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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

 

 

 Case no:  A173/2020

In the matter between:

                         

BONGANI ELLIOT MNGUNI                                                                                      Appellant

 

and

 

THE STATE                                                                                                                    Respondent

 

CORAM:                    DAFFUE J et REINDERS J

 

HEARD ON:             22 NOVEMBER 2021

 

DELIVERED ON:     29 NOVEMBER 2021

 

JUDGMENT BY:      DAFFUE J

 

This judgment was handed down electronically by circulation to the parties’ representatives by email, and release to SAFLII.  The date and time for hand-down is deemed to be 14:00 on 29 November 2021.

 

I                INTRODUCTION

 

[1]            On 27 January 2014 the appellant was convicted in the Regional Court held at Heilbron on two counts, to wit rape and murder.  He was sentenced the same day to life imprisonment in respect of both counts.  In two months’ time a period of 8 years would have elapsed. 

 

[2]            The appellant has an automatic right of appeal in accordance with the first proviso of s 309(1)(a) of the Criminal Procedure Act (the CPA).[1]  This does not mean that he could have filed a notice of appeal whenever he preferred to do it.  He still had to do it within the time limits prescribed by the Act. 

 

[3]            I could not find a notice of appeal in the appeal record.  The so-called notice of appeal which is unsigned, but apparently prepared in September 2019, five and a half years after conviction and the imposition of sentence, is actually an application for bail pending finalisation of the appeal.  In this document the appellant sets out the grounds on which reliance is placed as to why the appeal against convictions and sentences should be upheld.  Herein later I deal with a so-called “Appeal application” which is attached to the appellant’s application for condonation,

 

II              THE LATE FILING OF THE NOTICE OF APPEAL

 

[4]            When the appeal was allocated to me and after briefly perusing the appeal record, I immediately and with the consent of my colleague requested my secretary to communicate with the legal representatives of the appellant and the DPP.  My main concern was the incomplete record for which I needed further explanation over and above the information contained in the explanatory affidavit of Ms Petunia Esterhuizen, the Admin Clerk in the employ of the Department of Justice stationed at the Heilbron Magistrate’s court.  The appellant was also directed to serve and file an application for condonation on/or before 12 November 2021 in order to explain fully and comprehensibly what steps were taken from date of sentence until the eventual filing of a notice of appeal.  

 

III             THE INCOMPLETE RECORD

 

[5]            On receipt of the appeal file it also became evident that the record of the proceedings in the trial court was incomplete. The evidence of the appellant was not transcribed and the same applied to the cross-examination of the one State witness, Sergeant Mokoena.  A transcription of this witness’ cross-examination became available in the circumstances explained infra.  None of the exhibits handed in during the trial form part of the record.  As mentioned, Ms Petunia Esterhuizen, deposed to an affidavit explaining the problems experienced in obtaining a complete record.  I do not intend to repeat her version, save to mention that she made enquiries with the trial magistrate who had since retired, the defence attorney, as well as the State prosecutor in an attempt to obtain notes from them to reconstruct the record.  This was a fruitless exercise.  Upon considering the incomplete record and the version of Ms Esterhuizen, the legal representatives for the parties were requested to assist yet again in obtaining a complete record.

 

[6]            A transcript of the appellant’s evidence could not be obtained notwithstanding all reasonable efforts.  Therefore, this court is not in a position to evaluate the appellant’s testimony presented to the trial court, but we are entitled to have regard to the plea explanation, the statements put to the various State witnesses, the written heads of argument (recently obtained as will be explained infra) and oral submissions of his attorney at the end of the trial, together with the trial court’s reasons for its judgment.  As mentioned, the cross-examination of Sergeant Mokoena has now been transcribed.

 

[7]            Just before the appeal hearing the legal representatives approached us in chambers.  Mr Strauss, appearing for the Office of the DPP, presented us with the following documents retrieved from the SAPS in response to the queries raised by me earlier:

 

a.         The charge sheet;

b.         The affidavit of Dr DF Humphris in terms of s 212;

c.          The post mortem report;

d.         A photo album containing 43 photos;

e.         Documents relating to the obtaining of exhibits and blood samples, the packing and sealing thereof, the dispatching thereof to the Forensic Science Laboratory and the DNA analysis.

[8]       Mrs Abrahams, who appeared for Legal Aid SA on behalf of the appellant, sought an opportunity to study and consider the documentation and it was agreed that the appeal could stand down to the end of our roll.

 

IV             APPLICATION FOR CONDONATION

 

[9]            As mentioned, the appellant was hopelessly out of time with the filing of his defective notice of appeal.    Consequently, the legal representative of the appellant was directed to arrange for the filing of an application for condonation.   I am indebted to Mrs Abrahams for the effort that she has put in to assist the appellant.  Her speedy and efficient response is appreciated.

 

[10]          It is apparent from the unopposed application for condonation that the appellant always had the intention to appeal his convictions and the imposed sentences.  Not only did he alert the trial court accordingly immediately after imposition of the sentences, but his first “Application for Appeal” was drafted and sent to the Regional Court in September 2014.  He referred to the Frankfort court in his affidavit, but this is clearly an error if the remainder of his affidavit and annexures thereto are considered.  He received a letter of acknowledgement from the clerk of the court, but he could not trace the letter now.  In 2015 he again drafted another “Appeal application.”   This document dated 24 August 2015 is annexed to his affidavit and marked BM1.  The letter dated 26 February 2016 of the Admin Clerk, Ms Esterhuizen, mentioned supra, is annexed to the affidavit as annexure BM2.  The appellant was so dissatisfied with the lack of progress, rightly or wrongly, that he even filed a complaint with the office of the Public Protector.  The responses of the Pretoria and Bloemfontein offices of the Public Protector are annexed as annexures BM5 and BM6 respectively.

