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2024
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[2024] ZALMPPHC 126
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Siliga v S (A32/2022) [2024] ZALMPPHC 126 (13 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
LOCAL DIVISION, THOHOYANDOU
CASE NO: A32/2022
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
DATE: 12/8/2024
SIGNATURE:
In the matter between:
MURENDENI
SILIGA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
TSHIDADA
J
[1]
Appellant exercised his right to automatic appeal by invoking the
provision of Section
309 (10)(a)(b), and challenged his conviction on
one count of rape wherein he was alleged to have contravened the
provisions of
Section 3 read with Section 1, 50, 55, 56(1), 56A, 57,
58, 59, 60 and 61 of the Criminal Procedure Act
[1]
,
also read with Section 51(1) and Schedule 2 of the Criminal Law
Amendment Act
[2]
. Consequent to
the aforesaid conviction, he was sentenced to life imprisonment by
the Sibasa Regional Court.
[2]
State alleged that on or about the 6 September 2017 at or near
Muledani in the Regional
Division of Limpopo, the appellant did
unlawfully and intentionally commit an act of sexual penetration with
the complainant one,
R[...] R[...], an 18-year-old female at the
time, by inserting his penis in her vagina and had sexual intercourse
with her without
her consent.
[3]
Appellant was represented by Mr M.B Maake from Legal Aid Thohoyandou
at both trial
proceedings and on appeal.
[4]
Appellant contests both his conviction and sentence on the following
grounds.
[5]
Ad Conviction
(a)
That the trial court erred in finding that the guilt of the appellant
was proven beyond
a reasonable doubt.
(b)
That the court erred when it rejected the appellant’s version
that he was threatened,
instructed and forced to have sexual
intercourse with the complainant by his former co-accused.
(c)
Court erred in rejecting his version that the reason he provided
accommodation where
the complainant was sexually violated was
influenced by the fear he had of his former co-accused.
(d)
Court erred in dismissing the fact that the reason why the
complainant could or did not
hear when he was instructed to have
sexual intercourse with her was due to the loud noise that came from
the television which was
on at the time.
(e)
Trial court erred by not considering that the State failed to prove
that the appellant acted
in common purpose with the co-accused when
the complainant was sexually violated because he was not aware at the
time that the
complainant was going to be raped at any give point.
(f)
Lastly, that the court erred in not finding that the appellant’s
version was
reasonable possibly true that his former co-accused
forced him to rape the complainant and that he complied with the
instruction
to rape the complainant out of fear.
Ad Sentence
[6]
That the trial court erred in failing to consider the appellant’s
personal and
mitigating factors before he was sentenced to life, in
that he was only 18 years old at the time of the commission of the
offence.
As a result, there are good and reasonable prospects for him
to be rehabilitated. Lastly, that the imprisonment sentence imposed
on him was harsh and disproportionate to induce a sense of shock to
an offender of his calibre.
[7]
The correct approach to determine the guilt of an accused is set out
in
S
v Chabalala.
[3]
See also
S
v Mofokeng
.
[4]
[8]
In the contrary Zulman JA as he then was held in
S
v V
[5]
,
thus:
“
it
is trite that there is no obligation upon an accused person, where
the State bears the onus to convince the court. If his version
is
reasonably possibly true, he is entitled to his acquitted although
his explanation is improbable. A court is not entitled to
convict
unless it is satisfied not only that the explanation is improbable
but that beyond reasonable doubt it is false.”
SUMMARY OF EVIDENCE
[9]
The State adduced oral evidence of the complainant, her mother I[...]
R[...] and complainant’s
then boyfriend Takalani Tshovhote. It
is their evidence that is relevant and significant for the purposes
of this appeal, not limited
to the evidence of the applicant and
partly that of his then co-accused.
[10]
Complainant testified during trial through an intermediary that on
the day in question, she was
walking in the company of her boyfriend
to riverside section to attend extra study lessons when both of them
were accosted by the
appellants’ co-accused who immediately
threatened to assault and/or kill them before ordering her boyfriend
to go away and
leave him with the complainant.
[11]
Former co-accused then dragged the complainant into the bushes
ordered her to take off her clothes
and forced her to lie on the
ground on her back and then had sexual intercourse with her without
her approval and consent, worse
without using protection whilst she
was busy crying helplessly without any rescue whatsoever.
