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[2014] ZAWCHC 38
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Gubuza v S (A 511/2013) [2014] ZAWCHC 38 (4 March 2014)
SAFLII
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Certain
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IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE
DIVISION, CAPE TOWN
Case
No: A 511/2013
DATE
04 MARCH 2014
In the matter
between:
MTSHINI
GUBUZA
......................................................................
Appellant
And
THE
STATE
................................................................................
Respondent
JUDGMENT
DELIVERED ON 4 MARCH 2014
BOQWANA J
Introduction
[1] The appellant
was arraigned before the Wynberg Regional Court for the following
charges:
1.1 Rape of A D
(‘first complainant’ ) – Counts 1 and 2;
1.2 Rape of N T
(‘second complainant’) – Counts 3 and 4
1.3 Robbery with
aggravating circumstances – Counts 5, 6 and 7.
[2] He was legally
represented and pleaded not guilty to all the charges. On 28 February
2013 he was convicted of counts 1, 5, 6
and 7 with counts 1 and 2
combined as count 1 and acquitted of counts 3 and 4.
[3] On 24 April 2013
he was sentenced to 15 years imprisonment in respect of count 1 and
15 years imprisonment for counts 5, 6 and
7. The magistrate ordered
12 years of the sentence imposed on count 5 to run concurrently with
count 1 and sentences for counts
6 and 7 to run concurrently with the
sentence on count 1. The appellant was therefore sentenced to an
effective period of 18 years
imprisonment. The appellant appeals
against both his conviction and sentence with the leave of the
Regional Court.
Background Facts
[4] Charges levelled
against the appellant emanate from an incident which occurred on 03
October 2011 at approximately 2:00 to 3:00
am , at Samora Machel
involving two young girls, a 15 year old first complainant, a 22
year old second complainant and their 20
year old male friend, Y T
(‘third complainant’). The three were walking together
from a shebeen in Samora Machel. They
testified that they had
consumed alcohol but were not drunk. As they were in the vicinity of
Spar they saw a group of four men
approaching them. According to the
first and second complainants, three of these men had scarves
covering their faces, such that
they could not be identified whilst
the fourth man, whom they identified as the appellant, had no scarf
on. The third complainant
did not notice if all four men had scarves
on, as he was frightened and only focused on the one who came to him.
That one according
to him had a scarf on.
[5] It is common
cause that the complainants were threatened with knives and a
screwdriver. The first and second complainants testified
that the
appellant threatened them with a screw driver whilst others
threatened them with knives. The appellant however places
his
identity in dispute. One of the unidentified men took the first
complainant’s cap whilst the other two robbed the second
and
third complainants of their cell phones and also took R10 cash which
belonged to the second complainant. The appellant took
nothing and
there was no communication between the men whilst this occurred. The
men then chased the third complainant away and
walked the first and
the second complainants to a nearby vegetable or fruit stall.
[6] According to the
first and second complainants the appellant took the first
complainant to one side of the stall and two other
men took the
second complainant inside the stall. The appellant raped the first
complainant by inserting his penis twice in her
vagina.
[7] Inside the stall
the second complainant was raped by two of the men who had scarves on
their faces, one after the other. After
the ordeal the two young
complainants went to the police to report the incident. They also
went to the hospital for medical examination.
Dr Ntoi, who examined
the first complainant, testified that there was evidence of
penetration, being redness, tenderness and weakened
skin in the first
complainant’s posterior fourchette and a white discharge which
was consistent with her version that she
was raped. Dr Bagasa, who
examined the second complainant, also noticed a white discharge from
the second complainant’s genitalia
which could be possibly
semen. No further injuries were noted in the second complainant’s
vagina but penetration could not
be excluded. Swelling and redness
was however noticed in the anal area of the second complainant which
was compatible with forceful
penetration (although the second
complainant did not allege anal rape). Both doctors took swabs from
the complainants’ bodies
for DNA testing. It is not clear what
happened to those swabs as no DNA evidence was presented before the
trial court.
