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[2021] ZAWCHC 94
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King v S (A08/2020) [2021] ZAWCHC 94 (10 May 2021)
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)
CASE No:
A08/2020
In
the matter between:
DENZIL
CLINTON KING
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON: 10 MAY
2021
Salie,
AJ
INTRODUCTION
:
[1] The
appellant was arraigned in the regional circuit court, Oudtshoorn, on
one
count of rape and two counts of sexual assault. The charges
are set out hereinbelow.
THE
CHARGE OF RAPE
:
[2] The
appellant was charged with contravening section 3, read with the
provisions of
sections 1
,
55
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, No.
32 of 2007
, read with
sections 92(2)
,
94
,
256
,
257
and
281
of the
Criminal Procedure Act, No. 51 of 1977
, read with the provisions of
sections 5(1)
and/or (2)(b) and Schedule 2 of the
Criminal Law
Amendment Act, No. 105 of 1997
, as amended:
a. that, on or
about 21 April 2016 and at or near the sick bay of the South African
National Defence Force (“SANDF”),
Oudtshoorn, in the
Regional Division of the Western Cape, the appellant unlawfully and
intentionally committed an act of sexual
penetration with the
complainant, one G[....] D[....] D[....], (then 21 years old) by
inserting his fingers into the complainant’s
vagina, without
her consent.
THE
SEXUAL ASSAULT CHARGES
:
[3] The
appellant was charged with two counts of contravening
section 5(1)
,
read with the provisions of
section 1
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, No. 32 of 2007
, read with
sections 92(2)
and
94
of the
Criminal
Procedure Act, No. 51 of 1977
, as amended:
a. In that on
or about 8 April 2016 and at or near the SANDF premises, Oudtshoorn,
in the Regional Division of
the Western Cape, the appellant
unlawfully and intentionally sexually violated the complainant,
namely, T[....] N[....], by rubbing
her vagina without the consent of
the complainant.
b. In that on
or about 18 April 2016 and at or near the SANDF Oudtshoorn, in the
Regional Division of the Western
Cape, the appellant unlawfully and
intentionally sexually violated the complainant, to wit, T[....]
N[....], by rubbing her vagina
without the consent of the
complainant.
[4] The
appellant preferred not to disclose the basis of his defence pursuant
to section
115 of the Criminal Procedure Act No. 51 of 1977 (“CPA”).
[5] Following
the evidence led by both the State and the defence:
a. the
appellant was convicted on 28 May 2018 on all three counts;
b. on 28 June
2018; the appellant was sentenced to;
(i) eight (8) years’
imprisonment on count one (1);
(ii) three years’
imprisonment on count two (2), which the court a
quo
ordered
to run concurrently with the sentence imposed on count one (1);
(iii) three years’
imprisonment on count three (3), of which eighteen (18) months was
ordered to run concurrently with
the sentence imposed on count one
(1).
[6] The
appellant was furthermore declared unfit to possess a firearm,
pursuant to the
provisions of
section 103(1)
of the
Firearms Control
Act, No. 60 of 2000
.
[7] The
aforementioned offences were alleged to have occurred whilst the
appellant was
employed as a medical doctor, and the complainants as
recruits in the service of the SANDF.
THE
ISSUES ON APPEAL
:
[8] It
was submitted on behalf of the appellant that the court
a quo
erred in the following respects:
a. in failing
to find that on a totality of the evidence, the State failed to prove
its case against the appellant
beyond reasonable doubt;
b. in failing
to find that the complainants’ evidence was credible, reliable
and satisfactory in all material
respects;
c. in failing
to apply the cautionary approach in the evaluation of the evidence of
both complainants.
[9] We
shall contextualise the evidence of both complainants briefly, in
order to determine
whether any of the criticism levelled against the
appellant’s conviction and sentence, justifies upsetting the
findings of
the court
a quo
.
The
evidence of D[....] D[....] G[....] (“the first complainant”)
:
[10]
She testified that at the relevant time she was a 21-year-old recruit
and on 21 April 2016
attended at the sick bay for a medical
examination of her ear.
[11]
Having briefly examined first complainant, the appellant enquired
whether the complainant
had any further medical concerns. She
answered that she had previously sustained a knee injury. She
was also asked
by the appellant if she had a groin injury, to which
she responded in the negative.