[12]
Soon thereafter the co-accused got up and dressed up. He then
forcefully took the complainant’s
phone and dialed the
appellant to inform him that he was with a person, clearly referring
to the complainant. It is common cause
that the appellant shortly
thereafter arrived at the scene with an unknown young man and then
started talking to the co-accused.
[13]
Complainant testified that the appellant instructed her to follow him
with the other two males
following her from behind up until she was
escorted into appellant’s room at his residence. Co-accused
again threatened and
raped the complainant during the appellant and
the young boy’s temporary absence whilst they had gone out to
buy cigarette.
Upon the two’s return they started smoking and
conversing without complainant hearing their conversation. Appellant
then
walked the young man away. When he returned, he found the
co-accused still on top busy raping the complainant all over again.
[14]
She testified that appellant immediately told co-accused that he also
wanted to have sexual intercourse
with her.
[15]
Appellant is said to have undressed himself and ordered the
complainant to lie on the bed again,
got on top of her and started
having sexual intercourse with her twice without her consent whilst
she was crying inconsolably,
yet he ordered her to keep quiet. She
testified that no one forced the appellant to rape her. He according
to her voluntary indicated
or informed the co-accused that he
as well wanted to have sexual intercourse with the complainant.
[16]
Complainant further testified that after the two had released her
early hours of the following
morning, she immediately telephoned her
mother who had already left for work to return back home. She also
called her boyfriend
and reported to both of them everything that
transpired and befallen her at the hands of the appellant and his
friend.
[17]
Complainant denied under cross-examination that the appellant was
before raping her threatened
with a knife by the co-accused, mainly
because according to her there was no knife at the scene, neither was
she ever threatened
with any before she was sexually violated by the
two. In her version there was no force or threats she observed being
exerted on
the appellant to rape her by anyone.
[18]
The complainant’s mother corroborated her evidence to those
extent it related to her, significantly
reiterated the report
narrated to her by the complainant. She indicated that she made
countless phone calls in vain trying to trace
the complainant on the
evening of her ordeal.
[19]
Complainant’s boyfriend also confirmed how he and the
complainant were first accosted by
appellant’s co-accused, how
he was chased away before the complainant was forcefully dragged into
the bushes away from him
until the following day when he received a
phone call from the complainant informing him what transpired to her
after they were
forcefully separated.
[20]
Appellant confirmed complainant’s evidence from the moment he
joined his co-accused at
the bushes until their arrival at his shack,
save for denying that he voluntarily and freely engaged in sexual
intercourse with
her but for he was coerced, threatened and forced at
knife point by his former co-accused to have sexual intercourse with
the complainant
without her consent. He further denied acting in
furtherance of common purpose with co-accused when complainant was
sexually violated
by the two of them.
[21]
In the main the appellant did not deny having sexual intercourse with
the complainant without
her consent. He however contends that he did
so under duress, an aspect which was vehemently denied by the
complainant and his
co-accused.
[22]
Co-accused testified that there is no way he would have allowed the
appellant or granted him
permission to have sexual intercourse with
the complainant, because his defense was that the complainant was in
fact his girlfriend
at that time.
[23]
This court is therefore enjoined to determine whether on the totality
of evidence which was before
the trial court, is there a possibility
or evidence that indicates and prove that the appellant was indeed
compelled to sexually
violate the complainant against her will.
[24]
Evidently, complainant was a single witness to testify on the actual
incident of her sexual nightmare
inside the appellant’s shack.
[25]
Section 208 of the Criminal Procedure Act
[6]
provides that an accused person may be convicted of any offence on
the single evidence of any competent witness.
[26]
In
S
v Webber
[7]
the court held that:
“
A
conviction is possible on the evidence of a single witness. Such
witness must be credible, and the evidence should be approached
with
caution. Due consideration should be given to factors which affirms
and factors which detract from the credibility of the
witness. The
probative value of the evidence of a single witness should also not
be equated with that of several witnesses.”
[27]
The appellate court emphasized the significant considerations of the
credibility of a single
witness in
S
v Saul and Others
.
[8]
[28]
The totality of evidence demonstrate that violence and threat was
used to capture the complainant
from the moment she was removed from
the company and comfort of her boyfriend and during her gang rape by
the appellant in the
company of his friend. Their conduct was
completely contrary to any form of consensual sexual intercourse they
allegedly engaged
on with the complainant.
