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[2024] ZAECMKHC 111
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Mzini v S (CA&R48/2024) [2024] ZAECMKHC 111 (1 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: CA&R48/2024
In the matter between:
SIYABULELA
MZINI
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
YOUNG AJ:
[1]
On 8 February 2024, the appellant, who was legally represented at the
trial, was convicted
on both counts, comprising kidnapping (count 1),
and rape (count 2) in contravention of section 3 of the Criminal Law
(Sexual Offence
and Related Matters) Amendment Act 32 of 2007.
[2]
The appellant was sentenced to five (5) years’ imprisonment in
respect of count
1 and life imprisonment in respect of count 2. This
appeal lies against the appellant’s conviction and sentence in
respect
of both counts.
[3]
The State adduced the evidence of 4 witnesses, comprising the
complainant, Sonwabile
Kuthuka (“Kuthuka”), Aviwe Goduka
(“Goduka”) and Sivenathi Tokota (“Tokota”).
The State further
placed reliance on a J88 medico-legal report, which
was handed in by agreement. The appellant, in turn, testified on his
own behalf.
[4]
The complainant, who was 21 years old at the time, testified that
during the evening
of 30 September 2022, she together with Kuthuka
had visited their friend Tokota, at Tokota’s boyfriend’s
home situated
at 7
th
Avenue in Kwa Nobuhle, a township on
the outskirts of Uitenhage. The appellant arrived at the home,
unannounced and inebriated.
The complainant acknowledged that she
knew the appellant as a taxi conductor, more commonly known in the
community as ‘Biza’.
Shortly after his arrival, the
appellant aggressively demanded that the complainant accompany him to
his home. The complainant
refused, but the appellant pulled the
complainant by the arm and closed the door behind them. The appellant
did so, despite her
friends’ protestations. The complainant at
that point, complied, in the hope that she would escape as soon as
the opportunity
arose. As they approached the gate of the property,
the complainant attempted to flee but was stopped by the appellant.
The appellant
revealed an axe which he had holstered on his hip, and
threatened the complainant with violence, should she again attempt to
escape.
[5]
The appellant proceeded to escort the complainant to his home,
against her will and
under the continuous threat of harm. On arrival
and once isolated in the appellant’s home, the appellant
instructed the complainant
to undress herself. She refused. The
appellant pushed the complainant onto the bed. Out of fear, the
complainant ultimately complied.
The appellant raped the complainant
on four (4) separate occasions over the course of the next
approximately five (5) hours. Sometime
during this period, Kuthuka
and others unknown to the complainant, attended at the appellant’s
home and called out her name.
This, with the aim of rendering
assistance to the complainant. In response, the complainant could
only muster the word, ‘
Ja’
. The appellant, in
turn, cursed at and threatened Kuthuka and those outside with
violence. As the appellant exited his home, Kuthuka
and those with
him, ran away.
[6]
The appellant eventually fell asleep, which presented the complainant
with an opportunity
to escape. The complainant dressed herself and
exited the appellant’s home, which awoke the appellant. The
appellant pursued
the complainant. The complainant hid behind a
dustbin in an adjacent yard, until she could no longer hear the
appellant. The complainant
then ran to Goduka’s home and
reported that she had been abducted and raped by the appellant.
Whilst trying to do so, the
complainant was sobbing so much, that
Goduka could hardly make sense of what she was trying to relay to
him. All that Goduka could
discern was that she had been raped by the
appellant. Goduka advised the complainant to report the matter at the
police station,
but she refused, explaining that the appellant had
threatened the life of her youngest sibling. The complainant,
instead, went
home to bath to rid herself of the scent of the
appellant. She, however, did not wash her underwear, which were
stained with the
appellant’s semen.
[7]
Kuthuka corroborated, to a large extent, the complainant’s
evidence. Kuthuka
confirmed that he, together with the complainant,
visited Tokota at her boyfriend’s home during the evening of 30
September
2022. Approximately thirty minutes after their
arrival, they heard a knock on the front door. The complainant opened
the
door, and it transpired that it was the appellant. He entered the
home and enquired about the whereabouts of Tokota’s boyfriend.