 

[11]          Mr De Beer of the firm Human Le Roux Meyerowitz in Bethlehem, the attorney that took over from Mr Van Rensburg mid-stream and acted for the appellant at the latter stages of the trial, filed an affidavit confirming that he could not assist with a reconstruction of the record.  When requested for his assistance at the instance of this court, he could not even remember conducting the trial, but upon his investigations he established through his electronic Legal Suite System that he had in fact appeared in the case.  His records have been destroyed in 2019 as attorneys are only obliged to keep records for a period of five years.  The only traceable documents, to wit his short heads of argument, were attached to his affidavit.  I shall refer thereto during the evaluation of the evidence.

 

[12]         I am satisfied that the appellant presented a reasonable explanation for the delay and that his application is bona fide. The first requirement for a successful application for condonation has been met.  I am prepared, for the sake of granting condonation, to accept that the appeal is not patently unfounded.  Therefore, the second requirement has been met as well.  Condonation is granted to the appellant for failing to institute the appeal proceedings timeously. 

 

[13]         This is not the end of the matter.  We must also consider whether the appellant has made out a case to be acquitted, alternatively for the sentences to be reduced.

 

V              GROUNDS OF APPEAL

 

[14]          It is in essence the appellant’s case that the appeal record is incomplete and in the absence of a complete and adequate record, the right of the appellant to have the appeal properly considered by the court of appeal is adversely affected.

 

[15]          Furthermore, it is the appellant’s case that the State failed to prove its case beyond reasonable doubt and it is also submitted that the trial court erred in its finding that the appellant’s version was not reasonably possibly true.

 

[16]          In respect of sentence it is the appellant’s case that the trial court over-emphasised the seriousness of the offences and interests of society to the expense of the appellant’s personal circumstances.  Also, the possibility of the appellant’s rehabilitation was not considered adequately, or at all.

 

[17]          The appellant’s “Appeal application” dated 24 August 2015 referred to supra contains extra grounds of appeal.  I shall briefly summarise these.  It is alleged in respect of the convictions that the trial court erred in failing to call the appellant and his witnesses.  There is no merit in this contention.  The appellant testified, but in any event, there is no duty on a trial court in this regard.  It was also raised as a ground of appeal that the trial court erred in not considering the contradictions in the evidence of the State witnesses.  Several allegations were made in respect of the sentences imposed, more pertinently the fact that the prescribed minimum sentence in respect of the two offences was not life imprisonment.  It is not necessary to deal with this aspect any further in light of the unambiguous wording of the relevant schedule.[2] 

 

VI           AUTHORITIES REGARDING INCOMPLETE RECORDS

 

[18]         The Constitutional Court held as follows in S v Schoombee & Another[3] and I prefer to quote quite extensively:

 “[19]  It is long established in our criminal jurisprudence that an accused's right to a fair trial encompasses the right to appeal. An adequate record of trial court proceedings is a key component of this right.  When a record 'is inadequate for a proper consideration of an appeal, it will, as a rule, lead to the conviction and sentence being set aside.’

  [20]  If a trial record goes missing, the presiding court may seek to reconstruct the record. The reconstruction itself is 'part and parcel of the fair trial process'.  Courts have identified different procedures for a proper reconstruction, but have all stressed the importance of engaging both the accused and the state in the process. Practical methodology has differed. Some courts have required the presiding judicial officer to invite the parties to reconstruct a record in open court.  Others have required the clerk of the court to reconstruct a record based on affidavits from parties and witnesses present at trial and then obtain a confirmatory affidavit from the accused. This would reflect the accused's position on the reconstructed record. In addition, a report from the presiding judicial officer is often required.

 [21]   The obligation to conduct a reconstruction does not fall entirely on the court. The convicted accused shares the duty. When a trial record is inadequate, 'both the State and the appellant have a duty to try and reconstruct the record'.  While the trial court is required to furnish a copy of the record, the appellant or his/her legal representative 'carries the final responsibility to ensure that the appeal record is in order'.  At the same time, a reviewing court is obliged to ensure that an accused is guaranteed the right to a fair trial, including an adequate record on appeal, particularly where an irregularity is apparent. 

[38]    …The loss of trial court records is a widespread problem.  It raises serious concerns about endemic violations of the right to appeal.  Reconstruction should not be the norm in providing appellants with their trial records.  But when reconstruction is necessary, the obligation lies not only on the appellant, but indeed primarily on the court to ensure that this process complies with the right to a fair trial.  It is an obligation that must be undertaken scrupulously and meticulously in the interests of criminal accused as well as their victims.” (emphasis added) 

 

[19]         This warning by the full Constitutional Court –  a unanimous decision by 10 Judges – cannot be over-emphasised and my observations herein are in line therewith.  In that case the trial judge kept detailed notes of the proceedings, but when the record had to be reconstructed he did not ask any inputs from the legal representatives of the parties.  This left the door open for the appellant’s legal representative to change tact when the Constitutional Court was approached by relying on an insufficiently transparent record insofar as the parties did not jointly undertake the reconstruction.  The criticism was considered as is clear from the quotation, but the court found against the appellant.  Significantly, no directives were forthcoming from the Constitutional Court as to how the problem of improper record-keeping should be addressed.

 

[20]          In S v Phakane[4] the Constitutional Court stated the following:

                 “The failure of the state to furnish an adequate record of the trial proceedings or a record that reflects Ms Manamela’s full evidence before the trial court, in circumstances in which the missing evidence cannot be reconstructed, has the effect of rendering the applicant’s right to a fair appeal nugatory or illusory.  Even before the advent of our constitutional democracy, the law was that, in such a case, the conviction and sentence or the entire trial proceedings had to be set aside.”

