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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A087/2019

DPP REF NO: 10/2/5/1-2019/078

In the matter between:

MNTONGA, NYIKO                                                                                          APPELLANT

And

THE STATE                                                                                                   RESPONDENT

 

J U D G M E N T

 

MUDAU, J:

 

[1] Arising from incidents that occurred on the night of 28 May 2016 and early the next morning in Chiawela, Soweto, the appellant, Mr Nyiko Mntonga, was convicted by the Protea Regional Court on 15 November 2017 of kidnapping (count 1), assault with intent to do grievous bodily harm (count 2), as well as rape (counts 3 and 4) as contemplated in s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.[1] Consequently, he was sentenced to 4 years imprisonment in respect of count 1 and 2 years imprisonment in respect of count 2.

[2] The convictions on the rape charges were considered as one for purposes of sentence and the appellant was sentenced to 10 years imprisonment. The trial magistrate ordered that the sentences imposed in respect of counts 1 and 2 run together with the sentences imposed for the rape charges. Effectively the appellant was sentenced to 10 years imprisonment. The appeal against conviction and sentence is with leave of the trial court.

[3] There are entrenched principles governing the hearing of appeals against findings of fact.  As was said by Marais JA in S v Hadebe,[2] ‘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’.[3]     

[4] The issues regarding the appeal on the merits are: whether the complainant was kidnapped or voluntarily accompanied the appellant to the house where the incidents of rape allegedly happened; and, in as much as the appellant formally admitted to having assaulted the complainant, whether the nature thereof amounted to assault with intent to do grievous bodily harm. It is the appellant’s argument that the single incident of sexual intercourse, on his version, was with the complainant’s consent. Regarding sentence, the criticism is that the trial magistrate failed to take into account the period spent by the appellant in prison whilst awaiting trial.

[5] It is against this background that I now turn to the facts. The complainant, Ms LT testified in camera that on the evening of 28 May 2016 at about 21:40PM she went to a party with Nomsa and others where they drank alcohol. The appellant was also in attendance. When it was time for her to leave she asked Nomsa to accompany her as it was late in the night. The latter invited her into a Combi driven by her boyfriend (Nomsa’s) for a lift home. The appellant and his companions were in the same Combi. The Combi took off but instead of taking her home stopped at the appellant’s place. Nomsa could not tell her why she was taken there.

[6] The complainant expressed a wish to walk home from there but the appellant told her she was going nowhere. The appellant demanded from her what he termed ‘his rights’ and started pulling her out of the Combi. When she enquired what his rights were the appellant begin to assault her. He assaulted her with clenched fists, kicked her with booted feet and also slapped her with open hands. After directing his brother to open the gate, the appellant pulled her into the yard where the assault continued despite Nomsa’s plea for her boyfriend to stop the appellant. Nomsa and her boyfriend drove away.

[7] While still holding her, the appellant knocked on the door of the house in which his friend and girlfriend were. The latter opened the door. Inside the house the assault continued. The appellant hit her with a clenched fist. The blow was so hard that she bit her lip. She was bleeding and had a swollen face and mouth. Inside the kitchen the appellant opened a drawer but was reprimanded by his friend and girlfriend. He throttled her and asked her to take out his cell phone. As a result she sustained bruise marks on her neck. When she asked what cell phone the appellant wanted, he told her to go and ask her friend Nomsa. He was told by his friend and girlfriend to go and sleep, as he had asked for a place to sleep.

[8] The appellant pushed her to the dining room, closed the door after which he prepared bedding on the floor. Thereafter he pushed her to the floor, undressed her during which process her pair of jeans were torn at the back.  Afterwards he forcefully had sexual intercourse without her consent in spite of her plea that she was HIV positive. This was a ploy meant to discourage him from raping her. She tried to scream but he covered her mouth to muffle the sound. Once done, he gave her a bed sheet to cover herself and ordered her to sleep facing the other way whereas he had himself covered in a blanket. He dared her to open a charge against him but warned her that he was not afraid of the police.

[9] In the morning, his uncle came and knocked at the door; once more the appellant warned her against screaming and covered her mouth. Once the uncle had left, the appellant again raped her after which he left the house. In both instances the appellant did not use a condom. The complainant asked the appellant’s brother (cousin) to let her out of the house as the door was locked. She immediately went and reported the incident to Nomsa’s sister, Thokozile Madi, with whom she went to the party the night before. The incident was reported to the police. She was subsequently referred to hospital for medical examination. A pregnancy and other sexually related disease tests were conducted. As at the time of her testimony, she was still undergoing treatment but declined to disclose the nature of her ailment(s).

[10] During cross-examination, she refuted suggestions that she previously had a relationship of approximately three weeks with the appellant when they lived together, during which period she stole his cellphone precipitating the end of their relationship. It was her evidence that the appellant was too young for her to establish a relationship. She testified that the appellant’s friends and some family members visited her, asked her to withdraw the charges in return for money which she declined. A charge was opened in that regard.

