Netshishive v S (A48/2023) [2025] ZAGPJHC 515 (27 May 2025)

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REPUBLIC
OF SOUTH AFRICA

IN
THE HIGH COURT OF SOUTH AFRICA

GAUTENG
LOCAL DIVISION, JOHANNESBURG

 

Case
Number: A48/2023

(1) 
REPORTABLE: YES / NO

(2) 
OF INTEREST TO OTHER JUDGES: YES/NO

(3) 
REVISED: YES/NO

 

In
the matter between:

 

HANGWELANI
CHRISTOPER PRINCE NETSHISHIVE                            

Appellant

 

and

 

THE
STATE                                                                                                 

Respondent

 

JUDGMENT

 

MALINDI,
J

 

Introduction

 

[1] 
On 30 August 2021 the appellant was
convicted of:

1.1. 
Count 1: Kidnapping;

1.2. 
Count 2: Contravention of Section 17
of the Domestic Violence Act, 116 of 1998, being the violation of a
protection order; and

1.3. 
Count 4: Contravention of Section 3 of
The Criminal Law (Sexual Offences and Related Matters) Amendment Act,
32 of 2007 read with Section 51(1) and Schedule 2 of The Criminal Law
Amend Act, 105 of 1997, being rape of an adult with infliction of
grievous bodily harm. He was
acquitted of Count 3 and Count 5, being
attempted murder and intimidation respectively.

 

[2] 
He was sentenced on 26 October 2021 to
2, 5 and 10 years imprisonment, respectively. The sentences for
kidnapping and domestic
violence were ordered to run concurrently
with the sentence in count 4 for rape in terms of Section 280
of the Criminal
Procedure Act 51 of 1977 (the CPA). The Court below
found the existence of substantial and compelling circumstances in
respect
of the rape charge and imposed less than the stipulated
minimum sentence of 15 years in Part 1 of Schedule 2
of
the Criminal Law Amendment Act 105 of 1997 (CLAA).

 

[3] 
Having been refused leave to appeal his
convictions only on 26 October 2021 by the Court below, the
appellant was successful
on petition to this Court in respect of both
conviction and sentence on 3 November 2022.

 

[4] 
The
petition order granting leave on sentence seems erroneous as in his
petition the appellant sought leave only on convictions.[1]
In his notice of appeal[2] the
appellant notes an appeal on conviction only and the grounds of
appeal canvass only the convictions. The heads of argument
and oral
submissions were only on convictions.

 

The
grounds of appeal

 

[5] 
The grounds of appeal are set out in the
notice of appeal as follows:

a. 
The Learned Regional Magistrate erred that
the State had proved its case beyond a reasonable doubt against the
appellant;

b. 
The Learned Regional Magistrate erred in
finding that the appellant had kidnapped the complainant;

c. 
The Learned Regional Magistrate erred in
finding that the appellant contravened a protection order;

d. 
The Learned Regional Magistrate erred in
finding that the appellant raped the complainant;

e. 
The Learned Regional Magistrate erred in
finding that the complainant gave a clear and detailed account of her
experience, and that
her evidence was corroborated by independent
medical legal report; that the complainant’s evidence was
satisfactory in all
material respect;

f. 
The appellant did not enjoy a fair trial
due to inadequate legal representation.

 

[6] 
In short, the appellant denies having
committed the three offences and contends further that the
complainant was a single witness
and therefore her evidence should
not have been accepted unless corroborated by objective or other
evidence, especially medical
evidence. Lastly, he contends that he
did not have a fair trial due to inadequate legal representation.

 

Test
on appeal

 

[7] 
The
test on appeal is whether the Court below misdirected itself or erred
in material respects in its assessment of the facts or
in law.[3]
It is not a retrial.

