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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,

FREE STATE DIVISION, BLOEMFONTEIN

Appeal Number: A162/2019

In the matter between:-

L K                                                                                                APPELLANT

and

THE STATE                                                                               RESPONDENT

CORAM: MBHELE, J et OPPERMAN, J

JUDGEMENT BY: MBHELE, J

HEARD ON: 18 NOVEMBER 2019

DELIVERED ON: 10 FEBRUARY 2020

 

[1] The appellant was convicted by the Regional Magistrate, Bloemfontein, of three counts: viz kidnapping, rape and violation of protection order. He was sentenced to 5 years imprisonment, life imprisonment, and 5 years imprisonment for the respective crimes, on 29 November 2017.  Aggrieved by both the convictions and sentences, the appellant exercised his automatic right to appeal due to the life sentence imposed and approached this court on appeal.

[2] In his notice of appeal the appellant contended that the court a quo erred in finding that the state proved its case beyond reasonable doubt. They further contended that the trial court erred in finding that the state witnesses were credible.

[3] The complainant is the appellant’s erstwhile girlfriend and the mother of his child. The complainant had a protection order against the appellant. On 07 November 2016 the complainant went to the appellant’s grandmother’s house at Phelindaba to fetch their child. On her way to catch the taxi to her place of abode the appellant followed her, threatened her with a knife and forced her to catch a taxi to Freedom Square; his place of abode. On their arrival at the appellant’s home he gave their child money to go buy something at a nearby shop and pushed the complainant into the bedroom where he threw her on the bed, took off her clothes and penetrated her vaginally with his penis without her consent. He locked her inside the house with no chance of escaping. When the child returned from the shop he took the child to Phelindaba and locked the complainant inside the house. She sent her boyfriend a message informing him that she was assaulted and asked him to fetch her from the appellant’s house. The appellant intercepted the communication and told her boyfriend to meet the complainant at B’s place. When the complainant’s boyfriend called to confirm that he was at B’s the appellant removed the complainant’s sim card from her phone and sold the phone to one of his friends.

[4] He then kept the complainant locked in the house from 7 – 14 November when the complainant managed to escape at 2 o’ clock in the morning. During the period of her capture the appellant assaulted the complainant and forcefully had sexual intercourse with her daily.

[5] On the night of the 13^th November the appellant had a visit from one of his friends. They smoked some substance and thereafter he became even more violent and told her he was going to kill her and dump her body in the area where Maroma gang members stay.

[6] At around 2 in the morning when the appellant was asleep and drunk from the substance he had smoked she escaped through the window. In the street she saw a taxi and asked help from its driver who gave her his phone to call her boyfriend to fetch her at MUCCP. Her boyfriend came to fetch her and they went to the police to report the matter.

[7] The complainant’s boyfriend testified that the complainant went to Phelindaba to fetch her child from the appellant’s mother. When she did not come back at the time he had expected her to be home he called her phone, it was answered but nobody spoke on the opposite line. He kept on calling the complainant with no response until Saturday 12 November when he received a message from the complainant asking him to come to her because she was being assaulted. When he got back to the complainant she informed him to fetch her from B’s place. He went to B’s place and the complainant was not in sight. He called her several times and her phone was on voicemail. On Monday at 02h00 in the morning he received a call from an unknown number. It was the complainant on the line who told him that she managed to escape from the appellant’s house and asked him to fetch her at MUCCP. While waiting at a taxi stop the complainant arrived in a taxi driven by a male person. The complainant had visible injuries on her body. She gave him a report that she was held hostage, assaulted and raped by the appellant.

[8] Elizabeth Mokoena, a forensic nurse examined the complainant and observed physical injuries that she concluded were related to non-consensual sexual penetration. The complainant reported to her that she was assaulted and stabbed on the back of her head.

[9] The appellant denies any wrongdoing. His version is that the complainant was his girlfriend. He testified that the complainant visited him and stayed at his house from the 7^th – 14^th November out of her own volition. He had consensual sexual intercourse with the complainant on two occasions. The complainant left his house at 6 am on the 14^th of November after her boyfriend called and he allowed her to leave out of fear of being assaulted by the complainant’s boyfriend.

[10] Ms. Kruger, on behalf of the appellant, was unable to show us how the magistrate erred in coming to the conclusion that he arrived at.

[11] The trial court evaluated the evidence and came to the conclusion that the state witnesses were truthful and rejected the version of the appellant as improbable. It is trite that factual and credibility findings of the trial court are presumed to be correct unless they are shown to be wrong with reference to recorded evidence.  The acceptance by trial court of oral evidence and conclusions thereon are presumed to be correct, absent misdirection. (See S v Francis 1991 (1) SACR 198 SCA at 204 e-d.) A court of appeal may only interfere where it is satisfied that the trial court misdirected itself or where it is convinced that the trial court was wrong. (See R v Dhluwayo & another 1948 (2) SA 677 (A) at 705-706).

