IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)

CASE NUMBER: A32/19 (1) REPORTABLE: YES (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED.

15/09/2020 ______DATE SIGNATURE

CLIFFORD SITHOLE APPELLANT

And

THE STATE RESPONDENT

JUDGMENT

KGOELE J

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1. The appellant was one of the three accused who stood trial in the Regional Court held at Thulamahashe on a charges of rape and robbery with aggravating circumstances. He was convicted on both charges and sentenced to life imprisonment on the rape charge and fifteen (15) years imprisonment on the robbery charge. He exercised his automatic right to appeal to this Court in relation to both the conviction and the resultant sentence, hence this appeal. The appeal was heard without oral arguments as the per agreement between the parties in terms of paragraph 1, 2 and 2.1 of COVID-19 Notice No 5 of this division.

2. The allegations the appellant and his co accused were facing were that on the 25 July 2014 at New Forest, they grabbed, pulled and threatened the complainant with a knife and two pangas, took her cell phone, R150-00 cash and also raped her. Although they all pleaded not guilty to both charges, the appellant who was accused number 1 during the trial, made formal admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 (CPA). In the said admissions, the sexual intercourse with the complaint was admitted, including the content of the DNA results as per Exhibit “F”. His defence was basically that the sexual intercourse was with her consent because they were having a love relationship.

3. The State adduced viva voce evidence of 11 witnesses including that of the complainant. A confession statement made by him was also ruled admissible by the trial Court. The contents thereof are similar to the narration of the sequence of events made by the complainant in her evidence in chief as to how the incident unfolded. Evidence of the holding of an identity parade (ID parade) was also accepted by the trial Court as reliable. For the reason that the sexual intercourse and the DNA results were not disputed, I will only summarise the evidence relevant to the determination of the issues before this Court, which are:

(a) whether there was consent and a love relationship between them;

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(b) whether the trial Court evaluated the evidence before it properly to come to a conclusion that the State proved its case beyond reasonable doubt.

4. The complainant testified that she was accosted by the appellant and his co- accused on her way home from the New Forest market place where she was selling some goods. They grabbed her at the time she was busy talking over her cell phone. They threatened her with two pangas and a knife. When she succumbed to their threats, they managed to take her cellular phone, money and eventually pulled her to the nearby bushes. She was first raped by appellant, and thereafter the co-accused followed. After the co-accused were satisfied, they left. The appellant remained behind and raped her for the second time. According to the complainant, appellant also instructed her that with effect from that time she must agree that she is his girlfriend. She ended up agreeing to this instruction because according to her explanation, she was already powerless after an escapade of repeated forceful intercourse by three men. The appellant then walked her through the bush up to the road, and parted with her. She denied knowing the appellant prior to this incident and that, they were having a love relationship. She reported the matter to the police and was later called to identify her cellular phone the following day. She eventually attended an ID parade where she was able to correctly identify the appellant.

5. Mr Machave and Mr Mzimba, who are friends and can be described as a rare species of humankind in the society, also testified on behalf of the State. Their testimony which corroborated each other on material aspects were to the effect that on that same day at around 19h45, one of the co-accused, former accused number 3 to be specific, found them at the tavern and attempted to sell a Samsung cellular phone to them. According to their testimony, the selling of the cellular phone was prompted by their refusal to share the liquor they were drinking when he so requested, and he then opted to sell a cellular phone to them. Upon asking where he got it from, he then told them that they robbed it from a certain lady before raping her just before he came to the tavern. He also indicated to them that he was with the appellant and former accused 2 when this incident happened and further that, the appellant remained behind with the lady

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who was robbed and raped. They refused to buy it. After this conversation Mr Machave went outside, made a call to his friend to enquire whether he had any knowledge of an incident of a lady who was robbed and raped. Although according to him the reply that he received from his friend was that he had not heard anything about an incident of this sort at that time, it appears from the evidence that will follow hereunder that this call was crucial to the apprehension of the appellant and his co-accused.

6. Later around 21:30, appellant and former co-accused 2 arrived and joined accused 3 where he was seated drinking liquor. Machave and Mzimba left them there at the Tavern. As indicated above, it appears that the call which Machave made blew the horn very loudly because it led to the arrest of the accused and the recovery of the cellular phone by the police the following day. Machave was able to identify the cellular phone the following day when it was shown to him. This brings me to the summary of how the appellant and his friends were arrested.

