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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

“IN THE HIGH COURT OF SOUTH AFRICA”

NORTH WEST DIVISION, MAHIKENG

CASE NO. CA 68/2015

In the matter between:

J. S.                                                                                                                                 APPELLANT

and

THE STATE                                                                                                                 RESPONDENT

HENDRICKS AJP and Gutta J 

CRIMINAL APPEAL

GUTTA J.

A.      INTRODUCTION

[1] The appellant was arraigned at the Regional Division of North West held at Bafokeng on two counts, namely:

1.1     Assault with intent to do grievous bodily harm; and

1.2     Rape

[2] On the 14 September 2010, the court found that the rape involved the infliction of grievous bodily harm and convicted the appellant of rape under part 1 of schedule 2 of the Sexual Offence Act 32 of 2007.

[3] The appellant was sentenced to 20 years imprisonment.

[4] The appellant appeals both the conviction and sentence.

B.       CONDONATION

[5] The appellant applied for condonation for the late filing of the leave to appeal. The respondent did not oppose the application. This court after considering the application, granted the appellant’s application for condonation.

D.      EVIDENCE

[6] The complainant alleged that the appellant was her ex-boyfriend and her affair with the appellant had ended approximately one month before the 3 May 2008. On the 3 May 2008, she met the appellant at her place of residence and he insisted that he wanted to talk to her. As they entered the street at approximately 18:00 he grabbed her arm and hit her with an open hand and clenched fist on her face saying that she was contemptuous. He then pulled her to his place of residence.

[7] Inside his bedroom, he hit her with an open hand and fist and kicked her on her body. He took her leather belt and beat her with it on her back. He pushed her onto the bed where he throlled her with both hands and threatened to kill her and throw her into the toilet. He pulled her off the bed and she hit her head on the ground where he kicked her on both sides of her ribs. He removed her clothing and burnt her with a hot iron on her right thigh. He wanted to burn her face but she blocked it. He threatened to kill her and she pleaded with him not to kill her. She was menstruating and he removed her tampon and had sexual intercourse with her against her will. She pleaded with him to go home as her father will be angry and promised him that she will not lay charges.

[8] The complainant had terminated her relationship with the appellant because he used to assault her. She said she did not scream for help because she knew from previous incidents if she fought or screamed he would beat her further.

[9] The State called the complainant’s cousin N. R.. She said on the 3 May 2008 she was staying with the complainant. The complainant arrived home at 22:00 and was crying and not able to talk. The complainant told her that she was assaulted by the appellant. The complainant’s eyes were smaller and she had scratches on her neck and she assisted her to undress and saw her thigh was burnt. The complainant told her that the appellant assaulted her and burnt her on the thigh with an iron and he removed her lillet tampon from her vagina and raped her.

[10] The next witness for the State was G. K., the complainant’s friend. She observed the appellant and the complainant walking on the 3 May 2008 from the complainant’s home. She said the appellant was holding the complainant’s hand while the complainant’s hand was on her forehead. The complainant did not utter a word and was not screaming. They walked normally.

[11] Dr Ntaupa Kotela testified about the examination he conducted on the complainant and his findings. He said the complainant was sexually assaulted by her boyfriend. He noticed that the complainant had a black eye which meant that she had been physically assaulted. She had bruises on her neck that indicated that she had been strangled and she had an abrasion on her nose. She had a burn on her right upper thigh. In respect of the gynaecological examination, he said her hymen was absent which indicated that she was a sexually active person and he found a whiter discharge which smelled of semen. He concluded that the complainant had been sexually assaulted and physically assaulted.

[12] The appellant’s testimony in the trial court was that the complainant was his girlfriend and they were lovers. He said he was living with the complainant for about a year at her parental home and the complainant’s father encouraged him to live there as he was bringing his daughter home late. He said on the 3 May 2008 he received a call from one David that the complainant is smoking a drug called ‘Rock’. He went the complainant’s parental home where he and the complainant spent some time together in the yard and thereafter proceeded to his home where they had consensual sexual intercourse. After sleeping together he was passing the complainant her clothing when a plastic containing ‘Rock’ fell from her garments. He became angry and switched the iron on and demanded that she tell him the truth. He then burnt her with the hot iron on her thigh. She was crying and admitted that she bought ‘Rock’ from Segweli. He told her that he will forgive her. He took a cloth with warm water to wipe her and reaffirmed his love for her. He denied assaulting her outside or in the bedroom but later he admitted assaulting her once with an open hand after he burnt her. He also said he used to have sexual intercourse with her while she was menstruating. He said one V. who lived at his home saw them after he had assaulted the complainant and he chatted to them before he returned to his room.

