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[2017] ZAGPJHC 35
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M v S (A29/2016) [2017] ZAGPJHC 35 (23 February 2017)
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A29/2016
Reportable:
NO
Of
interest to other judges: NO
Revised.
23
February 2017
In
the matter between:
M S
P APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
RATSHIBVUMO AJ:
1.
Mr. M, the appellant
stood trial on several charges laid against him by his ex-wife at the
Kempton Park Regional Court. He was convicted
of two of these being a
charge of contravening sec 3 of Act 32 of 2007 (rape) and another of
housebreaking with the intent to rape
and rape. The two counts were
taken together as one for purposes of sentence and the appellant was
sentenced to 10 years imprisonment.
Leave to appeal the conviction
and the sentence was refused by the trial court. The appellant was
granted leave to appeal by this
court on petition.
2.
The approach to be
adopted by a court of appeal when dealing with the factual findings
of a trial court is guided by the collective
principles laid down in
R v Dhlumayo
[1]
.
A court of appeal will not disturb the factual finding of a trial
court unless the latter had committed misdirection. Where there
has
been no misdirection on fact by the trial Judge, the presumption is
that his conclusion is correct. The appeal court will only
reverse it
where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt as to the correctness
of the
conclusion, then it will uphold it.
[2]
3.
The conviction.
The evidence that led to the
conviction of the appellant is that on 29 March 2013, the complainant
arrived at her residential flat
from work only to find the appellant,
her ex-husband hiding inside one of the bedrooms. She does not know
how he gained entry since
she had locked the doors and all the
windows of the flat were closed before she left for work. On that
day, she was the only occupant
of her flat in that her brother and
her cousin had gone away for the Easter holidays. The presence of the
appellant was exposed
when he peeped through the key-hole from inside
the room that the complainant faced as she walked upstairs. She
spotted the eye
starring at her which sent shivers down her spine.
She panicked, walked back and started running downstairs. At that
point the
door, through which she spotted the peeping eye, opened and
the appellant appeared and exited the room seemingly in pursuit of
her.
4.
She testified that the
appellant chased her down the stairs and she missed a step and fell
down. He caught up with her and assaulted
her accusing her of being
unforgiving to him, and that there was a man with whom she was
sexually involved. He also expressed his
displeasure that she had
divorced him, the divorce decree of which was granted on 12 February
2013. He then forced her to suck
his penis, after which he proceeded
to have sexual intercourse with her against her will. This went on
and only stopped when the
police came knocking on the door.
5.
The appellant’s
version is that he went to the complainant’s flat at her
invitation. She asked him to bring food and
he did. They were happily
in love and only divorced so that they could observe some rituals on
introducing her to the ancestors,
something they had failed to do
when they got married. They planned to get married again observing
this ritual and plans were underway.
He admitted that she was injured
and even bled, but he denied that he assaulted her. According to him,
they had an argument when
complainant asked for cash that he did not
have. She accused him of not giving her the money and keeping it for
his women. He became
angry and approached her in rage, which caused
her to flee down the stairs and she even fell. He did not have sexual
intercourse
with her that day.
6.
In rejecting the
appellant’s version, the learned magistrate noted a number of
discrepancies in his version as against the
State’s version
which remained intact. His reasons for divorce were not in line with
the Zulu cultural practice which he
was trying to observe. He
admitted that he knew “Imbeleko,” a cultural practice
through which his wife could have been
introduced to the ancestors
without resorting to divorce.
7.
It is common cause that
the police were called by her colleagues who reside on the same
premises (fire brigade premises), after
hearing the screams from her
flat, something they had become accustomed to. When the door opened,
the police observed the complainant
storm out wearing just a vest on
top, with her bottom naked. A male colleague testified that he gave
her a blanket to cover herself
before she was taken to the hospital.
These events accords squarely with the complainant’s version to
the effect that the
love between them was over, sealed with a divorce
decree granted by the court. On 27 March 2013, just two days before
the incident,
the appellant and the complainant were at the
Magistrates’ Court where a protection order was granted against
the appellant
who was ordered not to visit the complainant’s
place of residence which happened to be her workplace too. This is in
contrast
to the picture painted by the appellant; of a couple
enjoying love and romance, divorcing merely to deal with the cultural
observance.
