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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

C.A. & R: 290/2014

Date Heard: 18 March 2015

Date Delivered: 25 March 2015

In the matter between:

MZWANELE KENNETH MASE......................................................................................Appellant

and

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

JUDGMENT

EKSTEEN J:

[1] The appellant was convicted in the Regional Court in Port Elizabeth of one count of rape and he was sentenced to 10 years imprisonment.  He appeals, with leave of the trial court, against both his conviction and sentence.

[2] The evidence of the complainant, to whom I shall refer as “TC”, relating to the alleged rape is not in dispute.  TC was 28 years of age when she boarded a “jikileza” taxi on 21 February 2007 from Motherwell to Kwazakhele.  It was a private Mazda saloon vehicle and there was already a second passenger in the vehicle when she boarded.  The second passenger was later dropped off when the taxi had reached her destination.  Thereafter the taxi proceeded in the direction of Kwazakhele and on route, in the vicinity of a Sasol garage, the driver changed the direction of the vehicle and stated that he was going to fetch persons at Exmico in Swartkops.  At this stage the complainant and the driver of the taxi were alone in the vehicle and her protestation fell on deaf ears.  He drove to a secluded spot where he advised her that he had not come there to fetch people but that he intended to rape her.  He instructed her to undress.

[3] TC states that the driver of the vehicle threatened to kill her and that he undressed the lumber jacket which she was wearing on her upper body.  He instructed her to take off her skirt and her panty.  TC states that she begged him that whatever he was going to do to her he should not kill her.  He then again instructed her to undress her skirt and her panty.  She obliged as she feared for her life and thereafter she was raped in the taxi.

[4] TC testified that these events occurred in a dark area and she was unable at the time of the rape to see clearly the face of her assailant.  She accordingly tried to set him at ease and advised him that she was hungry requesting that they proceeded to Kentucky Fried Chicken at Njoli Square so that she could purchase a meal.  This she did in order to have an opportunity to observe him so that she may be able to identify him.  The driver, however, did not agree and stated that he would proceed  to the Gabane Garage in Motherwell.  When they arrived there he asked what she would like to eat and she responded that anything would suffice.  He alighted from the vehicle and entered into the shop where he bought a piece of chicken, a can of coke and a packet of Simba chips.

[5] At the garage the area is lit up and there is a glass door leading into the shop.  Inside the shop there are lights which also reflect outside.  In addition there were electric lights fitted to the outside walls of the shop at the garage area.  When the driver emerged from the shop in the lit up area TC states that she looked carefully at his face so as to be able to identify him.  For this reason she did not concentrate on his clothing.  He was approximately two and half metres from her when he emerged from the shop and she could see him clearly.  Although her observation was limited to a few seconds she had a clear view of his face and in cross-examination she states that she saw small spots on his face, like pimples, and that he had a dark complexion and wore a cap with stripes.  In this regard, the appellant, during his evidence, admits to having such spots on his forehead.  It was not contested that he has a dark complexion.

[6] During the course of the events TC states that the driver of the vehicle requested her to provide him with her cellphone number.  She purported to oblige but gave him her sister’s cellphone number.  Thereafter he took her to Kwazakhele where she had requested to go and he dropped her next to her boyfriend’s home.  When she alighted from the vehicle she noted the registration number of the vehicle to be BBT100EC.  As it was dark she was unable to say with any certainty what the colour of the vehicle was but she states that it was a Mazda vehicle.

[7] Upon being dropped she proceeded to the home of her boyfriend where she reported the incident.

[8] The following day she advised her family of the events.  They agreed that in the event that her assailant should phone she should speak nicely to him and invite him to the house.  That same morning TC states that the appellant phoned on the number which she had provided and indicated that he wished to see her.  She directed him to her house and she proceeded to stand and wait for him a short distance from the house.  It was arranged with her family that she would embark upon the vehicle when her assailant arrived and that her stepfather would then follow the vehicle in his own car.  The appellant arrived in a different car to that in which she had been raped the previous day.  He was a passenger in the vehicle in which  he arrived and it was driven by a person unknown to TC.  She recognised him as the person who had raped her.  She boarded the vehicle, a red car,  and then noted that her stepfather’s vehicle was not following.  She was accordingly obliged to jump out of the vehicle whilst the vehicle was in motion and she ran towards the nearest house.  Upon this event the appellant and his friend proceeded on their way leaving her behind.  At this stage she noted that the vehicle in which the appellant was was being chased by a vehicle driven by her cousins.

