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[2024] ZALMPPHC 134
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Cawu v S (A29/2018) [2024] ZALMPPHC 134 (17 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO:
A29/2018
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED: YES/NO
SIGNATURE:
Naude-Odendaal J
DATE:
17/09/2024
In the matter between:
JABU CHRIS
CAWU
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
[1]
The Appellant was charged with two counts of
Attempted Murder and one count of Rape in contravention of the
provisions of Section
3 of Act 32 of 2007, read with the provisions
of Section 51(1) of Act 105 of 1997.
[2]
The Appellant was legally represented throughout
the proceedings. The Appellant pleaded not guilty to all three counts
and did not
give a plea explanation. The Appellant was found guilty
as charged on Count 1 and Count 2. He was sentenced on 25 January
2018
to life imprisonment in respect of the count of rape and six
years' imprisonment on the count for Attempted Murder. Both sentences
were ordered to run concurrently. The Appellant appeals against both
the conviction and sentence in terms of his automatic right
to
appeal.
GROUNDS OF APPEAL:
[3]
The grounds of appeal are in summary as follows:-
3.1
In convicting the Appellant, the court
a
quo
erred in making the following
findings:
3.1.1
that the Respondent proved its case beyond
reasonable doubt;
3.1.2
that the Complainant was credible and honest, as
the court a quo ruled that she exaggerated about her injuries on her
head, finger
and hands;
3.1.3
the court misdirected itself when it found that
the Complainant was credible in that she informed the court a quo
that she ended
the relationship and during cross-examination, she
conceded that she did not terminate the relationship, however she was
in the
company of other men in order for the Appellant to see that
she was no longer interested in the relationship;
3.1.4
the court
a quo
erred in convicting the Appellant on a charge of
rape as the court
a quo
conceded that there was no conclusive prove that
there was vaginal penetration;
3.1.5
in accepting the evidence of the witnesses and
that they corroborated one another. The Appellant submits that there
were contradictions
between the witnesses which are material;
3.1.6
In rejecting the version of the Appellant as false
and that he did not make a good impression. The Appellant submits
that his version
was reasonably possibly true;
3.17
By finding the Appellant's version is improbable. The Appellant
submits that his version
is probable.
3.2
The Regional Magistrate erred in finding that the
sentence of Life Imprisonment and Six years' imprisonment is a
suitable sentence
in that:-
3.2.1
the sentence is harsh and disproportionate under
the circumstances of this case. It induces a sense of shock;
3.2.2
the Regional Magistrate over emphasized the
interest of society and failed to strike a balance of the triad
factors as per S v Rabie
1975 (4) SA 855
(A) at 862 G;
3.2.3
the Regional Magistrate over emphasized the crimes
and the impact on the Complainant;
3.2.4
the Regional Magistrate erred in finding that
there are no substantial and compelling circumstances. The Appellant
submits that
the following cumulatively, constitutes substantial and
compelling circumstances, namely:-
3.2.4.1
The Appellant is still of tender age. He was only
23 during the sentencing proceedings and therefore youthfulness
played a role.
3.2.4.2
The Appellant was still attending school during
his arrest and detention;
3.2.4.3
Life Imprisonment and Six Years' Imprisonment is
not proportionate to the offences committed;
3.2.4.4
The Appellant is still very young and has
prospects of rehabilitation.
THE LAW AD APPEAL
AGAINST CONVICTION:
[4]
It is an established principle that where an
appeal is lodged against a trial court's findings of fact the court
of appeal must
take into account that that court was in a more
favourable position than itself to form a judgment. Even when
inferences from proven
facts are in issue the court a
quo
may also be in a more favourable
position than the court of appeal, because it is better able to judge
what is probable or improbable
in the light of its observations of
witnesses who have appeared before it. Therefore if there are no
misdirections on the facts
a court of appeal assumes that the court
a
quo's
findings are correct and will
accept these findings, unless it is convinced that these are wrong.
