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1995
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[1995] ZASCA 126
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S v Mkhize (660/94) [1995] ZASCA 126 (13 November 1995)
CASE NO: 660/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
C P MKHIZE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: E M GROSSKOPF, VIVIER et OLIVIER
JJA
HEARD
: 13 November 1995
DELIVERED
: 13 November 1995
TRANSCRIPT OF REASONS GIVEN ORALLY IN OPEN COURT
ON
MONDAY 13 NOVEMBER 1995 BY OLIVIER JA WITH
WHICH E M
GROSSKOPF et VIVIER JJA AGREED
.
OLIVIER JA:
The appellant, a 30 year old male, was charged in the Regional Court of
Natal at Pietermaritzburg with 2 counts of rape,
2
it being alleged by the State that he had raped the complainant on
Wednesday 19th August and again on Monday 24 August 1992. He pleaded
not guilty.
He admitted having had sexual intercourse with the complainant on the aforesaid
dated, but averred that it had taken
place with her consent and co-operation. He
was, however, convicted on both counts and sentenced to six years of
imprisonment on
each of them. Four years of the sentence on count 2 was ordered
to run concurrently with the sentence on count 1, with the result
that for the 2
rapes he has to serve 8 years imprisonment.
The appellant appealed
to the Natal Provincial Division of the Supreme Court against the convictions
and the sentences. The matter
was heard by Judge President Howard and Judge
Shearer. In a judgment by the Judge President, with which Judge Shearer
3
concurred, the appeal against the convictions and sentences
were
dismissed. The same court granted the appellant leave to appeal
to
this Court against the convictions and the sentences.
At the trial, the sole issue as regards both charges was
whether
the complainant had consented to the relevant
sexual intercourse.
The regional court magistrate believed and
accepted the
complainants evidence and rejected the appellant's evidence
as
untrue. As far as the basis of the convictions is concerned,
the
learned Judge President came to the following conclusions in
his
judgment in the court
a quo
. I quote from p139 of the
record:
"There were various gross improbabilities in the appellant's account of the
two incidents, and they have been highlighted in the magistrate's
judgement. It
is unnecessary to say more about his evidence than that I agree with the
magistrate that in various material respects
it was entirely unsatisfactory. I
am unpersuaded that the magistrate's approach to the matter
or
4
his assessment of the credibility of the complainant and the appellant
respectively was erroneous. The sole issue in the case was
that of consent, and
on that issue I consider the medical evidence of the district surgeon to be
decisive. There was no explanation
of the bruising and tenderness of her neck
muscles, save for her evidence that she had been throttled on both occasions. Mr
de Wet
had obvious difficulty with this particular evidence, and was
driven to suggesting that the neck muscles had been bruised through
over
enthusiastic kissing. That possibility seems to me to be entirely fanciful. It
is suggested too that the abrasion of the complainant's
inner thigh might have
resulted accidentally in the course of over vigorous sexual intercourse. That
seems to me to be almost equally
fanciful. In all the circumstances I am not
persuaded the magistrate erred in convicting the appellant on both
counts.
The jurisdiction of this Court to interfere with a
credibility
finding of a trial Court is limited. Where
there has been no
misdirection on fact or palpable mistake by the
presiding officer, the
presumption is that his conclusion is
correct; the appellate court will
reverse it only where it is
convinced that it is wrong.
5
I need to say no more than that I agree with the conclusions reached by
the learned Judge President in the court
a quo
and as appears from the
above-quoted portion of his judgment. I agree with the court
a quo
that
the appellant's evidence was correctly rejected by the trial
court.
As far as the sentences are concerned, it must be emphasized
that rape is always a serious crime. In the present case the appellant
committed
2 separate rapes, for each of which he received a sentence of six years
imprisonment. These sentences were, under the circumstances,
not unreasonable or
excessive. The cumulative effect of the two sentences was duly taken into
account and the effective term of imprisonment
for the two rapes was reduced to
eight years. I am not persuaded that such sentence was, on the facts of this
case,
6
excessive or inappropriate.
In the result, the appeal against
the convictions and sentences is dismissed.
E M GROSSKOPF JA)
)CONCURRED
VIVIER JA )