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[2016] ZAGPJHC 53
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Cebekhulu v S (A291/2015) [2016] ZAGPJHC 53 (17 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: A291/2015
DATE:
17 MARCH 2016
In the
matter between:
CEBEKHULU,
NKOSINATHI
N
............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
Appellant was convicted
in the Magistrate’s Court at Germiston of rape and sentenced to
a term of life imprisonment both of
which he now appeals.
2.
The complainant,
[D………], was alone at home late at night on the
22
nd
March 2009 but not yet sleeping because her one month old baby was
still awake. About midnight someone managed to open the locked
front
door and enter into her home. She recognised this man as the
appellant, a friend of someone else, called [T……….].
3.
The appellant pulled
her and she pushed him, she tried to run and she fell down, there was
a struggle. This man then bit her on
her breast, threw her on the
floor, beat her on her right eye and bit her around her face.
4.
He then tore off her
pants, opened his zip, removed his penis and raped her. He then
attempted to use a piece of wire to throttle
her and continued to
rape her.
5.
However, her friends –
[M……..], [N………], [N…….]
and [N……..]
– arrived. The appellant ran away.
They went to his house and then to the SAPS.
6.
Three issues arise for
determination. The identity of the perpetrator of the sexual attack
and rape which undoubtedly occurred.
The non-consensual nature of any
sexual intercourse which took place. Whether or not the complainant
was afflicted with grievous
bodily harm.
Identity
7.
Complainant testified
that she knew the identity of appellant and recognised him that
evening. She undoubtedly had sufficient opportunity
to recognise her
assailant first as they struggled and then as he raped her.
8.
One of her friends,
[N…….] [G……..], testified that she knew
appellant because “we stay in the
same area” and had
“known him from 2008” and by the nickname “K”.
She said that, as she and the other
friends approached complainant’s
house that evening, they all saw the door to the house opening and
they commented that complainant
had been waiting for them to arrive.
Then “we saw a male person coming out and running”.
Because there was a light
shining outside, she was able to recognise
that the person running away was appellant.
9.
Appellant gave evidence
in his defence. His version was that he and the complainant had been
in a relationship for some ten months
and had had consensual sex. He
did not testify that they had sex on the particular evening of 22
nd
March but appeared to base his defence upon lack of force or the
intention to rape and the consensual nature of all sexual intercourse
which they had enjoyed. In short, it was not exactly clear that he
disputed his presence in her home that evening. He was clear
that
they had sexual intercourse on 3
rd
April.
10.
However, on the
evidence of complainant and Ms [G……..], I am satisfied
that the learned magistrate made no error in
finding that the man in
her house that evening was indeed the appellant.
Rape
11.
There can be no doubt
that the complainant was raped on the evening of 22
nd
March 2009.
12.
Firstly, her version is
clear and (save for identity of the perpetrator) is not disputed as
to the attack upon her. Secondly, Ms
[G……..] confirmed
that she and the other friends arrived at the complainant’s
home and found her lying on the
floor “groaning, somebody
suffering”. She did “not have clothes on her lower body”.
The complainant made
an immediate report to Ms [G……..]
and friends that appellant had raped her – “K”
being the name
by which appellant was known to Ms [G……..].
13.
Exhibit A3 at page 64
onwards of the Record is the medical report, completed on the night
of 22
nd
March at the Germiston Hospital. It records bite marks to the right
chest, face and nipple of the left breast. It records nail
marks on
the neck. It records a swelling on the right side of the face. There
is no recording of any injuries in the genital area
but then
complainant had one month prior given birth to a child and such would
probably not be visible.
14.
The evidence confirms
that the complainant was attacked in her home. There can be no
finding that any sexual intercourse which took
place as a result of,
or in the course thereof, was consensual.
15.
Appellant presented a
version that he and the complainant had been in a relationship for
some ten months and had consensual sex
on other occasions, but he did
not explicitly state that they had intercourse that evening. However,
his version as to their relationship
must be rejected. First he does
not know her surname; secondly, he knows nothing anything about her
baby who was both conceived
and birthed whilst he was supposedly in a
relationship with her; and thirdly, he suggests that they had sexual
intercourse on 3
rd
April which is a few days after the rape, the injuries and the
complaint.
16.
I find no misdirection
in the magistrate’s conviction of rape.
SENTENCE
Grievous
Bodily Harm
17.
The minimum sentence
required to be imposed by Act 101 of 1997 for the offence of rape as
contemplated in Part III of Schedule 2
is that of imprisonment of a
period of not less than 10 years when the accused is a first
offender.
18.
However, where the rape
involves “the infliction of grievous bodily harm” then
the rape falls within Part I of Schedule
2 and a minimum sentence of
life imprisonment must be imposed unless the court is satisfied that
substantial and compelling circumstances
justify the imposition of a
lesser sentence of imprisonment.
19.
The learned magistrate
found in his judgment on conviction that the photographs of the
complainant indicate “serious injuries,
visible in her face,
when she testified on 25 June the injuries was still visible.
She will probably have those scars for
the rest of her life”
(page 33 of the Record) and in his judgment on sentence that
the appellant “brutally
assaulted her, by biting her in
the face, at least three times, once on the breast, by throttling her
and we have the
photographs taken by the police officer that show the
injures. It is shocking, she will have these scars for the rest of
her life”
(page 37 of the Record).
