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Leve v S (CA&R 163/12) [2013] ZAECGHC 5 (31 January 2013)

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NOT REPORTABLE


IN THE EASTERN CAPE HIGH COURT, GRAHAMSTOWN

CASE NO: CA&R 163/12




In the matter between


BONGANI LEVE ............................................................................APPELLANT


versus


THE STATE ..................................................................................RESPONDENT



APPEAL JUDGMENT



HARTLE J


  1. The appellant was convicted of rape of an eleven year old girl and sentenced to life imprisonment.


  1. He appeals against both conviction and sentence with the leave of this court pursuant to a petition.


  1. According to Mr Xoswa, who appeared on the appellant’s behalf, the only issue in dispute in respect of the conviction is whether the trial court correctly rejected his alibi defence that he was elsewhere at the time of the commission of the offence.


  1. The state relied on the evidence of the young complainant, as well as her mother and the latter’s partner, who it transpired was the aunt of the appellant. The doctor who examined the complainant a few days after the rape ordeal also testified.


  1. It is common cause that the appellant frequented the home of the complainant and occasionally slept over there on weekends in the same room where the complainant and her 7 year old brother slept. But not on the weekend of 7 – 9 December 2007 said the appellant. On that weekend he was at his uncle Emsley Dayi’s house at a traditional ceremony in honour of his late grandfather, Fezile Dayi. He last slept over at the complainant’s home on the weekend of 23 November 2007. He denied having forced sexual intercourse with the complainant or sexually assaulting her in any manner.


  1. He could offer no reason why the complainant’s family and his aunt might deliberately falsely implicate him or why all three of them might be mistaken as to the date of his last sleepover.


  1. Under cross examination he suggested that he could recall the ceremony he attended among many others simply because he had been “sitting there altogetherwith the elders. When he was probed as to why he told the police at the time of making his warning statement that he was visiting one Ali Saki at a certain farm rather than that he was attending a ritual ceremony at his uncle’s home, he proffered that it was because at that stage he was “confusedand scared, and because his arrest had happened so “snappy and quickly. He agreed that the names of his alibi witnesses were entirely disparate although he offered, seemingly as an afterthought, that Ali was his aunt’s husband. The appellant’s stepfather, Zubek Mbunge, who his legal representative at the trial intimated would be the one to confirm his whereabouts on the weekend in question, was ultimately not called to testify. His representative placed on record at the trial that the appellant’s mother, who it was suggested would also confirm his alibi and who was seemingly available at court, was similarly not called to testify on the basis that she is “terminally ill…so she can’t really help the court.” 1


  1. The complainant testified through an intermediary that on the weekend of 7 – 9 December 2007 the appellant slept over at her home. On the night in question she and her brother were sleeping in the front room on a mattress and the appellant next to the mattress. Her mother and the latter’s girlfriend were sleeping on a mattress in the second room of the house. She was sleeping on her side. The appellant turned her on her back. He pulled her panties down, climbed on top of her, spread her legs and inserted his penis into her vagina, causing her pain in her genital area. She cried out and he closed her mouth with his hands. She did not at first report the matter because the appellant threatened to kill her if she told anyone about it. Later her mother questioned why she was not walking properly. She was thereupon examined by her mother’s girlfriend and they found “pimples” in her genital area. She subsequently told her mother that she was raped by “Nolele”, the appellant. She was first taken to a clinic and thereafter examined by a doctor.


  1. Her mother confirmed that the appellant visited her home on 7 December 2007 and slept over. He left on the Sunday of that weekend after her, her girlfriend, the appellant and a neighbour, Loekie, had gone to visit the latter’s husband (also a relative of the appellant) in prison2. Upon her return home she noticed that the complainant was not walking normally. Her girlfriend checked the child and noticed pimples in the genital area. Her child was taken to the clinic on the Monday (since it was closed over the weekend) by Loekie at her request as she had to go to work. She herself was asked to call at the clinic and later she pried from the complainant that she had been raped by the appellant. Afterwards she was examined by the doctor, and the appellant arrested on the ensuing Friday. She asked him at the time why he’d broken her trust in this regard, but got no response from him.


