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[2024] ZAKZPHC 71
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Khanyile v S (AR346/2022) [2024] ZAKZPHC 71 (2 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR346/2022
In
the matter between:
PHILANI
STUDIO KHANYILE
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mngadi J and Marimuthu AJ
Heard:
Delivered:
ORDER
On
appeal from: Greytown Regional Court (sitting as the court of first
instance):
1.
The appeal against the conviction of the appellant is dismissed.
2.
The appellant's conviction of rape in terms of
section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
is confirmed.
3.
The appeal against the sentence is upheld. The sentence of life
imprisonment is set aside
and substituted with a sentence of 14
years' imprisonment.
4.
The sentence is antedated, in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
, to 23 November 2021.
JUDGMENT
MARIMUTHU
AJ (MNGADI J concurring)
Introduction
[1]
The appellant was arraigned in the Greytown Regional Court and
charged with one count of contravening
the provisions of
section 3
,
read with
sections 1
,
56
(1},
57
,
58
,
59
,
60
and
61
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act (SORMA
)
[1]
and read with the provisions of
section 51(1)
and Schedule 2 of the
Criminal Law Amendment Act (the CLAA).
[2]
It was alleged that the appellant, on 2 February 2020, unlawfully and
intentional committed and act of sexual penetration with
the
complainant by inserting his penis into the vagina of the complainant
without the consent of the complainant.
[2]
The provisions of section 51(1) and Schedule 2 of the CLM applied as
it was alleged that the complainant
was assaulted with the intent to
do grievous bodily harm.
[3]
On 17 August 2021, the appellant, duly represented, pleaded not
guilty and raised consent as his
defence. On 19 November 2021, the
court
a
quo
found the appellant guilty as charged and on 23 November 2021, it
proceeded to impose a sentence of life imprisonment upon the
appellant. In terms of section 309(1 )
(a)
of the
Criminal Procedure Act,
[3]
the
appellant noted his intent to exercise his automatic right to appeal
in respect of both his conviction and sentence.
The
State's case
Ms
N[...] B[...] (the complainant)
[4]
The complainant testified that on 2 February 2020, at around 19h00,
she was walking alone to her
home after having attended a function at
the Mchunu homestead when she noticed the appellant walking behind
her. She paid no heed
to him, assuming that he was also proceeding in
the same direction as her.
[5]
After a short while, the appellant caught up to her and grabbed her
at the back of her neck. He
then strangled her when he was facing
her, and this prevented her from screaming. He thereafter grabbed her
by the arm and pulled
her in the direction of a field. As they made
their way to the field, they had to negotiate a slope. They both fell
down the
slope. The appellant continued pulling her towards the
field and she continued to resist. Her resistance caused her to fall
again,
and she injured her arm on the fallen barbed wire fence.
[6]
When they reached a place close to the field, the appellant
instructed her to undress, and she
refused. The appellant then
strangled her again and struck her with his clenched fists near her
eyes. She then lowered her tights
and panties to her knees. The
appellant lowered his pants. The appellant caused her to fall, and he
went on top of her. He then
inserted his penis into her vagina, and
he made certain movements. He instructed her to also make movements
and she duly complied.
[7]
After the appellant finished with the sexual intercourse, he informed
her that they should do
it again and she refused. She informed the
appellant that she was thirsty and that she needed a drink of water.
The appellant then
suggested that she suck his penis since she was
refusing to have sexual intercourse with him again. She refused to
suck his penis
and this refusal caused the appellant to assault her
again. She pleaded with the appellant to let her have a drink of
water from
the nearby river.
[8]
The appellant finally acceded to her request for a drink of water,
and they went to the river.
She went to the river pretending to
drink, got into the river, and crossed over to the other side of the
river. She hid in the
bushes on the other side of the river. The
appellant did not enter the river but searched for her using the
light of his cellular
phone. She remained hidden in the bushes for a
long time. By her account, she was accosted by the appellant around
19h00 and she
only exited the bushes in the early hours of the
morning 'when the chickens were making a noise'.
[9]
She crossed back over the river and proceeded to the Mzolo homestead.
She was in a love relationship
with Mr Lindezakhe Mzolo (Mr Mzolo),
and she decided to seek assistance from him upon exiting the river.
His home was closer than
her home and she was wet and did not have
any shoes to make the trip. She testified that she lost several items
of clothing, including
her shoes during the incident. When she
arrived at the Mzolo homestead, she knocked on the door and Mr Mzolo
opened it.
