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Bopape v S (A287/2015) [2016] ZAGPJHC 56 (17 March 2016)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction — Appellant convicted of attempted rape and rape of two minors — Appellant, a security patrol driver, gave two girls (aged 12 and 10) a lift, threatened them, and subsequently raped them in his vehicle — Evidence from both complainants corroborated each other, and medical examination indicated injuries consistent with sexual assault — Appellant did not testify, leading to adverse inferences regarding his silence — Court found magistrate misdirected in convicting on attempted rape instead of rape, resulting in substitution of conviction for rape on appeal.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned a criminal appeal to the Gauteng Local Division, Johannesburg, against convictions imposed by the Alexandria Magistrates’ Court. The appellant was John Malesela Bopape, and the respondent was the State.


The appeal was directed primarily at the correctness of the convictions arising from two sexual offences committed against two minor complainants, aged 12 and 10 years respectively. In the magistrates’ court, the appellant was convicted on count 1 of attempted rape (as a purported competent verdict on a charge framed as rape) and on a further count of rape relating to the younger complainant. The appeal was “narrowly framed” on conviction, focusing on whether any sexual assaults occurred in the security vehicle in which it was common cause the complainants had been transported.


The subject-matter of the dispute was whether the trial court correctly assessed the evidence regarding sexual penetration on the count involving the 12-year-old complainant, and whether the appeal court could correct what it regarded as a misdirection by substituting a conviction for rape (a more serious offence) and adjusting sentence accordingly. The appeal also implicated the statutory minimum sentence regime applicable to rape of children under 16 years.


2. Material Facts


It was common cause that the appellant was a security patrol driver and that he gave both complainants a lift in his security vehicle, with both girls spending some time in that vehicle. It was not in dispute that the appellant was the person who transported the girls; identity was not the issue on appeal.


The complainants’ version, accepted as materially reliable by the appeal court, was that the appellant confronted them after they had been at shops in Midrand, alleging they had stolen, and ordered them into his vehicle. Once inside, the vehicle was driven into bushes, where the appellant ordered both complainants to remove their underpants. The appellant then removed his outer/work or protective clothing. The complainants described sequential sexual assaults occurring inside the vehicle.


Regarding the 12-year-old complainant, she testified that she was instructed to position herself as directed, that the appellant told her to open her legs, and that he inserted his penis into her vagina, moving up and down, causing pain and tears. The 10-year-old complainant corroborated this account, describing the appellant’s instructions and stating that he inserted his penis into the older complainant’s vagina.


Regarding the 10-year-old complainant, the evidence was that the appellant then raped her by inserting his penis into her vagina. There was also evidence that he instructed her to open her mouth and placed his tongue inside. After the assaults, the appellant dressed, threatened the complainants (including by threatening to shoot them with a firearm), and dropped them off.


Both complainants made reports shortly thereafter to their respective parents. Police were called, and security patrol drivers from the relevant firm were brought to the complainants’ home. Both complainants identified the appellant when he appeared as the third driver presented. This identification was confirmed by the presence and evidence of police officers and the parents. The appeal court considered that the absence of an in-court identification did not undermine the earlier identification, particularly because it would have been a dock identification and the appellant accepted that the complainants were in his vehicle.


The 10-year-old complainant had also described to the police that the perpetrator wore greyish-maroon boxer shorts/underpants with dots. A police officer later found the appellant wearing greyish underpants with maroon blocks, which the appeal court treated as corroborative of the complainant’s account.


There was no DNA evidence linking the appellant to the assaults. The medical examination recorded injuries to the 10-year-old (including discharge, bruising, and a perforated hymen) with a conclusion that the injuries were consistent with sexual assault. For the 12-year-old complainant, the medical findings recorded only a yellowish discharge on the vulva, without swabbing or further identification of the discharge.


The appellant did not testify at trial. His position appeared from a statement made in support of a bail application, in which he asserted that he merely drove the complainants around because they refused to pay him for the lift. The appeal court treated the evidentiary dispute as turning on whether anything “untoward” occurred inside the vehicle.


