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[2020] ZAWCHC 114
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Davids v S (A154/20) [2020] ZAWCHC 114 (7 October 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal
Case No:
A154/20
In
the matter between:
RAGHIED
DAVIDS
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON 07 OCTOBER 2020
KUSEVITSKY,
J
[1]
The Appellant was arraigned in the
Paarl Regional Court Paarl on two counts of contravening section 3 of
the Criminal Law (Sexual
Offences and Related Matters) Amendment Act
32 of 2007 (“SORMA”), read with the provisions of
sections 51 and 52 of
Schedule 2 of the
Criminal Law Amendment Act
105 of 1997
.
[2]
The 55-year old Appellant, who was legally
represented at all material times, was convicted on 12 December 2018
on both counts and
sentenced to ten years’ imprisonment on each
count, the court having exercised its discretion in departing from
the minimum
sentence of life imprisonment. The effective sentence was
thus 20 years imprisonment.
[3]
The
Appellant applied for leave to appeal on 24 December 2018, however
that application was only heard on 29 July 2019, the delay
having
emanated as a result of an incomplete record. The court a
quo
granted the Appellant leave to appeal in respect of his conviction
only and the record was reconstructed during March 2020 as a
result
of missing evidence that had not been mechanically recorded. The
fully reconstructed record was however available at the
hearing of
this appeal and the parties confirmed that the record was in order
and that it was sufficient for us to proceed with
the appeal.
[4]
The appeal was enrolled to be heard on 21 August 2020 and the
parties duly filed their heads of argument. It became evident in
these
heads, that the Appellant on the one hand, contended that there
had effectively been a duplication of charges and that in the event
of the court dismissing the appeal, that the Appellant should only be
convicted on a single charge of rape. The State on
the other
hand contended that the court a
quo
correctly convicted the
Appellant on two separate counts of rape, and in the alternative,
should this court uphold the point raised
by the Appellant on appeal
in respect of the duplication of charges, that an appropriate
sentence would be one of 15 years’
imprisonment because of the
aggravated rape. In light of these submissions, this court directed a
letter to the parties, inviting
them to make additional submissions
in the event of this court upholding the Appellant’s contention
that the court a
quo
had misdirected itself in fact and in law
that there had been a duplication of charges – that this court
was entitled to
consider whether an increased sentence would be
appropriate in the circumstances. The court is indebted to both
counsel for the
additional submissions made with regard to this
aspect.
[5]
The facts of the case are relatively straight forward
.
On August 2020, the complainant was at a shebeen where she consumed
alcohol. Appellant was also at the same shebeen that evening.
At some
point during the evening, she had to use the restroom. It was
occupied and she decided to relieve herself in between houses
in a
nearby dark alley. Coincidently the Appellant also happened to be in
the vicinity of the passage way. He saw her whilst she
was urinating
and and hurriedly approached her. A sudden blow to the head of the
complainant with an unknown object started the
violent events that
ensued. She wrestled with her assailant and called out for help, but
was soon overcome when he choked her which
left her unconscious.
Stiaan Sass and Jacques Arendse, residents in a nearby house heard
the commotion and upon investigation,
discovered the complainant in
their back yard close to the passageway. Jacques Arendse needed a
torch to enhance the lighting in
the alley.
[6]
The following morning, the complainant woke up at her home,
unaware as to what had happened to her. She was told by people what
had transpired. She went to the hospital as her lower body was in
pain and she also noticed blood on her underwear and on her top,
even
though she was not menstruating.
On 27 August
2017 the complainant was medically examined by Dr Gafoor. She
sustained injuries to her left forehead, lower back,
her right thigh
and left side of her upper body. The complainant’s genital
injuries were consistent with anal and vaginal
penetration.
[7]
The
Appellant is known in the area by
the nickname “Knapie.” The Appellant is known to the
complainant as well as the witnesses,
Stiaan Sass and Jacques
Arendse. The State adduced the evidence of the complainant, S[…]
P[…], Stiaan Sass, Jacques
Arendse and Dr Gafoor.
[8]
Dr
Rushaan Gafoor completed the J88 report.
