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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

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: CA & R 132/07

In the matter between:

SEAN RALPH Appellant

And

THE STATE Respondent

CORAM: PICKERING, LIEBENBERG and CHETTY JJ

DATE HEARD 17 SEPTEMBER 2007

DATE DELIVERED: 25 SEPTEMBER 2007

SUMMARY Rape- appeal against conviction and sentence – Powers of Court of Appeal – approach to evidence

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JUDGMENT
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CHETTY, J

[1] The appellant was arraigned for trial in the regional court, East London on a charge of rape, read with the provisions of s 51 (2) of the Criminal Law Amendment Act 105 of 1997 (the Act) and duly convicted. Enjoined thus by the provisions of s 52 (1) of the Act, the magistrate stopped the proceedings and committed the appellant for sentence to this division. After considering the record of the proceedings in the court a quo Maqubela AJ, acting pursuant to the provisions of s 52 (3) (b) of the Act addressed the following query to the trial magistrate –

“Was the court satisfied that there was sufficient corroboration that;

1. the act of penetration had in fact taken place, in circumstances where the complainant’s evidence in this regard is not clear and reliable, and particularly where the complainant initially testified that she did not feel the accused penetrating her;

2. the complainant’s evidence is reliable, in circumstances where she changed her version in regards to whether she felt the accused penetrate her, and where she was under psychiatric treatment and was taking medication at the time that she testified;

3. the evidence of Dr UYS as to the mental condition of the complainant is as a direct result of the accused having raped the complainant, in circumstances where the complainant’s mental condition may well be attributed to some other traumatic event.”

[2] The magistrate duly delivered a comprehensive statement in which he set forth the reasons for convicting the appellant. Those reasons assuaged whatever doubt Maqubela AJ had hitherto entertained concerning the appellant’s conviction. The learned judge delivered a judgment in which he noted that the proceedings in the court a quo were in accordance with justice and confirmed the conviction. No evidence was adduced either in mitigation or aggravation of sentence. During argument counsel for the state fairly conceded that given the prevailing circumstances, the imposition of the ordained sentence of life imprisonment would be wholly inappropriate. Although there is no specific finding of substantial and compelling circumstances as enjoined by s 51 (3) (a) of the Act, it is implicit from the judgment that a number of factors, to which I shall in due course allude to, influenced the judge in imposing a sentence of 16 years imprisonment.

[3] In granting the appellant leave to appeal against both the conviction and sentence the judge stated –

“It is in my view that another Court may well come to another conclusion insofar as the conviction is concerned particularly on whether there was sufficient corroboration of the complainant’s evidence , and also another Court may also find that a sentence of 16 years’ imprisonment be out of kilter with the sentences which have recently been passed by our Courts.”

If, as the quoted passage from the judgment seems to indicate, the judge entertained the view that corroboration for the evidence of a complainant in an offence of a sexual nature is a prerequisite to found a conviction, such an approach is clearly wrong. The Supreme Court of Appeal in S v Jackson 1998 (1) SACR 470 (SCA) jettisoned the requirement of a cautionary rule in offences of a sexual nature holding that the burden of proof in a sexual offence was no different from that in other criminal offences – the state was required to prove its case beyond a reasonable doubt. No more no less.

