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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN

CASE NO: CA & R 99/11

Date Heard: 13 March 2013

Date Delivered: 13 March 2013

In the matter between:

NICOLAAS CORNELIUS ............................................................................Appellant

and

THE STATE .............................................................................................Respondent

JUDGMENT

GOOSEN, J:

[1] The Appellant was convicted of rape of a 15 year old girl and sentenced to life imprisonment by the Regional Court sitting at Willowmore. He appeals with leave of that court against both his conviction and sentence.

[2] The events giving rise to the charges preferred against the appellant occurred during August 2005. The trial of the matter was commenced in March 2008 and, after various postponements, judgement convicting the appellant was delivered on 23 April 2010. Sentence was thereafter handed down on 14 February 2011. After leave to appeal was granted on this appeal came before this Court. The matter was postponed in order to correct certain deficiencies in the record. The appeal finally came before us on 13 March 2013.

[3] At the time of the commission of the offence the complainant was 15 years of age. She alleged that on the evening of 6 August 2005 she was in the company of two friends. They were on their way home shortly before 6:00 pm. They stopped at a tavern in Willowmore. One of her friends went inside to buy cigarettes. She and the other friend waited outside. After waiting for a while they also went inside to see why their friend was delayed. When she entered, she encountered the appellant. According to the complainant the appellant put his arm around her neck and he continued to hold on to her despite her telling him to let go of her. Her friend Gavin also told the appellant to leave her. When the complainant said she must go home to the appellant offered to drive her home. She did not want to go with him. He insisted however and even suggested that one Puppets, should accompany them.

After a short while the complainant agreed to allow the appellant to drive her home. When they left the tavern, Puppets, a person known to the complainant, accompanied them. The complainant was seated at the front passenger seat of the vehicle and Puppets was seated at the back. At the turnoff to complainant’s house appellant instructed Puppets to get out of the car which, after being threatened with assault, he did. Complainant also tried to alight but the door was locked. Appellant then drove the vehicle out of town along the road towards Aberdeen. He stopped the car under a bridge at a place known as Slangkoppies. It was here that the complainant said the appellant raped her in the car. Of note here is the allegation made by the complainant that whilst they were parked at Slangkoppies, before the rape, she sent her mother, who was then living in Johannesburg, an sms “Please call me” message. The mother phoned her back but the appellant apparently switched off the phone. After the rape the appellant drove back into Willowmore, first stopping at a picnic spot under some trees where he told her to stop crying and offered to give her a cellphone. Thereafter he drove her back to the tavern. On arrival at the tavern she met up with her friend Gavin. She was visibly upset and when he asked her what had happened she told him. Later that evening when she was at her relatives’ house the appellant telephoned her. The phone was answered by her aunt who told the appellant that he had already taken what he wanted.

[4] The appellant pleaded not guilty. By way of plea explanation he denied that he had raped the complainant. He nevertheless admitted certain facts. These were that the complainant was 15 years old at the time and that on 6 August 2005 a maroon BMW, owned by his brother Mario, was used by him; that the vehicle was observed by one Pieter le Roux to be parked alongside the bridge at Slangkoppies between 18h30 and 18h50; and that he, the appellant, was alone with complainant in the vehicle for a short while until he dropped her off at approximately 18h10.

[5] In his judgement the Magistrate sets out in detail the evidence tendered by the several witnesses called by both the prosecution and the defence and, after evaluating the evidence and assessing the credibility of the witnesses records his findings in respect of the events of the evening, which I have summarise hereinabove.

[6] The Magistrate’s judgement on conviction is challenged, on appeal, on essentially four grounds. The first of these concerns the general approach that the Magistrate adopted in the assessment of the probabilities. It is submitted that the Magistrate failed to consider whether the balance of the probabilities weigh so heavily in favour of the state as to exclude any reasonable doubt as to the appellants guilt (see S v Chabalala 2003 (1) SACR 134 (SCA) at 139 i – 140 a).

[7] The second concerns the assessment of the credibility of the complainant. In this regard it was submitted that the Magistrate erred in not giving due weight to the lack of medical evidence corroborating the allegation of a sexual assault; that he erred in not having sufficient regard to the evidence which contradicts the complainant’s version, namely the evidence relating to whether the appellant held her about the neck when she first entered the tavern and the evidence relating to where Puppets sat in the vehicle when they drove from the tavern; and the evidence relating to the time when the complainant returned to the tavern in the company of the appellant.

