Sediane and S (A167/2024) [2025] ZAFSHC 151 (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: A167/2024

 

In
the matter between

ISAAC
MASHESHEMANE SEDIANE                                   

APPELLANT

 

and

 

THE
STATE                                                                            

RESPONDENT

 

Neutral
citation: Sediane v S (1167/2024)
[2025] ZAFSHC

 

Coram:       
Chesiwe J et
Deane AJ

Heard:        
26 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 13:00 on 29 May 2025.

 

Summary:
In looking at whether a trial court erred one must have regard to
the record and judgment as a whole. The record demonstrates that
the
trial court was fully cognisant of the fact that the rape charge was
based on single-witness testimony. The judgment of the
court a quo
clearly reflects that the complainant’s evidence was subjected
to appropriate scrutiny and that the cautionary rule was
appropriately applied in assessing her testimony as a sole witness.
While the court may not have explicitly reiterated the standard

terminology concerning single-witness testimony, it is evident from
the reasoning and findings within the judgment that this principle

was duly considered and factored into its determination. The trial
court correctly found the evidence of the complainant to be

satisfactory in all material respects.

 

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 (Chesiwe J concurring)

 

Introduction

 

[1] 
This is an appeal against both conviction and sentence as
handed down by the regional court magistrate on 16 August 2022, on
two
counts of rape, read with the provisions of s 51(2) of the
Criminal Law Amendment Act 105 of 1997. The
appellant, being legally represented at all material times of the
trial, was sentenced to 22 years’ imprisonment. His
petition against conviction and sentence was
granted on 27 August 2024.

 

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

(a) The court
was biased towards the appellant and the state did not prove their
case beyond a reasonable doubt.

(b) The court erred in
finding that the complainant and the 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 and
his witnesses and making a negative inference against him and not
accepting that evidence as credible.

 

[3] 
The
following facts are not in dispute:[2]

(a) That the
complainant and the appellant knew each other for an extended period
prior to this incident.

(b) The
complainant boarded the appellant’s car in order to be taken home
from the tavern.

(c) They eventually ended
up at the appellant’s place.

(d) The appellant
engaged in  sexual intercourse more
than once with the complainant on the day in question.

 

[4] 
What is in dispute is whether the
complainant was raped or whether there was consensual sexual
intercourse between the appellant
and the complainant.

 

Factual
background

[5] 
The complainant and the accused stay in the
same area and the two are friends or were friends before the
incident. They used to
drink together, and the accused is also well
known to the complainant’s younger sister, F[…]. F[…]
testified
that they regarded the accused as a brother. On the 7th of
December 2020, the accused and the complainant met at a tavern, and
they drank together. Together with others at the end of the drinking
session, they boarded the accused car and went home. The accused

dropped the others off before heading to the complainant’s
place. The complainant did not alight, and the accused drove the
car
to a spot next to the clinic where they engaged in sexual intercourse
in the accused’s vehicle. Thereafter, the accused
started the
vehicle, but it stalled. He then sought help from Mabotsane Vinger,
who came and assisted in starting the vehicle.
The three then left in
the car and dropped the complainant off at her home.

 

[6] 
It is not in dispute that on the same night
the complainant then told her sister that the accused raped her. She
also went to the
police to lay charges against the accused.

 

Ad
Conviction

 

[7] 
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.[3]

 

[8] 
The
guilt of an accused must be proven beyond reasonable doubt.[4]
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; it only
has to be reasonably, possibly true.[5]

 

[9] 
In S
v Mbuli,[6]
the Court, making reference to Moshephi
and Others v R[7]
and S v
Hadebe and Others,[8]
held that:

‘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]

 

[10] 
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]

 

[11] 
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.

 

[12] 
In casu, the appellant does not agree with the courts
finding that the complainant reported the matter
as soon as possible and went to the police. He further does not agree
that the complainant’s
version was corroborated by the version
given to her sister and the nurse who filed the J88 report. The
appellant also does not
agree that there was no material
contradictions between these witnesses and that the judgment does not
discuss the contradictions
of these witnesses.

 

[13] 
It is important to note that the appellant’s version and
defence were premised on the assertion that sexual intercourse did
occur
between him and the complainant, but that it was consensual.
Given the conflicting accounts presented before the court, a
credibility
assessment was required to determine which version to
accept, taking into consideration the totality of the evidence.