See
R v Dhlumayo and Another
1948 (2) SA
677
(AD) at 705-6.
[5]
Therefore in order to interfere with the court a
quo's
judgment
it has to be established that there were misdirections of fact,
either where reasons on their face are unsatisfactory or
where the
record shows them to be such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15]
where
the SCA stated that it is only in exceptional cases that it would be
entitled to interfere with the trial court's evaluation
of oral
evidence.
[6]
It is acceptable in evaluating the evidence in
totality to consider the inherent probabilities and the following
dictum
by
Heher AJA,
as
he then was, in
S v Chabalala
2003 (1)
SACR 134
(SCA) at para [15]
is
apposite:
"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."
[7]
An accused's version cannot be rejected merely
because it is improbable. It can only be rejected on the basis of the
inherent probabilities
if it can be said to be so improbable that it
cannot reasonably possibly be true. See
S
v Shackell
2001 (2) SACR 185
(SCA) at para [30]
which
I quote:
"It is a trite
principle that in criminal proceedings the prosecution must prove its
case beyond reasonable doubt and that
a mere preponderance of
probabilities is not enough. Equally trite is the observation that,
in view of this standard of proof in
a criminal case, a court does
not have to be convinced that every detail of an accused's version is
true. If the accused's version
is reasonably possibly true in
substance the court must decide the matter on the acceptance of that
version. Of course it is permissible
to test the accused's version
against the inherent probabilities. But it cannot be rejected merely
because it is improbable; it
can only be rejected on the basis of
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly
be true."
See also
Olawale v The
State [201O]
1 All SA 451
(SCA) at para [13].
THE EVIDENCE:
[8]
The State's first witness, was the Complainant.
She testified that on the 11
th
of December 2016 she was in the company of her new
boyfriend, namely Timothy. The Appellant came to the house which they
were occupying,
and he knocked aggressively and called for her to
come outside. The grandmother of Timothy told the Complainant to go
outside.
She eventually opened the burglar door. The Appellant
dragged the Complainant to the street. She tried to run away from him
by
climbing a fence, but she failed and he caught her. The Appellant
proceeded to hit her with a panga which he produced from the bag
he
had on his back. She managed to disarm him from the panga, whereafter
he took out another panga from his backpack and hit her
further with
it. She sustained injuries on her head, as well as her hands when she
tried to block the panga from hitting her head.
[9]
After the Complainant had been injured, the
Appellant dragged her to his homestead and he assaulted her further
with fists and he
kicked her with booted feet. The mother of the
Appellant saw that the Complainant was injured and bleeding. She
enquired what transpired
and then blamed the Complainant for what the
Appellant has done to her. She gave the Complainant water to bath and
clean clothes
belonging to the Appellant's sibling to wear as her
clothes were covered in blood.
[10]
The Complainant slept at the homestead of the Appellant and the
following
day he accompanied her home. Her family took her to
hospital after they realized that she was badly injured.
[11]
The Complainant further testified that on the 12
th
of September 2015, she was with her boyfriend,
Thabo. They were walking in the street when the Appellant appeared.
He threatened
Thabo. Thabo ran away and left her in the company of
the Appellant. The Appellant dragged her to his home. She left her
shoes in
the street. Upon arrival at his home, he dragged her into
his room and locked her inside. He went outside to fetch a stick
which
he used to assault her. According to the Complainant, the
Appellant assaulted her on her hand, but the J88 shows that it was
also
her forearm. She was in pain from the assault. The Appellant
then demanded to have sexual intercourse with her. He took off his
pants and her panty and proceeded to penetrate her without her
consent. She testified that she couldn't refuse because she was
in a
lot of pain from the assault and was scared. After the Appellant
raped her, she fell asleep at his home. The following day
the
Appellant accompanied her to her home. Her family noticed that she
was injured, and she was taken to hospital where she was
admitted and
treated for a considerable time.
[12]
The second state witness was Thabang Alpheus
Morumudu (Thabo). He testified that he was in a love relationship
with the Complainant.
