---

FORM A

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: ZUKISANI SIQOKO and THE STATE

5. Case Number: CA&R 230/06

6. High Court: Easter Cape – Grahamstown

7. DATE HEARD: 10 June 2009

DATE DELIVERED: 20 August 2009

JUDGE(S): Tshiki, AJ & Plasket, J

LEGAL REPRESENTATIVES –

Appearances:

5. for the Applicant(s): Adv D Els

6. for the Respondent(s): Mr MM Xozwa

Instructing attorneys:

• Applicant(s): Legal Aid Board, Grahamstown

5. Respondent(s): Director of Public Prosecution, Grahamstown

CASE INFORMATION -

5. Nature of proceedings: Criminal Appeal

6. Topic: Application concerns the sale in execution of a proper.

7. Key Words:

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

Case No: CA&R: 230/06

Date Heard: 10/06/09

Date Delivered: 20/08/09

In the matter between

ZUKISANI SIQOKO Appellant

and

THE STATE Respondent

JUDGMENT

Tshiki, AJ

A) INTRODUCTION

[1] On the 27^th January 2006, the appellant herein, Mr Zukisani Siqoko, was convicted of rape by the regional court magistrate of Tarkastad. He was sentenced to undergo imprisonment for a period of seventeen (17) years.

[2] Leave to appeal against both conviction and sentence having been refused by the magistrate, the appellant successfully petitioned the Judge President.

[3] The appellant’s main grounds of appeal are summarized as follows:

3.1 That the magistrate misdirected himself in rejecting the appellant’s version of events and not finding that his version of events was reasonably possibly true.

3.2 That the magistrate should have accepted the appellant’s attorney’s explanation why a certain aspect of his defence was not put to the complainant during her testimony.

3.3 That the magistrate misdirected himself in treating the appellant as a second offender and thereby imposed a sentence of seventeen (17) years imprisonment.

3.3.1 And that the sentence imposed by the magistrate was harsh and shockingly inappropriate.

B) BACKGROUND FACTS

[4] In the court a quo the evidence against the appellant which was accepted by the magistrate was, inter alia, the testimony of the complainant, Tembisa Jonas. She testified that on Saturday the 6^th March 2005 at about twelve midnight, she, the appellant and one Nokuthula, the appellant’s girlfriend, were at Sebenzile’s tavern. Appellant bought two beers and one litre bottle of Paarl-Perle wine for all of them to drink. Whilst they were sitting on a table a lady called Asanda who was moderately drunk bumped against one of the beer bottles which fell down and broke. At that stage the appellant suggested that they all leave the shebeen and proceed to his house which they did.

[5] On arrival at appellant’s house they used his room, a shack which is inside the yard of his home. Nokuthula went to sleep on appellant’s bed because she was heavily intoxicated and the two remained drinking the liquor. When they were about to finish drinking the liquor appellant informed the complainant that she could sleep with Nokuthula on his bed and that he was to sleep on the couch. Thereafter the appellant switched off the lights and the radio. During the night the complainant heard that the music was playing and at the same time she felt a man’s hand touching her and she jumped off the bed. She noticed that it was the appellant who was touching her. Appellant then grabbed her by her throat, pushed her onto the couch, and then assaulted her with fists and also throttled her. Appellant told her that all along he had intended to have sex with her. She resisted the appellant’s attempts to rape her and in the process she screamed and shouted for help but Nokuthula, who had passed out due to drunkenness, did not wake up to intervene on her behalf. After a long period of resistance the complainant gave up and the appellant eventually raped her. After the rape she went outside to urinate and appellant followed her. When she made attempts to go to the water tap appellant prevented her from doing so, grabbed her and pushed her into the room. They then slept in the same manner as before the rape.

[6] Early in the morning when the appellant was asleep the complainant went to her home. She informed her sister about all that had happened to her.

[7] She sustained injuries on her face which were also noted in the medical report by the doctor who examined her. The medical report was handed in as evidence. Her overall dress she was wearing had blood stains resulting from her bleeding due to the assault by the appellant. She then reported the matter to the police. The complainant’s sister also gave evidence, which to a large extent, corroborated her testimony.

