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[2021] ZAWCHC 110
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Oerson v S (A259/2020) [2021] ZAWCHC 110 (2 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case number: A259/2020
In
the matter between:
DERIL
OERSON
Appellant
and
THE
STATE
Respondent
Court:
Justice Fortuin
et
Acting Justice Nel
Heard:
21 May 2021
Delivered:
2 June 2021
JUDGMENT
(Delivered
by email to the parties’ legal representatives and by release
to SAFLII.
The judgment shall be deemed to
have been handed down at 10h00 on 2 June 2021)
NEL
AJ:
1.
On 27 September 2019 the appellant, who
pleaded not guilty was convicted as charged in the Beaufort West
regional court on two counts
of rape. The two counts were taken
together for purposes of sentencing and the appellant was sentenced
on 21 October 2019
to an effective fifteen years imprisonment.
He unsuccessfully applied for leave to appeal to the court
a
quo
on 18 November 2019; however, his
petition to this court for leave to appeal was successful and he
appeals against both conviction
and sentence.
2.
The convictions pertain to two separate
complaints but essentially arose out of one incident. It was
common cause that the
complainant and the accused grew up together in
Nelspoort and have known each other since childhood. It is
further common
cause that they had on two prior occasions, had sexual
relations with one another. The events which led up to the
incident
in the present matter were that in the early hours of 27
January 2018 the complainant and the accused were both at their local
tavern. They had spoken to each other outside the tavern once
or twice, and during one of these conversations the accused
asked the
complainant if they could kiss. The complainant testified that
she had reminded the accused that she had a boyfriend
who was in Cape
Town at the time. This was denied by the accused.
3.
The complainant and the accused thereafter
walked together to her cousin’s house. Complainant
proceeded to have two
glasses of red wine at her cousin’s
house, whilst the accused waited outside for her. She tried to
wake her brother
up to walk her home but he was too drunk to do so.
Both the complainant and the accused had consumed a fair amount of
alcohol
the evening of 26 January 2018 leading into the early hours
of the morning on 27 January 2018. They left the house of the
complainant’s cousin and the accused continued to walk the
complainant home. The complainant testified that during
this
walk the accused grabbed her arm and said that she should come with
him to his grandfather’s house where he resided.
She
declined. They then saw an individual who was identified as
“Oom Tommy”. The complainant testified
that she
managed to escape the accused’s grip and ran to Oom Tommy and
asked him for help. He was however too drunk
to assist her.
After briefly chatting to the accused, Oom Tommy was on his way
again.
4.
The complainant testified that after Oom
Tommy’s departure, the accused grabbed her neck and threw her
down to the ground
in Bloekomboom Street. She testified that
she tried to scream to get help but no one heard her.
The complainant
testified that the accused threatened her and told
her that if she tried to get away he would hurt her. He
thereafter pulled
down her pants and underwear (of which she was
wearing two). He then inserted his fingers into her vagina
followed thereafter
by his penis. He did not use a condom.
She testified further that he told her that no one would believe her
if she
reported the incident and that his mother had the best
lawyers. When he was done he wiped her off with toilet paper,
adding
that now no one could find anything on her. He pulled
her underwear and pants back up and proceeded to walk her to the
corner
of the street in which she lived. A photo album which
was handed in as Exhibit “
A
”
evidenced toilet paper at the scene as well as a panty liner which
the complainant was wearing.
5.
The accused on the other hand testified
that after Oom Tommy’s departure, he and the complainant went
to go and sit in Bloekomboom
Street and drank a further beer and
smoked a cigarette. They then began kissing. The
complainant requested for them
to go to his grandfather’s house
however he informed her that it was too far. He then suggested that
they go to her house,
but she informed him that her mother and her
mother’s boyfriend were at home. They then continued
kissing passionately,
where they were sitting, which led to them
having intercourse. He denies ever placing his fingers inside
the complainant’s
vagina. He admits not making use of a
condom, but testified that the intercourse was consensual. He
testified that
thereafter they sat and smoked another cigarette and
he then walked with her until one house away from her home. He
testified
that at that time the complainant was “piekfyn”.