[4] With that prelude I turn to consider and evaluate the evidence which to an appreciable extent is not in dispute. The complainant, aged 15 at the time of the commission of the offence lived with her mother and stepfather at [address], East London. In January 2003 a social gathering in the form of a bring and braai was held at the house. Present were the complainant, her sister, L., her brother, D., her mother, D2., her stepfather, R., the latter’s sister, Mandy and her husband, Sean (the appellant), a cousin, Tammy and her husband, Johnny, a certain Claire and her fiancé, Charles, and Michelle. All the witnesses who testified were referred to by their first names and I shall adopt the same nomenclature henceforth. It is evident from the evidence that not an insignificant amount of alcohol was consumed. That no doubt accounts for the inability of the witnesses to remember the date of the braai, who exactly was present, the various individual’s times of departure, whether a baby was asleep in the house etc. Nothing however turns on this. At some stage D2. and R. retired to their bedroom and some of the guests left leaving behind the complainant, the appellant, Mandy and Claire. The latter, who on her own admission was in a festive mood suggested that the complainant and Mandy accompany her to a local nightclub. The complainant however, cognisant that she would incur her mother’s wrath, declined the invitation. Mandy in turn likewise declined but was persuaded by the appellant to accompany Claire. Their departure, in the earlier hours of the morning, between 2 and 2:30 a.m. left the complainant and the appellant alone in the kitchen. The appellant then remarked that he wanted to smoke and, as a consequence of his impecuniosity, the complainant went into her mother’s bedroom, took R20.00 from her handbag and accompanied the appellant in his vehicle to purchase cigarettes. The respective versions of the events which occurred thereafter are mutually destructive and it would be apposite to deal firstly with the complainant’s version.

[5] The complainant, who was dressed in a two piece stretch fabric pyjamas stated that after leaving her home, the appellant complained at length about his wife’s infidelity and this made her quite uncomfortable. After purchasing the cigarettes and instead of returning to her home the appellant proceeded towards the beachfront, drove to a parking area adjacent to the Kennaway hotel and stopped the vehicle. She became anxious and her anxiety was further exacerbated when the appellant drank the glass of liquor he had brought with him and threw the glass onto the rear seat. He added to her woes by then placing his hands onto hers which were resting on her lap and, frightened at this sudden turn of events, asked to be taken home. The appellant however climbed over to her on the front passenger seat, held her hands above her head and, after lowering the backrest horizontally, touched her private parts and pulled down her pyjama bottom and panties. She described that she literally froze and the appellant then engaged in sexual intercourse with her. He then exited the vehicle through the passenger door, stood outside for several minutes before returning to the vehicle and returned to the complainant’s home where he admonished her not to reveal what had occurred. The complainant went to her room but remained awake the entire night emerging from her room at approximately 9 a.m. after having showered and dressed. Although the appellant and Mandy, who the complainant recalled had arrived in the early hours of the morning, spent the better part of the morning at the house, she never spoke to the appellant prior to him and Mandy leaving.

[6] It is furthermore not in issue that the complainant suppressed the incident for a week before confiding in her neighbour, Kathleen Viviers and relating what had occurred. She then described how the incident devastated her life until she “cracked” and finally in July of that year disclosed to her mother what had occurred.

The appellant’s version

[7] The appellant, whilst admitting that the complainant accompanied him to the local garage where she alighted and purchased cigarettes for him denied making advances to the complainant or having raped her. He stated that after the complainant purchased the cigarettes they drove around in an effort to locate Mandy and Claire before driving to the beachfront where he parked outside the O’Hagan’s restaurant for a short while. He then returned to the complainant’s home and shortly thereafter left the premises together with R. returning thereto some time in the course of the late morning. In his evidence the appellant not only impugned the complainant’s character but moreover suggested that she had deliberately perjured herself by reason of the pending divorce between Mandy and him.

[8] It is apparent from the aforementioned summary of the evidence adduced that the two versions are irreconcilable. The trial court found that the complainant was a credible witness as opposed to the appellant whose evidence it rejected as not being reasonably possibly true. The trial court’s factual findings are challenged on a number of grounds but as a prelude to the consideration of the submissions advanced on behalf of the appellant it is apposite to commence with the general approach which should guide an appellate court. In S v Francis 1991 (1) SACR 198 (AD) Smalberger JA at 204d stated:

“This Court’s power to interfere on appeal with the findings of fact of a trial Court are limited. Accused No 5’s complaint is that the trial Court failed to evaluated D’s evidence properly. It is not suggested that the Court misdirected itself in any respect. In the absence of any misdirection the trial Court’s conclusion, including its acceptance of D’s evidence is presumed to be correct. In order to succeed on appeal accused No 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D’s evidence – a reasonable doubt will not suffice to justify interference with its findings.”