  1. She confirmed further that the appellant was accustomed to sleeping over at her home on weekends and usually left on the Monday morning. She noted her surprise that he parted ways with them on the Sunday after the prison visit under the pretext that he wanted to go and do his washing. She later related – albeit with reference to a different aspect, that the complainant used to do the appellant’s washing.


  1. The mother’s girlfriend, who lives with the complainant and her mother, testified that the appellant came to their house on the Friday (7th December 2007) and left on the Sunday. She confirms that she examined the complainant after her mother had commented that she was not walking properly and found that there was a white discharge on the sides of the inner vagina and pimples in the same area. Thinking this to be a “disease”, she suggested that the child be taken to a clinic. On the Monday she asked the complainant what was wrong with her and elicited from her that the appellant had “made some dirty things” to her and warned her not to tell anyone about it.


  1. Although there was no specific focus on the age of the complainant’s injuries, a doctor testified that he examined her under anesthetic on 13 December 2007 when he concluded that forced sexual penetration had taken place. The injuries were not fresh but evidently healing, and at least seemingly older than 72 hours which was the time by when the senacia (bleeding points) observed by him would manifest themselves (and not older than a week or so by which time they would likely start to disappear). The reported lapse of time since the rape was a reason why forensic samples were not taken by him.


  1. In support of his alibi the appellant called his uncle3, Emsley Dayi, who testified that a family ritual was held at his home on 8 December 2007 and that the appellant had “attended. He was careful to state that the appellant had left on the Sunday afternoon around 2pm.


  1. During this witnesses’ testimony it emerged that he had written on his hand the numbers “7”, “8” and “9”, which the prosecutor noticed he was having regard to. He suggested that he had a book at home in which he recorded significant events, and that he had sourced these dates from this book.

  2. The trial court in examining the evidence, noted that the complainant and the appellant were well known to each other so that there was no room for mistaken identity in that sense. (Indeed the appellant had conceded upon trial that he was taken as a “family member” who spent many weekends with them. Before this he also occupied a separate dwelling on the family’s premises.) So too the defence had not placed in dispute that the complainant was sexually abused, which fact was corroborated by, inter alia, the doctor’s evidence. The real issue, so the court observed, was whether the complainant fabricated evidence to falsely implicate the appellant.


  1. In assessing the reliability of the evidence, the trial court was ostensibly alive to the fact that the complainant was a single child witness and pertinently astute to find a guarantee of reliability in her evidence. Concerning the young witness’s demeanor the court observed that :


“The complainant is an intelligent 13 year old girl, she testified in a candid and convincing fashion. The State experienced no problems in leading her evidence-in-chief. When cross-examined by the defence about the date of the incident, she was adamant that it was the weekend of 7 December 2007. She maintained her version of events, despite the lengthy cross-examination by the defence. She gave a detailed account of what transpired between herself and the accused. She was able to demonstrate it by the use of dolls.”



  1. With regard to discrepancies between her oral testimony and a written statement made to the police closer to the date of the offence, the court concluded that these were not material neither did they taint the trustworthiness or the credibility of her evidence. It was further satisfied over and above the complainant’s performance as a witness that independent corroboration had come from the examining doctor. The fact of the rape was additionally consistent with the admissible report made by her to her mother and her girlfriend within a reasonable time after the incident. It also concluded that the evidence of the mother and the girlfriend was reliable, beyond criticism and corroborated that of the complainant most importantly concerning the appellant’s presence at their home on the weekend in question. Bias and motive to falsely implicate him were in the court’s view not in evidence and in any event - especially concerning the complainant who enjoyed a good relationship with him, highly improbable. Also highly unlikely was the fact that the complainant would have reacted in the manner in which she did, having no sexual experience as a point of reference from which to contrive her ordeal at the hands of the appellant. It found that her childlike account of events was indicative of the fact that her evidence was not the result of suggestibility by her mother; the latter’s girlfriend, or any other person for that matter. The court reasoned thus in this regard:


“The complainant has had absolutely no previous sexual experience, the manner in which she testified coupled with a graphic account of what transpired is indicative of the fact that the events was most definitely not the result of imagination (or suggestibility) of the matter.”