[13] The defence called M. D. M. also known as V.. He was a tenant at the appellant’s residence. He alleged that on the 3 May 2008, the complainant who is his friend was in a love relationship with the appellant. He said he, the appellant, the complainant, his girlfriend, one China and China’s girlfriend were supposed to attend the Sama awards at Sun City. He met the appellant and the complainant at the shop and the three of them proceeded to the appellant’s home where the appellant and complainant went to the bedroom. After 30 to 35 minutes he heard them fighting. He shouted and enquired what was transpiring and the appellant replied that he should wait and later he called him. He walked to the house and found the appellant in possession of ‘Rock’ which the complainant said she had bought from one of the patrons at the tavern. He observed her burnt thigh. He said the complainant told him that the appellant burnt her because he found the ‘Rock’ in her possession. He said everything was fine and they accompanied her to her parental home so she could change her clothing and then wait for the vehicle to take them to Sun City. He said when they entered the gate the complainant’s father fought with the appellant.  The complainant told him that her father and Ntswaki laid charges against the appellant.

E.       CONVICTION

[14] The grounds of appeal on conviction are the following:

14.1   The trial court erred in finding that the evidence of the complainant was satisfactory in all material aspects, and that the witness was credible and reliable.

14.2    The trial court erred in finding that the complainant was raped and that the complainant did not consent to having sexual intercourse with the appellant.

14.3   The trial court failed to evaluate the evidence of the complainant and consider the improbabilities in the complainant’s version, namely:

14.3.1     She said she was afraid of the appellant but agreed to leave her parental place with the appellant.

14.3.2      From the gate of her parental home to the appellant’s home, she did not scream while being assaulted and dragged.

14.3.3      If the appellant assaulted the complainant and dragged her in a busy street, other people would have seen it, and/or intervened. It is highly unlikely that the complainant was dragged to the appellant’s place and she offered no form of resistance.

14.4   The trial court erred in its finding that the burn with an iron and the  assault in the house happened before sexual intercourse thus rejecting the evidence of the appellant and his witness.

14.5   The court erred in holding that the contradictions between appellant’s version and his witness are material.

14.6   The court erred in failing to evaluate the evidence of appellant’s witness as it corroborated the appellant’s version that the conflict between the complainant and the appellant was triggered by the discovery of the drugs.

[15] The evaluation of the evidence in a criminal trial was correctly enunciated in S v Chabalala 2003(1) SACR 134 (SCA) at paragraph [15]:

“The trial court’s approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex port facto determination and a trial court (and counsel) should avoid  the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence…”

See also: S v Trainor 2003 (1) SACR 35 (SCA) at paragraph [9].

[16] Malan JA in R v Mlambo 1957 (4) SA 727 (A) 738 (A-C) said the following:

“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.”

[17] An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.

See: S v Phallo 1999 (2) SACR 558 (SCA).

[18] The complainant on several occasions in cross examination provided a satisfactory explanation why she left with the appellant and did not scream or offer any form of resistance, namely that she knew from her previous experience that if she fought or screamed the appellant would beat her. She remained steadfast in her testimony that she feared the appellant because of previous assaults and the appellant’s abusive behaviour towards her. Further the appellant admitted that he assaulted the complainant and burnt her with a hot iron on her thigh. The doctor’s evidence and report further supported the complainant’s version of physical and sexual abuse.

[19] The trial court found that the complainant was a “convincing and reliable” witness. She was treated as a single witness and the necessary caution was exercised. The following finding of the trial court bears repetitions and cannot be faulted:

“Complainant testified as a single witness in respect of the Rape incident, it is submitted that she was steadfast in her evidence even under cross examination she never deviated from her testimony in chief. The evidence of the complainant found corroboration from the evidence of the second state witness, N. R., who was the first report and confirmed that she was at home when complainant arrived at home after the rape incident, complainant was crying and related to her that the appellant assaulted her and had sexual intercourse with her without her consent. She also observed the injuries sustained by the complainant.”

[20] In S v Pistorius 2014 (2) SACR 314 (SCA) at paragraph [30] the court held that:

“It is a time-honoured principle that once a trial court has made credibility findings an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong (R v Dhlumayo & Another 1948 (2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA) para 12.”