[9] The trial court delivered a careful and well reasoned judgment. It was alive to the many short comings in the complainant’s evidence and adopted a cautious approach in the evaluation and assessment of her testimony. The trial court’s acceptance of her evidence as being credible and reliable is challenged on the basis that her evidence was far from lucid, in fact contradictory and improbable. The criticism is unwarranted. The complainant gave a detailed and coherent account of the events which unfolded that evening in contradistinction to the appellant whose evidence the trial court correctly rejected. It is clear from the evidence that having engineered the absence of Mandy from the house the appellant, under the pretext that he wanted cigarettes, inveigled the complainant into accompanying him with the intention of having sexual intercourse with her. To that end, his opening gambit was to complain of Mandy’s infidelity presumably to garner a measure of support and when his amorous advances were spurned raped the complainant in his vehicle. In my judgment there is nothing improbable in the complainant’s version as to the manner in which she was raped. She described how the appellant lowered the backrest of the passenger seat prior to raping her. She was cross-examined at length on this issue and the confusion that arose resulted from the appellant’s attorneys’ failure to understand the complainant’s evidence. She consistently maintained that the appellant lowered the backrest but this seems to have been either deliberately ignored by the cross-examiner or misunderstood. It is clear from the complainant’s evidence that penetration in fact occurred. That penetration occurred is furthermore beyond question. Neither in the notice of application for leave to appeal nor on appeal before us was the point taken that penetration had not occurred.

[10] It is submitted that the complainant’s evidence that she was raped lacks corroboration and in support thereof reliance is placed on a passage of the judgment of Cloete JA in S v Gentle 2005 (1) SACR 420 (SCA) at 431a. The quoted passage is no authority for the proposition that to found a conviction there must be corroboration for the evidence of a complainant in an offence such as rape. The exercise the court in Gentle (supra) undertook was to examine those factors which the state submitted corroborated the complainant’s version that she had been raped and the judgment must be understood in that context, for at the conclusion of that exercise the learned judge held that those factors did not amount to corroborative evidence. It did not find that corroboration was a prerequisite.

[11] In the course of this judgment I referred to the complainant’s initial suppressal of the incident and the criticism directed at her hereanent. This is completely unwarranted. The notion that her omission to immediately divulge what had occurred deleteriously impacts on her veracity is untenable. Her explanation was thorough, detailed and demonstrates not only the dilemma she found herself in but the depth of her despair, then and subsequently. The incident clearly had a debilitating effect on her. I am unpersuaded therefore that there is any basis warranting interference with the trial court’s factual findings or conclusion that the state discharged the onus resting upon it.

Sentence

[12] It has repeatedly been emphasised that the imposition of sentence is discretionary. Absent recognised grounds warranting interference the sentence must stand. It is not suggested that the court a quo misdirected itself in any way. The submission advanced is that the sentence imposed is so disparate to that which we, sitting as a court of first instance would have imposed, that interference is warranted. The ordained sentence for raping a minor is life imprisonment. It appears from the judgment of the court a quo that the judge had regard to the fact that the complainant was almost 16 years of age at the time of the occurrence of the offence and that the rape, whilst in itself an act of physical aggression, did not involve the infliction of further violence. In addition thereto the appellant’s personal circumstances influenced the court in concluding that the ordained sentence would be wholly inappropriate.

[15] The gravity of the offence however certainly called for the imposition of a lengthy custodial sentence. The imposition of that sentence was a prerogative of the court a quo and that sentence is not so disparate to that which I sitting as a court of first instance or on referral would have imposed. The appeal against the sentence is likewise without merit. In the result the following order will issue:

The appeal, both as regards the conviction and sentence is dismissed.

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D. CHETTY

JUDGE OF THE HIGH COURT

Pickering, J

I agree.

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J. D PICKERING

JUDGE OF THE HIGH COURT

Liebenberg, J

I agree.

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H.J LIEBENBERG

JUDGE OF THE HIGH COURT

Obo the Appellant: Adv Koekemoer

Obo the Respondent: Adv Henning

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