THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

In the matter:

Case No:633/09

No precedential significance

PETRUS THEMBA DAMGAZELA
First Appellant
ISAAC LINGELILE MKHEHLANE
Second Appellant

and

THE STATE
Respondent

Neutral citation:
Damgazela v The State (633/09) [2010] ZASCA 69 (26
May 2010).

Coram:
Nugent, Heher, Shongwe JJA, Majiedt et Seriti AJJA

Heard:
18 May 2010

Delivered:
26 May 2010

Summary:
Conviction on rape – identification evidence credible and
reliable – approach to be adopted where oral evidence is at
variance with statement restated – cautionary approach to
single witness – sentence – 18 years' imprisonment not
excessive.

ORDER

On appeal from: Free State High Court, Bloemfontein (Rampai, Kruger JJ and
van Rooyen AJ sitting as court of appeal).

1.
The first appellant's appeal against conviction and sentence is
dismissed. The second appellant's appeal against conviction, so far as it
might be properly before this court, and his appeal against sentence, are
dismissed.

JUDGMENT

MAJIEDT AJA (Nugent, Heher, Shongwe JJA and Seriti AJA concurring)
[1] The appellants were convicted of rape after a trial in the Regional Court.
The matter was referred for sentencing to the Free State High Court,
Bloemfontein in terms of s 51(1)(b)(i) of the Criminal Procedure Amendment Act
105 of 1997. The regional magistrate was requested by Van der Merwe J to
furnished additional reasons for convicting the first appellant. When those
additional reasons had been furnished the matter was placed before Milton AJ
who was satisfied that both appellants had been correctly convicted and they
were each sentenced to imprisonment for 18 years.

[2] The first appellant applied to the learned judge for leave to appeal against
both his conviction and sentence. The second appellant applied for leave to
appeal only against sentence. Milton AJ granted both applications, with leave
being granted to the Full Court.

[3] The appeals came before Kruger and Rampai JJ and Van Rooyen AJ. A
majority (Kruger and Rampai JJ) dismissed 'the appeal of both appellants in
respect of conviction and sentence'. (Van Rooyen AJ was of the view that the
first appellant was wrongly convicted but concurred with the majority so far as the
sentences were concerned.) So far as the order of the majority purported to
dismiss an appeal by the second appellant against conviction clearly that was an
inadvertent error because no such appeal was before it.

[4] Both appellants then applied to this court for special leave to appeal, in
each case against both conviction and sentence. In truth the application by the
second respondent for leave to appeal against conviction was irregular because
no such appeal had been before the Full Court. Both applications were
nonetheless granted. Although leave to appeal against conviction ought not to
have been granted to the second appellant by this court, I have nonetheless
considered whether the second appellant was correctly convicted. For the
reasons that follow the convictions of both appellants are unassailable.

[5] The State adduced the evidence of the complainant and her boyfriend, Mr
Chrisjan Khuduga (Khuduga). Their version in broad terms was that at
approximately 20h30 on the evening in question, they were making their way
from a shop towards their home. Khuduga was then struck by a stone behind his
head. The stone had been thrown from behind by the first appellant. Khuduga left
the complainant's company and moved off in a direction back towards the shop
from where they had come, ostensibly to seek help from his friends at the shop.
In venturing back, Khuduga had to walk past the first appellant. According to the
complainant while Khuduga was away the first appellant and another man, whom
she later identified as the second appellant, forcibly dragged her off to a nearby
informal settlement where they took turns to have sexual intercourse with her
without her consent, behind a shack. Upon Khuduga's return later, the two
appellants fled the scene. Khuduga was unable to recognise the fleeing
attackers, due to the poor visibility. The appellants' identification as the alleged
rapists rests solely on the testimony adduced by the complainant.

[6] Both appellants testified and advanced a diametrically opposite version to
that of Khuduga and the complainant. According to this version the second
appellant had met the complainant (whom he did not know previously) in a tavern
on the evening in question. The second appellant bought her some drinks and he
'proposed love' to her, which she immediately accepted. They were joined later
by the first appellant who, at the second appellant's invitation, also joined them in
drinking at the tavern. Khuduga arrived and took exception with the first appellant
entertaining his girlfriend (the complainant) there. It was pointed out to Khuduga
that the complainant was in fact in the second appellant's company, but Khuduga
persisted with his confrontation with first appellant, and the altercation became
violent. Khuduga left the tavern, unhappy with the state of affairs there.
The first appellant also left and at the complainant's suggestion, the second
appellant and the complainant left for the second appellant's parental home
where they slept for the rest of the night. They had consensual sexual
intercourse once during the course of the night. Both appellants were arrested
the following day by the police who were accompanied by Khuduga.