This is so because of the fact that as the trial court was “steeped in the atmosphere of the trial” it had the advantage of observing the witnesses as they testified which the appeal court never had.

[21] The learned magistrate made credibility findings in this matter. He found the complainant to be a credible and reliable witness. The appellant has not demonstrated that the regional magistrate was wrong on the credibility findings which he made.

[22] Turning to the appellant’s testimony there were several improbabilities and inconsistencies in his version namely:

22.1 According to appellant the reason why he went to the complainant on the day in question was because he received a report that complainant smokes a drug commonly known as ‘Rock’. The impression created was that he intended confronting the complainant about her use of drugs. However on his version after he met the complainant at her home they proceeded to his home to have sexual intercourse and only later when he allegedly found ‘Rock’ in her clothing did he confront her and assaulted her.

22.2   The appellant in his plea explanation, said that when he was about to sleep with complainant and while undressing the complainant a sachet of cocaine fell from complainant’s trouser. However when appellant was giving his evidence in chief he testified that after sleeping with the complainant and when the appellant was passing the complainant’s clothing to her that is when he discovered the ‘Rock’.

22.3   The appellant in his plea’s explanation admitted to slapping the complainant three times with open hands. However in his evidence in chief, he initially disputed the fact that he assaulted the complainant but later admitted to assaulting the complainant once with an open hand. There was no explanation for the other bruises and injuries found on the complainant as mentioned by Dr Kotela. Furthermore the defence witness testified that when he walked into the room, he observed bruises on the complainant’s face, a laceration on her hip and eye and blood that oozed on her gums

[23] Furthermore certain parts of the appellant’s version were not put to the complainant, namely:

23.1  that after he was charged with Rape he continued having sexual intercourse with the complainant.

23.2   that the appellant had consensual sexual intercourse with the complainant and the only reason why a charge of rape was laid against him was at the initiative of complainant’s father.

[24] There were also several material contradictions between the appellant’s testimony and that of the defence witness, D. E. M., also known as V. namely:

24.1   The appellant testified that when he arrived at his home with the complainant they found his tenant V. present. However V. testified that the appellant and the complainant found him at the shop, and they all proceeded to the appellant’s home.

24.2  the appellant’s evidence is that while in his room with complainant, V. came into his room and the complainant showed him the burn. The appellant was busy wiping the burn wound with a cloth and they were both sitting on top of the bed. V. however testified that when he entered the appellant’s room, the complainant was wearing her jeans.  He did not observe the burn on her thigh. He said he found the appellant having ‘Rock’ in his possession with the complainant standing a distance of at least 4 paces from the appellant. He asked the complainant if she is smoking ‘Rock’ and she said she was tasting it.

24.3   the appellant testified that after sexual intercourse with complainant, at the request of the complainant he took her to her yard. The appellant does not mention meeting the complainant’s father or a confrontation with the complainant’s father. Although he said, he was taking V. to Sun City, he did not say that the complainant was also going to Sun City. V.’ testimony is in contrast to the appellant. He said he was in the company of the appellant when they accompanied the complainant to her place so that she could change her clothes as she was also going with them to Sun City. He also said when they reached the complainant’s place, the appellant entered the premises with a view of buying two brutal fruits beverages and the complainant’s father emerged and started fighting with the appellant.

[25] The court a quo finding that the first count of assault with intent to do grievous bodily harm was committed by the accused in order to cause the complainant to submit to sexual intercourse is in my view a correct finding in that the appellant, by dragging the complainant from her parental home and assaulting her in the street and further assaulting her in his bedroom and burning her with an iron instilled fear in her and induced her to abandon resistance and submit to sexual intercourse against her will. This was a continuous act which led to the complainant being raped by the appellant which rape involved the infliction of grievous bodily harm as stated by the Learned Magistrate in his judgment.

[26] Given the conspectus of evidence, I am of the view that the learned magistrate correctly rejected the appellant’s version that it was not reasonably possibly true and found that the state discharged the onus of proving beyond reasonable doubt that the appellant raped the complainant and that the rape involved the infliction of Grievous Bodily Harm.

SENTENCE

[27] The grounds for appeal on sentence are the following:

27.1   The appellant was initially charged with Assault with Intent to do Grievous Bodily Harm and that of Rape as two separate counts. The charge sheet and the record are not clear as to which minimum sentence the State intended to rely on and what the applicant was warned of. Therefore the court was not empowered to invoke the provisions that attracted life imprisonment and the appellant should have been given the benefit of the doubt.

