Malefane v S (A158/2020) [2021] ZAFSHC 345 (26 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal No: A158/2020

In the appeal between:

TSHIDISO

THOMAS MALEFANE

Appellant

and

THE

STATE

Respondent

CORAM: MBHELE et REINDERS,

J J

JUDGEMENT BY: REINDERS, J

HEARD ON: 19 APRIL 2021

DELIVERED ON: 26 JULY 2021

[1] On 26 November 2019 the appellant was convicted of rape (contravention of sec 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007, read with the provisions of sec 51(2) of the Criminal Law Amendment Act, 105 of 1997) by the Regional Court sitting in Virginia and sentenced to ten years imprisonment.

[2] The appellant unsuccessfully applied for leave to appeal against both the conviction and sentence imposed. This court granted the requested leave on petition.

[3] The appellant was legally represented and tendered a plea of not guilty. His defence was that the complainant consented to the sexual intercourse. It therefore became common cause that the accused on the date in question had sexual intercourse with the complainant in the manner stated in the charge sheet, to wit by penetrating her vagina with his penis.

[4] Two witnesses, one of them being the complainant, testified on behalf of the state. The complainant stated that on the evening in question she went to a tavern where she consumed alcohol. She left shortly before midnight and on her way home she was accosted by the appellant who forced her to go with him. The appellant became violent when she refused and amongst others strangled her. They reached a field next to a clinic where he raped her. During the incident she sustained scratches on her arm, caused by the appellant dragging her, whilst her neck had bruises and had swollen.

[5] After the ordeal on her way home she came across a friend by the name of Thabiso whom she told about the incident. Upon her arrival at home, she related the incident to her mother who also testified.

[6] Before closure of the state case a medical report was entered into evidence by agreement. The report was compiled by a forensic nurse who noted during a physical examination that the complainant had fresh bruises, swelling and abrasions. The afore mentioned injuries noted were recorded on the diagram on the neck and arms.

[7] The appellant testified in essence in accordance with his plea explanation.

[8] The magistrate considered the evidence and found the complainant to be a good and creditworthy witness. The version of the appellant was rejected.

[9] On a reading of the magistrate’s judgment it appears that the magistrate was well apprised that the complainant was a single witness. He applied the cautionary rule applicable to single witnesses and was aware of the shortcomings in the complainant’s evidence. In particular, he found corroboration for the complainant’s version in the medical evidence. The complainant’s testimony on how she had sustained the injuries tallied with the medical evidence. It became almost common cause that complainant after the incident was found to have the afore mentioned injuries.

[10] The testimony of the accused was rejected by the magistrate. In particular, it was found that the accused’s version of how the complainant sustained the injuries did not correspond with the evidence nor the probabilities. The accused’s version in his evidence in chief was that complainant’s boyfriend/husband assaulted her on catching them almost red handed. During cross-examination the appellant speculated that he heard that she was assaulted by her boyfriend/husband.

[11] It has been a long-established principle that a court of appeal must take into account that the court a quo was in a more favourable position to form a judgment and will not interfere with a trial court’s findings if there is no misdirection, unless it is convinced that the findings are wrong.

See: R v Dhlumayo and Another 1948 (2) SA 677 (AD) at 705-6.

See also: Director of Public Prosecutions, Gauteng v Pistorius 2016 (2) SA 317 (SCA).

[12] In S v Francis 1991 (2) SACR 198 (A) it was reiterated that a court of appeal’s power to interfere is limited as the trial court has the advantage of seeing, hearing and appraising witnesses (at 204 c-e).

[13] We are not at liberty to depart from the trial court’s findings of fact and credibility unless it is vitiated by irregularity or upon an examination of the record of evidence it is revealed that those findings are patently wrong.

See: S v Hadebe 1979 (2) SA at 654 e-f.

[14] I am not convinced that the magistrate misdirected himself as was contended on behalf of the appellant in this court. Much ado was made of whether the court should have paid any attention to the evidence of complainant’s mother, as the first report was made to complainant’s friend who accompanied her home. There might be merit in this argument. However, I do not read the judgment of the magistrate to have paid much attention or value to the mother’s evidence, and rightly so. Taking into account the type of injuries that complainant had sustained and her explanation therefore, the magistrate correctly came to the conclusions that he did, and I am not persuaded that he erred or misdirected himself in any way. In my view the appeal against the conviction cannot be sustained.

[15] The appellant was granted leave to appeal against the sentence imposed. It therefore follows that the next enquiry is whether the sentence imposed by the magistrate was harsh and inappropriate as submitted by appellant.

[16] It is trite law that the power of this court sitting on appeal, are limited when it comes to the sentence in so far as interference with same is only warranted where the sentencing court committed a material misdirection, or the sentence imposed is not proportionate, or such a court did not exercise its discretion properly or at all.

See: S v Rabie 1975(4) SA 855 (A) at 857 D-F.

See also: S v Makondo 2002 (1) All SA 431 (A).

[17] Appellant was convicted of having raped the complainant (Part 3 of Schedule 2) and accordingly the crime was to be read with the provisions of sec 51(2) of Act 105 of 1997. It is evident from a reading of the record that the magistrate was well aware of and alluded to the guidelines enunciated in S v Malgas 2001 (1) SACR 469 (A) in respect of the imposition of or deviation from the prescribed minimum sentence for the offence of which appellant was convicted, namely 10 years imprisonment. The trial court had proper regard to the personal circumstances of the appellant, including his age of 46 years being married and father to four children. The magistrate considered appellant to be a first offender. The seriousness of the offence of rape, with reference to trite case law, was alluded to by the magistrate. He emphasized the surrounding circumstances of the rape, amongst others that it was night time and the appellant (armed with a knife) took advantage of the complainant being under the influence of alcohol departing from a tavern, and deemed same to be aggravating. The magistrate dealt with the interest of the community in having the crime of rape rooted out by our courts. Having assessed the aforementioned factors and having weighed the mitigating and aggravating factors, the magistrate concluded that he had not been convinced that compelling and substantial circumstances existed that would cause him to deviate from the prescribed minimum sentence.

[18] On behalf of the appellant it was contended that the sentence was too harsh and inappropriate and, so it was submitted, was considered in a spirit of anger. It was submitted that the appellant’s age, him being a first offender and the nine months spent in custody awaiting trial constitute substantial and compelling circumstances warranting a deviation from the prescribed minimum sentence. A period of eight years imprisonment was suggested to be a more appropriate sentence.

[19] Taking into account the principles enunciated in the case law above, it is clear that sentencing is the prerogative of the trial court. I am unable to find that the magistrate had misdirected himself in any way in finding no compelling and substantial circumstances to move him to deviate from the prescribed minimum sentence and imposing ten years imprisonment. We are therefore not at liberty to interfere with the imposed sentence. It follows that the appeal against the imposed sentence also stands to be dismissed.

[20] I therefore make the following order:

The appeal against both conviction and sentence are dismissed.

C. REINDERS, J

I concur.

N.M. MBHELE, J

On behalf of the appellant: Adv D Reyneke

Instructed by:

Bloemfontein Justice Centre

Legal Aid South Africa

BLOEMFONTEIN

On behalf of the respondent: Adv T Sekhonyana

Director: Public Prosecutions