[12]
The appellant then requested the complainant to remove her tights and
panties and conducted
an internal vaginal examination, without her
consent, by inserting his two fingers into her vagina.
[13]
The first complainant asked the appellant to stop inserting his
fingers into her vagina,
which he did. He thereafter proceeded
to touch and massage her breasts without her consent.
[14]
The appellant furthermore provided her with a certificate wherein he
prescribed that the
first complainant was restricted to light duties
work only.
[15]
In cross-examination it was not disputed that the appellant had
conducted a vaginal examination
by inserting his fingers into the
first complainant’s vagina, however, it was alleged that the
first complainant had consented
to the examination as she had
complained of vaginal discharge. The first complainant
vehemently refuted this suggestion.
[16]
It was contended on behalf
of the appellant that the mere fact that the first complainant had
returned to collect the knee guard
which the appellant had
prescribed, showed that she had consented to the internal examination
and was not afraid of the appellant.
This contention can
swiftly be dealt with, in that the first complainant clearly stated
that she had been accompanied by another
person to ensure her
personal safety when she returned for the collection of the knee
guard. Her testimony in this regard
was as follows: “
Ek
het een van my medekollegas gevra Edelagbare om saam met my te gaan.
Ons was toe na die dokter toe Edelagbare maar toe
ons daar kom
Edelagbare by die dokter toe sien ek die dokter het ‘n ander
pasient nou daar. Ek het toe die knee cap
gaan haal Edelagbare
en ek het toe geloop.”
This
evidence was not contested.
[1]
[17]
It was also suggested in
cross-examination, although not vigorously pursued in argument, that
the first complainant had falsely
implicated the appellant because he
had not booked her off sick from work as follows: “
Ek
gaan dit verder aan u stel om aan te beweeg dat die rede hoekom u sê
die dokter die beskuldigde, het nie toestemming gehad
en dat u die,
als ontken van die discharge en die toestemming om u te ondersoek is
dat omdat die dokter u nie af siek wou boek
nie.
”
To which she responded as follows: “
Dit
is nie so nie Edelagbare
.
”
[2]
[18]
It was furthermore
contended that the first complainant had not cried out for help
whilst the internal examination was conducted
by the appellant.
This contention too can be disposed. The first complainant’s
evidence supported her assertion
that she had trusted the appellant
whilst the examination occurred without her consent. Her brief
testimony was as follows:
“…
en
tydens daardie tyd het ek vir hom vertrou en ek het geglo Edelagbare
hy doen wat hy weet omdat hy nou die dokter is.
”
[3]
[19]
The first complainant was
questioned further: “
Nou
hoekom het jy nie opgespring en uitgehardloop nie
.
”
to which she responded: “
U
edele, ek weet mos nie, ek was nie seker wat hy gedoen het,
Edelagbare, dit is hoekom ek hom gestop het
.
”
[4]
[20]
The State called Innocent Maswangani, the first complainant’s
supervisor who testified
that on 22 April 2016, (the day after the
medical examination) the first complainant reported to her the
alleged vaginal penetration
and sexual assault committed by the
appellant. She, in turn, informed her immediate superior,
whereupon arrangements were
made to lay a charge with the South
African Police Services.
THE
EVIDENCE OF T[....] N[....] (“THE SECOND COMPLAINANT”)
:
[21]
The second complainant testified that she had attended at the sick
bay on 8 and 18 April
2016. The reason for her first attendance
at the doctor’s rooms, was as a result of her having suffered a
pubic rami
fracture. She complained of pain in the groin. She
too was requested to remove her clothing and to lie down on the
examination
table.
[22]
Whilst examining her groin, the appellant proceeded to rub her
vagina. He told her
that that was the only way to cure her
pain. Despite a knock at the door of the examination room, the
appellant continued
rubbing her vagina and only once there was a
third knock at the door, did the appellant stop. He provided
the second complainant
with a prescription for a scan and she
returned the scan disc to the appellant.
[23]
On 18 April 2016, the second complainant returned to the appellant’s
rooms for further
examination of her groin injury. Again the
appellant rubbed her vagina. Oddly, he requested her to lay on
her stomach
and started rubbing her buttocks.
