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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

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)   REPORTABLE: YES/NO

(2)   OF INTEREST TO THE JUDGES: YES/NO

(3)   REVISED

1/10/2020

                                                                       CASE NO: A247/2019

In the matter between:

 

NQOTHULA SIBUSISO                                                                         Appellant

 

 and

 

THE STATE                                                                                           Respondent  

 

                                  

J U D G M E N T

 

LEDWABA AJ

 

Introduction

[1]     In terms of section 309 of the Criminal Procedure Act 51 of 1977(the CPA) as emended by section 10 of the Judicial Matters Amendment Act 42 of 2013, the appellant is appealing against the conviction and sentence by the Regional Court Magistrate JF Steyn sitting at the Regional Court, Oberholzer. The charge sheet states that on or about the 9^th December 2012 and at or near Khutsong, in the Regional District of Gauteng, the appellant committed the offences of kidnapping and rape.

[2]     In respect of the kidnapping charge, it is alleged that the appellant unlawfully and intentionally deprived R[....] M[….] (R[....]/the complainant) of her freedom of movement by means of forcefully and against her will, taking her to a veld near Gugulethu, Khutsong.

[3]     The rape charge is stated to be an act in contravention of section 3 read with sections 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual Offences and Related Matters) Act 32 of 2007  read with sections  256, 257 and 261 of the CPA; the provisions of section 51, 5 and schedule 2  of the Criminal Law Amendment Act 105 of 1997 (the Act) as amended as well as section 92(2) and 94 of the CPA. The charge sheet states that the appellant did unlawfully and intentionally commit an act of sexual penetration with a female person, to wit, R[....] (19 years) by having sexual intercourse without her consent.

[4]     The appellant was sentenced to five years imprisonment in respect of the kidnapping charge and life imprisonment in respect of rape charge, hence the automatic right of appeal against  sentence. The two sentences were ordered to run concurrently. 

[5]     The appellant was legally represented and before he was requested to plead to the charges, the court explained to him the provisions of the minimum sentence to the effect that in the absence of substantial and compelling circumstances in respect of the rape charge, he could be sentenced to life imprisonment.  Competent verdicts were also explained to him. He pleaded not guilty to both charges. 

The Background – The state’s version:

[6]     As witnesses, the state called Constable Dingiswayo (Dingiswayo), Sergeant Napai (Napai, Thabo L[....] (L[....]) and the complainant.

[7]     Dingiswayo is the arresting officer of nine years’ experience. Having received a complaint and the suspect’s description as a person with a lot of tattoos on his face, he found the appellant at Margaret tavern and requested him to come with him to the complainant’s place. At the complainant’s place, she identified the appellant as the person who committed the offences. He was arrested and when told about the reason for his arrest, his response was that the complainant was his girlfriend.  He was taken and detained in the police cells.

[8]     Napai, a thirteen years experienced police officer and the investigation officer in this matter was at that time stationed at Carletonville police station. While on standby, she received a call about the alleged offences of kidnapping and rape. She was later told that the complainant, her boyfriend and another witness were at the police station. The complainant told her that she was with her boyfriend on their way home when she realised that she had forgotten her umbrella at Tsungo tavern. On their way to Tsungo place they were attacked by a group of men armed with a knife, a panga and an empty bottle. The complainant tried to run away but fell down. Four of the men took her, dragged her behind the police station to the open veld and took turns in raping her without using condoms. The appellant then apparently emerged onto the scene after the gang rape and was addressed by the others as “Boss”. He then took her to his shack in Rivonia Extension 3 where he undressed and raped her again. The complainant described the suspect who raped her at the shack as having a lot of tattoos and was able to see his face. She observed these while her attacker was busy raping her. Before the appellant removed her to his shack, the men argued among themselves as to whether to kill her. She testified that the complainant had told her that she had told the appellant she feared the rape might result in her becoming pregnant and the appellant promised to bring her cellphone back. She then arrested the appellant and took the complaint for DNA sampling.   As she was not present, she could not comment on the version that the appellant met the complainant at the tavern, later in the street and they agreed to go together to his places to have consensual sex. She denied that the following day the appellant took the complaint half way to her home because according to the complainant’s statement, the appellant told her to leave because his girlfriend by the name of Kilebogile was coming to the shack. She denied the version that when they went to bed that evening, Kilebogile slept on the bed while the appellant and the complainant slept on the mattress on the floor.     