3. Legal Issues


The appeal raised central questions about the correctness of the convictions and, in particular, whether the trial court’s conviction on count 1 for attempted rape was sustainable on the evidence and on the charge formulation.


The principal issue was an application of law to fact, namely whether the evidence established sexual penetration (and thus rape) in respect of the 12-year-old complainant, or whether it supported only an attempt. This required scrutiny of the trial court’s recording and evaluation of the evidence and whether it committed a misdirection.


A further legal issue was whether the appeal court had the power, notwithstanding the absence of a cross-appeal by the State, to substitute a conviction for a more serious offence (rape rather than attempted rape) and to impose a correspondingly more severe sentence, provided fairness was maintained through appropriate notice and opportunity to address the issue.


Finally, the matter raised sentencing questions governed by the minimum sentence legislation, specifically whether rape of a child under 16 attracted life imprisonment and whether substantial and compelling circumstances existed to justify deviation.


4. Court’s Reasoning


The appeal court approached the conviction on count 1 by first addressing the mismatch between the charge sheet and the magistrate’s conviction. The charge sheet described the offence as rape, alleging insertion of the appellant’s penis into the complainant’s vagina. Although manuscript letters “att” appeared on the charge sheet before the heading “Rape”, the appeal court reasoned that the repeated framing and treatment of the charge as rape—together with the explicit allegation of penetration—indicated that the charge was not truly one of attempted rape.


The appeal court then held that the trial court’s reasons for convicting of attempted rape on count 1 were based on a misrecording and misdirection. The magistrate had reasoned that the appellant’s penis was near or on top of the complainant and that “it appears it did not touch”. The appeal court found that this was not the evidence led. Both complainants’ evidence, as summarised by the appeal court, alleged penetration of the 12-year-old complainant.


In evaluating the evidence, the appeal court emphasised that the complainants’ accounts were not identical in form or chronological order, which it considered suggestive of a lack of collusion. It took account of the time spent in the vehicle, noting that the appellant’s own bail statement accepted that he drove them around for a time (albeit for an asserted reason unrelated to sexual assault), which was consistent with the complainants’ explanation that the time was occupied by the assaults.


The appeal court treated the 12-year-old complainant’s evidence as clear and corroborated by surrounding circumstances, including (i) the 10-year-old complainant’s corroboration of what occurred to the older complainant, (ii) the immediate reporting to parents, (iii) the identification of the appellant as the driver, and (iv) the corroborative feature concerning the underpants. It also considered it improbable, on the accepted version, that the appellant would rape the younger complainant but only attempt to rape the older complainant whom he assaulted first.


The medical evidence did not provide direct corroboration of rape of the 12-year-old complainant, but the appeal court did not treat this as decisive. It noted the presence of discharge, the absence of swabbing, and the absence of evidence about menarche, and reiterated that penetration for purposes of rape does not require rupture of the hymen. The medical evidence in relation to the 10-year-old complainant was accepted as consistent with sexual assault.


The appeal court further considered the appellant’s election not to testify. Relying on authority concerning the implications of remaining silent in the face of prima facie evidence, it reasoned that, where evidence “called for an answer” and none was given, the silence contributed to acceptance of the complainants’ evidence.


Having found a material misdirection on count 1, the appeal court concluded that the conviction for attempted rape could not stand and that the correct verdict on the evidence was rape. It then addressed its powers on appeal to substitute the conviction and adjust sentence. It referred to statutory powers permitting an appeal court to give the judgment or impose the sentence that ought to have been imposed, and also to authority recognising that a court of appeal may substitute a conviction for a more serious offence where appropriate. The court stressed that such powers must be exercised consistently with justice, fairness, and constitutional requirements.


Although the State did not cross-appeal, the appeal court recorded that prior written notice had been given to the appellant’s legal representatives that an increased sentence might be considered, and that the issues of substitution of conviction and possible sentence increase were fully debated at the appeal hearing. On this basis, the court proceeded to substitute the conviction and impose sentence.