[8] The appellant
denied that he raped the first complainant and was involved in their
robbery. He raised an alibi stating that
on the day in question he
was sleeping at his home having been there since 8 o’clock in
the evening and never left. He testified
that he knew the
complainants and had in fact seen them drunk at the shop earlier in
the day.
[9] The magistrate
found the appellant guilty of the rape of the first complainant.
Applying the principles of complicity and liability
the magistrate
found that there was no action on the part of the appellant in
respect of the second complainant’s rape. She
however found him
guilty of robbery with aggravating circumstances on the basis of
common purpose. The magistrate found that no
substantial and
compelling circumstances existed warranting deviation from the
minimum sentence prescribed. She further found that
the state had
neglected to prove the first complainant’s age and therefore
the minimum sentence applicable in respect of
the rape count would be
10 years imprisonment. The magistrate however found that in this case
there were circumstances calling
for a sentence in excess of 10
years: which were that the complainant was young, she suffered
injuries in her genitalia and the
rape had a serious psychological
and emotional impact on her.
[10] Central to the
appellant’s grounds for appeal is the issue of his identity as
the perpetrator of these crimes. It was
submitted by the appellant’s
counsel that the magistrate misdirected herself by accepting the
state witnesses’ evidence
as reliable with regard to the
identity of the appellant without taking into account material
contradictions in their evidence.
Secondly there was no evidence that
the appellant actively participated in the robbery and should not
have been convicted on the
basis of common purpose. Thirdly, the
sentence imposed by the magistrate was shockingly inappropriate,
particularly in relation
to the rape count. It was submitted that
there was no justification to impose a sentence in excess of the
minimum prescribed in
these circumstances.
Evaluation
Identification
[11] It is trite
that evidence of identification should be treated with caution. In S
v Mthethwa 1972(3) SA 766 (A) at 768A the
Court said the following:
‘Because of
the fallibility of human observation, evidence of identification is
approached by the Courts with some caution.
It is not enough for the
identifying witness to be honest: The reliability of his observation
must also be tested. This depends
on various factors, such as the
lighting, visibility, and eyesight; the proximity of the witness; his
opportunity for observation,
both as to time and situation; the
extent of his prior knowledge of the accused; the mobility of the
scene; corroboration; suggestibility;
the accused’s face,
voice, build, gait, and dress; the result of identification parades,
if any; and, of course, the evidence
by or on behalf of the accused.
The list is not exhaustive. These factors, or such of them as are
applicable in a particular case,
are not individually decisive, but
must be weighed one against the other, in the light of the totality
of the evidence, and the
probabilities..’
[12] In the present
matter the appellant was identified by the first and second
complainants as one of the four men that stopped
them. Both
complainants testified that they knew the appellant before the
incident from seeing him around Samora Machel. The first
complainant
testified that she had known the appellant for about two to three
years prior to the incident. The appellant had often
asked for money
from her and she knew him by the name ‘Ching’.
[13] On the day in
question she recognised the appellant because his face was not
covered with a scarf. She testified that whilst
it was dark, it was
not very dark that one could not see. According to her there were no
lights on the street but only poles with
no globes. She testified
that she looked at the appellant whilst they were walking to the
stall and at the stall she had eye contact
with him, whilst he was on
top of her, and noticed that she knew him from somewhere and was sure
that it was the appellant. When
asked why she looked at him again,
she testified that she wanted to make sure that she was not mistaken
as to the identity of her
perpetrator.
[14] The record
reveals that the first complainant did not provide sufficient
information on the manner in which she was able to
identify the
appellant in the absence of street lights and was not properly
examined on this aspect. These crucial details are
however better
explained by the second complainant who testified that there were
street lights on the road next to the stall. She
also testified that
she also knew the appellant prior to the incident and that, unlike
his co-perpetrators, his face was not covered
with a scarf and she
could also recognise him because he had spots on his face. She also
testified that the appellant held the
first complainant and walked
with her to the other side of the fruit stall and she also saw the
appellant and the first complaint,
the former holding the latter’s
hand, together emerging again after her own rape ordeal.