[9]     L[....] is the complainant’s boyfriend. He testified that around 14h00-15h00 he met the complainant. She told him that she was going out and they agreed that she would call him to come and collect her once she was done with what she was going to do.  He testified that while at Lashilwe’s place, the complainant called and requested him to come to collect her from Tsungo’ place. Accompanied by his friend Doctor, they went to collect the complainant with her friend D[....] M[....] (M[....]). On their way from taking M[....] half way to her home, they met about twelve men who inquired from him whether the complaint was his girlfriend and when he answered in the positive, one of them took out a knife and the other one an empty bottle. As they ran away, the men apprehended the complainant. He went to his home not far from there and called his brother to accompany him to report the kidnaping case at the police station. The police accompanied him to the nearby squatter camp but they could not find the complainant. He met the complainant the following day on her way to the police station. He knew the appellant by sight only. He denied that the appellant is the complainant’s girlfriend. He disputed the allegation stated on the J88 form that at around 13h00 that day and before meeting him, the complainant had a sexual intercourse with someone else. He replied that the complainant and himself were staying in their respective parental homes, with the complainant staying the second house from his home. He stated that they did not have sex before the complainant went to Tsungu Tavern.

[10]   The complainant testified in camera that on that day her friend M[....] visited her home and they decided to go to Tsungo’s tavern where they drank Strongbow “wines”. She communicated then with her boyfriend and they agreed to meet at the robot next to the police station for him to accompany M[....] to her home. Her boyfriend came with his friend Doctor and after they had walked M[....] half way to her home, she went back to Tsungu tavern with her boyfriend to collect her umbrella which she had left behind.  While they were on their way to collect her umbrella they met a group of young men who confronted them. One of them had a knife and another had a bottle. She tried to run away but the next moment she noticed she was lying on the ground with the men undressing her clothes. One of them took off her shoes and the other one placed a knife on her neck ordering her to keep quiet. They chased her boyfriend away and took turns raping her. They took her by force and walked her across a stream. As they were walking and quarrelling amongst themselves, the appellant appeared and one of them gave him the knife. At a certain ditch they said the appellant should remain with her while the others left. One of the group wanted the appellant to rape and kill her, while two others were against the idea. When appellant and the complainant remained behind at the ditch, the appellant wanted to rape her but the other men then came back and stopped him.  One group of the men then left again and the other group remained with the appellant. She does not know what happened to those who remained as they disappeared at some stage. The appellant then took her to his shack where he unlocked it and pushed her inside. He locked the shack from outside with a chain and left. The group came back and knocked at the shack but she kept quiet until they left. The appellant came back to the shack and used another entrance to enter the shack. He ordered her to undress and when she resisted, he produced the same knife he had produced earlier in the veld and threatened her with it. He undressed her skirt and raped her twice.  It was in the early hours of the morning around 2am. He apologised on behalf of the group and acted as if she was his girlfriend. When she asked the appellant about her cellphone which was taken by the men, he replied that he knew nothing about it and requested her cellphone number. She gave him her friend’s number. The appellant then loaned her some shoes and a “top” to wear. She asked for taxi money and he said he did not have it.  He suggested that they go to his friends for taxi money but she refused, fearing that they could rape her again. He took her half way and said his girlfriend was coming to his place. He did not want her to look back and see the shack properly. She could see that she was in the vicinity of her friend M[....]’s place but was so confused that she lost her way. She was helped by another man to find M[....]’s place. At M[....]’s place she wanted to wash herself but M[....] advised her against it as that could tamper with evidence. They went to report the matter to the police. After opening the case she was taken to Sybrand van Niekerk hospital for tests and then taken home. It was the first time that she had  seen the appellant. She had not seen him at Tsungu tavern.

[11]   Her version was tested during cross-examination. She replied that there was nobody in the shack when they had gotten there and does not know the appellant’s girlfriend.  She could not remember if they had sexual intercourse with her boyfriend while at his home before she went to Tsungu’s place. At that time, she only had the one.

[12]   She replied to a question that when she was raped by the four men in the first rape incident in the veld, the appellant was not there but came and joined the group and her observation was that he was the leader of the group as they were addressing him as the “Boss” and that is why they left her with him to rape and kill her.  She further replied that at one point as they were walking, they saw a police van at a distant on the tar road but she was then “grabbed away”. She also replied that her shoes were later collected by her boyfriend where she left them when she had fallen down and she had only borrowed the appellant’s clothing items because it was cold the following morning. She left the appellant’s items at M[....]’s place and learned that M[....] had thrown the shoes away. The “top” could not be located as they had changed the residential place.

