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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT , KIMBERLEY)
Case no: CA&R 11/2022
HEARD ON: 04-03-2024
DELIVERED : 16-05-2025
REPORTABLE: YES/NO
CIRCULATE TO JUDGES YES/NO
CIRCULATE TO MAGISTRATES YES/NO
In the matter between:
LUZOKO WAYNE MBAYEKA Appellant
AND
THE STATE Respondent
CORAM: WILLIAMS J et NXUMALO J
JUDGMENT
WILLIAMS J :
1. The appellant was convicted on 26 January 2022, in the Regional Court,
Kimberley on two count s of contravening the provisions of s 3 read with
s1, 56(1), 5 1, 57, 58, 59, 60 and 61 of Act 32 of 2007 (rape) and further
read with the provisions of s 51(1) of Act 105 of 1997.
The charges were taken together for sentencing purposes and the
appellant was given a sentence of life imprisonment. This appeal lies
against the convictions and sentence imposed.
2. The grounds of appeal can be summarized as follows:
2.1 Ad conviction:
2.1.1 That the trial court erred in accepting the evidence of the
complainant , a single witness , as being credible and reliable;
2.1.2 That the trial court erred in not considering the contradictions in
the evidence of the state witnesses as material;
2.1.3 The trial court erred in rejecting the evidence of the appellant;
and
2.2 Ad sentence:
2.2.1 That the trial court erred in finding that there were no substantial
and compelling circumstance s present which would justify a
deviation from the prescribed minimum sentence of life
imprisonment; and
2.2.2 The sentence of life imprisonment is shockingly harsh and
inappropriate in the circumstances.
3. The complainant, Ms JM, a 40 year old woman, testified that on the
afternoon of 9 November 2019, after cleaning her uncle’s house , she got a
lift home with the appellant. She did not know the appellant but was
assured by her aunt S[...] that it would be sa fe to accept a lift with him.
4. After buying some beers and dropping off his friend Thabo , the appellant
told the complainant that he first had to attend to some livestock which he
had on the outskirts of town , after which he would take her home. The
appellant instead drove to a shack where he stopped his vehicle and
asked the complainant to go in with him to chat for a few minutes. She
entered into the shack with him because her aunt had told her she would
be safe with him. By then it was between 19:00 and 20:00.
5. Once inside the shack, the appellant pushed the complainant against the
corrugated iron the dwelling was constructed of, so that she found herself
stuck between a bed and the wall of the shack. She testified that she
screamed at that stage.
6. The complainant testified that she asked the appellant to assist her to ge t
up from where she had fallen but that once she had gotte n up, he pushed
her onto the bed and pulled off her dress and panties. She fought with
him but he slapped her with an open hand and pulled her braids.
Thereafter he held her down by the right wrist and raped her. The
complainant testified that the appellant had undressed himself while she
was stuck between the bed and wall and was already naked when he
threw her onto the bed.
7. After the appellant had raped her, he accused the complainant of takin g
his car keys. He hit her again and thereafter proceeded to rape her for a
second time. She had been screaming and while the appellant was still
busy raping her, some people started knocking on the door of the shack
and shouted for the appellant to open up. When the appellant opened the
door, still naked, the complainant managed to run out of the shack,
dressed only in her bra. She then fainted. According to the complainant
she woke up to find herself in the hospital.
8. During cross -examination the complainant was confronted with the
statement she had made to the police the day after the incident. In this
statement the complainant related that she had told the witnesses who
had come to her assistance, after she had escaped from the shack, that
she had been raped. She also stated that one of the women told her that
she had heard the screaming and that another woman had shone her
cellphone torch in her face and had recognized her and called her uncle
and the police, that the police van arrived but did not approach them, that
the appellant had driven off in his vehicle, and that they had been taken to
the police station by the woman who had called the police and her
husband. She also stated that she told the police officer at the police
station that the appellant had not used protection when he was raping her.