              

                 Ms Manamela’s evidence was decisive in the conviction of Mr Phakane by the trial court.  The trial court based its finding that Mr Phakane was guilty of murder largely on certain parts of Ms Manamela’s evidence.  Zondo J (as he then was) dealt with the issue as follows and I deem it apposite to quote extensively to show the distinction between the facts in casu and those before the Constitutional Court:[5] 

“[33]   It is remarkable that the trial court said nothing in its judgment about the discrepancy between Ms Manamela's evidence in court and the contents of her statement of 2 September 2006 to the police. In its judgment, the trial court also did not say which parts of Ms Manamela's evidence in court the applicant admitted and which ones he disputed, nor did it say which parts of Ms Manamela's statement of 2 September 2006 the applicant admitted and which ones he denied. The judgment of the trial court does not even say whether the defence or the court itself asked Ms Manamela why this critical part of her evidence was not in her statement and how she explained this conflict, if she did have an explanation. The trial court also did not take into account the fact that, when Ms Manamela made her statement as at 2 September 2006, she was still in a romantic relationship with the applicant, but, when she testified in court, the two had broken up.

[34]    In one of the two instances Ms Manamela may have been dishonest. If she was dishonest when she made the statement on 2 September 2006, she may have acted dishonestly in order to protect her boyfriend. If she was dishonest when she gave evidence in court, she may have been vindictive against the applicant because they had broken up. In either case it is necessary to know whether Ms Manamela was confronted with this conflict between her evidence in court and the contents of her statement and to see what explanation, if any, she gave for it and whether her explanation was an acceptable one.

[35]    In the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, an appeal court could not know whether Ms Manamela ever explained the conflict and how she explained it. Without knowing whether Ms Manamela ever explained this conflict between her evidence in court and her statement to the police, an appeal court would never be in a position to determine the appeal fairly. This is so because, without the missing evidence, the appeal court would not know whether Ms Manamela's evidence, that the applicant told her that he killed Ms Boshomane, that he said to her he intended to throw the corpse into a pit toilet, and that she suggested that he throw it where Ms Boshomane's relatives could find the corpse, should be believed.

[36]    For its conclusion that the accused was guilty of murder, the trial court did not rely upon the statement by Ms Manamela in court that at about midnight on the day on which the applicant had visited her, the applicant returned to her and this time he was carrying a schoolbag which had a 'white curtain inside' and the 'curtain' had bloodstains. This evidence is also not in Ms Manamela's statement of 2 September 2006 and, in context, it implicated the applicant in Ms Boshomane's murder. Again, in its judgment the trial court did not say whether Ms Manamela was confronted with the conflict in this respect between her evidence in court and her statement of 2 September 2006. That was a glaring omission on the part of the trial court.

[37]    If the transcript of the trial proceedings was available, an appeal court would have been able to establish whether Ms Manamela was confronted with the conflict and whether she proffered an explanation for it and whether the explanation was acceptable. I do not think that an appeal court would be able to do justice to the applicant's appeal without knowing whether Ms Manamela was confronted with this conflict and what explanation, if any, she gave for it. An appeal court would not be able to properly evaluate the trial court's decision to prefer Ms Manamela's evidence to that of the applicant without knowing this. It is difficult to understand how the trial court made the finding to prefer Ms Manamela's evidence to that of the applicant without dealing with this obvious and material conflict between her evidence and her statement. It is equally difficult to understand how the full court could conclude, as it did, that the applicant's appeal against his conviction could be properly and fairly determined in the absence of an adequate transcript of the trial proceedings or a reconstructed record covering Ms Manamela's evidence. The full court said that the trial court had not relied solely on Ms Manamela's evidence to justify its conviction of the applicant of the murder, but on the totality of the evidence before the court. However, what the full court failed to appreciate is that Ms Manamela's evidence was the decisive evidence which led to the trial court convicting the applicant. There is no doubt that, without Ms Manamela's evidence in court, the trial court could not have convicted the applicant.”  (emphasis added)

 

[21]          Again, as in Schoombee, no directives were issued in an attempt to prevent the numerous problems experienced with missing or incomplete records.  Froneman J agreed with the majority that the appeal ought to succeed, but suggested in his minority judgment “that the matter be referred to the High Court for an investigation into whether a retrial should proceed.”[6]  A retrial in that case would probably be a waste of time insofar as the murder has been committed in 2006, 12 years earlier.  The same applies in casu in that the offences were committed more than 9 years ago.  A retrial is not an option, bearing in mind the manner in which the appeal is to be adjudicated.

 

[22]          In S v Van Staden[7]  the full court dealt with a similar situation as in casu and held that it is “a matter of simple logic that, had the accused taken timeous steps to appeal, a reconstruction of the record would in all I likelihood have been possible.”  The court also dealt with s 7 of the Magistrate’s Court Act[8] pertaining to the preservation and custody of records and when they may be destroyed.  I respectfully agree with the court that abuse of the process by accused persons may cause a travesty of justice and that it is in the public interest to ensure that litigation is brought to finality as soon as possible.  It is perhaps time for courts to approach applications for condonation more strictly instead of granting such applications as a matter of course.

 

[23]          The Constitutional Court referred in S v Phakane[9] with approval to S v Joubert[10] where the Appeal Court, as it was known then, stated:

“If this failure (the incomplete record) cannot be rectified, as in this case, it seems to me that the conviction cannot stand, because it cannot be said that there has not been a failure to justice.”