27.2   The court should have imposed a lesser sentence as there were substantial and compelling circumstances present.

27.3   The sentence of 20 years imprisonment is excessively inappropriate and induces a sense of shock.

[28] A point that was raised for the first time at the hearing of the appeal and not in the application for leave to appeal is that the charge sheet was vague and defective as it only mentioned section 51 and did not specify if it was rape in terms of Schedule 2, part 1 or Schedule 2, part 3. A sentence of life imprisonment can only be imposed if the rape fell under schedule 2, part 1.

[29] As stated supra, The appellant was charge with 2 counts, namely assault with intent to do Grievous Bodily Harm and the second count is the contravention of section 3 read with section 1, 55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act (Sexual Offences related matters) Act 32 of 2007 read with section 256, 257 and 281 of the Criminal Procedure Act 51 of 1977, the provisions of section 51 and schedule 2 of the Criminal Law Amendment Act 105 of 1997, as amended as well as section 92(2) and 94 of the Criminal Procedure Act in that the appellant on or about the 3 May 2008 unlawfully and intentionally committed an act of sexual penetration with Patricia Nkopeland, 23 year of age by having canal intercourse with her without her concern.

[30] Section 51(1) and (2) of the Act reads:

“(1)  Notwithstanding any other law, but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.

(2)     Notwithstanding any other law but subject to subsections (3) and (6), a regional court or a High Court shall sentence a person who has been convicted of an offence referred to in –

(a)      Part II of Schedule 2, in the case of –

(i)        a first offender, to imprisonment for a period not less than 15 years;

(ii)       a second offender of any such offence, to imprisonment for a period not less than 20 years; and

(iii)      a third or subsequent offender of any such offence, to imprisonment for a period not less than 25 years.

(b)      Part III of Schedule 2, in the case of –

(i)   a first offender, to imprisonment for a period not less than 10 years;

(ii)  a second offender of any such offence, to imprisonment for a period  not less than 15 years; and

(iii)     a third or subsequent offender of any such offence, to imprisonment for a period not less than 20 years; and

(c)          Part IV of Schedule 2, in the case of –

(i)      a first offender, to imprisonment for a period not less than 5 years;

(ii)       a second offender of any such offence, to imprisonment for a period  not less than 7 years; and

(iii)     a third or subsequent offender of any such offence, to imprisonment for a period not less than 10 years.

Provided that the maximum term of imprisonment that a regional court may impose in terms of this subsection shall not exceed the minimum term of imprisonment that it must impose in terms of this subsection by more than five years.

[31] Lewis JA in S v Makatu 2006 (2) SACR 582 (SCA) and in relation to the details that should be furnished to an accused said that an accused must know what the implications and consequences of the charge are and said:

“As a general rule, where the State charges an accused with an offence governed by s 51(1) of the Act, such as premeditated murder, it should state this in the indictment. This rule is clearly neither absolute nor inflexible. However an accused faced with life imprisonment – the most serious sentence that can be imposed – must from the outset know what the implications and consequences of the charge are. Such knowledge inevitably dictates decisions made by an accused, such as whether to conduct his or her own defence; whether to apply for legal aid; whether to testify; what witnesses to call; and any other factor that may affect his or her right to a fair trial”

[32] In S v Kolea 2013 (1) SACR 409 (SCA) the accused was charged with the offence of rape, read with the provisions of section 51(2) of the Act. The court however, convicted the accused of rape read with the provisions of section 51(1) of the Act. The court at paragraphs 11 – 14 at 413 b - h and 19 – 20 at 415 b – f held that:

“a sentencing court is not precluded from imposing a life sentence or referring a matter to a higher court for consideration of sentence, solely on the bases that the charge sheet erroneously refers to section 51(2) instead of s 52(1) of the Act”.

[33] What is important is that the accused’s right to be informed of the charge he is facing and the fact that the state intends relying on the minimum sentencing regime should be brought to his attention at the ontset of the trial. Once this is done, he can be convicted in terms of section 51(1) of the Act if the evidence supports such a finding.

[34] In casu, it was clear from the charge sheet that the state intended relying on the minimum sentencing regime. Furthermore the magistrate before it commenced, enquired whether the appellant’s legal representative explained the minimum sentence to him. The evidence in my view supported a conviction in terms of section 51(1) of the Act, I am accordingly of the view that the appellant was correctly convicted in terms of section 51(1) of the Act.