[8] The appellant’s evidence was that the sexual intercourse was consensual and that it was initiated by the complainant who had asked the appellant to have sex with her after having touched his penis with her hand. His explanation about the complainant’s injuries was that when he was about to ejaculate during the consensual intercourse the complainant pushed him and for that reason he assaulted her with an open hand on her mouth. The appellant refused her request to have sex with her for the second time saying he was not interested.

[9] The regional magistrate accepted the state’s evidence and rejected that of the appellant as not being reasonably possibly true. When rejecting appellant’s evidence, the magistrate, in his judgment, referred to some aspects of the appellant’s defence which were not put to the complainant when she was giving her evidence. Those aspects of the appellant’s defence only came to light when the latter was testifying and to which the complainant was never given an opportunity to respond. They are as follows:

9.1 Firstly, it was never put to the complainant during the testimony that she had asked the appellant whether she could sleep in his home. On the contrary, according to the complainant, it was the appellant’s idea that the complainant could put up at his house and this was never disputed by the appellant’s attorney. This aspect of the evidence would be relevant in establishing the appellant’s defence of consent but without it being suggested during the complainant’s evidence, it would be difficult for the magistrate to have considered it as true. The appellant’s attorney also failed to suggest to the complainant during her evidence that when she requested to put up at the appellant’s home he then asked her whether her boyfriend would not come and look for her.

9.2 Secondly, it was never put to the complainant that she and the appellant had shared a cigarette which belonged to the appellant.

9.3 Thirdly, the evidence of the appellant was that the complainant pushed him onto the couch when in fact she told the court that it was the appellant who pushed her onto the couch. This was also never suggested to the complainant during her testimony.

9.4 Fourthly, it was never put to the complainant during her testimony that she had requested the appellant to have sex with her for the second occasion.

[10] The magistrate correctly regarded the above aspects as relevant to the appellant’s defence. This is so because they have the effect of supporting the appellant’s defence that their sexual intercourse was consensual. Only in consensual sexual intercourse would a woman ask for sex for the second time.

C) DID APPELLANT RECEIVE A FAIR TRIAL?

[11] During argument before us Mr Xozwa who appeared for the appellant argued that the appellant’s trial was not a fair trial because:

11.1 Firstly the magistrate unfairly interfered with the appellant’s attorney’s conduct of his case.

11.1.1Secondly, during the trial the magistrate was unduly impatient and irritable with the appellant’s attorney Mr Shane.

11.2 Thirdly, the appellant’s attorney’s conduct of his client’s case was not effective in that he failed to sufficiently put his client’s defence to the complainant during her evidence.

[12] It is true that the magistrate during the trial had shown some impatience with Mr Shane. He would at some stage unjustifiably take Mr Shane to task unnecessarily. For instance after the evidence of the complainant Mr Shane had asked for a short adjournment for the purposes of relieving himself as well as to consult with his client. When Mr Shane did so the response of the magistrate was as follows:

“What consultation? What consultation”.

When Mr Shane explained to the magistrate why and on which aspects he needed to consult with his client the magistrate interrupted him and said:

“Well, Mr Shane (indistinct) I do not easily concede to that, you had ample time to consult but for the sake of the fact that you want to go to the bathroom as well I am going to grant the adjournment. It will be five minutes”.

[13] A further instance was when Mr Shane referred to Nokuthula as the complainant’s sister and the magistrate took Mr Shane to task about this reference. It, however, transpired during the evidence that Nokuthula was in fact not the complainant’s sister but her cousin in the second degree.

[14] Lastly, when the prosecutor was cross-examining the appellant about why it was never put to the complainant that it was, according to the appellant, the complainant who requested to put up at the appellant’s home, Mr Shane tried to explain to the court that it was his fault that the evidence of the complainant was not challenged in that regard. Mr Shane even indicated to the court that the notes he took during consultation with the appellant clearly showed that it was the complainant who requested to sleep at the appellant’s home. The magistrate’s response, which was unwarranted was as follows:

“So what? Sit down, continue Mr Prosecutor”.