[10]
She reported to Mr Mzolo that the appellant had accosted and raped
her. She requested to change out of her wet clothes, and
she then
went to sleep. In the morning, she requested Mr Mzolo to accompany
her to search for her missing clothing items. They
went in search of
her tights, panties, hat, and shoes. She found her tights and hat by
the river, and she found one shoe at the
spot where the appellant had
grabbed her. She did not find her panties and the other shoe.
[11]
She then reported the incident to the police, and was taken to the
Greytown Hospital for medical assistance.
She sustained injuries to
both eyes and she had a cut on her arm.
[12]
She testified that she did not consent to sexual intercourse with the
appellant and that it was painful when
the appellant penetrated her
vagina with his penis.
Mr
Lindezakhe Mzolo (Mr Mzolo)
[13]
Mr Mzolo was the first report and second State witness. He confirmed
that he was in a love relationship with
the complainant and that she
had called at his home in the early hours of the morning, around
03h00. When she arrived at his home,
her denim skirt and T-shirt were
wet, and she changed out of them.
[14]
The complainant reported to him that she was accosted and raped by
'Studo'. She also informed him that the
appellant had grabbed her and
strangled her. He noticed that the face of the complainant was
swollen and that she had nail marks
on her neck.
[15]
At around 05h00, he accompanied the complainant to search for her
missing clothing items. Only some items
were recovered, including one
shoe.
Dr
Peter Mukuka (Dr Mukuka)
[16]
Dr Mukuka testified that he was based at the Greytown Hospital and
that on 3 February 2020, he examined the
complainant and completed
the requisite J88 form wherein he recorded all of his findings and
conclusions. It is not necessary to
repeat the entirety of the
evidence of Dr Mukuka, save for the following:
(a)
The complainant reported to him that on 2 February 2020, she was
returning from a function around
19h00 when she was accosted by Stu
Khanyile. He got hold of her, throttled her, punched
her in the
face, and raped her twice
without a condom. She managed to escape by wading through
the river.
(b)
The complainant's face was swollen below both eyes and she had
abrasions on the left lower arm
on the posterior aspect. She also had
numerous nicks or cuts to the posterior forchette of the vaginal
area, which is the lower
entrance of the vagina.
[17]
Dr Mukuka explained that the possible causes of the numerous cuts to
the vagina were due to penetration and
the pressure effect on the
vagina, especially when there is forced penetration. He explained
further that these injuries would
be unlikely if there was consensual
intercourse as the impact would be minimal and the muscles would be
relaxed.
[18]
He stated that the complainant had localised areas of swelling just
below her eyes and this was consistent
with being punched several
times in the face.
[19]
The J88 form was admitted by the appellant and forms part of the
appeal record as exhibit 'A'. This concluded
the evidence of the
State.
The
appellant's case in the court
a quo
[20]
The appellant testified in his defence and called no witnesses. The
appellant testified that he was in a
secret love relationship for a
period of a year with the complainant. They started their
relationship a year prior to February
2020. Their relationship
remained secret due to him being younger than her and the complainant
was married.
[21]
On the date of the incident, he met with the complainant at a
function at the Mchunu homestead. They arranged
to meet later that
evening at the tavern at the Ndlela homestead. Upon meeting at the
Ndlela homestead, they drank together. The
complainant purchased
three quarts of Black Label beers and left the Ndlela homestead. To
alleviate suspicion from the people of
the neighbourhood that knew
them at the Ndlela tavern, the complainant informed him that he
should wait for 30 minutes and then
leave the tavern to meet her.
[22]
He left the tavern 30 minutes after the complainant, at around 19h30.
He met the complainant at the bus stop,
and they opened a quart of
beer. The complainant suggested that they find a less visible spot
and they then made their way to a
nearby stream. They consumed the
second quart at the stream.
[23]
At the stream, they began kissing and the complainant undid the
button of his trousers and lowered his boxer
shorts. She then lowered
her skirt, tights, and panties and they proceeded to have sexual
intercourse. This was the fifth time
that he had sexual intercourse
with the complainant since they started their secret love
relationship.
[24]
They opened the third quart of beer and drank it. They started
kissing again and wanted to have sexual intercourse
for the second
time. While kissing the complainant, he noticed a snuff container
between her breasts, and he confronted her about
it. The complainant
then informed him that she was using the snuff to put inside her
vagina.
