---

 

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)

 

Case number:  A 344/2015

DATE: 1/12/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

 

BULELANI MAWILLIES GWEDLANE                                                             APPELLANT

And

THE STATE                                                                                                   RESPONDENT

 

JUDGMENT

 

MSIMEKI J

[1] On 15 February 2010 appellants faced three counts of rape before the regional court Magistrate Mr D Nel. On 15 April 2010 appellant was convicted as charged and sentenced to imprisonment for life.

[2] Ms L Fraser and Advocate R Nchabaleng represented appellant during the proceedings.

[3] Although the appellant applied for leave to appeal the convictions and sentences, he had an automatic right to appeal in terms of Section 309 of the Criminal Procedure Act 51 of 1977 (CPA) read with sections 10 and 43(2) of the Judicial Matters Amendment Act 42 of 2013, as a sentence of life imprisonment was imposed.

[4] Appellant is now assisted by Advocate LA Van Wyk (Ms Van Wyk) while respondent is represented by Advocate FW Van Der Merwe (Mr Van Der Merwe).

[5] Appellant, in respect of count 1, was charged with the contravention of section 3 read with sections 1,55,56 (1), 57, 58, 59, 60 and 61 of Act, 32 of 2007 read with sections 92 (2) 94, 256, 257 and 281 of the Criminal Procedure Act, 51 of 1997 ( the CPA) as well as Schedule 2 of Act 105 of 1997. The Sections and Acts apply to counts 2 and 3.

Count 1

[6] The State alleged that appellant, on 30 August 2008, at or near ZCC Church in the regional Division, North West, unlawfully and intentionally committed an act of sexual penetration with M S, a 21 year old woman, by inserting his penis into her vagina without her consent.

Count 2

[7] Appellant, on the same date and at or near […] School in the same Regional Division, is alleged to have unlawfully and intentionally committed an act of penetration with the same complainant by inserting his penis into her vagina without her consent.

Count 3

[8] Appellant, on the same date at or near the graveyard at Extension […] in the same Regional Division, is alleged to have unlawfully and intentionally committed an act of sexual penetration with the same complainant by inserting his penis into her vagina without her consent.

[9] There was confusion when appellant pleaded to the charges. He said he was pleading guilty but this was soon cleared up by his attorney, who advised the court that appellant was in fact pleading not guilty to all three charges. In terms of section 115 of the CPA Ms Fraser informed the court that appellant previously had intercourse with the complainant prior to 30 August 2008.

[10] Appellant denied that he had sexual intercourse with the complainant on 30 August 2008. Her further instruction was that the appellant had met complainant on the night of friday going into saturday morning at a drinking place and thereafter took her to her home.

[11] The appellant was convicted by the court a quo as charged and sentenced to imprisonment for life. The appeal is directed against the conviction and sentence.

BRIEF BACKGROUND FACTS

[12] Complainant’s version is that she, on 30 August 2008, left her home at night and proceeded to a tavern where she met her friend D. They together drank cool drink and a storm. She met appellant and his friend after she left the tavern on her way to her aunts’ place in Extension 3. They greeted her and she went past. No sooner had she done that than she felt a knife being pushed to her side. She realised it was them. Appellant asked her to go with them in order for her to call him his girlfriend. He later said she knew what he had wanted from her. Appellant and his friend raped her at the […] Church. Appellant thereafter instructed her to accompany him to […] School to collect his firearm. He, again raped her. She was thereafter instructed to go with him to tavern 99 as he had wanted to buy beer. There she met B, someone she knew, who was unhappy with her condition as she was upset and crying. She informed B that the appellant had raped her. He, again raped her at the graveyard after he told her that they had to get there to avoid being seen by the occupants of a motor vehicle which was approaching them. He was raping for the third time. He thereafter accompanied her to her home. She instead of entering the house decided to go to her boyfriend, J. Discovering that J was not there she proceeded to L S, J’s neighbour. There she informed L that she was raped and asked her to contact the Police who came and took her to the police station. Her testimony is further that she felt pain after the third rape.

