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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 21/10/2015

CASE NUMBER:  A645/2013

Samuael Ndubatha..............................................................................................................Appellant

and

The State............................................................................................................................Respondent

Judgment

STRYDOM AJ:

1. On 12 May 2013 the Appellant was convicted on a charge that he raped the complainant more than once and sentenced on 18 March 2013 to life imprisonment.  On 19 June 2013 the Appellant applied for leave to appeal against the sentence, which was granted by the court a quo. 

2. The Appellant’s Appeal against sentence was postponed on 4 November 2013 in order for the Appellant to seek Leave to Appeal from the Court a quo against his conviction.  During November 2013 the Appellant’s application for Leave to Appeal against his conviction was dismissed. 

3. The Appellant now relies on his automatic right of appeal in terms of section 309(1)(a) of the Criminal Procedure Act, 1977[1] read with section 10 and 43(2) of the Judicial Matters Amendment Act 42 of 2013 and appeals against both conviction and sentence.  Four previous convictions were proven against the Appellant, being: Resisting, hindering and obstructing a police member when he was exercising his powers; possession of dagga; theft and robbery.

Conviction.

4. Counsel for the Appellant submitted that the Appellant was charged with one account of rape and convicted on that basis.  The argument is ostensibly that the charge of more than one account of rape was not properly on the charge sheet and the Court a quo was not competent to find the Appellant guilty in that regard.  There is no merit in this argument.  There is no irregularity in the charge sheet[2] and the charge was clearly put to the Appellant at the commencement of the trial,[3] who was represented by Mr I Kruger of the Potchefstroom Justice Centre.

5. The Appellant was convicted on the following evidence:  The complainant testified that after she attended a funeral she went to a tavern, called Tata’s Inn, where she had a few drinks.  At about 19h00 to 19h15 she left the tavern and started to walk to her home.  On the home way she met the Appellant, who was known to her by sight.  The Appellant shouted at the complainant:  “Where are you going to, you bitch”.  She responded that the Appellant must leave her alone.  Instead he follow the complainant to a Methodist Church were there is a passage.  The passage at the Methodist Church, as will appear hereafter is of vital importance.  At this place the accused grabbed the Complainant from behind and she fell to the ground.  The Appellant slapped and kicked her and then pulled her for a distance.  She saw two boys and screamed for help, but they refused.  These boys are unknown to her.  Near the St Johns Church the Appellant dragged the Complainant into bushes, ordered her to take off her panties, while threatening her with a broken beer bottle.  It was part of the physical evidence that the Complainant had cuts on her hands from the bottle.  The Appellant then lowered his pants to his knees and informed the Complainant that he wanted to have sex with her.  She refused.  He then kissed her without her consent and raped her three times.  After each time he had sexual intercourse with the Complainant, the Appellant took a break of about two minutes.  After the he raped the Complainant the first time he walked around.  She was frightful and just lied still. After the second time he had sexual intercourse with her, the Appellant lied still beside her. After he raped her the third time, the Appellant left her in the bushes and went on his way.  The Complainant later that evening, apparently after 24h00, went home.  She reported the rape to the South African Police services the next morning.  A female Police Officer, who also testified, took the Complainant to the hospital were she received treatment.  The necessary medical examinations were done by Dr Pheto.   Dr Pheto’s findings and observations[4] were submitted as evidence by agreement between the parties.  Apart from several injuries that were recorded Dr Pheto also observed dry semen around the Complainant’s vagina.  No DNA tests were submitted by the prosecution. 

The Appellant testified that he attended the same funeral as the Complainant and also went to the same tavern thereafter.  He did not know the Complainant. However, at the tavern the Complainant asked him to buy her a beer, which he did.  The Complainant thereafter asked him to walk with her, to her home.  He accompanied her to the passage at Methodist Church but not further.  The Appellant left the Complainant at the Methodist Church for no apparent reason. He denied that he had intercourse with the Complainant and in particular that he raped her.

6. The trial Court accepted the evidence of the Complainant and found the Appellant guilty as charged.  Counsel for the Appellant argued that the State Prosecutor led the Complainant to testify that the Appellant ejaculated after each time he had sexual intercourse with her.  Accordingly the Court a quo should have disallowed that part of the evidence or place no evidentiary weight on the evidence.  Had it done so, it was argued, it would have founded that the Appellant had only one intention and that was to rape the Complainant.  The Appellant did not have the intention to rape the Complainant more than once.  The three times he had sexual intercourse with the Complainant should thus be viewed as one act of rape as the complainant was in one constant position. 

7. Ejaculation is not a requirement for rape.[5]  The essential requirement is penis penetration of a female by the culprit without the female’s consent.[6] Even if the Complainant’s evidence in respect of the ejaculation is ignored, the evidence that the Appellant took a break of about 2 minutes after each time he had sexual intercourse with the Complainant, still remains.  The Complainant’s evidence pictures three occurrences on non-consensual sex.  It is so that the trial court did not expressly find the Appellant guilty of more than one account of rape.  It is however legally sufficient that it found the Appellant guilty as charged.  I am satisfied that there is no basis to conclude the Court a quo erred when it found the Appellant guilty of more than one account of rape of the Complainant.

Sentence.

8. This Court has limited powers to interfere with a sentence imposed by the Court a quo.  In order to interfere with the sentence the Appellant needs to demonstrate to this Court that the Court a quo misdirected itself; or erred in a material respect; or imposed a sentence that is so improper and severe that it causes a sense of shock.[7]

9. Schedule 2, Part 1 of Act 105 of 1997 (as amended) prescribes a minimum sentence of Life Imprisonment if a person is convicted of rape when committed in circumstances where the victim was raped more than once whether by the accused or any co-perpetrator or accomplice, unless the court is, in terms of section 51(3)(a) satisfied that substantial and compelling circumstances exist which justify the imposition of a lessor sentence.

10. This court cannot find fault with the conclusion of the court a quo that there are no exceptional circumstances that will permit it to impose a lessor sentence than the prescribed minimum sentence.  In fact the Court found that the Appellant behaved like an animal when he raped the Complainant three times with total disregard for her dignity.  After he raped her, the Appellant just left her in the bush.  He showed no remorse of any kind during the trial, strenuously denying that he raped the Complainant.  The crime the Appellant committed is shocking, the sentence in accordance with the law and appropriate.  There is no basis that his Court should interfere with the sentence imposed by the Court a quo. There is nothing unique in the appellant’s personal circumstances to justify deviation from the prescribed minimum sentence.

ORDER

In the result the following order is made:

1. The Appeal against conviction and sentence is dismissed.

J.S. STRYDOM

ACTING JUDGE OF THE HIGH COURT

D S MOLEFE

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

Appearances:

Counsel for the Applicant: Miss MMP Masete

Instructed by: Pretoria Justice Centre.

Counsel for the respondents: Adv. PCB Luyt

Instructed by: Director of Public Prosecutions, Pretoria

Date Heard: 8 October 2015

Date of Judgment:

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