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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: A400/14

Reportable: No

Of interest to other judges: No

Revised.

In the matter between:

NYABAZA, SIPHO                                                                                            APPELLANT

And

THE STATE                                                                                                   RESPONDENT

 

JUDGMENT

ROME AJ:

Introduction

[1]. This matter involves an appeal against conviction and sentence.  The appellant was charged on two counts, rape and assault with intention to grievious bodily harm. The events pertaining to the charge occurred on 13 May 2007.

[2]. The appellant stood trial in the Johannesburg Regional Magistrates' Court. He was convicted on both counts and was sentenced to life imprisonment.

Facts and Analysis

[3]. The facts concerned the following events.   The complainant at the time was a minor of 15 years old living with her grandmother in outbuilding type room situated on the same property where, what was described/referred to as, "a large house" was situated.  The appellant and his mother lived in the large house and his mother rented out space on the property, to various tenants including the complainant and her grandmother.

[4]. On 13 May 2007 the complainant's grandmother had gone out to buy some provisions at a local butchery. The complainant remained alone in the room, which was unlocked at the time allowing the appellant to enter the room unhindered.

[5]. The appellant during the time of the grandmother's absence entered the room. The appellant did not dispute that he had sexual intercourse with the complainant in the room on the day in question.  The appellant was still in a state of undress when the grandmother returned from her shopping. The room was by then in a state of some disarray with personal belongings (being suitcases that had [previously been stacked neatly scattered around the room) having been scattered and with the bed having fall down from the bricks it ordinarily rested upon.

[6]. The complaint immediately on her grandmother having returned told her that she had been raped by the appellant. Charges were then laid at the local Jeppe police station.

[7]. The appellant did not deny having had intercourse with the complainant but asserted that he and the complainant were in a love relationship and averred that the complainant had consented.

[8]. The complainant's version was that the appellant had forcibly and without her consent penetrated and that he had also assaulted her when she resisted him.

[9]. The complainant and her grandmother both testified for the State. The appellant testified in his own defence. Very importantly the State also led the evidence of a medical doctor, Doctor Gazi. Dr Gazi's evidence was the following.

[10]. He examined the complainant on 13 May 2007. His examination established that the complainant had been a virgin prior to the incident. His evidence confirmed the contents of his report at the time of his examination (as contained in the J88 form he completed) namely that the complainant had sustained the Injuries consistent with assault and indicative of her having been forcefully penetrated

[11]. Dr Gazi's evidence was not countered or challenged in any material respect at the trial. The appellant could do no more than baldly assert that Dr Gazi had lied.  On appeal no attempt was made to impugn such evidence.

[12]. The appellant's version as to consensual intercourse was thus undermined by clear medical evidence indicating forceful penetration, assault and in addition that the appellant had been a virgin prior to the incident.  The established fact of pre-incident virginity was very significant as the appellant had testified that the complainant was sexually experienced, was no longer a virgin prior to the incident and had a sexual history with both him and other boyfriends even older than the appellant.

[13]. The appellant's notice of appeal and his argument on appeal centred largely on alleged contradictions and inconsistencies between the evidence of the complainant and her grandmother.  Having considered the alleged various inconsistencies and contradictions it is clear that none of them were material nor destructive of each other. Instead they fall in the category of the fallibly of human memory and perception, which in this case amounted to nothing more than minor, non-material inconsistencies between the version of the grandmother and the complainant.  The Magistrate in his judgment was alive to the above difficulties but found their evidence as a whole to be satisfactory.

[14]. The Magistrate in contrast considered the appellant's version and rejected the credibility thereof. In so doing he considered the gaps and shortcomings in the appellant's version, which evidence he also found to be highly improbable.  He therefore rejected the appellant's evidence. This finding was fully borne out by the record.