[13] P X (B) confirmed complainant’s evidence regarding their meeting at the tavern and that she was crying when she told him that she had been raped by appellant. B did not take that seriously. He, however, told the owner of the tavern about the incident once the complainant and appellant had left the tavern. They tried to trace them but the two were gone. Appellant denied that he had raped complaint when he was confronted by B. Complainant and appellant were at the tavern for a short while.

[14] L M knew complainant and not appellant. On 30 August 2008 complainant reported to her that she had been raped. Complainant was crying when she reported about the incident. Her testimony is that complainant requested her to call the police. She did that and the police came and took complainant to the police station. Complainant’s mother at the time was already deceased.

[15] L S’s testimony is that she knew complainant. Complainant’s boyfriend, J, was their neighbour. She has seen appellant in the street but denied that appellant had sent her to go and call complainant. She confirmed that complainant’s mother was already deceased on 30 August 2008.

[16] Appellant, Mr Bulelani Gwendlane Makoelase testified that he knew complainant whom he met at a tavern where their love relationship was started. Their relationship existed for less than three months confined only to weekends. His testimony was that his other girlfriend visited him at 19:00 on 30 August 2008. He took her home at 12:00 and later met complainant late at night when he was from Mafundas tavern. Complainant was drunk and had dirty clothes on. He asked her where she was from at that time of the night and why she was in such a condition. Her answer was that she had fallen down. He promised to take her home as he did not know where she was from. Complainant accompanied him to this tavern after she refused to move into her house. Someone bought complainant a storm and she thereafter joined appellant who was not pleased with the fact that another man had bought her the storm. Appellant left the tavern followed by the complainant. They proceeded to complainant’s parental home where she kissed him and entered the house. Appellant went home. Appellant attempted to see complainant the following day but failed. He sent L who said that she did not get on well with the lady who at the time, was staying with complainant. He then sent a boy who reported that complainant was not allowed to go out. He could only see complainant on the day of his arrest. He had to lie to get complainant to the tavern.

 

THE ISSUE

[17] The issue to be determined is whether appellant raped complainant three times on the night of 30 August 2008.

 

COMMON CAUSE FACTS

[18] These are that:

1. The identity of the appellant is not in issue. Appellant places himself at the tavern.

2. Complainant and appellant were seen together at the tavern. 

3. Complainant reported to B that appellant had raped her.

4. Complainant reported to L M that she had been raped.

5. Complainant was crying and appeared upset when she reported the incident to L M and B.

6. Complainant met appellant in the street before they went to the tavern.

7. A storm, which according to the record is a sider, was bought for complainant at the tavern.

8. Complainant and appellant left the tavern together.

[19] The grounds of appeal as disclosed by the notice of appeal are general in nature. This, according to Ms van Wyk, made it difficult for her to draw up proper heads of argument. The grounds of appeal make no reference to any specific portion of the evidence.

[20] It is evident from the appellant’s heads that emphasis is placed on:

1. The fact that no DNA evidence was led by the state although the J88 reveals that a sample of semen-like discharge was collected for investigation.

2. The fact that complainant did not have any external injuries but only a small tear at 5 o’clock position on her private parts. Having been raped three times, so it was submitted, complainant ought to have sustained more severe injuries.

3. The fact that complainant went to the tavern with appellant who, at the time, had raped her twice and still preferred to leave the tavern with him instead of remaining with B, someone that she knew.

Ms van Wyk also, in her heads of argument, submitted that complainant’s evidence, as a single witness, had needed to be treated with caution.

[21] Section 208 of the CPA Provides:

“208 Conviction may follow on evidence of single witness

An accused may be convicted of any offence on the single evidence of any competent witness.”

