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[2021] ZAWCHC 226
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Gaju and Another v S (A110/2021) [2021] ZAWCHC 226 (9 November 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no. A 110/2021
Before: The Hon. Mr Justice Erasmus
The Hon. Mr Justice Binns-Ward
Heard: In terms of s 19(a) of the Superior Courts Act
Judgment: 9 November 2021
In the
matter between:
MSEKELI
GAJU
First
Appellant
SIPHESIHLE
QEQE
Second Appellant
and
THE
STATE
Respondent
Order: The appeals against conviction and sentence
are
dismissed
.
JUDGMENT
Handed down by email to the parties’ legal representatives
and release to SAFLII
ERASMUS
et BINNS-WARD JJ:
[1]
The appellants were each convicted on two
counts of rape in the regional court sitting at Stellenbosch.
The convictions attracted
a prescribed sentence of life imprisonment,
in terms of s 51(1) read with Part 1 of Schedule 2 to the
Criminal Law Amendment Act 105 of 1997
, because the offences were
committed in circumstances where the victim was raped more than
once. The trial court found that
there were no substantial and
compelling reasons to depart from the prescribed sentence and duly
sentenced the appellants to life
imprisonment. The appellants
exercised their automatic right of appeal against both their
convictions and sentence.
With the consent of the appellants’
legal representatives, the appeal was disposed of in terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
on the papers with written
argument.
[2]
The complainant testified that the
appellants were part of a group of young men that accosted her and
two other women as they walked
to a friend’s house late at
night. They managed to shake the men off by pretending that
they had arrived at their destination.
The complainant’s
two companions then went to a shebeen and the complainant, who had
decided to go home, then noticed that
the men were still showing an
interest in her, especially the first appellant. She asked a
woman who was in charge of selling
drinks to people wishing to go
into the drinking area of the shebeen for shelter but was turned away
because the woman did not
know her. Fortuitously, her brother
emerged from the shebeen at that stage and was surprised to find her
there. He
agreed to walk home with her. As they went on
their way, the group of young men approached aggressively and, using
knives
and broken bottles to threaten him, frightened the
complainant’s brother into running away. They wanted to
know what
he (the complainant’s brother) was doing with the
first appellant’s ‘girlfriend’. When her
brother
ran off, the group handed the complainant into the custody of
the first appellant telling him that they had got his ‘girlfriend’
for him.
[3]
The first appellant dragged the complainant
to his nearby shack, where he forcibly undressed her and raped her.
While the
first appellant was engaged in sexual intercourse with the
complainant, the second appellant came into the room and he and the
first appellant thereafter repeatedly took it in turns to have
intercourse with the complainant. She was so distressed by
what
had been done to her that she was unable to tell the trial court
exactly how many times each of them had raped her.
She said
that while the two appellants were raping her a third man had come
into the room apparently intending to join in the assault.
This
third person had been sent away by the appellants.
[4]
The complainant pretended that she needed
to urinate and used the opportunity, when the appellants provided her
with a container
to use for that purpose, to break out of the room
and run, completely naked, to another shack a few doors away where
she burst
in and asked the astonished occupant, who was an older man,
for sanctuary. She told this man, who testified at the trial,
that she had been raped. He lent some clothing to cover her
nakedness. She was also able to tell him the first name
of one
of her assailants (the first appellant) because she had heard the
second appellant use it when speaking to the first appellant
when
they were raping her. The man recognised the name. He
asked the complainant if she would go with him to confront
the
appellant. She declined, saying she wanted to go home because
she was in fear.
[5]
When the complainant reached home and
reported what had happened, various of her family members accompanied
her back to the place
where the assault had occurred. They
found a crowd of people gathered there including the person who had
assisted the complainant
after she had escaped from the appellants.
The evidence was that the first appellant was present and admitted
that he had
had sexual intercourse with her. He apologised for
his actions and said that he had been intoxicated. His family
offered
to pay compensation if the complainant would refrain from
laying a charge.
[6]
The matter was reported to the police and
the complainant was medically examined later the same day.
[7]
The complainant’s evidence was
corroborated in material respects by that of her brother and Mr
B[....] B[....], the person
in whose shack she had sought refuge when
she escaped from the appellants. The latter witness was called
by the court, the
prosecutor, quite astonishingly, having failed to
call him in the state’s case.
[8]
The appellants both admitted having sexual
intercourse with the complainant but claimed that it had been
consensual. The first
appellant claimed that he had intervened
to stop the complainant from being pestered by another man and that
they had thereafter
fallen into conversation and gone to his shack
where he proposed that they have sex, to which she agreed. He
had fallen asleep
after they had had sexual intercourse.
[9]
The second appellant testified that when he
arrived home from the shebeen he had found that the door to his shack
was padlocked.
He went to the first appellant’s shack to
borrow a hammer with which to break the padlock open. He was
sitting in the
room next to room in which the first appellant slept
when the complainant emerged. They fell into conversation, in
the course
of which he proposed that they have sexual intercourse, to
which the complainant agreed.
[10]
The trial court accepted the evidence of
the state witnesses and rejected that of the appellants. In our
judgment it was wholly
justified in doing so. The complainant’s
evidence was corroborated by an entirely independent witness.
The notion
that the complainant would have run naked from the first
appellant’s shack into the street and then burst into a
stranger’s
home in a state of high distress if she had had
consensual congress with the two men was completely far-fetched.