[13]   The appellant’s version was put to her upon which she denied that her relationship with the appellant had started in 2012 when they met at a tavern and exchanged contact details. She denied that on the day of the incident, the appellant met her at Tsungu tavern while she was in the company of her two friends and when he gave her R100.00 at her request to buy liquor. She denied that he later met her after disappearing where she was assaulted and he rescued her before they went to his place where they were let in by his girlfriend Kelebogile. She denied they had consensual intercourse once on the floor while the appellant’s girlfriend was sleeping on the bed.   

[14]   She replied that during that week she had sexual intercourse with her boyfriend. She denied the allegation stated in the J88 form that she had sexual intercourse around 13h00 on the date of the incident.

[15]   The witness M[....] had passed away by the time of the trial. In a trial within the trial and in terms of section 3(1)(c) of the Law of Evidence Act 45 of 1988, the state successfully applied for the admittance of the deceased witness’ hearsay evidence made shortly after the incident in the form of an affidavit. The contents of the affidavit corroborated the complainant’s evidence and that of her boyfriend L[....]

The appellant’s version:

[16]   The appellant testified that the complaint is his girlfriend. They allegedly met previously at Granny’s tavern in Skoppas section and on the day of the incident, he met her at Tsungu tavern in the company of her friend D[....]. She requested him to buy them liquor and he gave her R100.00. She agreed to go with him to his place. After drinking some liquor and when he later looked for her, he could not find her and decided to go home. He found her on the street with one young man busy slapping her with open hands. Her assailant ran away and she agreed to go with him to his shack. At the shack they unexpectedly found his girlfriend Kelebogile. The complainant argued with Kelebogile and he intervened. He spent the night with the complainant sleeping on the matrass based sponge on the floor while Kelebogile slept on the bed. He had one round of sex with the complaint. Fearing that there could be a fight if Kelebogile woke up before the complainant had left, he woke the complainant up around 5 am. The complaint borrowed his jersey and also gave him her cellphone number. He denied that he gave her shoes. He walked with her for a distance between extension 3 and Christ Hani section.  He denied having apologized on behalf of the complainant’s attackers, having undertaken to return her cellphone and being told by the complainant that she felt like being pregnant as a result of being gang raped. The appellant denied having arrived where the complainant was being raped and being referred as “boss”. He denied having pointed a knife at the complainant and raped her. His view was that the complainant had reported him because she unexpectedly found his girlfriend at his place.  

The trial court’s findings:

[17]   Among others, the trial court found:

 (a)      that there was one contradiction with J88 medical record which recorded that the complainant had previous intercourse during the day around 13h00. Both the complainant and her boyfriend L[....] disputed the contents of the report in this regard;

(b)       that instead of simply saying the appellant met her on the street and took her to his home, there was no reason for the complainant to create a complicated version of her being kidnapped and gang raped before the appellant joining the group in the manner he did and proceeded to kidnap her to the shack and rape her;

(c)       it strange that the appellant would accidentally meet the complainant at the tavern, buy her beers and the complainant would have left without him noticing that;

(d)     it improbable that having been recently gang raped by four men, the complainant would have consented to have sex with the appellant and again in the presence of the appellant’s girlfriend sleeping on the bed in the same shack;

(e)     it also improbable that the appellant having allegedly succeeded in stopping the argument between the complainant and Kelebogile and the alleged two girlfriends having spent the night in the same shack, he would still fear that Kelebogile would still fight the complainant the next morning that he had to remove the complainant from the shack;

(f) it strange that the appellant did not know the complainant’s address despite his claim that they are in a love relationship;

(g)     it strange that the appellant was not interested to establish why his alleged girlfriend was slapped with open hands by a stranger; and  

(h)     the appellant did not satisfactorily answer all the questions put to him.

Evaluation:

[18]   The record of the court proceedings indicates that some of the record is missing and that some were completed with a black pen. Despite these missing portions, the proceedings can be followed from the record and none of the parties have indicated that this appeal cannot be finalised without the missing portions. The missing portions are not of such a nature or extent that this will prevent the fair dealing with this appeal. 

