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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

(NORTH GAUTENG HIGH COURT, PRETORIA)

Case Number: A179/2011

Date:02/03/2012

In the matter between:

DAVID DANISILE JIM.............................................................................................APPELLANT

And

THE STATE.........................................................................................................RESPONDENT

CORAM:POTTERILL, J et KUBUSHI, AJ

HEARD ON:1 MARCH 2012

DELIVERED ON:2 MARCH 2012

KUBUSHI, AJ

[1] This is an appeal from the Regional Court, Potchefstroom. The appellant was charged and convicted of the rape of a seventeen-year-old woman. On 28 April 2010 he was sentenced to life imprisonment. The appellant had an automatic right of appeal and this appeal is therefore against both conviction and sentence.

[2] The state's evidence is that on the night of the 16 February 2007, between 19h30 and 20h30, the complainant M M, was accosted in the street by the appellant and another man unknown to the complainant. The complainant was in the company of two other persons, M M (M) and O M (M), her niece. The appellant and the man grabbed the complainant, dragged her and forcibly took her with them to a place next to the Sarafina hall. At the hall they threatened her with a knife, forced her to lie down and instructed her to remove her trousers where they then interchangeably, twice each, had non-consensual intercourse with her. M and M wanted to assist the complainant but were afraid.

[3] At the time of this incident the complainant did not know the appellant. M did not see the appellant's face because it was dark and could therefore not identify him. The appellant was however identified by M. Neither of the two witnessed the rape scene and could therefore not testify about it.

[4] Another person who saw the complainant being dragged away, was pastor Timothy Songezo Majola (the pastor). He testified that at the time he saw the complainant being dragged away by the two men he did not recognise the two men nor did he recognise the women being dragged away. He was only told later by M that the women being dragged away was the complainant. He assisted in a search for the complainant.

[5] Elisa Nokandela, a neighbour, saw the complainant after the incident. She testified that the complainant was crying, her hair was dishevelled and had grass on it and her trousers were dirty. The witness is the first person to whom the complainant reported the rape. The complainant reported the incident to the police and was taken for medical examination.

[6] The appellant in his defence, admitted that he had sexual intercourse with the complainant on that day but contended that it was with her consent and that he had known the complainant for two years before that incident.

AD CONVICTION

[7] In respect of the conviction, the appellant's ground of appeal was that the magistrate erred in finding that the state had proved the guilt of the appellant beyond a reasonable doubt. According to the appellant the court does not have to believe his version as truthful but as reasonably possibly true. It was submitted that the court had no reason to reject the appellant's version as it did not have any inherent improbabilities and had no material contradictions.

[8] The respondent is opposing the appeal and submitted that the court a quo did not err in finding that the state had proved its case beyond reasonable doubt. I agree.

[9] My view is that the trial court was correct in rejecting the appellant's version as not being reasonably possibly true. Firstly, because of the contradictions in his evidence. He testified in chief that he met with the complainant for the first time at a shopping complex - this was also the version that was put to the complainant - but under cross-examination he said he met her for the first time at the market. He also testified that at the time Christina came into the room where they were relaxing they were lying on the bed but under cross-examination he was adamant that they were sitting on the bed. Again in his evidence in chief he did not mention that he had to run after the complainant to give her the shoes she had forgotten at his place, he had to be reminded of this fact under cross-examination. He also testified that the complainant was there when he was arrested, which fact the complainant denied, but it was not put to her by his attorney. He further contradicted himself in respect of how they met with the complainant to carry on their secret affair. He first said they met at the market but when it was put to him that it was improbable that they could meet at a public place like a market, he adapted his story and said they met behind one of the shacks.

[10] Secondly the appellant's version is to me inherently improbable. His testimony that he had sexual intercourse with the complainant whilst the door was closed but not locked is highly improbable. He testified that C knocked on the door and walked in. In my mind, it is highly improbable that they could have had sexual intercourse with the door unlocked. Of crucial importance is the time at which he said the complainant was with him. There are four witnesses who testified that at the time the appellant alleged the complainant was with him, she was in fact with them. The trial magistrate, found correctly so, that when considering the times involved, it is not possible that the complainant could have been with the appellant in his shack or that the complainant had been at both places. What also militates against the appellant's version is that when he parted with the complainant they were on good terms. This does not explain why the complainant would then lay a charge of rape against him. To my mind, this story cannot be regarded as reasonably possibly true and the trial magistrate was correct in rejecting it.

[11] With his defence the appellant had placed two issues in dispute, which the state had to prove, namely, his identity and the sexual intercourse without the consent of the complainant. To prove these two issues, the state relied on the evidence of two cardinal witnesses, namely, the complainant in respect of the commission of the offence and M in respect of the identity of the appellant.

[12] The other three witnesses could not identify the appellant nor did they see when the complainant was raped. However, the evidence of the pastor and that of M confirmed that at the time in question the complainant was not with the appellant in his shack but was at the scene where she was allegedly raped. The testimony of Elisa Nokandela confirmed the state in which the complainant was when she arrived home, which showed that she had been attacked.

[13] As regards the commission of the offence. I agree with the trial magistrate on this point. The evidence does prove that the complainant was raped. When she arrived home, her hair was tousled and had grass on it. Her clothes were dirty and she had injuries on her back. The doctor also found grass on her private parts. The J88 medical report showed that the complainant suffered injuries to her vagina - there were tears of the forsa navicularis and the hymen was torn at 02:00, 10:00 and 8;00 positions. The doctor stated that vaginal penetration appeared to be by a blunt object. All these, to me, are indications that sexual intercourse was not by consent.

