZJ observed
that the appellant had a closed Okapi knife
in his hand. They both fled and Zanele took the direction of her
home, whilst ZJ fled
into a footpath leading to a bushy area. The
appellant chased ZJ and as she ran, the appellant struck her with the
handle of the
closed Okapi knife on top of her head causing her to
sustain an open wound. She continued to run away until she tripped
and fell
into a ditch.
[7]
ZJ had another opportunity to see the appellant at a close distance
when
the appellant jumped into the ditch, by this time the appellant
had opened the knife and exposed the blade. He placed the knife
to
her throat and instructed her to undress herself and lie down on the
ground. She had time to look at the appellant taking off
his trousers
and without using a condom, the appellant inserted his penis into the
vagina of ZJ and had sexual intercourse with
her against her will.
Furthermore, the appellant instructed ZJ to step out of the ditch and
once again the appellant inserted his
penis into the vagina of ZJ and
had sexual intercourse with her. Similarly, on the second occasion,
ZJ had ample time to identify
the appellant. The appellant ran away
after hearing voices of people approaching their direction.
[8]
With regard to the second complainant, AM, the appellant’s
challenge
is about the reliability of her evidence given that she was
a single witness testifying about a rape incident. Briefly, her
testimony
was as follows; on 9 February 2019 at Foreman Road informal
settlement in Sydenham, during the evening, she was at a local
shebeen
when a scuffle ensued between her uncle and a group of males,
to whom she referred as ‘amatlokoma’. Amid the argument,
the appellant arrived and intervened on behalf of AM’s uncle.
Whilst quelling the conflict, a fight ensued between the appellant
and the amatlokoma group.
[9]
Of significance is that AM and the appellant are acquaintances. They
are
originally from the same village in the province of the Eastern
Cape. When AM was giving evidence in court, she referred to the
appellant as ‘Lilli.’ She testified that back in her home
village, the appellant is known by the name Lili. The record
shows
that even the appellant’s friend namely Talusi referred to him
as Lilli.
[10]
AM and her friend decided to escort her uncle to his residence, which
was located within
the neighbourhood. On their way back to the
shebeen, they ran into the appellant. The appellant approached AM,
grabbed her by the
front of her clothing, and demanded that she must
assist him in looking for his cap which he lost during the scuffle at
the shebeen.
The two of them proceeded back to the shebeen where they
made enquiries from the patrons as to who might have seen the
appellant’s
cap.
[11]
AM managed to escape from the appellant and went straight to her
friend’s shack.
The appellant followed AM to her friend’s
shack. Upon his arrival, he knocked at the door and called AM by her
name. Because
they were acquaintances, AM recognised the appellant’s
voice and decided to go out of the shack and attend to him. She
did so because her friend was taking a bath in a one-room shack, thus
it would have been inappropriate for the appellant to enter
the room.
Moreso, she feared that the appellant would kick open the door and
enter regardless.
[12]
AM noticed that the appellant was holding a knife. The appellant
grabbed AM and dragged
her to his shack which was in close proximity
to her friend’s shack. The appellant closed the door and
grabbed hold AM and
threw AM on top of the bed. The appellant
undressed AM whilst holding the knife in his hand. He then took off
his pants and inserted
his penis into the vagina of AM and had sexual
intercourse without her consent. When AM protested on the basis that
she was pregnant,
the appellant’s response was that he would
rip open her stomach. The sexual violation of AM was exacerbated
by the
appellant’s knife that was placed on top of
the bed that they were lying on.
[13]
Accordingly, I find that the evidence of AM was clear and
satisfactory in all material
respects.