According to his report, the complainant
reported to him that on the 26 August 2017 at approximately 20h00,
she had consensual sex
with one partner and no condom was used.
Upon his examination of the complainant,
he found two tears in the midline left of
the posterior fourchette. He stated that it was highly unlikely that
these tears could
have resulted from consensual sex.
[9]
He also found multiple tears on the
perineum right and left extending into the anus. He explained that
these were superficial tears
on the outer layer of the skin and
epidermis; unlike the ones present during child birth - but that this
tear was on the perineum
and it extended right into the anal orifice.
He explained that the extension of the tear was usually associated
with blunt force
to the perineum and the anus, which was most likely
an indication of anal penetration. He stated that this usually
happened with
forceful penetration and trying to locate the vaginal
orifice with the pushing of an erect penis against the perineum. He
stated
that even though if there is no anal penetration, one would
still get perineal tears.
From
his examination, he found anal penetration as well because there were
tears in the anal orifice, so there was penetration in
that area as
well.
[10]
He also noted a bruise on the knee and
three abrasions. He stated that the bruise on the knee could occur
with someone forcing someone’s
legs open and pushing it up. She
also had a bruise on her back, which would occur from blunt force
trauma. During cross examination,
he confirmed abrasions on her
forehead which was consistent with blunt force trauma. He confirmed
that a panga could cause such
an injury. He reiterated that it
was unlikely that with consensual sex, that one would suffer these
types of injuries, referring
to the two tears on the middle left side
of the vagina. He stated that this was forceful, painful sex.
[11]
The Appellant denied that he had raped the
complainant. He admitted that he was at the shebeen that night but
stated that he had
left early. However, the evidence of Miss Stiaan
Sias and her boyfriend Jacques Arendse, contradicts the Appellant’s
version.
[12]
Sias was with her boyfriend and her
children in her home. They were watching a late night movie. She
heard a scream in her backyard
and asked her boyfriend, Jacques
Arendse, to investigate. He took a torch and she followed. When they
got outside and shone the
torch, they saw the Appellant, laying on
top of the complainant. When he saw them, he picked up his
panga
and ran away. On closer inspection they found the complainant
laying on the ground. She was unconscious. Her pants
and
underwear were undone and she was covered in blood in the lower part
of her body. Sias called Jurgen and Anesto to assist her
to take the
complainant home as she was unable to stand. She confirmed that it
was the Appellant as she has known him since her
childhood and he
lives in the same street as her.
[13]
During cross-examination, much was made
about the time discrepancy as to when the incident would have
occurred. According to Sias,
the incident occurred at around 2am in
the morning and according to the complainant, she estimated the time
to be around midnight.
However, she could not be sure of the time.
Given the fact that she could not remember the events after she was
choked and subsequently
passed out, I am of the view that nothing
turns on this. Sias also identified the Appellant’s clothing.
She stated that he
was dressed in a jacket, a white three quarter
pants, a white ‘
hopper’
and
a white cap. He also wore takkies but she could not remember the
colour. The Appellant however stated that he wore a red t-shirt,
black jeans, white takkies and white cap. This was also in contrast
to her boyfriend’s statement where it was stated that
the
Appellant was wearing a red leather jacket, blue jeans and black
‘
floppie’
.
She conceded that she could not exactly remember as the
incident had happened a long time ago. She reiterated that she saw
the Appellant and it was the screaming that had made her leave her
house to investigate.
[14]
A further indication that she had known
that it was the Appellant was the fact that she testified that the
Appellant picked up his
dagga
pill that he regularly smokes. She said that he smoked a different
type of dagga to what the people on the yard usually smokes.
When
challenged that she would not have known what type of
dagga
the Appellant smoked, she answered that she did, given a time when
the Appellant had dated her friend Vanessa and Appellant would
send
her to buy his
dagga
.
Conveniently, he denied smoking
dagga
that day.
[15]
Jacques Arendse confirmed the evidence of his girlfriend Siaan
Sias. He testified that whilst he was busy making himself coffee and
watching TV, he heard a bang against the gate and then the dogs
started barking. He was with Sias and her friend, Elizabeth. He
told
his girlfriend that he was going to check what was going on outside.
