Makhaola v S (A186/2024) [2025] ZAFSHC 146 (23 May 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Not
reportable / Reportable
Case
no: A186/2024
In
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MAKHAOLA
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APPELLANT
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And
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THE
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RESPONDENT
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Neutral
citation:
Makhaola
v The State (A186/2024)
[2025]
Coram:
Van Zyl J,
et
Deane AJ
Heard:
19 May 2025
Delivered:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and released to SAFLII. The
date
and time for hand-down is deemed to be 23 May 2025 at 15:00
pm.
Summary:
Trial court
conducted the proceedings without error or misdirection -
No material
disparity between the sentence imposed by the trial court and the
sentence this court would have imposed under similar
circumstances -
No justification exists for interfering with the sentence handed down
by the trial court.
ORDER
1
The appeal
against both the conviction and sentence is dismissed.
2
The conviction
and sentence imposed by the Regional Court on the appellant are
confirmed.
JUDGMENT
Deane
AJ (Van Zyl J concurring)
Introduction
[1]
This
is an appeal against both conviction and sentence as handed down by
the regional court magistrate on 27th August 2024, on a
charge of
rape. The appellant’s grounds for challenging his conviction and
sentence can be briefly summarised as follows:[1]
(a)
The court
erred in finding that the complainant was a credible witness and
passed the necessary test applicable to her testimony.
(b)
The court
erred in finding that the complainant and the other state witnesses
were credible witnesses and that there were no material
contradictions in their testimony.
(c)
The court
erred in not accepting the version of the appellant and by making a
negative inference against him.
(d)
The court
erred in not finding that there were substantial and compelling
circumstances present to deviate from the prescribed minimum
sentence.
[2]
The
following facts are not in dispute:[2]
(a)
That the
appellant and the complainant were in a love relationship.
(b)
That they met
at a tavern on 1 July 2023.
(c)
That they
eventually ended up at the appellant’s place.
(d)
That sexual
intercourse took place.
(e)
That the
appellant assaulted the complainant with a stick.
(f)
That the
complainant sustained injuries.
[3]
The State’s
case was that the appellant and the complainant were once in a
relationship but that, at the time, the sexual intercourse
took place
they were no longer in a relationship; that they had been separated
for a period of about two months, and that there
was no consent. The
relationship had ended because the appellant was abusive and
insulting. The complainant testified that on the
day in question she
was at a tavern in the company of her cousins and other people and
that the appellant also happened to be at
the same tavern on that
day. The complainant, at some stage, had a chat with a male person
with whom she was acquainted. The appellant
became jealous and
confronted the complainant. The complainant then left the tavern, but
the appellant followed her and, in the
street, the appellant accosted
her and started assaulting her. The appellant then dragged her to his
shack. He assaulted her with
his hands and amongst other things
kicked her on her vagina. When they got to the appellant’s
shack, he
overpowered her and proceeded to rape her more than once. The
appellant further assaulted the complainant with a stick
in his
shack. The next morning the appellant let the complainant go and she
took a taxi and went to a police station where charges
were laid
against the appellant.
[4]
The appellant
denied raping the complaint and claimed that they had consensual
intercourse. The appellant was convicted of raping
the complainant
more than once and sentenced to life imprisonment.
[5]
The
issue to be decided
was
if
they
were
still in a love
relationship
and
if
the incident occurred under the circumstances
as
the complainant testified.[3]
[6]
It
is
trite law that the onus rests on the state to prove the guilt of the
appellant beyond reasonable doubt. If the accused’s version
is
reasonably possibly true, he is entitled to his acquittal.[4]
[7]
The
guilt of an accused must be proven beyond reasonable doubt.[5]
It is also putative that the State bears the onus of proving the
guilt of the accused beyond a reasonable doubt. There exists no
burden on the accused to prove his version or his innocence. The
accused’s version only has to be reasonably, possibly true.[6]
[8]
In
S
v Mbuli, the
Court, making reference to Moshephi
and Others v R[7]
and
S
v Hadebe and Others,[8]
held
that:[9]
‘The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
[9]
It
is also accepted that a court of appeal will be extremely reticent to
interfere with the credibility findings of the trial court
as well as
the evaluation of the oral testimony, given the better position of
the trial court in hearing and appraising the evidence
of the
witnesses. It will, however, interfere if it is convinced that the
credibility findings made by the trial court are patently
incorrect.[10]
[10]
It is further trite law that the evidence of a single witness must be
approached and evaluated with the necessary
caution.[11]
However, the exercise of such caution should and ought not to
displace the exercise of common sense.[12]
All
the contradictions, inconsistencies and probabilities must be weighed
up to arrive at a conclusion that the State has proven
its case
beyond a reasonable doubt.
[11]
The appellant
argues that the inconsistencies between the complainant’s
testimony and
her statement to the police are significant,
including:
(a)
where the
complainant and the appellant spoke when they met at the Tavern;
(b)
whether the
complainant was assaulted near the Tavern or inside the house;
(c)
whether the
complainant was dragged to the house; and
(d)
whether the
appellant hit the complainant with a stick.