[25]
He was surprised by this disclosure. He had previously enquired from
her whether she used anything in her
vagina as he always developed a
rash on his penis after engaging in sexual intercourse with her. She
did not disclose the use of
the snuff at that stage. He questioned
her about her prior non-disclosure and she remained silent. Her
silence angered him, and
he hit her twice with an open hand on the
side of her face just below the eyes.
[26]
After he had assaulted her, they sat down and had a discussion. The
complainant apologised for her actions
and suggested that they find a
solution to their problem. She informed him that he was not supposed
to hit her. She asked him not
to break up with her as she was still
young, and she loved having sex. To his mind, he considered their
problem resolved.
[27]
The complainant then informed him that she was thirsty. He informed
her that the shops were closed, and he
suggested that she should go
to the river for a drink of water. She entered the river and drank
from it, and they then made their
way to the main road. The
complainant was going to the home of Mr Mzolo. He accompanied the
complainant for a short distance on
her route and he then turned
around to go to his home. They parted ways amicably.
[28]
He was unable to recall if the complainant had all her clothing items
when they parted ways. This concluded
the appellant's case.
Issues
to be determined
[29]
There are two issues to be determined in this matter. Firstly,
whether the
court a quo
correctly rejected the defence of
consent, and secondly, whether the provisions of
section 51(1)
of the
CLAA were applicable.
Legal
principles
[30]
There are limited instances when a court of appeal can interfere with
the findings of a trial court. In
S
v Francis
[4]
the following was held:
'The
powers of a Court of appeal to interfere with the findings of fact of
a trial Court are limited. In the absence of any misdirection
the
trial Court's conclusion, including its acceptance of a witness'
evidence, is presumed to be correct. In order to succeed on
appeal,
the appellant must therefore convince the Court of appeal on adequate
grounds that the trial Court was wrong in accepting
the witness'
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 the Court of appeal will
be entitled
to interfere with a trial Court's evaluation of oral testimony.'
[31]
In
S v
Hadebe and others
,
[5]
Marais JA stated:
'...
in the absence of demonstrable and material misdirection by the trial
Court, its findings of fact are presumed to be correct
and will only
be disregarded if the recorded evidence shows them to be clearly
wrong.'
[32]
The court
a quo
was faced with two mutually destructive
versions. The issue to be determined is whether there was any
misdirection by the court
a quo in accepting the version of the State
and rejecting that of the defence.
[33]
Nugent J in
S
v Van der Meyden
stated:
[6]
'The
onus
of proof in a criminal case is discharged by the State if
the evidence establishes the guilt of the accused beyond reasonable
doubt.
The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent...'
The
learned judge went on to state that:
'A
court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond
reasonable doubt, and so too does it not look at the exculpatory
evidence in isolation in order to determine whether it is reasonably
possible that it might be true.'
[7]
Evaluation
of the evidence by the
court a quo
[34]
The court
a
quo
was
acutely aware of the approach to be adopted when determining the
guilt of an accused person and in this regard, cited the following
paragraph of
S
v Chabalala
[8]
which reads:
'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.'
[35]
The complainant was a single witness to the incident, as is the case
in almost all rape matters. There are
certain rules of caution that
apply when dealing with the evidence of a single identifying witness
and one of those rules is to
seek corroboration from the other
presented facts.
In casu
, the complainant made an immediate
disclosure of the rape to her lover, Mr Mzolo. Mr Mzolo and the
independent medical evidence
corroborated the version of the
complainant regarding the rape.
[36]
The court
a quo
was alive to the contradictions that presented
in the State case.
The
report that the complainant made to Dr Mukuka that she was raped
twice by the appellant contradicts her evidence that she was
raped
once. She did testify that the appellant wanted to have sexual
intercourse with her again, but he failed to sustain an erection.
The
complainant was honest in testifying to the single act of rape. The
other contradiction related to the clothing items that
were recovered
by the complainant and Mr Mzolo on the morning following the rape.
The complainant and Mr Mzolo differed on the
precise number of
clothing items that were recovered. In my view, the court a quo
correctly found that the complainant was a credible
and reliable
witness and it dealt fully with these contradictions in its judgment.
I am in agreement with the findings of the court
a quo that the
contradictions were not material.
[37]
The appellant was not a particularly impressive witness. He was found
wanting on several occasions when he
was cross-examined by the State.