[22] The evidence, however, has to be approached with the caution it deserves. The evidence is acceptable if it is satisfactory in every important respect or where such evidence is corroborated. Such corroboration is confirmatory evidential material outside the evidence that is being corroborated. See S V Miggel 2007 (4) SACR 675(C).

Corroboration referred to herein is other evidence which supports evidence of complainant which renders accused’s evidence less probable on the issues in dispute. Corroboration of evidence on issues which are not in dispute is unhelpful. Helpful corroboration renders complainant’s version more likely that the sexual intercourse took place without her consent and that of the appellant less likely that it did not. See State v Gentle 2005 (1) SACR 420 (SCA).

[23] Evidence, when evaluated, has to be evaluated in its entirety. Factors pointing to the guilt of the accused and those which are indicative of his innocence are to be considered and weighed against each other. Proper account of strengths and weaknesses probabilities and improbabilities on both sides must be taken into account. The court must then decide if the balance weighs heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt. See S v Chabalala 2003 (1) SACR 134 (SCA).

[24] The Trial Court found the evidence of the complainant satisfactory in every respect. This is also the view of Mr Van Der Merwe, for the respondent. Indeed, complainant’s evidence is devoid of improbabilities and contradictions. Complainant was credible and reliable. Her evidence, in the main, is corroborated. She is criticized for going away from the tavern in the company of appellant who is alleged to have raped her. This, according to the argument, is indicative of the fact that appellant did not rape her. The criticism losses sight of the fact that complainant was pulled away by the appellant. Her words are “hy het gesê kom ons loop terwyl hy my getrek het aan my hande.” It must also be remembered that a knife was put to her side and pushed slightly against the body. Her evidence is further that she, as a result, had been very frightened. Complainant’s conduct cannot be said to be that of someone who left the tavern freely and voluntary.

[25] B, although he initially did not take what complainant told him seriously, later realised that she could have been serious, after all, He then informed the owner of the tavern and together they started looking for complainant and appellant who were by then gone.

[26] B realised that complainant was upset and crying. L M too confirms that complainant was crying when she disclosed that she had been raped. The fact that complainant went to the tavern with appellant is clearly indicative of the fact that they met somewhere. Complainant testified that she met appellant and the co-accused in the street. This is confirmed by appellant’s evidence which is to the effect that he met her in the street.

[27] The fact that complainant had no external injuries is not an indication that she was not raped. Complainant, during the ordeal, was bound to be complaint. After all she had seen the knife which could harm her. This could explain the absence of serious external injuries. Again, it will be remembered that the complainant had a tear at 5 o’clock. This is an injury to her private parts which could only have been caused by appellant when he penetrated her. “Semen-like discharge” was collected. The absence of DNA evidence is not an indication that appellant did not penetrate complainant. Insufficient semen is likely to provide no positive result at all. Heavy reliance placed on the absence of DNA is not helpful to appellant in the presence of damning evidence against him. The fact that no DNA evidence was adduced, according to Mr Van der Merwe, is a neutral factor. This, very clearly, is indicative of the fact that there is no DNA evidence which implicates appellant. There is no justification for drawing a negative inference from the fact that neither the State nor appellant adduced such evidence.

[28] Complainant was traumatised and this cannot be gainsaid. This is a scar which she will remain with for the rest of her life. It is not a wonderful experience. She was crying when she reported the incident to L M whom she asked to call the police. Complainant could not have gone to such great lengths unless she indeed, was raped. If she had a good time with appellant and appellant was her boyfriend complainant would not have reported the matter to the police. Complainant wasted no time, she immediately thought of the police.

[29] L M, L S and B were all credible and reliable witnesses. They never contradicted themselves and their versions are devoid of improbabilities. L S’s evidence disclosed that J was complainant’s boyfriend. She emphatically and categorically denied that appellant had requested her to go and call complainant.