He stated that it was very dark and it was difficult
to see. He went
back to fetch a torch. When he returned, he saw the Appellant and the
complainant, S[…].
[16]
He asked the Appellant what he was doing. He saw the Appellant
laying on top the complainant. The Appellant then got up, pulled up
his pants and ran away. He and Sias found S[…] laying on the
ground. His girlfriend helped her dress. She then called the
complainant’s boyfriend to take her home. He confirmed that the
Appellant had a long brown object that looked like a
kierie
.
When he stood up and pulled up his pants, he picked up the
kierie
and took it with him.
[17]
He further testified that the Appellant is known to him as
they live in the same street. They would often greet each other when
they passed. He had seen the Appellant earlier that evening drinking
beer at the shebeen. He also confirmed that the complainant
was
‘unconscious’ when they first saw her. She regained
consciousness when they were busy taking her to the front of
the
property and whilst going through the passage, she wanted to know
where she was.
[18]
During cross-examination he reiterated that it was around 2am
that the incident had occurred and not 12pm as the complainant had
testified. When it was put to him that what he had seen, could have
been two consenting individuals having sexual intercourse,
given that
he did not see any fighting or screaming. He however replied that the
complainant was unconscious. He also stated that
if it was
consensual, the Appellant would not have run away immediately after
having been recognised.
[19]
The Appellant’s evidence was that of denial.
He
confirmed that he was at Ashley’s shebeen. He denied knowing
the complainant and claimed that he never saw her. He testified
that
he wanted to urinate and Ashley told him that he could not go inside
but directed him around the corner. When he went around
the corner,
he saw Jurgen and someone called ‘Papbek’. They were
consuming drugs. He returned to the shebeen and thereafter
went home
at around 10pm. He stated that he knows Jacques Arendse and Siaan
Sias, saying that they usually borrow money from him.
During
cross-examination he found it very difficult to concede that went to
urinate in a passage close to where the complainant
was, explaining
that there were numerous passages next to each flat. He also stated
that it was not that dark, but that he did
see two boys standing in
the street. Presumably, this was mentioned as an attempt to pin the
blame on them.
[20]
In her judgment, the court established that both the Appellant
and the complainant was present at the tavern on the evening in
question.
The complainant went to relieve herself and the Appellant
was in the same vicinity. The complainant identified the Appellant as
the person whom she said was watching here and who attacked her. Her
identification is corroborated by the evidence of Sias and
Arendse
who testified that they saw the Appellant on top of the unconscious
complainant. The court accepted the evidence of the
two witnesses
whom she found to be credible. The court also rejected the evidence
of the Appellant, having come to the conclusion
that he was evasive
and untruthful in his endeavour to not place himself in the passage
way where the incident occurred. Given
the totality of the evidence
presented, I can find no misdirection in the conviction of the
Appellant’s rape of the complainant.
[21]
I
am however of the view that the court a
quo
misdirected itself when it convicted the Appellant of two counts of
rape. In the matter of
Peter
Mario Minaar v The State
[1]
,
the court dealt with the relevant authorities on this aspect in
considering whether consecutive acts of non-consensual vaginal
and
anal penetration constituted one or two offences. The court came to
the following conclusion:
“
[20]
After all, a man
who repeatedly penetrates a woman vaginally during
one event of
coitus
is not generally charged with rape in respect of each individual act
of penetration unless there is an appreciable time interval
or an
actus interveniens
such as ejaculation. In circumstances such as the present, where
there is little interruption between the penetration of the vagina
twice, an attempt to penetrate anally and a single act of ejaculation
right at the end of the encounter, I consider that only one
criminal
contravention has been established. See
S
v Blaauw
1999 (2) SA 295
(W) at 300
c-d
where Borchers J suggested the
following approach:
“
Each
case must be determined on its own facts. As a general rule the more
closely connected the separate acts of penetration are
in terms of
time (i.e. the intervals between them) and place, the less likely a
court will be to find that a series of separate
rapes has occurred.
