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[2024] ZAKZPHC 51
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Sithole v S (AR 200/22) [2024] ZAKZPHC 51 (3 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR 200/22
In the matter between:
BAFANA CHRISTOPHER
SITHOLE
Appellant
and
THE
STATE
Respondent
ORDER
On appeal from Ntuzuma Regional Court
(sitting as court a
quo
):
(a) The
appeal against conviction and sentence is dismissed.
(b) The
appellant’s conviction and sentence are confirmed.
JUDGMENT
Delivered: 03 July 2024
Madonsela
AJ (Sibisi AJ concurring)
Introduction
1.
The appeal comes before us by way of
automatic appeal as envisaged in
Section 309(1(a)
of the
Criminal
Procedure Act 51 of 1977
in that the appellant was convicted and
sentenced to life imprisonment for the crime of rape falling within
the provisions of
Section 3
read with
Section 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
.
2.
On 11 February 2018 the complainant, who
was 15 years of age at the time, was undeniably raped, as Dr Kamal
Singh who examined her
the following day (on 12 February 2018)
conclusively determined.
3.
The circumstances giving rise to her rape
were given by the complainant herself. She was supported by the
evidence of her mother,
to whom the rape was immediately reported on
the very night of the alleged incident (namely, 11 February 2018).
Background and overview of the
evidence
4.
The complainant gave a detailed background
to the ordeal. The thrust of her evidence was the following. She
visited the appellant,
who was her mother’s lover/boyfriend, at
the appellant’s house in Amaoti. She had gone to the
appellant’s area
to visit her friend. It got late in the day.
She decided to go to the appellant’s home, in the hope that she
will find her
mother there. Upon arriving at the appellant’s
house, she found the appellant with a friend, named Dan. The two were
drinking
alcohol. After a short while, the friend left. She remained
with the appellant inside the house. The appellant encouraged her not
to leave as it was already late in the day. He poured her some
beverage to drink. She described the beverage as something like
“
a
stoney type of a drink”
.
She drank it. immediately, she got drowsy. However, before she
could fall asleep, the appellant made certain lewd
utterances. He
suggested that she should replace her mother and assume the
complainant’s mother’s duties towards him.
She brushed
this away as appellant’s drunken stupor.
5.
After a while, the appellant locked the
house and removed the keys. She fell asleep on the floor whilst
the appellant went
on drinking.
6.
The next thing she realized was the
appellant, who was now woken up, busy wiping her using a pillowcase.
She realized she
was bleeding, and the appellant was wiping blood off
her vagina. She felt pain in her private parts (vagina). She
got shocked;
she moved away and realised that her clothing –
her panty and dress – were no longer in their normal position.
The
appellant asked her to show him her thighs. She refused and
vowed to relate the incident to her mother. The appellant threatened
to kill her if she ever did so.
7.
The appellant exited the house with a
pillowcase and burnt it outside the house. She managed to exit the
house and ran straight
to her home, during the night, and told her
mother what had transpired.
8.
She was subjected to lengthy and grueling
cross-examination. Several propositions were put to her in an effort
to discredit her
account:
(a)
It was put to her that the appellant was
not with a friend (Dan) on the day in question, as the complainant
had testified. It was
suggested that Dan would be called to testify
and refute her allegations.
(b)
it was suggested that the complainant
arrived at the appellant’s place at night, around 20h30 to
21h00, because that the time
when the appellant had taken chronic
medication - which he normally takes around the identified time;
(c)
much was made of the fact that the
complainant had slept over at the appellant’s house on more
than four or five occasions
before, without her mother or her
mother’s permission. In this regard it was suggested that
on one occasion, she had
brought a friend. Her mother
questioned her for sleeping over at the appellant’s place.
On another occasion (the
fourth occasion) when the complainant came
to ‘sleep over,’ the appellant called the complainant’s
mother to
report the complainant’s persistence in “
sleeping
over”
. The complainant
disputed this;
(d)
it was further suggested that on the date
in question (11 February 2018 at around 9pm) when the complainant
arrived at the appellant’s
house, the appellant offered her
food, left her to eat, as the appellant went out to buy cigarettes at
the nearby tuck shop.
On his return, the appellant found the
complainant asleep, having made herself a makeshift bed on the floor
and slept on it. This
conduct, it was put to her, got the appellant
fed up with her continued disobedience, and caused the appellant to
wake her up and
ordered her to leave. The complainant disputed
this.