[15]. The appellant's evidence was notably unsatisfactory in the following respects. His evidence that the complainant was sexually active with a number of elder men was never to put to either the complainant or the grandmother.  It was also belied by Dr Gazi's testimony. The appellant could not give satisfactory answers as to his failure to call a witness who he in vague terms said had "gone to Venda".  His answers to questions about the manifestly youthful physical appearance of the complainant were both argumentative and vague.  Despite proffering a version that he and the complainant were in a love relationship, the appellant could not give a clear answer about why he said that he only knew the complainant for about 4 weeks and was then evasive about how long a time period prior to the incident he had known the complainant.

[16]. As a result, there is no reason to reject the Magistrate's assessment of the evidence. It is moreover trite that as a court of appeal we are required to show some deference to the credibility findings made by the trial court. This is so as the trial court has had the advantage, which an appeal court never has, of hearing and observing the witnesses as they testify and under cross-examination. (Modiga v The State [2015] 4 All SA 13 (SCA), at para 23)

[17]. It follows that this Court sitting, as a court of appeal ought not to interfere with the findings reached on the charges by the trial magistrate.

[18]. As to sentence S51 (2) of Act 105 of 1997 read with Part I of Schedule II provides for a prescribed minimum sentence of life imprisonment for the rape of a child below the age of 16 years and also under circumstances where the offender has raped his victim more than once unless the court finds substantial and compelling circumstances to justify a lesser sentence. The following dicta summarise the approach to be adopted to sentencing in such a case.

"The approach of a sentencing tribunal to the imposition of the minimum sentences prescribed by the Act is to be found in the detailed judgment of Marais JA in S v Malgas 2001 (1) SACR 469 (SCA). The main principles appearing in that judgment which are of particular application to the present appeal are: first, the court has a duty to consider all the circumstances of the case, including the many factors traditionally taken into account by courts when sentencing offenders; second, for circumstances to qualify as substantial and compelling, they do not have to be exceptional in the sense of seldom encountered or rare; third, although the prescribed sentences required a severe, standardised and consistent response from the courts unless there were, and could be seen to be, truly convincing reasons for a different response, the statutory framework nonetheless left the courts free to continue to exercise a substantial measure of judicial discretion in imposing sentence."  (S v De Sousa [2009] 1 All SA 26 (SCA) at para 4)

[19]. The magistrate found that there were no reasons to depart from the prescribed statutory sentence of a life sentence for the rape of a minor. This conclusion, drew upon the reports compiled by the probation office (called by the defence) and the author (one Ms Dube) of a Victim Import Report.  These reports evinced the seriousness of the crime, its devastating effect on the complainant and the appellant's lack of remorse.   The form of the assault was also violent in nature and the appellant used and continued to use violence even after he had subdued the complainant.

[20]. In this case appellant qualified for life imprisonment in that the girl was 15 years of age at the time of the rape. It bears repeating that rape is an extremely serious offence (S v Chapman 1997 (3) SA 341 (SCA). Moreover having regard to the lack of remorse shown by the appellant, and the reports referred to below, and the degree of violence used the rape in this case fall within the category of what has been judicially referred to as a "more serious case of rape" (Mahlangu v S (A874/13) [2015] ZAGPPHC 51 SCA  at para 12).

[21]. In my view the circumstances in this case are not such that a sentence of life imprisonment is disproportionate to the crime. There are in my view no substantial and compelling circumstances justifying a lesser sentence than the one prescribed.

[22]. It follows that the appeal against sentence must likewise fail.

In the result the following order is made:

1. The appeal is dismissed.

 

____________________________

GB ROME 

ACTING JUDGE OF THE HIGH COURT

 

I agree, and it is so ordered.

 

_________________________

S MOSHIDI

JUDGE OF THE HIGH COURT

 

COUNSEL FOR APPELLANT                                      ADV AJ GREYLING

APPELLANT’S ATTORNEYS                                       LEGAL AID SOUTH AFRICA

COUNSEL FOR RESPONDENT                                 ADV MM MBAQA

INSTRUCTED BY                                                        DIRECTOR OF PUBLIC PROSECUTIONS

DATE OF HEARING                                                    23 FEBRUARY 2017

DATE OF JUDGMENT                                                23 FEBRUARY 2017

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