But where the accused has ejaculated and withdrawn his penis from the
victim, if he again penetrates her thereafter,
it should, in my view,
be inferred that he has formed the intent to rape her again, even if
the second rape takes place soon after
the first and at the same
place.”
The
dictum
in
Blaauw was cited with approval by the Supreme Court of Appeal in
S
v Tladi
2013 (2) SACR 287
(SCA) at [12]. See also
S v BM
2014
(2) SACR 23
(SCA) at [6] and
S v Maxabaniso
2015 (2) SACR 553
(ECP).”
[22]
There is no evidence to indicate that an
actus interventus
occurred which would bring it within the realm of two separate acts
of rape. Dr Gaffoor furthermore testified that there may be
instances
in which male perpetrators, in their haste and attempt to find the
vaginal orifice, mistakenly enter the anus. This,
together with the
short timeframe in which the incident occurred, leads me to conclude
that these acts of penetration followed
swiftly one after the other,
without an appreciable
coitus
interruptus
, and should be taken as one
single encounter. Thus the Appellant should only have been convicted
of a single contravention of
section 3
of SORMA.
[23]
Turning to sentence, as I alluded to
earlier, the parties were invited to make submissions to the court in
respect of sentence in
the event that it found that a single count of
rape should have been preferred and that the court a
quo’s
sentence of 10 years’ imprisonment (on the single charge)
should be revisited. The State was of the view that an appropriate
sentence would be 15 years and counsel for the Appellant maintained
that the sentence imposed by the court a
quo
should be confirmed.
[15]
The prescribed minimum sentence for a
single count of Rape or Compelled rape as contemplated in
sections 3
or
4
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007
, respectively in circumstances other than those
referred to in
Part 1
are the following:
“
52
(2) Notwithstanding any other law but subject to subjections (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)
…
(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 offense, to imprisonment for a period not less than 20 years.”
[24]
It is common cause that the court a
quo
found substantial and compelling circumstances to deviate from the
minimum sentence of life imprisonment. However, in terms of
the one
charge and conviction of rape, a minimum sentence of 10 years’
imprisonment is applicable.
[25]
It
is trite that when a judgment on sentence is considered, it is a well
balanced evaluation of all the factors, all of the facts
and
circumstances of the case.
[2]
The personal circumstances of the Appellant as reflected in the
record, are as follows. The Appellant is 55 years old and unmarried.
Before his arrest, he was in a long term common-law relationship for
nine years. He has three children, the youngest of whom is
6 years
old. He was employed as a painter and earned R300-00 per day. He
contributed financially to the maintenance of the youngest
child
although since his incarceration, the Appellant’s common law
wife and child live with his aunt, and they have been
in a position
to sustain their livelihood without the assistance of the Appellant.
He had also been awaiting trial for approximately
one year and four
months before he was sentenced.
[26]
The State submitted that the personal
circumstances of the Appellant did not establish substantial and
compelling circumstances
to justify a deviation from the minimum
sentence. Instead, it argued that the circumstances were in fact
aggravating to justify
the imposition of a heavier sentence. The
State argued that the rape of the complainant was indeed grievous.
The complainant was 23 years old at the time of
the incident. The complainant and the Appellant were both out
socialising with their
respective friends.
She
was
physically attacked with a weapon by
the Appellant. She sustained an injury to her left forehead. Dr
Gafoor described this injury
as red with painful abrasions. She was
also choked. She sustained injuries to her lower back with swelling,
and abrasions and was
red, her right knee and left flank were
bruised. The gynaecologist examination revealed tears to the
posterior fourchette, perineum
and the anus. She managed to shout
out, which alerted her neighbours.
[27]
The State argued that the complainant
was left by the Appellant in a state of humiliation with her private
parts exposed.
The
Appellant
arrogantly, aggressively and excessively violated the human dignity
off the complainant. Apart from the vulnerability
as a woman,
the complainant was intoxicated and this made her a perfect prey for
the Appellant’s predatory conduct.
