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2024
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[2024] ZAFSHC 244
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Mabaqa v S (A53/2023) [2024] ZAFSHC 244 (15 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No. A53/2023
In
the matter between:
NEO
SIMON MABAQA
APPELLANT
And
THE
STATE
RESPONDENT
CORAM:
REINDERS, J
et
MAJOSI, AJ
HEARD
ON:
03 JUNE 2024
JUDGMENT
BY:
MAJOSI
,
AJ
ELIVERED
ON:
15 AUGUST 2024
[1]
The appellant was convicted in the Regional Court, Koffiefontein on
two counts of contravening
s 3 of the Sexual Offences and Related
Matters Act 32 of 2007. He was sentenced to undergo life imprisonment
for both counts in
terms of s 51(1) of the Criminal Law Amendment Act
105 of 1997. He was declared unfit to possess firearms in terms of s
103(1)
of the Firearm’s Control Act 60 of 2000.
[2]
The appellant assailed his convictions on counts 1 and 2 on the
following grounds:
(a) that the
court a
quo
erred in finding that the state witnesses were credible
witnesses;
(b) the
court a quo
erred in drawing a negative inference from the appellants version and
not making a credibility finding in his favour of his testimony;
(c) the court erred in
finding that the state proved its case beyond a reasonable doubt not
finding the complainant’s version
improbable;
(d) the court erred in
finding that the contradictions in the complainant’s testimony
and the other state witnesses was not
material.
[3]
In respect of count 1, the complainant, Ms. M[…] testified
that on the evening of the 29
th
of October 2011, she was
at a tavern enjoying alcoholic beverages with her friends and her
boyfriend. After a stabbing incident
at the tavern, she discovered
that her companions left her behind and walked home with one Panic.
On their way home, the appellant,
a friend to her brother, accosted
them in the street. He chased her escort away by wielding a brick and
pulled her by the arm in
a particular direction while threatening to
stab her with a bottle if she refused to accompany him.
[4]
Upon their arrival at a certain house, they entered the yard and went
to a shack situated in the
yard and the appellant knocked on the
door. She then saw an opportunity to flee. She freed herself from his
grip and ran, but did
not get very far as she ran straight into a
wire fence and injured herself on the neck. She immediately started
bleeding from this
wound.
[5]
The appellant caught her, pulled her back to the shack and the door
was opened by one Seiso. Once
inside, the accused sexually penetrated
her vaginally with his penis without her consent. Later that very
same morning, the appellant
instructed her to wear another t-shirt as
hers was soiled with blood as well as other shoes. The three of them
exited the shack
and went inside the main house where she encountered
Seiso’s mother.
[6]
After identifying another opportunity to flee, she ran out of the
yard into a nearby field but
the appellant and his friend caught up
with her. They walked her to another house. After leaving this
unknown residence, she was
informed that they are going into to town,
she then asked the appellant if she could change clothing at a nearby
friend’s
house and he agreed. Once inside her friend’s
house, she reported that she was raped by the appellant. The police
were called
and she was taken to National Hospital for a medical
examination the following day, after opening a charge of rape against
the
appellant.
[7]
Ms. Letebele, the mother of Seiso, testified that she saw the
appellant and the complainant entering
her yard and knocking at her
son’s shack door. In that process, the complainant loosened
herself from the appellant’s
grip and ran away, right into a
fence which caused her to sustain injuries. She was then taken into
the shack by the appellant
after the door was opened by her son
Seiso.
[8]
Just before sunrise, she observed the three exiting the shack and
entering her house. Once she
was alone with the complainant, she
enquired if she was in a relationship with the appellant but received
no response. When she
looked at her more closely, she appeared to be
afraid and observed her clothing and hair to be untidy. When the
appellant went
into the bathroom, the girl ran away and the appellant
gave chase and caught her. She instructed her son to go after them so
that
the appellant does not hurt her. The three did not return to her
house but left the area. Later, the very same day, the complainant
returned in the company of the police and retrieved her shoes from
the shack.
[9]
The medico-legal examination report of the complainant revealed that
she sustained injuries to
her neck and her jeans was observed to be
bloodstained. It was concluded that the injuries sustained were
consistent with the history
provided by the complainant.
[10]
In respect of count 2, Ms. K[…] testified that on the 4
th
of May 2013, after leaving a tavern in the early hours of the
morning, she asked her sister’s boyfriend, M[…], to
walk
her to her boyfriend’s house. Upon their arrival there, they
knocked on the door, but in vain. Whilst sitting on the
gate, the
appellant, a male person known to her, approached them, knife in hand
and instructed M[…] to leave, which he did.
[11]
The appellant pulled her off the gate and took her to a nearby shack,
which he unlocked, took her inside
and sexually penetrated her
without her consent. When it became light outside, he unlocked the
door and told her to leave. Once
home, she reported the rape to her
sister and a case was opened with the police on the same day. She was
also taken to National
Hospital for a medical examination.
