Sedi v S (Appeal) (A211/2024) [2025] ZAFSHC 148 (29 May 2025)

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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF
SOUTH AFRICA

FREE STATE DIVISION,
BLOEMFONTEIN

 

Not
reportable/Reportable

Case no: A211/2024

 

In the matter between

 

MBUTI PAUL
SEDI                                                                                 

APPELLANT

 

and

 

THE
STATE                                                                                            

RESPONDENT

 

Neutral
citation: Sedi v The State
(A211/2024) [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
14:30 on
29 May 2025.

 

ORDER

The following order is
made:

 

1   The appeal
against both convictions and sentences are dismissed.

2   The
convictions and sentences 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 8^th
May 2023, on two counts of rape read with the provisions of
section 51(2) of the Criminal Law Amendment Act 105 of 1997.

 

[2]            
The
appellant’s grounds for challenging his conviction and sentence can
be briefly summarised as follows:[1]

 

(a) The court a quo
erred in finding that the State proved its case beyond a reasonable
doubt.

(b) The court a quo
erred in finding that there were no improbabilities in the State’s
case and that the State witnesses gave evidence in a satisfactory

manner.

(c) The court a quo
erred in not properly evaluating the State witnesses’ evidence.

(d) The court did not
properly evaluate the contradictions found in the State witnesses’
evidence.

(e) The court a quo
erred in accepting the version of the State and rejecting the version
of the appellant and by finding that the contradictions between
the
appellant and his witness were material.

(f) The court a quo
erred in finding that the sentence of life imprisonment is the only
appropriate sentence.

(g) The court a quo
erred in not finding that there are substantial and compelling
circumstances present for the deviation from the minimum sentence.

(h) The court a quo
did not properly consider the appellants’ personal
circumstances or the element of rehabilitation.

(i) The court a quo
erred in over emphasising the seriousness of the offence, interest of
society, the prevalence of the offence, the deterrent and
retributive
effect of the sentence and the effect of the offence on the
complainant.

 

Factual
background

 

[3]            
It
is not in dispute that the appellant had sexual intercourse on the
dates mentioned in both the complainant’s evidence.[2]
It is also common cause that the appellant met with the complainants
at different places and taverns and on different days. In
both
instances before the appellant met with the complainants, he did not
know them, and they also did not know the appellant.
It is also not
disputed that the appellant had multiple intercourse with both
complainants on each occasion.[3]

 

[4]            
The issue in dispute was whether or not
there was consent.

 

Evidence 

 

[5]            
Complainant 1 testified that, on 23-26
February 2017, she was at the tavern in Bothaville drinking when she
saw the appellant sitting
with a friend.

 

[6]            
Complainant 1 approached the appellant and
asked for a cigarette from the appellant. After chatting casually
with the appellant,
the complainant went back to where she had been
sitting. Complainant 1 left the tavern around 21h00 to board a taxi
to go home.
While still in the taxi, but before it left, the
appellant arrived and boarded the same taxi which then left.
Complainant 1 was
the first to disembark. As she did, the appellant
asked her if the location was her home, to which she confirmed.

 

[7]            
A few days later, the complainant was at
home at night while others were asleep when the appellant and another
man arrived, knocking
forcefully on the door. They entered the
residence and forcibly removed her, taking her to a shack where the
appellant repeatedly
raped her. He later allowed her to leave but
threatened to kill her if she reported the incident. The complainant
did not report
the matter to the police but disclosed it to her
partner, who took no action.

 

[8]            
Complainant 1 further testified that, days
later, the appellant again arrived at her place with another man. He
forcefully opened
the door and took her by force to the same place he
had taken her before. He also raped her, but this time, he raped her
only once.
The appellant and his companion then threatened the
complainant with violence, locked her inside the place, and left her
there.
Later that day, she escaped through the window and proceeded
directly to the police, where she laid charges against the appellant.

She further testified that the appellant did not use a condom at any
stage during sexual intercourse.

 

[9]            
In brief, Complainant 2 testified that, on
the night of 25 to 26 March 2017, she was at the tavern in Bothaville
with a friend who
later disappeared. She then went outside to look
for him but was unable to find him. While searching for her
boyfriend, the appellant
approached her and told her that they must
go. As she did not know the appellant, she refused and asked why she
should go with
him. The appellant then took out a knife, threatened
her, and insisted that she must go. He then forcibly took her to his
place,
where he led her into his shack and repeatedly raped her until
the next morning. At all times, the appellant never used a condom.