It was explained to the appellant that Tokota’s boyfriend was
not at home. Despite this, the appellant remained and turned
his
attention instead, to the complainant. He immediately demanded that
she leave with him, but she refused. Kuthuka similarly
objected, but
the appellant cursed at him and aggressively grabbed the
complainant’s hand and forcefully removed her from
the home.
Tokota provided Kuthuka with the appellant’s address, and
approximately five (5) minutes after they had left, Kuthuka
proceeded
to the appellant’s residence. Unbeknownst to the complainant
and the appellant, Kuthuka eventually caught up to
them near an open
field. He witnessed the complainant struggle, the appellant slapping
the complainant, and thereafter pulling
her along by her hand. He
then sought the assistance of friends that lived nearby and proceeded
to the appellant’s home to
assist the complainant. After
calling out the complainant’s name, the appellant emerged from
his home. One of Kuthuka’s
friends suggested that they run
away, because they did not know whether the appellant was armed.
[8]
Goduka testified that on the morning of 30 September 2022, at
approximately seven
o’ clock, the complainant arrived at his
home in tears. Goduka explained that on arrival, the complainant’s
physical
appearance was indicative of an individual who had been
assaulted. Due to the persistent sobbing by the complainant, all that
he
could discern, was the complainant saying that she had been raped
by the appellant. He advised the complainant to report the matter
at
the police station, but she declined to do so.
[9]
Tokota also testified. She confirmed that the complainant and Kuthuka
had visited
her at the home of her boyfriend. According to Tokota,
the appellant arrived at the home and appeared intoxicated. The
appellant
instructed them that the complainant would be leaving with
him. He threatened to stab her, Kuthuka and the complainant if they
persisted with their refusals. She noticed that the appellant was
armed with a large knife or axe, which was holstered on his hip.
The
appellant thereafter forcefully removed the complainant from the
home, by grabbing her by the hand and pulling her. Lastly,
she
confirmed that Kuthuka had set out to follow the complainant and the
appellant, and that she had remained at home.
[10]
The J88 medico-legal report concluded that there was strong evidence
of traumatic vaginal penetration,
which was evinced by a fresh tear
to the posterior fourchette, and fresh blood emitting from the vagina
and cervix. This, one day
after the incident. The State submitted
that the medical examination supported on the probabilities, the
complainant’s evidence
that she had not consented to sexual
intercourse with the appellant.
[11]
The appellant testified on his own behalf and called no other
witnesses. According to the appellant,
he and the complainant had
known each other for some time and had agreed to date. The
complainant would regularly visit his home.
On 30 September
2022, they were due to meet at the bus stop in front of her home, but
she had not been there. He searched
for her, and eventually found the
complainant at the home of Tokota’s boyfriend. He berated the
complainant for not honouring
their meeting and thereafter, stood up
to leave. On his way out, the complainant followed him. He denied
having touched the complainant,
and instead, asserted that they
walked together through sixth avenue, without any attempt by the
complainant to flee from him.
He also denied that he had slapped the
complainant. On arrival at his home, he switched on the lights, and
they sat on the bed.
He denies having pushed the complainant onto the
bed, and asserted instead, that the complainant had consented to
sexual intercourse.
According to the appellant, no one arrived at his
home looking for the complainant. After they had sexual intercourse,
they fell
asleep and woke up at approximately seven o’ clock in
the morning, which is when the complainant left of her own accord.
[12]
In this court, and in respect of his conviction, the appellant
contented that the trial court
erred in finding that the State had
proven its case beyond a reasonable doubt, and further erred in
rejecting the defence of the
appellant. In support of these grounds,
the appellant called in aid a single contradiction which emerged from
the evidence. The
contradiction is expressed as follows in the heads
of argument prepared by counsel for the appellant:
“
Sonwabile
Kuthula testified under cross examination that when they go to the
house of the appellant where the complainant said she
was taken, she
did not sound to be terrified, where he was standing it looked like
everything was okay inside the shack, this is
why he went back home.
If she was being
threatened or crying he would have saved her.”