[7] The common cause facts are as follows:
(a)
The two appellants were at some stage in each other's presence that
evening where an altercation occurred between first appellant and Khuduga.
(b)
It was dark outside with poor visibility and the only source of illumination
was a light at the shop, some distance away from the informal settlement.
(c)
Second appellant had sexual intercourse with the complainant that
evening.
(d)
Second appellant has a nickname, 'Madice'.
(e)
The first appellant lives in the same area as Khuduga and the
complainant.
(f)
The appellants were arrested by the police the following day after
Khuduga had pointed them out. At that time the complainant was being
examined in Welkom by a doctor.

[8] The appellants' primary attack against their conviction was directed at the
first appellant's identification by the complainant, the differences between the
complainant's oral evidence and her witness statement as well as the differences

between the versions of Khuduga and the complainant. The regional magistrate
was alive to all these pitfalls and found that the complainant, as a single witness
to the actual alleged rape, was sufficiently credible and reliable. The regional
magistrate found Khuduga to be a very good witness and rejected the appellants'
version as false beyond reasonable doubt, mainly because of the improbabilities
contained therein.

[9] Counsel for the appellants was driven to concede in the course of his
argument that the first appellant was known to the complainant and Khuduga.
The fact that an identification witness knows an accused provides a significant
safeguard against a mistaken identification.1 As far as the second appellant is
concerned, identification is not in issue, because his defence amounts to
consensual sexual intercourse. While the illumination was admittedly quite poor
at this scene and while events must have happened quite fast, I am satisfied
beyond reasonable doubt that the complainant's identification is reliable.2 A
further safeguard against mistaken identification is provided by the fact that it
became common cause that the appellants were in each other's company at
some stage during the course of that evening (although of course, the place
where and the circumstances under which they were together are in issue).
There is no plausible explanation as to why Khuduga should the very next day
point out the first appellant who coincidentally happened to have been in the
company of the second appellant at some stage the previous evening – the very
same person who on the common cause facts had sexual intercourse with the
complainant that previous evening (the consent to such intercourse is of course
in issue).

[10] The discrepancies between the complainant's oral evidence and her
witness statement were subjected to fierce criticism by the appellants' counsel.
But those inconsistencies relate mostly to her description of the clothing which
the appellants wore. This issue becomes moot where the first appellant was

1 R v Dladla and others 1962 (1) SA 307 (A) at 310B-E; S v Zitha 1993 (1) SACR 718(A) at
721d-e.
2 Cf S v Charzen 2006 (2) SACR 143 (SCA) para 11; S v Mavinini 2009 (1) SACR 523 (SCA)
para 21 and 22.

known to the complainant (and to Khuduga) and where the second appellant
admits intercourse with the complainant, as discussed in the previous paragraph.
In any event this case is a classic illustration of the rationale underlying the
caution expressed by Olivier JA in S v Mafaladiso & others3 against the summary
rejection of a witness' contradictory evidence vis-a-vis the witness' police
statement, without a careful evaluation of underlying factors, such as language
and culture differences between the witness and the author of the statement and
the fact that a witness is seldom required to explain his or her statement. In this
instance the complainant made her statement in English, although according to
her, she spoke to the police officer in Afrikaans and Sesotho. The statement was
read back to her by the police officer in Sesotho, a language which she testified
she did not know very well. The police officer in turn, informed the complainant
that he does not understand Afrikaans, which the complainant testified is her
home language. When reading her evidence on the record, it is plain that she is
an unsophisticated person of a modest educational level. In these circumstances
the contradictions between her oral evidence and her statement are mitigated by
the obvious language difficulties outlined above.

[11] The isolated incidences of contradictions within the complainant's own
evidence and between her and Khuduga are not material, concerning matters
such as the first appellant's clothing, what was said on the scene and whether
the police were contacted that same evening or the next morning. The proper
approach to such contradictions is well-established.4 The contradictions, of which
there are but a few, are of the type which suggest absence of fabrication rather
than unreliability.

