The court a quo erred in fact and in law when passing a harsh sentence compared to the weight of in-convincing evidence brought before court.
The evidence led before the court a quo can be summarised as follows: The crown called five witnesses, PW1 B, who testified that she was cousin to the complainant. She together
with one P acting on a certain report proceeded to where the accused person and the complainant were. She saw the accused beating
up the complainant and when she tried to intervene she was also beaten by the accused. P left to fetch Mrs B for help. However,
Mrs B could not help as the accused person continued to beat up the complainant. She told the court a quo that it was accused no. 2 who stopped the fight. They all walked off. The accused and the complainant were behind her. She went home
where attempts were made to report the matter to the community police.
PW2 was A the complainant in this matter. She related at great length the sequence of events up to the time she was with the accused
at accused no. 2’s home where the alleged offence was committed. She recounted how the accused beat her up and this evidence
was at all fours as that of PW1, her cousin. She described how the ordeal which started at the bus stop in the early hours of the
morning culminated in the commission of the offence at accused no. 2’s homestead.
PW3 was R, who was the grandmother to the complainant. She confirmed the evidence of PW1 and PW2 as regards the incidents of assault
on the complainant and PW1 on the road that day. Later on she went to search for the complainant to no avail until the following
day at 6.00am when complainant came back and related what had happened to her.
PW4 was J who stated that in the evening on the day in question the accused came with the complainant to his parental homestead.
The accused asked for accused no. 2’s house keys. During the night he heard the complainant crying out for help. He then came
closer to the house where the accused and the complainant were. The complainant asked him to help her inform her grandmother that
the accused had locked her up in that house. PW4 told the court a quo that he did not go to complainant’s grandmother because the accused threatened to assault him if he dared help complainant
in whatever manner.
The last crown witness called was PW5 Constable Zwane, the arresting officer. This witness described how the accused produced and
handed over to him a black cable which was identified by the complainant as the one used by the accused to beat her up.
The accused person in his defence made an un-sworn statement where amongst other things he told the court a quo that the complainant was his lover at the material time.
The accused called his uncle DW2 Bukhosi Ngwenya. On his evidence the court a quo heard that this witness was told by accused no. 1 that the complainant was his lover.
Accused no. 2 in his evidence gave a sworn statement where he denied participating in the commission of the rape. It would appear
from the judgment of the Senior Magistrate that accused no. 2 was convicted of rape on the basis of being an accessory before the
fact. The court a quo held that the fact that accused no. 2 provided the house to accused no. 1 where the rape occurred was sufficient to convict accused
no. 2. We respectfully disagree with the learned Senior Magistrate in this regard. The evidence against accused no. 2 fell far short
of justifying a conviction of rape in these circumstances.
Although accused no. 2 has not filed an appeal in this matter we are of the view that we are entitled to intervene under our powers
of review to quash the conviction. The crown’s counsel who appeared at the hearing of the appeal shares this view. In this
regard it would be ordered that accused no. 2’s conviction be set aside.
It now behoves me to address the grounds of appeal as raised by accused no. 1 ad seriatim.
(a)
Incorrect Charge
The accused alleges that the court a quo erred in fact and law when convicting him on
a charge that he was not arrested for, a charge of assault which was later joined with the rape charge. There is no merit in this
ground of appeal as the accused in casu is
charged with two counts, viz count 1 that of rape and count 2 that of assault of one
B. The second count was sufficiently proved by the evidence of PW1
B and the complainant.
b)
No Sufficient Evidence led by the crown
The appellant alleges that the court a quo erred in fact and in law when convicting him of rape without any convincing evidence given before court. In my view, there was
overwhelming evidence against the accused person that he raped the complainant on
that day. The evidence of PW1, the complainant, PW3 Mrs B and that of
PW4 J corroborate each other in a number of material respects as to
what transpired on that day. The evidence before the court a quo prove the rape beyond reasonable doubt and the conclusions drawn by the learned Senior Magistrate were entirely correct in for as
they related to the accused person, now appellant.