[15] In so doing, the magistrate allowed the prosecutor to insist on questioning the appellant on that issue despite Mr Shane’s admission that the fault lay with him and not with his client.

[16] Mr Xozwa’s argument was that the above irregular conduct by the magistrate has resulted in a failure of justice. It is, therefore, important for us to examine whether or not the appellant received a fair trial.

[17] Unless an irregularity in the proceedings is of such a nature that it has resulted in a failure of justice, a court of appeal will not interfere with the conviction and/or sentence on the basis of such an irregularity. If the irregularity in the proceedings did not result in a failure of justice per se, a court of appeal will apply the following test to determine whether there has been a failure of justice. Does the evidence, unaffected by the irregularity, show proof of guilt beyond reasonable doubt?¹ If the court considers that it does, the irregularity did not bring about a failure of justice².

[18] The question whether or not the alleged conduct complained of is so serious that it has resulted in a failure of justice, thereby vitiating the whole trial, should be determined in accordance with the circumstances of each case. In the present case the record does not show that the magistrate’s impatience had intimidated Mr Shane. He was able to freely conduct his case. He would boldly stand up and address the court maintaining his view point. The magistrate, in fact, allowed Mr Shane to clarify the issue about the relationship between Nokuthula and the complainant. Mr Shane did so to his satisfaction and without further hindrance by the magistrate. Mr Shane was never prevented by the court from conducting his client’s case. For instance, after the evidence of the complainant he was allowed the adjournment he had requested. On many occasions the magistrate’s interruption was intended to clarify issues which would otherwise be distorted by some of the questions posed by Mr Shane. This is what normally happens in a criminal trial and is not irregular. In any event, for the above reasons, the conduct by the magistrate, even if uncalled for, has not, in my view, resulted in a failure of justice.

[19] There is no basis for Mr Xozwa’s argument that Mr Shane was not competent. On the contrary, the record shows that he acquitted himself well when presenting the appellant’s case in the court a quo. The appellant’s defence that the sexual intercourse between the complainant and the appellant was consensual was sufficiently put to the state witnesses particularly the complainant. The cross-examination of the appellant runs to 13 typed pages and all questions put to the complainant were relevant to the appellant’s defence. He even asked the court to grant him an indulgence to check and confirm the appellant’s statement and the court gave him that opportunity.

[20] With regard to the only aspect which Mr Shane confessed to have failed to put to the complainant that it was in fact the complainant who asked permission to sleep at appellant’s home the magistrate should never have responded in the manner he did. There was no reason for the magistrate not to accept the explanation given by Mr Shane for not disputing the complainant’s evidence in that regard. Mr Shane as an officer of the court should have been believed unless there was contrary evidence to show that his explanation was not true. The record does not show that there was any such evidence.

[21] In any event the magistrate had sufficient grounds for convicting the appellant without even considering the undisputed point which Mr Shane failed to put to the state witnesses on appellant’s behalf. As a trier of fact the magistrate was better qualified to consider which of the two versions was true. He, after having evaluated the evidence, came to the conclusion that the appellant’s version of events could not be reasonably possibly true and he rejected it as false beyond a reasonable doubt. We have no reason to interfere with the magistrate’s evaluation of the evidence which led to the rejection of the appellant’s version. In convicting the appellant the magistrate was impressed with the evidence of the complainant. I agree with him in his conclusion that the complainant was an honest and reliable witness. She did not exaggerate the nature of the case against the appellant, in particular the manner in which the appellant assaulted her. The nature of the injuries which she described in court was corroborated by the medical report in which the doctor recorded those injuries. Her evidence stood as an unshaken edifice in contrast to the appellant’s improbable story that he was invited by the complainant to have sex with him. In S v Van Der Meyden³, Nugent J (as he then was) held that it is wrong to consider the evidence piece-meal and to separate it into compartments and to examine the defence case in isolation and hold that, because it is not internally contradictory and improbable when taken discretely, that the accused is entitled to be acquitted despite the fact that the State’s case has not been rejected. He said that there is a manifest lack of logic in holding that despite the fact that the State’s case is acceptable, the accused’s case is, at the same time, possibly true. He said further that the conclusion whether to convict or acquit depends on the totality of the evidence and a court must account for all of it. This sound approach received approval by the Supreme Court of Appeal⁴.