7. Constable Dumisa testified that she received the docket on the 26th of July 2014 and also information about the whereabouts of the suspects at the police station. She then went with her colleagues to a place called Mambumbu where she found appellant and former accused 2 surrounded by the community. Upon interviewing them appellant told him that the cellular phone was with former accused 3. The information of where former accused 3 could be found was eventually during her investigation revealed by their informer the same day and they found him at Secret Hill Lodge at White City seated in a motor vehicle. Upon asking him where the cellular phone was, he pointed to his pocket. They searched him and found it. They compared the IMEI number on it with the one they found from the box they retrieved from the complainant and it matched. The appellant and his co-accused were arrested and were charged together.

8. According to Constable Dumisa, when interviewing them separately at the police station they apparently incriminated themselves and that is why she arranged that confessions should be taken from them by a Peace officer. She also made arrangements for an ID parade.

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9. After the State closed its case, the appellant and former accused 2 and 3 elected not to testify under oath and to call any witnesses to testify on their behalves. The trial Court ultimately convicted them on the basis of the evidence that was led, the formal admissions made by appellant, the evidence of the ID parade that was led including the confessions made by each of them which it found to be admissible.

AD CONVICTION

10. One of the grounds of appeal as set out in the notice of appeal which is worth mentioning is that Machave also agreed in his evidence in chief that he knows that he was in love with the complainant. Nothing much should be said about this ground of appeal as it can be summarily disposed of by quoting what Machave said when a question of this sort was put to him by the appellant’s legal representation during cross examination. His answer was:

“your worship, I do not know that the victim was accused 1’s girlfriend. But what accused 3 told me is that accused 1 has been following the victim for a long time proposing her but the victim did not accept the Proposal, so he was paying revenge”

11. It is clear that this ground is ill-conceived.

12. In her heads of arguments, Advocate Erasmus representing the appellant, submitted that “the trial Court might have erroneously concluded that respondent presented proof beyond reasonable doubt” and therefore misdirected itself in convicting the appellant. According to her, one of the questions which the trial Court was to consider over and above the fact that the complainant was honest, is whether her identification was reliable. She mainly based her arguments on the fact that the complainant initially testified that she can identify all three accused if she sees them again, but the photos of the ID parade reveals that she could only positively identify appellant and co-accused

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3. In expanding on this proposition, she continued that, it appears the police told her that she could only identify one accused positively. She argued that it is for this reason that the trial Court should have exercised caution on the issue of identification of the appellant.

13. She lastly submitted that it is trite law that if the case for the State consists solely of circumstantial evidence, the value to be attached to the failure by the accused to testify will depend on the strength of the respondent’s case.

14. Advocate Poodhun representing the respondent submitted that there is overwhelming evidence against the appellant and the finding of the trial Court cannot be disturbed.

15. I choose to start with the last submission made by the appellant’s Counsel. It is not correct that the evidence of the State in this matter is solely circumstantial. There is a myriad of evidence against the appellant. To start with, there is viva voce evidence of the complainant that she can identify the assailants if she sees them again. Corroboration of her evidence is found in her positively identifying the appellant during the ID parade. ID parade is one of the type of evidence against him. This piece of evidence lent credence to her viva voce evidence that she had enough opportunity to observe him. Sight should not be lost that appellant remained behind with her at the bush and he also took her halfway home, which fact was admitted by the appellant.

16. There is also identification in the form of DNA results, which although amounts to circumstantial, once admitted in terms of section 220 of the Act, it becomes conclusive. In our matter it was further sealed because he admitted having sexual intercourse with her. A sum up of the total types of evidence enumerated above also takes care of the submission that the trial Court could have exercised caution in relation to the identification of the appellant. In fact, identity of the appellant was never an issue before the trial Court.

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17. There is also a confession made by the appellant which was found to be admissible by the trial Court. I hasten to mention that the finding of the trial Court in this regard was not challenged, therefore it is not an issue before this Court. In the confession statement, he admitted raping the complainant twice and that he was with former co-accused 2 and 3. The confession statement was corroborated by evidence aliunde as far as identity is concerned in the form of ID parade and the appellant’s section 220 admissions.

18. The evidence of the two witnesses Machave and Mzimba, who are independent witnesses in this matter, which evidence led to the recovery of the complainant cellular phone cannot also be brushed aside. It is circumstantial in nature but it adds perfectly to the mosaic of the puzzle. There is therefore in my view an abundance of evidence against the appellant which depicts how strong the respondent’s case was. The submission that the evidence of the respondent consists solely of circumstantial evidence is therefore not a correct summation of the evidence that was before the trial Court.

19. The considerations made above also take care of the submission made by the appellant’s Counsel that the trial Court “might have erroneously concluded that respondent presented proof beyond reasonable doubt”. The Trial Court therefore did not misdirect itself on this finding.