On sentence, the appeal court applied the minimum sentencing regime. It held that rape of a victim under 16 is an offence listed in Part I of Schedule 2 to the relevant Act and attracts life imprisonment unless substantial and compelling circumstances justify departure. The appellant’s reliance on personal circumstances (marriage, seven children, and employment) was not accepted as warranting deviation, and the court regarded the commission of the offences while the appellant was in security uniform and using a security vehicle as aggravating. It agreed with the magistrate that no substantial and compelling circumstances existed in relation to the rape of the 10-year-old complainant, and reached the same conclusion regarding the rape of the 12-year-old complainant once that conviction was substituted.


5. Outcome and Relief


The appeal court set aside the magistrate’s conviction on count 1 for attempted rape and substituted a conviction for rape of the 12-year-old complainant, as committed by insertion of the appellant’s penis into her vagina.


The conviction for the rape of the 10-year-old complainant was confirmed, and the appeal against that conviction was dismissed. (The judgment refers to this rape count as “count 3” in parts of the reasons, but the final order records it as “count 2”.)


On sentence, the appeal court imposed life imprisonment on count 1 and confirmed the life imprisonment sentence on the rape count involving the 10-year-old complainant. It ordered that the two life sentences run concurrently. No separate order as to costs was recorded.


Cases Cited


S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC)


S v E 1979 (3) SA 973 (A)


Legislation Cited


Criminal Procedure Act 51 of 1977, section 304(2)(c)(iv)


Superior Courts Act 10 of 2013, section 19(d)


Criminal Law Amendment Act 105 of 1997, section 51(1) read with Part I of Schedule 2


Constitution of the Republic of South Africa, 1996 (referred to in relation to fairness and constitutional requirements)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The High Court held that the magistrate materially misdirected himself on count 1 by convicting of attempted rape on a factual premise (no penetration) that was inconsistent with the evidence led. On the appeal court’s assessment, the evidence of both complainants established penetration and therefore rape of the 12-year-old complainant.


The court further held that it was empowered to substitute a conviction for the more serious offence of rape and to impose the sentence that ought to have been imposed, provided that the process remained fair. Given that the appellant’s representatives had been notified that an increase in sentence might be considered and that the issue was argued, the substitution and sentence adjustment were permissible.


The court held that rape of both complainants, each being under 16, attracted the prescribed minimum sentence of life imprisonment, and that no substantial and compelling circumstances justified deviation. The result was two life sentences ordered to run concurrently.


LEGAL PRINCIPLES


The judgment applied the principle that where a trial court commits a material misdirection in its assessment of evidence, an appeal court is entitled to set aside the affected finding and determine the matter afresh on the record in accordance with the correct evidentiary position.


It applied the principle that an appeal court may, in appropriate circumstances, substitute a conviction for a conviction on a more serious offence that the trial court ought to have returned, exercising statutory appellate powers and subject to requirements of justice and fairness.


The judgment applied the principle that an accused’s election to remain silent may carry adverse forensic consequences where the State has produced evidence calling for an answer and no answer is provided, consistent with constitutional standards and the authority cited.


On sentence, the judgment applied the statutory principle that rape of a child under 16 attracts a prescribed minimum sentence of life imprisonment, and that deviation is permitted only where substantial and compelling circumstances are present. Personal circumstances such as family responsibilities and employment were treated as insufficient, on the facts of this case, to meet that threshold, particularly in light of aggravating features including abuse of a position of apparent authority and the use of a security vehicle.

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[2016] ZAGPJHC 56
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Bopape v S (A287/2015) [2016] ZAGPJHC 56 (17 March 2016)