The appellant’s version does not offer any
explanation on why the complainant sought a protection order against
him.
8.
Furthermore, the
underwear that was found in the complainant’s flat after the
incident was taken to forensic examination for
further examination.
It was found to contain the appellant’s DNA; something the
appellant does not dispute. His explanation
to the effect that he had
some of his clothes in the complainant’s flat was not put to
the complainant during cross examination,
and was as such rejected as
improbable by the court. The police officer testified that the
appellant, who was well known to him
from past complaints from the
same parties, climbed the wall and escaped before he was arrested
later that same day. This conduct
does not accord with the
appellant’s version of innocence.
9.
I am mindful of the
fact that it is upon the State to prove the accused’s guilt
beyond a reasonable doubt. The accused does
not have to prove his
innocence. Where the accused’s version has been proffered, if
it is probable, the accused would be
entitled to an acquittal. As
Slomowitz AJ puts it, 'whether I subjectively disbelieve (the
accused) is not the test. I need not
even reject the State case in
order to acquit him. I am bound to acquit him if there exists a
reasonable possibility that his evidence
may be true.'
[3]
10.
The test of evaluating
the probability of the accused’s version is however not
different from the test to have the case for
the State proved beyond
a reasonable doubt. It was held in
S
v Van der Meyden
[4]
that these are not separate and independent tests, but the expression
of the same test (the proper test) when viewed from opposite
perspectives. In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be
so only
if there is at the same time no reasonable possibility that an
innocent explanation which has been put forward might be
true. The
two are inseparable, each being the logical corollary of the other.
In whichever form the test is expressed, it must
be satisfied upon a
consideration of all the evidence.
[5]
11.
The trial court was
satisfied that the case for the State was proved beyond a reasonable
doubt and rejected the appellant’s
version as improbable and
false. I do not find any misdirection on the part of the trial court
in this regard.
12.
Duplication of
charges
. Evidence
that was led and accepted by the court was that there was only one
sexual encounter which was interrupted by the arrival
of the police.
The trial court accepted that to convict the appellant of rape and
housebreaking with the intent to rape and rape
was a duplication of
charges. On page 196 of the record, the magistrate said the following
when handing down the judgment,
“
As I have already stated, I am of the
opinion that in respect of count 2, the State could charge the
accused for rape and count
4 for housebreaking with the intent to
rape and rape. I think it is a duplication of charges. It means the
accused is being charged
twice for the same offence. The court will
actually find the accused guilty as charged on both counts, but I
think I will actually
take that effect into account when dealing with
the sentence.”
13.
This piece of the trial
record reflects that the magistrate was fully aware that the
appellant was charged twice for the single
act of rape. He however
proceeded to convict the appellant and thought that he would remedy
that by taking the two duplicated convictions
as one for sentence
purposes. That was a misdirection on the part of the magistrate.
[6]
Taking offences as one for purposes of sentence is not a means to
correct the duplicated convictions, but a means to deal with
the
cumulative effect of the sentence.
[7]
In
S v Young
[8]
,
the court held that where multiple counts are closely connected or
similar in point of time, nature, seriousness, or otherwise,
it is
sometimes a useful, practical way of ensuring that the punishment
imposed is not unnecessarily duplicated or its cumulative
effect is
not too harsh on the accused. I am satisfied that the accepted
practice of taking offences as one for purposes of sentence
was
adopted for wrong reasons and this has to be corrected. The appellant
should have been convicted of one count of housebreaking
with the
intent to rape and rape as a single offence.
[9]
14.
The sentence
.
A
sentencing court does not always have an untrammelled discretion to
determine sentence – a clean slate on which to work.
In certain
cases – and this applies to rape; a prescribed sentence is
provided for by the Criminal Law Amendment Act 105
of 1997
.
Sec 51 (2) of the Criminal Law Amendment Act provides that upon
convicting a first offender of the crime of rape, the court shall
sentence him or her to a minimum of 10 years imprisonment. The
minimum sentence in respect of a second or a third offender is 15
or
20 years imprisonment respectively. The maximum thereof would be 5
more years above the minimum meaning for a first offender
it would be
15 years imprisonment. The court can only deviate from the prescribed
sentences in case there are substantial and compelling
circumstances
that justify such.
