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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)   REPORTABLE: YES/NO

(2)   OF INTEREST TO OTHER JUDGES: YES/NO

(3)   REVISD: YES/NO

 

Case Number: A750/16

10/9/2019

 

EDWARD HLANGANIPO SITHOLE                                                                   Appellant

 

and

 
THE STATE                                                                                                             Respondent

JUDGMENT

MOLEFE J

[1]          This is an appeal against both the conviction and sentence of the Regional Court, Sebokeng. The appellant was convicted of rape, read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 ('the Act'), and kidnapping He was sentenced to 15 years' imprisonment for rape, and 3 years' imprisonment for kidnapping and the court a quo ordered that the sentences should run concurrently, the effective sentence being 15 years' imprisonment. The appeal is with leave of the trial court.

 

Ad Conviction

[2]          The appellant was represented throughout the trial. He pleaded not guilty to both counts. The State called the complainant and her sister to testify. The appellant testified on his own case and called three witnesses who testified in his defence.

[3]          The complainant, Ms D[….] L[….] testified that the appellant was her ex-boyfriend. They started dating in December 2013 until January 2014 when she terminated the relationship. On 21 February 2014, she received a telephone call from an unknown person who identified herself as the appellant's aunt. She told the complainant to go to the appellant's home, who was supposed to take her to a job interview at Game Store. Upon her arrival at the appellant's home, the appellant requested her to accompany him to a certain place before he could take her to Game Store where the alleged interview was to take place.

[4]          Along the way the appellant started assaulting her and accusing her of having a romantic relationship with one Joseph. The appellant forced her back to his home by pulling and dragging her, and kept on assaulting her with fists. When they arrived at his home, he forced her into his shack , closed the door, turned the radio on at a very high volume and continued to assault her. He undressed her and tied her hands to the roof of the shack with an electrical cord. He put on a condom and started raping her. He repeatedly raped her and her screams could not be heard because of the loud music on the radio.

[5]          Afterwards, the appellant left her in the shack and went to his work. His work place is not far from his home. The complainant managed to untie herself and escaped through the shack window, and ran to her sister's home. On the way to her sister's home she met the appellant who recaptured her and took her back to his shack. This time he tied her up with steel handcuffs, the one part of the handcuffs tied to her wrist, and the other part to her ankle. He then went to his work and left her the whole night in that position, holding her hostage.

[6]          The following morning when the appellant came back from work, he realised that she was injured and he removed the handcuffs. One of her eyes was swollen from the assault. He then walked with her half-way to her sister's home. The complainant reported the rape incident to her sister, who took her to the police station where the incident was reported. She was later taken to the hospital and the appellant was arrested later that same day.

[7]          Ms N[….] J[….] L[….], the complainant's sister, corroborated the complainant's version that on 22 February 2014, the complainant reported to her that she had been raped and assaulted by the appellant. She noticed the complainant's swollen eye and injuries on her wrist and ankle. She took the complainant to the police station to report the incident.

[8]        The evidence of both state witnesses as to the events of the day in question was unchallenged. The appellant's counsel argued that it was odd that the complainant had deleted an unknown incoming call from the person who had impersonated herself as the appellant's aunt.

[9]        The appellant testified in his defence and called three witnesses to corroborate his version. He denied raping the complainant and denied seeing the complainant on the day in question. He testified that the complainant was his girlfriend and that he had consensual sexual intercourse with her on a number of occasions prior to 21 February 2014. He denied having met the complainant at his home on that day and that on 21 February 2014 the complainant was at work. His version was that the complainant laid rape charges against him because she was angry at him for having taken back the Blackberry cellphone he bought for her.

[10]      The appellant's mother Ms Rosie Mthiyane corroborated his version that the complainant was never at their home on 21 and 22 February 2014. She denied that the complainant was locked in the appellant's shack on 21 February 2014, although this was an assumption on her part. Her evidence did not take the appellant's case any further.