He testified that on the 12
th
of September 2015 he was with the Complainant
walking. He heard footsteps. When he looked back he saw the Appellant
who by then
had produced a knife. He testified that he ran away and
he saw the Appellant dragging the Complainant.
[13]
Under cross-examination, Thabo denied that he was
in a relationship with the Complainant at that time. He was adamant
that he saw
the knife even though the Complainant did not testify
about the Appellant being in possession of the said knife.
[14]
The third state witness was Elias Moleko. He is
the Complainant's uncle. He testified that on the 13
th
of September 2015 he saw that the Complainant was
injured and he took her to hospital where she was admitted. He
testified
that the Complainant made a report to him about the
incident and that the Appellant had assaulted her with a stick. She
did not
tell him that she was raped by the Appellant, but at the
hospital he heard her tell the police that the Appellant had raped
her.
[15]
The fourth state witness was Naniki Duba. She
testified that the Complainant was injured and she hired a motor
vehicle for her to
be taken to hospital. The State closed its case
and the Appellant was discharged on Count 3 in terms of
Section 174
of the
Criminal Procedure Act, 51 of 1977
.
AD DEFENCE CASE:
[16]
The Appellant testified that he knows the
Complainant and that they were in a love relationship to date of the
trial. He testified
that the Complainant had been with him after he
was released on bail. He denied that on the 12
th
of September 2015 he had sexual intercourse with
the complainant without her consent. He however conceded that he
assaulted her
with a stick which was in his room because he wanted to
know what she was doing with Thabo.
[17]
He further denied that he assaulted the
Complainant on 11 December 2016. He testified that he was with the
Complainant at a drinking
place. He denied that he went on to drag
the Complainant from the house while she was in the company of
Timothy. He denies further
that the chopped her with a panga and
testified that the Complainant injured herself when she tried to
leave through a window while
he was outside. According to him, the
injuries were caused by the windowpane. He confirmed that she was
given water to bath, and
that she was given clothes to change since
she was injured and her clothes were blood stained. He confirmed that
he accompanied
her home the following day.
FINDINGS BY THE
COURT
A QUO
AND APPLICATION OF THE LAW TO THE FACTS:
[18]
The court a
quo
found
that the contradictions as appeared in the State Witnesses' had no
bearing on the witnesses' evidence and are immaterial to
the facts in
issue. It was found that when one looks at the evidence as presented,
the Complainant's version is not that remote
from the Appellant's
version with regard to the places, dates of incidents, the injuries
sustained by the Complainant, that the
Complainant was with Thabo
Muremudi and that the Complainant had a love relationship with
Timothy. Further, that the Appellant's
parents had to get involved
and find out as to what happened to the Complainant after having
realised that she was injured. The
Appellant ordered the Complainant
to bath as she was bleeding from the head injury. There are only a
few differences, which mainly
relates as to how the two incidents had
occurred. It is not in dispute that the Complainant was with the
Appellant on the dates
of the respective incidents.
[19]
The court
a quo
found
that it is improbable in respect of the first incident, that the
Complainant would risk her life by getting out of the room
through
the window in the manner as described by the Appellant. The court
a
quo,
when looking at the probabilities
and improbabilities, found that the version of the Complainant is
more probable than that of the
Appellant. Although the court a
quo
found that the Complainant might have
exaggerated a little bit as to how she was hit with a panga, the fact
remains that she was
hit with a panga which caused the injuries on
her head, fingers and hands as she tried to protect herself.
[20]
In respect of Count 2, the court
a
quo
found that the Complainant's
version was consistent with the injuries as reflected on the J88 in
that she sustained a fracture of
the radial bone of her arm. In this
regard, the Appellant admitted having assaulted the Complainant with
a stick. However, when
it comes to the rape charge, the findings were
that the Complainant had already bathed, urinated, and changed
clothing at the time
when she was examined and the conclusions were
that no injuries seen seems to exclude vaginal penetration.
