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[2018] ZAGPJHC 717
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Khoale v S (A247/17) [2018] ZAGPJHC 717 (2 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
no
(2)
OF
INTEREST TO OTHER JUDGES: no
Case number:
A247/17
In
the matter between:
Khoale,
Lerato Oriel
Appellant
v
The
State
Respondent
JUDGMENT
Introduction
[1]
The appellant was arraigned in the Regional
Court for raping one K[....] K[....]. He was convicted, and on
3 September 2012
he was sentenced to a term of ten (10) years
imprisonment. He appeals against both his conviction and sentence.
[2]
The appellant does not deny that on 4 April
2008 he had sexual intercourse with the complainant. Most of the
facts and circumstances
surrounding this event are not really in
dispute. They are very carefully and concisely articulated in the
judgment
a quo.
[3]
The undisputed facts are: the complainant
was a third year student at the University of Johannesburg, studying
for a BCom (Accounting).
The appellant was known to her and her
family and over time they became close friends. He became interested
in having a romantic
relationship with her. She did not share his
interest, but they nevertheless remained friends. The appellant ran a
business owned
by himself- an internet café based in
Germiston. On 3 April 2008 he asked her to come to the premises in
order to
assist him with the accounts and she agreed. She met him at
the Park Station in Johannesburg where they both boarded a train to
Germiston. She specifically indicated to him that she had to be back
in Braamfontein, where she resided, by 18h00.He promised her
that he
would see to it that she would be back in Braamfontein by that time.
Once they got to his business they commenced work.
They took lunch at
a fast-food café named Wimpy and during lunch he propositioned
her but she rebuffed him. They returned
to his premises where they
continued to work. At 17h00 she asked him to take her back to the
train station so that she could travel
to Braamfontein. He promised
her that he would do so in time but kept her busy with work in the
meantime. After 18h00 he promised
her that he would arrange transport
for her to return to Braamfontein. At 20h00 he accompanied her to the
Germiston train station
for her to board a train to Braamfontein.
They discovered that there were no trains travelling to Braamfontein
anymore that day.
He suggested they go to Spruitview where he would
arrange a taxi for her to get to Braamfontein. As she had no choice
she agreed.
At Spruitview, they discovered that there were no taxis
travelling to Braamfontein. He suggested they go to his friend’s
place, where he promised he would arrange for her to be transported
to Braamfontein. When they got there they discovered that his
friend
could not assist, instead his friend confronted her and asked her why
does she not want to sleep over at Spruitview. He
suggested they go
to his auntie’s place, which is in Spruitview. Again, she had
no choice but to agree. They got to his auntie’s
place at
21h00. At his auntie’s place he told his auntie that they would
be sleeping over. She agreed to sleep over on the
condition that they
do not share a room. His auntie prepared a bed for them. It was a
single bed of double size. She indicated
that she was not happy to be
sleeping with him. She specifically told him that she will not share
a bed with him. He pressurized
her into accepting the generosity of
his auntie to provide them with accommodation – he said to her
that she should not be
disrespectful to his aunt who was willing to
host them for the night. She relented but indicated that she would
want to be left
alone while they were sleeping. She asked to borrow a
pair of shorts to sleep in but was provided with one that did not
fit. She
went into the bedroom by herself and removed her pants but
kept her top and underwear on and climbed into bed. She placed
pillows
between herself and himself so that their bodies would not
come into contact with each other. She left the light on and went to
sleep. He came into the room, switched off the lights and climbed
into bed. At some point while they were sleeping he penetrated
her
and ejaculated inside of her – how this came to be is in
dispute, which I will deal with in a moment. At no time did
she
scream or alert anyone else in the house while all this occurred. She
cried herself to sleep. In the morning he told her to
bath herself.
She said she did not want to. He pressurized her to do so. She
relented. Breakfast was prepared for her and the rest
of the
household. While eating her breakfast his cousin asked her why she
appeared to be so glum and said to her that the he was
a very good
man. She told his cousin that if the cousin knew what he had done to
her, the cousin would not hold such a glamorous view of him. She did
not tell anyone in that household
that he raped her while she was
forced to share a bed with him there. After breakfast he arranged for
a friend to transport himself
and her to a taxi rank. There she
boarded a taxi to Braamfontein where she met her friends. When one of
her male friends enquired
about her whereabouts the previous day and
night she said that she was kidnapped. Later that morning she met her
friend, a Ms L[....]
M[....] (L[....]). She told L[....] of her
ordeal the evening before and said that the appellant had come inside
of her. L[....]
advised her to report it to the police. She did not
heed the advice. On 9 April 2008 she received an email from him,
which is dealt
with in greater detail below. She tried to make
contact with Nthabiseng Rape Crisis Centre but was not successful.