[19]   The state bears the onus of proving its case beyond reasonable doubt. If the accused’s version is found to be reasonably possibly true, she or he is entitled to the benefit of the doubt and acquittal.[1]

[20]   The obligation of the state to prove its case beyond reasonable does not mean it is obliged to close every avenue of escape which may be said to be open to an accused. It is sufficient for the state to produce evidence by means of which such high degree of probability is raised that the ordinary reasonable man, after mature consideration, concludes that there exists no doubt that an accused has committed the crime charged.[2]  

[21]   Unless an appeal court finds that a trial court has misdirected itself, it will be hesitant to interfere with its factual findings and the evaluation of the evidence.[3] This means that the powers of an appeal court to interfere with the findings of fact of the trial court are limited to where a trial court has misdirected itself.[4]

[22]   The identity of the appellant is not in dispute. He was correctly identified by the complainant and has admitted to having sexual intercourse with the complainant on the date of the incident. The evidence that the complaint and the appellant went to the appellant’s place, spent the night together and had sexual intercourse is common cause. At issue is whether the appellant forced the complainant to go with him to his place and then had sexual intercourse with her against her will. Simply put the question is whether there was rape or consensual intercourse.

[23]   The appellant’s submission is that he was not part of the group when the complainant was taken into the veld and that he appeared on the scene after the gang rape. The state’s kidnapping charge relates to the movement of the complainant to the appellant’s shack and the question is whether this was against her will.

[24]   With regard to the rape charge, the appellant submits that the state failed to prove that he was present and participated in the rape by a group of men. It is common cause that the appellant came into the scene after the men had gang raped the complainant. It is also the state’s case that the appellant was prevented from raping the complainant at a ditch before they arrived at the shack. My understanding is that the rape charge is based on what happened inside the appellant’s shack. It is common cause that the appellant had sexual intercourse with the complainant in the shack. At issue is whether it was consensual and the number of times that occurred. While the appellant says it happened once with the complainant’s consent, the complainant says it happened twice without her consent and at knife point.  The appellant submits that the complainant’s statement that he “raped me twice” was not pursued for clarity as to whether the allegation is that the complainant was penetrated twice and not necessarily raped twice. He submits that the state failed to prove beyond reasonable doubt that he committed two acts of rape. He submits that repeated acts of sexual penetration do not necessarily constitute a new offence of rape.

[25]   The state case is that with one encounter with the complainant, the appellant raped the complainant more than once as envisaged in section 51(1) read with part 1 of schedule 2 of the Act.

[26]   The Legislature envisaged an accused being charged with one count of rape if, in the course of his encounter with his victim, he penetrates her more than once. The repeated penetration of a victim is what aggravates the perpetration of a rape and renders an accused liable for life imprisonment. It is the multiple acts of penetration that attracts life sentence.[5]   The correct way of charging an accused who raped the victim more than once in the course of a single encounter is to charge such an accused with one count of rape.[6]  Without any of these legal arguments having been explained to the complainant, the evidence that she volunteered on her own, was that the appellant raped her twice. There is no basis to interpret the complainant’s own voluntary statement in any other way than how she puts it. There is no basis to interrogate what she meant by being raped twice to determine whether there was muiltiple penetration, ejaculation or interruptions. There is thus no basis to complain that at the trial stage, there was a need to clarify the complainant’s statement and there is certainly no basis to do such clarification at this appeal stage. The rape offence was committed in the circumstances where the complainant was raped more than once, with life imprisonment being an appropriate sentence. The appellant was thus correctly charged and convicted of raping the complainant more than once.

[27]   From the time the charges were put to the appellant, he knew that he was facing a sexual offence charge read with section 51(1) of the Act. The parties conducted the hearing on the understanding that the appellant was facing a rape charge committed more than once. The appellant knew that absent substantial and compelling circumstances, he was facing life imprisonment if found guilty.[7]  He was not prejudiced in the conduct of his defence and there was no trial related prejudice.

[28]   There is no basis to interfere with the court’s finding that the complainant was taken by the appellant to his shack against her will. This constitutes kidnapping by the appellant. The appellant’s allegation that she laid complaints because she unexpectedly found his girlfriend at his place does not make sense.

 [29] The state rightly points out the improbability of the two girlfriends accepting to be made to spend the night with the appellant next to each other after the protestation by Kelebogile for the appellant having brought another girlfriend to the shack. The possibility of consensual sexual intercourse in that set up is too hard to believe. It is also hard to believe that having argued with the complainant, Kelebogile would be so fast asleep in the midst of sexual intercourse between the appellant and the complainant that she did not even thereafter hear them leaving the shack at 5 am.