 

[10]         
The appellant’s version is that he met the
two complainants at different taverns on different days and at
different times. According
to the appellant, the two complainants
were friendly towards him. He then proposed to each complainant, and
both accepted his proposals.
The appellant further testified that all
was well between him and the complainants on both occasions, and he
even purchased some
items for them. He admitted that he had sexual
intercourse with each complainant several times, but he asserted that
it was with
their consent and denied having raped them.

 

[11]         
The State called four witnesses, two in
each count. For the defence, the appellant testified and called one
witness who is his mother.
Thereafter, the defence closed its case.

 

Ad conviction

 

[12]         
It
is trite law that the onus rests on the State to prove the guilt of
the accused beyond reasonable doubt. If the accused’s
version
is reasonably possibly true, he is entitled to his acquittal.[4]

 

[13]         
The
guilt of an accused must be proved beyond reasonable doubt.[5]
It is also putative that the State bears the onus of proving the
guilt of the accused beyond 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]

 

 

[14]         
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.’

 

[15]         
In
considering the judgment of the court a
quo,
this court has to be mindful that a court of appeal is not at liberty
to depart from the trial court’s findings of fact
and
credibility, unless they are vitiated by irregularity, or unless an
examination of the record reveals that those findings are
patently
wrong.[10]

 

[16]         
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 proved
its
case beyond reasonable doubt.

 

[17]         
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.[13]

 

[18]         
The
appellant argues that the court did not properly evaluate the
evidence of the complainant and the State witness in that:[14]

 

(a)           
The State called the complainant in count 2, Ms D[…] E[…] M[…],
and her witness, Ms M[…] A[…] K[…] to prove the case pertaining
to count 2.

(b)           
The complainant, Ms M[…], was a single witness with regard
to the
charge. The evidence of a single witness must be evaluated with
caution. The court a quo did not properly evaluate the
complainant’s evidence.

(c) The complainant’s
evidence was that the appellant took her as she was leaving the
tavern. However, it’s improbable
that, at that stage, there
were no people outside the tavern. She testified that there were a
lot of people in and outside the
tavern while she was there.

(d)           
The complainant conceded that she was moderately intoxicated
at the
stage that the appellant took her from the tavern. At no stage, at or
near the tavern, did she try to alert anyone’s
attention for
help.

(e)           
It is further strange that the complainant did not try to complain
to
the mother of the appellant and inform her that she was there against
her will. The reason for her not telling the mother about
the rape is
improbable. Why, if the mother feared the appellant, would she (the
mother) still confront the appellant over a tent
and accuse him of
stealing her items.

(f) It is therefore more
probable that Ms M[…] was with the appellant out of free will and
that no rape occurred. The complainant
testified that she did not
want the mother’s help.

(g)           
The complainant never made a report to Ms K[…] that the appellant

raped her and neither did she inform the police. It is submitted that
it’s more probable that the appellant never raped her and
that’s why
she did not make her report.

(h)           
According to the complainant’s evidence, the appellant
told Ms
K[…] that he will not rape the complainant again. However, Ms
K[…] never testified that the appellant mentioned anything
about
rape. It is submitted that the complainant was tailored in her
version.

 

[19]         
The
heads of argument of the appellant levels various other criticisms of
the court a
quo including
a finding by the court that the J88 of the complainants neither
supported or disputed the allegations, contradictions
in the evidence
of the State witnesses pertaining to count 2, the credibility of the
evidence by the State witnesses, the court’s
failure to
properly evaluate the improbabilities in the State’s case and that
the court a
quo
erred in rejecting the version of the appellant.[15]

 

[20]         
The State on the other hand submitted, and
correctly so, that the appeal against conviction is void of merits
and that the trial
court did not misdirect itself because it had
properly evaluated the evidence before it to come to a just decision.