(e)
An omission in her written statement to the
police was pointed out: namely, that she stated that the appellant
was speaking to her
like a drunk person. She explained that the
omission had occurred because she was confused at the time she laid
the complaint;
(f)
regarding the burning of the pillowcase, it
was pointed out that she did not mention this in her written
statement. It was
also pointed out that in her written
statement she had not mentioned that the appellant had locked her
inside the house at the
time when he was allegedly burning the
pillowcase. Again, she explained that the omission was due to
her state of shock and
confusion at the time;
(g)
it was put to her that there was no
pillow-case forming part of the makeshift bed. The complainant
insisted that there was
always a pillow-case when she came and slept
at the house.
9.
The complainant’s mother was called
to testify. She confirmed, by and large, the complainant’s
version regarding the
report of rape to her that night as well as the
historical background of their relationship with appellant.
10.
For his part, the appellant testified in
his own defence. According to him, the complainant came to his house
at about 9pm; he was
sure of the time because that is the time he
normally takes chronic medication. He went to buy cigarette,
shortly after her
arrival; offered her food (which he had prepared);
got inside his bedroom to get some money to buy cigarette; and left
to the nearby
shop. He found the shop closed; and went to the
nearby wagon to buy loose cigarettes. When he came back, the
complainant
was asleep on the makeshift bed on the floor made of
straw mat, bedspread, and a blanket.
11.
He woke her up and instructed her to leave
the house because her mother had told her before not to ever sleep at
the appellant’s
place. The complainant woke up,
apparently upset and left the house. As she exited, she slammed the
door behind her. According
to appellant, he tried to follow her
– wanting to ask her why she slammed the door – but he
did not catch up with her.
As a result, he came back to the
house and slept.
12.
Later that very night, the complainant (now
accompanied by her mother) returned and confronted the appellant,
accusing him of raping
the complainant. He said he told the
complaint’s mother that he had only chased her away because she
had breached the agreement
reached between them - as a result of
previous sleep over: namely, that she would never sleep at the
appellant’s house
ever without her mother’s permission.
After that confrontation, both the complainant and her mother slept
at his (the appellant’s)
house until morning.
13.
In the morning, he advised them to go to
the police if they were so minded and report the matter and bring
back any results.
In that context, the results he was referring
to were the DNA or forensic test results. He explained that he
gave this advice
because he knew that he had done nothing wrong.
Findings of the trial court
14.
In its judgment, the Trial Court correctly
identified the sole issue which arose for determination: namely,
whether it was the appellant
(or, I interpose, some other person) who
raped the complainant. In answering this question, the trial court
recognized that the
complainant was a single witness and a child at
the time of the rape. For this reason, it reminded itself of
the cautionary
rules which generally apply to such witnesses and
their evidence.
15.
In the end, the trial court accepted the
complainant’s evidence as satisfactory in all material
respects. In this regard,
the Trial Court noted the detailed
nature of the complainant’s account right from the time when
she left her home; what transpired
between her and the appellant
whilst at the appellant’s house; up to the time when she made a
rape report to her mother later
that night.
16.
The Trial Court rejected the appellant’s
version – that the complainant had fabricated the rape –
as not reasonably
possibly true. In this regard it placed great
store on the fact that the appellant was a father figure to the
complainant.
She, her mother and the appellant were, by all
accounts, a “
happy family”
.
She had previously visited the appellant at his house, without her
mother and/or without her permission.
The parties’ contentions on
conviction
17.
Before us, the appellant argued that the
Trial Court erred in finding him guilty of rape. He contends
that the Trial Court
failed to properly analyse and evaluate the
complainant’s evidence. As such, the appellant contends
that the Trial
Court failed to apply the cautionary rules applicable
to complainant’s evidence as a single witness in a rape
charge.
For this argument, the appellant relies on four (4)
misdirection as the basis for his appeal.
18.
Firstly,
the
appellant argued that the complainant’s evidence was marred by
a vitiating omission: i.e. the complainant’s omission
to point
out that which she had reported to the police in a written statement
– that the appellant spoke to her at the house
like a drunk
person.
19.
Secondly
another
discrepancy in her testimony and the written statement: that,
according to the written statement, she arrived at the appellant’s
house around 20h00 (not 18h00 as testified by her during the trial).
20.