[30]   The state correctly submits that the appellant could not explain why did he not ask the complainant the identity of the person who was slapping her with open hands and the reason for the assault.

[31]   The appellant could also not explain how his girlfriend Kelebogile came to the terms and agreed to sleep on the bed next to him sleeping with the complainant after the two ladies argued over their alleged relationship with him. He also could not explain why did he became worried that if Kelebogile woke up before he left with the complainant in the early hours of the morning she would have fought with the complainant. 

[32]   The state further correctly submits that the defence of the alleged love relationship between the appellant and the complainant and alleged consensual sexual intercourse is such a solid defence that the appellant would have proffered it immediately on his arrest and would not have waited to only disclose it in court at the trial.

 [33]  The state correctly submits that the appellant’s explanation is not in line with the totality of the adduced evidence and was rightly rejected.

[34]   On behalf of the appellant, it is submitted that the appellant was convicted on the basis of the single witness apparently without applying the required cautionary rules. A single witness is basically where, even if the state calls two or more witness, a conviction rests on the testimony of single witness.

[35]   The principle in section 208  of the CPA is that the trial court may convict on the evidence of single witness provided that such evidence is satisfactory in every material respect.[8] In assessing the evidence of a single witness, a trial court must look for any feature which corroborates such evidence in increasing its confidence in convicting the accused.[9]

[36]   It is correct that the complainant is a single witness in respect of both charges. Her boyfriend L[....] witnessed the first attack when the appellant was still not on the first crime scene. The appellant came onto the scene after the complainant was gang raped and he was given a knife to rape and kill her. The trial court was conscious of the fact that the appellant’s conviction depended on the evidence of the complainant on this aspect and that it must be approached with caution. It found that there were several points of corroboration in respect of what had happened before the kidnapping and rape incidents.  There is corroboration that the complainant and her late friend M[....] went to Tsungu tavern, drank some beers and were later joined by L[....] and his friend to take M[....] half way to her home. The complainant L[....] corroborated each other about the attack by a group of men and the complainant’s kidnapping by these men after they took the deceased half-way to her home and while they were on their way back to Tsungu place to collect the complainant’s umbrella.

[37]   Had the appellant’s version been the true facts, then the complainant would have no reason to implicate him, being on his version her boyfriend, after he had rescued her from being gang raped. This version is too fanciful to be reasonably possibly true.

 [38]  There is no basis to interfere with and overturn the trial court’s findings of fact.  The appeal on this aspect should fail and the appellant’s conviction stands to be confirmed.

Sentence:

[39]   The appellant has a previous assault conviction where he was sentenced to eight months imprisonment and declared unfit to possess firearm.

[40]   By agreement between the parties, the victim impact statement dated the 17^th November 2017 was admitted into evidence. The statement is to the effect that the complainant still feels the effect of the rape. She is generally depressed, feels lonely and isolated.

[41]   The appellant’s personal circumstances are that he was thirty years old at the time, unemployed, unmarried but staying with his girlfriend and their two children.  Had passed standard seven.

[42]   A knife was used to threaten the complainant. As she submitted to the threat, she did not sustain serious injuries.

[43]   The court found no substantial and compelling circumstances.

[44]   As the appellant had raped the complainant more than once, absent substantial and compelling circumstances, life imprisonment is the prescribed minimum sentence.[10]  Given the circumstances of this case the trial court correctly found no substantial and compelling circumstances justifying a departure from the prescribed minimum sentence of life imprisonment.

[45]   Order:

1.   The appeal is dismissed.

2.   The sentences of five years and life imprisonment imposed by the court of first instance in respect of kidnapping and rape charges respectfully are confirmed. The sentences are to run concurrently.

                                               

         

              LGP LEDWABA

                                                        Acting Judge of the High Court

      Gauteng Division, Pretoria

 

 

I agree and it is so ordered.

 

 

                                                                                N DAVIS

                                                               Judge of the High Court

                                                              Gauteng Division, Pretoria

 

 

Date of hearing:                     20^th August 2020.

Judgement delivered on:

       

APPEARANCES

For the Appellant:                 Miss MMP Masete

Instructed by:                        Pretoria Justice Centre, Pretoria

For the Respondent:              Adv. SD Ngobeni

Instructed by:                        The Director of Public Prosecution, Pretoria

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