 

[21]         
From a conspectus of the judgment, one can
clearly see that the trial court carefully assessed the reliability
and consistency of
witness testimonies, determining that their
accounts were credible and corroborated by other evidence. The court
held as follows:

 

‘.
. . looking at N[…] S[…]’s version, she never deviated
therefrom, and she struck me as a reliable witness. She was so

traumatised by what she said accused did to her and was so emotional
when she gave account of what happened. She testified and
was
cross-examined at length by the defence long after the incident
happened but never deviated from her version.”[16]

 

The court further wrote
that:

 

‘.
. . despite her emotions she could narrate clearly and in full
details how and where she met with the accused. She explained how
the
accused arrived at her place, where he took her and how the accused
sexually abused her. Her evidence could not be faulted
that the
accused had no choice but to build his version around her testimony
and only say there was consent.’[17]

 

[22]         
Looking at the second complainants’
evidence, the court held that:

 

‘.
. . the complainant in count 2, just like N[…] she also stuck to
her version and never deviated. She also impressed me as an
honest
and reliable witness whose evidence could not be faulted. I have no
reason not to believe that she was with her boyfriend
and the
boyfriend disappeared.’[18]

 

The
court also noted that the complainants’ versions were
consistent with the various medical reports of both complainants.[19]

 

[23]         
The
State further submits that single witnesses’ evidence must be
satisfactory, not perfect. In dealing with acceptance of
single
witness testimony the court in S
v Artman and Another
(S
v Artman),[20]
followed the case of R
v Mokoena[21]
and stated that ‘[w]hat was required was that her testimony
should be clear and satisfactory in all material respects. .
.’.
Further, in S
v Artman,
the court stated that:[22]

 

‘.
. . while there is always a need for caution in such cases, the
ultimate requirement is proof beyond reasonable doubt; and courts

must guard against their reasoning tending to become stifled by
formalism. In other words, the exercise of caution must not be

allowed to displace the exercise of common sense . . .’

 

[24]         
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
danger’s attendant thereto.[23]
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.[24]
The court held that ‘both complainants in both counts 1 and 2
being Notice (sic) S[…] and E[…] M[…] gave satisfactory
account
in all material aspects as required by section 208 of the Criminal
Procedure Act 51 of 1977’.

 

[25]         
The court further held that:

 

‘.
. . looking first at N[…] S[…]’s version, she never
deviated therefrom, and she struck me as a reliable witness . .
. her
evidence could not be faulted that accused (sic) had no choice but to
build his version around her testimony and only say
there was
consent. . .’[25]

 

[26]         
The
court also found that both complainants were single witnesses
regarding the sexual intercourse. However, a reading of the
transcript
and the judgment highlights that the two other witnesses
in each case materially corroborated the complainants, and their
versions
remained consistent with those of the complainants. Both
witnesses in both accounts testified that the appellant was violent
towards
the complainants. They further testified that the appellant,
not only threatened the complainants, but also those who attempted
to
intervene. The court further held that is no doubt from the evidence
that everyone around the appellant was afraid of him.[26]

 

[27]         
Whilst
the court was alive to the fact that there were contradictions in the
State witnesses’ testimonies, it eventually found
these
contradictions to be immaterial. The threats of violence and the
trauma of events must be considered in the evaluation of
all the
evidence.[27] The court wrote:

 

‘.
. . in cross-examination to Teboho, the defense just stated that he
contradicted N[…] however I disagree with this. One should
bear in
mind that there are two incidents where the accused took N[…] by
force from her home. Teboho however testified only on
one incident.
The incidents happened a long time ago, so Teboho could not exactly
say what the date was and if it was the first
or the second incident,
and could therefore in any way suggest that he contradicted N[…] as
his version was materially consistent
with the events of one of the
incidents (sic). . . Another discrepancy highlighted by the defense
in cross examination was what
weapons did the accused and his
companions use, or what weapons they were carrying. Whether these
were knives or screwdrivers.
This discrepancy in my opinion is
immaterial because at the end of the day both N[…] and Teboho
corroborated each other that
the accused was wild and that he used
violence and threats of violence which caused N[…] to go with
him.’[28]

 

In reaching this
decision, this court cannot find that there are any signs of
misdirection or procedural errors in the court’s
handling of
evidence.