6.
The complainant’s evidence, which was
corroborated by the evidence of her mother was that when she got
home, she was crying.
Her mother, who had opened the door for
her, asked her what was wrong. She informed her mother that the
accused had raped
her. Her mother then telephoned her father
who came over immediately, and who called the police. The
police arrived
shortly thereafter and she gave them a statement at
approximately 10am that morning, and was taken to the district
surgeon for
a physical examination at approximately 11:15am.
She testified that her neck and vagina were sore.
7.
It is evident from the medico-legal report
(the J88) that the complainant was examined by Dr. Cornel Scholtz at
the Beaufort West
hospital. Dr. Scholtz was not available to
testify, however, the medico-legal report was handed in, without
objection, in
terms of
section 212
of the
Criminal Procedure Act 51
of 1977
as Exhibit “
B
”.
The findings of Dr. Scholtz were, in summary, that the complainant
had abrasions and bruising on her neck, that there
was vaginal
bleeding and tears, and that penetration most likely took place.
This largely corroborated the version of the
complainant.
8.
The complainant testified further that she
had wanted to withdraw the charges against the accused as it had
taken up a lot of her
time, she didn’t want the accused’s
son growing up without his father, and the accused’s
grandfather spoke to
her mother and requested that she withdraw the
case. She testified that she wanted the accused to obtain
psychological help,
as she didn’t want the same thing to happen
to someone else. His grandfather had informed her mother that
the accused
had indeed obtained psychological assistance. She
and the accused had also discussed the matter and he had asked for
her
forgiveness. These things all contributed to her wanting to
withdraw the charges. The State however elected to proceed.
9.
The complainant and her mother were the
only witnesses called on behalf of the State, and the appellant is
the only witness who
testified in his defence.
10.
The first issue in this appeal is whether
the sexual intercourse was consensual. The trial court gave a
comprehensive and
well-reasoned judgment and correctly found that,
notwithstanding that the complainant was a single witness, her
testimony was clear
and satisfactory in every material respect, and
that corroboration could be found in the report made by the
complainant to her
mother as well as the injuries she sustained as
recorded in the medico-legal report. It furthermore correctly
found that
the probabilities supported her version. In my view
the only reasonable inference to be drawn is that the complainant had
not consented to the appellant inserting his fingers into her vagina
and having sexual intercourse with her. The appellant’s
version was not reasonably possibly true. There was accordingly
no misdirection by the trial court and the appellant was
correctly
convicted of rape.
11.
The second issue in this appeal is whether
the state proved that there were two separate incidents of rape.
12.
In
S v Tladi
2013 (2) SACR 287
(SCA) the appellant was charged with two counts of
rape. He overpowered the complainant in his room. She
fell onto
a sponge. He unzipped his trousers, removed her panty
and had sexual intercourse with her twice without her consent.
He was convicted on both counts and sentenced to life imprisonment.
Saldulker AJA found that, on the evidence only one act of rape
had
been proved beyond reasonable doubt. At para [31] the learned judge
held that:
There is no evidence from the
complainant as to how the appellant raped her for the second time.
The complainant’s evidence
does not suggest that there was an
interruption in the sexual intercourse to constitute two separate
acts of sexual intercourse
and, therefore, two separate acts of rape.
The complainant’s evidence suggests that the sexual acts were
closely linked and
amount to a single continuing course of conduct.
There is no suggestion in her evidence that there was any appreciable
length of
time between the acts of rape to constitute two separate
offences. The evidence against the appellant is therefore
limited
and is insufficient to establish his guilt on two separate
counts of rape. The trial court should have analyzed the
state’s
evidence and should have concluded that only one act of
rape had been proved beyond a reasonable doubt.
13.