[14] The evidence showed that at the time of the commission of the offence the complainant did not know the appellant. The appellant was, however, identified by M. The trial court, rightly so, accepted the evidence of M in having correctly identified the appellant. M's testimony was that he knew the appellant before this incident. He had always seen him at a shebeen where he (M) played a machine and the appellant always came to drink liquor there. He also knows him by his nickname - he referred to him as Mtanzane, which is a name, which according to M, the appellant responds to when other people call him. On the night in question it was not really dark and he (M) was able to see the clothes the appellant was wearing. The appellant was wearing an orange T-shirt, a khaki trousers and a blue spottie hat- the complainant also confirmed this. He could positively identify the appellant because he saw his face when they went passed each other in the footpath. When he later met with the appellant he was still wearing the same clothing. When the appellant spoke to M asking for dagga he (M) was standing about 2 metres from them. I am therefore satisfied that M could have not mistakenly identified the appellant.

[15] I am, therefore, satisfied that the state has proved its case beyond reasonable doubt.

AD SENTENCE

[16] The appellant's grounds of appeal as regards the sentence was that the sentence imposed was inappropriate and that the trial court ought to have made a finding that there were substantial and compelling circumstances which would have persuaded the trial court to impose a lesser sentence. The respondent on the other hand submitted that the sentence imposed by the trial court must be confirmed because it cannot be said that the trial court erred in any material respect and neither can it be said that the sentence of life imprisonment in this case was shockingly severe in the circumstances.

[17] At the hearing of the appeal, counsel for the appellant submitted that the trial magistrate had erred in sentencing the appellant in terms of section 51 of the Criminal Law Amendment Act, 105 of 1997 as amended ("the Act") because the appellant was not made aware at the outset of the trial that he will be sentenced in terms of the Act. The respondent's counsel conceded to this submission.

[18] It is now established law that where the state intends relying upon the sentencing regime created by the Act a fair trial will generally demand that its intention be brought pertinently to the attention of the accused person at the outset of the trial. Where the trial would be unfair if the provisions of the Act are used, it stands to reason that the court will have to impose sentence in terms of its standard sentencing powers. See S v LEGOA 2003 (1) SACR 13 (SCA) at par 22 and S v SHABALALA 2006 (1) SACR 328 (N) at 331d.

[19] The record does show that the appellant, in this instance, was indeed not informed that the minimum sentence Act would be applied during sentencing. There was therefore a material misdirection by the trial court in sentencing the appellant in terms of the Act and this court has to look at sentence afresh.

[20] In terms of the Zinn triad an appropriate sentence should reflect the severity of the crime, while at the same time giving full consideration of all the mitigating and aggravating factors surrounding the person of the offender and should also have regard to or serve the interests of society. In addition the purposes of sentencing, namely, retribution, prevention, deterrence and rehabilitation, must also be taken into account when considering sentence. See S v ZINN 1969 (2) SA 537 (A) at 540G.

[21] One can never over emphasise the gravity of the offence of rape. In this instance the complainant was physically injured, in that he was made to lie on a tin of fish which grazed her. She also had tears to her hymen and the vagina was swollen. She was dragged against her will and threatened with a knife by two men. These may not be serious injuries but she was humiliated and degraded. As it is said rape constitutes a humiliating, degrading and brutal invasion of the privacy, dignity and the person of the victim. Even though in this instance, it was not proved that the complainant suffered any psychological trauma, this can however not be ruled out.

[22] The interests of society where such crimes have been committed must come first. The incidence of rape where a woman is randomly abducted from the streets by her assailants and then raped is becoming prevalent. This is shown by the alarming increase of this type of cases in our courts and also as reported in the media. It is my view that sentencing officers must take cognizance of this trend so that they must pass sentences that will have a deterrent effect.

[23] I considered the following personal circumstances of the appellant: the appellant is a man of 28 years, he has spent three years in custody awaiting trial, he is a first offender, and he attained only grade 9 at school.

[24] In aggravation of sentence I also had to consider the fact that the complainant was seventeen years old at the time of the rape and she was raped four times by the appellant and the unknown person he was with. The complainant suffered injuries. The appellant showed no remorse.

[25] Having considered all of the above I must pass a sentence that will prevent the commission of similar crimes and deter the appellant and other would be offenders. As is trite, an appropriate sentence must fit the crime, the offender and be in the interest of society. The appellant was found guilty of two counts of rape and in terms of the standard sentencing powers, a sentence must be passed for each count. As to the time you spent in prison awaiting trial, I have taken due cognisance of the sentiments expressed in BROFFI AND ANOTHER 2007 (2) SACR 56 (WLD).

[26] Accordingly I would make the following order:

26.1 The appeal against the conviction is dismissed.

26.2 The appeal against the sentence succeeds.

26.3 The sentence imposed by the trial court is set aside and replaced by the following:"a. 10 years imprisonment in respect of count1;

b. 10 years imprisonment in respect of count 2;

100. both sentences to be antedated to the 28
     April 2010; and

d. the sentences shall run concurrently in such a manner that the cumulative effect thereof is FIFTEEN (15) YEARS."

E. M. KUBUSHI, AJ

It is so ordered.

S. POTTERILL, J

On behalf of the appellant: Adv. Van As

Instructed by: Pretoria Justice Centre PRETORIA

On behalf of the respondent: Adv. P. Vorster

Instructed by:

The Director: Public Prosecutions PRETORIA

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