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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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: A287/2015
DATE:
17 MARCH 2016
In
the matter between:
BOPAPE,
JOHN
MALESELA
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
This is an appeal from the Alexandria court
against conviction on one count of attempted rape (competent
conviction on count one
being a charge of rape) and one count of rape
(count 3), both assaults being perpetrated upon two girls aged 12 and
10.
2.
The dispute on conviction is narrowly
framed. It is common cause that the appellant, a security patrol
driver, gave the two girls
a lift in his security vehicle. They have
both claimed that he threatened them and thereby lured them into the
vehicle, where he
raped both of them. His statement in support of a
bail application is that he merely drove them around because they
refused to
pay him for the lift which he had given them. The issue
for decision is whether or not anything untoward happened in the
security
vehicle.
3.
Essentially the two complainants told the
same story. Interestingly, it was neither word for word identical nor
did it concentrate
on the same aspects of events. The story emerged
in a different format and a different chronological order. This
suggests that
there had not been collusion nor preparation between
them.
4.
In short, a twelve year old and a ten year
old had gone to the shops in Midrand to the Spar. On their return,
they were confronted
by a man dressed in security clothes driving in
a security vehicle, who alleged that they were guilty of theft and
ordered them
into his vehicle.
5.
Once inside the security vehicle, the
vehicle was driven into the bushes. The security official ordered
them to remove their underpants.
He then removed his security or
‘protective’ clothing or the ‘clothes he wore to
protect himself’. He then
ordered the twelve year old to lie
above the ten year old, open her legs and he penetrated her vagina
with his penis. This was,
she says painful and she was crying. He
then ordered the ten year old to lie above the twelve year old and he
raped her. He also
ordered the ten year old to open her mouth and
placed his tongue (not his penis) inside. All this happened inside
the security
vehicle.
6.
Thereafter, the driver dressed himself in
his work clothes. He threatened the girls in a number of ways,
including that he would
shoot them with his firearm. He dropped them
off. The ten year old made an immediate report to her parents and a
few minutes later
the twelve year old did so as well.
7.
The SAPS were called. Patrolling vehicles
of the particular firm were called. One by one the members on patrol
were called into
the house. Both girls identified the third driver
who appeared. He is the appellant. Members of the SAPS were present
as were the
parents and they all confirmed this identification.
8.
In addition, the ten year old had stated to
the SAPS that the rapist had been wearing boxer shorts of a greyish
maroon colour with
dots. A member of the SAPS, Constable Segwane,
instructed the suspect to undress at the SAPS cells and found him to
be wearing
greyish underpants which in his statement he described as
“maroon and grey” and on which it had maroon blocks.
9.
There was no DNA evidence linking the
appellant with the rapes of these two girls. The medical examination
conducted at the time
confirmed discharge from the vulva, bruising in
a number of areas and a perforated hymen of the 10 year old. The
medical conclusion
was that the injuries were “consistent with
sexual assault” upon her. In respect of the 12 year old, the
medical examination
found only a yellowish discharge on her vulva.
10.
The appellant, who was represented
throughout, elected not to give evidence. The implications of
exercising one’s right to
silence in the face of such
prima
facie
evidence has been detailed in a
number of cases not least
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC).
COUNT ONE
11.
The charge sheet in respect of count
one is framed as the crime of ‘RAPE’ in that the accused
committed “an act
of sexual penetration with the complainant,
to wit, [P……..] [M……..] by inserting his
penis inside her
vagina”. When the charges were put and the
appellant pleaded there was no reference to the details of the
charges on the
record. The learned magistrate commenced his judgment
on conviction by referring to count 1 as “rape”.
12.
It is in this context that I note that on
the charge sheet in respect of count one, three letters “att”
were inserted
in manuscript writing before the heading “Rape”
which suggests that there may have been an intention to only charge

the appellant with attempted rape. However, the repeated use of the
word ‘rape’ without any reference to ‘attempted’

and the details of ‘sexual penetration’ and ‘inserting
his penis inside her vagina’ indicate that
the charge was
always one of rape and not attempted rape.
13.
However, the learned magistrate did not
find the appellant guilty of rape of [P…..] but only of
attempted rape. His reasoning
(set out at pages 129 and 130) was that
“his penis was near her or on top of her. It appears it did not
touch”. But
this is not the evidence led by any witness on this
count. The learned magistrate misrecorded the evidence and so
misdirected himself
in this regard. Accordingly, as I shall indicate
below, the conviction of the appellant on count 1 on the lesser
charge of attempted
rape must be set aside.
14.
This court must consider all the evidence
before us in respect of count 1 – the alleged rape of 12 year
old [P…….].
It may be summarised as follows:
a.
Firstly, it is common cause that both the
girls were in the appellant’s vehicle, for some time They
account for the time spent
in the vehicle as occasioned by their
rapes, while appellant (in paragraph 11 of his bail application)
simply stated that he was
‘threatening’ them by driving
around.
b.
Secondly, [P……..] gave
evidence that appellant told her to “sleep on top of [M……..]
and open my
legs. He then took off his clothes. He then inserted his
penis inside my vagina and he started moving up and down. I then
cried.
It was painful [when he inserted his penis inside my vagina].
He was moving up and down on top of me and I was crying so I did not