[9] One of her cousins, also a driver of a jikileza taxi recognised the vehicle in which the appellant was and knew the driver thereof.  In these circumstances they approached the police.  She, together with the police, proceeded to the home of the driver of this vehicle and, although he was initially reluctant to identify his passenger, he later directed the police to the home of the appellant. 

[10] So TC and the police proceeded to the home of the appellant where they found the appellant hiding in his motor vehicle, the Mazda vehicle, bearing the registration letters and number BBT100EC.  She immediately identified the vehicle in the yard as being the jikileza taxi in which she had been raped.  When the appellant was found inside the motor vehicle she immediately identified him to the police as being the person who had raped her.

[11] The appellant for his part denies any involvement at all in the alleged events and suggests that TC is mistaken as to the identity of her assailant.  He admits that he is the owner of the motor vehicle bearing registration letters and number BBT100EC and that he operates the vehicle as a jikileza taxi between Motherwell and Kwazakhele.  He states however that his duties stop at 20h00 in the evening whereas the complainant alleged that she had boarded the jikileza taxi sometime after 21h00.  He acknowledges that he is the only driver of the vehicle and that no other person drives his taxi, however, he states that he was at home at the time of the alleged rape.

[12] The issue for adjudication in this matter is the identification of the rapist.  On behalf of the appellant, Mr Solani points out, correctly, that TC is a single witness in respect of the identification of her assailant and that the court is required to show caution in the consideration of her evidence. 

[13] He has referred us to S v Mthethwa 1972 (3) SA 766 (AD) where Holmes JA stated:

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observations must also be tested. This depends on various factors, such as lighting, visibility and eyesight: the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; ….”

[14] Mr Solani argues that it appears from the perusal of the record that the court only relied on the evidence of TC that the appellant was the one who raped her.  The above factors, he argues, were never tested.

[15] I do not agree.  TC remained in the taxi at the garage whilst her attacker entered the shop. She did so with the specific purpose of observing the face of her attacker as he emerged.  The evidence establishes that there was electric lightning on the outside walls of the shop at the garage area and the shop was lit up.  Visibility was accordingly clearly established.  She was approximately 2,5 metres away from the appellant when he emerged from the shop and her opportunity for observation, from a situation perspective, was excellent.  It is true that her opportunity for observation, from the time perspective, was limited to a few seconds and she had no prior knowledge of the appearance of the appellant, however, it was not a rapidly moving scene and she testifies that she clearly observed his face, his dark complexion and spots on his face and a peak which he was wearing.  On the appellant’s own evidence he does exhibit pimples resembling light spots on his forehead.  In addition to these features of identification TC noted the registration number of the vehicle in which she had been raped.  It accords with the registration number of the appellant’s vehicle.  The appellant, on his own evidence, operates his jikileza on the route between Motherwell and Kwazakhele.  He testified that nobody else drives in his vehicle.  TC provided the cellphone number of her sister to her assailant.  The following morning he called her on this number.  When she gave him directions to her home the appellant arrived.  These features, to my mind, provide considerable corroboration for the correctness of the identification by TC.

[16] Mr Solani points out, again correctly, that the onus rests upon the State to prove that the appellant’s alleged alibi is false. I consider that the evidence of the identification of the appellant is so overwhelming that the magistrate correctly held that his alibi could not reasonably possibly be true. 

[17] During argument Mr Solani raised a new argument which had not been raised in the heads of argument nor in the Court a quo. He argues that even if TC’s evidence is accepted the State had not proved that the appellant had the mens rea to rape TC.  He sought to rely on the authority of an unreported judgment in this Court in the matter of Makhaya Ntini v The State (C.A. & R. 309/99).  In the case of Ntini, Jansen J embarked upon a careful examination of the complainant’s evidence and concluded that “the complainant’s own evidence, even if accepted, puts in doubt both the existence of lack of consent and the question of mens rea”.