[12] The powers to evaluate and appraise evidence belong to a trial court which had an opportunity to see and hear witnesses and its conclusions cannot be interfered with simply because a court of appeal would have come to a different finding or conclusion. The trial court’s advantage of seeing and hearing witnesses places it in a better position to assess the evidence, and such assessment must take precedence unless there is clear and demonstrable misdirection.

[13] The complainant’s account of the events was clear and straight forward. Her version was corroborated by her boyfriend as well as the medical report. Her boyfriend confirmed that he received a message from the complainant to come and rescue her as she was being assaulted. He further confirmed that the complainant called him at 2 am from an unknown number to come fetch her from MUCCP. The appellant was unable to explain why the complainant had physical injuries if she was at his place out her own volition.

[14] The appellant’s account of events is riddled with serious contradictions and improbabilities. He was unable to show why the complainant would leave at 2 in the morning and ask help from strangers if she was voluntary with him.

[15] I am unable to find any demonstrable or clear error on the part of the trial court to justify interference with its credibility findings. The trial court was correct in its assessment of evidence and credibility findings. I cannot find that the trial court erred in finding that the appellant’s version is inherently improbable and fell to be rejected.

[16] It is trite law that the imposition of sentence remains the domain of the trial court and this involves the exercise of discretion by that sentencing court.  A court exercising appellate jurisdiction is not free to interfere with the exercise of that discretion unless it is tainted by a material misdirection or the sentence is so disproportionate to the crime, the personal circumstances of the appellant and the interest of society.  See (S v Rabie 1975 (4) SA 855 (A) AT 857 D-E also S v De Jager and Another 1965 (2) SA 616 (A)

[17] In the case of S v Jiminez 2003 (1) SACR 507 at 512 the court said:

“However, even where a sentence does not seem shockingly inappropriate, a court on appeal is entitled to interfere or at least to consider the sentence afresh, if there has been a material misdirection in the exercise of the sentencing discretion”

[18] It is so that a mere misdirection is not by itself sufficient to entitle a court of appeal to interfere with a sentence imposed by a trial court. It must be material.

[19] In the matter of S v Pillay 1997 (4) SA 531 (A) at 531 the court said the following:

“it must be of such a nature, degree or seriousness that it shows, directly or inferentially, that the Court did not exercise its discretion at all or exercised it improperly or unreasonably. Such misdirection is usually and conveniently termed one that vitiates the Court's decision on sentence.”

[20] The court a quo has set out in detail the factors it took into consideration in order to come to the sentence it imposed.

[21] There is no doubt that the offences committed by the appellant are very serious. The complainant was forcefully taken to a place she did not want to go to, her movements were restricted and she was subjected to immeasurable torture and humiliation for 7 days. The appellant has no respect for law. The complainant had already sought help from the law when she applied for the protection order but that did not deter the appellant from dehumanizing her. He treated her like an object with no feelings. 

[22] The incident negatively affected the complainant. She experienced both physical and emotional trauma.  She battled to fall asleep after the incident. Every time she closed her eyes she saw his image next to her. She is scared to go out of the house; she avoids contact with people and prefers to stay in isolation.  She became suicidal as a result of the incident. She found it difficult to relate with men. She has become forgetful.

[23] The trial court correctly considered the appellant’s personal circumstances and found no weighty justification to depart from the prescribed minimum sentence in count 2. There was nothing unique about his personal circumstances. He was 24 years of age, unemployed and has a previous conviction of robbery.  He had a 4 year old child with the complainant.

[24] In S v Malgas 2001 (1) SACR 469 SCA  it was held  that courts are required to regard the  sentences prescribed in terms of  section 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) as  being generally appropriate  for crimes of the kind specified and enjoined not to depart from them unless they are satisfied that there is weighty justification for doing so.

[25] The sentence must fit the crime and the offender. The mitigating factors and personal circumstances of the appellant wane when compared with the seriousness of the offences and the brutality with which they were carried out.  When weighing up the mitigating factors against the aggravating circumstances, this matter, the interest of community as well as the provisions of section 51 of the Act; I am not persuaded that the sentences imposed are unjust. I am of the view that the trial court exercised its discretion judiciously.  There is no justifying cause for us to interfere with the sentences. The appeal ought to fail.

 

ORDER

[26] The following order is made:

The appeal against both convictions and sentences is dismissed.

The convictions and sentences are confirmed.

 

______________

N.M. MBHELE, J

 

 

I concur.

______________

M. OPPERMAN, J

 

 

On behalf of the appellant: Ms. S Kruger

                                                        Instructed by:

                                                        Justice Centre

                                                        BLOEMFONTEIN

On behalf of the respondent: Adv. Ferreira.

                                                        Instructed by:

                                                        Director: Public Prosecution

                                                        BLOEMFONTEIN

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