count as to how many times” (pages 78 and 79 of the Record).
c.
Thirdly, [M…….] gave evidence
in corroboration of that which had happened to [P…….].
She said that “[a]fter
he had taken off his clothes then he
instructed [P……..] to put her hands between her legs.
Then he took off his clothes
and then inserted his penis inside
[P……….’s] vagina. He then instructed her
to put her legs on top of
my legs and instructed [P………]
to open her legs and then he inserted his penis inside [P…….’s]

vagina.” (page 87 of the Record).
d.
Fourth, both girls were dropped off by
appellant. When they arrived home both were crying. [M……..]
immediately complained
to her father while [P……..] went
to her home and made the complaint.
e.
Fifth, the medical evidence confirms the
injuries sustained by [M…….] and that these were
consistent with a sexual
assault. The medical evidence states no more
than that there was a yellowish discharge on [P…….’s]
vulva (no
swaps for DNA purposes were taken so we do not know the
nature of the discharge).
f.
Sixth, both girls identified the appellant
when the SAPS brought the security drivers to them. It matters not
that they did not
identify him in court – after all that would
only have been a dock identification. In any event, he agreed in his
bail application
that the girls were in his vehicle. It is not
identity which is in dispute, but the activities of appellant.
g.
Seventh, those activities (i.e. the rapes)
are confirmed by [M…….] telling the police that he wore
greyish underpants
with maroon dots which, when he was undressed in
the cells, were found to be greyish underpants with maroon blocks.
h.
Eighth, it is somewhat surprising that
appellant was capable of sexually penetrating and raping [M………]
but,
having selected [P……..] as his first victim, chose
not to rape her – only to attempt so to do.
15.
From this summary, one can see that
the learned magistrate misdirected himself in finding that there was
no allegation of penetration
and  no more than an allegation of
appellant’s penis being near or on top of her and that “it
appears that it
did not touch”.
16.
In assessing the evidence, I take into
account the following:
a.
The time spent in the vehicle. This
was not a lift from one place to another – appellant in his
bail application accounted
for the time expended by saying that he
had a motive to punish the girls for not paying him for the lift and
so he drove them around.
b.
[P………], aged 12, was
very clear as to what had happened to her. She is corroborated by
[M……..],
aged 10. It is possible that [M……..],
lying underneath [P……..], was assuming that what had
happened
to her must have happened to [P……..]. But she
details the verbal instructions given by appellant to [P……….]

and she obviously, as the body underneath, felt the up and down
movements.
c.
The medical examination does not
corroborate the sexual assault of rape. But, there was the yellowish
crust on the vulva - not the
labia. This discharge was not swabbed or
identified. There was no evidence as to whether or not [P……..]
had attained
the time of menarche and whether she might then have
been penetrated without sustaining injuries. Obviously, penetration
for purposes
of a finding of rape does not require rupture of the
hymen.
d.
Appellant elected not to give evidence at
his trial. There are consequences attached to that decision because
there has been evidence
calling for an answer and appellant chose to
remain silent. In the face of the evidence which certainly has called
for answer to
which there has been no explanation by appellant, this
court concludes that such silence contributes to acceptance of the
evidence
of [P………] and [M………].
17.
In sum, the evidence of [P…..…..]
is clear and unconfused. She is a child and her evidence must be
viewed with caution.
But it is corroborated by all the
surrounding circumstances, by the evidence of [M…….],
and by the rape of [M…….].
18.
It is my view that, on account of the
aforesaid misdirection, the judgment of the learned magistrate in the
court
a quo
must be set aside and that this court should substitute a conviction
of rape in respect of count 1.
19.
Section 304(2)(c)(iv) of the Criminal
Procedure Act provides that a court of appeal is generally empowered
to give such judgment
or impose such sentence as the magistrate’s
court ought to have imposed. Section 19 (d) of the Superior Courts
Act empowers
the court of appeal to “render any decision which
the circumstances may require”. Of course, the powers must
always
be exercised with due regard for the principles of justice and
fairness and as required by the Constitution. A court of appeal has