Two weeks later
she informed a male friend of hers of the alleged
rape. He immediately took her to Brixton Police Station, where she
tried to report
the incident. The police were not willing to accept
her report because she was unable to furnish the address where the
alleged
rape took place. At the end of that week she informed her
parents. She told her dad that she could not report the incident to
the
police because she did not have the address of the appellant’s
aunt where the incident took place. Her dad and her uncle got
together and managed to acquire the address from the appellant. They
took her to Moroka Police Station where she tried to lay a
charge
against the appellant but the police were unwilling to listen to her.
She returned to Brixton Police Station where she was
able to lay a
charge against the appellant as she now had the address of the
appellant’s aunt. The appellant kept on trying
to make contact
with her. On 6 May 2008 she discovered that she had fallen pregnant
as a result of him ejaculating inside of her.
She terminated the
pregnancy because she was of the view that a child born from such
circumstances would be a permanent reminder
of her rape. The
termination was a violation of her deeply held religious beliefs.
[4]
The only issue in this case is whether the
complainant consented to the sexual intercourse or not. In this
regard the complainant
and the appellant present different accounts
of what transpired while they shared a bed.
Her
version
:
[5]
According to her he tried to force himself
on her at about 23h00 but she succeeded in repelling him and managed
to fall asleep.
At about 02h00 he woke her, pulled her hair and said
she will have sex with him. She was lying on her stomach, climbed on
her back,
removed her panty and penetrated her from behind. She was
crying while all this occurred. After ejaculating inside her he
returned
to his side of the bed and went to sleep. She remained on
her side of the bed, continued to cry and fell asleep.
His
version
:
[6]
His version of what transpired is
completely devoid of detail. He merely said that they had consensual
sex while they shared the
bed and denied that he had forced himself
on her. He gave absolutely no account of how it happened or at what
time it happened.
He failed to specifically address any part of her
account, such as her dividing the bed into two separate sides by
placing pillows
in the middle; or her account that she told him prior
to agreeing to accept the hospitality of his aunt that she would want
to
sleep in a room separate from himself. Instead of providing
details of what happened, the appellant relied on certain aspects of
her evidence to discredit her version.
Aspects of her evidence relied
on by the appellant
[7]
During her evidence the complainant stated
that when the incident occurred, her cell-phone battery was dead and
therefore she was
unable to make contact with her friends or anyone
else However, a record of her cell phone calls was presented as
evidence and
this record shows that her number was used to make a few
calls at the time she claimed the battery of her phone was dead.
Further
on 4 April 2008 she deliberately misinformed her friends that
she was kidnapped on the evening of 3 April 2008. According to her
on
the 4 April 2008, i.e the same day as the alleged rape took place,
she informed L[....] that the appellant had “
come
inside her
”. L[....] also
testified at the hearing in the court
a
quo
. In evidence in chief she stated
that the complainant had told her she was raped by the appellant.
During cross-examination this
averment was not presented as
unambiguously as it was during her evidence in chief. L[....]
equivocated from saying that the complainant
reported to her that she
was raped to saying that the complainant reported to her that the
appellant attempted to rape her. These
three portions of the
evidence, as well as the fact that the complainant only opened a case
against the appellant two weeks later
were used a platform by the
appellant to argue that the complainant was a dishonest witness, and
therefore her claim that the appellant
had raped her should be found
to be false. Mr Guarneri, for the appellant, argued that (i) the fact
that the complainant’s
reason for not calling her friends or
anyone else that evening of the 3 April 2008 or the morning of 4
April was contradicted by
the documentary evidence in the form of her
cell phone records; (ii), the fact that she falsely told her friends
on 4 April that
she was kidnapped on 3 April; (iii) the fact that she
took two weeks to lay a charge; and, (iv) the fact that L[....]
claimed that
she told her that the appellant attempted to rape her
indicates that the appellant was a dishonest witness, and therefore
her claim
that she was raped must be disbelieved or doubted
[8]
I find that there is no merit in the
submissions of Mr Guarneri. They constitute a partial account of the
evidence. Reading and
analysing the evidence in its entirety would
not allow for such a conclusion to be drawn. Put differently,
these problematic
aspects of her evidence are insufficient to make a
finding that she was dishonest about being raped.
[9]
Apart from the undisputed facts referred to
in [3] above, there are two key actions on the part of the appellant
that need to be
taken note of when determining whether the
complainant’s version that she was raped, or the appellant’s
version that
they engaged in consensual sex, is correct. They are:
a.
Four days after the incident, on 9 April
2008, the appellant, according to the complainant, sent the
complainant an email wherein
he stated:
“
Dear
Sunshine,
Darling,
I know now that it was so uncalled for of me to force myself unto
you, I was a stupid to have not listen to you when you
said you
weren’t ready and I admit my foolishness. I wasn’t
thinking properly, truly I was thinking via my dig and
please for
give me I would want to loose you, honestly I am deeply sorry and I
love you to bite. For the record I am mean it when
I say I care and
will cater for the both of us and offcourse I will definitely deposit
the cash as soon as you want me to!!!!