[15] In light of the
explanation given by the second complainant, I am satisfied that
there was sufficient light provided by the
street lights situated on
the road next to where the complainants were robbed and next to the
stall where the first complainant
was raped otherwise how would they
have been able to see that they were attacked by four men three of
whom had scarves on, threatened
with knives and taken to the
vegetable or fruit stall. It is also important to note that the
appellant and the first complainant
did not go inside the stall.
They were outside the stall during the rape.
[16] It appears from
the evidence that the incident took place over an extended period of
time, from Spar to the vegetable stall
(although the first
complainant could not provide the exact amount of time the ordeal
took). If that is so, she would have a fair
amount of time to
observe the identity of the perpetrator. The first complainant also
testified that she recognised the appellant’s
voice when he
threatened to kill her mother if she reported the incident. The first
complainant’s evidence was supported
by the second complainant
in material respects. The magistrate in my view carefully considered
evidence in relation to the identity
of the appellant and there is no
reason to interfere with her decision on count 1.
[17] As already
mentioned rape is not in dispute. The first complainant’s
evidence on how the rape occurred is very clear
and her version that
she was raped was supported by medical evidence. It is worth pointing
out an issue that is seriously concerning
in this matter and that is
the absence of DNA evidence in relation to both the first and second
complainants. Medical examination
of both complainants indicated the
presence of possible semen on their genitalia. Swabs were taken by
the doctors in respect of
both of them. Despite this, DNA evidence
was not presented to the trial court. DNA evidence could prove to be
crucial evidence
in resolving issues of identity in this case,
especially in respect of the identities of the attackers of the
second complainant,
who were unidentifiable due to the scarves they
wore. It cannot be in the interest of justice that the state omitted
to present
such relevant evidence, if it was available. If that
evidence was not available, then the court should have been apprised
as such
and the reasons for such unavailability tendered. It is not
clear what happened to the swabs that were taken by the doctors in
this case.
Robbery and
common purpose
[18] I now turn to
the charges of robbery with aggravating circumstances. The
requirements of common purpose were outlined in the
decision of S v
Mgedezi
1989 (1) SA 687
(A) at 705I-706B as follows:
‘In the
absence of proof of a prior agreement, accused No. 6, who was not
shown to have contributed causally to the killing
or wounding of the
occupants of room 12 can be held liable for those events, on the
basis of the decision in S.v. Safatsa and Others
1988 (1) SA 868
(A)
only if certain prerequisites are satisfied.In the first place,
hemust have been present at the scene where the violence was
being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended to
make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a common
purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others. Fifthly,
he must have
had the requisite mens rea; so, in respect of the killing of the
deceased, he must have intended them to be killed,
or he must have
foreseen the possibility of their being killed and performed his own
act of association with recklessness as to
whether or not death was
to ensue.’
[19] It is now
established that the mere presence of a person at a crime does not by
itself constitute aiding or abetting.Apart
from being one of the four
men who approached the complainants as a group and threatening the
complainants with a screw driver
there was no other action on the
part of the appellant observed by the complainants. It is common
cause that the complainants’
items were seized by the three
unidentified men. The appellant took nothing. Both complainants
testified that there was no communication
between the men as they
were being robbed and as they walked to the vegetable stall. It
appears from the evidence that the appellant
said nothing to
encourage his colleagues nor associate himself with their actions of
robbery. The mere fact that he held a screwdriver
did not necessarily
mean that he knew about or reconciled himself with the robbery. He
could have used the screwdriver to threaten
his victims for the
purposes of perpetuating the rape.The appellant’s knowledge of
the robbery or his reconciling with itwas
not the only reasonable
inference to be drawn from the fact the appellant was part of the
group of armed men.
[20] Overturning the
decision of the trial Court in the matter of Toya-Lee van Wyk v The
State (575/11)
[2012] ZASCA 47
(28 March 2013), the Supreme Court of
Appeal said the following at paragraph 16:
‘While the
inference of such an association can sometimes be drawn from what
occurred or was said during or after the event,
care needs to be
taken to avoid lightly inferring an association with a group activity
from the mere presence of the person who
is sought to be held
criminally liable for the actions of some of the others in the
group.’