 

Appellant’s
contentions

 

[8] 
The appellant contends that:

a. 
The
State did not challenge the appellant’s evidence that the
complainant had called or invited the appellant to her place
of
residence. Therefore, his presence at her place could not constitute
a violation of the protection order issued against him.
Reliance for
this proposition is placed on S
v Mathlare [4]
and S
v Hlalatu[5].

b. 
There were material inconsistencies between
the evidence of the complainant and the objective medical evidence in
the J88 report,
the contents of which were not supported by the
compiler thereof as she was not called as a witness. The report had
merely been
handed in by agreement between the parties.

c. 
Lastly,
the appellant contends that he did not have a fair trial because his
legal representative was inexperienced generally, especially
in
sexual offences matters. Reference is made to S
v Mafu and Others[6].
Support for the contention that inadequate investigations and
inadequate legal representation amount to an unfair trial is placed

on Motsakgi
v S[7].

 

Background

 

[9] 
The appellant’s version is short and
uncomplicated. He avers that he went to the complainant’s place
on her invitation
after she indicated her intention to withdraw the
charge of violating the protection order she had opened against him.
He alleges
that she lured him under the pretext that he was going to
sign withdrawal papers of the breach of the protection order. Upon
arrival
she begged him to take her back. He realised that the
complainant had a plan to have him arrested if he refused to take her
back
in when he saw a Quantum Kombi that was driven by one of the
complainant’s brothers stopped at the gate of the place where

he was staying. He then ran to the police station with the intention
to report the incident.

 

[10] 
In other words, the appellant contends that
the complainant and her brother set up a trap whereby he would be
lured to the complainant’s
place. Injuries would be inflicted
on the complainant and be attributed to him. He would be arrested,
charged and convicted accordingly
as his presence at the
complainant’s place would have been established.

 

[11] 
The complainant had laid charges against
him for the violation of the protection order as a result of which he
was out on bail on
the date of the incident. Despite the bail
condition that he not call her, or make any contact with her until
the case is finalised
he went to her place on 18 November 2021
on the alleged basis of signing papers for the charges to be
withdrawn.

 

Evidence
of the state

 

[12] 
The State tendered the evidence of the
complainant and of a police officer who had a short encounter with
the appellant; and of
a medical report (J88) that was handed up by
agreement and without having to call the compiler.

 

[13] 
The complainant testified that on
18 November 2019 at approximately 19:30 to 20:00 she was at her
place of residence and had
just finished bathing. She had gone
outside to throw out the bath water and was on her way back to her
shack when she suddenly
saw the appellant at the door to her shack.
The appellant grabbed her and threw her on the floor. He took his and
her shoelaces
and tied her feet and hands, stuck socks in her mouth
and took a razor blade from her clothes drawer and cut her chest
across her
left breast. He took a screwdriver and inserted it into
her vagina and asked her to perform oral sex on him and ejaculated
inside
her mouth.

 

[14] 
The appellant tortured her by taking a
plastic bag and covered her face with it. He also ordered her to
write a suicidal note. While
this was happening, her brother arrived
and threatened to break the door open when she did not open the door
to him despite he
and some neighbours had noticed that there were
people inside. The appellant panicked and opened the door for her
brother and left
the shack as her brother was asking him what was
happening. She explained to her brother what the appellant had done
and thereafter
he accompanied her to the police station to report the
incident.

 

[15] 
The second state witness, Constable Kwena
Miriam Manamela, testified that she is a member of the South African
Police Service. She
testified that on 19 November 2019 whilst at
the police station the appellant arrived and he informed her that he
wanted to
report his girlfriend. Before Cst Manamela could gather
what the complaint was about the appellant received a call and went
outside.
She waited for him for a short period of time. She then went
outside to look for him and could not find him.

 

[16] 
Shortly thereafter the complainant arrived
and informed her of the rape incident. She testified that the
complainant was confused
and upset. She was in her night gown which
had blood stains on it and was wearing no shoes when she arrived at
the police station.

 

[17] 
The complainant reported that the appellant
cut her with a razor blade on her breasts. Cst Manamela saw the cut
on the complainant’s
breast.