Anyway
I have an interview to attend sometime next week at the JSE,
regarding our sponsorship from Umsombovu Youth Fund, wish me
Luck it
truly HELP
Take
care!!!
Ps
Ratos
”
(quotation is verbatim)
b.
Sometime after she laid a charge against
him he sent her an SMS which reads:
“
Tumi,
I still think you are being unfair by blowing everything out of
proportion and try to push me away by using insulting vocab.
I think
you need to grow up and make sound decision by yourself for future
and of course you need friends who have your best interest
at heart.
However, me and friends it is like water and oil and for the record I
do not regret ejaculating. On giving a chance I
will do it again.
PA
Ratos
”
[10]
The
appellant denied that he sent her the said SMS. His denial was bare.
In the course of this denial he failed to deal with the
document
which contains this email message. It shows that the email was sent
by one Lerato Khoale whose address is indicated as
lkhaole@yahooo.com
. In my
view, he was obliged to deal with the evidence and his failure to do
so is fatal for his case. Similarly, with the SMS.
They simply cannot
be ignored. In any case, it was very difficult for him to deal with
the email as it contained information that
only he was privy too –
information about his interview with the JSE. The email and SMS
messages add great weight to the
version of the complainant.
[11]
All this evidence shows that the
complainant’s claim that the sex was non-consensual is correct.
It shows that the appellant
pursued a romantic relationship with her,
despite her opposition to such a relationship; that he orchestrated a
situation where
the complainant had no choice but to stay overnight
with him at his aunt’s house, thus rendering her vulnerable and
subject
to his mercy and goodwill; that he had no regard for her
desire not to share a room or a bed with him; that he made no attempt
to assist her in ensuring that she was properly clothed before she
retired to bed; that he disregarded her desire to protect herself
by
keeping the light on; that he had no regard for her efforts to divide
the bed into two separate parts; that he climbed into
the bed naked
while knowing that she was not willing to have any intimate contact
with him; and finally, that he could not accept
her decision not to
have sexual intercourse with him.
[12]
In my view, the conspectus of all the
evidence shows beyond reasonable doubt that the appellant raped the
complainant. He was correctly
convicted by the court
a
quo
.
Sentence
[13]
According to the provisions of
section 51
of the
Criminal Law Amendment Act 105 of 1997
, a minimum sentence of
ten years’ imprisonment was to be imposed upon the appellant
unless the court found that there were
substantial and compelling
circumstances to depart from this minimum sentence. In assessing this
issue of what sentence should
be imposed the learned magistrate said
that she would treat the following factors as substantial and
compelling circumstances justifying
a departure from the minimum
sentence:
a.
The appellant was a first offender;
b.
The complainant did not suffer any physical
injuries; and,
c.
The appellant spent five months in prison
awaiting the finalisation of his trial
[14]
Despite
saying that these constituted substantial and compelling
circumstances justifying a departure from the minimum sentence,
the
court
a
quo
proceeded to impose the minimum sentence of ten years. In my view the
first two of those factors do not constitute compelling and
substantial circumstances warranting a departure from the minimum
sentence. However, as for the third factor our courts have taken
it
into account time spent in prison while awaiting trial as a factor
warranting a reduction in the sentence. This is to ensure
that once a
person is convicted s/he is given fair credit for already enduring a
restriction on his/her freedom by being incarcerated
while the trial
progressed. The leading case on this score is
Brophy
[1]
where a full bench of this Court endorsed the approach of Schutz J
(as he then was) who, in
Stephen
[2]
said that: “
Imprisonment
whilst awaiting trial is the equivalent of a sentence of twice that
length.
”
[3]
One way of dealing with this is to ante-date his sentence to the
first day he was incarcerated. Another way is to reduce the minimum
sentence by a period commensurate with the period of time already
served whilst awaiting the finalisation of the trial. In my view,
given that he spent five months awaiting trial, he is entitled to a
reduction of the term of imprisonment from ten years to nine
years
and seven months.
Order
[15]
In the circumstances the following order is
made:
1.
The appeal of appellant against his
conviction is dismissed.
2.
The appeal of appellant against his
sentence is granted. The sentence of ten years imposed by the court
a
quo
is set aside and replaced with the
following:
”
The
accused is sentenced to 9 years and seven months imprisonment.”
VALLY
J
JULY AJ
Date of hearing: 1
February 2018
Date of judgment: 2
February 2018
For appellant:
Adv E Guarneri instructed by the Legal Aid
For
the state: Adv P Nlarasele from the office of the
DPP
[1]
S
v Brophy and Another
2007
(2) SACR 56
(W) at [19]
[2]
S
v Stephen and Another
1994
(2) SACR 163 (W)
[3]
Id.