In S v Joubert there was an attempt to reconstruct the record of the trial court in terms of an order of court, but the attempt failed.  In those circumstances the Appeal Court (as it was known) upheld the appeal and set aside the convictions and sentences.  An important issue in that appeal was whether or not the presiding magistrate ought to have directed an enquiry in terms of either s 77(1) or s 78(2) of the CPA after the plea of guilty and before sentence and if the alleged failure to do so amounted to an irregularity as the appellant’s counsel submitted.  Kumleben JA, the scribe of a unanimous court, relied on the following dictum:[11] 

“If during a trial anything happens which results in prejudice to an accused of such a nature that there has been a failure of justice, the conviction cannot stand.  It seems to me that if something happens, affecting the appeal, as happened in this case, which makes a just hearing impossible, through no fault on the part of the appellant, then likewise the appellant is prejudiced, and there may be a failure of justice.  If the failure cannot be rectified, as in this case, it seems to me that the conviction cannot stand, because it cannot be said that there has not been a failure of justice.”  (emphasis added)

 

 

 

 

[24]          In S v Chabedi[12] the Supreme Court of Appeal held as follows:

“[5]     On appeal, the record of the proceedings in the trial court is of cardinal importance.  After all, that record forms the whole basis of the rehearing by the Court of appeal.  If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside.  However, the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recordal of everything that was said at the trial.…

 [6]     The question whether defects in a record are so serious that a proper consideration of the appeal is not possible, cannot be answered in the abstract. It depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal.” (emphasis added)

 

[25]          Brand JA continued as follows in S v Chabedi, a case where significant parts of the trial court’s judgment were incomprehensible:[13]

 

“[13]   The contention on behalf of appellant that the shortcomings in the record rendered a proper consideration of the appeal impossible, was based on the submission that we are dependent on the magistrate's judgment on conviction to assess his evaluation of the evidence. I do not agree with this submission. As indicated the matter can, in my view, be decided on the inherent probabilities, which can in turn be determined on the record as it stands. If the magistrate based any credibility findings on the demeanour of the respective witnesses, those findings could, in the circumstances, only have been adverse to the appellant. Logic therefore dictates that the appellant could suffer no prejudice through this Court's lack of knowledge whether demeanour findings were indeed made by the trial court.” (emphasis added)

 

VII            JUDGMENT OF THE TRIAL COURT

 

[26]          The trial court summarised the evidence and dealt with the appellant’s version as follows:[14]

                 “As ons nou kyk na beskuldigde se verweer dat hy en die klaagster het vrywilliglik gemeenskap gehou, drie seuns daag op, hulle jaag hom, een bly agter, hy hoor hoe skree sy; hy kom terug en hy is besig om haar te help toe hierdie ander persone nou opdaag wat hom nou jaag en met klippe gooi en het hy by Mokoena se huis, was besig om ‘n telefoon te leen om die polisie te bel, sien ons duidelik dat hierdie getuienis van hom nie aanvaar kan word nie.  Dit is in stryd met alle ander getuies in hierdie saak. 

                 

                  Hulle sien dat gemeenskap hou.  Hy sit nie met haar op sy skoot nie.  Hulle sien dat hy weghardloop, dat hy gaan slaap, hy gaan bel nie die polisie nie.  Hy maak geen rapport aan hulle nie.  Hulle sien dat hy vol bloed is terwyl hy met haar gemeenskap hou en hieruit vra die staat dan dat die hof moet ‘n afleiding maak dat hy haar met geweld onderdruk het deur haar met ‘n klip te slaan op die kop waardeur sy ‘n skedelbreuk opgedoen het.  Die klip waaraan die bloed is, is bewysstuk C1 en 2, is ‘n baie groot klip, en wat ‘n persoon so met geweld onderdruk definitief nie toestemming het om met haar gemeenskap te hou nie. 

 

                  Derhalwe vra die staat dan dat die hof die beskuldigde se weergawe verwerp as inherent onwaarskynlik.  Dit kan nie gebeur het soos wat hy vir die hof voorgee dit gebeur het nie. 

 

                 Die hof is tevrede dat die afleiding gemaak kan word dat die klaagster nie toestemming gegee het tot gemeenskap nie in die lig van waar die voorval plaasgevind het en die omstandighede waarin hulle haar gevind het en die beserings wat sy opgedoen het en dat die hof kan aanvaar uit die grootte van die klip, waar hy die besering aan haar toegedien het, naamlik haar kop wat ‘n baie sensitiewe plek is, hy haar so hard geslaan het dat haar kop gebars het, dat hy die opset gehad het om haar dood te maak of nie omgegee het óf sy doodgaan aldan nie.”

                

[27]          It is apparent from a loose translation of the trial court’s evaluation in English that it dealt with the evidence of the eyewitnesses who testified about sexual intercourse between a man and a woman, that the male person ran away to the house of Mr Mokoena whilst being chased and that he was later found, fast asleep, by the police in Mr Mokoena’s house.  The appellant’s clothes were blood-stained. Exhibits C1 and C2 depicted a big stone with blood thereon found next to the body of the deceased.  The trial court concluded that the deceased did not consent to sexual intercourse and that she was assaulted by using the stone that fractured her skull.

 

[28]          It is apparent from the judgment that no direct evidence linked the appellant with the rape and murder of the deceased and the trial court was fully aware hereof.  It considered the evidence of the State witnesses and the contrary version of the appellant and held that “die afleiding gemaak kan word  dat die klaagster nie toestemming gegee het tot gemeenskap nie … “ en “….dat hy die opset gehad het om haar dood te maak of nie omgegee het of sy doodgaan aldan nie.”[15] 

 

 

VIII           ADJUDICATION OF THE APPEAL

 

[29]         I deal now with the manner in which courts of appeal should adjudicate appeals on the basis that the incomplete record may be relied upon as the record is adequate for a proper consideration of the appeal.  A court of appeal will not likely intervene with the credibility findings of the trial court.  In the absence of an irregularity or misdirection the court of appeal is bound by such credibility findings, unless it is convinced that such findings are clearly incorrect.[16]  In casu the trial court clearly adjudicated the case on the probabilities in order to exclude any reasonable doubt about the appellant’s guilt and did not make a pertinent finding in respect of credibility.

 

[30]          When an appeal is lodged against the trial court’s findings of fact, the court of appeal should take into account that the trial court was in a more favourable position than itself to form a judgment because it was able to observe the witnesses during their questioning and was absorbed in the atmosphere of the trial.[17]  Therefore, the court of appeal will normally accept factual findings made by the trial court, unless there is some indication that a mistake was made.  More recently the Supreme Court of Appeal summarised the approach as follows:[18]

“Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. 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.”