In her evidence in court the complainant testified that she could not
remember anything after she had fainted and had only woken up in
hospital.
9. During her cross -examination regarding this inconstancy, the complainant
answered that she had not told anybody outside the shack what had
happened and that she could not remember saying that to the police
officer who took down her statement.
10. The complainant had also at one stage during her cross -exanimation
stated that the appellant had started looking for his keys after he had
raped her the second time. When cross -examined about this
inconsistency, she respondent by stating that she could not remember
testifying in that fashion.
11. Ms M Mpondo and Mr E Singozo, who were sitting in front of Ms Mp ondo’s
shack, about 25 meters away from the shack used by the appellant,
testified in the state’s case. They had heard the complainant screaming
and crying for help. They also heard banging against the corrugated iron
of the appellant’s shack.
12. They went to investigate, banged on the door of the shack and shouted for
the door to be opened. They heard the appellant say “voetsek” from
inside the shack before the door was opened. A woman dressed only in a
bra, came running out of the shack and fainted. The appellant, who stood
in the door of the shack , had held, according to Ms Mpondo, a black cloth,
like a vest , in front of his genitals , but was otherwise naked. According to
Mr Singozo, the appellant had a vest on.
13. Ms Mpondo called for someone to bring a blanket to cover the
complainant and asked that the police be called. During that time the
appellant had entered his shack again and c ame out fully clothed. He got
into his car and drove off.
14. Mr Singozo had seen a police van patrolling and had gone to inform the
police of the incident. When he arrived at the police van the appellant was
already speaking to the police. He saw the appellant get back into his car
and the police van follow ed him. The police never attended to the scene
that night.
15. According to Ms Mpondo and Mr Singozo, the complainant did not speak
to them that night.
16. Ms L Diamond who had also heard the commotion from her shack , joined
the group. At the time the complainant was standing and speaking to Ms
Mpondo and Mr Singozo very fast, telling them that the appellant had slept
with her and that he wanted his car keys. The complainant then fainted.
Someone sprinkled water over her and covered her with a blanket.
17. When the complainant recovered she explained that the appellant was
supposed to give her a lift home but that he brought her to the shack to
sleep with her. The complainant fainted again and she was then taken to
the police station in Ms Diamonds’ husband’s vehicle, accompanied by Ms
Mpondo, Mr Sigozo and Ms Diamonds . According to Ms Diamond s when
she firs t saw the appellant at his shack he was completely naked, but later
came back out with a vest tied around him like a skirt.
18. Ms Diamond s knew the complainant’s uncle, Oom L[...] B[...] , and called
him to tell him that his niece was with them and what had happened to
her. The complainant’s uncle told her that the appellant was with him and
that they would go to the scene.
19. Mr T Malope, the complainant’s uncle testified that after Ms Diamond s had
called him to tell him that his niece had been raped, he went outside
looking for a lift to take him to the scene. He saw the appellant’s car stop
across the street and heard the appellant calling for his friend Thabo. Mr
Malop e saw Thabo approach the appellant ’s vehicle and talk with the
appellant through the window. When Mr Malop e approached them , he
insisted that the appellant take him to the scene. He could see that both
Thabo and the appellant appeared to be afraid of him. When he got into
the car the appellant told him that he did not rape the complainant and that
the complainant’s panties were behind the dr iver’s seat. Mr Malopa
testified that he was so hurt by what had happened that he did not look for
the panties.
20. At the scene, Mr Malope found the complainant lying down, covered with a
blanket. At some stage she tried to stand up but fell down again. They
waited for the police, but eventually went to the police station in Ms
Diamon d’s vehicle.