[12]
It
is apparent from the evaluation of the evidence presented that the
trial court was indeed alive to the fact that this was single
witness
testimony in respect of the rape and was alert to the dangers
attendant thereto.[13]
The
record indeed evinces that the evidence of the complainant was
properly scrutinised and that the cautionary rule was properly
applied in the appraisal of her evidence as a single witness.
[13]
The trial
court, in applying the cautionary rule, correctly found the evidence
of the complainant to be satisfactory in all material
respects. A
conspectus of the record reveals that the complainant indeed
presented a coherent and cogent account of events. Her
evidence was
forthcoming and there were no attempts at evasion. She did not
unnecessarily embellish and indeed had no reason to
falsely
incriminate the appellant.
[14]
Notwithstanding
the
contradiction
that
existed
between
her
testimony
and
in
her statement
to the police or any omission in her testimony, the trial court
correctly found it to be immaterial having regard
to the totality of
the evidence tendered.
[15)
Indeed, the court
stated that:
‘…
there
are indeed discrepancies in the complainant’s testimony as against
the statement that she made to the police. However, there
is
what
I call an established principle of evidence, that the statement the
deponent makes to the police can never be elevated to the
evidence by
complainants’ testimony made in court.’[14]
The
court further wrote that ‘from the word go when she was examined, she
told the medical examiner or medical officer that she
was also kicked
on her vagina and on her pubic area’.[15]
[16]
The court found that the complainant reported the matter as soon as
she could to the police and that her
version of the incident was
supported by the testimony of the police officer and the nurse who
filed the J88 report. From the J88,
it is clear that the complainant
did suffer injuries and these are consistent with being kicked,
punched and being hit with a stick.
[17]
The defence
denied that the appellant had kicked or punched the complainant but
acknowledged that he had used a stick. However,
upon reviewing the
record and the injuries sustained by the complainant, the court found
that the evidence was consistent with
both kicking and punching.
[18]
The
court
found
that
the
complainant’s
version
of
the
events
was
satisfactory
in
all
material respects,[16] and
stated that, ‘unfortunately, I cannot say the same thing about
the accused. He was not a satisfactory witness at all,
and he made up
his story and painted a false picture of what transpired on the day
in question. Accuseds version has no head nor
tail, it is just a
fabrication as he was trying to mislead us’.[17]
[19]
Constable
Mashumba’s evidence was also found by the court a quo
to have
corroborated the complainant’s testimony. The court wrote that he
testified that:
‘…
from
the word go, the complainant told him that the accused started the
whole thing at the Tavern where the accused, accused the
complainant
of being with another man whilst he was there. Constable Mashumba
further told us that the complainant they and then
told him that the
accused assaulted and raped her on this day. The complainant
went
on and said the same thing to the medical examiner. So, this
consistency
in
the complainant’s
version
from the word go supports her credibility.’[18]
A
review of the record confirms this.
[20]
The
court also found that the defence ‘painted a picture of the
complainant as a manipulative individual who fabricated her story.
According
to the accused the complainant tore her own panties and tore her own
bra and threatened the accused that she was going
to present them as
evidence of rape and falsely implicate him of rape. I do not believe
this, and it is a lie’.[19]
In
finding the accused version improbable, the court stated that the
‘accused
knows
that he is the one who tore the complainants’ clothes, he had to come
up with an explanation. However, his story does not
make sense,
because there is no evidence that suggests that the complainant tore
her own underwear and that she threatened to lay
false charges
against him…’[20]
[21]
In
evaluating the totality of the evidence before it, the court a quo
correctly
regarded the appellants
version
as false, improbable,
and
not consistent
with
the truth and, therefore,
not
reasonably
possibly true.[21]
Ad
sentence
[22]
The
cardinal principle governing
an
appeal against sentence is that punishment
of
an offender is pre-eminently
a
matter for the discretion of the trial court. It is putative that the
court hearing an appeal against sentence should be vigilant
not to
erode the sentencing discretion entrusted to the trial court. It is
well established that interference by the appellate
court is
warranted only if the discretion of the trial court was not
judicially and properly exercised or if there exists a marked
disparity between the sentence imposed by the trial court and the
sentence that the court of appeal would have imposed had it been
the
trial court.[22]
The
test to be surmounted in every appeal against sentence is whether the
sentence is vitiated by irregularity or misdirection or
disturbing
inappropriateness. This was seamlessly captured in S
v Malgas[23]
which
articulated the principle as follows:
‘A
court exercising appellate jurisdiction cannot, in
the
absence of
material
misdirection by the
trial
court,
approach the question of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because
it prefers it. To do so
would be to usurp the sentencing discretion of the trial court.
Where material
misdirection by the trail court vitiates the exercise of that
discretion, an appellate court is of course entitled
to consider the
question of sentence afresh.
In doing so,
it assesses the sentence as if it were a court of first instance and
the sentence imposed by the trial court has no
relevance.