[21]
The court
a quo
went
on to find that there was inconclusive medical evidence on whether
there was any vaginal penetration. The court then went on
to assess
and evaluate the evidence in its totality. From the evidence it was
quite clear that the Complainant did not report to
her family members
that she was raped by the Appellant or that he engaged in an act of
sexual penetration with her. The second
state witness testified that
on the second day upon arrival at the hospital he found the
Complainant making a statement to the
police to the effect that the
Appellant raped her. The defence questioned the issue of the
delay in reporting the said rape
to her family members and to the
police and submitted that the rape did not take place and that the
Complainant was falsely implicating
the Appellant for having raped
her.
[22]
After evaluating the evidence in its totality, the court a
quo
found that the Appellant's version is not only improbable but
false beyond reasonable doubt and rejected his defence. However, in
this court's view, the Complainant's version was also riddled with
more questions than answers and if one considers the manner
in which
the alleged rape was reported, the fact that there was inconclusive
evidence and the fact that the court
a quo
already found that
the Complainant exaggerated a bit in her evidence, it is clear that
there is doubt as to whether there was indeed
an act of sexual
penetration and the court a quo could not have come to the conclusion
that the State managed to prove Count 2
beyond reasonable doubt.
[23]
In this court's view, the court
a quo
erred in finding after
having considered all the evidence in its totality and having
considered the probabilities and improbabilities
that the Appellant
is guilty of rape beyond reasonable doubt. In this court's view, the
State failed to prove beyond reasonable
doubt that the Appellant
committed the offence of rape. The appeal on conviction in respect of
Count 2 only, therefore stands to
succeed and the conviction to be
set aside.
AD
APPEAL AGAINST SENTENCE:
[24]
The settled approach to be adopted by this court is that the
sentencing task resorts primarily
within the scope of the trial
court's discretion, and the court on appeal shall not interfere with
a sentence so imposed, save
for if it is found that the sentence is
ominously inappropriate and or disproportionate to the severity of
the offence or that
the trial court did not exercise its discretion
judiciously.
[25]
In
S v RO and Another
2000 (2) SACR 248
(SCA) at paragraph 30 that Hener JA
stated
as follows:-
"sentencing
is about achieving the right balance or in more high-flown terms,
proportionality. The elements at play are, the
crime, the offender,
the interest of society with different nuance, prevention,
retribution, rehabilitation, reformation and deterrence.
Invariably
there are overlaps that render the process more unscientific, even
a
proper exercise of the judicial function
allows reasonable people to arrive in different conclusions.
"
[26]
It was submitted on behalf of the Appellant that
an effective sentence of Life Imprisonment is harsh and
disproportionate under
the circumstances of this case in that they
induce a sense of shock. The Appellant mainly appealed against the
sentence of Life
Imprisonment in respect of the rape charge, but not
really against the sentence of six years' imposed on Count 1-
Attempted Murder.
[27]
In
S v Pillay
1977
(4) SA 531
(A) at 535E-F Trollip JA
remarked:-
"Now
the word "misdirection" in the present context simply means
an error committed by the Court in determining or
applying the facts
for assessing the appropriate sentence.
As
the essential inquiry in an appeal
against sentence, however,
is
not
whether the sentence
was
right
or wrong, but whether the Court in imposing it exercised its
discretion properly and judicially, a mere misdirection is not
by
itself sufficient to entitle the Appeal Court to interfere with the
sentence; it must be of such a nature, degree, or seriousness
that is
shows,
directly
or inferentially, that the Court did not exercise its discretion at
all or exercised it improperly or unreasonably. Such
a misdirection
is
usually
and conveniently termed one that vitiates the Court's decision on
sentence.
"
[28]
The Supreme Court of Appeal in
Nkabinde
and Others v S (2017] ZASCA 75;
2017 SACR 431
(SCA)at para 51
held
that
'sentencing lies in the discretion
of the trial court.’
