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IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA303/2014 DATE HEARD: 12/10/2015
DATE DELIVERED: 14/10/2015 NOT REPORTABLE

In the matter between:

BONGOLWETHU MINI	APPELLANT

and

THE STATE	RESPONDENT

JUDGMENT

PLASKET J

[1]    The appellant was convicted by Sandi J of rape (count 1) and conspiring with or aiding and abetting another person to commit rape (count 2), both offences created by the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. He was sentenced to life imprisonment in respect of count 1 and eight years imprisonment in respect of count 2. He appeals against both conviction and sentence . He does so with the leave of the Supreme Court of Appeal, leave to appeal having been refused by Sandi J.

[2] It was not in dispute in the trial that in the early hours of 3 March 2012, the complainant was accosted by two of a group of three men, raped twice by one of them and once by the other. When she was raped by one, the other held her down.

Conviction

[3] The complainant alleged that the person who raped her twice and held her down while the second man raped her was the appellant. He denied this and raised an alibi as a defence. Sandi J found that the complainant, a single witness , was a particularly good witness whose evidence was corroborated by two other witnesses in certain respects, that she had adequate opportunity to identify the appellant and that her identification of him was reliable. He found the appellant to have been a poor witness and he rejected his version as not being reasonably possibly true.

[4] The appeal against conviction thus concerns Sandi J's assessment of the evidence and his findings of fact. In such a case - and this is trite law - a court of appeal's powers of interference with the trial court's findings are limited. The limits of
the power to interfere were set out thus in S v Bailey 2007 (2) SACR 1 (C), para 16:
'If there has been no misdirection on the facts, there is a presumption that the trial court's evaluat ion of the evidence as to the facts is correct , and that a court of appeal will interfere therewith only if it is convinced that that evaluation is wrong. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court's evaluation of oral testimony. In order to succeed on appeal the appellant must therefore convince us on adequate grounds that the trial court was wrong in accepting the evidence of the State witnesses - a reasonable doubt will not suffice to justify interference with their findings.'

[5] The first issue that arises for decision is whether Sandi J assessed the evidence of the complainant with the necessary caution.

[6] First, he found her to be a good witness. That finding is borne out by the record. She cannot be faulted in any respect and there is no basis upon which this finding can be upset. Secondly, he found that her evidence was corroborated in certain respects by two witnesses , namely the person to whom she ran for help and to whom she first reported that she had been raped, and her brother. It was also corroborated by the record of her medical examination.

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[7] The J88 form indicates that she had a wound on her left shoulder, where she said she had been stabbed, and it was recorded that the gynaecological examination revealed bruises consistent with a sexual assault.

[8] The evidence of the other two witnesses corroborated her evidence that there was sufficient light in the area in which she was raped to enable the identification of a person - a fact initially denied by the appellant. The evidence of her brother also corroborated her evidence that she knew the appellant, that he was a friend of her brother's and that he had visited their house - all facts denied to an extent at least by the appellant.

[9] In my view, these factors all point to a proper application of the single witness cautionary rule on the part of Sandi J.

[10] It is trite that a court must, in order to accept evidence of identification, satisfy itself that the evidence is both honest and reliable. See S v Mthetwa 1972 (3) SA 766
(A) at 768A. In this case, Sandi J accepted that the light in the area was sufficient to make an identification and that the complainant knew the appellant.

[11] While the appellant appears at first to have placed both of these aspects in issue, he later admitted both. In circumstances like these, where the witness knows the person identified, the probability that the identification will be reliable is greatly increased - and the corresponding risk of an erroneous identification reduced. See R v DIad/a & others 1962 (1) SA 307 (A) at 31OC.

[12] The complainant was criticized for not having been able to identify the appellant's co-perpetrators and a question mark was placed on her sobriety. I do not see how her identification of the appellant, whom she knew, can be criticized because she had not been able to identify the other two men whom she did not know. Sandi J was alive to the fact that she had imbibed alcohol. It was not very much and was imbibed over a long period of time. Be that as it may, despite the fact that she had had something to drink, he nonetheless accepted her evidence , having approached it with due caution. He committed no misdirection that I can detect and so we are bound by his factual findings.

[13]     That being so, the appeal against conviction must fail.

Sentence

[14] As  the imposition of sentence lies within the discretion of the trial court, a court of appeal may only interfere with a sentence if the trial court misdirected itself or imposed a sentence that induces a sense of shock . See S v Ma/gas 2001 (1) SACR  469  (SCA), para  12. While  the  appellant  was  sentenced  to  eight  years
imprisonment in respect of count 2, it is the sentence of life imprisonment , imposed in respect of count 1, that is the real target of this appeal.

[15]   The Criminal Law Amendment Act 105 of 1997 prescribes life imprisonment to be the sentence that should ordinarily be imposed when, as in this case, the victim was raped more than once whether by the accused of by another person acting in the furtherance of a common purpose or conspiracy. That sentence may only be deviated from if substantial and compelling circumstances justify such a deviation.

[16]  The rape of the complainant was a particularly serious one. She was accosted by the appellant and two  others, stabbed in the back, thrown to the ground and raped three times. The appellant raped her twice. He was clearly the leader of the group and dictated what was done. He even ordered the third man to rape the complainant but this man refused to do so.

[17] The appellant was a first offender. He was, at the time, 23 years old, single and a farm worker. He had, it would appear, imbibed liquor but the amount consumed and its effect on his inhibitions are unknown. Indeed, Sandi J found that there was no evidence that the appellant committed the offences in question as a result of immaturity or because of the consumption of drugs or alcohol.

[18] It was argued, however, that Sandi J misdirected himself in two respects. The first was to hold it against the appellant that he had condoms in his possession and wore a condom when he raped the complainant. While Sandi J did speak of this, and the possible reason for the appellant's possession of condoms, he made nothing of

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it, stating that 'in the light of the facts of this case, I don't have to make a definite finding in that regard'. This, accordingly, was not a misdirection.

[19) Secondly, it was argued that Sandi J considered the appellant's lack of remorse to be an aggravating factor. lt is not necessary to decide whether a lack of remorse may or may not be aggravating , as to which, see Terblanche Guide to Sentencing in South Africa (2 ed), 189-190. I do not read Sandi J's judgment to say that he considered the lack of remorse to be aggravating . Rather, its absence is a factor that pointed, with other factors, to the absence of substantial and compelling circumstances that could justify a deviation from the prescribed sentence. This too is therefore not a misdirection.

[20]    That being so, the appeal against sentence cannot succeed.

[21]	I make the following order. The app

C. PLASKET
JUDGE OF THE HIGH COURT

Iagree:

JUDGE OF THE HIGH COURT

•  •

I agree:

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES
For the appellant: E Crouse instructed by the Port Elizabeth Justice Centre
For the respondent: P Zantsi of the office of the Director of Public Prosecutions, Grahamstown