the power to substitute the conviction of the court
a
quo
with a conviction upon a more
serious offence of which the appellant should have been convicted in
the first place (see
S v E
1979
(3) SA 973
(A)).
20.
Although, the state did not cross appeal
the conviction on count 1, Satchwell J wrote to appellant‘s
legal representatives
on 2
nd
February, advising that the appeal may give consideration to
increasing the sentence and inviting submissions in this regard. The

issue of substitution of conviction of the more serious offence of
rape and increase in sentence was fully debated at the appeal

hearing.
21.
As it turns out, the result on sentence is
that, instead of one life sentence with which a sentence of 10 years
imprisonment runs
concurrently, there will now be two life sentences
running concurrently. It is appreciated that this may impact upon
consideration
of appellant for early release on parole.
COUNT THREE
22.
From the summary of the all the evidence
set out above, I cannot find that there is any misdirection in the
finding of the learned
magistrate that appellant is guilty of the
rape of Melissa.
23.
She is a child, she was raped, the
circumstances thereof are partly confirmed by the appellant in his
bail application, wholly confirmed
by [P…….] and
substantially corroborated by her evidence as to the details of the
underpants worn by appellant which
turned out to be correct.
24.
That conviction must be upheld.
SENTENCE
25.
The rape of a victim under the age of
16 years is an offence set out in Part 1 of Schedule 2 of Act 105 of
1997 which, in terms
of section 51(1) of the Act attracts the minimum
sentence of life imprisonment. It is only where a court is satisfied
that substantial
and compelling circumstances exist which justify the
imposition of a lesser sentence that a court can deviate from the
prescribed
minimum sentence.
26.
Plaintive reliance upon marriage, seven
children, and employment does not assist the appellant. That he was a
man in a uniform performing
security duties in a security vehicle is,
to my mind, a most aggravating factor.
27.
I am in agreement with the learned
magistrate that no substantial or compelling circumstances have been
shown in respect of count
3, the rape of [M…….]. I take
a similar view in respect of count 1, the rape of [P…….],
no substantial
or compelling circumstances exist to justify the
imposition of a lesser sentence than the prescribed minimum of life
imprisonment.
28.
I should place on record that,  as has
always been the practice in this division, on 2
nd
February 2016 written notice was sent to the legal representatives
for appellant that consideration would be given to an increase
in the
sentences imposed upon appellant and that he would be given the
opportunity to make further submissions in this regard.
Counsel
appearing for appellant availed himself of the opportunity.
CONCLUSION
In
the result an order is made as follows:
1.
On count 1, the finding of the magistrate
in the court
a quo
is set aside and the following is substituted therefore:
“
Appellant
is convicted of the rape of 12 year old [P……..] [M……]
on 7
th
October 2011 by the insertion of his penis inside her vagina”.
2.
On count 2, the conviction of appellant of
the rape of 10 year old [M…….] [N…….] on
7
th
October 2011 by inserting his penis inside her vagina is confirmed.
The appeal against conviction on court 2 is dismissed.
3.
On count 1, a sentence of life imprisonment
is imposed.
4.
On count 2, the sentence of life
imprisonment imposed by the court
a quo
is confirmed. The appeal against sentence is dismissed. Both life
sentences are to run concurrently.
DATED
AT JOHANNESBURG 17
TH
MARCH 2016
SATCHWELL
J
I
agree.
MOKOENA
AJ
Counsel
for Appellant: Adv JL Kgokane
Attorneys
for Appellant: Legal Aid South Africa
Counsel
for Respondent: Adv N Kowlas
Attorneys
for Respondent: Office of the DPP
Dates
of hearing: 14
th
March 2016.
Date
of judgment: 17
th
March 2016.

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