[18] In Ntini’s case Jansen J referred with approval to R v K 1958 (3) SA 420 (AD) at 421F-H where Schreiner JA stated:

“In the ordinary kind of case the absence of consent is proved by the complainant’s evidence that she did not consent, supported by proof that her will was overborne by force or by such a threat of force as produced submission but not consent.  In such cases, the complainant is in possession of her faculties and even when she submits she normally leaves the accused in no doubt that she is unwilling.”

[19] In this case, to my mind, the evidence of TC clearly establishes both a lack of consent and the mens rea to rape.  TC’s evidence establishes that the appellant deviated from the route which he was to travel.  He advised her that he needed to do so to fetch passengers there.  He drove to a secluded spot where he confessed that he had driven there in order to rape her.  He told her to undress and threatened to kill her.  In these circumstances she complied in fear for her life.  I do not think that this evidence permits of a finding that she was consenting to intercourse nor that the appellant may have thought that she was willing.

[20] Mr Solani relies in his argument to the alleged events after the rape had occurred to suggest that she created with the appellant the impression that she had an affinity to him.  In this regard he has referred us to her evidence that she requested a meal and that the appellant then went to a shop to buy her food.  She testified too that after the event he wanted to teach her to drive and she co-operated.  Finally Mr Solani points out that the appellant did not drop her at the roadside but took her to her intended destination.

[21] This entire argument is founded on the evidence of the complainant.  Her evidence, as I have recorded earlier, leaves no doubt as to the events which led up to the rape.  The events relied upon in this argument all occurred after the rape had been completed.  She states that she stated that she was hungry so that she could persuade him to take her away from the secluded place.  She did not flee when he entered the shop as she wanted to have a clear look at his face.  This she could do as she says that at that time she had managed to put him at ease.  I do not consider that this evidence detracts from her evidence of other events which led up to the rape.

[22] In the result, the appeal against the conviction cannot succeed.

[23] In respect of the sentence imposed, the appellant was legally represented at the trial and his attention was drawn to the provisions of section 51 of the Criminal Law Amendment Act, 105 of 1997 in the charge sheet.  Section 51 enjoins the court to impose a recommended minimum sentence of 10 years imprisonment unless substantial and compelling circumstances are found to exist which would justify the imposition of a lesser sentence.  The prescribed discretionary minimum sentence was imposed because the Legislature regards the offence of rape as a very serious offence.  It is serious not only because the Legislature regards it as such but it constitutes a flagrant disregard for the individual physical integrity of the victim.

[24] The appellant’s personal circumstances were recorded from the Bar and are not disputed.  The appellant is 38 years of age and was unemployed at the time of the trial.  The offence was committed some seven years prior to trial and subsequent to the commission of the offence the appellant has lost his one leg due to illness.  He accordingly receives a disability grant in the amount of R1 300 per month which he uses for himself and his family.  He is unmarried but has a 7 year old son and a 3 year old daughter who stay with their mother.

[25] The appellant has three previous convictions for assault with intent to do grievous bodily harm and one previous conviction for committing an indecent act with a girl under the age of 16 or a boy under the age of 19.  The convictions for assault occurred in 1985, 1990 and 2000 respectively and the sexual offence occurred in 1992.  Due to the lapse of time between the commission of these offences and the rape I do not consider that any significant weight should be attached to these. 

[26] Mr Solani argues on behalf of the appellant that the magistrate erred in that he failed to properly consider the personal circumstances of the appellant and so doing over-emphasised the seriousness of the offences and the interests of society.  I do not agree.  The offence, as I have recorded, is a very serious offence.  The magistrate was correct to have regard thereto.  In respect of the alleged failure to properly consider the personal circumstances of the appellant the magistrate consciously had regard to them and we have not been referred to any specific misdirection on his part.

[27] In the result, the conviction and sentence are confirmed.

J W EKSTEEN

JUDGE OF THE HIGH COURT

MAKAULA J:

I agree.

M MAKAULA

JUDGE OF THE HIGH COURT

Appearances:

For Appellant: Adv Solani instructed by the Justice Centre, Grahamstown

For Respondent: Adv Mtsila instructed by the National Director of Public Prosecutions, Grahamstown

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