 

[14] 
A
reading of the judgment clearly shows that the court a
quo
properly
assessed all the evidence placed before it, and the court found that
the independent evidence of the medical examiner corroborated
the
complainant’s version. The court also found that the
complainant’s version was corroborated by her sister and that

the sister’s testimony was not biased, but factual in nature.
The court also found that the explanation of the appellant
as to how
and why the injuries of the complainant occurred were improbable.[13]
It was the appellant’s version that the complainant’s
bruises were old and that she bruised easily, but the medical

examiner found that the bruises were fresh bruises.

 

[15] 
It is also noted that a careful examination of the record
demonstrates that the trial court was fully cognisant of the fact
that
the rape charge was based on single-witness testimony. The
judgment of the court a quo clearly reflects that the
complainant’s evidence was subjected to appropriate scrutiny
and that the cautionary rule was appropriately
applied in assessing
her testimony as a sole witness. While the court may not have
explicitly reiterated the standard terminology
concerning
single-witness testimony, it is evident from the reasoning and
findings within the judgment that this principle was
duly considered
and factored into its determination.

 

[16] 
The
trial court 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
she did not
deviate from her version in any way.[14]
The court also found that the complainant had no reason to falsely
incriminate the appellant.[15]
The court found that the complainant testified that she had been
drinking before she met the appellant and went on to drink with
the
appellant. The court found that the complainant ‘did
not paint a bad picture of the accused, and she did not paint a good
one of herself. So, the question, as I indicated is, why
if she had
consensual intercourse with the accused would she now falsely
implicate . . . him? From the evidence, accused was unable
to answer
this question’.[16]

 

[17] 
Furthermore,
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.[17]
Indeed, the court stated that:

‘.
. . Further
the defence capitalized on what the complainant did not tell the
police, but testified to in court. The thing is, in court,
a person
testifies in detail, the person is asked about the nitty gritty of
the event. So saying the same thing that is said in
the statement can
never be realistic. . . . what is important is that in both her
testimony in court and statement, that she made
to the police, she
said the accused raped her, and raped her outside the clinic, and
that she did not consent to this .’[18]

 

[18] 
The
court found that the complainant reported the matter as soon as she
could to the police[19] and
that her version of the incident was supported by the testimony of
her sister.[20] It is also
clear that the complainant suffered injuries which were consistent
with the injuries and bruising as testified to by
the
complainant.[21]

 

[19] 
As
to the defence’s version, the court found that ‘as
for the injuries on the person of the complainant, in an attempt to
evade the responsibility, the defence said the complainant
had always
had bruises on her arm, because her skin was sensitive. Complainant
testified that she does not bruise easily, and bruises
only if hit by
or against something.’[22]
The court rejected this version of the appellant as improbable, based
on the medical examiner’s report, that the bruising
was indeed
fresh bruises.[23]

 

[20] 
The
court found that the complainant’s version of the events was
satisfactory in all material respects.[24]
Having
regard to the record, one can see that the corroborating factors and
possible contradictions regarding the complainant’s
version
were discussed, whereby the corroborating factors were accentuated by
the trial court.[25]

 

[21] 
In
evaluating the totality of the evidence before it, the court a
quo
correctly regarded the appellants version as false, improbable, and
inconsistent with the truth and, therefore, not reasonably
possibly
true.[26] Looking
at the record, the court are
quo
correctly evaluates and rejects the testimony of Mabotsane, finding
that Mabotsane was influenced to testify in favour of the appellant

as he is a close friend of the appellant.
In all of the above, the state indeed proved its case beyond a
reasonable doubt.

 

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.[27]
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[28]
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.[29] The seriousness
of the crime that the appellant has been convicted of was given
prominence in S
v S:[30]

‘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,[31]
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:[32]

‘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,[33]
the way in which the offence was committed,[34]
the interests of society[35]
and the trauma and injuries suffered by the complainant.[36]
The trial court correctly took these factors into account and,
rightly so, imposed what it considered to be a just and appropriate

sentence.[37]

 

[27] 
It correctly took cognisance of the appellants personal
circumstances; the fact that the appellant was known and trusted by
the
complainant and that he raped the complainant more than once. It
is 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] 
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’.[38] 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.[39]

 

[29] 
In
this instance, the court found that compelling and substantial
circumstances exists to deviate from the prescribed minimum
sentence.[40] This Court is
content that the trial court did not err or misdirect itself. 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

 

Chesiwe J

 

Appearances

 

For
the appellant:          
Adv S Kruger

Instructed
by:                
Legal Aid South Africa,
Bloemfontein

 

For
the respondent:        Adv WJ
Harrington

Instructed
by:                
National Director
of Public Prosecutions, Bloemfontein.

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