[24]
The second complainant was cross-examined at length on both counts.
It was denied
that the appellant had rubbed the second complainant’s
vagina.
[25]
It was put to the second
complainant that, in examining her groin, the appellant had only
touched her pubic hair. This she
strongly denied. She
maintained that the appellant had touched her vagina. In this
regard she testified as follows:
“
That
is why I am complaining rubbing … rubbing with his hands if I
may correct it.
”
[5]
It is worth quoting the evidence of the second complainant in this
regard: “
Your
question is correct, but the problem is that when I went to the
doctor, I went to complain about my groin, not him putting
his
fingers, his hand on my vagina.
That
is why I am complaining
.
”
[6]
[26]
She explained that she had
not called out for help because the appellant had told her that if he
rubbed her vagina she would feel
better. Her evidence was:
“
I did not
scream because he told me that if he rubs I am going to feel better
and I trusted him because he is a doctor
.
”
[7]
[27]
When asked why she had
returned on 18 April 2016 for a second examination, she unequivocally
testified that she had trusted the
doctor and that she attended the
appellant’s rooms for a medical examination although she had
doubts whether to return.
She replied unequivocally as
follows: “
By
that time. … I went back with my doubts because I wanted
help. I did not judge him.
”
[8]
[28]
It was put to the second
complainant that a possible motive for her laying a false charge was
because he had not given her extended
leave and she was asked:
“
You were not
happy about the five or six days now that you were given on that sick
note
”, to which
she responded as follows: “
That
is a lie
.
”
[9]
[29]
The state further called E[....] M[....] who confirmed that the
second complainant shortly
after the second incident had reported to
her the appellant’s sexual alleged misconduct.
[30]
The state finally called Doctor Charlton Andrew Dreyer who examined
both complainants and
completed the J88 medical reports. The
most pertinent aspect of Dr Dreyer’s evidence was that he did
not find any vaginal
discharge in respect of the first complainant,
contrary to the version put to the complainant.
THE
CONTENTION THAT THE COURT A QUO HAD NOT APPLIED THE NECESSARY
CAUTION
:
[31]
Where there is an
allegation of sexual misconduct and the complainant is a single
witness, the courts have developed a rule of practice
that requires
the evidence of a single witness to be approached with caution.
[10]
[32]
An accused may of course
be convicted of an offence on the evidence of a single competent
witness
[11]
and the exercise of caution in evaluating such evidence must not be
allowed to displace the exercise of common sense.
[12]
[33]
Inasmuch as the cautionary
rule in rape cases has been abolished in
S
v Jackson
,
[13]
the trial court was required to evaluate the evidence of both
complainants with the necessary caution.
[34]
We have carefully considered the evidence and are satisfied that the
trial court had properly
considered the evidence (
ex facie
the
record) and find no improbabilities in respect of the versions
proffered by both complainants. We can find no reason
why the
complainants would falsely implicate the appellant. So much was
conceded by the appellant’s counsel in argument.
[35]
Both complainants gave simple, logical and consistent accounts of the
horror they had experienced
at the hand of the appellant and no
material contradictions were elicited. In addition hereto,
neither complainant strayed
from their core evidence that the
appellant had, respectively, sexually penetrated the first
complainant and sexually assaulted
the second complainant.
[36]
During argument, appellant’s counsel, correctly in our view,
conceded that there
was no manifest reason why both complainants
would falsely implicate the appellant. They were
previously unknown to
each other and met only after their complaints
had been reported. In a real way, the correspondence between
their experiences
testified to a
modus operandi
of the
appellant. If anything is certain, this feature of their
evidence strengthens the state’s case.
[37]
We are accordingly satisfied that the court
a quo
had applied
the necessary caution in evaluating the evidence of both complainants
in view of the totality of the evidence.
THE
COURT A QUO’S FINDINGS
:
[38]
In
evaluating the evidence, both the probabilities and improbabilities
are to be carefully considered. This issue was considered
in
S
v Chabalala
2003
(1) SACR 134
(SCA)
at
para [15] where Heher AJA (as he then was) held:
“
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.”