Thirdly
the
discrepancy between the complainant’s mother’s evidence
and the complainant regarding how many times the complainant
had
slept in the appellant’s house without her mother’s
presence and/or permission: it was pointed out that the mother
had
testified that she had slept at the appellant’s house only once
before, whereas the complainant stated that she had never
slept there
without her mother at all.
21.
Fourthly
the
forensic testing of swabs collected from the complainant and the
appellant’s DNA were negative, i.e. they did not connect
the
appellant with the complainant’s rape.
The test and proper approach to
evidence in a criminal trial
22.
The test in criminal cases is well known.
It was lucidly set out in
S v Van
Aswegen
2001 (2) SACR 97
(SCA) at para
8
,
where
the following was stated:
“
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 reasonably possible
that he might be innocent. The process of reasoning
which is
appropriate to the application of that 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 of
it may simply be ignored.”
23.
The proper approach to the evaluation of
evidence was also given by the SCA in
S
v Chabalala
2003 (1) SACR 134
(SCA) at
para 15 as follows:
“
To weigh up
all the elements which point towards the guilty of the accused
against all those which are indicative of his innocence,
taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on both sides and, having done so,
to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accused’s
guilt. The
result may prove that one scrap of evidence or one defect in the case
for either party ... was decisive but ... a Trial
Court (and Counsel)
should avoid the temptation to latch onto one (apparently) obvious
aspect without assessing it in the context
of the full picture
presented in evidence. Once that approach is applied to the evidence
in the present matter the solution becomes
clear.”
24.
Pertinent to the evidence of a single
witness and the role of the oft quoted cautionary rule applicable to
it, the SCA, more recently
stated in
Maila
v S
[2023] ZASCA 3
(23 January 2023) at
para [17] and [18]:
“
[17]
The evidence in this case was based on the evidence of a single
witness, the complainant. Apart from being a single
witness to the
act of rape, the complainant was a girl child, aged 9 years at the
time of the incident. For many years, the evidence
of a child
witness, particularly as a single witness, was treated with caution.
This was because cases prior to the advent of the
Constitution (which
provides in s 9 for equality of all before the law) stated inter
alia that a child witness could
be manipulated to falsely
implicate a particular person as the perpetrator (thereby
substituting the accused person for the real
perpetrator). To ensure
that the evidence of a child witness can be relied upon as provided
in s 208 of the CPA,
[3]
this
Court stated in
Woji
v Santam Insurance Co Ltd
,
[4]
that
a court must be satisfied that their evidence is
trustworthy
.
It noted factors which courts must take into account to come to the
conclusion that the evidence is trustworthy, without creating
a
closed list. In this regard, the court held:
‘
Trustworthiness .
. . depends on factors such as the child’s
power of
observation
, his
power of recollection
, and his
power
of narration
on the specific matter to be testified. . . . His
capacity of observation
will depend on whether he appears
“
intelligent
enough to observe”. Whether he has
the capacity of recollection will depend again on whether
he has
sufficient years of discretion
“to remember
what occurs” while the capacity of narration or
communication raises the question whether
the child has the
“
capacity to understand the questions put, and to frame and
express intelligent answers
.”’ (Emphasis added.)
[18]
This Court has, since
Woji
,
cautioned against what is now commonly known as the double cautionary
rule.
[5]
It
has stated that the double cautionary rule should not be used to
disadvantage a child witness on that basis alone. The
evidence of a
child witness must be considered as a whole, taking into account all
the evidence. This means that, at the end of
the case, the single
child witness’s evidence, tested through (in most cases,
rigorous) cross-examination, should be ‘trustworthy’.
This is dependent on whether the child witness could narrate their
story and communicate appropriately, could answer questions
posed and
then frame and express intelligent answers. Furthermore,
the
child witness’s evidence must not have changed dramatically
,
the essence of their allegations should still stand. Once this is the
case, a court is bound to accept the evidence as satisfactory
in all
respects; having considered it against that of an accused person.
‘Satisfactory
in all respects’ should not mean the evidence line-by-line.
But, in the overall scheme of things, accepting
the discrepancies
that may have crept in, the evidence can be relied upon to decide
upon the guilt of an accused person.
What
this Court
in S
v Hadebe
[6]
calls
the necessity to step back a pace (after a detailed and critical
examination of each and every component in the body
of evidence),
lest one may fail to see the wood for the trees.
[7]
This
position has been crystallised by the Legislature in
s 60
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, which provides 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.’”