Moreover, in the matter of
S
v Ncombo
2017 (2) SACR 683
(ECG) at
para [14] Bloem J held that:
Mr. Mtsila submitted that the
first rape occurred when the appellant inserted his fingers into the
complainant’s vagina and
that the second rape occurred when he
inserted his penis into her vagina after the withdrawal of his
fingers. Applying the
principles that emanate from the above
authorities to the facts of this case, I conclude that the
complainant’s evidence
described one continuing course of
conduct consisting of the insertion of the appellant’s fingers
and, upon the withdrawal
thereof, the almost immediate insertion of
his penis into her vagina. That evidence does not suggest that
there was an interruption
in the appellant’s conduct between
the time that he withdrew his fingers and the insertion of his penis,
sufficient to constitute
two separate acts of rape. Mr.
Mtsila’s submission, that the two separate rapes had occurred
when the appellant inserted
his fingers and thereafter his penis into
the complainant’s vagina, can accordingly not be sustained.
14.
I am of the view that on the facts of the
present matter and applying the principles set out above, there was
no interruption in
the appellant’s conduct which would
constitute two separate acts of rape, nor did the appellant have the
requisite intention
of raping the complainant twice.
Consequently, there was no basis for the conviction on the first
count of rape and it falls
to be set aside.
15.
Regarding sentence, the trial court took
into account the fact that the appellant had been convicted of two
counts of rape and formed
the view that the offence accordingly fell
within the parameters of
Part I
of Schedule 2 of the Criminal Law
Amendment Act 105 of 1997, which prescribed a sentence of life
imprisonment. In that regard
the court erred.
16.
In light of the appellant being convicted
of only one count of rape, which falls within the ambit of Part III
of Schedule 2, the
prescribed minimum sentence, in
section
51(2)(b)(i)
of the
Criminal Procedure Act, for
a first offender is a
period of 10 years imprisonment.
17.
The trial court found that there were
substantial and compelling circumstances that warranted a deviation
from life sentence which
it incorrectly found was applicable.
18.
I am of the view that there are indeed
substantial and compelling circumstances for deviating from the
prescribed minimum sentence
of 10 years imprisonment as well.
19.
In
S v Malgas
2001 (1) SACR 469
(SCA) at para [22] to [25] the court set out the
approach to be taken in assessing the existence of substantial and
compelling
circumstances for the purposes of section 51 of the Act.
The judgment made clear that, although the legislature ordained that
the prescribed minimum sentences are to be regarded as “ordinarily
appropriate” in the absence of weighty justification
to the
contrary when crimes of the kind specified are committed, an
individualized response to sentencing a particular offender
has not
been dispensed with by the Act. Accordingly, if a court is
satisfied for objectively convincing reasons that the
circumstances
of a particular case render the prescribed sentence unjust, that is
disproportionate to the crime, the offender and
the legitimate needs
of society, it is entitled to characterize them as substantial and
compelling. This has subsequently
been referred to as the
“determinative test”.
20.
The Constitutional Court in
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC) at para
[40]
approved the approach set out in Malgas as “undoubtedly
correct”.
21.
Furthermore, in
S
v Vilakazi
2009 (1) SACR 552
(SCA) the
court emphasized that rape is a repulsive crime, humiliating,
degrading and brutally invasive of the privacy, dignity
and person of
the victim, but continued to say that punishment must always be
proportionate to the deserts of the particular offender,
no less but
also no more.
22.
The appeal court’s judgment in
S
v SMM
2013 (2) SACR 292
(SCA) is also
instructive. I thus quote extensively from that judgment as
follows:
[14]
Our country is plainly facing a crisis of epidemic proportions
in
respect of rape, particularly of young children. The rape statistics
induce a sense of shock and disbelief. The concomitant
violence in
many rape incidents engenders resentment, anger and outrage….
The public is rightly outraged by this rampant
scourge. There is
consequently increasing pressure on our courts to impose harsher
sentences primarily, as far as the public is
concerned, to exact
retribution and to deter further criminal conduct. It is trite that
retribution is but one of the objectives
of sentencing. It is also
trite that in certain cases retribution will play a more prominent
role than the other sentencing objectives.