[8] The third ground concerned the alleged finding that it was common cause that the complainant had sent an sms to her mother when she was in the vehicle at the Slangkoppie bridge.

[9] The fourth ground concerns the Magistrate’s assessment of the credibility of the appellant and the adverse findings made by him in this regard.

[10] I shall deal with each of these in turn.

[11] The first ground is without foundation. It is apparent from the judgement that the Magistrate was alive to the fact that in respect the alleged rape there was indeed no direct corroboration; that the complainant was a single witness whose evidence must be approached with caution and that in assessing the mutually destructive versions of what had occurred, regard would need to be given to the evidence as a whole; the credibility and reliability of the witnesses and an overall assessment of the probabilities. The Magistrate embarked on this exercise against the background of having found that many of the witnesses had created a good impression and that there were very few instances where they had materially contradicted themselves. A finding with which I can find no fault. He then considered that it was necessary to evaluate and to analyse the evidence of the complainant as to her conduct before, during and after the alleged rape and to weigh this against the inherent probabilities and improbabilities. In doing so he found, quite correctly in my view, that the acceptable and reliable evidence established that she had no desire to go with the appellant in the motor vehicle and that upon her return she was visibly upset.

He considered that this pointed to something having transpired when the appellant and complainant were alone. Mr Koekemoer on behalf of the appellant, argued that the Magistrate unduly over emphasised this and that he had placed undue reliance on the fact that the appellant was upset. I disagree. A reading of the judgment indicates tha the Magistrate was engaged in on evaluation of a number of aspects of the evidence in order to determine whether there was evidence pointing to the reliability of the complainant’s version. Whilst accepting that there was no direct medical corroboration for the alleged rape the Magistrate considered a number of factors including the crucial aspect of timing. In this regard the Magistrate evaluated the evidence given by both the state witnesses as to the time of the incident and defence witnesses. He also considered the admission made by the appellant regarding the presence of the vehicle at Slangkoppie bridge and the cellular phone records which objectively established the time at which certain calls were mad. His conclusion was that:

“Hierdie tydsbepaling pas in by die logiese verhaal en die verloop van die gebeure soos deur die klaagster geskets”

Having undertaking the exercise described the Magistrate concluded that:

“As ek die totaliteit van die gebeurtenis oorweeg, en mens moet nie die fout maak om na enkele feite afsonderlik te kyk en broksgewys die saak te beoordeel nie, is die inherente waarskynlikhede in guns van die klaagster, dit ondersteun haar weergawe, en vind ek dat sy ‘n eerlike en betroubare getuie was op wie se getuienis kan staatmaak.”

[12] In my view the Magistrate properly applied the test in the circumstances and his conclusion cannot be faulted. (S v Ntsele 1998 (2) SACR 178 (SCA) at 182 d – e). Mr Koekemoer submitted that the complainant’s evidence that she was returned to the tavern at about 7:00 pm was not supported since other witnesses said that they returned when it was still light. In my view the Magistrate quite correctly rejected the evidence of appellant’s brother Mario when he found to lack credibility. He also found that the evidence of Bernice as to the time when she and appellant had gone to the bank was unreliable given the conservable delay between the events and when she testified. He noted too that Jaftha, a defence witness, did not support the appellant’s claim that he had only been away from the tavern for a short while.

There is further, telling aspect, namely the common cause fact that the maroon BMW was in fact seen to the be at the Slangkoppiie bridge between 18h30 and 18h50. Mr Koekemoer could advance no explanation as to how, or the defence version of events, the complainant could have known that the vehicle had been there that evening, apart from suggesting that it was known that the Slangkoppie bridge was used for trysts.

In S v Hadebe & Others 1997 (2) SACR 641 (SCA) at 645 e-f, the court set out the approach, on appeal, to a trial court’s findings of facts in the following terms:

“Before considering the submission sit would be as well to recall yet again that there are well –established principles governing the hearing of appeals against findings of facts. 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.”

[13] Insofar as the ground relying upon the Magistrate’s assessment of and finding as to the credibility of the complainant and appellant is concerned, it is trite that an appeal court will not readily interfere with findings as to credibility made by a trial court.

[14] That is so because the trial court is best placed to make an assessment of the credibility of a witness having heard the witness give evidence and having had an opportunity to observe the witness and to consider and assess his or her demeanour in the witness box. Unless it is apparent from a reading of the record of evidence that certain testimony is unreliable having regard to other facts established and the inferences which may be drawn from such facts, a court of appeal will accept the findings of credibility made by the trial court.

