About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 31
|
|
Ndaba and Another v S (A99/2012) [2014] ZAGPJHC 31 (7 March 2014)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LOCAL
DIVISION JOHANNESBURG)
CASE
NO: A99/2012
DATE:
7 MARCH 2014
In
the matter between
SAMUEL
NDABA
FIRST
APPELLANT
ANDILE
KHUMALO
SECOND APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
VAN
OOSTEN J
et
MOSIKATSANA
AJ:
[1] The appellants were
convicted in Vosloorus regional court as follows: appellant 1 on two
counts of rape (counts 1 and 2) and
appellant 2 on count 2 only. The
charges arose from the same incident. Both appellants were remitted
to this court for sentence,
pursuant to the provisions of s 52(1)(b)
of Act 105 of 1997 (the Act). The matter came before Fevrier AJ, who
confirmed the conviction
being in accordance with justice in terms of
s 52(3)(e) of the Act and having considered pre-sentence reports in
respect of both
appellants, as well as the evidence led by the State,
sentenced both appellants to life imprisonment. Both appellants were
declared
unfit to possess a firearm. The appeal is directed against
conviction and sentence and is with leave of the court a quo.
[2]
First, the conviction. The disputes in this matter are relatively
narrow: it is common cause that the complainants and the appellants
were in each other’s company some time during the evening of
the day of the incident. Appellant 1 denied having had sexual
intercourse with the complainants whereas appellant 2 corroborated
the version of the complainants that they were raped by appellant
1.
Appellant 2 although admitting having been present at all relevant
times, raised a defence of coercion to which I shall revert.
[3] It is necessary to
briefly refer to the evidence of the two complainants (referred to in
counts 1 and 2) who were the only witnesses
to testify for the State.
They were young girls of children of […..] years and [….]
years old respectively, when
they testified. The incident from which
the charges arose occurred on 1 May 2004, at approximately 18h00,
when the complainants
were walking together on their way to Windmill
Park. According to their evidence, they met four males including the
appellants.
The complainants knew the appellants as they had grown up
in the area where the appellants lived. They noticed appellant 1 who
approached them. They tried to flee into a nearby house but the door
was locked.
[4] Appellant 1 caught up
with the complainants. He produced a firearm. Both appellants took
them to an open veld. Appellant 1 ordered
appellant 2 to have sexual
intercourse with first complainant and he proceeded to rape the
second complainant. Appellant 1 and
the second complainant remained
behind whilst appellant 2 and first complainant walked further.
Appellant 1 threatened to assault
the second complainant and
proceeded to rape her. The second appellant who was holding first
complainant’s arm continued
walking and along the way they
waited for the second complainant and appellant 1 to catch up with
them. The appellants took the
complainants to a shebeen. Before
entering the shebeen, appellant 1 hid what they perceived to be two
firearms in the veld. They
entered the shebeen, ordered and consumed
liquor, and stayed there for a short while.
[5] No alarm was raised
as the complainants were afraid of the appellants. Appellant 2
forcefully pulled the first complainant
out of the shebeen. Appellant
1 joined them outside. The second complainant remained in the shebeen
with the other ladies. The
two appellants forced the first
complainant to walk further with them. As they were walking,
appellant 1 took out money after fetching
the two firearms from where
he had hidden them. He handed money to appellant 2 and instructed him
to go back to the shebeen to
buy liquor for them. Appellant 2
obliged. Appellant 1 tripped the first complainant and she fell. He
got on top of her but did
nothing as just then appellant 2 arrived
with the liquor he had bought at the shebeen. Appellant 1 got off the
first complainant
and told appellant 2 to have sexual intercourse
with her. Appellant 1 grabbed her by the legs, took off her trousers
and underwear
and appellant 2 proceeded to rape her while appellant 1
was holding her legs. Appellant 1 then took his turn and raped her.
The
appellants then discussed the likelihood of the likelihood of
their arrest and the complainant reporting the incident to her mother
which prompted appellant 1 to suggest that they should kill her and
cover her body with cow dung. Appellant 1 put a firearm against
her
head and offered to pay her R100 should she not report the incident
to her mother. He threatened that their shack would be
burned if she
told her mother. It was late at night and she and appellant 2
proceeded to his house, where they spent the night,
as she was afraid
to go home at that time of the night. The next morning she pretended
to appellant 2 that she was going to fetch
the promised money from
appellant 1 but instead reported the rape at the police station.
Appellant 2 and the first complainant
had previously been in a
relationship during which they had consensual sexual intercourse, but
that relationship had ended.
[6] Appellant 1, in the
meanwhile, returned to the shebeen. The second complainant was still
there on his arrival. He bought liquor
and sat down some distance
away from the complainant. Nothing further happened and appellant 1
left some time later to go home.
Both complainants reported the rapes
to the police and they were subsequently medically examined, on 2 and
5 May 2004, respectively.
The clinical findings and results obtained
were recorded on Form J88 which was handed in by consent. The
conclusion is recorded
as ‘There is no obvious evidence of
forced or violent vaginal intercourse, but rape cannot be ruled out’.
[7] Appellant 1’s
version of the events was that he went to the shebeen at 22h00 that
evening to buy liquor where he ‘found’
appellant 2
sitting with the two complainants. He however, joined another
table and they started drinking. Appellant 2 came
up to him and
requested beer which he gave to him. Appellant 2 returned to the
table where he was sitting with the complainants.
Shortly thereafter
he returned again asking for beer, this time for the complainants,
which appellant 1 gave to him. Appellant
2 left with the second
complainant and he shortly thereafter also left. Appellant 1’s
version was improbable, against
the weight of the evidence, including
the version of appellant 2, and correctly rejected as false by the
trial court.