[11] The first person whom the rape was reported to, Ms Thokozile Madi, testified and confirmed the report of rape made to her by the complainant. She also confirmed that she went to the party with the complainant the night before but left early, leaving the complainant behind with Nomsa and others. At the party, she and the complainant sat at different tables. She confirmed noticing the complainant’s swollen face and nail marks on her neck as well as the complainant’s torn pants at the back.

[12] The medical doctor who attended to the complainant, Dr Thompson, testified and also introduced the J 88 report which he had compiled. He noted that the complainant was thin framed. He confirmed that the complainant’s left cheek as well as her upper lip was swollen. Inside her genitalia he found a fresh tear at the 6 o’clock area as well as irregular bruises. The complainant had informed him of her three previous pregnancies. There was no bleeding which was in keeping with the previous vaginal delivery. He concluded based on the physical injuries that the findings were consistent with physical assault and a chokehold applied on the complainant. However, he noticed nothing abnormal about her clothing which appeared to him to be intact.

[13] At the commencement of the trial the appellant had formally admitted in terms of section 220 of the Criminal Procedure Act[4] to assaulting the complainant by hitting her with open hands 3 to 4 times. He also admitted to having sex only once with the complainant. It was his testimony that the complainant found them at a tavern called Torches. When they left, she left with them. He did not invite her into the Combi. After they were dropped off, he had an argument with the complainant about his missing cellphone which he learned from her friend, Nomsa that she stole from him. The argument resulted in him slapping her before they entered the house.

[14] He denied forcing her into the house, undressing her, and having sex with her without her consent. He testified he had consensual sex with her only once around 6 AM the next morning. Regarding injuries, he only noted that she had bitten her lower lip. They previously had a love relationship for approximately three weeks which he terminated after he lost his cellphone. He alleges it was the complainant who had initiated their love relationship. She was introduced to him by his younger brother Ali, and his girlfriend, Nomsa, as he lived alone in his house.

[15] During cross-examination, the appellant conceded that when he met the complainant on 28 May 2017 she was not his girlfriend. Regarding the allegations pertaining to the theft of his cellphone he also conceded that he did not open any charge. He did not confront her about this earlier at the tavern. Neither did he make any advances or suggested sexual intercourse to the complainant. When he was asked what made him think he could assault and have sexual intercourse with the complainant  he answered bizarrely thus:

“It is because when we alighted from the vehicle your worship she also alighted with us and entered the yard with us”. When he was asked why the complainant would want to go into the house with him after he had assaulted and injured her, his answer was: “I do not know”. Later on he stated: “…but for her to go into the house I thought that maybe she thinks that it is already late for her to go home at that time of night”.

[16] The appellant testified that it was the complainant who wanted them to have sex at that time and was naked. He declined as he was tired. He disputed that he choked the complainant contrary to the medical findings in that regard. He further testified that he left to the shop to buy cigarettes after assaulting her, and later found that she had calmed down upon his return. He disputed that any assault on the complainant occurred inside the house.

[17] The appellant’s uncle, Mr Jeffrey Mntonga testified that the complainant visited him with two other women and asked for R20 000-00 but later reduced the amount to R15 000-00 in order to drop the charges approximately two weeks after the appellant was arrested. He did not open any charge as he did not know that it was illegal. In cross-examination however, he could not dispute the complainant’s testimony that his son, Ali and the girlfriend Nomsa, as well as the appellant’s friend Bongani approached the complainant to ask her to drop the charges. The appellant’s elder brother, Andries Mntonga, also testified and confirmed the testimony of the appellant’s uncle. During cross-examination however, he could not remember the details of the meeting. Neither did he make any reference to the complainant arriving with other persons.

[18] Lastly, the appellant called his friend’s girlfriend, Ms Roy, as a witness. The latter confirmed that on arrival at the house where the incidents of rape allegedly happened, it was the appellant who gave her boyfriend a key to open the locked gate. She testified that she overheard an argument between the two which led to the appellant assaulting the complainant. She confirmed that the appellant further assaulted the complainant whilst already inside the house which forced her boyfriend to calm him down and thus contradicted the appellant in that regard. Furthermore that the appellant later went out to buy cigarettes. It was only the next morning that without being asked, the complainant told her that they had engaged in sex after the appellant had left her behind.