As it is said,
an appellate court is at large.
However, even
in the absence of material misdirection, an appellate court may yet
be justified in interfering with the sentence
imposed by the trial
court. It may do so when the disparity between the sentence of the
trial court and the sentence which appellate
court would have imposed
had it been the trial court is so marked that it can properly be
described as ‘shocking’, ‘startling’
or ‘disturbingly inappropriate’.
It must be emphasised that in the latter situation the appellate
court is not at large in the
sense in which it is at large in the
former. In
the latter situation, it may not substitute the sentence which it
thinks appropriate merely because it does not accord with the
sentence imposed by the trial court or because it prefers it to that
sentence. It may only do so where the difference is so substantial
that it attracts epithets of the kind I have mentioned.’
[23]
It
is
trite
law
that
the
sentence
of
an
accused
person
must
be
balanced
between
the
interest of society, the nature, seriousness and the prevalence of
the offence and the personal circumstances of the accused.[24]
The
seriousness of the crime that the appellant has been convicted of was
given prominence in S
v S:[25]
‘The
essence of the crime is an assault on the bodily integrity of a
woman’s femininity. If it is a function of the criminal law
to
protect members of society from those who would employ illegal means
to prey on those less able to defend themselves, then rape
is rightly
regarded as a crime of the utmost gravity.’
[24]
In
S
v Ncheche,[26]
the
court expounded upon the gravity of the offence as follows:
‘Rape
is an appalling and utterly outrageous crime, gaining nothing of any
worth for the perpetrator and inflicting terrible and
horrific
suffering and outrage on the victim and her family.
It threatens
every woman, and particularly the poor and the vulnerable.
In our
country, it occurs far too frequently and is currently aggravated by
the grave risk of the transmission of Aids.
A woman’s body
is sacrosanct and anyone who violates it does so at his peril and our
Legislature, and the community at large correctly
expect our courts
to punish rapists severely.’
[25]
The
interests of the community were properly enunciated in S
v Chapman:[27]
‘Women
in [South
Africa] are entitled to 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 fear, the apprehension and the insecurity
which constantly
diminishes the quality and enjoyment of their lives. The Courts are
under a duty to send a clear message to other
potential rapists and
to the community.
We are
determined to protect the equality, dignity and freedom of all women
and we shall show no mercy to those who seek to invade
those rights.’
[26]
The
trial court herein considered the prevalence of the crime, the
gravity and type of offence,[28]
the way in which the offence was committed,[29]
the
interests of society,[30]
and
the trauma and injuries suffered by the complainant.[31]
The trial court correctly took these factors into account and rightly
so imposed what it considered to
be
a just
and
appropriate sentence.[32]
[27]
It
correctly
took
cognisance
of
the
fact
that
the
appellant
was
an
ex-boyfriend
who assaulted
and raped the complainant more than once. It also noted that in
persisting with his claim of innocence, the appellant
wasted the
opportunity to show remorse for his actions. His lack of remorse
impacts negatively on his prospects for rehabilitation.
[28]
In
light of the seriousness of the offence and the interests of society,
these outweigh the personal
circumstances
of
the
appellant.
The
court
a
quo
also
correctly
found
that
no
compelling and substantial circumstances exists.[33]
[29]
It
is also correct that a court hearing an appeal in which the minimum
sentence legislation has application ‘does not possess the
proverbial
clean slate on which to scribble its preferred sentence’.[34]
The
sentencing discretion of the trial court is circumscribed by law. It
is further required that the finding of substantial and
compelling
circumstances must be able to stand scrutiny
and
not be based on the whim of the presiding officer.[35]
[30]
The
charge
of
rape
for
which the appellant
has
been
convicted
of
clearly
falls
within
the ambit of s 51 of the minimum sentence legislation.[36]
The minimum prescribed sentence for an offence in which the
complainant has been raped more than once is life imprisonment,
unless
the court found that substantial and compelling circumstances existed
justifying a departure. Notwithstanding the personal
and mitigating
factors tendered for consideration, the prescribed minimum sentence
was, in the totality of the circumstances encountered
here, the only
fair and just sentence. The trial court correctly found that there
were no substantial and compelling circumstances
present. I am of the
view that the manner in which the complainant was taken advantage of
and the inhumane and degrading treatment
she was subjected to under
the circumstances cannot justify a deviation from the imposition of
the applicable minimum sentence.
[31]
Having said
that, I am content that the trial court did not err or misdirect
itself in any manner. Nor does there exist a disparity
between the
sentence imposed by the trial court and the one which this court
would have imposed if it were the trial court. There
thus exists no
reason that
warrants tampering with the sentence imposed by the trial court.
Order
In
the result, the following order is made:
1
The appeal
against both the conviction and sentence is dismissed.
2
The conviction
and sentence imposed by the Regional Court on the appellant are
confirmed.
Deane
AJ
I
concur
Van Zyl J
Appearances
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For
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P
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Instructed
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Legal
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Bloemfontein
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For
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D
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Instructed
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National
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Bloemfontein.
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