The version advanced by the appellant when he testified differed
significantly from the version
that was put to the complainant. It
was never put to the complainant that she had spoken to the appellant
when they were at a function
at the Mchunu homestead; it was not put
to her that they had agreed at the function that they would meet
thereafter at the Ndlela
homestead; it was not put to the complainant
that there were other people on the road walking with the appellant
when he left the
Mchunu homestead. It was also not put to the
complainant that she had purchased three quarts of beer from the
Ndlela homestead
and that they had consumed these quarts together; it
was never put to her that she had suggested that they move to a more
private
area away from public view and that it was actually his
suggestion that she should go to the river to drink water when she
wanted
to consume more alcohol. He was unable to explain why crucial
aspects of his version were not canvassed with the complainant.
[38]
The version of the complainant is consistent with the injuries
recorded by Dr Mukuka. The recovery of her
dispersed clothing items
reconciles with her evidence of being dragged from the road to the
area near the river. Her presenting
at the Mzolo homestead with wet
clothing and no shoes corroborates her version that she had to wade
through the river. Counsel
for the appellant before us correctly
conceded that she was unable to advance an argument against the court
a quo's finding of
guilt.
[39]
The court
a quo
correctly rejected the defence of consent and
correctly found that the version of the appellant was not reasonably
possibly true
and that the State had proved its case against the
appellant beyond a reasonable doubt.
[40]
The court
a quo
correctly found the appellant guilty of
contravening
section 3
of SORMA. The next issue to be determined is
whether the provisions of
section 51(1)
of the CLAA were applicable.
Applicability
of
section 51(1)
of the CLAA
[41]
The appellant was charged under the provisions of
section 51(1)
of
the CLAA. The court
a quo
concluded that the State had proved
that the rape involved the infliction of grievous bodily harm. The
complainant presented to
Dr Mukuka with swelling under her eyes. It
was established that this noted injury was caused through several
punches of the appellant.
It is unclear from the presented evidence
precisely when these punches were directed to the complainant. It was
the evidence of
the complainant that two punches were delivered to
either side of her cheeks immediately prior to the rape. She was
never led on
the nature and extent of the remaining punches. The
complainant did state that after the rape, she had suffered further
acts of
assault when she refused to have sexual intercourse with the
appellant for the second time, and when she refused to suck his
penis.
It is possible that this particular injury was caused after
the rape. Consequently, this injury does not trigger the
applicability
of
section 51(1).
[42]
The
court a quo
devoted considerable attention to the issue of
strangulation. It was the evidence of the complainant that the
appellant strangled
her on several occasions when they were together.
Mr Mzolo also confirmed having noticed nail marks on the neck of
the
complainant. The complainant failed to disclose the
strangulation to Dr Mukuka and he noted no injuries around the neck
of the
complainant when he conducted his examination. While I accept
that the complainant was strangled at different times, the question
is whether these acts of strangulation constituted the infliction of
grievous bodily harm. The absence of signs of strangulation
on the
admitted medical report suggests that the degree of force used was
minimal.
[43]
In
Director
of Public Prosecutions, Gauteng Division, Pretoria v Moabi
,
[9]
Molmela AJA stated:
'...
the test for ascertaining whether grievous bodily harm has been
inflicted is factual and objective. The correct approach to
that
enquiry necessitates a holistic consideration of all objective
factors pertaining to the incident, with a view to ascertaining
whether bodily injuries were inflicted and whether they are of a
serious nature.'
In
Moabi
, the degree of force used to strangle the complainant
caused the complainant to lose consciousness. The strangulation
referenced
in
Moabi
and the acts of strangulation in
casu
are significantly different. There is no evidence on the record to
suggest that the strangulation of the complainant in this matter
was
of a serious nature.
[44]
I am of the view that the acts of strangulation in this matter do not
constitute grievous bodily harm. In
S
v Legoa
[10]
Cameron JA stated:
'That
wording, in my view, clearly indicates that for the minimum
sentencing jurisdiction to exist in respect of an offence, the
accused's conviction must encompass all the elements of the offence
set out in the Schedule.'
In
my view, the State failed to prove that the rape involved the
infliction of grievous bodily harm.
Sentence
[45]
Having concluded that the rape does not fall within the provisions of
Part 1
of Schedule 2 of the CLAA, it follows that the minimum
sentence of life imprisonment was not applicable, and the sentence
must
be set aside. This court accordingly is at large to impose
sentence afresh.
[46]
It was submitted in mitigation of sentence of the appellant that his
personal circumstances were that he
was 25 years old when the offence
was committed, he is single with no children, he has a grade six
level of education, he is unemployed
but does try to obtain casual
employment, he has no previous convictions or pending cases against
him, and he has no chronic illness.