Discussion
25.
I agree with the Trial Court’s
characterisation of the appellant’s defence. Essentially,
the appellant contrived
his claims that the complainant had
fabricated her allegations that he had raped her.
26.
The Trial Court had no hesitation to reject
that defense as far-fetched, given the relationship between the
complainant, her mother
and the appellant.
27.
In the view I take of the matter, the
discrepancies and contradictions highlighted by the appellant in
argument did not detract
from the veracity of the complainant’s
evidence that the appellant raped her on the night in question (see
S v Mkhohle
1990 (1) SACR 95
(A) and
S v Oosthuizen
1982 (3) SA 571(T)).
In other words,
no
t every contradiction or discrepancy in a witness’s
evidence leads to the rejection of evidence. I say this bearing in
mind
that when evaluating evidence, it is imperative to evaluate all
the evidence, and not to be selective in determining what evidence
to
consider.
28.
As Nugent J (as he then was) in S v Van der
Meyden
1999 (1) SACR 447
(W) at 450, stated
“
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 of it may simply be ignored”.
29.
In In S v Chabalala
2003 (1) SACR 134
(SCA)
para 15, the Supreme Court of Appeal added;
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all
those
which are indicative of his innocence, taking proper account of
inherent strengths and weaknesses, probabilities and improbabilities
on both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused’s guilt. The result may prove that one
scrap of evidence or one defect in the case for either party
(such as
the failure to call a material witness concerning an identity parade)
was decisive but can only be an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture presented in evidence. Once that approach is
applied to the evidence in the present matter the
solution becomes
clear.”
30.
In this case, the complainant’s
evidence was, in my judgment, ‘satisfactory in all material
respects’ notwithstanding
the alleged discrepancies. To
borrow from the definitive findings by the SCA, in
Maila
v S
(
supra)
at para 18, quoted above:
‘
Satisfactory
in all respects’ should not mean the evidence line-by-line.
But, in the overall scheme of things, accepting the
discrepancies
that may have crept in, the evidence can be relied upon to decide
upon the guilt of an accused person’.
31.
The omission in evidence to state that the
appellant was drunk is neither here nor there. It is an
immaterial detail that
does not detract from the trustworthiness of
the complainant’s account regarding the core issue.
Similarly, the time
difference highlighted in argument is
immaterial. Both the appellant and the complainant made common
cause that the complainant
arrived at the appellant’s house
during the night of 11 February 2018. It matters not whether it
was at 6pm or 8pm.
The fact is, as the complainant testified,
it was already dark.
32.
Far from discrediting the complainant’s
evidence, the number of times when the complainant visited the
appellant’s house
prior to the 11
th
of February 2018, with or without her mother, underscored what the
Trial Court referred to as “
happy
family”
atmosphere which existed
between the complainant, her mother and the appellant.
33.
There is much to be said about the
appellant’s reliance upon the fact that the forensic testing
proved negative. The
advice for the complainant to undergo a
medical/forensic testing curiously emanated from the appellant (on
his own version).
Why the appellant gave this advice in the
face of the accusations that he had raped the complainant is
bewildering. Nevertheless,
the doctor explained that the likely
reason for the negative result could be either that the perpetrator
(who, on the complainant’s
version, is the appellant) may not
have ejaculated, alternatively, had used a condom. This was the
doctor’s speculation.
However, there is no need to speculate in
respect of the issue which the doctor had been called upon to
address, namely whether
the patient (being the complainant) had been
raped. The medical evidence placed it beyond dispute that the
appellant was
raped by forceful penetration. That finding alone
suffices to establish the complainant’s rape.
34.
The determination of who had raped the
complainant depended, in my view, upon the assessment of the
probabilities and improbabilities
of the versions given by both the
complainant and the appellant. Who else could raped the complainant,
that is, other than the
appellant? Between the time of the
complainant’s arrival at the appellant’s house and her
prompt report of the rape
incident to her mother later that very
night, it is improbable that anyone could have perpetrated the rape.
This is even more so,
given the appellant’s own apparent claim
that Dan was not at the appellant’s premises when the
complainant arrived
on the fateful evening. Could it have
occurred earlier (before her arrival at the appellant’s house)?
Such a conclusion,
in my judgment, is inherently improbable. It would
entail a finding that the appellant went out of her way to protect
the real
culprit and, instead, resorted to implicate someone she
regarded as her ‘father figure’. Why? For what reason? To
achieve
what? To wreak havoc in her other home and drive a
wedge between the appellant and her mother? I can think of no
reason,
nor could I discern a sustainable one from the appellant’s
version.