21. Constable Speek, who was on patrol duty with a colleague that specific
night testified that they had received a complaint about a rape which had
been committed at Lerato Park and had arranged to meet the caller at a
tuckshop since the informal settlement was still new and there were no
street names . He waited at the tuckshop, but when no none appeared he
patrolled the area. A vehicle stopped next to them and the driver, the
appellant, informed them that there were people chasing him who wanted
to pelt his vehicle with stones, accusing him of having committed a sexual
offence. At the time there was another man in the vehicle with the
appellant. Constable Speek stated that because he did not know at the
time if the appellant was connected to the complaint received , he told the
appellant to go home and should he be identified as the suspect he would
be arrested at his home.
22. Dr M Mulunga examined the complainant at the local hospital in the early
hours of the next morning. He also compiled the J88 medical report . His
evidence was that he did not notice any lesions or marks on the
complainant ’s body. He testified that whether or not a person would be
left with bruises or marks due to being slapped would depend on the force
of the slap, the lapse of time and the colour of the victim ’s skin. On
examination of the genitalia of the complainant the doctor found no
abnormalities except for a yellowish discharge due to an infection incurred
most probably prior to the event. Dr Mulunga explained that the vaginal
muscles of a woman who had given birth to children would be used to
dilation and expansion and that it could be the reason why some women
have minimal or no lesions after a rape. The complainant had three
children of her own.
23. The only other relevant witness for the state was Ms S[...] M[...] , the
complainant’s aunt. Her evidence was that at about 17:00 to 18:00 that
specific day she was walking to a friend’s house when she saw the
appellant’s vehicle parked in front of the house she was about to visit. As
she approached the vehicle she saw the complainant leaning against it.
She stopped and greeted the complainant and asked her if she knew the
appellant. The complainant responded by saying that she was just asking
for a lift. Ms M[...] told the complainant that it was her choice if she took a
lift with the appellant and his friend Thabo, but if it were up to her she
would not do it because it was obvious that the appellant and Thabo had
had too much to drink. She then left them there.
24. The appellant testified in his own defence. His evidence was that he had
gone to pick up his friend Thabo at about 14:00 that specific Saturday to
watch a televised soccer match in Barkly West. At Thabo’s house, a male
by the name of Martin approached his vehicle and asked if he could give
his cousin, the complainant , a lift to Club 2000 . He agreed. The
complainant, whom he did not know, then came to stand next to his
vehicle. While standing there, Ms M[...] came to speak to the complainant.
When Ms M[...] left, the complainant got into the vehicle with the appellant
and Thabo.
25. According to the appellant, he stopped at a bottle store called Tikibar,
where he asked Thabo to buy two beers for them. When Thabo returned
with the beers, he drove on. The complainant started chatting with him,
telling him that she would also like a beer. The appellant then stopped at
another bott lestore and gave Thabo money to get the complainant two
beers. While Thabo was in the store, he and the complainant conversed
and he could see that she had now become relaxed. She asked him
where he and Thabo were going and when he told her they were going to
Barkly -West, she told him that she was not in a hurry and would go with
them.
26. On the road to Barkly -West the appellant realised that the energy and the
situation between him and the complainant had changed and he no longer
wanted to go to Barkly -West. He then turned back to the location where
he dropped Thabo off at Tikkibar and told the complainant that he has the
keys to a friend’s shack where they could go and relax and finish their
drinks. She agreed.
27. When they got to the friend’s shack, they first sat in the car chatting before
going inside. Inside the shack , they drank some more, then started
kissing . The appellant undressed himself, whereafter the complainant
undressed and they then had consensual sexual intercourse. After
chatting for a while, they both fell asleep.
28. The appellant testified that when he woke up at about 20:00 he could not
find his keys and his clothes. At the time he was wearing a black boxer
shorts and a vest. He shouted at the complainant while looking for his
clothes and keys and she talked back loudly as well. He said that i t could
have sounded as if they were arguing . He eventually found his keys,
wallet and clothes on the side of the mattress and apologised to the
complainant. She then started screaming. There were people outside
asking what was happening. The complainant then ran outside, dressed
only in a bra, and after taking three steps outside , she fell.
29. He was astounded as to why the complainant would have fallen as she
was just lying on the ground with her eyes open, showing no signs of life.