[8] Appellant 2’s
defence was that appellant 1 ‘instructed’ him to have
sexual intercourse with the first complainant.
He told appellant 1
that he was afraid of getting arrested and what his mother would say
of his arrest. He ‘took’ the
first complainant and walked
with her leaving appellant 1 and the second complainant behind. They
waited for appellant 1 to join
them but eventually he decided to
return to them as ‘it may happen that maybe they have decided
to dodge us’. On their
way they met appellant 1 and the second
complainant and they all went to the shebeen. Appellant 1 was armed
with a firearm. They
eventually left the shebeen and appellant 1 told
him to return to the shebeen and buy liquor which he did. On his
return appellant
1 was with the first complainant and she was crying.
Appellant 1 ‘said’ he should have intercourse with the
first complainant.
He told appellant 1 that he was scared. Appellant
1 took out his firearm, cocked it, slapped the first complainant,
told appellant
2 that he was mad, started taking off the first
complainant’s clothing and ‘instructed’ him to have
sexual intercourse
with her. Appellant 2 then got on top of her and
made up and down movements simulating sexual intercourse. Appellant 1
told him
that he was wasting his time and proceeded to rape her.
[9] Appellant 2
corroborated the version of the two complainants in all material
aspects, except in so far as he attempted to minimise
his role and
exculpate himself. He however, directly contradicted appellant 1’s
version. Appellant 2’s denial of his
participation in the gang
rape was effectively refuted by first complainant who was adamant
that he had also raped her. Appellant
2’s denial was nothing
but a figment of his imagination and a transparent attempt to
exculpate himself. It was rightly rejected
as such by the trial
court.
[10]
The Regional Magistrate was mindful of the cautionary rules
applicable to the consideration of the evidence of young children
(see
R
v Manda
1951
(3) SA 158
(A) at 163C-E;
Viveiros
v S
2000 (2) All SA 86
(SCA).
He
accepted their version as credible and correctly found that they
corroborated each other on all material aspects. No motive to
falsely
incriminate the appellants can be ascribed to them. The evidence
against the accused was overwhelming. No reason exists
for disturbing
any of the findings made by the trial court (see
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15). It follows that the appeal against
conviction must fail.
[11]
As to the sentencing,
s 51(1)
of the
Criminal Law Amendment Act 105
of 1997
applies. A sentence of life imprisonment was mandatory unless
substantial and compelling circumstances, justifying the imposition
of a lesser sentence, existed. The court a quo duly considered the
nature of the offence involving the rape of young girls which
the
learned judge held was a horrendous crime perpetrated by predators
who abuse and rape innocent and defenceless children. No
circumstances justifying a lesser sentence was found and the ultimate
sentence was imposed (see
S
v
Matyityi
2011
(1) SACR 40
(SCA).
[12] It is trite that the
imposition of sentence falls solely within the discretion of the
trial court. The powers of the court
of appeal to interfere with the
sentences imposed, is limited to instances where the sentencing court
did not exercise its discretion
reasonably or the sentence is
shockingly inappropriate or disproportionate. The court a quo, in my
view, exercised its discretion
properly and no misdirections occurred
(see
S v Obisi
2005 (2) SACR 350
(W)).
[13] It is indisputable
that rape is a most vicious crime that shows no regard for the
integrity and feelings of the victim. In
the
locus classicus
concerning rape,
S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) 344, it was
put thus:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilization…The courts are under a duty
to send a clear message to the accused, to other
potential rapists
and to the community: We are determined to protect the equality,
dignity and freedom of all women, and we shall
show no mercy to those
who seek to invade these rights.’
In
S v N
[2008] ZASCA 30
;
2008 (2)
SACR 135
(SCA) para 30 Maya JA stated:
‘
The
sense of outrage justifiably roused by the offence of rape in the
right thinking members of a South African society in which
sexual
violence is so endemic and hardly shows any sign of abating, must in
my view, be a critical factor in the imposition of
a suitable
sentence.’
And, finally, in
DPP,
North Gauteng v Thabethe
2011 (2) SACR 567
(SCA) 577g-I, Bosielo
JA added to the judicial outcry against rape as follows:
‘
Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our recent
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
the 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.’
In
S v Vilakazi
2009 (1) SACR 552
(SCA) and
S v
Mahomatsa
2002 (2) SACR
435
(SCA) it was held that life imprisonment should be reserved for
the most serious cases of rape. The present matter in my view falls
into this category. Lastly, with reference to the interest of
society, Nugent JA, in
S v Schwartz
2004 (2) SACR 370
(SCA)
379b, stated:
‘
I
have pointed out that in the case of serious crimes, societies’
sense of outrage and the deterrence of the offender and
other
potential offenders deserve considerable weight.’
The sentence is neither
shockingly severe nor disproportionate to the severity of the
offences of which the appellants were convicted.
[14] For all the above
reasons there is no merit in the appeal and it must fail.
[15] In the result the
appeal against the conviction and the sentence in respect of both
appellants is dismissed.
__________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
_________________________________
T
MOSIKATSANA
ACTING
JUDGE OF THE HIGH COURT
I
agree.
__________________________
R
MOKGOATHLENG
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPELLANTS
ADV J HENZEN-DU
TOIT
COUNSEL
FOR RESPONDENT
ADV CL SMIT
DATE
OF HEARING
5 FEBRUARY 2014
DATE
OF JUDGMENT
7 MARCH 2014