[14]
This takes me to the evidence of the third complainant, NM. On 3
August 2019 at Foreman
Road informal settlement in Sydenham at about
04h00 in the morning, NM was asleep at her cousin’s shack room
alone. She was
awakened by the appellant knocking aggressively at the
door stating that he was looking for his girlfriend, A[...]. A[...]
is NM’s
cousin. The appellant later misled NM by stating that
she must open for him so that he could collect an item that belonged
to him
which was inside the shack room. The unsuspecting NM believed
that the appellant was speaking the truth and opened the door. She
discovered that the appellant was in possession of a knife. The
appellant demanded that NM should accompany him to the tavern to
find
A[...]. NM testified that she had no alternative but to comply as the
appellant had a knife in hand. They walked for a while
until they
reached a bushy area. The appellant instructed NM to undress herself.
She refused and that caused the appellant to cut
her panty with a
knife. That alone was enough to cause NM to succumb to his demand.
The appellant instructed NM to lie on her back
on the ground, he took
off his trousers and inserted his penis into the vagina of NM against
her will. NM was six months pregnant
at the time.
[15]
On the second occasion, the appellant found a piece of
cardboard laying around and
instructed NM to kneel on the cardboard
so that he would penetrate her from behind, to which she complied.
The appellant inserted
his penis into the vagina of NM and had sexual
intercourse with her. Again, on the third occasion, the appellant
penetrated
NM from behind. When he finished, he wiped his penis
with NM’s pinafore that she wore on that early morning. NM was
not familiar
with the area of Foreman Road informal settlement; thus,
she depended on the appellant to take her back to A[...]’s
shack
room.
[16]
On their arrival back at the shack, after
the
appellant ate the leftover food and when he finished, he instructed
NM to lie on the bed. The appellant inserted his penis into
the
vagina of NM and had sexual intercourse with her for the fourth time
that morning. She testified that the shack was well lit
with
electricity light. A[...] arrived shortly after the appellant had
left the shack. NM reported the whole incident of rape to
A[...]. It
turned out that A[...] had come across the appellant on her way to
the shack room. A[...] identified the appellant by
the description of
his clothing given by NN. A[...] knew exactly who the appellant was
and where his friend resided. NM then discovered
that the appellant
had left his brown jacket in A[...]’s shack room.
[17]
Without wasting time, A[...] and NM approached appellant’s
friend, Talusi and reported
to him that the appellant had raped NM.
Talusi knew where the appellant resided. He took NM and A[...] to the
appellant’s
shack room. On their arrival, they found three
occupants asleep. Talusi entered the shack room and proceeded to
where the appellant
was sleeping, and without difficulty, NM
identified the appellant as her attacker. He was still wearing the
same clothing that
he wore earlier when he raped her. The appellant
stood up in denial, holding the knife in a stabbing position. and
threatening
to stab Talusi and NM. The appellant managed to escape
from them.
[18]
There can be no doubt as to NM’s reliability of her
identification of the appellant.
Just like the other complainants,
she spent substantial time with the appellant, and she too had ample
opportunity to identify
the appellant. With all three complainants,
the appellant threatened them with a knife. The use of violence,
offensive language,
and knife to instil fear in his victims are
distinguishable traits possessed by the appellant when he pounced on
his prey. Further,
the complainants were raped at various times and
did not know each other. I have also taken note that ZJ and NM
were completely
unacquainted with the appellant before their
encounter with him, therefore, they did not have reasons to falsely
implicate him.
Even with AM, there is no evidence to suggest that
she had any reason to falsely implicate him of raping her. All
three complainants
were impressive witnesses whose narration was
clear and satisfactory in every material respect.
[19]
Dr Thandeka Khanyile, a district surgeon at Addington Hospital,
examined AM on 9 February
2019. She took swab samples for DNA
analysis, and she prepared a J88 report. Similarly, in respect of ZJ,
Dr Olovoockon examined
her at Port Shepstone Hospital and
recorded on the J88 report that ZJ had a mild laceration on the
scalp. This is consistent with
the testimony of ZJ. Swab samples were
also taken for DNA analysis. Further, in respect of NM the
State relied on the J88
report prepared by Dr Vedishingh who examined
her at Addington Hospital on 3 August 2019. Swab samples were taken
for DNA analysis.