[12]
Her sister C[…] K[…] testified and confirmed that a
report of rape was made to her and that
the appellant, known to her
as Compressor was identified as the perpetrator. Mr. M[…]
testified that during the early hours
of the morning, he escorted the
complainant to her boyfriend’s house and left the scene but
before doing so, he observed
that the appellant, a known male, was
walking behind them.
[13]
The accused version of events in respect of count one was that he met
the complainant at the tavern and she
agreed to be his girlfriend. To
that end, they left the tavern together and walked to his friend
Seiso’s place where they
spent the night and engaged in
consensual sexual intercourse. He indicated that, although the
complainant sustained injuries from
a fence, it was due to her
falling over as she was heavily under the influence of alcohol.
[14]
In respect of count two, the appellant denied that he raped the
complainant on the night in question as he
was at home with his
mother and sibling. He made mention of the fact that he does not even
know the complainant and that she was
making a mistake regarding the
identity of her assailant.
[15]
The court’s powers to interfere on appeal with the findings of
fact of a trial court are limited unless
there is a clear
misdirection by the court a quo.
[1]
[16]
The court a quo in count one evaluated the conspectus of the evidence
and found that the evidence pointed
to the fact that the complainant
was an unwilling participant from the moment she met the appellant,
entered the yard of Seiso
until she eventually left later that same
morning and later even sought refuge a friend’s house. It (the
court a quo) also
found that her evidence was appropriately
corroborated by Ms. Letebele. The medico-legal report also confirmed
that she sustained
injuries to her neck and that despite changing her
top, the pair of jeans she wore was still bloodstained. This would
effectively
mean that during the rape, she was still actively
bleeding from her wounds.
[17]
It is highly unlikely that she would have, under these circumstances,
and after several attempts of trying
to make a run for it, consented
to sexual intercourse with the appellant. Although there was a
discrepancy whether the complainant
indeed spoke to Letebele about
the rape and M[…]’s observations, same was appropriately
contextualized and termed
immaterial in light of the evidence put
forth by both witnesses by the trial court.
[18]
The court a quo, in my view, was correct in finding the version of
the appellant to be false and improbable
and that the evidence of the
complainant was credible and reliable in all material aspects,
despite her being a single witness
[2]
to the actual rape as her version of events enjoyed sufficient
corroboration.
[19]
The appellant for count two placed identity in dispute and denied
being at the said tavern or in the vicinity
of the complainant’s
boyfriend’s house. The evidence of the state witnesses revealed
that they had appropriate prior
knowledge of the appellant as he is
known in their residential area; both were acquainted with the
appellant’s unique nickname,
Compressor.
[20]
The complainant, in particular, had several opportunities to observe
the appellant: firstly, when he approached
her outside her
boyfriend’s house, secondly enroute to the shack where she was
eventually raped and lastly, in broad daylight
when the appellant
unlocked the shack door and instructed her to leave. She had an
additional opportunity at a later stage in the
street when he
informed her the police will not take her seriously, should she open
a case against him.
[3]
This
evaluation was also accounted for by the trial court in his judgment.
[21]
The defence offered by the appellant was that of an alibi, but no
further evidence was adduced in that regard.
Although an adverse
inference cannot be drawn from the late disclosure of this alibi, it
can be taken into consideration when evaluating
the evidence as a
whole.
[4]
[22]
Two state witnesses with prior knowledge of his identity placed him
outside the house of the complainant’s
boyfriend before the
complainant was raped and a further report identifying the appellant
as the perpetrator was made to C[…]
shortly after the
incident. The court a quo reasoning in this regard cannot be faulted
and the appellants criticism in this regard
is thus unfounded. The
appellant’s appeal against both of his convictions must fail.
[23]
The imposition of a sentence is the prerogative of the sentencing
court and an appeal court should be careful
not to erode such
discretion. An appeal court will only interfere if the sentence
imposed by the court a quo is disproportionate
as found in
S
v Rabie
[5]
and also S v De Jager and Another.
[6]
[24]
In
S
v Mudau
,
[7]
Madjiet JA stated as follows:
‘
.
. . it is trite that each case must be decided on its own merits. It
is also self-evident that sentence must always be individualised,
for
punishment must always fit the crime, the criminal and the
circumstances of the case. It is equally important to remind
ourselves
that sentencing should always be considered and passed
dispassionately, objectively and upon a careful consideration of all
relevant
factors. Public sentiment cannot be ignored, but it can
never be permitted to displace the careful judgment and fine
balancing
that is involved at arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence which is
just
and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests of
society.’
