Nkanyane v S (A29/2020) [2021] ZAFSHC 337 (10 September 2021)

IN THE HIGH COURT OF SOUTH

AFRICA

FREE STATE DIVISION,

BLOEMFONTEIN

Case no: A29/2020

In the matter between:

MOTLATSI

PHILLIP NKANYANE

APPELLANT

and

THE

STATE

RESPONDENT

CORAM:

CHESIWE, J et OPPERMAN,

J

HEARD ON: 2 AUGUST 2021

DELIVERED ON: 10 SEPTEMBER 2021

JUDGMENT BY: CHESIWE, J

[1] The Appellant appeared before the Regional Magistrate Court, Bloemfontein. He was charged with contravening the provisions of Section 3 read with Section 1, 50, 56(1), 56A as amended, 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, read with the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997; in that on 21 March 2015, the Appellant raped the Complainant more than once. He was convicted. On 8 June 2017 he was sentenced to an effective term of life imprisonment. The Appellant approaches this court on his automatic right to appeal.

[2] The Appellant at the Trial Court was legally represented by Mr. Bekker and the Respondent by Ms. Jama.

[3] The Appellant relied on the following grounds of appeal:

1. The Trial Court erred in finding that the Appellant was guilty in terms of 3(a)(i) of the Criminal Law Amendment Act 32 of 2007;

2. The Trial Court erred in finding that the Complainant and the State witnesses were credible witnesses and that there were no material contradictions;

3. The Trial Court erred in not accepting the version of the Appellant and by making a negative inference against him;

4. That the sentence of life imprisonment is strikingly inappropriate;

5. That the Trial Court erred in not finding that there are substantial and compelling circumstances to deviate from the prescribed minimum sentence of life imprisonment.

[4] The background on this matter and according to the transcribed record briefly is that, on the 21 March 2015, the Complainant was at Morgan’s Tavern with her friend, Dineo Masilo. The Complainant went outside and was followed by the Appellant. The Appellant started to assault the Complainant and bit her fingers. Dineo came and tried to intervene. The Appellant slapped Dineo and broke her cell phone. Dineo then run away. The Appellant then dragged the Complainant on a tarred road. The Complainant tried to run away; however, she fell. The Appellant caught up with the Complainant and continued to drag her, kicking and screaming. Two of the Appellant’s friends tried to intervene, he told them the Complainant was his wife.[1] The Appellant took the Complainant to a power station. He told the Complainant to lie down on a rocky area and to take off her clothes as well as her panty. He then penetrated her vagina and ejaculated. The Appellant instructed the Complainant to get dressed and they left.

[5] The Appellant took the Complainant to his brother’s house. On arrival, Palesa (the brother’s girlfriend) opened the door for them. Palesa noticed the Complainant’s swollen lips and bruised blue eye. Palesa seemingly asked the Appellant if he was not afraid of the police. The Appellant asked for blankets from Palesa. Palesa gave them blankets. The Appellant made a bed on the floor and instructed the Complainant to get under the blankets. The Appellant undressed the Complainant’s leggings and then the panty. He penetrated her vagina for the second time and simultaneously strangled her as she tried to scream.

[6] Before dealing with the appeal application, I have to deal with the application by the Appellant to adduce further evidence read with Section 316 of the Criminal Procedure Act, as well as Section 3(1)(c) of the Law of Evidence Act 45 of 1988. The Appellant filed an application with this Court that the matter be referred back to the Trial Court. The Appellant cited an affidavit by the Complainant that she intended to withdraw her evidence at the Trial Court as she falsely accused the Appellant of rape.

[7] The affidavit of the Complainant is briefly that she denied that she wanted to change her evidence, she stated that she wanted to forgive the Appellant. This is noted in the affidavit commissioned on the 15th July 2021 paragraph 5 as follows:

“I was under the impression that I am simply explaining that I am forgiving Motlatsi Nkanyana.”

[8] And at Paragraph 6 she said:

“I still confirm that Motlatsi Nkanyane raped me and still confirm my testimony that I have given the court during the trial of this case.”

[9] In terms of Section 22 the Appellant’s matter can be sent back to the Trial Court for further evidence under certain circumstances. In S v De Jager,[2] the court laid down the requirements to hear further evidence as follows:

“1. There should be some reasonable explanation, based on allegations which may be true, why the evidence which is sought to lead was not led at the trial.

2. There should be a prima facie likelihood of the truth of the evidence.

3. The evidence should be materially relevant to the outcome of the trial.”

[10] In S v H,[3] the court said the following:

“Further evidence should not be allowed on appeal, nor there be a retrial for the purpose of having that evidence when the only further evidence is that contained in an affidavit made by the witness who recanted the evidence which they had given at the trial to allow such evidence will not be in the interest of proper administration of justice because it will encourage unscrupulous people to encourage witness unlawfully to change their evidence.”