The forensic DNA report proved that ZJ and NM were
raped by the appellant. There was no challenge to the DNA samples and
the results
of the DNA analysis. In this regard, I am convinced that
there was sufficient corroboration of the evidence of the
complainants.
[20]
Against the weight of this evidence, the appellant raised the
defence of consent
to sexual intercourse and suggested that he was in
a love relationship with ZJ and AM. In respect of NM, he offered a
bare denial
of the allegations against him. These allegations were
denied by ZJ and AM. It is incomprehensible to me that both ZJ and AM
who
were allegedly in a healthy love relationship with the appellant
would falsely accuse him of serious offences such as rape
because they did not get money after having sexual
intercourse with him. In my view, the appellant made these assertions
to demean, humiliate, and discredit them as unreliable witnesses in
court. I am in agreement with the argument advanced by the
State that
the defence of consent was conveniently raised by the appellant in
light of the positive DNA report linking him to counts
1 and 2.
[21]
Before us at the hearing of this matter, Ms Fareed for the appellant,
submitted that it
was highly improbable that ZJ, could have
positively identified the appellant as there were no streetlights
where she was sexually
assaulted. Since ZJ was assaulted on her head
it would have been difficult for her to identify her assailant, with
blood flowing
down her face. Further, it was submitted that the trial
Court erred in not approaching the evidence of ZJ as a single witness
in
the incident of rape, with caution. ZJ was criticised for not
shouting for assistance whilst being sexually assaulted. Therefore,
it was submitted that her evidence was not reliable. Ms Fareed
submitted further that the trial Court erred in rejecting the
appellant’s
version. His version ought to have been found to be
reasonably and possibly true.
[22]
With regard to the conviction in count 3, Ms Fareed submitted in her
heads of argument
that the evidence of NM as a single witness in the
incidence of rape was not clear and satisfactory in all material
aspects. Further,
it was submitted that NM’s evidence was not
dependable for the reasons that she did not shout out for assistance
whilst being
sexually assaulted. To that end, it was submitted that
the State failed to prove the guilt of the appellant beyond
reasonable doubt
and therefore the conviction should be set aside.
[23]
On the other hand, the State submitted that it was common cause that
the appellant had
sexual intercourse with ZJ and AM. Further, that
the complainants did not know each other prior to their respective
encounters
with the appellant, therefore, they would falsely
implicate him and lastly, that the appellant was known to AM by the
name of Lili.
It was submitted further that in all three counts, the
complainants were impressive witnesses.
Legal
principles
[24]
Prior to
1998, the law took the view that the cautionary rule as it applies to
accomplices had to be applied to the evidence of
complainants in
sexual cases. However, this rule was abolished by the Supreme Court
of Appeal (SCA) in S v Jackson
[1]
.
In
S v
M
[2]
the court reaffirmed the principle in
S
v Jackson
.
Melunsky AJA had this to say:
‘
In
S v Jackson
it was pointed out at 476
e-f
that the
application of the cautionary rule to sexual assault cases was based
on irrational and outdated perceptions. Although
the evidence in a
particular case might call for a cautionary approach, this, it was
emphasised in the judgment, was not a general
rule: the State was
simply obliged to prove the accused’s guilt beyond reasonable
doubt. The factors which motivated this
Court to dispense with the
cautionary rule in sexual assault cases apply, in my view, with equal
force to all cases in which an
act of a sexual nature is an element.’
[25]
Further, s
60 of the Sexual Offences Act
[3]
provides that a court may not treat the evidence of a complainant in
a sexual offence case with caution on account of the nature
of the
offence
[4]
. This, however, does
not detract from the unassailable need for the complainant’s
testimony to be clear and reliable in all
material respects.
Therefore, I disagree with the appellant’s contention that the
evidence of the complaints should have
been rejected for being
unreliable, and unsatisfactory.