20.
The only evidence
before the court on the nature and extent of the injuries is the J88
medical form completed at the Germiston hospital.
The bite and nail
marks are noted as well as the swelling. The report gives no
indication of any medical or surgical intervention.
The complainant
was not asked about any medical treatment.
21.
I do not know (because
no one thought to ask) whether or not any of the bite marks required
stitching or whether any other treatment
was offered. All this appeal
court knows is that the magistrate could still see the marks several
months later at the time of the
trial.
22.
I have considered
whether or not these injuries and the events as described by
complainant constitute “grievous bodily harm”
as
contemplated within the Act. There is no definition in the Act. But
this concept is familiar in the distinction drawn in criminal
law
between ‘common assault’ and ‘assault with intent
to commit grievous bodily harm’. I note that in the
legislation
under consideration, Act 105 of 1997, it is not intention in relation
to the harm but the infliction of the harm which
is at issue.
23.
In
S
v Seatholo and another
1978 (4) SA 369
TPD, the court referred with approval to that which
was said in
S Mbelu
1966 (1) PH H176 with regard to the meaning of ‘grievous bodily
harm’:
“
these
are the factors which provide the index to the accused’s state
of mind. They are, first, the nature of the weapon or
instrument
used, secondly, the degree of force used by the accused in wielding
that instrument or weapon, thirdly, the situation
on the body where
the assault was directed and, fourthly, the injuries actually
sustained by the victim of the assault”.
24.
Whilst I bear in mind
that both these courts were enquiring into intent as opposed to
infliction, I note that Goldstone AJ in
Seatholo
supra
had regard to
the presence of the absence of open wounds, and the absence of
medical evidence.
25.
In
S
v Melrose
1985 (1)
720 SA ZSC, the court referred to a number of judgments at page 722
where the harm must be “such as seriously to
interfere with
comfort or health” or “such as seriously to interfere
with health”, where ‘grievous’
means no more and no
less than “really serious”. There was discussion in that
judgment about the distinctions between
‘comfort’ and
‘health’. There was discussion as to the distinction
between “really serious”
and “seriously interfere
with health”. The court made no finding thereon.
26.
In this case, we
also need make no finding. There was, as I have already indicated, no
medical evidence as to any degree of ‘seriousness’
or
‘harm’ or ‘health’. There was no evidence as
to medical interventions. The comments in
Melrose
supra
on the need
for prosecutors to “regard it as the rule rather than the
exception that the doctor’s evidence is necessary”
is
equally apposite in a case such as this.
27.
The injuries which
constitute the harm are described as swelling, bite marks and nail
marks. They are visible to both the photographer
and were visible to
the learned magistrate. But we know no more than that. I am loathe,
in the absence of evidence to sentence
a man to serve a period of
life imprisonment where evidence has not been placed before the court
to establish ‘infliction
of grievous bodily harm’.
28.
In the result I cannot
say that the learned magistrate had before him sufficient evidence,
other than his own eyes, to decide that
‘grievous bodily harm’
had been inflicted. In the result, he could not have found this rape
to constitute one which
falls within the ambit of Part I of Schedule
2.
Rape
in Part III of Schedule 2
29.
The appellant is a
first offender. A sentence of fifteen years imprisonment is the
prescribed minimum sentence.
30.
No substantial or
compelling circumstances were found by the learned magistrate.
Indeed, the record indicates none which would justify
imposition of a
sentence less than the prescribed minimum.
31.
An aggravating factor
is that the complainant did sustain injuries as already described.
She fought appellant and in the process
of forcing her and subduing
her, appellant inflicted such injuries upon her. She is clearly a
strong woman who was quick witted
and took action against this
intruder into her home and against her physical integrity. She
cannot, in any way, be criticized for
such opposition. It is the
appellant who chose to inflict these injuries. A further aggravating
factor is that appellant forced
his way into her home where she, and
her baby, should be safe from harm.
32.
It is my view that an
appropriate sentence which should be imposed on the appellant is one
of 16 years imprisonment such sentence
to be antedated to the 1
st
July 2010 which is the date when he was sentenced in the Germiston
court.
ORDER
33.
In the result an order
is made as follows:
a.
The conviction of rape
is upheld and the appeal against conviction is dismissed.
b.
The sentence of life
imprisonment imposed by the court
a
quo
is set aside
and the following is substituted therefore:
“
A sentence of 16 (sixteen)
years imprisonment is imposed which sentence is antedated to 1
st
July 2010”.
c.
The order that the
appellant is unfit to possess a firearm made in terms of section 103
of Act 60 of 2000 is confirmed.
DATED
AT JOHANNESBURG 17
th
MARCH 2016
SATCHWELL J
I
agree.
MOKOENA AJ
Counsel
for Appellant: Adv Cosyn
Attorneys
for Appellant Legal Aid of SA
Counsel
for Respondent: Adv Makua
Attorneys
for Respondent: Office of the DPP
Dates
of hearing: 17
th
March 2016.
Date
of judgment: 17
th
March 2016.