[11] It is clear in this matter that the Appellant wrote a letter and expected the Complainant to copy and paste the same as if she wrote the letter. The complainant in her affidavit is consistent with the evidence she gave at the Trial Court and that she would still testify that the Appellant raped her on two occasions. It is therefore not in the interest of justice that issues that were judicially pronounced should be lightly reopened.

[12] Counsel on behalf of the Appellant, Mr Van der Merwe, in oral argument submitted that after having had sight of the Complainant’s affidavit he had no option, but to abandon the application as it will not serve any purpose if the Complainant had made her position clear in the affidavit. The Complainant’s affidavit does not support the Appellant’s application. The Complainant totally disputed the alleged letter of the Appellant, bearing in mind it’s a letter that was allegedly commissioned at Park Road SAPS, but signed by a Ramanamane at the Magistrate’s Court. I align myself with S v H supra that unscrupulous people will encourage a witness to do unlawful things. The Complainant must be commended for standing her ground and not be swayed in changing her evidence given at the Trial Court.

AD

CONVICTION

[13] The testimony of the Complainant at the Trial Court is corroborated by the medical evidence, that is the J88, Exhibit ‘A’ that showed a bruise on the left eye and cheek; bite marks on her back and marks of her neck. The medical report concludes that the absence of genital injuries does not exclude penetration. Palesa’s evidence also corroborated the Complainant’s facial injuries.

[14] The Trial Court regarded the evidence of the Complainant, as a single witness with caution,[4] on the rape offence. According to the transcribed record, the Complainant was subjected to a lengthy cross -examination. The Trial Court took into account all the evidence of the witnesses as well as the evidence of the Appellant, to the extent that the Appellant could not explain the injuries sustained by the Complainant while she was with him throughout the day and in his presence.

[15] The Complainant testified that she was well known to the Appellant as he was her boyfriend, but they had separated. The Complainant was honest to testify that she and her friend Dineo were drinking alcohol that night.[5] Even if alcohol played a role, the Complainant’s evidence according to the trial record was clear and detailed. She gave details on the first rape that happened at the power station, as well as the second rape at the Appellant’s brother’s house.

[16] The Trial Court correctly made its findings that the evaluated evidence of the Complainant as well as the evidence of the State witnesses was truthful and honest. Whereas, the Appellants’ evidence and his witnesses contradicted each other materially, to the extent that the Appellant went as far as to attempt to have a witness testify about the incident, whereas this witness was not present. This is noted as follows on the transcribed record:[6]

“Prosecutor:

Complainant said that you were never there on that evening?

Mr Motse: I was there.

Prosecutor: I put it to you that you were not there that evening and you are only coming to say this in an effort to protect the accused?

Mr. Motse: That is incorrect.”

[17] It is trite that an Appeal Court will only tamper with the Trial Court‘s findings if it is shown that the findings made by the Trial Court were clearly wrong. It was not submitted by Counsel on behalf of the Appellant that the Trial Court committed any misdirection of fact. Furthermore, when consideration is paid to all inconsistencies and improbabilities, there is no reason to doubt the correctness of the credibility findings made by the Trial Court. I am satisfied that the State proved its case beyond reasonable doubt. Furthermore, the Trial Court correctly found the Appellant to be an untruthful witness and correctly rejected his version as false beyond reasonable doubt. In my view, the Trial Court correctly convicted the Appellant and there is no reason to tamper with the Trial Court’s findings on the conviction.

AD

SENTENCE

[18] Regarding sentence, it is trite that a court with appellate jurisdiction has limited powers to interfere with the sentence imposed at the Trial Court. The sentencing discretion lies with the Trial Court. Its sentence will only be interfered with on appeal if the discretion in question was not exercised judicially and properly,[7] or if there is a disparity between the sentence imposed and the one that ought to have been imposed. In S v Malgas,[8] the court stated as follows:

“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the Trial Court, approach the question of sentence as if it were the Trial Court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the Trial Court. Where material misdirection by the Trial Court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the Trial Court has no relevance. As it is said, an appellate Court is at large. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the Trial Court. It may do so when the disparity between the sentence of the Trial Court and the sentence which the appellate Court would have imposed had it been the Trial Court is so marked that it can properly be described as 'shocking', 'startling' or 'disturbingly inappropriate'. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the Trial Court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind, I have mentioned…”[9]

[19] Mr. Van Der Merwe submitted that the Trial Court incorrectly found there to be no compelling and substantial circumstances present to deviate from the prescribed minimum sentence. He further submitted that the Complainant did not sustain any serious injuries and that it was not one of the most serious rapes. Counsel for the Respondent submitted that the life imprisonment sentence imposed by the Trial Court was not shockingly inappropriate as the aggravating factors outweigh the mitigating factors.