[29]
Least said about the appellant’s alleged undue threats and
duress arguably instilled on
him before raping the complainant.
Evidence denotes that no thread of evidence positively supports his
version. Worse on his defense
is the fact that his own friend denied
ever forcing, threatening or allowing him to have sexual intercourse
with the complainant.
[30]
When regard is held to the evidence
a quo
, the only possible
inference that could be drawn consistent with all the proven facts,
is that the appellant freely and voluntarily
indicated his intention
to have sexual intercourse with the complainant at least on two
occasion, unfortunately without her prior
consent.
[31]
In my view, all the state witnesses were impressive, credible and
reliable to the extent that
they corroborated the complainant’s
version of events in all material respects. Their evidence was
satisfactory and was correctly
accepted by the court
a quo
as
reasonably possibly true.
[32]
In contrast, the appellant’s version as from the moment he was
invited by his friend to
come join him and further providing
accommodation where the complainant was to be sexually harassed the
entire night and his participation
in the sexually orgy is clearly
indicative of someone who freely co-operated and participated in the
complainant sacrifice mercilessly
so until they decided to free her
the following morning.
[33]
His version in my view was correctly rejected as improbable for it
remains not to be reasonably
possibly true.
[34]
The State successfully adduced evidence that proved the appellant’s
guilt beyond reasonable
doubt that he unlawfully, intentionally,
freely and voluntarily committed an act of sexual intercourse with
the complainant without
her consent.
[35]
As a result, this court finds no lawful basis to interfere with the
conviction of the appellant
by the trial court due no errors or
misdirection on either the facts or law that this court was able to
find and establish from
the trial court proceedings.
[36]
This court neither found any misdirection or errors committed by the
trial court when it imposed
a prescribed minimum sentence in terms of
the Act as envisaged on Section 51(1) of Schedule 2 of the Criminal
Law Amendment Act
supra
.
[37]
Our courts have consistently characterized the crime of rape as a
repulsive crime, which is a
humiliating, degrading and brutal
invasion of personal privacy.
[38]
The complainant was 18 years old when she was gang raped by the
appellant and the former co-accused
who were both teenagers aged 18
and 19 respectively.
[39]
The complainant will in no doubt live with the memory of a painful,
brutal and undignified experience
of the violation of her privacy by
the two gentlemen who are also members of the community she hails
from.
[40]
I can only reiterate what the appellate court stated in
DPP
Kwazulu Natal v Ngcobo and Others
[9]
,
that courts are expected to dispense justice. This kind of
lawlessness has regrettably become prevalent in our communities.
Courts
are therefore on daily basis expected to send out clear
messages that such behavior shall be met will full force and effect
of
the law. The Legislature is concerned with the outrage so should
we be.
[41]
I agree with the trial court that the aggravating circumstances in
casu
far
outweigh the personal and mitigating factors presented by the
appellant to the court to justify imposition of a lesser sentence
on
him, instead of the imposed sentence of life imprisonment. See in
this regard
S
v Malgas
.
[10]
[42]
Equally, appellant failed to make out a case to compel this court to
upset the sentence already
imposed on him. The sentencing discretion
vested with the trial court was in my view judicially exercised in
the circumstances.
[43]
Consequently, the following order is granted.
[43.1] The appeal
on both conviction and sentence is hereby dismissed.
T.C. TSHIDADA
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
THOHOYANDOU
I, agree
S. NEMUTANDANI
ACTING JUDGE OF THE
HIGH COURT
LIMPOPO
DIVISION, THOHOYANDOU
Appearances:
For the
Appellant:
Mr M B Maake
Legal
Aid SA (Thohoyandou)
For the
Respondent:
Adv Nekhambele
NDPP
(Thohoyandou)
Date of
hearing:
25 February 2024
Judgement
delivered on:
13 August 2024
[1]
51 of 1977
[2]
105 of 1997
[3]
2003 (1) SACR 134
(SAC) AT 139 i-j to 140a
[4]
2015 ZA FSHC 13 (5 February 2015)
[5]
2000 (1) SACR 453 (SCA)
[6]
51 at 1977
[7]
1971 (3) SA 574
(A)
[8]
1991 (3) SA 172 (A)
[9]
2009 (4) ALL SA 295
SCA at Para 26
[10]
[2001] 3 ALL SA 220
(A)