Ms Mpondo accused him of raping the complainant. Ms Diamonds and
her husband also came to the scene. The appellant went back into the
shack and got dressed and left to get either the police or an ambulance.
30. As he was driving, however, he decided to fetch Thabo to assist him with
the complainant. He found the complainant ’s uncle, Mr Malope outside
Thabo’s house . He said that he had received information that the
appellant had raped his niece, the complainant.
31. The appellant took Mr Malope to the scene where the complainant was
still lying. He dropped Mr Malope off and decided to proceed to the police
station. On his way he saw Constable Speek’s police van and waved at it.
He testified that he knew Speek as they had worked together at some
stage. He asked Speek if they were going to the scene and informed him
that he was the person who had been with the complainant. Speek then
asked him if he had been drinking and when he answered in the
affirmative , Speek to ld him to go straight home and if the incident turned
out to be serious and the complainant goes to the police station , they
would know where to find him. The appellant then dropped Thabo off and
went home.
32. The appellant denied that he had assaulted or raped the complainant. He
denied that she had cried for help and maintained that the complainant
had only screamed as a result of the argument they had over his missing
keys.
33. In considering the evidence the trial court indicated that it was mindful of
the fact that the complainant was a single witness and that the cautionary
rule applie d. Whether the trial court paid mere lip service to this rule or
failed to apply the rule properly, as argued by the appellant, is what needs
to be determined in this appeal.
34. The attack on the judgment of the trial court in this regard is two -pronged:
firstly, that the trial court failed to properly consider the discrepancies and
inconsistencies in the viva voce evidence of the complainant a nd what
was contained in her statement to the police; and secondly, that given the
unreliability of the version of the complainant, and there being no
corroboration in the doctor’s evidence, the trial court should have found
the version of the appellant to be reasonably possibly true.
35. The discrepancies regarding the state witnesses relate to ; when and how
many times the witnesses , who had come to the aid of the complainant ,
had heard her scream ; whether the complainant had spoken to any of
them after she had recovered from fainting ; what the appellant was
wearing when he first came out of the shack ; and the inconsistency
between the evidence of Ms S[...] M[...] and the complainant as to how it
came about that the complainant accepted a lift with the appellant.
36. The trial court dealt with these discrepancies in the evidence of the state
witness in some detail and found that it was not material when the
evidence was considered as a whole.
37. In dealing with the evidence of the complainant, t he trial court adopted the
approach to contradictions between the police statement of a witness and
the evidence of such a witness as was described in S v Mafal adiso en
Andere 2003(1) SACR 583 (SCA) at 593e -594h. Nepgen J in S v
Govender and Others 2006(1) SACR 322 (ECD) gives a handy translation
of this approach at 325h – 326c, which I borrow and repeat herein as
follows :
“The juridical approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such as, inter
alia, between her or his viva voce evidence and a previous statement ) is,
in principle (even if not in degree), identical. Indeed, in neither case is the
aim to aim to prove which of the versions is correct, but to [establish] that
the witness could err, either because of a defective recollection or
because of dishonesty. The mere fact that it is evident that there a re self -
contradictions must be approached with (circumspection ) by a court .
Firstly, it must be carefully determined what the witnesses actually meant
to say on each occasion, in order to determine whether there is an actual
contradiction and what the precise nature thereof [is]. In this regard the
adjudicator of fact must keep in mind that a previous statement is not
taken down by means of cross -examination, that there may be language
and cultural differences between the witness and the person taking down
the statement which can stand in the way [of the correctness] of precisely
what was me ant, and that the person giving the statement is seldom, if
ever, asked by the police officer to explain (hi s or her) statement in detail.