35.
If indeed she was so fond of or even
persistent on visiting the appellant’s house without her mother
or mother’s permission
(as the appellant sought to argue), why
would she blow that away by suddenly creating enmity between her and
the appellant?
36.
The weight of evidence, I consider, tilts
strongly in favour of the complainant’s version rather
supporting any of the
appellant’s bare denials.
37.
Of course, if the forensic/DNA tests
results were found to be positive, the State would arguably have
established the guilt of the
appellant ‘beyond any shadow of
doubt’. But the doctor as the doctor said there could be a
number of reasons why the
DNA evidence was inconclusive. This does
not, of course, discount the rest of the evidence, which points
strongly to the accused’s
guilt. Here, it behooves me to point
out that the State does not bear the onus to prove an accused’s
guilt beyond a
shadow of doubt.
38.
In
Venter v S
(945/2018)
[2020] ZASCA 14
;
2021 (1) SACR 454
(SCA) (24 March 2020),
Mocumie JA, in a powerful concurrence (at para [209]), reminded us of
what was said by Denning J regarding
the quantum and cogency of
evidence that is required to establish the guilt of an accused
person. In
M
iller
v Minister of
Pensions
[1947]
2 All ER 372
(King’s
Bench) Denning J (at 373H) said:
“
[The
evidence]
need
not reach certainty, but it must carry a high degree of probability.
Proof
beyond
reasonable doubt does not mean proof beyond the shadow of a doubt
.
The law would fail to protect the community if it admitted fanciful
possibilities to deflect the cause of justice.
If
the evidence is so strong against a man as to leave only a remote
possibility in his favour, which can be dismissed with the
sentence
“of course it is possible, but not in the least probable”,
the case is proved beyond reasonable doubt, but
nothing short of that
will suffice.”’
(My Emphasis)
39.
On this passage, the SCA (per Mocumie JA)
underscored that as far back as 67 years ago, the Appellate Division
had already accepted
that our approach on the cogency of evidence
required to prove the guilt of an accused person in criminal cases
‘corresponds
with that of the English Courts’ (See
R
v Mlambo
1957 (4) SA 727
(A) at 738
A-C). The position remains the same to date (See
S
an Another v S
[2014] ZASCA 215).
Considering this recognition, Mocumie JA concludes (in
Venter
v S
,
supra
at para [209]):
“
It
is trite that the State must prove its case beyond reasonable doubt.
But it is not expected to close all avenues;
particularly
where the defence is a bare denial. The ultimate responsibility lies
with the trial court and courts of appeal to discern
whether the
State has discharged this responsibility with what it has before it
and dependent on the truthfulness and reliability
of the witnesses in
assisting it to do so.”
40.
The majority (per Mabindla-Boqwana AJA as
she then was), with whom Mocumie JA concurred, put it thus, at para
[5] of Venter v S
(supra):
“
As
was stated by Malan JA in
R
v Mlamb
o
‘
there
is no obligation upon the [State] to close every avenue of escape
which may be said to be open to an accused. It is sufficient
for the
[State] to produce evidence by means of which such a high degree of
probability is raised that the ordinary reasonable
man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the
crime charged. He
must, in other words, be morally certain of the guilt of the
accused’.
41.
The evidence established, as the appellant
himself was constrained to concede, that the complainant was indeed
raped. That
should be the end of the matter. As the Trial
Court correctly pointed out, the question which arose on the evidence
was whether
the complainant’s account that the appellant raped
her, viewed against the appellant’s defense that he was being
framed
as a perpetrator, was satisfactory in all material respects.
42.
The detailed nature of her testimony
attests to her vivid recollection of the events as they unfolded
inside the appellant’s
house. She narrated the incident
meticulously.
43.
She could observe the inebriated state in
which the appellant was in at the time. As already observed, she
withstood intense cross-examination
and stuck to her version
throughout. I am satisfied that the trial court was correct in
accepting the complainant’s evidence
as both trustworthy and
satisfactory.
44.