[15] In this instance, counsel for the appellant could not point to any errors made or misdirections committed by the trial Magistrate in regard to the facts considered in assessing the credibility of both the complainant and the appellant. Accordingly, there is no room to interfere with the findings made, which appear, upon consideration of the record of evidence to have been correctly and properly made.

[16] The trial aspect concerns the error as to the finding that it was common cause that a cell phone call was made when the complainant was in the vehicle at Slangkoppie bridge. A reading of the record indicates that the criticism is misplaced. The Magistrate did not find that it was common cause that complainant had received a call from her mother when she was still at the Slangkoppie bridge. The magistrate in fact found that it was common cause that the vehicle was at Slangkoppie bridge at the time that the call was received. He did not find it to be common cause that the call was received when the complainant was in the vehicle at Slangkoppie bridge. There is accordingly no error or misdirection on the part of the Magistrate in this regard.

[17] It follows from what is set out above that the appellant’s appeal against his conviction cannot succeed.

[18] I turn now to deal with the sentence of life imprisonment imposed upon the appellant.

In S v Mqikela 2010 (2) SACR 589 (ECG) Jones J stated at 591 (a)

“A court of appeal has no general power to set aside the sentence of the trial court. The imposition of sentence is within the discretion of the trial court, and the court of appeal may interfere only if that discretion has not been exercised in a proper judicial manner”.

[19] The learned Judge, with reference to the judgment of the SCA in S v Vilikazi 2009 (1) SACR 552 (SCA) went on to say at 591i

“What is required is that the trial court should test the justice and proportionality of the prescribed sentence by weighing and balancing all factors relevant to the nature and seriousness of the criminal act itself (in the light of the legitimate concerns of society), as well as all relevant personal and other circumstances relating to the offender which could have a bearing on the seriousness of the offence and the culpability of offender. It that exercise shows a lesser sentence than life imprisonment would be appropriate, it is not only justified, but bound, to impose the lesser sentence”.

[20] In my view the trial court did not pay due regard to the necessity to achieve justice and proportionality in respect of the sentence imposed. An indication to the contrary is to be found in the remarks by the trial Magistrate that it was to be held against the appellant that he had throughout the trial and even after conviction, maintain his innocence. That fact cannot, of course, count against him at the stage of sentence. An accused person is not obliged to accept a conviction if it is his version that he is innocent of the offence.

[21] The approach adopted by the Magistrate constitutes a misdirection.

It appears that his misdirects as well as the Magistrate’s adverse impression of the appellant as a womaniser may have caused to Magistrate to lose sight of the need to achieve proportionality in the sentence. An appeal court will only interfere with the sentence imposed by the trial court where such sentence is vitiated by some irregularity or misdirection or, having regard to the circumstances, it is disturbingly inappropriate (see S v Sadler 2000 (1) SACR 331 (SCA) at 334 e-g).

[22] In this instance there is such a misdirection. In addition the sentence of life imprisonment is also, taking into account the nature of and circumstances in which the offence was committed not a just sentence. The rape of a 15 year old child by an much older man in circumstances where the victim has been induced under false pretences to enter his care, is undoubtedly a very serious offence, which merits a very long period of imprisonment. Life imprisonment is a custodial sentence “of the utmost severity” (see S v Monyane & Others 2008 (1) SACR 543 (SCA) at 549i) and should be imposed only for the most serious and egregious instances in which offences such as this are committed.

[23] Having come to the conclusion that this court is at large to interfere with the sentence of life imprisonment, if follows that the sentence must be set aside and substituted with another sentence.

In my view, taking all the circumstances of the matter into consideration including the personal circumstances of the appellant, a sentence of 20 years imprisonment would be appropriate in this matter.

In the result I make the following order:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is upheld. The sentence of life imprisonment is set aside and substituted with a sentence of 20 years imprisonment, antedated to 14 February 2011.

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G GOOSEN

JUDGE OF THE HIGH COURT

ZILWA AJ:

I agree.

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P ZILWA

ACTING JUDGE OF THE HIGH COURT

APPEARANCES:

FOR APPELLANT:

Justice Centre

Grahamstown

FOR RESPONDENT: W Packery

Director of Public Prosecutions

Grahamstown

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