[30] Appellant’s version, on the other hand, leaves so much to be desired. His version is so improbable that one can very easily read lies in it. His testimony is that he and complainant had been in love for less three months. Their love relationship, according to him, was restricted to weekends. This must have been an abnormal love relationship. This makes appellant’s evidence highly unlikely and improbable. L S, several times, and in so many words, denied that the appellant had requested her to go and call complainant for him. One struggles to get the reason why complainant reported appellant to the police as the one who had raped her if regard is had to the fact that she, according to him, was madly in love with him and that she gave him a goodbye kiss when he took her home. This is simply improbable. Appellant testified that complainant’s clothes were dirty and she could not walk properly. This was never put to any of the State witnesses. What we know is that B and L M did not see the complainant in this condition. This only serves to tell us that appellant lied and fabricated his version.

[31] The state bears the onus to prove appellant’s guilt beyond reasonable doubt. If his version is reasonably possibly true, he is entitled to an acquittal. The court can only reject his version if the version is improbable and beyond reasonable doubt false. See R v Difford 1937 AD 370 at 373; S v Van Der Myden 1999 (1) SACR 447 (W) at 448; S v V 2000 (1) SACR 453 (SCA) 455 A- C and S v Chabalala 2003 (1) SACR 134 (SCA).

[32] In the absence of misdirection by the trial court, the presumption is that the court’s conclusion is correct. The appellate court will only reverse it where it is convinced that it is wrong.

In S v Radebe and others 1997 (2) SACR 641 (SCA) at 645 e-f, Marais JA said:

“Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well known that restatement is unnecessary.”

See also R v Dhlumayo and Another 1948 (2) SA 677 (A) and S v Francis 1991 (1) SACR 198 (A) at j -199 a.

[33] Applying the law to the facts of the case, it immediately becomes evident that appellants version is improbable and beyond doubt false. The state successfully proved his guilt beyond reasonable doubt. I find no misdirection in the judgment of the court a quo. Appellant was correctly convicted. The appeal against conviction should therefore fail.

SENTENCE

[34] The sentence, where an accused has been convicted of an offence of rape where the provisions of section 51 (1) of Act 105 of 1997 find application is imprisonment for life. However, in terms of section 51 (3) (a) of the same Act, the court is allowed to deviate from the imposition of the mandatory sentence where substantial and compelling circumstances are found to be existing.

[35] Appeal courts’ powers to interfere with sentences of the lower courts are limited. Punishment is “pre-eminently a matter for the discretion of the trial court.” Care must be taken to avoid eroding this discretion. Appeal courts are allowed to alter the sentences of the lower courts only where the discretion has not been “judicially and properly exercised.” This is where the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate. See S v Anderson 1964 (3) SA 494 (A). S v Rabie 1975 (4) SA 855 (A) at 857 D-E. S v Pillay 1977 (4) SA 531 (A) and S v Malgas 2001 (1) SACR 469 (SCA) at 478 d tog.

[36] Appellant’s personal circumstances are as follows:

He has 3 children aged 9, 12 and 14.

The Children reside with their grandparents. Appellant worked as security officer at the time of his arrest and earned R1200.00 per month. He, monthly, set aside R800.00 for the support of the children. He has completed Grade 7.

[37] Appellant’s legal representative did not address the court on whether or not substantial and compelling circumstances exist in this case. The trial court found no substantial and compelling circumstance to justify the imposition of a sentence less than life imprisonment. This complicated Ms van Wyk’s task.

[38] Where the issue of the presence or absence of substantial and compelling circumstances has not been canvassed in a lower court the rights of an appellant executing an appeal are compromised because the court of appeal will be unable to assess the gravity (gravity) of the offence. This is so because there are degrees of brutality meted out to rape victims. See S v Ngomane 2012 (2) SACR 474 (GNF).

[39] Ms van Wyk, heavily relied on the fact that the appellant spent 19 months in custody awaiting trial and that complainant was not seriously injured, to implore the court to find that these aspects cumulatively constituted substantial and compelling circumstances to enable it to impose a sentence other than imprisonment for life. The court was also implored to consider the traditional mitigating and aggravating factors. 