 

[31]          In concluding the topic and to reiterate: if the court of appeal is merely left in doubt as to the correctness of the factual conclusions arrived at by the trial court, it will uphold them.  The Supreme Court of Appeal restated the principle as follows in Naidoo:[19]

                 “In the final analysis, a Court of appeal does not overturn a trial Court’s findings of fact unless they are shown to be vitiated by material misdirection or are shown by the record to be wrong.”

 

 [32]         No judgment is perfect and the fact that certain issues were not referred to does not necessarily mean that these were overlooked.  It is accepted that factual errors do appear from time to time, that reasons provided by a trial court are unsatisfactory, or that certain facts or improbabilities are overlooked.  As shown supra, the court of appeal should be hesitant to search for reasons that are in conflict with the trial court’s conclusion.  However, in order to prevent a convicted person’s right of appeal to be illusionary, the court of appeal has a duty to investigate the trial court’s factual findings in order to ascertain their correctness and if a mistake has been made to the extent that the conviction cannot be upheld, it must interfere.[20]

 

IX             SUMMARY OF THE AVAILABLE EVIDENCE

 

[33]        In summarising and adjudicating the evidence I take due cognisance of the fact that an appeal is a rehearing of the case by the court of appeal.  Therefore, the record of the proceedings in the trial court, which forms the basis of a rehearing, is of cardinal importance.  I shall deal with this aspect again infra.

 

[34]         It is apparent from the appellant’s testimony as summarised by the trial court that he stuck to his version as provided in the plea explanation and in statements to the various State witnesses.

 

[35]          I quote verbatim from the appellant’s plea explanation as it appears on the record in Afrikaans:[21]

“MNR VAN RENSBURG:  Soos die hof behaag agbare.  Wat klagte 1 aanbetref is die beskuldigde se pleitverduideliking as volg.  Terwyl die beskuldigde en die oorledene gemeenskap gehad het te Namahadi het drie persone hulle genader en het twee van die persone wat die beskuldigde wou aanrand, het die beskuldigde weggehardloop.  Die beskuldigde het gehoor hoe skreeu die oorledene terwyl hy weggehardloop het.  Die beskuldigde het later teruggekeer nadat hy die twee persone afgeskud het wat hom gejaag het en hy het die oorledene aangetref wat beseer en vol bloed was.  Hy het haar probeer optel, maar kon nie daarin slaag nie.  In daardie stadium het sy nog gelewe en het hy na sy vriend toe gegaan om die polisie te skakel.  Agbare wat klagte 3 aanbetref is dit ‘n algehele ontkenning.  My instruksie is dat hy op die betrokke tyd soos beweer was hy by sy huis gewees waar hy woon, soos die hof behaag.  Agbare daar sal wat klagte 2 aanbetref in terme van artikel 220 erken word, aangeteken word dat hy wel gemeenskap met die klaagster gehad het, wat dan nou ook dan die oorledene is, met haar toestemming.  Die identiteit van die oorledene op klagte 1 sal dan ook erken word.  Soos die hof behaag.

HOF:  Beskuldigde, bevestig u dit so?

BESKULDIGDE:  Ek bevestig dit so edelagbare.

HOF:  Dankie.  Beskuldigde kan maar sit.  U kan voortgaan.”

 

[36]          The appellant confirmed the plea explanation tendered on his behalf by his attorney, Mr Van Rensburg.  The following is a loose translation.  The appellant placed on record that he and the deceased in count 1 had sexual intercourse with her consent.  The deceased’s identity was admitted.  Whilst they were having sexual intercourse, three people approached them.  When two of these persons threatened to assault the appellant, he ran away.  As he was running away, followed by the two attackers, he heard the deceased’s screams.  He managed to escape. Later on he returned to the scene where he left the deceased and found her injured and blood-stained.  He tried to pick her up, but could not achieve this.  At that stage she was still alive.  He then went to his friend in order to phone the police.   

 

[37]          The appellant’s friend, Mr Josias Kgang Mokoena, a State witness, testified that he departed from the appellant and the deceased whilst they were busy kissing in the open veld and went home.  Whilst asleep for about one and a half hours, the appellant arrived at his house, a one-bedroom shack.  The light in the shack was not turned on at that stage.  The appellant needed a place to sleep whereupon the witness allowed him to sleep with him in his bed.    Shortly thereafter police officers arrived, finding the appellant still fast asleep.  The witness noticed then for the first time that the appellant’s clothes were blood-stained.  The appellant had a different version. According to his attorney he never got into the bed, but requested his friend’s cellphone in order to phone the police.  Before the cellphone could be handed to him, the police arrived.  It was put to the witness that the appellant had explained to him that morning that whilst he and the deceased were having sexual intercourse, three people approached who intended to attack them.  The witness denied this and stated that this version was communicated to him for the first time during their detention.  It appears from the charge sheet, belatedly obtained as mentioned supra, that the witness was charged with the appellant in respect of the offences, but the case against him was withdrawn.  It was also put to the witness that when the police arrived, the appellant was not in the bed, but standing upright.  The witness denied this.  The witness confirmed that he, the appellant and the deceased had consumed alcohol at a tavern earlier that night and that they were intoxicated to an extent.

 

[38]           A certain Mr Kiewit Majola was called to testify about his version of the events.  Early that morning he came across a man and a woman having sexual intercourse at the Kgatuloa Park.  He noticed blood on the out-stretched hand of the woman who was lying underneath the man.  He accepted that something was amiss and tried to phone the police, but his cellphone’s battery was flat whereupon he decided to run to the police station in order to report the matter.  He went back to the scene and found an injured woman lying on the ground.  One of the police officers was with him at that stage.  In cross-examination he could not give any detail in respect of the clothing of the male person and no further questions were put to him.