But one cannot only
sentence to satisfy public demand for revenge – the other
sentencing objectives, including rehabilitation
can never be
discarded altogether, in order to attain a balanced, effective
sentence. The much quoted Zinn dictum remains
the leading
authority on the topic. Rumpff JA’s well-known reference to the
triad of factors warranting consideration in
sentencing, namely the
offender, the crime and the interests of society, epitomises the very
essence of a balanced, effective sentence
which meets all the
sentencing objectives…
[17]
It is necessary to reiterate a few self-evident realities. First,
rape is undeniably a degrading,
humiliating and brutal invasion of a
person’s most intimate, private space. The very act itself,
even absent any accompanying
violent assault inflicted by the
perpetrator, is a violent and traumatic infringement of a person’s
fundamental right to
be free from all forms of violence and not to be
treated in a cruel, inhumane or degrading way…
[18]
The second self-evident truth (albeit somewhat contentious) is that
there are categories of severity
of rape. This observation does not
in any way whatsoever detract from the important remarks in the
preceding paragraph. This court
held in S v Abrahams that
‘some rapes are worse than others, and the life sentence
ordained by the Legislature
should be reserved for cases devoid of
substantial factors compelling the conclusion that such a sentence is
inappropriate and
unjust’. The advent of minimum sentence
legislation has not changed the centrality of proportionality in
sentencing. In Vilakazi Nugent
JA cautioned against the
danger of heaping ‘excessive punishment on the relatively few
who are convicted in retribution for
the crimes of those who escape
or in the despairing hope of that it will arrest the scourge’.
23.
Returning to the facts of the present
matter, the aggravating features are that the complainant and the
appellant had grown up with
each other and there was accordingly a
degree of trust between them which had been broken. The accused
also showed no remorse
by denying in court that he had inserted his
fingers into the complainant’s vagina and alleging that he had
consensual intercourse
with her. Instead of taking
responsibility for what he had done, he sought to portray the
complainant as a liar and thus
in effect victimizing her again.
Although the evidence of the consequences of the rape to the
complainant were superficial,
she undoubtedly suffered a traumatic
experience which had (at least) a substantial adverse psychological
affect.
24.
The mitigating factors are that the
appellant was a first offender, only 20 years of age at the time of
the rape, was employed,
and had a one-year-old son. These point
to a realistic possibility of rehabilitation and a low risk of
re-offending.
This is further supported by the fact that even
prior to his conviction and sentencing the appellant attended a 3
month residential
programme offered by an organization called The
Chrysalis Academy. In a “Character Reference” for
the appellant,
handed up in the trial court as Exhibit “
C
”,
Dr. Lucille Meyer, who appears to be the Chief Executive Officer of
Chrysalis confirmed that the appellant attended the
programme from 12
January 2019 to 6 April 2019. She states that Chrysalis is a
youth development organization as well as
a social crime prevention
initiative, who empower young people to take responsibility for their
personal growth. She states
further that the appellant’s
behaviour was positive during his time there and he was a
good-natured young man always open
to supporting and motivating his
peers. A further mitigating factor is that other than the
bruises and abrasions on
her neck, no physical injury was caused to
the complainant other than the physical injuries inherent in the
offence.
25.
In
a pre-sentencing report prepared by the Department of Social
Development, dated 21 October 2019 (the same date that the appellant
had been sentenced by the trial court), it was recommended that a
sentence of correctional supervision would be appropriate in
the
present matter, although reference is made to section 276(1)(i), and
not
section 276(1)(h)
of the
Criminal Procedure Act.
>
26.
Having regard to all of the above, I am
of the view that a sentence of 8 years imprisonment would be
appropriate.
27.
In the result, the following order
is made:
i.
The appeal against the conviction on count
2 is dismissed.
ii.
The appeal against the conviction on count
1 is upheld and the conviction is set aside.
iii.
The appeal against the sentence of 15 years
imprisonment is upheld.
iv.
The sentence imposed upon the appellant on
21 October 2019 is set aside and replaced with the following:
“
The
accused is sentenced to 8 years imprisonment, antedated, in terms of
section 282
of the
Criminal Procedure Act, to
21 October 2019
”.
NEL AJ
I
agree and it is so ordered.
FORTUIN J