Secondly, it must be kept in mind that not every error by a wit ness and not
every contradiction or deviation affects the credibility of a witness. Non -
material deviations are not necessarily relevant. Thirdly, the contradictory
versions must be considered and evaluated on a holistic basis. The
circumstances under which the versions were made, the proven reasons
for the contradictions, the actual effect to the contradictions with regard to
the reliability and credibility of the witness, the question whether the
witness was given a sufficient opportunity to explain the contradictions –
and the quality of the explanations - and the connection between the
contradictions and the rest of the witness’ evidence [must], amongst other
factors, be taken into consideration and weighed up. Lastly, there is the
final task of the trial Judge, namely to weigh up the previous statement
against the viva voce evidence, to consider all the evidence and to decide
whether it is reliable or not and to decide whether the truth has been told,
despite any shortcomings.”
38. The trial court considered the contradictions in the complainant’s viva voce
evidence and found that the complainant had made an honest mistake,
which she herself corrected, when she testified during cross -examination
that the argument about the key ensued after the second rape had
occurred. The trial court furthermore found with regard to the
complainant’s police statement and her evidence, that the complainant
was by all accounts traumatised after the incident and that when the
corroborative evidence of the independent witnesses is taken into account,
such as the screaming and crying for help by the complainant, the banging
against the corrugated iron of the shack, the fact that the complainant ran
out of the shack naked, and traumatised and had fainted, the deviations in
her evidence were not material. Taking into account the totality of the
evidence before the trial court, it was found, correctly in my view, that the
complainant’s evidence regarding the material facts be believed and that
of the appella nt rejected. The fact that there was no medical corroboration
of the rapes , is in my view a neutral factor, which as explained by the
doctor, could be attributed to the fact that the complainant was an adult
woman with three children and that in such circumstances , the absence of
injuries to the genitalia of the complainant would not necessarily negate a
complaint of rape.
39. In S v Sauls and Others 1981(3) SA 172, (AD), the Appellant Division held
as follows at 180 E -F.
“There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness. The trial Judge will
weigh his evidence , will consider its merits and demerits and, having done
so, will decide whether it is trustworthy and whether, despite the fact that
there are shortcomings or defect s or contradictions in the testimony, he is
satisfied that he truth has been told.”
40. It is also useful to consider the warning expressed in S v Snyman 1968(2)
SA 583 (A) at 585 G, that when dealing with the evidence of a single
witness, courts should not allow the exercise of caution to displace the
exercise of common sense.
41. In my view th e trial court correctly convicted the appellant on the two
counts of rape he was charged with.
42. As far as the sentence is concerned, it is trite that the sentencing
discretion lies pre -eminently with the sentencing court and should be
exerci sed judiciously and in line with the established principles governing
sentencing. In circumstances where there is an appeal against a
sentence imposed in terms of the Criminal Law Amendment Act 105 of
1997, the proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial and compelling, or not
(see S v PB 2013 (2) SACR 53 (SCA) at 539 e -g).
43. The trial court found that there were no substantial and compelling
circumstances present to justify a departure from the prescribed sentence
of life imprisonment. The question to be answered now is whether the trial
court erred in making such a finding.
44. The appellant was 45 years old at the time of sentencing. He is not
married but had been living with a woman for 6 years before his arrest.
They have one minor child who was 2 years old at the time of sentencing.
The appellant has eleven other children ranging in ages from 7 years to 24
years old. He maintained eight of his children before his arrest.
45. The appellant had been in the South African Police Service for sixteen
years before his arrest and had achieved the rank of sergeant. He had
been in custody for just over two years pending the finalisation of the trial.
46. The appellant has one previous conviction for driving while his blood
alcohol concentration exceeded the legal limit , for which he was
sentenced to a fine during 2015. This previous conviction is not relevant
for purposes of sentencing.
47. There is no doubt that rape is a repulsive crime and that the incidence of
rape in this country is escalating. In these circumstances Nugent JA has
stated in S v Vilakazi 2009(1) SACR S 52 (SCA), at paragraph 3, that:
“ . . . There is considerable risk in those circumstances that excessive
punishment will be heaped on the relatively few who are convicted in
retribution for the crimes of those who escape or in the despairing hope
that it will arrest the scourge. But the Constitutional Court reminded us in S
v Dodo that punishment must always be proportionate to the deserts of the
particular offender – no less but also no more – for all human beings
‘ought to be treated as ends in themselves, never merely as means to an
end’.”