  1. Whereas the state witnesses made a favourable impression upon the trial court, the defence witnesses did not, leading the trial court to reject the alibi as demonstrably false. The court reasoned as follows in this regard:


“The accused’s version is a mere denial. The Court found the following inconsistencies in his evidence. He was inconsistent as to where he was on the weekend in question. In his evidence-in-chief, he said he was at a family function. However during cross-examination by the Public Prosecutor, it was put to him, “Why did you tell the police that you were at Ali Saki’s house, visiting”? His reply “Yes I told them that”. When it was further put to him by the Public Prosecutor, “Why didn’t you tell the police you were attending a family ritual, his reply was, “I was confused”. He was evasive and could not commit himself to any clear answer as to where he was on the weekend in question. Further he says he was there on the 23rd of November. The complainant was taken to the doctor on the 13th of December and the accused was arrested on the 14th of December. All these dates do not make sense and do not correlate, since it is clear and common cause the next day, the mother examined the child and found these injuries, that was on the 8th of December and it does not make sense if the accused was there on the 23rd of November that he would be arrested on the 14th of December.

With regard to the defence witness, he displayed bias and prejudice in favour of the accused, not only because he is the uncle of the accused and therefore had a mot(ive) to misrepresent the facts but because of the manner in which he testified. He had a very selective memory, choosing to remember things favourable to the accused. He was inconsistent as to how he remembered that the ritual was held during the weekend of the 7th and 8th of December, since it was highly improbable and he failed to respond to the Public Prosecutor’s question as to when did this person die. When it was put to him by the Public Prosecutor how was it possible to know the whereabouts of the accused since there were many people at the ritual, his reply “Yes it is like that but if anything is wrong I would be advised.” He was unable to give a clear explanation as to why he had these specific dates written on his hand when he was testifying. The Court gained the distinct impression that the accused and the witness were trying their utmost to create an alibi for the accused in the light of the overwhelming evidence against him.”


  1. Prefacing its evaluation of the defence version, however, the court correctly observed that the mere acceptance of the state’s case is not sufficient reason to reject the evidence adduced by the appellant. But taking all the evidence into account, its assessment of the complainant’s evidence in relation to the totality thereof and the improbability that she would falsely implicate the appellant, the court thus had no hesitation in accepting her evidence that the appellant raped her and rejecting his alibi that he did not have the opportunity to do so. On this basis it found the appellant’s evidence to be false beyond a reasonable doubt.


  1. The approach to be adopted in regard to an alibi defence, which is essentially a straightforward denial of the state’s case on the issue of identity, is trite4. Firstly there is no burden of proof on the accused to prove his alibi. The burden remains on the state to prove its case throughout. As with any other defence, if there is a reasonable possibility that the accused’s alibi could be true, then the state has failed to discharge its burden and he must be given the benefit of the doubt. Since an alibi defence brings with it mutually opposing versions, it is important not to isolate out the enquiry on the one hand whether the state has proved the identity of the perpetrator and, on the other, whether it is therefore possible that the accused could have been elsewhere at the time of the commission of the offence. The correct approach is to consider the alibi in the light of the totality of the evidence and the court’s impression of the witnesses. If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable. The ultimate test, and there is only one test in a criminal case, is whether the evidence establishes the guilt of the accused beyond reasonable doubt.


  1. The court in R v Hlongwane5 warned that it would be wrong to reason that if the evidence of the state witnesses, considered in isolation, is credible the alibi must therefore be rejected. The correct approach is to consider the alibi in the light of all the evidence in the case and the court’s impressions of the witnesses and from that totality to decide whether the alibi might reasonably be true. So too for example in S v Liebenberg6 the court noted that:


“(O)nce the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the appellant to the offences. The acceptance of the prosecution’s evidence could not, by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The evidence must have been, when considered in its totality, of the nature that proved the alibi evidence to be false.”



  1. The question in casu is whether the evidence considered in its totality was of the nature that proved the alibi evidence to be false. The attack upon appeal had two bases to it. Firstly it was contended that the magistrate had misdirected herself in finding the complainant to be a reliable witness and, secondly, the court had, without sound reason, simply preferred the version of the state that the appellant was the perpetrator over that of his that he was not at the complainant’s home on the weekend in question.