 

[18] 
A medical report was handed in by consent
and confirms physical injuries on the complainant, but no injuries
are noted on the genital
area. It further noted that the absence of
injuries does not exclude sexual assault.  It states that the
complainant had suffered:

a. 
a 5 cm laceration on the left breast
which cut across her nipple;

b. 
bruises on her neck;

c. 
abrasions below the left knee.

 

[19] 
The conclusion is that these injuries are
consistent with physical assault.

 

[20] 
No genital injuries were recorded.

 

Evidence
of the Appellant

 

[21] 
The appellant testified that the
complainant called him at about 15:00 and asked him to come to her
place in order to sign certain
documents in order for her to withdraw
the case against him. When he arrived, he reminded her that she has a
protection order against
him at which point she insisted that he
comes in.

 

[22] 
The
appellant paints a picture of a seductive woman who met him in her
nightgown at the gate, offered him a sit on the sofa and
she sat on
the bed as she begged him to take her back and that she was prepared
to withdraw the order of domestic violence against
him. He rejected
her suggestion because she had kept her Human Immunodeficiency Virus
(HIV) status as a secret from him and she
infected him with HIV. She
told him that she will do anything in her power to get him back[8],
and that if he does not agree one of them will end up being six feet
under.[9]

 

[23] 
The
appellant alleges that the complainant instituted a protection order
action against him in order to stop him from taking all
the stuff he
had bought (and was at her place) when he ended their relationship in
2019.[10]

 

[24] 
The appellant testified that everything was
fine until he left the complainant’s place after her brother
had arrived after
about one and a half hours. When he was about to
enter his gate another of the complainant’s brothers, Velaphi,
arrived in
a Kombi with a group of people. The vehicle was already at
the gate of the premises where he lives. If this were to be believed,

it would seem that the complainant had already put in place her
threat that if he does not reconcile with her one of the two of
them
would end up six feet under. The plan that the appellant would be the
one ending up six feet under was therefore  made
in the short
span of time from when the threat was made and when he was about to
reach his place. This is improbable.

 

[25] 
When he realised this threat to his life he
ran to the police station to lay a charge but the officer that he met
did not pay attention
to him and he went outside to call his brother
and sister to alert them of the Quantum Kombi at his yard. This
police officer was
Cst Manamela.

 

[26] 
When
it was put to him that this version was not put to the police officer
who testified he blamed the fact that she was wearing
a Covid-19 mask
when she testified and therefore could not tell if she was the same
person. When it was put to him that she gave
evidence pertinent to
him arriving at the police station and going out to make a call, he
started clutching at straws.[11]
The appellant was at sixes and sevens on other material issues under
cross-examination. To say that he did not fare well is an

understatement. He was shown to be a liar and mendacious. His version
was rightly rejected as not reasonably possibly true.

 

Analysis

 

[27] 
Despite this, the State still bore the
burden of proof beyond reasonable doubt.

 

[28] 
The
Learned Magistrate found that the appellant had tied the hands and
feet of the complainant, locked her in her shack thereby
depriving
her of freedom of movement and detained her there[12].
The complainant’s evidence is that this was done against her
will and that the appellant did this in order to secure a withdrawal

of the charges she had laid against him for breach of the protection
order. The appellant’s conduct fits the common law crime
of
kidnapping which is “the unlawful, intentional deprivation of a
person’s freedom of movement.”[13]
It was held in S v Mellors[14]
that the duration of the deprivation of liberty or restraining a
person may have a bearing on whether there was intention to kidnap.

The appellant has denied ever restraining the complainant as she has
testified. In the absence of an explanation why he deprived
the
complainant of her freedom of movement, the only conclusion is that
he did so intentionally with the objective of coercing
her to
withdraw charges. He was correctly found guilty of kidnapping.

 

[29] 
The interim order was confirmed on
7 October 2019 in appellant’s presence and he did not
oppose it. The appellant spent
a long time in evidence trying to say
that the order was confirmed in his absence. This lie was exposed in
cross-examination and
he conceded that he was in Court. His denials
and lies kept on being exposed.