[19] With regard to the merits of this appeal the serious injuries sustained by the complainant are not compatible with the suggestion that she, of her own accord entered the house and initiated sexual intercourse. The version by the complainant that the appellant demanded his rights has a ring of truth to it. It is an unusual allegation to make. The state’s case against the appellant is in my view credible, reliable and overwhelming, and the regional magistrate correctly held that the appellant’s exculpatory version, on the totality of the evidence, was not reasonably possibly true. The choke marks on her throat could not have been self-inflicted. The appellant’s version is inherently false and was correctly rejected. The version that he only had sexual intercourse once with the complainant is contradicted by the version he gave to the probation officer who compiled the pre-sentencing report. There it is recorded that he had sexual intercourse with the complainant twice without using a condom. The witnesses called on behalf of the appellant did not advance his case in any material way. It is astonishing that the appellant never confronted the complainant pertaining to his allegations that she stole his cellphone at any stage earlier that evening whereas he had all the time to do so. In any event, the allegation was not new since on his version, that was the reason for their breakup. The suggestion that he confronted her about the cellphone after she had alighted from the Combi uninvited and for no apparent reason, is opportunistic, misleading and intended to justify the unlawful assault on the complainant.

[20] This is against the background that there were no efforts made by either the complainant or the appellant earlier that night of spending the night together, even on the appellant’s version. It is palpably unlikely that the complainant would have initiated intimacy and followed the appellant inside the house in the circumstances where she was the subject of severe beatings, outside and inside the house, resulting in her sustaining a swollen face and a cut on her lip. The injuries inside her genitalia as described by the medical doctor support the complainant’s version that the appellant forced himself on her. As the trial magistrate correctly concluded, there were no material conditions in the complainant’s testimony regarding the merits. It follows accordingly that the appellant was correctly convicted for kidnapping, assault with intent to do grievous bodily harm and for both counts of rape.

[21] It remains to deal with the appeal on sentence. The attack on sentence is based on the allegation that the period spent by the appellant in prison was not properly taken into account. The appellant was arrested on 1 June 2016 and sentenced on 15 November 2017. It is trite that punishment is pre-eminently a matter for the discretion of the trial court and a court of appeal should be careful not to erode that discretion.  Interference is only warranted if it is convincingly shown that the discretion has not been judicially and properly exercised:  The test is whether the sentence is vitiated by irregularity, material misdirection or disturbingly inappropriate.[5] 

[22] In sentencing the appellant the trial court took into consideration his personal circumstances, the offences committed and the interests of society. The appellant was at the time 26 years of age, single and without dependents. The highest standard of education achieved is grade 12. He had no record of previous convictions, was employed and earned R3000-00 a month.

[23] In terms of section 51(1), read with Part 1 of Schedule 2 of the Criminal Law Amendment Act[6], the appellant was eligible to be sentenced to life imprisonment for the rape charges, more so that the rapes were accompanied by violence which led to the conviction of assault with intent to do grievous bodily harm. In S v Malgas it was made clear that the court must be mindful of the fact that the legislature ordained life imprisonment or the particular prescribed period of imprisonment as the sentence which should be imposed. It was also added that the approach proposed did not mean that all other considerations were to be ignored, but that specified sentences were not to be departed from lightly and for flimsy reasons.[7]

[24] However, the trial magistrate took into consideration the appellant’s undisclosed chronic illness, also that he was “still very young” in deviating from the prescribed sentences and imposing an effective 10 years imprisonment. By way of example however, the offence of rape when committed by a person knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus attracts the mandatory minimum sentence of life imprisonment[8]. In this matter the appellant had informed the probation officer that he had no health related challenges and appeared in good health. In our law the age of majority is 18 years[9]. At the age of 26 the appellant could hardly be described as still very young. As the SCA held in Matyityi[10] at para 14: “Thus whilst someone under the age of 18 years is to be regarded as naturally immature the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor”.

[25] As far back as 1997, the late Mohamed CJ described rape in S v Chapman [11]as follows: ‘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.’ It is lamentable that notwithstanding this observation the rate of rape in the country has reached unacceptable levels.

[26] There are disturbing features regarding this case. As a result of the incident the complainant incurred a medical condition for which she continues to receive counselling. She was unwilling to disclose the nature of the illness. She was evidently highly traumatized as a result of the rape and often cried during her testimony. The sentence of 10 years effective imprisonment under the circumstances hardly induces any sense of shock. On the contrary, the sentence is arguably too lenient and the state would have been justified to give notice of appealing it as counsel also alluded. It follows accordingly, that the appeal on sentence is without merit and for that reason, falls to be dismissed.

[27] Order

The appeal against conviction and sentence is dismissed.

 

 

________________

T P MUDAU

[Judge of the High Court,

Gauteng Local Division,

Johannesburg]

 

I agree

 

________________

W H G VAN DER LINDE

[Judge of the High Court,

Gauteng Local Division,

Johannesburg]

 

Date of Hearing:                               31 October 2019                 

Date of Judgment:                           November 2019

APPEARANCES

For the Appellant:                            Adv. AH Lerm

Instructed by:                                    Legal Aid South Africa

                                                            011 870 1480                      

For the Respondent:                       Adv. M Masilo

Instructed by:                                    DPP – Johannesburg

                                                            011 220 4101                      

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