[13]
This court reminded counsel for the appellant of the trite principle
that evidence and more specifically
in this case: a single
contradiction, ought not to be considered and assessed in isolation.
Instead, it must be considered and
assessed in the context of the
evidence in its totality. And queried with counsel, whether the
appellant’s ground of appeal
in respect of his conviction was
consistent with this principle. Counsel for the appellant conceded,
correctly so, that it was
inconsistent. As stated by the Supreme
Court of Appeal in
S
v Chabalala
:
[1]
“
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 weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[14]
The evaluation of evidence in a criminal trial requires an evaluation
of the ‘mosaic of
evidence as a whole’.
[2]
The context within which the appellant has sought to cast his ground,
was aptly addressed
S
v van der Meyden
[3]
:
“
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.
These are not
separate and independent tests, but the expression of the
same
test
when viewed from the opposite perspective.
In order
to convict, the evidence must establish the guilt of the accused
beyond reasonable doubt which will be so only if there
is at
the
same
time no reasonable
possibility that an innocent explanation which has been put forward
might be true. The two are inseparable,
each being the logical
corollary of the other
...
in whatever
the form the test is expressed, it must be satisfied upon a
consideration of all the evidence. 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, it does
not look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that
it might be true
."
(own emphasis).
[15]
This court’s powers to interfere on appeal with the findings of
fact of a trial court are
limited. Absent demonstrable and material
misdirections by a trial court, its findings of fact are presumed to
be correct.
[4]
That presumption
remains, unless the evidence establishes them to be clearly wrong.
[5]
[16]
In my view, the appellant was correctly convicted in respect of both
counts. The trial court
was mindful and indeed, applied the
cautionary rule in respect of the single witness testimony of the
complainant insofar as the
rape count was concerned.
[6]
It furthermore applied the general principle concerning the
evaluation of evidence, with reference to the
dictum
in
S v
Trainor
[7]
.
In this regard, and by means of a limited example, the trial court
inter
alia
held as follows:
“
If one looks at
the evidence in totality that complainant was forcibly taken is more
probable because that is the very reason why
Sonwabile decided to
follow them and attempt to rescue the complainant. After witnessing
the accused assault the complainant he
made a further attempt to
rescue the complainant from the accused by organising a group of
friends as a backup because he feared
the accused. That complainant
is scared and ran away in the morning makes the state very much
probable.
The defence version on
the other hand is improbable in that if the complainant and the
accused were lovers why would people worry
about complainant's safety
and follow her and follow her on the way. Because that would not have
been concerning any concern.”
[17]
In addition, the trial court addressed the contradictions apparent
from the evidence of the State
witnesses, but held correctly that
they were not of a material nature, such as to justify rejection of
their evidence. The discrepancies
in the evidence of the appellant,
stood on a different footing. The trial court considered these to be
‘pockets of recent
fabrication’ in that the appellant
inexplicably adduced evidence, which was not put to the State
witnesses.
[18]
The credible evidence of the complainant and the corroborative
testimony of the State witnesses,
together with the contents of the
J88 medico-legal report, confirmed that the appellant’s version
and explanation were not
only improbable but were false beyond a
reasonable doubt.
[19]
In the result, and given the established falsity of the appellant’s
explanation, his conviction
on both counts must be sustained.
[20]
At the outset of the trial, the appellant had been
informed that
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
, relating to a minimum sentence of life imprisonment, would be
of application in the event of a conviction in respect of count 2,
unless substantial and compelling circumstances were found to exist
justifying the imposition of a lesser sentence.
[21]
The appellant appeals against the imposition of the minimum sentence
of life imprisonment on
the basis that it is ‘shockingly
inappropriate’. The appellant contends that the trial
court erred in the following
respects: (a) by not taking proper
account of the fact that the appellant’s previous conviction in
respect of rape had occurred
sixteen (16) years prior to the rape of
the complainant on 30 September 2022; (b) by not taking proper
account that the appellant
had already spent fourteen (14) months in
custody awaiting trial; (c) by not taking proper account that the
complainant sustained
no serious injury as a result of the rape, and
(d) by finding that no substantial and compelling circumstances
existed which warranted
deviation from the minimum prescribed
sentence of life imprisonment.