[26]
It is trite
that, when evaluating the evidence of an alleged victim of rape or
sexual assault, a court need do no more than exercise
the caution
that is necessary when there is only one witness to the offence
alleged. In addition, the evidence of the complainant
must not be
seen in isolation but rather as part of the mosaic of evidence before
the court
[5]
.
[27]
Therefore, I am satisfied that on the totality of the evidence in
this case, the trial
court was correct in concluding that the guilt
of the appellant in respect of the rape charges was established
beyond reasonable
doubt. Therefore, I conclude that there is no
reason to interfere with the conviction of the appellant.
Ad
Sentence
[28]
A further question to consider in this appeal is the presence or
otherwise of the substantial
and compelling circumstances to warrant
a deviation from the prescribed minimum sentence of life imprisonment
for counts 1 and
3. It was submitted on behalf of the appellant that
the trial court erred by failing to consider the time spent by the
appellant
in detention awaiting trial as a substantial and compelling
circumstance to warrant a deviation from the prescribed minimum
sentence
of life imprisonment in the case of the appellant.
[29]
The State submitted that there is no need to interfere with the
imposed sentence because
the appeal court may only interfere with
sentence if there is a manifest misdirection by the lower Court and
that the sentence
is shockingly inappropriate or there was an
irregularity during the trial or sentencing of the appellant. This
was not the position
in this case.
[30]
I have
considered the well-established legal principle that a court of
appeal will only, under special circumstances, interfere
with the
findings made in a court of first instance, in particular where such
failure to interfere will lead to an injustice. In
S
v Francis
[6]
1991 (1) SACR 198
(A) at 204C-E the following was stated:
‘
This
Court's powers to interfere on appeal with the findings of fact of a
trial Court are limited (
R v Dhlumayo and Another
1948 (2) SA
677
(A))… In the absence of any misdirection the trial Court's
conclusion, including its acceptance of D's evidence, is presumed
to
be correct. In order to succeed on appeal accused No. 5 must
therefore convince us on adequate grounds that the trial Court
was
wrong in accepting D's evidence - a reasonable doubt will not suffice
to justify interference with its findings ... Bearing
in mind the
advantage which a trial Court has of seeing, hearing and appraising a
witness, it is only in exceptional cases that
this Court will be
entitled to interfere with a trial Court's evaluation of oral
testimony . . .’
[31]
In sentencing the appellant, the trial court took into account the
personal circumstances
of the appellant, the nature of the offence,
and the interests of society. The appellants personal circumstances
and mitigating
factors were stated as follows:
31.1
The appellant was 26 years of age at the time of trial, with no
previous convictions. He was
unmarried with no children and had no
family responsibilities. He earned a living by selling chips.
[32]
The
main challenge to the imposed sentence was that the appellant had
been in custody awaiting trial for two years before
he was sentenced.
Our courts have dealt with the question of whether a lengthy period
of detention whilst awaiting trial may be
regarded as a substantial
and compelling circumstance to depart from the prescribed life
sentences. As Rogers J pointed out in
S
v Solomon & Others
[7]
that:
‘
[24]
Where a court imposing a determinate sentence considers that
pre-sentencing detention should be taken into account, the general
trend is to deduct an equivalent period from what would otherwise
have been an appropriate sentence. However, and as Goosen J explained
in
S v Kammies & another
[2019] ZAECPEHC 86 paras 34-49,
this approach presents conceptual difficulty when life imprisonment
is the prescribed sentence and
there are no other circumstances
justifying a departure from the statutorily ordained sentence. That
was the position in
Kammies
, where the accused had spent three
years in custody awaiting trial. Goosen J considered that
Radebe
was authority for the proposition that time spent awaiting trial
can never on its own be a substantial and compelling circumstance.
It
was not permissible, furthermore, to attempt to account for
pre-sentencing detention by having regard to the ‘parole
exclusion period’ (i.e. the period the offender must serve
before being considered for parole – usually 25 years in
the
case of a life sentence). He concluded that since there was no
rational way in which to take the pre-sentencing detention into
account, he was required to impose life imprisonment.