[20] The Trial Court regarded as aggravating factor that the Appellant has several previous convictions. The Appellant was convicted in 2014 for assault, and sentenced to 12 months, which was suspended for three years. The Appellant while on suspended sentence, committed the current rape offence and violently assaulted the Complainant. The Trial Court correctly found that the previous convictions are relevant, as rape in itself is a violent crime. This shows the Appellant’s total disregard of the law.

[21] It is clear that the Appellant did not rehabilitate from the previous sentence that was imposed on him, nor did the suspended sentence deter the Appellant from respecting court orders, as he continued unabated in raping the Complaint more than once. The Appellant has not shown any remorse. It is understandable that the Court would impose a harsh sentence in a bid to keep an offender such as the Appellant away from the community in order to protect women.

[22] The Appellant was the Complainant’s ex-boyfriend. She trusted him. It was indeed shocking that she was raped by a person known to her. The Complainant in the Victim Impact Statement,[10] said the following:

“I was very shocked that it is him who does that to me. I kindly trusted him because we used to be in a relationship.” She goes on further to say: “I am afraid to call myself a woman, it made me to have fear of male people. Every time when I walk alone, I become afraid, I would look around not feeling comfortable and safe thinking that someone might come and do the same thing.”

[23] Rape is a repulsive crime. It is an invasion of the most private an intimate zone of a woman and strikes at the core of her person and dignity.[11] In S v Chapman[12] the court called it a ‘humiliating; degrading and brutal invasion of the privacy and the violation of a person’s dignity’. At paragraph 4 it went on further to say that:

“Women in this country have a legitimate claim to walk peacefully on the streets to enjoy their shopping and their entertainment to go and come from work and to enjoy the peace and tranquillity of their homes without fear of the apprehension and the insecurity which continually diminishes the quality and enjoyment of their life.”

As in this matter the Complainant stated the she is currently afraid to walk alone in the street.

[24] The prevalence of sexual offences is very high, not only in this court’s jurisdiction, but countrywide.[13] I can take judicial notice of the countrywide campaigns to promulgate awareness of the huge problem in our country regarding violence towards women and children, which violence includes sexual violence. The type of conduct displayed by the Appellant is completely unacceptable within a civilised society.

[25] It is evident from the record that the Trial Court properly considered the triad of factors relevant to sentence, and did take the Appellant’s personal circumstances into consideration, since they were found not to be exceptional. In the matter of Bailey v The State,[14] the Court said:

“The most difficult question to answer is always what are substantial and compelling circumstances? The term is so elastic that it can accommodate even the ordinary mitigating circumstances.”

In this instance the Appellant’s personal circumstances are not exceptional.

[26] In the light of the above, I am therefore not persuaded that the sentence imposed is shockingly inappropriate and harsh. The appeal against conviction and sentence ought to be dismissed.

[27] Accordingly, I make the following order:

1. The application to adduce further evidence is dismissed.

2. The Appeal against conviction and sentence is denied.

3. The life imprisonment sentence imposed by the Court a quo is confirmed.

S. CHESIWE,

J

I

CONCUR

M. OPPERMAN, J

On behalf of Appellant: Mr. P. Van Der Merwe

Instructed by: Legal Aid South Africa

BLOEMFONTEIN

On behalf of Respondent: Adv. TH Sekhonyana

Instructed by: Office of the Director of Public Prosecution

[1] Transcribed Record page 13 line 5 and 8. of the Complainant’s testimony. The parties knew each other as they were in a relationship before the incident. Page 10 of the record.

[2] 1965 (2) SA 612 (A) at 613 c-d.

[3] 1998 (1) SACR 260 (SCA) 264 g-h.

[4] See S v Sauls and Others 1981 (3) SA 172 (A) at 180E-G.

[5] Transcribed record page 10 lines 1 to 5.

[6] Transcribed record page 284 lines 5 to 12.

[7] S v Rabie 1975 (4) SA 855 (A)

[8] 2001 (1) SACR 469 (SCA)

[9] Ibid at 478 D-H.

[10] Transcribed record, volume 2 page 401.

[11] (S v Vilakazi (567/02) [2008] 87; [2008] 40 ALL SA 396 (SCA) 2009 (1) SACR 55 2 (SCA) (2012) (6) SA 353 (SCA) (3 September 2008).

[12] (345/96) [1997] ZASCA 45; 1997 (3) SA 341 (SCA0; [1997] 3 ALL SA 277 (A); (22 May 1997).

[13] Currently there are 3 Bills before Parliament based on Gender Based Violence: The Bill to Amend Criminal Law (Sexual Offences and Related Matters; The Criminal and Related Matters Amendment Bill (specifically related to the public outcry against granting of bail of sexual perpetrators); The Domestic Violence Amendment Bill. (To extent the definition of domestic violence).

[14] (454/2011) [2012] ZASCA 154 (1 October 2012) para [21].