[21] The magistrate
erred in my view by concluding that the appellant associated himself
with the actions of the others without
specifying which actions of
the appellant led her to that conclusion. In light of the above, the
State failed to discharge the
onus of proving the guilt of the
appellant beyond reasonable doubt in respect of counts 5, 6 and 7.
The appellant is therefore
entitled to acquittal in respect of those
counts.
Sentence
[22] Turning to
sentence in respect of count 1. It is trite that sentencing lies
within the discretion of the trial court. The appeal
court may
interfere with the sentence imposed when the trial court has
materially misdirected itself or where the sentence imposed
is
shockingly inappropriate or where discretion has been improperly or
unreasonably exercised. See S v Malgas
2001 (2) SA 1222
(SCA) at
paragraph 12
[23] Section 51 (3)
of the Criminal Law Amendment Act 105 of 1997provides for the
imposition of a lesser sentence where substantial
and compelling
circumstances militate against the imposition of the ordained
sentence. On the other hand, the proviso to s 51 (2)
permits the
imposition of a sentence in excess of that prescribed provided that
the increased sentence does not exceed the prescribed
sentence by
more than 5 years.
[24] In the decision
of Director of Public Prosecutions (Transvaal) v Venter
[2008] ZASCA 76
;
2009 (1) SACR
165
(SCA) Mlambo JA (as he then was) said the following:
‘[19] It needs
to be borne in mind that the sentences provided for in the Act are
minimum sentences for the prescribed offences
and Malgas was directed
to whether a lower sentence might be called for in a particular case.
But an evaluation of the cumulative
effect of all the circumstances,
in accordance with the approach in that case, might well indicate
that a higher sentence is called
for. I think that is applicable in
this case. For had there not been the strong mitigating circumstances
that I will presently
come to, I think a court might well have been
justified in imposing a sentence far in excess of the minimum. It is
only by applying
those mitigating circumstances that I have come to
the conclusion that a proper sentence would be something less.’
[25] The trial court
in this case found that the state had neglected to prove the age of
the complainant and therefore although
the complainant was said to be
15 years of age at the time the offence was committed, the minimum
sentence of life imprisonment
could not be imposed, and 10 years
would be then the applicable minimum sentence prescribed in the
circumstances. Having said that
the court went on to find that
because the first complainant was still young, defenceless, suffered
injuries to her genitalia and
was severely traumatised, a sentence in
excess of the 10 years prescribed was justified.
[26] The appellant
was 22 years old when he committed the offence. He is the first
offender in relation to the rape charge. He however
has a previous
conviction for robbery committed in 2007, for which he was sentenced
to 12 months imprisonment 6 months of which
were suspended. That is a
violent crime which cannot be ignored by the Court for the purposes
of considering the appropriateness
of sentence. The courts have
tended to impose sentence exceeding the minimum in cases where
aggravating factors called for an
increased sentence. In this regard
see S v Mthembu
2012 (1) SACR 517
(SCA) at paragraph 20; DPP
(Transvaal) v Venter supra.
[27] The factors
considered by the magistrate coupled with the appellant’s
previous conviction of robbery cumulatively justify
a sentence in
excess of the prescribed minimum. In this regard, there is no
misdirection on the part of the magistrate and no basis
to interfere
with the sentence that she imposed.
[28] In the result,
I propose an order in the following terms:
1. The appeal on
count 1, Rape, is dismissed and the conviction and sentence are
hereby confirmed.
2. The appeal in
respect of counts 5, 6 and 7 is upheld and the convictions and
sentences are set aside.
3. The magistrate’s
orders are substituted with the following:
‘(a) the
accused is guilty on charge 1;
(b)the accused is
acquitted on charges 5, 6 and 7;
(c) the accused is
sentenced to 15 years imprisonment in respect of charge 1 antedated
to 24 April 2013.’
N P BOQWANA
Judge of the
High Court
I agree, and it
is so ordered
T NDITA
Judge of the High
Court