[39]
The court
a quo
correctly concluded that a court had to view
the evidence in its totality, and it is worth quoting the relevant
portion of the
judgment:
“
Die
hof moet oorweeg ten einde te kan beslis of al die besondere
voorvereistes ten opsigte van die misdrywe wat hier te sprake is
aanwesig is of nie en of die skuld van die beskuldigde bo redelike
twyfel bewys is of nie. Hierdie hof se benadering is om
na al
die feite van die saak te kyk en dan te besluit of die totaliteit van
die getuienis of ‘n afleiding van skuld gemaak
kan word
.
”
[14]
[40]
Further, the court
a
quo
cannot be faulted
for accepting the evidence of the second complainant on charges 2 and
3 when it concluded that the second complainant’s
evidence was
reliable and trustworthy.
[15]
[41]
The court
a quo
, in our view, justifiably rejected the
appellant’s suggestion that the first complainant had a motive,
that being because
he did not book her off on sick leave. It
concluded as follows:
“
Hierdie
motief kan nie opgaan nie om so ‘n ernstige klagte teen die
dokter aanhangig te maak net omdat die dokter haar nie
af siek boek
nie laat ‘n verdure groot bevraagteken van geloofwaardigheid
van die beskuldigde se weergawe. Dit is duidelik
dat die
beskuldigde weergaan sy weergawe aanpas selfs vir hierdie aspek van
die afboek
.
”
[16]
[42]
In relation to the credibility of the appellant, the court
a quo
concluded as follows:
“
Die
hof was nie beindruk met die beskuldigde se verduideliking met
betrekking tot hoe hy te werk sou gegaan het en dat die slagoffer
vir
hom sou toestemming gegee het en die motief wat die slagoffer sou
gegee het om hom falslik te beskuldig nie
.
”
[17]
[43]
The court
a
quo
, in our view,
justifiably in view of the totality of the evidence, rejected
appellant’s version in relation to all charges
as false beyond
reasonable doubt.
[18]
[44]
We are accordingly of the view that the court
a quo
correctly
found the appellant guilty on all charges.
AD SENTENCE
:
ARE
THE SENTENCES IMPOSED DISPROPORTIONATE – HAVING CONSIDERED ALL
THE RELEVANT CIRCUMSTANCES OF THIS CASE?
[45]
In
S v Vilakazi
2009 (1) SACR 552
(SCA), a leading case
dealing with rape and the consequences thereof, Nugent JA expounds on
the imposition of the minimum sentencing
provisions, as follows:
“
[15]
It is clear from the terms in which the test was framed in Malgas and
endorsed in Dodo that it is incumbent
upon a court in every
case, before it imposes a prescribed sentence, to assess, upon a
consideration of all the circumstances of
the particular case,
whether the prescribed sentence
is
indeed proportionate
to the
particular offence
.
”
(emphasis added)
[46]
The appellant’s counsel contended that the court
a quo
had imposed a harsh sentence, and had not considered an alternative
shorter term of imprisonment, given the personal circumstances
of the
appellant as contained in the correctional services report; as well
as the content of the victim assessment reports.
[47]
The appellant’s counsel contended that all three counts should
reflect an effective
sentence of direct imprisonment of between four
to five years.
[48]
Counsel for the state contended that in the event of the court
considering reducing the
sentence imposed, that an effective term of
imprisonment of six years be imposed in respect of all the counts.
This manifested
a concession rightly made in our view that the
effective sentence imposed was markedly too heavy and merited
interference.
[49]
Sentencing is
pre-eminently a matter for the discretion of the court
a
quo
.
[19]
[50]
Where the court
a quo
has failed to exercise its discretion
properly, judicially, or at all, and thereby committing a material
misdirection, an appeal
court will be at liberty to interfere with
the sentence. Where the sentence imposed by the trial court,
differs markedly
from that which the appellate court considers
appropriate, a misdirected exercise by the trial court is necessarily
implied.
[51]
Whilst it is so that
sentences imposed must be commensurate with the offence, the personal
circumstances of the offender and the
interests of society, it ought
to be blended with a measure of mercy.
[20]
[52]
However, the crimes
committed by the appellant are serious and ought to reflect in the
sentences imposed by courts. Society
must be protected against
unethical behaviour on the part of the medical
practitioners
who repose their trust in medical practitioners when examined.