[22]
A
court
of appeal ought not to lightly interfere with the trial court’s
exercise of its discretion in relation to sentence.
[8]
In Du Toit’s commentary
[9]
,
the learned authors observe that:
“
A
court of appeal will not, in the absence of material misdirection by
the trial court, approach the question of sentence as if
it were the
trial court and then substitute the sentence arrived at by it simply
because it prefers it. To do so would be to usurp
the sentencing
discretion of the trial court…”
[23]
This principle found expression in
S
v Hewitt
,
[10]
where 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 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.”
[24]
In
S
v Malgas,
[11]
Marais JA explained the rationale informing the prescribed minimum
sentence:
“…
The
very fact that this amending legislation has been enacted indicates
that Parliament was not content with that and that it was
no longer
to be “business as usual” when sentencing for the
commission of the specified crimes.
…
In
what respects was it no longer business as usual? First, a court was
not to be given a clean slate on which to inscribe whatever
sentence
it thought fit. Instead, it was required to approach that question
conscious of the fact that the legislature has ordained
life
imprisonment or the particular prescribed period of imprisonment as
the sentence which should ordinarily be imposed for the
commission of
the listed crimes in the specified circumstances. In short, the
legislature aimed at ensuring a severe, standardised,
and consistent
response from the courts to the commission of such crimes unless
there were, and could be seen to be, truly convincing
reasons for a
different response.”
He continued by
explaining the core meaning to be attached to the words ‘substantial
and compelling’:
“
Secondly,
a court was required to spell out and enter on the record the
circumstances which it considered justified a refusal to
impose the
specified sentence… Moreover, those circumstances had to be
substantial and compelling. Whatever nuances of meaning
may lurk in
those words, their central thrust seems obvious. The specified
sentences were not to be departed from lightly and for
flimsy reasons
which could not withstand scrutiny.”
[25]
And in
S
v Vilakazi,
[12]
Nugent JA set out the approach to be adopted by courts where the
minimum sentence legislation finds application:
“
It is clear
from the terms in which the text was framed in Malgas and
endorsed in Dodo that it is incumbent
upon a court in every
case, before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of
the particular case,
whether the prescribed sentence is indeed proportionate to the
particular offence. The Constitutional Court
made it clear that what
is meant by the “offence” in that context …
consists of all factors relevant to the
nature and seriousness of the
criminal act itself, as well as all relevant personal and other
circumstances relating to the offender
which could have a bearing on
the seriousness of the offence and the culpability of the offender.”
[26]
In seeking to meet this threshold, the appellant placed reliance on
his personal circumstances,
which form his grounds of appeal against
the imposed sentence. His personal circumstances however, are
unremarkable. As concluded
by the trial court, the only circumstance
worthy of consideration was his incarceration for a period of
fourteen (14) months whilst
awaiting trial. But even in this
instance, the trial court correctly identified it as a mere factor
that ought to be considered.
[13]
[27]
Ultimately, the trial court held that no substantial and compelling
circumstances existed which
merited deviation from the imposition of
life imprisonment.
[28]
In
Maila
v S
,
[14]
the court dealt with mitigating factors raised on behalf of an
appellant, which were not dissimilar to the factors raised by the
appellant in these proceedings. The Court held as follows:
“
Taking into
account Jansen, Malgas, Matyityi, Vilakazi and a
plethora of judgments which follow thereafter as well
as regional and
international protocols which bind South Africa to respond
effectively to gender-based violence, courts should
not shy away from
imposing the ultimate sentence in appropriate circumstances, such as
in this case. With the onslaught of rape
on children, destroying
their lives forever, it cannot be ‘business as usual’.
Courts should, through consistent sentencing
of offenders who commit
gender-based violence against women and children, not retreat when
duty calls to impose appropriate sentences,
including prescribed
minimum sentences.