[12] The trial court was faced with two mutually destructive versions of the
events on the night in question. One of them must be false. In such
circumstances, apart from considering the credibility and reliability of the
witnesses, it was justified in assessing the probabilities of the two versions and to

3 2003 (1) SACR 583 (SCA) at 594 a-c ([2002] 4 All SA 74 (SCA) at 83).
4 S v Mkohle 1990 (1) SACR 95(A) at 98f-g; S v Mafaladiso & others at 83.

reach a finding as to which one is true and which one is not.5 It could, of course,
only dismiss the defence version as false in the event that it reached that
conclusion beyond reasonable doubt.  And it had to do so after giving
consideration to the evidence before it as a whole.6

[13] The regional magistrate correctly found the complainant to be satisfactory
in all material respects as a single witness in respect of the rape. She is
corroborated in some respects by Khuduga, whom the regional magistrate found
to be a very good witness, a finding which was not attacked with any modicum of
vigour before us. He testified that, upon his arrival at the scene of the alleged
rape, he found the complainant in a frightened and tearful state, with her skirt full
of dust and drawn down as far as her knees and with her panties missing. And it
became common cause, as I have said, that at least the second appellant had
sexual intercourse with her that night (whether it had been consensual or not was
in issue).

[14] The regional magistrate correctly, in my view, rejected the defence version
as false beyond reasonable doubt by reason, inter alia, of the following glaring
improbabilities:
(a)
That the complainant, who was some 8 years older than the second
appellant, would at their very first encounter immediately agree to have intimate
relations with him.
(b)
That Khuduga, having been informed that the complainant was with the
second appellant at the tavern, would nonetheless continue with his altercation
with the first appellant.
(c)
That Khuduga would meekly depart the scene without confronting the
second appellant and leave his girlfriend, the complainant, there particularly after
his violent confrontation with the first appellant concerning the very complainant.

5 Stellenbosch Farmers' Winery Group Ltd & another v Martell et Cie and others 2003 (1) SA
11 (SCA) at para 5; S v Saban 1992 (1) SACR 199(A) at 203i-204b.
6 S v Trainor 2003 (1) SACR 35 (SCA) para 9; S v Mbuli 2003 (1) SACR 97 (SCA) para 57.

[15] On a proper conspectus of all the evidence, the regional magistrate
cannot be faulted in her finding and the majority below was correct in upholding
both appellants' convictions.

[16] No misdirections on sentence were relied upon on appeal by the
appellants. Their appeal is restricted to a contention that it is shockingly
excessive.
Pre-sentence
reports
concerning
the
appellants'
personal
circumstances were handed in at the trial. Both appellants were first offenders,
had left school prematurely and they were aged 18 and 19 years respectively at
the time of the incident. They had both spent 20 months in custody awaiting trial.
Aggravating features are the gravity of the offence and the prevalence thereof,
the appellants' lack of remorse and the fact that there appears to be a degree of
premeditation involved in the commission of the offence.
Appellate interference in respect of sentence on the striking disparity criterion is
only competent in instances where the appellate court has formed a definite view
as to the sentence it would have imposed and where the degree of disparity
between that sentence and the one imposed by the sentencing court is so
striking that interference on appeal is warranted.7 The sentence in the present
matter does not meet that criterion. I do not find it shockingly excessive at all.

[17] In the result, the first appellant's appeal against conviction and sentence is
dismissed. The second appellant's appeal against conviction, so far as it might
properly be before this court, and his appeal against sentence, are dismissed.

___________________
S A MAJIEDT
ACTING JUDGE OF APPEAL

7 S v Pieters 1987 (3) SA 717(A) at 734F-I; S v Matlala 2003 (1) SACR 80 (SCA) at para 10.

APPEARANCES:

For appellant:
N L SKIBI

Instructed by:  Legal Aid South Africa, Bloemfontein.

For respondent:
S GIORGI

Instructed by:  Director Public Prosecutions,
Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
26 MAY 2010

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

DAMGAZELA & ANOTHER v THE STATE
The Supreme Court of Appeal (SCA) today dismissed the appeals of the above two
appellants against their convictions for rape and sentences of 18 years' imprisonment
each. The SCA held that the complainant adduced credible and reliable identification
evidence. The SCA also held that the differences between the complainant's oral
evidence and her statement can be ascribed to the difficulties in the language spoken
by her and the policeman who authored the statement. The court held further that the
appellants' evidence had been correctly rejected as false by the trial court.

The sentence of 18 years' imprisonment on each appellant was confirmed. The SCA
held that the sentence is not shockingly excessive.