[35] A trial Court exercises discretion when imposing a sentence.  An appeal Court may not and shall not interfere with the sentence imposed unless it is convinced that the sentence discretion has been exercised improperly or unreasonably.  See S v  Sadler 2000 (1) SACR 331 (SCA) at para 8;  S  v  Swart 2000 (2) SACR 566 (SCA) at para 21.

[36] A Court of appeal will only interfere with the sentence imposed by the trial court if it is vitiated by an irregularity or misdirection or when the sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence committed.  See S v  Coetzee 2010 (1) SACR 176 (SCA);  S  v  Matlala 2003 (1) SACR 80 (SCA).

[37] In S v Vilakazi 2009 (1) SACR 552 (SCA) at paragraph [13] – [19] 559 e – 562 d, the court held that:

“if any circumstances were present that would render the prescribed sentence disproportionable to the offence, this would constitute weighty justification for the imposition of a lesser sentence”.

[38] The appellant’s personal and mitigation factors are the following:

1.    The appellant was 34 years of age and not married;

2.    He was a first offender;

3.    He has minor children whose mothers are unemployed and he was supporting the children when the need arose;

4.    He was self-employed earning R3 500.00 per month.

5.    He and the complainant were previously in a love relationship.

[39] The aggravating factors are the following:

1.    The complainant was burnt with a hot iron;

2.    She was slapped and punched and throlled with a belt. She had a black eye, bruises on the neck and abrasions on her nose; and

3.    The complainant was menstruating and the appellant removed her tampon and raped her.

[40] From the complainant’s evidence, it is apparent that when she was the appellant’s girlfriend, she was in an abusive relationship and subjected to assaults by the appellant.

[41] In the case of DPP, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) at 577G–I, the Court held that:

“[22]    . . .  Rape of women and young children has become cancerous in our society.  It is a crime which threatens the very foundation of our nascent democracy which is founded on protection and promotion of the values of human dignity, equality and the advancement of human rights and freedoms.  It is such a serious crime that it evokes strong feelings of revulsion and outrage amongst all right-thinking and self-respecting members of society.  Our courts have an obligation in imposing sentences for such a crime, particularly where it involves young, innocent, defenceless and vulnerable girls, to impose the kind of sentences which reflect the natural outrage and revulsion felt by law-abiding members of society.  A failure to do so would regrettably have the effect of eroding the public confidence in the criminal justice system.”

[42] In the cases of S v  Vilakazi 2009 (1) SACR 552 (SCA) and S v Mahomotsa 2002 (2) SACR 435 (SCA), the Courts held that life imprisonment should be reserved for more serious cases of rape.

[43] The purpose of sentencing is deterrence, prevention, rehabilitation, retribution and punishment.  I am of the view that when considering all the mitigating facts and circumstances cumulatively, and bearing in mind all the factors relevant when imposing an appropriate sentence, and blending this with an element of mercy, that the trial court was correct in finding that there are substantial and compelling circumstances to warrant a deviation from the minimum sentence of life imprisonment. However when considering the aggravating factors mentioned supra, I am of the view that a long term prison sentence is warranted.

[44] When considering the appellant’s personal and mitigating factors, I am of the view that a sentence of 20 years imprisonment is shockingly severe. The appellant is a suitable candidate for rehabilitation and after serving his sentence he can be reintegrated into society and can contribute positively to the society. In the circumstances a sentence of 15 years imprisonment fits the triad.

[45] Consequently the following order is made:

1.    The appeal on conviction is dismissed;

2.    The appeal on sentence is upheld;

3.    The sentence imposed by the trial court is set aside and substituted with the following:

“15 years imprisonment”

4.    The sentence is antedated to 15 April 2011.

_________________

N. GUTTA

JUDGE OF THE HIGH COURT

 

I agree

 

____________________

R D HENDRICKS

ACTING JUDGE PRESIDENT OF THE HIGH COURT

 

APPEARANCES

 

DATE OF HEARING                                        :  12 AUGUST 2016

DATE OF JUDGMENT                                     :   01 SEPTEMBER 2016

 

COUNSEL FOR APPELLANT                          :  ADV M.E SETUMU

COUNSEL FOR RESPONDENT                       :  ADV P. SEBOTHE

 

ATTORNEYS FOR APPELLANT                       :  LEGAL AID SOUTH AFRICA

ATTORNEYS FOR RESPONDENT                   :  DIRECTOR OF PUBLIC PROSECUTIONS

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