 

[30] 
It
was submitted on behalf of the appellant that the State had conceded
that the appellant went to the complaint’s place on
invitation
by her. This is not so because what the State said in
cross-examination was that even if it were so that she had called
him
he should not have listened to her but followed the order.[15]

 

[31] 
The
appellant made an improbable statement or assertion that the
complainant had self-injured in order to keep him.[16]
Asked how she would do this in order to win him back when it would
result in him going to jail for a long time he gave some gobbledygook

explanation including that she wanted to ruin his life and that of
his children who relied on him. He alleged further that she
was
jealous of seeing him with another lady recently. This was not put to
the complainant either.

 

[32] 
The submission that the complainant
self-injured is not borne out by the evidence. For example, the
bruises on her neck are consistent
with her evidence that the
appellant grabbed her by her neck and that the belt of her night gown
was tied around her neck while
the appellant was threatening to hang
her from the rafters. The abrasions on her knee are consistent with
her evidence of being
thrown onto the floor and landing on her knees.

 

[33] 
It is submitted on behalf of the appellant
that it is improbable that the acts of sexual violation by oral
masturbation (blowjob)
and vaginal penetration with a screwdriver
could take place considering that first, the evidence of the
complainant is that her
socks were stuffed in her mouth and secondly,
that her legs were tied together with shoelaces, respectively. It is
submitted that
there could therefore not have been any ejaculation
inside her mouth and no vaginal penetration with a screwdriver if her
legs
were tied together.

 

[34] 
As to oral sex forced onto the complainant,
none of the parties asked the question whether it was done with the
socks still in the
mouth and bandage tied over her mouth
respectively. Logic says that the socks and bandage were removed when
the appellant inserted
his penis in her mouth.

 

[35] 
The submission that it is improbable that
the complainant was vaginally penetrated with a screwdriver is also
not based on established
facts. Neither party asked how her legs were
tied up. If it was at her ankles, then she could be penetrated as she
testified. If
it was the thighs above the knees, it would be near
impossible. No basis was laid for the alleged improbability.

 

[36] 
That there are no genital injuries is no
evidence that she was not vaginally penetrated with a screwdriver. It
is a neutral factor.
It was not explored which end of the screw
driver was inserted. The probabilities are that it was the handle
part that was inserted.
There is no evidence whether it was done with
force. The complainant’s evidence was clear on this aspect. Her
evidence tilts
the scale in her favour.

 

[37] 
An
assessment of the evidence as a whole, and having “weigh(ed) up
all the elements which point towards the guilt of the accused
against
all that those which are indicative of his innocence …”[17],
the court below came to the conclusion that the balance “weighs
so heavily in favour of the State as to exclude any reasonable
doubt
as to the accused’s guilt”.

 

[38] 
The
Learned Magistrate considered the legal principles as to the burden
of proof[18] and to the
approach in evaluating the evidence in its totality.[19]
She was also conscious of the various dicta that the State has to
prove its case beyond reasonable doubt even if the accused’s

version is found to be false.[20]

 

[39] 
The
Learned Magistrate made factual and credibility findings[21]
and convicted the appellant. These findings cannot be interfered with
unless in exceptional circumstances, they are found to be
wrong; or
are as a result of misdirections or errors. This was stated in R
v Dhlumayo[22]
as follows:

“3.
The trial court has the advantages, which the appeal
judges do not have, in seeing and hearing the witness and being
steeped in
the atmosphere of the trial. Not only has the trial court
the opportunity of observing their demeanour, but also their
appearances
and whole personality. This should not be overlooked.

4.
Consequently the appellate court is very
reluctant to upset the findings of the trial Judge.

5.
The mere fact that the trial Judge has not commented on the demeanor
of the witnesses can hardly ever place the appeal court
in as good of
a position as he was.