48. In S v SMM 2013 (2) SACR 292 (SCA) , Majiedt JA stated the following at
297 b -e:
“. . .that each case must be decided on its own merits. It is also self -
evident that sentence mush always be individualised, for punishment must
always fit the crime, the criminal and the circumstance s 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 are involved in 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. Sentencing involves a very
high degree of responsibility which should be carried out with equanimity.
As Corbett JA put it in S v Rabie :
‘A judicial officer should not approach punishment in a spirit of anger
because, being human, that will make it difficult for him to achieve that
delicate balance between the crime, the criminal and the interests of
society which his task and the objects o f punishment demand of him. Nor
should he strive after severity; nor, on the other hand, surrender to
misplaced pity. While not flinching from firmness, where firmness is called
for, he should approach his task with a humane and compassionate
understanding of human frailties and the pressures of society which
contribute to criminality.’
49. Bearing in mind the above -mentioned dicta, it is my view clear that the trial
court has had little consideration for the individualization of sentencing.
The trial court erred in over -emphasising the prevalence of the crime at
the expense of the appellant’s favourable personal circumstances. The
trial court also erred by finding that the fact that the appellant raped the
complainant twice was an aggravating factor. The very fact of multiple
rapes brings this offence within the purview of s 51(1) of the Act and
should therefore not be considered as an aggravating factor. The fact that
the appellant pleaded not guilty and maintained his innocence throughout
led to the trial court finding that the appellant ha d no remorse for his
actions. Whilst this may be so, it does not mean that the appellant is not
capable of rehabilitation . To have reached the age of 43, when these
offences were committed, with no previous convictions for any offences
where violence was involved, in my view, is a sure indication that the
appellant is capable of rehabilitation.
50. While there can be no argument that the rapes have had a traumatic effect
on the complainant – in her victim impact report she stated that she now
has to take medication for depression and has attempted suicide several
times since the incident – the doctor who examined the complainant found
no physical injuries. To arrive at a just and proportionate sentence, this is
a factor to be considered cumulatively with the other relevant factors (see
S v SMM at paragraph 26).
51. Taking all the relevant factors into consideration, the imposition of life
imprisonment is in my view grossly disproportionate to the offence. We
are therefore obliged to set aside the sentence and impose sentence
afresh. Regard being had to the seriousness of the offence ; a lengthy
period of imprisonment is the only appropriate sentence. I would consider
a sentence of 22 years imprisonment appropriate in the circumstances.
However, taking into account the fact that the appellant had spent about 2
years in custody pre -sentence, a sentence of 20 years imprisonment
would be proper.
Taking all the relevant factors into consideration, the imposition of life
imprisonment is in my view grossly disproportionate to the offence . We
are therefore obliged to set aside the sentence and impose sentence
afresh. Regard being had to the seriousness of the offence ; a lengthy
period of imprisonment is the only appropriate sentence. I would consider
a sentence of 22 years imprisonment appropriate in the circumstances.
However , taking into account the fact that the appellant had spent about 2
years in custody pre -sentence, a sentence of 20 years imprisonment
would be proper.
In the circumstances the following order is made:
1. The appeal against the convictions is dismissed.
2. The appeal against the sentence imposed is upheld and the
sentence imposed by the trial court is set aside and replaced with
the following:
“The accused is sentence to 20 years imprisonment”.
3. The sentence is antedated to 22 February 2022.
CC WILLIAMS
JUDGE
I concur
APS NXUMALO
JUDGE
For Appellant : Mr K Biyela
Legal Aid SA
For Respondent : Adv S K Weyers -Gericke
Office of the DPP