S v Khoza (Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Barit AJ
• Judgment Date: 08 September 2023
• Citation: 2023 JDR 3314 (GP)
• Hearing Date: 08 September 2023
• Docket Number: A222/2022
• Court: Gauteng Division, Pretoria

Barit AJ:

Introduction

[1]

This is an appeal against a conviction and sentence by the Tsakane Regional Court presided over by Ms. Makamu. The appellant, Bongani Khoza, is a thirty-eight-year-old married male, who is currently serving time with respect to this conviction and sentence.

[2]

The appellant, has launched this appeal with respect to both conviction and sentence.

(a)

Firstly, it is a submission of the appellant that the State has not proved its case “beyond a reasonable doubt” and the conviction ought to be set aside.

(b)

Secondly, that life imprisonment is strikingly “disproportionate to the facts” of the case, and ought to be set aside and to be replaced with a suitable sentence.

[3]

The respondent (the State) has submitted that the appeal against conviction and sentence ought to be dismissed.

[4]

The appellant, Bongani Khoza, was legally represented throughout the trial. At the start of the proceedings in the regional court, it was explained to the appellant by the magistrate what the competent sentences were with respect to the offences he was alleged to have committed. This included a minimum sentence of life imprisonment for rape in terms of legislation. The appellant then pleaded not guilty to

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all the three charges, namely rape; attempted murder; and robbery with aggravating circumstances.

The Conviction and Sentence

[5]

On 6 June 2022 the appellant was convicted (at the Tsakane Regional Court) on the following charges:

(a)

Count 1. – Rape: - read with the provisions of Section 51 (1) of the Criminal Law Amendment Act 105 of 1997 (“the Minimum Sentences Act”).

(b)

Count 2. – Attempted Murder, and;

(c)

Count 3. – Robbery with Aggravating Circumstances: - read with Section 51 (2) of the Minimum Sentences Act.

[6]

On the 10th August 2022 the appellant was sentenced as follows:

(a)

Count 1. - To life imprisonment;

(b)

Count 2. – To ten years imprisonment; and

(c)

Count 3. – To fifteen years imprisonment.

The sentences were ordered to run concurrently.

Further the appellant was declared unfit to possess a firearm in terms of Section 103 (1) of Firearms Control Act 60 of 2000.

Grounds of the Appeal

[7]

The grounds of the appeal to this court, are basically as follows:

(a)

With respect to the conviction, the appellant maintains that no rape took place but merely sexual intercourse which was consensual. In addition,

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the appellant states that the complainant, who is a single witness in the matter, failed to call any witness to support her version. The main thrust of this being that there has been a factor of mistaken identity, namely that the appellant was not the perpetrator of the offences.

(b)

With respect to sentence, the appellant maintains that personal circumstances dictate that a life sentence should not have been imposed on him. Further that the “cumulative effect” of his personal family circumstances show substantial and compelling circumstances for such a life sentence not to have been imposed.

[8]

The appellant had an automatic Right of Appeal in terms of Section 10 of the Judicial Matters Amendment Act 42 of 2013. The appellant is appealing against both convictions and sentences, and has given Legal Aid South Africa instructions to prosecute his appeal. [1]

Legal Background re Appeals

[9]

In the case of R v Dhlumayo and Another, [2] the appeal court stated:

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

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[10]

In A M and Another v MEC Health, Western Cape [3] , Wallis J A said at para 8:

“In Makate v Vodacom (Pty) Ltd the Constitutional Court, reaffirmed the trite principles outlined in Dhlumayo, quoting the following dictum of Lord Wright in Powell and Wife v Streatham Nursing Home” [4] :

“Not having seen the witnesses puts the appellant judges in a permanent position of disadvantage against the trial judges, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the Higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case”.

[11]

The court of appeal, if it is convinced that the assessment is wrong, will only then reject the trial courts assessment of the evidence. If the appeal court is in doubt, the trial court’s judgment must remain in place. [5] From the above it can be seen that an appeal court must be careful in making decisions, which are purely based on paper and representations in court without the presence of the parties in the actual case [6] .

[12]

In the appeal court matter S v Kebana [7] it was stated:

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“It can hardly be disputed that the magistrate had advantages which we, as an appeal court, do not have of having seen, observed and heard the witnesses testify in his presence in court. As the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings”.

Conviction – The Law

[13]

It is trite law that the onus of proof rests with the State to prove the guilt of an accused beyond reasonable doubt. If the accused’s version is only reasonably possibly true, he would be entitled to an acquittal. The Supreme Court of Appeal in the matter of Shackle v S [8] stated:

“The court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true, in substance, the court must decide the matter on acceptance of that version. Of course, it is permissible to test the accused’s version against the inherent probabilities; but it cannot be rejected merely because it is improbable. It can only be rejected on the basis of inherent probabilities if it can be said that it will be so improbable that it cannot be reasonably possibly true”.

In S v Munyai [9] AJ Van der Spuy stated:

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“A court must investigate the defence case with the view of discerning whether it is demonstratable false or inherently so improbable as to be rejected as false”.

[14]

Heher AJA in the matter of S v Chabalala [10] said:

“The correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt to the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as failure to call a material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture in evidence.”

[15]

In the matter of S v Sithole and Others [11] it was stated:

“There is only one test in a criminal case and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that the accused is entitled to an acquittal if there is a

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reasonable possibility that there is an innocent explanation which he has proffered might be true”.

[16]

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.

[17]

Ponnan JA in the case of S v Monyane and Others [12] stated:

“This court’s powers to interfere on appeal with the findings of fact of a trial court are limited. . . 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 (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645 e-f).”

The Facts

[18]

At the start of the trial at the court a quo, the appellant denied having committed the offences. He maintained that he had a love relationship with the complainant and that the sexual intercourse was consensual.

[19]

The complainant, a single witness in the matter, did not call any witnesses to support her version. She denied being in love with the appellant. Her evidence was that on the evening of 25 December 2018, she was on her way in the road. She and

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the appellant met there for the first time. She and the appellant had no prior conversations between themselves. The complainant alleges that the appellant demanded money from her, and then proceeded to rob, rape, choke and assault her. The appellant and the complainant, living in the same street (Pedie street) though some distance between where they lived, had never been in communication with each other prior to that evening. Apparently, the street in question is quite a reasonably long one.

[20]

The appellant could not dispute, nor did he dispute that the victim was attacked and raped but denied that it was him. He maintained that the victim mistakenly identified him.

The Witnesses

[21]

The State led the evidence of three State Witnesses, after which it closed its case. The accused testified in his own defence and then closed his case without any witnesses.

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