 

[28]         
Indeed,
regarding the violence, the court wrote that the two witnesses in
both counts testified that the appellant was violent towards
the
complainants and they further testified that the appellant, not only
threatened the complainants, but also those who tried
to intervene.
The court found that there was no doubt, from the witnesses’
evidence, that everyone around the appellant was
afraid of the
appellant.[29]

 

[29]         
In this matter, the complainants and other
State witnesses provided testimony which proves beyond reasonable
doubt that the appellant
committed rape offences against the
complainants.

 

[30]         
In
evaluating the totality of the evidence before it, the court a
quo
correctly regarded the appellant’s version as false,
improbable, and not consistent with the truth and therefore not
reasonably
possibly true.[30]
The court specifically wrote that ‘if one looks at the accused,
he on the other hand was not a reliable witness as his version
was
not reasonably possibly true.’[31]
On the basis of the improbabilities in the appellant’s version,
the court found that the State’s witnesses were credible
and
their evidence was accepted as true. The court further determined
that these witnesses were honest and reliable, with no apparent

reason to doubt their testimony or suggest that they had falsely
implicated the appellant.[32]

 

[31]         
The
court a
quo
correctly weighed up all the probabilities and improbabilities of the
State’s case and that of the defence and found the
appellant’s
version to be improbable.[33]
The court a
quo,
accordingly, evaluated the evidence of the State and correctly
concluded that the State proved its case beyond a reasonable
doubt.^[34]

 

Ad sentence

 

[32]         
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.[35]
The test to be surmounted in every appeal against sentence is whether
the sentence is vitiated by irregularity or misdirection
or
disturbing inappropriateness.[36]
This was seamlessly captured in S
v Malgas[37]
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
be 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.’

 

[33]         
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.[38] The seriousness
of the crime that the appellant has been convicted of was given
prominence in S
v S:[39]

 

‘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.’

 

[34]         
In
S
v Ncheche,[40]
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.’

 

[35]         
The
interests of the community were properly enunciated in S
v Chapman:[41]

 

‘Woman
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 tranquility 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.’

 

[36]         
On sentencing, the court a
quo stated that:

 

‘.
. . society depends on courts for protection of the vulnerable.
Courts are expected by the communities to appropriately deal with
the
offences which are rife and serious. One way of doing this is to
impose proper sentences that fit the offences to deter not
only the
perpetrators, but other would be offenders. We are all aware that
somewhere, somehow, daily, members of the society are
protesting in
an effort to express their dissatisfaction with the lenient ways
offenders are treated by the courts. It is for these
reasons that
minimum sentences, in offences like these, were ordained by the
legislature.’[42]

 

Taking
this into consideration the court properly considered, the
appellant’s personal mitigating factors, including that
the
appellant was married with a child,[43]
the prevalence of the crime[44]
and the interests of society,[45]
 the gravity and type of offence, the way in which the offence
was committed,[46] the
seriousness of the offence,[47]
and the trauma and injuries suffered by the complainant. Accordingly,
it cannot be said that the court a
quo
failed to exercise judicial discretion in a manner that ensures a
fair and just sentencing determination. Moreover, the court observed

that the appellant demonstrated a lack of remorse, which adversely
affects his prospects for rehabilitation.

 

[37]         
The court further considered the
appellant’s established pattern of violent conduct towards
women, as evidenced by his prior
convictions, in determining the
appropriate sentence.

 

[38]         
Upon a comprehensive assessment of the
evidence, the court determined that the aggravating factors
significantly outweighed the
mitigating considerations. Consequently,
the court correctly concluded that no compelling or substantial
circumstances existed
to warrant a deviation from the prescribed
sentence.

 

[39]         
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’.[48]  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.[49]
The trial court correctly took the various factors into account and
rightly so imposed what it considered to be a just and appropriate

sentence.

 

[40]         
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 complainants were taken advantage
of and the
inhumane and degrading treatment they were subjected to
under the circumstances cannot justify a deviation from the
imposition
of the applicable minimum sentence.

 

[41]         
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 convictions and sentences are dismissed.

 

2         
The convictions and sentences imposed by the regional court on the
appellant
are confirmed.

 

 

Deane AJ

 

I concur

 

Van Zyl J

 

 

Appearances

 

For
the appellant:                 
V Abrahams

Instructed
by:                         

Legal Aid South Africa, Bloemfontein

 

For
the respondent:             
D Pretorius

Instructed
by:                         

National Director of Public Prosecutions, Bloemfontein.

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