Reasons such as lack of physical injury,
the inability of the perpetrator to control his sexual urges, the
complainant (a child)
was spared some of the horrors associated with
oral rape, which amount to the acceptance of the real rape myth, the
accused was
drunk and fell asleep after the rape, the complainant
accepted gifts (in this case, sweets) are an affront to what the
victims
of gender-based violence, in particular rape, endure short
and long term. And perpetuate the abuse of women and children by
courts
. When the Legislature has dealt some of the
misogynistic myths a blow, courts should not be seen to resuscitate
them by deviating
from the prescribed sentences based on personal
preferences of what is substantial and compelling and what is not.
This will curb,
if not ultimately eradicate, gender-based violence
against women and children and promote what Thomas Stoddard calls
‘culture
shifting change.”
(emphasis supplied)
[29]
In conclusion, no grounds exist warranting interference with the
imposition of life imprisonment
in respect of count 2 concerning the
rape of the complainant.
[30]
Similar considerations apply in respect of count 1 concerning the
kidnapping of the complainant.
There is no basis for suggesting that
the Magistrate exercised his discretion improperly or misdirected
himself. Nor is the sentence
imposed disturbingly inappropriate or
disproportionate that no reasonable court would have imposed it. Here
too, no basis exists
warranting interference with the sentence.
Order
[31]
In the result, the following order is issued:
The appeal against
conviction and sentence is dismissed.
D.T.
YOUNG
ACTING
JUDGE OF THE HIGH COURT
I
agree.
T.V.
NORMAN
JUDGE
OF THE HIGH COURT
APPEARANCES:
For the
APPELLANT
: MR
SOLANI
Instructed
by
: LEGAL
AID BOARD SOUTH AFRICA
MAKHANDA
TEL: 046 622 9350
FAX: 046 622 8873
For the
RESPONDENT
:
MS
HENDRICKS
Instructed
by
:
DIRECTOR OF PUBLIC PROSECUTIONS
HIGH STREET
MAKHANDA
Matter
heard on
:
11September 2024
Judgment
delivered on :
01 October 2024
[1]
2003
(1) SACR 134
(SCA) at page 140 A – B.
[2]
Khumalo
v S
(723/20)
[2022] ZASCA 39
(4 April 2022) at para [19]: “
Considering
all the circumstances of this case, I am of the view that the
evidence tendered by the State weighs so heavily as
to exclude any
reasonable doubt about the applicant’s guilt. Expressed
differently, the mosaic of the evidence as a whole
is, beyond
reasonable doubt, inconsistent with the applicant’s innocence.
The inescapable inference is that the applicant
was the aggressor on
the night of the incident; that he shot at the complainant, chased
him into a yard, fired more shots at
the complainant and then robbed
him of his money.”
[3]
1999
(1) SACR 447
(WLD) at 448 F – H.
[4]
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 705.
[5]
S
v Monyane and Others
2001
(1) SACR 543
(SCA) at para [15].
[6]
S
v Sauls and Others
1981
(3) SALR 172 (A).
[7]
2003
(1) SACR 35 (SCA).
[8]
S
v Romer
2011
(2) SACR 153
(SCA) and
S
v Livanjee
2020 (2) SACR 451
(SCA).
[9]
E du Toit (et al),
Commentary
on the Criminal Procedure Act
(Jutastat, RS 66, 2021) at ch30-p42A.
[10]
2017
(1) SACR 309 (SCA)
[11]
2001
(1) SACR 469
(SCA) at paras 7 – 9.
[12]
2009
(1) SACR 552
(SCA) at para 14.
[13]
S
v Radebe
2013
(2) SACR 165
(SCA) at para 14: “
A
better approach, in my view, is that the period in detention
pre-sentencing is but one of the factors that should be taken into
account in determining whether the effective period of imprisonment
to be imposed is justified: whether it is proportionate to
the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the Criminal Law Amendment
Act 105 of 1997
(15 years’ imprisonment for robbery), the test is not whether
on its own that period of detention constitutes
a substantial or
compelling circumstance, but whether the effective sentence proposed
is proportionate to the crime or crimes
committed: whether the
sentence in all the circumstances, including the period spent in
detention prior to conviction and sentencing,
is a just one.”
[14]
[2023]
ZASCA 3
(23 January 2023) at para 59.