  1. But this does not appear to be the case. On the contrary, the reliability and demeanor of the complainant and other state witnesses was carefully assessed as indicated above. The court also properly had regard to the cautionary rules and assiduously applied those, purposively looking for guarantees in regard both to the quality of the complainant’s evidence as well as in her account of the sexual ordeal. The warrantees were found in the independent evidence of the doctor, the peculiar circumstances under which the disclosure of the rape was prompted, the essence of the report made to the complainant’s mother and her girlfriend as well as their supporting evidence which corroborates the fact of the appellant’s presence at their home on that weekend. Their unchallenged testimony concerning the complainant’s at first un-suspecting visit to the clinic at her mother’s behest also in my view adds the hallmark of reliability to the complainant’s evidence.


  1. The fundamental rule to be applied by an appeal court is that it is not at liberty to depart from the trial court’s findings of fact and credibility unless they are vitiated by irregularity, or an examination of the evidence reveals that those findings are patently wrong. The trial court’s findings of fact and credibility are presumed to be correct because that court has had the advantage of seeing and hearing the witnesses and is in the best position to determine where the truth lies.7


  1. These principles are no less applicable in cases involving the application of the cautionary rule. If the trial court does not misdirect itself on the facts or the law in relation to the application of the cautionary rule, but, instead, demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily depart from that court’s conclusions.8


  1. Except to suggest that the complainant’s evidence was not “reliable enough” and that the trial court had paid only “lip service” to the cautionary rules, the only misdirection on which the appellant sought to rely were a few “conflicting” answers given by the complainant in her evidence in chief and in cross examination, on the one hand, and between her oral testimony and what had been set forth in her police statement on the other. In the latter regard the court correctly noted in my view that the discrepancies relating to whether the complainant had been sleeping on her side or on her stomach before the rape; whether the appellant or she had turned her body over onto her back; or whether he was completely or partially naked were not material, especially since the fact of the rape was not placed in issue. As for failing to remember whether she had signed a statement before the police or not, she appeared to have forgotten this but readily conceded when her statement was exhibited to her that she had indeed signed it.


  1. In S v Govender and Others 9 the court warned of the dangers in relying on a statement taken by the police where the essence of what was related to the deposing officer is somehow lost in translation most notably due, inter alia, to language constraints. In this regard the complainant was not even asked if she understood the language in which the statement was taken down. Also, although the appellant’s legal representative, albeit in a different vein seeking to show that the complainant might have an active imagination prompted by things she read or dreamed about, had elicited from her that she read, she was not asked if she had read the statement or was mindful of its contents before she signed it. The negligible inconsistencies therefore pale in significance when considered against this background and I am satisfied that the court correctly concluded that they did not detract from her reliability as a witness.


  1. The other examples cited in regard to discrepancies between her evidence in chief and under cross examination are more apparent than real.


  1. Concerning the submission that the trial court had simply preferred the state’s version, this is not in evidence at all. In my view the court demonstrably scrutinized all the material before it and correctly rejected the appellant’s alibi defence against a conspectus of all the evidence.


  1. I can find no fault with the court’s approach or conclusion and no reason, therefore, to interfere with the conviction.


  1. With regard to sentence, it is trite that the test for dealing with sentences on appeal is whether the sentence is vitiated by irregularity, misdirection or is shockingly inappropriate. Since the imposition of an appropriate sentence involves the exercise of a judicial discretion, the appeal court has a limited basis to interfere therewith.10


  1. The trial court reflected that it had had due regard to the appellant’s personal circumstances but concluded that, when weighed against the aggravating factors present in the matter, those were not sufficient to constitute substantial and compelling circumstances within the meaning referred to in section 51 (1) of the Criminal Law Amendment Act, no 105 of 1997, the provisions of which were applicable by virtue of the fact that the appellant was convicted of the rape of a person under the age of sixteen years.


  1. The aggravating factors mentioned were as follows: The complainant was 11 years’ old at the time of the incident. She was raped in the sanctity of her home. She suffered pain and injury in relation to the forced penetration and her mother testified that she had noticed some behavioral changes in her since the incident, inter alia, that she had become forgetful and withdrawn and was regressing at school. The appellant was well known to her and her family and received into their home as one of them. He breached that trust placed in him. He was brazen and callous in threatening to kill her if she reported the rape to her mother. The court also noted that the appellant had shown no remorse and had put the complainant to the unnecessary trauma of testifying at the trial.