[11]
The evidence makes it clear that the
complainant and her two companions were targeted by a roving group of
young men looking for
mischief. It is evident that when the
complainant was left on her own after her two companions went into
the shebeen, the
complainant was identified by the group as prey for
the first appellant’s sexual pleasure. The second
appellant, who
was part of the group, plainly decided to join in the
rape. That would explain how he came to enter the first
appellant’s
room unannounced while the latter was engaged in
raping the complainant and then joined in the activity as if it were
some sort
of game.
[12]
It is also apparent that the charge sheet
was incompetently drafted. The complainant’s evidence
indicated that she was
raped by each of the appellant’s
repeatedly. It is unlikely that the complainant’s
evidence in this respect could
have deviated materially from her
witness statement because had it done so, she would undoubtedly have
been confronted with the
deviation by at least one of the appellants’
legal representatives at the trial. The fact that the
complainant’s
evidence would support charges on multiple counts
of rape, not just two, should have been evident to the prosecution
before the
trial commenced. Charging the appellants with just
two counts of rape was grossly inappropriate and a travesty of
justice
in the circumstances. It also bears mention that the
charge sheet did not contain a reference, as it ideally should have,
to
s 3
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
, which recast the common law offence of rape
in statutory form.
[13]
The courts have on more than one occasion
previously criticised the shoddy preparation of charge sheets in
serious sexual assault
cases; see
S v
Mponda
2007 (2) SACR 245
(C),
[2004]
All SA 229
,
S v Ro and Another
2010 (2) SACR 248
(SCA) at para 27-28,
S
v ZW
2015 (2) SACR 483
(ECG) at para
33-35 and
S v DJ
2019 (2) SACR 613
(WCC). It is extremely worrying that the
concern expressed in those judgments does not appear to have
incentivised the prosecuting
authority to institute effective
corrective measures. It makes a mockery of the publicly
professed determination of the National
Directorate of Public
Prosecutions to effectively address the scourge of gender-based
violence.
[14]
The appellants were both very young men at
the time of the commission of the offence, one of them was 20 and the
other 21.
They were first offenders. They were employed
with no dependants. Those were all factors that weighed in
favour of
some mitigation. The magistrate was cognisant of
them. He also took into account that they had spent two years
in custody
in connection with the offences before they were
sentenced. Weighing against the mitigating factors were the
aggravating
ones. Most especially, the particularly heinous
nature of the rape. The complainant was preyed on by a gang of
marauding
young men and seized in violent circumstances when she was
especially vulnerable. She was thereafter grossly demeaned by
the dehumanising way in which the appellants treated her as a mere
object for their sexual gratification. This was a very
serious
instance of rape, and it ended only because the complainant was able
to escape. The evidence made it clear that had
she not managed
to get away, the sexual assault would have continued, as while the
complainant was urinating, she heard the appellants
arguing as to
which of them should have the next turn at raping her again.
Even her escape was a most humiliating experience,
necessitating her
to run naked into the street and in that embarrassing state throw
herself on the mercy of a complete stranger.
The appellants
also showed no remorse for their actions. After unsuccessfully
trying to buy the complainant off, the first
appellant’s
initial apology for his actions quickly turned into a fallacious
claim that the complainant had consented to
sexual intercourse with
him. The second appellant’s dishonest defence added
insult to injury by making the complainant
out to be a woman of easy
virtue.
[15]
In all the circumstances there is no reason
to fault the magistrate’s finding that there were no
substantial and compelling
circumstances to justify a departure from
the prescribed sentence. The appellants’ legal
representatives referred us
to a number of judgments in which lesser
sentences were imposed in comparably serious rape cases. There
are, however, also
examples of comparable cases in which the sentence
of life imprisonment has been imposed; see, for example
S
v Moyo
[2013] ZAKZDHC 77 (8 August
2013), 2014 JDR 1308 (KZD);
S v Mini
[2015] ZAECGHC 111 (14 October 2015), 2015 JDR 2253 (ECG) and
S
v De Wee
[2016] ZAECGHC 152 (20 October
2016), 2017 JDR 0005 (ECG).
[16]
The inconsistency in sentencing in rape
cases has been the subject of discussion in the literature; see SS
Terblanche,
The Guide to Sentencing in
South Africa
3
rd
ed. (LexisNexis, 2016), at §3.5.4.6 and 3.5.5. It is a
fact that reflects that no one case is exactly like another,
and that
sentencing is not a mechanical judicial function. It involves
the exercise of judicial discretion by the judge or
magistrate who
presided over the trial and saw and heard the victims and the
perpetrators at first hand.
[17]
In the context of there having been no
identified misdirection by the magistrate in his factual findings and
in the exercise of
his discretion, the ultimate test is whether the
sentences imposed induce a sense of shock; in other words, whether,
objectively
considered, they strike us as being clearly
disproportionate in the circumstances (cf.
S
v Vilakazi
[2008] ZASCA 87
;
[2008] 4
All SA 396
(SCA);
2009 (1) SACR 552
;
2012 (6) SA 353).
If they
are not, it does not matter that we might instead have imposed a
lengthy determinate sentence had we been sitting
at first instance.
As Rogers J observed in the full court’s judgment in
S
v GK
2013 (2) SACR 505
(WCC) at par 14,
it is not enough to justify interference by an appellate court for it
just to feel ‘
uneasy at the
imposition of a life sentence ...
[it
must]
have a conviction that such a
sentence would be unjust, ie disproportionate to the crime, the
offence, and the legitimate needs
of the community
’.
[18]
For these reasons the appeals against
conviction and sentence are dismissed.
N.C. ERASMUS
Judge of the High Court
A.G. BINNS-WARD
Judge of the High Court