 

[39]          Mr Kantoor Simon Mahamotsa was the next State witness.  He also noticed two people having sexual intercourse on the ground near the Kgatuloa Park.  When he approached them he saw blood.  He called a person who was exercising on the soccer field nearby.  This person turned out to be Mr Alberto Buti Tsotetsi who testified next.  As the witness approached the two people on the ground, the male person jumped up and ran away. He and Mr Tsotetsi chased this person and followed him until he entered the house of Mr Mokoena, a previous State witness.  The police were informed and when they escorted the appellant out of Mr Mokoena’s house, the witness saw that his clothing was blood-stained.  The witness did not know the appellant before the incident and saw him that day for the first time.  He went back to the scene at a later stage, but at that stage the deceased had already passed on.  The appellant’s attorney put it to the witness that when he arrived at the scene, the appellant and the deceased were not having sexual intercourse, but the appellant was merely trying to pick up the deceased.  The following significant remark was made by the witness in response to the aforesaid statement:[22] 

                 “GETUIE:  Hoe help hy haar as hy sy broek uitgetrek het en hy is bo-op haar? 

                 MNR DE BEER:  My instruksie is dat sy broek nie uitgetrek was nie.

                 GETUIE:  Hy het.”

It was further put to the witness that the appellant explained that “daar drie seuns was wat die dame probeer neem het” (three boys that tried to take the lady).  The witness denied that he had a conversation with the appellant as he started to run away when he approached them.

 

[40]          Mr Alberto Buti Tsotetsi was the State’s final witness.  He was the person doing exercises on the soccer field.  His version differed from the previous witness in so far as he referred to a conversation between the previous witness and the appellant.  According to him and as he was busy exercising, he noticed that these two persons were communicating with each other whilst the appellant was busy fastening his belt.  At that stage the previous witness called him and reported that “hierdie persoon het iemand verkrag” (this person raped somebody). When the previous witness started to chase the appellant who was running away, he followed them.  The appellant went into the house of Mr Mokoena.  He left the previous witness standing outside the house and went back to the soccer field.  His witness statement was put to him, but he denied the version contained therein that he stayed at the particular house where the appellant entered until the police arrived.  The appellant’s attorney also put it to the witness that the appellant was not having sexual intercourse with the deceased as the witness testified, but that he tried to pick her up.  The witness denied this.

 

[41]         One of the police officers who attended the scene, Sergeant M A Mokoena, received information about an alleged rape whilst on duty the particular morning.  In the Kgatuloa Park he found a female person with facial injuries, lying on her back.  Her clothing was pulled up towards her neck, revealing her breasts.  He noticed a pool of blood as well as blood-stained stones next to the person.  He identified the scene with reference to photos handed in as exhibit B.  He also found three Choice condoms on the scene, two having been used.  After a while a person who introduced himself as Alberto arrived.  This person gave an explanation to the witness whereupon they drove to the residence of Mr Mokoena.  The witness found the owner, Mr Mokoena there whereupon he entered the one-bedroom shack and discovered a sleeping appellant with blood stains on his hands, face and clothes.  He woke him.  No explanation was given by the appellant who was then taken to the police station where his blood-stained trousers were removed.  A packet containing seven Choice condoms was found in one of the appellant’s pockets.  Another condom was found on the appellant’s “privaat gedeelte” (private part).   In cross-examination the version about the condoms was confirmed to be correct.  In fact, the legal representative put it to the witness that the appellant agreed 100% with the witness’ version, save for one issue.  It was put to the witness that the appellant was not asleep when the witness arrived at Mr Mokoena’s home.  The was denied in the following words:  “Soos ek die hof verduidelik het, hy was vas aan die slaap.  Ek het hom wakker gemaak.”    It was also conceded during cross-examination that the appellant did not give any explanation to the witness, the reason being that he “te geskok was in daardie stadium, dat die oorledene wat sy meisie was so aangerand is.” 

 

X              EVALUATION OF THE EVIDENCE AND THE PARTIES’ SUBMISSIONS PERTAINING TO CONVICTION

 

[42]          I referred to the missing exhibits which were informally tendered to us by Mr Strauss before the appeal hearing.  Mrs Abrahams considered the documents and although she did not formally object to the handing in thereof, she submitted that, bearing in mind the appellant’s admissions, the common cause facts and the appellant’s defence, the documents could not assist the court any further in adjudicating the appeal, but merely served to confirm that the appellant was in contact with the deceased as he admitted.  Notwithstanding this, she insisted that the appellant would be prejudiced if the appeal was to be adjudicated on the incomplete record.  Having perused the documents, I fully agree with her and do not intend to rely on any of the exhibits in support of any finding herein.

[43]          Mr Strauss made the following submissions in his written heads of argument notwithstanding his observation that if the record was inadequate for a proper consideration of the appeal, it would lead to the convictions and sentences being set aside:

“1.3      The convictions and sentences are fully supported.”

 

He continued as follows after dealing with the merits with reference to the test for circumstantial evidence:

“4.2      The court correctly rejected the evidence of the Appellant as false as the evidence of the witnesses nullifies it.  There is also no basis for the witnesses to falsely implicating the Appellant.

 5.        It is respectfully submitted that the appeal against the convictions must be dismissed.”

 

[44]          When he was called upon to argue the appeal, Mr Strauss made a complete turnaround and submitted that he felt an uneasiness and could not support the trial court’s findings due to the incomplete record.  I was unable to grasp what he tried to convey in this regard, especially after I had put it to Mrs Abrahams during her oral argument that the trial court did not specifically make credibility findings and also did not criticise the manner in which the appellant responded to questions put to him, for example that he contradicted himself, or that he adapted his version, or that he made a poor impression in the witness box by for example evading questions or being argumentative.  That not being the case, this court was therefore not required to consider whether the trial court erred in its evaluation of the appellant’s evidence.  The factual findings relied upon appear from the record.