The accused person in his defence gave an un-sworn statement where he introduced new matters which were not put to the crown witnesses.
The learned Senior Magistrate was entitled to draw an adverse inference in the circumstances.
c)
Overlooking of doctor’s report
The accused alleges that the court a quo overlooked the doctor’s report as it stated that the complainant had “never fell (sic) into sexual intercourse”
that day and nothing was found to show that she had intercourse that day except a transmitted disease. Again, this attack is totally
unjustified. The court relied in part on the doctor’s observations which were consistent with the complaint reported by PW2.
His conclusions are consistent with the complainant’s and that suffices to lead the court to a finding that PW2’s story
regarding sexual intercourse is plausible and true.
The court a quo never erred in this regard and its approach and conclusions in this regard cannot be faulted.
This ground of appeal accordingly fails.
d)
Presiding officer’s bias
It is alleged that the learned Senior Magistrate exhibited signs of bias against the accused person, thus resulting in a miscarriage
of justice. Such a conclusion is insupportable in regard to the record of proceedings. There is no evidence before us to suggest
any impropriety whatsoever in the conduct of the proceedings by the learned Senior Magistrate.
This ground of appeal accordingly fails.
e)
The evidence of the photographs
The accused alleges that the photographs which he brought to court were proof that he and the complainant were lovers. These photographs
do not advance the accused’s defence at all. Neither of the two (2) photographs showed any intimacy between the two. One photograph
is that of the complainant posing against a green door. The other is that of the complainant with another girl.
This ground of appeal accordingly fails.
f)
No corroboration in the evidence of crown witnesses
This ground of appeal is similar to (b) above and no further discussion is necessary as the reasons advanced therein applies mutatis mutandis in this ground of appeal.
Appeal on sentence
The accused person alleges that the court a quo erred in fact and in law when passing a harsh sentence compared to the weight of the “unconvincing evidence” brought
before court. It is trite that this court sitting as a court of appeal the ambit of the court’s jurisdiction in relation to
sentence is relatively restricted. This is because the question of sentence, the appropriateness of it, what particular sentence
should be passed, is primarily the responsibility of the trial court. On appeal it is clearly established that, in the absence of
misdirection or irregularity, the court on appeal will only interfere if, as it is sometimes expressed, there is a striking disparity
between the sentence which was in fact passed by the trial court and the sentence which the court of appeal would itself have passed.
In the present case there is no irregularity nor misdirection worthy of such a censure. The only criticism that may be levelled against
the learned Senior Magistrate is the rationale behind the sentence. The following appears at page 14 of the typed record:
“In the case of accused no. 1 the two (2) counts will have to be taken as one for the purposed of sentence since the intention
was one, to rape when he assaulted PW11”.
However, this is not borne by the record which reflects the complainant as one B (PW1) not the complainant in count 2. The two events
are different and the accused could not have had a single intention. The intent to rape was directed against the complainant in the
rape charge. The intent to assault was directed against the complainant in the assault charge. Both the different types of intent
as well as the persons against whom it was directed differ materially. It cannot be said that “the intention was one”,
therefore the sentences must be taken as one. To this extent the Magistrate misdirected himself. In our view a proper sentence in
the circumstances would be 7 (seven) years for the crime of rape in count 1 and one (1) year in count 2. That the sentences to run
concurrently backdated to the date of arrest as ordered by the Senior Magistrate in the court a quo.
In the result, I propose that the appeal against conviction be and is hereby dismissed. The appeal against sentence succeeds to the
extent that for count 1 the sentence to be 7 (seven) years imprisonment and for count 2 to be 1 (one) year imprisonment backdated
to the date of arrest. The sentences to run concurrently.
On review, the conviction and sentence of the second accused at the trial in the court a quo is ordered to be set aside. The conviction and sentence must be expunged from his criminal record.
S.B. MAPHALALA
JUDGE
I agree
J.P. ANNANDALE
JUDGE
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