20. Coming to the defence of the appellant that the sexual intercourse was with consent as they had a love relationship, I find that the finding of the trial Court in rejecting this defence is sound. It should firstly be noted that the complainant indicated that she did not know her assailant before the incident and that there was no relationship of whatsoever kind between her and the appellant. There was no evidence before the trial Court to countenance this version except the version of the appellant that was put to her regarding this during cross- examination. This version of the appellant was not made under oath, therefore her version on this aspect stands uncontested. Acknowledging the risk of repetition, it is important to emphasize that the appellant and the co-accused were arrested the following day and thanks to Machave, Mzimba and the

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community, otherwise it was going to be difficult for the police to track the suspects because complainant indicated that she did not know all of them but can point them out if she sees them again. There was also no reason put to her during cross- examination why she could lie on this aspect.

21. Her evidence on this aspect was furthermore corroborated by the confession made by the appellant that he raped her. Leaving the confession aside, what exacerbates this point and puts the final nail to the coffin of the appellant’s defence is that, there is no explanation at all, let alone under oath from the appellant including his former co-accused why her cellular phone was retrieved from former co-accused 3, if the sexual intercourse was with consent and further that, the complainant was not robbed of her cellular phone. The time factor is important in this regard because the cellular phone was retrieved the following day. If the appellant was alone when he so had the consensual intercourse with the complainant, there should have been an explanation as to how and why the cellular phone exchanged hands in such a short period of time. This clearly depicts that the version that he was alone when he had the sexual intercourse with the complainant was correctly rejected by the trial Court.

22. In addition to the above, apart from the fact that the finding of admissibility of the confession of the appellant was not attacked in this appeal, there are no demonstrable facts in the record of proceeding which points to the fact that the finding of the trial Court regarding the admissibility of the confession can be faulted. The trial Court correctly so in my view, found that the uncontested version of the appellant on the issue of consent was also rebutted by his own confession. I therefore find that the conviction of the appellant by the trial Court is sound and cannot be disturbed.

AD SENTENCE

23. The submissions made by the appellant’s Counsel on sentence is that the sentence of life imprisonment is too severe, harsh and shockingly inappropriate

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in the circumstances of this case. Nothing was said regarding whether substantial and compelling circumstances were and are present in the circumstances of this matter which could have warranted the trial Court to deviate from imposing the minimum sentences prescribed for the two offences the appellant was convicted of. Only a suggestion that a lengthy term of imprisonment of 20 years is appropriate.

24. Section 51 (1) and 51 (2) of Part 1 and part 2 of Schedule II of the Criminal Law Amendment Act 105 of 1997 (minimum sentence Act) is applicable in this matter. In respect of the rape charge, life imprisonment is prescribed as the minimum sentence if the victim was raped by more than one person. The minimum sentence prescribed for robbery and aggravating circumstances is fifteen (15) years. The evidence before Court is that the appellant raped her twice and this is an aggravating factor on its own. The fact that he was not the only one who raped her makes it more aggravating. Aggravating circumstances in respect of the robbery charges are present because they were having two pangas and a knife which they threatened the complainant with. In addition to the humiliating ordeal of the rape that she encountered, she also lost her money that she undoubtedly earned after working so hard for it during the course of that day. The money was not recovered at all. There are therefore a lot of aggravating circumstances in this matter that outweighs the personal circumstances of the appellant.

25. The trial Court dealt extensively in its judgment with all the factors that need to be taken into consideration as far as sentencing is concerned. It also gave reasons why it came to a conclusion that there were no substantial and compelling circumstances in this matter. This is probably the reason why the appellant Counsel remained silent on this aspect. She probably realised that she was having a huge mountain to climb gathering from the thoroughly considered reasons as depicted in the judgment of the trial Court. There is no demonstrable misdirection which can be gleaned from the sentencing judgment of the trial Court, and nothing was ever pointed out. The law relating to the approach of the Court sitting as an appeal Court is trite and need no further emphasis. There is

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therefore no need to even begin to re-emphasize what the trial Court said in its judgment.

26. The conclusion that is reached by this Court is that the finding by the trial Court that there are no substantial and compelling circumstances as far as the appellant is concerned cannot be disturbed. In my view, the sentence is not harsh, severe and or shockingly inappropriate in the circumstances of this matter.

27. Consequently, the following Order is made;

27.1 The appeal against both conviction and sentence is hereby dismissed.

______KGOELE J

I agree

______GREYLING-COETZER AJ

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APPEARANCES:

Legal representative of the Appellant: Adv Erasmus Instructed by: Legal Aid South Africa Email address: [email protected] [email protected]

Counsel for the Respondent: Adv Poodhun Instructed by: DPP Office Email address: [email protected] [email protected]

Date reserved: 7 AUGUST 2020 Date handed down via email: 15 SEPTEMBER 2020

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