[11]      Mr Lefa Mathiba, testified that he worked together with the complainant at Pick 'n Pay and he is a general worker. He testified that the complainant was at work on 21 February 2014 and that she was working at till number 6. He later however, contradicted himself when he listed the names of the persons who worked at each till on 21 February 2014 and excluded the complainant.

[12] Mr William Mokoena testified that he is the store manager at Pick 'n Pay and knows the complainant who worked as a casual worker in February 2014. His version was that the complainant was at work on 21 February 2014 but his evidence was based on his recollection. He relied on the work schedule records that the complainant was not at work during the week of 24 to 28 February 2014, which period was irrelevant to 21 February 2014. He could not however produce any work schedule records to confirm that the complainant was at work on the day in question.

[13]      The J88 medical report formed part of the evidence and, it confirmed abrasions on the complainant's ankle and bruises on her wrist. This finding corroborated the complainant's version that the appellant used steel handcuffs to tie her wrist and ankle. The conclusion after the examination was that normal vaginal findings did not rule out vaginal penetration.

[14]      Counsel for the appellant submitted that, based on the appellant's denial of the commission of the rape, the appellant's version is reasonably possibly true. Counsel further argued that the complainant was a single witness and that her evidence was not treated with caution, and that the trial court only 'paid lip service' to the fact that it took all the evidence into consideration. It was also argued that the medical report was inconclusive as it did not record the complainant's alleged swollen eye injuries.

[15]      Counsel for the respondent opposed the appellant's submission and contended that the state witnesses corroborated each other in all material respects. Counsel argued that the medical report was consisted with the complainant's injuries to her ankle and wrist from the handcuffs.

[16]      It is trite law that the duty of the State is to prove the guilt of the accused beyond reasonable doubt and not beyond a shadow of doubt[1].

[17] In evaluating the evidence of a single witness, It is not necessary for the evidence of that witness to be clear and satisfactory in every material respect[2].

[18]      In S v Sauls and Others[3], the court remarked as follows:

“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 defects or contradictions in the testimony, he is satisfied that the truth has been told.”

 

[19]      A court of appeal will be hesitant to interfere with the factual findings and evaluation of the evidence by a trial court, and will only interfere where the trial court misdirects itself insofar as its factual and credibility findings are concerned[4]. The appellant in his testimony provided an excessive, redundant and irrelevant information and did not testify about the alleged dates of the incident, 21 and 22 February 2014.

[20]       Based on the conspectus of the evidence, I cannot find any fault with the reasoning and conclusion of the trial court. I find that the cumulative effect of all the evidence points inexorably to the appellant as the person who raped the complainant. Consequently, I am satisfied that the appellant's guilt was proved beyond reasonable doubt, and that the conviction must stand.

 

Ad Sentence

[21]       The circumstances of the rape brought the sentencing within the purview of section 51(2) of the Act. The presiding regional magistrate explained to the accused that the provisions of section 51(2)(b) of the Act were applicable in that the rape in the present matter was an offence as referred to in Part Ill of Schedule 2 of the Act. The presiding magistrate then apprised the appellant that the prescribed minimum sentence was 10 years· imprisonment[5].

[22]       During the evidence of the complainant, it emerged that the appellant raped her several times, with intervals in between, where the appellant removed his penis from the complainant's vagina each time and subsequently penetrated her again. This meant that the rape perpetrated in casu was actually an offence referred to in Part 1 of Schedule 2 of the Act.

[23]       The court a quo recognized that given the fact that it had, at the commencement of the trial informed the appellant that the rape was subject to section 51(2) of the Act, it could not sentence the appellant in terms of section 51(1) of the Act[6]. Thus, the trial court was enjoined to impose the minimum prescribed sentence of 10 years' imprisonment on the rape charge, unless it found to exist, substantial and compelling circumstances, in which event, it could impose lesser sentences.