[29]
It is trite law that a court of appeal will not
interfere with an imposed sentence of a lower court unless the
discretion of the
lower court was not judicially exercised, or if
there was a severe irregularity or misdirection by the trial court,
or if the sentence
was so severe that no reasonable court would
impose it, or if the sentence is shockingly inappropriate, or when
there is a striking
disparity between the sentence passed by the
lower court and that which the Court of Appeal would have imposed.
See
S v De Jager
1965 (2) SA 616
(A)
and
S v Pieters
1987 (5) SA 717.
[30]
In
S v Obisi
2005 (2)
SACR 350
WLD, S v Rabie
1975 (4) SA 855
(A) at 857 D-E
and
S v De Oliveira
1993 (2) SACR 59
A at
667,
it was held that the test on
appeal is not whether or not the court sitting on appeal would have
imposed another form of punishment,
but rather whether the trial
court exercised its discretion properly and reasonably when imposing
sentence. This court is mindful
of the decision in
S
v De Jager
1965 (2) SA 616
(A) at 628
where
the discretion of the appeal court was described as not having a
general discretion to ameliorate the sentences of trial courts
but
that it is the trial court that has such discretion.
[31]
In the absence of a material misdirection by the
trial court, an appellate court cannot approach the question of
sentence as if
it were the trial court and then substitute the trial
court's sentence simply because it prefers to. The same would apply
to an
accused that cannot choose the sentencing regime that he
prefers.
[32]
In the present matter, when imposing the sentence
of six years' imprisonment for attempted murder, the trial court had
regard to
all the mitigating factors placed on record on behalf of
the Appellant, as well as the aggravating factors. There is no
evidence
to show that the Appellant demonstrated remorse at any given
time.
[33]
In determination of an appropriate sentence in the
present matter, the court
a quo
weighed
and balanced the mitigating and aggravating factors cumulatively.
The court a
quo
further
had due regard to the triad of factors as stated in
S
v Zinn 1969 (2) SA 537 (A).
[34]
After considering the factors required to be taken
into account in the imposition of sentence, including the Appellant's
personal
circumstances and the fact that the Appellant was under the
influence of alcohol, the court
a quo
came to the conclusion, and correctly
so, that a sentence of six years' imprisonment will be a suitable
sentence on Count 1.
[35]
In this court's view, the court
a
quo
did not misdirected itself and did
not exercise its discretion improperly in sentencing the Appellant to
six years' imprisonment
on Count 1. The appeal against sentence in
respect of Count 1 therefore also stands to fail.
[36]
Accordingly, this court therefore makes the
following order:-
1.
The appeal against both conviction and
sentence in respect of Count 1 - Attempted Murder, is dismissed.
2.
The appeal against both conviction and
sentence in respect of Count 2 - Rape, is upheld and the conviction
and sentence in Count
2 is set aside.
M. NAUDЀ-ODENDAAL
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I AGREE:
K. PILLAY
ACTING JUDGE
OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
7
JUNE 2024
JUDGMENT
DELIVERED ON:
17
SEPTEMBER 2024
For
the Appellant:
Mr.
DJ. Nonyane (Mrs. P.R. Scott standing in for Mr. DJ Nonyane at
the hearing of the matter)
Instructed
by:
Legal
Aid South Africa, Polokwane Local Office,
Polokwane
For
the Respondent:
Adv.
Mufamadi
Instructed
by:
The
Director of Public Prosecutions
Polokwane
M. NAUDЀ-ODENDAAL
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
I
AGREE:
K. PILLAY
ACTING JUDGE
OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD
ON:
7
JUNE 2024
JUDGMENT
DELIVERED ON:
17
SEPTEMBER 2024
For
the Appellant:
Mr.
DJ. Nonyane (Mrs. P.R. Scott standing in for Mr. DJ Nonyane at
the hearing of the matter)
Instructed
by:
Legal
Aid South Africa, Polokwane Local Office,
Polokwane
For
the Respondent:
Adv.
Mufamadi
Instructed
by:
The
Director of Public Prosecutions
Polokwane