6.
Even in drawing inferences the trial judge may be in a better
position than the appellate court, in that he may be more able
to
estimate what is probable or improbable in relation to the particular
people whom he has observed at the trial.

7.
Sometimes, however, the appellate court may be in as good a position
as the trial Judge to draw inferences, where they are either
drawn
from admitted facts or from facts as found by him.

8.
Where there has been no misdirection of facts by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court
will only reverse its way it is convinced that it is wrong.

9.
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold it.

10.
There may be a misdirection on the facts by the trial judge where the
reasons are either on their face unsatisfactory or where
the record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.

11.
The appellate court is then at large to disregard his findings on
fact even though based on credibility, in whole or in part
according
to the nature of the misdirection and the circumstances of the
particular space, and so come to its own conclusion on
the matter.

12.
The appeals court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgments
can ever
be perfect and all-embracing and it does not necessarily follow that,
because something has not been mentioned, therefore
it has not been
considered.”

 

[40] 
As stated above, the Learned Magistrate did
not misdirect herself as to the issues of law either.

 

[41] 
The
appellant criticises the Court below for its alleged failure to
assess the version of the appellant and rejecting it merely
on the
basis that the Learned Magistrate found it strange that the appellant
would run to the police after inflicting bodily harm
on the
complainant.[23] This
criticism is not borne out by what is contained in the judgment. The
improbabilities of the appellant’s evidence and
his lack of
credibility are dealt with extensively in the judgment and as set out
in this judgment.

 

[42] 
It
is further clear that the Learned Magistrate properly convicted the
appellant for the violation of the protection order. The
summary of
the complainant’s evidence makes it clear that the Learned
Magistrate rejected the appellant’s claim that
he went to the
home of the complainant by invitation. She finally states that the
appellant’s evidence is to be rejected
wherever it is
contradicted by the State witnesses. This is a rejection of the
appellant’s fanciful claim that the complainant
called him to
her home in order to beg him that they reconcile. He had the
necessary intention as an element of the offence of
contravention of
a domestic violence protection order.[24]

 

[43] 
The ground of appeal regarding inadequate
representation should be rejected outright. The accused’s
version was placed before
the State witnesses and he proceeded to
contradict it in material respects. When the shoe pinched under
cross-examination, he embellished
his evidence to his detriment.
There was no avenue for the accused’s legal representative to
shake the complainant’s
version. The complainant was
consistent, clear in all material respects, and emerged unscathed
under cross-examination. This was
not as a consequence of inadequacy
of his legal representative.

 

Conclusion

 

[44] 
The Learned Magistrate considered the
evidence as a whole and applied the law to the facts of this case in
concluding that the appellant
be convicted of the three counts as
charged. She properly found that the complainant was credible whereas
the appellant was woefully
lacking in this regard.

 

[45] 
In view of the authorities regarding the
power or authority of a Court of Appeal to interfere with the factual
findings of the trier
of facts, this Court finds itself bound thereby
unless the Court below misdirected itself in regard thereto. The
Court does not
find any misdirection in the application of the law
either. It follows that there are no grounds to set aside the
conviction. The
issue of sentence was not addressed on the papers or
in oral submissions.

 

[46] 
For these reasons the appeal with regard to
conviction falls to be dismissed and therefore upholding the judgment
of the Court below.
As stated in paragraph 4 above, the appellant
sought leave to appeal only the convictions and we therefore confined
ourselves to
the issue of conviction.

 

Order

 

[47] 
The following order is made:

1. 
The appeal in respect of conviction is
dismissed.

 

MALINDI J

JUDGE
OF THE HIGH COURT

JOHANNESBURG

 

I
agree,

 

MIA
J

JUDGE
OF THE HIGH COURT

JOHANNESBURG

 

For
the Appellant:         
M M Hlatshawayo

Instructed
by:                
Mbele Attorneys

 

For
the Respondent:      R M Kau

Instructed
by:                
Director of Public
Prosecutions

 

Date
of hearing:            
12 August 2024

Date
of judgment:          27
May 2025

 

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