 

[45]          In S v Chabalala[23] Heher AJA (as he then was) dealt with probabilities as follows:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weigh so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt.”

 

[46]          Having considered the incomplete record and the authorities in this regard, it is in my view apposite to deal with the matter on appeal on the basis that the appellant testified in his case and stuck to the version presented by him in his plea explanation as well as statements put on his behalf to the various State witnesses.  It can be accepted for the sake of adjudicating the appeal that he did not contradict himself.  So many facts are common cause.  During his plea explanation the appellant admitted sexual intercourse at the scene where the deceased’s body was found.  This fact and the identity of the deceased were formally admitted in accordance with s 220 of the CPA.  The presence of condoms is admitted and he never denied that his clothes were blood-stained.[24] 

 

[47]         The appellant’s identity is not in dispute and all relevant admissions have been made.  The trial court recorded in its judgment that admissions were also made in respect of s 220 of the CPA in respect of the photo album, the so-called chain of events, i.e. that the deceased did not suffer any further injuries during removal of the body from the crime scene until the post-mortem examination, the correctness of the post-mortem report, as well as the correctness of the collection, sending and analysis of the DNA samples.[25]  It needs to be stated that the record does not reflect that these admissions, save in respect of the photo album, were made.  Mr De Beer received the relevant exhibits on 8 July 2013 and requested a postponement in order to consider making admissions.[26]  Unfortunately, all further proceedings until 27 January 2014 when Mr De Beer addressed the court after the close of the appellant’s case are not recorded.  Fact of the matter is that the appellant does not rely in any of his grounds of appeal on any irregularity pertaining to any of the exhibits handed in.  Mrs Abrahams correctly submitted there is no dispute about this.  This is also apparent from Mr De Beer’s written heads of argument and his oral submissions before judgment which I quote verbatim from the record:[27]

                 “Beskuldigde se verweer is dat die gemeenskap tussen hom en die klaagster in aanklagtes 1 en 2 vrywilliglik geskied het en dat hy en die dame aangeval is en dat hy die toneel verlaat het.  Hy sou later terugkeer en gevind het sy is beseer.  Hy het haar probeer help en dit is hoekom daar bloed op sy klere is.”

 

[48]          The only aspects in dispute are (1) the appellant’s alleged return to the scene after being chased by two unidentified persons and his attempt to pick up the seriously injured woman referred to herein as the deceased and (2) his evidence that he was awake and trying to obtain his friend, Mr Mokoena’s cellphone in order to report the assault to the police.  No irregularity in the proceedings before the trial court is relied upon by the appellant and therefore, the dicta relied upon by the Appeal court in S v Joubert supra do not come into play.  As mentioned,[28] we are not even remotely confronted with a factual scenario as considered by the Constitutional Court in S v Phakane.  I respectfully agree with the dicta of Brand JA in S v Chabedi quoted supra.[29]  The record is sufficiently adequate for a proper adjudication of the appeal.  The defect – the absence of a transcribed version of the appellant’s testimony – is remedied by numerous admissions, the version contained in the plea explanation, the statements put to State witnesses and the submissions of his attorney before judgment.  Logic dictates that the appellant could suffer no prejudice if the appeal is considered on the inherent probabilities and in the absence of any negative findings by the trial court vis-à-vis the appellant pertaining to his demeanour or credibility.

 

[49]         When he made his plea explanation the appellant probably knew that he was positively linked to the crime scene.  He admitted the DNA results and had to proffer an explanation.   Also, the same brand of contraceptives was found at the crime scene and in his pocket.  Furthermore, his blood-stained clothes were irreconcilable with sexual intercourse with consent.

 

[50]        The trial court did not refer in its analysis of the evidence to discrepancies in the versions of the State witnesses or the fact that the eyewitnesses to the sexual intercourse were on their estimations quite far from the two people that were having intercourse on the ground, making it not ideal to observe properly, also bearing in mind the time of the day.   I have considered these aspects carefully and I am satisfied that this court should not overturn the trial court’s findings.  The appellant failed to show that such findings were vitiated by material misdirection or that the record indicates the commission of mistakes.

 

[51]         The appellant’s averments tested credulity to the hilt.  He wanted the trial court to believe that (1) he tried to pick up his seriously injured lover when the State witnesses approached him whilst they witnessed sexual intercourse and (2) he was on the verge of reporting to the police an assault on his lover by making use of his friend’s cellphone, but when the police arrived at that moment, he was too shocked to report the incident and/or to provide any explanation.  His version is so far-fetched, inherently improbable and demonstrably false that no court acting responsibly can ever accept it as reasonably possibly true.  It was correctly rejected.

 

[52]          In the absence of direct evidence, the trial court concluded that an inference could be made of the appellant’s guilt.[30]  It did not expressly refer to the test for adjudicating circumstantial evidence as set out in the well-known dictum in R v Blom.[31]   Also, the trial court could have been more precise in applying the test.  In my view and although the trial court merely referred to “afleiding” (inference), I am satisfied that, if the totality of the evidence is considered, the inference sought to be drawn – that the appellant raped and murdered the deceased – is consistent with all the proven facts and such facts exclude every reasonable inference from them, save that the deceased was indeed raped and murdered by the appellant.

 

XI             IMPOSITION OF LIFE IMPRISONMENT

 

[53]         Mathopo AJ, writing for a unanimous Constitutional Court bench,[32] quoted the well-known dictum of the Supreme Court of Appeal in S v Chapman[33] and set the scene for his judgment in paragraph 1:

                 'Rape is a very serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in this country are entitled to the protection of these rights. They have a legitimate claim to walk peacefully on the streets, to enjoy their shopping and their entertainment, to go and come from work, and to enjoy the peace and tranquillity of their homes without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives.'