[8]
[25]
The Supreme Court of Appeal in
S
v Chapman
[9]
classified the offence of rape as follows:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
. . . Women in this country are entitled to the protection of these
rights. They have a legitimate claim to walk peacefully
on the
streets, to enjoy their shopping and their entertainment, to go and
come from work, and to enjoy the peace and tranquility
of their homes
without the fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their
lives.’
[10]
[26]
Section 51(1) of the Criminal Law Amendment Act prescribes a minimum
sentence of life imprisonment to be
imposed upon conviction unless
substantial and compelling circumstances are present to warrant
deviation. The general rule of thumb
is that substantial and
compelling circumstances presented to court must be truly convincing
to allow the court to deviate on proper
grounds and not for flimsy
reasons.
[11]
[27]
S v Vilakazi
[12]
2012 (6) SA
353
(SCA) at paragraph 58 where the court stated the following:
‘
.
. . In cases of serious crime the personal circumstances of the
offender, by themselves, will necessarily recede into the background.
Once it becomes clear that the crime is deserving of a substantial
period of imprisonment the questions whether the accused is
married
or single, whether he has two children or three, whether or not he is
in employment, are in themselves largely immaterial
to what that
period should be, and those seem to me to be the kind of “flimsy”
grounds that Malgas said should be avoided
. . .’
[13]
[28]
The appellant contended that the sentence imposed for the offences
are not only shocking, but also wholly
inappropriate as the court a
quo overemphasized the offences at the cost of his personal
circumstances. During mitigation of sentence,
it was proffered that
he was a first offender, 24 years of age, unmarried and he earned an
income of R50 per day from casual employment.
The income derived was
used to support his unemployed mother, grandmother and his two minor
siblings before his three-year incarceration
awaiting trial in this
matter.
[29]
The legal representative for the appellant responsibly acknowledged
that the sentence imposed may be justified
for both offences, but
argued that the court a quo failed to consider that this was not one
of the most serious instances of rape
and there was no evidence that
the complainants suffered lasting emotional trauma. It was submitted
that the appellant’s
personal circumstances justified the
imposition of a lesser sentence.
[30]
Transversely thereto, the legal representative for the state argued
that the court a quo correctly found
that there were no compelling
and substantial circumstances warranting deviation and the sentence
cannot be considered inappropriate
as the appellant had been
convicted of two offences of rape
[14]
with the
modus
operandi
of
accosting female complainants whilst in the company of males and
using the threat of violence to drive the men away.
[31]
The cumulative effect of the appellant’s circumstances and all
other mitigating factors were considered
by the court and none were
found to be substantial or compelling circumstances. This included
the three years that the appellant
spent awaiting trial. In my view,
the
court a quo
could not have, under these circumstances,
found substantial or compelling circumstances justifying the
imposition of a lesser
sentence in light of the numerous aggravating
factors.
[32]
The appellant was convicted by the trial court of two offences of
rape wherein he accosted the complainants
in the street, threatened
their companions with violence and thereafter, brutally invaded their
bodily integrity and in so doing,
perpetuated the scourge of
gender-based violence which not only prevalent in the Free State
Division, but a raging fire in the
Republic of South Africa. This
type of behavior is not only unacceptable, but goes against the
values enshrined in our Constitution.
The sentence imposed can thus
not be said to be disproportionate and his appeal against sentence
must also fail.
[33]
Accordingly, the following is ordered:
The
appeal against convictions and sentence is hereby
dismissed
.
O.
R MAJOSI, AJ
I
concur
C.
REINDERS, J
APPEARANCES:
On
behalf of the Appellants
Mr.
P. Van Der Merwe
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Respondent
Adv.
V.J Didi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
S
v Francis
1991
(1) SACR 198
(A);
R
v Dhlumayo and Another
1948
(2) SA 677 (A).
[2]
Section
208
of the
Criminal Procedure Act 51 of 1977
.
[3]
S
v Mthetwa
1972
(3) SA 766
(A) at 768, A - C.
[4]
S
v Thebus and Another
[2003] ZACC 12
;
2003
(6) SA 505
(CC), paras 51-68.
[5]
S
v Rabie
1975
(4) SA 855
(A) AT 857D-E.
[6]
S
v De Jager and Another
1965
(2) SA 616 (A).
[7]
S v
Mudau
[2013] ZASCA 56; 2013 (2) SACR 292.
[8]
Ibid
para 13.
[9]
S
v Chapman
[1997]
ZASCA 45
;
1997 (3) SA 341
(SCA).
[10]
Ibid at 3-4.
[11]
S
v Malgas
[2001]
ZASCA 30; 2001 (1) SACR 469 (SCA).
[12]
S
v Vilakazi
[2008]
ZASCA 87; [2008] 4 All SA 396 (SCA).
[13]
Ibid para 58.
[14]
Section
51(1)
(a)
(iii)
(bb)
of
the
Criminal Law Amendment Act 105 of 1997
.