[24]       The trial court Imposed a sentence of 15 years' imprisonment on the rape charge, which sentence is 5 years in excess of the prescribed minimum sentence.

[25]       Counsel for the respondent submitted that there is no obligation on a regional court to record the aggravating circumstances that justify a sentence being imposed in excess of the prescribed minimum sentence. Counsel relied on S v Mthembu[7] where it was held:

 

"There can be no need for the presiding officer to identify the circumstances that Impel her or him to impose a sentence greater than the prescribed minimum, and to justify such departure, other than reasons to be advanced to show the sentence imposed is Just and appropriate in all of the circumstances·

 

[26]      The appellant's counsel submitted that the trial court misdirected itself in imposing an additional 5 years to the prescribed minimum sentence of 10 years' imprisonment, as prescribed by section 51(2) of the Act. Counsel argued that the 15 years' imprisonment is shockingly inappropriate and that the trial court failed to take into account the appellant's personal circumstances, which ought to have constituted substantial and compelling circumstances. He was a first offender, 29 years at the time of his conviction, a father to one minor child he was financially supporting.

[27]      The provisions of section 51(2) of the Act gives the regional magistrate a discretion to increase a minimum sentence he or she decides to impose to a term of imprisonment, not exceeding five (5) years. Such a discretion must however be exercised judicially and on reasonable grounds. It is also proper and fair that where a regional magistrate intends to depart from the prescribed minimum sentence, he must give reasons for such a departure, which was done in casu. Dealing with a similar matter, the Supreme Court of Appeal enunciated the principles as follows in S v Maake[8]:

"It is not only a salutary principle, but obligations for judicial officers to provide reasons to substantiate conclusions".

 

[28]      The trial court sentenced the appellant in terms of section 51(2) of the Act, and exercised its discretion in terms of this section by imposing an extra 5 years to the minimum prescribed sentence. The regional magistrate found aggravating circumstances and stated·

“. . . I found aggravation. The complainant was cuffed right to left: that is one cuff on the wrist and one on the ankle, and then obviously it was a crouching position….she was not lying straight and for the whole night. aside that she sustained injuries on her wrist and on her ankle, stark naked and recurrently raped He showed no remorse at all during the trial.”

 

[29]       It is perhaps necessary to restate the trite principles governing an appeal court's power to interfere in the sentence imposed by a trial court. The imposition of sentence is pre-eminently a matter within the judicious discretion of a trial court. The appeal court's power to interfere with a sentence is circumscribed to instances where the sentence is vitiated by an irregularity, misdirection or where there is a striking disparity between the sentence and that which the appeal court would have imposed had it been the trial court[9].

[30]      In the present case, I do not find any misdirection or irregularity on the part of the trial court in how it approached the sentencing of the appellant. In our view, the trial court was correct in its conclusion that there were no substantial and compelling circumstances justifying deviation from imposition of the prescribed minimum sentence and in exercising its discretion by Imposing an extra five (5) years to the sentence. The appellant's personal circumstances pale into Insignificance when weighed against the aggravating circumstances. We will be failing in our duty to protect women and children, as constitutionally and judicially enjoined, were we to interfere with the sentences imposed on the appellant. In the result, the appeal falls to fail.

[31]      The following order is accordingly made:

1.             The appeal against the convictions is dismissed.

2.             The appeal against sentences dismissed.

 

 

 

D S MOLEFE

JUDGE OF THE HIGH COURT

 

 

I agree.

 

 

 

M J MALULEKE

ACTING JUDGE OF THE HIGH COURT

 

 

APPEARANCES:

Counsel on behalf of Appellant             :           Mr G Mohohlo

Instructed by                                          :           Phehello Molise Attorneys

 

Counsel on behalf of the State              :           Adv. LA More

Instructed by                                          :           State Attorneys

 

Date of Hearing                                     :           31 July 2019

Date of Judgment                                 :           10 September 2019

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