[1] The facts of this case demonstrate that for far too long rape has been used as a tool to relegate the women of this country to second-class citizens, over whom men can exercise their power and control, and, in so doing, strip them of their rights to equality, human dignity and bodily integrity. The high incidence of sexual violence suggests that male control over women and notions of sexual entitlement feature strongly in the social construction of masculinity in South Africa. Some men view sexual violence as a method of reasserting masculinity and controlling women.”

 

                The learned justice reiterated the rape pandemic in this country as follows:[34] 

[63] This scourge has reached alarming proportions in our country. Joint efforts by the courts, society and law-enforcement agencies are required to curb this pandemic. This court would be failing in its duty if it does not send out a clear and unequivocal pronouncement that the South African judiciary is committed to developing and implementing sound and robust legal principles that advance the fight against gender-based violence in order to safeguard the constitutional values of equality, human dignity and safety and security. One such way in which we can do this is to dispose of the misguided and misinformed view that rape is a crime purely about sex. Continuing on this misguided trajectory would implicate this court and courts around this country in the perpetuation of patriarchy and rape culture.

 

I wish to repeat what was said, although I appreciate that we are not concerned with the application of the doctrine of common purpose relating to rape as was the case in this judgment.

      

[54]          The force with which the deceased was attacked was recorded by the trial court.  Her skull was fractured.  Next to her body a pool of blood and a big blood-stained stone were found, indicating the application of tremendous force with a dangerous weapon.  She was fatally injured and died soon after the attack.[35]

 

[55]         The court took all relevant factors in consideration and correctly held that no compelling and substantial circumstances existed in order to deviate from the prescribed minimum sentence of life imprisonment in respect of both counts, i.e. murder and rape.

 

[56]        The appellant was relatively young and a first offender.  Mrs Abrahams submitted that the trial court did not take into consideration that the appellant could be rehabilitated.  He consumed liquor and was probably intoxicated.  However, it was never put to any of the State witnesses that he was strongly, or at all, under the influence of alcohol, although I have regard to the version of his friend and State witness, Mr Mokoena.[36]  His attorney merely referred to the fact that alcohol was consumed and that this could possibly have led to the tragic incident.[37] In my view this is just not good enough.  It was expected of the appellant to lay a factual foundation for his alleged error of judgment. 

 

[57]          I wish to emphasise what was said by the Supreme Court of Appeal  more than ten years ago in S v Matyityi in support of my view that the trial court did not err or that this court should not interfere with the imposed sentences for any other reason:[38]

“[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Malgas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny. As Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order.”

 

[58]          We had to adjudicate three criminal appeals on the same day, all three relating to rape.  In the other two cases two minor females, 10 and 6 years old respectively, were the victims.  Our court rolls, in particular those of the Regional Courts, are stacked with rape cases.  The women and children in this country are not safe and they remain extremely vulnerable.  Several women’s organisations voice their concerns on a regular basis, but to no avail.  The President of this country, Mr Ramaphosa, added his voice to the outcry by community members in his latest newsletter dated 22 November 2021.[39]  I quote:

“Dear Fellow South African,
 
If a nation’s character can be judged by how it treats women and children, then we are falling desperately short.  
 
A week before the launch of the annual 16 Days of Activism for No Violence against Women and Children, the latest crime statistics released by the South African Police Service (SAPS) show an increase in rapes, domestic violence, and, perhaps most worryingly, in child murders.
 
In just three months, between July and September 2021, 9,556 people, most of whom were women, were raped. This is 7% more than in the previous reporting period.
 
Of the nearly 73,000 assault cases reported during this period, more than 13,000 were domestic violence-related. The rate of child murders has climbed by nearly a third compared to the previous reporting period.
 
These statistics are shameful. We are in the grip of a relentless war being waged on the bodies of women and children that, despite our best efforts, shows no signs of abating.
 
We have said before that the violence perpetrated by men against women is the second .pandemic that our country must confront, and like the COVID-19 pandemic it can be overcome if we all work together.
 
As government, we have a duty and responsibility to devote the necessary resources to combat crimes of gender-based violence.
 
…… 
 
Every year when November comes around, we make pledges to end violence against women and children. We take part in marches, attend mass mobilisation events, and wear regalia emblazoned with powerful slogans like “Sikwanele: Enough is Enough”.
 
But what we have observed over the years is that most of those who take part in the 16 Days of Activism are women and children, those most affected by and concerned about GBV. This needs to change.
 
Gender-based violence is, after all, a problem of male violence. It is predominantly men who are rapists. It is mainly men who are perpetrators of domestic violence.
 
……
 
Let us work together as one to ensure that this year’s 16 Days of Activism campaign is meaningful, that it moves beyond mere words, and that it results in real change in the lives of South Africa’s women and children.
 
With best regards,”  (emphasis added)

 

              The appellant flagrantly disregarded the sanctity of human life.  No civil society should accept such brutality.  His personal circumstances could not have been given priority over the seriousness of the crimes and the interests of the community.  The trial court approached the matter correctly.  I may add that Mr Strauss, notwithstanding his uneasiness about the incomplete record, supported the imposed sentences.

 

XII            CONCLUSION

 

[59]         I therefore conclude that insufficient reasons have been advanced for the court of appeal to interfere with the convictions and imposed sentences.

 

XIII           ORDERS

 

[60]         The following orders are issued:

(1)  The appeal against the convictions on the counts of murder and rape is dismissed.

(2)  The convictions in respect of murder and rape and the imposed sentences of life imprisonment are confirmed.

 

JP DAFFUE J

I concur

 

 

C REINDERS J

On behalf of the Appellant:         Mrs V Abrahams

Instructed by:                               Legal Aid SA

                                                     BLOEMFONTEIN

 

On behalf of the Respondent:      Mr M Strauss

Instructed by:                               Office of the DPP, Free State

                                                     BLOEMFONTEIN

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