  1. On the other hand the court kept in mind that the appellant is “relatively young(He was 24 years at the time of sentence), but instantly discounted the fact that this on its own constituted a basis to be treated leniently. On the contrary, citing S v D 11, it recognized the need to adopt a sterner approach in sentences involving serious crime with a view to ensuring that these offenders accept responsibility for their actions. As an aside I mention that the appellant failed to adduce any evidence to show that he was immature to such an extent that his maturity might operate as a mitigating factor12


  1. It was additionally submitted that the appellant had been drinking at the time of the offence. In this regard too, however, no evidence was adduced that his responsibility was diminished on account thereof. Indeed his state of sobriety at the time was simply mentioned in passing during the trial.


  1. Apart from referring to the fact that the appellant had been in custody for two and a half years awaiting trial, no other personal circumstances were pertinently mentioned in the judgment. A generic reference to a pre sentence report was however made and I will assume for present purposes that the court had regard to the appellant’s unique personal circumstances gleaned from it.


  1. It was submitted that those, cumulatively assessed, ought properly to have conduced to a finding that substantial and compelling circumstances were present. Apart from his age, the appellant is a first offender, was gainfully employed until his arrest and was supporting his family and a four year old daughter all of which factors denote prospects of rehabilitation.


  1. The further ground relied upon by the appellant on appeal is that although the offence of which he had been convicted is “indeed heinous, it does not resort within the worst category of offences. Whilst not overlooking the profound impact of the rape to the young complainant, the degree of brutality meted out is a significant factor which must be placed on the balancing scale to determine whether substantial and compelling circumstances exist. As insensitive as it may sound to reflect on the so-called objective scale of gravity when a victim’s life has been shattered by the traumatic experience of rape, it is a reality which the courts cannot lose sight of that some rapes are more serious than others and that the benchmark of life imprisonment should be kept in reserve for the worst of these.13 The trial court in my view erred in giving no ostensible weight to this factor.



  1. Given its proper place in the balancing scale in the context of the totality of the facts before the court, a sentence of life imprisonment is disproportionately excessive and induces a sense of shock. Accordingly there was in my view a basis to find that substantial and compelling circumstances exist to justify a deviation from the prescribed minimum sentence of life imprisonment.

  2. In the result I am of the view that this court must interfere with the sentence imposed by the trial court, set it aside and impose an appropriate sentence.



  1. I issue the following order:


  1. The conviction of the appellant is confirmed.

  2. The appeal against sentence is upheld and the sentence of life imprisonment is set aside and substituted with a sentence of 19 years’ imprisonment.

  3. The sentence is antedated to 21 July 2010.




_________________

HARTLE J

JUDGE OF THE HIGH COURT






I AGREE AND IT IS SO ORDERED:



_________________

MJALI J

JUDGE OF THE HIGH COURT




DATE OF APPEAL : 12 December 2012


DATE OF JUDGMENT: 31 January 2013







APPEARANCE FOR APPELLANT: Mr Xoswa

Justice Centre

Grahamstown



APPEARANCE FOR RESPONDENT: Ms Packery

Director of

Public Prosecutions

Grahamstown

1The record reveals that she had arrived at court and consulted with her legal representative who then placed on record the appellant’s instructions not to call upon her to testify.

2The appellant also referred to such a prison visit in the company of exactly the same persons, but testified that this had happened on the weekend of 23 November 2007.

3The appellant referred to this witness as his uncle, but the witness said he was his grandfather.

4See Schwikkard, Van der Merwe, Principles of Evidence, 2nd Ed at par 30 11 24 (p517) and the various authorities cited there.

5 1959 (3) SA 337 AD at 341 A

62005(2) SACR 355 (SCA) at paras 14 and 15

7R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 et seq; S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645; and S v Francis 1991 (1) SACR 198 (A) at 204c – f.

8S v Leve 2011 (1) SACR 87 (ECG) at 90 h - i

10S v Malgas 2001(2) SA 1222 (SCA)

12See in this regard S v Matyityi 2011 (1) SACR 40 (SCA) at paragraph [14]

13S v Vilikazi 2009 (1) SACR 552 (SCA): S v Mahomotsa 2002(2) SACR 435 (SCA)