The
intense humiliating experience of having to live with the knowledge
that one was raped by a familiar person, whilst unconscious
cannot be
emphasized, so it was argued.
[28]
I agree with the State’s sentiments. The Appellant saw
the complainant and knew that she was inebriated. He then
purposefully
set out to take advantage of her condition for his own
egregious pleasure. Women are entitled to engage in social activity
with
the confidence that they will not be savagely pounced on by
other persons whose sole purpose is to denigrate and humiliate them
for their own sadistic pleasure. What is worse in this instance, is
the fact that the complainant was unconscious and had to find
out
about the rape by people within the community. The shame and
humiliation of that revelation would most certainly have had an
adverse impact on her psyche and emotional wellbeing. It is also
apparent that the system failed the complainant in that neither
the
State nor the court a
quo
, called for a victim impact
assessment report to be undertaken. There is also no indication that
the complainant received any form
of assistance from social services
for therapeutic intervention in the form of counselling. During the
hearing of this matter,
counsel for the State, Ms Botman gave an
undertaking that she would ensure that the necessary arrangements
would be made for the
complainant in this regard, if she so required,
given that this incident occurred more than three years ago. At the
time of penning
this judgment, all indications are that the necessary
arrangements have now been made for the complainant. Although these
measures
should be available to victims of sexual assault at the
police stations, I am of the view that prosecutors and presiding
officers
should ensure, when seized with these matters, to ensure
that the necessary social support has in fact been provided to a
victim/complainant.
[29]
In
S v
Chapman
1977 930 SA 341
(A), the
Court recognised that rape is a very serious offence, is humiliating,
degrading and a brutal invasion of privacy, dignity
to the person of
the victim. Mohamed CJ said at 345A- B that:
“
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any defensible
civilisation. Women in this country are entitled to the protection of
these rights. They have a legitimate claim to walk peacefully
on the
streets, to enjoy their shopping and entertainment, to go and come
from work, and to enjoy the peace and tranquillity of
their homes
without the feat, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their
lives.”
[30]
In addition to
Chapman
, I would add that women have a
legitimate expectation to go out and socialise with their friends
and, if inebriated, that they
have an expectation not to be
interfered with and not to be taken advantage of. It would be naïve
for this court to ignore
the fact that it is a reality that people,
including young adults, socialise more than others. Just because
someone is intoxicated,
does not give anyone licence to abuse, nor is
it a green light to take advantage of someone who may be in a
vulnerable state. Just
like men who may wish to socialise with
friends, so too should women also have the freedom to do so, without
fear, content in the
knowledge that they will be safe; without the
fear of being harassed, or assaulted, raped or murdered. Men, and I
emphasize men,
as they are generally the main perpetrators of these
types of crimes in our country, need to know that vulnerable persons,
and
women and children in particular, should be protected and not
harmed or abused.
[31]
I am therefore of the view that cumulatively, given the
vicious and violent manner in which the complainant was sexually
violated,
that the interest of the community and that of the
complainant trumps the personal circumstance of the Appellant, and
that this
court would be justified in exceeding the minimum sentence
provided. In any event, it is after all, no more than a minimum
sentence,
and a court at its discretion, and based on the facts at
its disposal, is at liberty to impose a sentence that is not
shockingly
inappropriate or disproportionate to the crime. More so,
the sanction must reflect the seriousness of the offence.
[32]
In the circumstances, I am of the view that a sentence of 15
years is appropriate under the circumstances.
Accordingly,
I would make the following order:
A.
The appeal against the conviction and
sentence on count 2 is upheld.
B.
The conviction and sentence on count 2 is
set aside.
C.
The sentence in respect of count 1 is set
aside and replaced with a sentence of 15 years’ imprisonment.
___________________
Kusevitsky,
J
I agree and it is so
ordered.
____________________
Saldanha,
J
COUNSEL FOR APPELLANT:
ADVOCATE A BOTMAN
COUNSEL
FOR RESPONDENT: ADVOCATE EA KORTJE
[1]
Case
No. A43/18 WCHC Dated 28 March 2018
[2]
S
v Zinn 1969 (2) 537 (A) at 540 G