“
Patients must be
able to trust that practitioners will work only for their welfare.
Sexual involvement with a patient could
affect the practitioner’s
medical judgment and thereby harm the patient. Sexual
relationships between patients and
practitioners are considered
unethical and a form of professional misconduct by most professional
councils, including the HPSCA.
Because of the unequal power
relationship and the dependence of the patient on the practitioner,
even a consenting sexual relationship
does not relieve the
practitioner of its ethical prohibition
.”
[21]
[53]
Having considered the correctional services’ report; the
appellant’s potential
to rehabilitate within the community; and
the victim impact statements of the two complainants, we are
nonetheless of the view
that the sentence imposed by the court
a
quo
ought to be tempered.
[54]
The sentences should nonetheless reflect the interests of society and
the heinous nature
of the crimes committed by the appellant.
The appellant has no doubt suffered the humiliation that he would be
barred by
the Health Professionals Council practising as a medical
doctor in the foreseeable future and this factor ought to be taken
into
account in considering an appropriate sentence. We
accordingly make the following order:
ORDER:
1.
The appeal against the appellant’s convictions is dismissed;
2.
The appeal against the sentences imposed therefor is upheld to the
extent set out in
paragraph (3) herein below;
3.
The sentences imposed by the trial court are set aside, and
substituted with
the following. The appellant is sentenced
to:
3.1
Six (6) years
imprisonment on
count one (1)
;
3.2
Three (3)
years
imprisonment on
count two (2)
;
3.3
Three (3)
years
imprisonment on
count (3)
.
4.
The sentences imposed in respect of
count two (2)
and
three
(3)
shall serve concurrently with the sentence imposed on
count
one (1)
;
5.
The sentences imposed in terms of 3.1; 3.2 and 3.3 herein above, are
backdated pursuant to
the provisions of
s 282
of the CPA, to 28 June
2018.
M
SALIE
ACTING
JUDGE OF THE HIGH COURT
I agree, and so ordered.
A
G BINNS-WARD
JUDGE
OF THE HIGH COURT
Counsel
for Appellant:
Advocate
N Safodien
Legal-Aid
South
African Reserve Bank Building
60
St George’s Mall
CAPE
TOWN
Email:
NawaalA@legal-aid.co.za
Tel:
021 426 4126
Counsel
for Respondent:
Advocate
EA Kortje
Office
of the Director of Public
Prosecutions
CAPE
TOWN
Email:
ekortje@npa.gov.za
Tel:
021 487 7000
Heard
on:
Friday,
23 April 2021
[1]
Record,
Vol 1, p 29 (5 – 10) – 20 - 25
[2]
Record,
Vol 1, p 70 (1 – 5; 15)
[3]
Record,
Vol 1, p 65 (18 – 20)
[4]
Record,
Vol 1, p 66 (20 – 25)
[5]
Record,
Vols 1 &2, p 103
[6]
Record,
Vols 1 &2, p 103 (8 – 11)
[7]
Record,
Vols 1 &2, p 108 (10 – 12)
[8]
Record,
Vols 1 &2, p 112 (18 – 19)
[9]
Record,
Vols 1 &2, p 128 (22 – 25)
[10]
Viveiros v S
[2000] 2 All SA 86
(A)
[11]
See the provisions of Section 208 of the Criminal Procedure Act 51
of 1977 (as amended)
[12]
S v Artman
1968 (3) SA 339A
at 341B-C
[13]
1998
(1) SACR 470
(SCA)
[14]
Record, Vol 5, p
519
[15]
Record,
Vol 5, p 550 - 551
[16]
Record,
Vol 5, p 533 (10 – 20)
[17]
Record,
Vol 5, p 537
[18]
Record,
Vol 5, p 551 (1 – 5)
[19]
S v
Pillay
1977 (4) SA 531
(A) at 534H-535A;
S
v Fazzie
1964 (4) SA 673 (A)
[20]
S
v Nkomo (158/2016) [2018] ZAGPJHC 47 (22 March 2018)
[21]
Professionalism and the intimate examination – are chaperones
the answer? Ames Dhai, Jillian Gardner, Yolande Guidozzi,
Graham
Howarth, Merryll Vorster
et
al
(an article
attached to the Respondent’s Heads of Argument)