In that vein I must say that the
consistency of the State’s witnesses cannot without more be the
end of the matter. I remain
enjoined to assess the accused’s
version and to determine whether it is so unreasonable as to warrant
rejection. In
S v Selebi
,
[2010] ZAGPJHC 53, Joffe J after examining several authorities
reiterated the following principles;
“
Even if the
State case stood as a completely acceptable and unshaken edifice, a
court must investigate the defence’s case
with a view to
discerning whether it is
demonstrably
false or inherently so improbable as to be rejected as false
.
The test is, and remains, whether there is a reasonable possibility
that the appellant's evidence may be true. In applying that
test one
must also remember that the court does not have to believe her story;
still less has it to believe it in all its details.
It is sufficient
if it thinks there is a reasonable possibility that it may be
substantially true (R v M
1946 AD 1023
at 1027)." 189 266.
(My Emphasis)
45.
I have already shown that the appellant’s
version is highly improbable, so much so that it falls to be
rejected. The appellant
was confronted by positive evidence to the
effect that the appellant was raped by him; his version amounted to
bare denials, coupled
with a fixation on insignificant
inconsistencies in the complainant’s version. His evidence did
nothing material to cast
reasonable doubt on the complainant’s
version.
46.
I am accordingly satisfied that the
appellant’s guilt was established beyond reasonable doubt. The
Trial Court was therefore
correct in rejecting the appellant’s
version as false and not reasonably possibly true.
47.
For these reasons, I would dismiss the
appeal against conviction.
Appeal against sentence
48.
The appeal is against the sentence too. The
law is very clear that the Appeal Court’s ability to interfere
with the sentence
imposed is very circumscribed. In
S
v Hewitt
[2016] ZASCA 100
;
2017 (1)
SACR 309
(SCA) at paragraph 8 Maya DP (as she then was) held that:
“
It is a
trite principle of our law that the imposition of sentence is the
prerogative of the trial court. An appellate court may
not interfere
with this discretion merely because it would have imposed a different
sentence. In other words, it is not enough
to conclude that its own
choice of penalty would have been an appropriate penalty. Something
more is required; it must conclude
that its own choice of penalty is
the appropriate penalty and that the penalty chosen by the trial
court is not. Thus, the appellate
court must be satisfied that the
trial court committed a misdirection of such a nature, degree and
seriousness that shows that
it did not exercise its sentencing
discretion at all or exercised it improperly or unreasonably when
imposing it. So, interference
is justified only where there exists a
“striking” or “startling” or “disturbing”
disparity
between the trial court's sentence and that which the
appellate court would have imposed. And in such instances the trial
court's
discretion is regarded as having been unreasonably exercised”
(footnotes omitted).”
49.
The established considerations when
sentencing a convicted person are as set out in
S
v Rabie
1975 (4) SA 855
(A) at
paragraph 25: that the sentence must fit the criminal as well as the
crime, be fair to society and blended with a measure
of mercy
according to the circumstances. Sentencing the accused should be
directed at addressing the judicial purposes of punishment
which are
deterrence; prevention; retribution and rehabilitation (
Rabie
supra). This appears to be precisely the approach adopted by
the Court
a quo
in considering the crime and determining the sentence imposed on the
appellant.
50.
The complaint that there was overemphasis
of the seriousness of the crime and no regard for the personal
circumstances of the appellant
is not borne out by the cursory
reading of the trial court’s judgment. It is without merit.
51.
The sentence, in my view, fits the gravity
of the offence. Rape is one of the most serious and egregious of
crimes (see
Director of Public
Prosecutions v Thabethe
2011 (2) SACR
567
(SCA) at 577G). It will also be recalled that in recent times,
the courts have recognised that, the impact of offence on the victim
is a relevant consideration in the context of sentencing (see
S
v Matyityi
2011 (SACR) 40 (SCA). The
appellant committed the crime in respect of a minor; this is a scar
that the complainant will carry for
the rest of her life. The
appellant inflicted this offence on the complainant for his own
selfish gratification.
52.
The appellant has not shown that the
sentence is strikingly disproportionate to the crime as to induce a
sense of shock in the society.
53.
The appeal against sentence too falls to be
dismissed.
54.
In the result, I would make the following
Order:
‘
The appeal
is dismissed.’
MADONSELA A J
I agree and it is so ordered.
SIBISI AJ
APPEARANCES:
For
the appellant:
Adv P
Mkhumbuzi (LegaL Aid, Durban)
For
the State:
Adv S
Naidu (Director of Public Prosecutions, Durban)
Date
of Hearing:
03
July 2024
Date
of Judgment:
3
July 2024