It was further submitted that the
age of the appellant made him a good candidate for rehabilitation and
that his personal circumstances,
taken cumulatively, constituted
substantial and compelling circumstances to warrant a deviation from
the prescribed minimum sentence.
[47]
In aggravation of sentence, the State argued that the appellant was
convicted of a very serious and prevalent
offence, the complainant
was not only raped but was also assaulted, the appellant showed no
remorse and took no responsibility
for is conduct, his age was not
a factor as he was an adult when he committed the offence, and that
his personal circumstances
do not constitute substantial and
compelling circumstances.
[48]
In aggravation of sentence, the State also handed in the victim
impact statement of the complainant. The
statement detailed that the
complainant suffered from nightmares following the offence, and she
reported about the cruelty, degradation,
and humiliation that she
suffers after the incident. She stated that she now fears for her
safety and is unable to move around
freely. She felt disrespected as
she was old enough to be the mother of the appellant. She feels
depressed which causes her to
not work properly. The community views
her in a negative light and she now has a stigma attached to her
name. The incident has
caused adverse problems in her relationship
with her partner. She stated that the rape turned her 'happiness to
bitterness', she
feels embarrassed and humiliated by the incident and
that her life is now a mess.
[49]
I am also mindful that the complainant resorted to drastic measures
by entering the river in the middle of
the night to escape the
appellant and that she had to hide from him for a long period of time
on the other side of the river.
[50]
In
S v
Chapman
,
[11]
Mohamed CJ stated:
'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
and to any defensible civilisation. 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 tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes
the quality and
enjoyment of their lives.'
[51]
Having found that Part I of Schedule 2 of the CLAA finds no
applicability, the offence would then attract
the minimum sentence
prescribed under Part Ill of Schedule 2, namely a term of ten years'
imprisonment.
[52]
The aggravating circumstances in this matter outweigh those factors
that mitigate in favour of the appellant.
The appellant prowled upon
a defenceless woman who was old enough to be his mother to satisfy
his carnal desires. His conduct was
despicable and deplorable. A
sentence of ten years' imprisonment would be inappropriate in this
matter. Society demands that the
courts meet out appropriate
punishment on offenders who have little to no regard for other
law-abiding citizens.
[53]
In determining an appropriate sentence, I have considered the triad
of factors alluded to in
S
v Zinn
[12]
namely, the crime, the offender, and the interests of society. I have
further considered the age of the appellant and the possibility
of
his rehabilitation. I am of the view that a sentence of 14 years'
imprisonment will be appropriate in the circumstances.
Order
[54]
I accordingly make the following order:
1.
The appeal against the conviction of the appellant is dismissed.
2.
The appellant's conviction of rape in terms of section 3 of the
Criminal Law (Sexual Offences
and Related Matte) Amendment Act 32 of
2007 is confirmed.
3.
The appeal against the sentence is upheld. The sentence of life
imprisonment is set aside
and substituted with a sentence of 14
years' imprisonment.
4.
The sentence is antedated, in terms of
section 282
of the
Criminal
Procedure Act 51 of 1977
, to 23 November 2021.
MARIMUTHU
AJ
I
agree.
MNGADI
J
APPEARANCES
Counsel
for the appellants:
Instructed
by:
Legal
Aid South Africa
Pietermaritzburg
Counsel
for the respondent:
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Date
of argument
01
September 2023
Date
of judgment
02
August 2024
[1]
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
.
[2]
Criminal Law Amendment Act 105 of 1997
.
[3]
Criminal Procedure Act 51 of 1977
.
[4]
S v
Francis
1991 (1) SACR 198
(A) at 198j-199a in the headnote.
[5]
S v
Hadebe and others
1997
(2) SACR 641
(SCA) at 645e-f.
[6]
S
v Van der Meyden
1999
(1) SACR 447
(W) at 448f-g.
[7]
Ibid at 448h-i.
[8]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[9]
Director
of Public Prosecutions, Gauteng Division, Pretoria v Moabi
[2017] ZASCA 85
;
2017 (2) SACR 384
(SCA) para 14 (the majority
judgment by Gorven AJA agreed with Molemela AJA regarding the issue
of the infliction of grievous
bodily harm, but disagreed on the
issue of whether special leave to appeal was required).
[10]
S
v Legoa
2003
(1) SACR 13
(SCA) para 14.
[11]
S v
Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 3441-3458.
[12]
S v
Zinn
1969 (2) SA 537
(A).