[22] The magistrate in his judgment had fairly and justifiably considered every aspect of the case including the appellant’s defence and we have no reason to interfere with his judgment on the conviction.

D) SENTENCE

[23] After the conviction of the appellant the prosecutor proved a series of previous convictions against him. One of them is a contravention of section 14(1)(a) of the Sexual Offences Act⁵. This offence was committed on the 17^th October 1998 and the appellant was sentenced on the 22^nd May 2001. This offence is reflected in the S A P 69 document as a rape conviction. This was erroneous. During the argument in mitigation of sentence it was submitted that according to the appellant he was convicted of a contravention of the Sexual Offences Act but the magistrate would not listen. Purportedly acting in terms of section 51(2)(b)(ii) of the Criminal Law Amendment Act (hereinafter referred to as the Act) the magistrate sentenced the appellant to undergo seventeen (17) years imprisonment. This was a misdirection amounting to an irregularity on the part of the magistrate. However, in his reasons for judgment in the application for leave to appeal the magistrate has conceded that he erred in treating the appellant as a second offender because he has since confirmed from the original case record that the appellant was convicted of a contravention of section 14(1)(a) of the Sexual Offences Act. As a result of the misdirection by the magistrate we are at liberty to consider the sentence afresh.

[24] Section 51(2)(3)(b)(i) of the Act provides as follows:

“Notwithstanding any other law, but subject to subsections (3) and (6) a Regional Court or High Court shall sentence a person who has been convicted of an offence referred to in –

Part III of Schedule 2 in the case of –

1. a first offender to imprisonment for a period of not less than 10 years;

2. a second offender of any such offence to imprisonment for a period of not less than 15 years’ and

3. a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years’ and

4. …………..”

[25] The offence of which the appellant was convicted in 2001 is not an offence listed in section 51 of the Act. In the circumstances he has to be dealt with as a first offender and be sentenced in terms of section 51(2)(b)(i) of the Act. There is no need for us to refer the case back to the magistrate for sentence afresh. The record before us consists of the appellant’s mitigating factors which we are free to consider. We also agree with the regional magistrate that there are no substantial and compelling circumstances justifying a lesser sentence that the sentence ordained by the legislature in the Act. The rape of the complainant by the appellant is a serious one. It was coupled with violence. The injuries inflicted by the appellant on the person of the complainant were not justified. She had three scratches on her cheek, a small laceration on the inner aspect of the lower lip and a contusion of the inner aspect of the upper lip. The use of violence on the complainant in rape cases is always an aggravating feature of the case. The appellant has a series of previous convictions, some of which involve the use of violence and which were still not older than ten (10) years at the time of his sentence by the court a quo. They suggest that the appellant is prone to violence.

[26] Mr Xozwa has suggested that a sentence of five (5) years be imposed by this court, whereas on the other hand Mr Els for the State suggested a sentence of ten (10) years imprisonment. We are of the view, owing to the absence of substantial and compelling circumstances, that a sentence of ten (10) years imprisonment will be appropriate in the circumstances.

E) CONCLUSION

[27] I would therefore dismiss the appeal against conviction and allow the appeal against sentence.

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

28.1 The appeal against conviction is dismissed;

28.2 The appeal against sentence is allowed and the sentence of the trial court is set aside and the following is substituted in its place:

28.2.1 The appellant is sentenced to undergo ten (10) years imprisonment;

28.2.2 The sentence is antedated to 27^th January 2006.

________________

PW TSHIKI

Acting Judge of the High Court

PLASKET J: I agree. It is so ordered.

_________________

C PLASKET

Judge of the High Court

For the appellant: Mr MM Xozwa

Legal Aid Board

Grahamstown

For the respondent: Adv D Els

Director of Public Prosecutions

Grahamstown

Date Heard: 10 June 2009

Date Delivered: 20 August 2009

---