[40] The court is alive to cases such as Director of Public Prosecutions North Gauteng, Pretoria v Gcwala and Others 2014 (2) SACR 337 (SCA) where the court held that the time spent in custody awaiting trial is one of the factors that should be considered when an appropriate sentence is being determined.

[41] Appellant was in custody awaiting trial for 19 months. This period according to Ms van Wyk, was not given due consideration by the trial court. The rehabilitation of appellant was, according to Ms van Wyk, also not properly considered. It is her view that appellant can be rehabilited.

[42] Appellant, according to Mr van der Merwe, demonstrated no remorse after conviction. He, according to Mr van der Merwe, does not accept responsibility for his conduct and this, in his view, disqualifies him from becoming a good candidate for rehabilitation. I agree. See S v Matyityi 2011 (1) SACR 40 (SCA).

[43] Mr Van der Merwe correctly submitted that section 51 (3) (aA) of Act 105 of 1997 provides that an apparent lack of physical injury shall not constitute a substantial and compelling circumstance.  In any event, complainant suffered a tear at 5 o’clock. The trauma that she had to endure and still endures is immeasurable. There is a stigma which she will live with for the rest of her life.

[44] Complainant, in the first rape, was raped by appellant and his friend. This alone is sufficient to earn him a sentence of imprisonment for life. Thereafter, appellant raped complainant twice. Again, this on its own, is very serious. The fact that appellant told complainant that he was going to rape her for the last time was not true because he raped her again. Appellant violated complaints sanctity and her integrity. Her self-esteem has drastically been lowered by the appellant.

[45] The main purposes of punishment are deterrent preventive, reformative and retributive. S v Rabie 1975 (4) SA 855 at 862 A.

“Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of merey according to the circumstances.” S v Rabie supra at 862 G.

[46] In S v Swart 2004 (2) SACR 370 (SCA) at 378 c-e [12] Nugent JA said:

“[12] What appears from those cases is that in our law retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role.”(my emphasis)

[47] The court record demonstrates no misdirection or irregularity on the part of the trial court. The sentence is also not disturbingly inappropriate. The trial court also demonstrated the mercy that is referred to in S v Rabie (supra). It regarded the three counts as one for the purposes of sentence.

[48] Mr van der Merwe submitted that the personal circumstances of appellant and the fact that he spent 19 months awaiting trial, do not, in light of the aggravating factors, amount to substantial and compelling circumstances. The court also duly considered the triad dealt with in S v Zinn 1969 (2) SA 537 (A) at 540 G and ultimately and correctly decided to impose the sentence of imprisonment for life.

[49] The trial court correctly found that there are no substantial and compelling circumstances in appellant’s case.  The court, in their absence, had no option but to impose the mandatory sentence which, in my view, is proportionate to the crime that appellant committed. The court a quo also had regard to the interests of society which need protection from people such as appellant. Imposing the sentence of imprisonment for life has not resulted in any injustice as the sentence is appropriate. The appeal against sentence too should fail.

[50] In the result I make the following order:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is also dismissed.

 

                                               

MSIMEKI J

JUDGE OF THE HIGH COURT, GAUTENGDIVISION, PRETORIA

 

I agree

 

______________________

HOLLAND-MÜTTER J

ACTING JUDGE OF THE HIGH COURT, GAUTENG DIVISION, PRETORIA

 

APPELLANT’S REPRESENTATIVES

ADVOCATE                                      :           VAN WYK LA

INSTRUCTING ATTORNEY          :           THE DIRECTOR OF PUBLIC                                                                    PROSECUTIONS  

 

RESPONDENT’S REPRESENTATIVES

ADVOCATE                                      :           VAN DER MERWE FW     

INSTRUCTING ATTORNEY          :           LEGAL AID SOUTH AFRICA  

---