……
[26]
In my view, the reason pre-sentencing detention on its own should not
(at least ordinarily) be regarded as a substantial and
compelling
circumstance to depart from a prescribed life sentence lies in the
implications of what Goosen J said in paras 38 and
39 of his
judgment. A court must determine an appropriate sentence without
regard to the parole exclusion period. The period actually
imposed is
what matters. Where an accused is arrested and kept in custody,
pre-sentencing detention is concerned with the prejudice
he suffers
by virtue of the delay from the time he is arrested until the time he
is sentenced. In the real world, there will always
be a delay, no
matter how efficient the criminal justice system is. Nevertheless,
where the court is concerned with a determinate
sentence, one can
assess the accused’s prejudice by contrasting the actual
position with a hypothetical scenario in which
there was no delay
between arrest and sentencing. In the hypothetical scenario, the
accused would have started his sentence on
the date he was arrested
and would thus have been released sooner.
[27]
Where, however, the prescribed minimum sentence is life imprisonment,
the sentence means imprisonment for as long as the accused
is alive.
Leaving aside, as one must, the prospect of parole, the accused would
not have been released sooner on the hypothesis
of no interval
between arrest and sentencing.’
[33]
Applying the dictum in
Solomon
to the facts of the present
case, I am not persuaded that substantial and compelling
circumstances existed that warranted deviation
from the imposition of
sentences of imprisonment for life in respect of counts 1 and 3.
Indeed, the seriousness of the offences
to which the appellant had
been convicted and the interest of the society far outweighs his
personal circumstances. In my
view, the notable aggravating
factors in the case against the appellant are that on each occasion
the appellant used a knife
either to attack his victims or induce
fear. Further, the evidence in all counts was that he did not use
protection when he raped
the complainants and the psychological and
emotional trauma that the complainants suffer. This is evident from
the victim impact
statements produced by the State during trial
proceedings.
[34]
The SCA has
emphasised, however, that a trial court should not base a finding of
substantial and compelling circumstances on flimsy
or speculative
grounds or hypotheses
[8]
. More
so, in
S
v Abrahams
[9]
the SCA held that life imprisonment as a sentence for rape should be
imposed only where the case is devoid of substantial factors
compelling the conclusion that such a sentence is inappropriate and
unjust.
[35]
Having regard to the totality of the evidence, I am satisfied
that there is no basis
for this court to interfere with the
convictions and sentences imposed by the trail court.
[36]
In the result, I make the following order:
36.1
The appeal against the appellant's convictions and sentences is
dismissed.
JIKELA AJ
I agree.
CHETTY J
Appearances
For
the appellant:
Ms
Z Fareed
Instructed
by:
Legal
Aid SA
22
Dorothy Nyembe Street
Durban
c/o
PMB Local Office
For
the respondent:
Mr
T Ramkelowan
Instructed
by:
Office
of the Director of Public Prosecutions: Durban
Heard:
24
May 2024
Delivered:
26
June 2024
Judgment
is delivered electronically to parties on 26 June 2024 at 14:30.
[1]
S v Jackson
1998
(1) SACR 470
(A).
[2]
S
v M
1999
(2) SACR 548 (SCA).
[3]
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 (‘the Sexual Offences Act’).
[4]
Section 60 of the Sexual Offences Act states that:
‘
Notwithstanding
any other law, a court may not treat the evidence of a complainant
in criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence.
[5]
S v
Sauls & others
1981 (3) SA 172
(A) at 180; In
S
v J
1998 (2) SA 984 (SCA).
[6]
S v
Francis
1991 (1) SACR 198
(A) at 204C-E.
[7]
S v Solomon and Others (CC23/2018)
[2020] ZAWCHC 118
;
2021 (1) SACR
533
(WCC) (12 October 2020)
[8]
S v PB
2011 (1) SACR 448
(SCA) para 9 -10.
[9]
S v
Abrahams
2002 (1) SACR 116
(SCA), para 29.