[10]
15.
As a general rule, an
appeal court may not interfere with a sentence unless there is a
material misdirection by the trial court
or unless the sentence is
startlingly inappropriate or there being a striking disparity between
it and the sentence the appeal
court would have imposed.
[11]
The question therefore is whether the sentencing court properly
exercised its discretion. In light of the prescribed sentences
referred to above, the question would be whether in finding no
substantial and compelling circumstances in the appellant, the trial
court misdirected itself.
16.
Counsel for the
appellant submitted that for reasons that the appellant was married
to the complainant and they had a troubled kind
of relationship, that
the appellant has been in custody and that he is a first offender
should be enough to justify a deviation
from the prescribed sentence.
In my view, the circumstances advanced for the appellant cannot be
elevated to a level of being substantial
and compelling. In the
circumstances of this case, they appear to be aggravating.
17.
The appellant used sex
to perpetuate the reign of terror through the masculine power over
his ex-wife. Even on his own version,
the appellant clearly bullied
the complainant that she had to flee if he is not happy. It appears
the crime the complainant committed
was to fall in love with him. Not
even the divorce decree would liberate her from him. Just two days
after the court granted a
protection order in favour of the
complainant, he reduced the order to being a useless piece of paper
that offers no protection
against him. The appellant was not only
disrespectful to the women, but also contemptuous to our courts and
the laws of our country.
18.
It is not true that the
appellant was a first offender, for he boasts a previous conviction
of assault with the intent to do grievous
bodily harm. It is again
not true that he was in custody for over a year since he was out on
bail until the day it was cancelled
for not respecting bail
conditions to the effect that he should not have contact with the
complainant. He was therefore in custody
for less than 9 months. The
word should go out to the community that the courts would not
tolerate the abuse of women and the subjecting
of lovers to control
and power using sex.
19.
In the result I would
make the following order:
1.
The appeal is upheld in
respect of the conviction on count 2.
2.
The accused is found
Not Guilty in respect of count 2 (rape).
3.
Appeal against the
conviction and the sentence in respect of count 4 is dismissed.
4.
The conviction on a
charge of housebreaking with the intent to rape and rape and the
sentence of 10 years imprisonment is confirmed.
5.
No order is made in
terms of sec 103 of Act 60 of 2000. The accused remains unfit to
possess a firearm.
_____________________
TV
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_______________________
LR ADAMS
JUDGE OF THE HIGH COURT
FOR
THE APPELLANT : ADV PENTON
INSTRUCTED
BY : JOHANNESBURG JUSTICE CENTRE
JOHANNESBURG
FOR
THE RESPONDENT : ADV EN MAKUA
INTRUSCTED
BY : DIRECTOR OF PUBLIC
PROSECUTIONS
JOHANNESBURG
DATE
HEARD : 21 FEBRUARY 2017
JUDGMENT
DELIVERED : 23 FEBRUARY 2017
[1]
1948 (2) SA 677 (A)
[2]
See also
DPP v S
2000 (2) SA 711
(T);
S v Leve
2011 (1) SACR 87
(ECG); and
Minister of
Safety and Security and Others v Graig and Another NNO
2011 (1) SACR 469 (SCA)
[3]
S v Kubeka
1982
(1) SA 534 (W).
[4]
1999 (1) SACR 447 (W).
[5]
See
S v Combrink
2012 (1) SACR 93
(SCA) para 15.
[6]
See
S v Marawu
[2005] JOL 16094
(Ck) on the test for duplication
of charges.
[7]
S v Kruger
2012 (1) SACR 369
(SCA) para 10.
[8]
1977 (1) SA 602 (A) at 610E-H
[9]
See S v Cetwayo
2002
(2) SACR 319
(E)
and
S v Zamisa
1990
(1) SACR 22
(N).
[10]
See S v Abrahams 2002 (1) SACR 116 (SCA).
[11]
S v Michele and Another
2010 (1) SACR 131
(SCA)