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[2010] ZAGPJHC 127
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Dlamini v State (A466/2009) [2010] ZAGPJHC 127 (3 December 2010)
REPORTABLE
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
CASE NO: A466/2009
DATE: 03/12/2010
In the matter between:
DLAMINI,
DLAKWAKHE
........................................................................
Appellant
and
THE
STATE
….......................................................................................
Respondent
_____________________________________________________________________________
J U D G M E N T
________________________________________________________________________________
MOKGOATLHENG J
:
(1) The appellant was
convicted in the regional court held in Johannesburg on one count of
rape as a perpetrator, and on another
count of rape as an accomplice.
He was also convicted of kidnapping and robbery with aggravating
circumstances. He was sentenced
to life imprisonment in respect of
the two counts of rape, 3 years imprisonment in respect of
kidnapping, and fifteen years in
respect of robbery with aggravating
circumstances. The appellant now appeals against both his conviction
and sentence.
THE COMPLAINANT’S
VERSION
(2) The complainant
testified in the court-a-quo that on 27 June 2007 she was in a train
travelling from Germiston to Denver. She
was grabbed, pulled and
dragged out of the train at gun point into a waiting room on the
platform by four (4) assailants amongst
whom was the appellant. She
was robbed her of a cellular phone and R100.00 cash, thereafter two
(2) of her assailant’s including
the appellant raped her by
forcibly, holding her down to the floor.
(3) The complainant
testified that she did not know the appellant prior to the day in
question. After the appellant, his co-perpetrator
had raped her, a
train appeared, as a result the appellant and his co-perpetrator and
the two other accomplices ran away. She screamed
for help. She was
taken to the police station, she made statement, and was taken for
medical examination.
(4) Doctor Bhoja
testified that he examined the complainant. He observed that her
panties was torn, that there stains on her skirt.
The complainant was
crying and upset at the medical examination. He found bruising on
both sides of her face below her eyes and
soft tissue injuries to
both her thighs. The complainant also complained of body pain, from
these injuries he concluded that she
was assaulted.
(5) Upon gynaecological
examination he found the posterior faucet to be red and inflamed
together with a bruised skin. On the posterior
faucet he found a
small tear at the six o clock area. He also found the fossa
navicularis to be red and inflamed. He also found
a tear in the
complainant’s vagina at the nine o clock position. From that he
concluded that she was penetrated with a blunt
object, for example a
penis. These injuries he concluded were consistent with forceful
penetration.
(6) Because of the
complainant had general body pains, he concluded that she was
subjected to a traumatic experience, as there must
have been a fair
amount of aggression. To sustain a vaginal tear is unusual. The
complainant informed him that some of her personal
possessions were
taken from her.
(7) Gitometse Innocentia
Makwela testified that the complainant made a report to her shortly
after the incident. She confirmed that
the complainant was swollen
around her eyes, was hysterical, crying, shivering and was in a dire
emotional state. She could not
talk to her. The complainant’s
thighs were red, they looked like those of a person who had been
assaulted. The complainant
was attempting to take off her clothes as
if she wanted to undress herself. She was carrying a small bag, and a
black panty which
was torn.
(8) She was present when
the appellant’s torn panty was found in the waiting room. The
complainant informed her she was attacked
by four black males, but
that only two of them penetrated her. She was assaulted and was
slapped on her thighs and was forced to
open her thighs. At the time
when she was raped in turns, her assailants heard the sound of an
oncoming train, and ran away.
(9) Constable Mohome
testified that on 15 September 2007 he was patrolling in Malvern at
about 17:50. At the corner of Mollings
and Geldenhuys Streets he was
stopped, by the complainant. She informed him and his colleague that
she was raped on 27 June 2007,
and that just seen one of the rapist
in a taxi. The complainant pointed out the appellant who then seated
inside a taxi. He arrested
the appellant.
THE APPELLANT’S
VERSION
(10) The appellant
testified that he was alone when he had consensual sexual intercourse
with the complainant who is a prostitute.
He paid the complainant
R50.00 for her services. He owes her R50.00 which the complainant
demanded because he had engaged in sexual
intercourse with her
without a condom.
(11) He knew the
complainant as they both travelled by train. He proposed the
complainant after meeting her in the train. The complainant
told him
she was a prostitute and she sold her sexual favours. He and the
complainant agreed to have sex. He agreed to pay the
complainant
R50.00 for sexual intercourse.
(12) The complainant
suggested that because he did not use a condom he must pay an extra
R50.00. He did not have it consequently,
he gave the complainant his
phone numbers to contact him and promised to pay her when they met.
(13) He did not rape the
complainant, they had consensual sexual intercourse in a waiting room
at the train station. After having
had sexual intercourse the
complainant left and promised to call him. The day she called, she
came with the police, and pointed
him out. The police arrested him.
THE ISSUE
(14) The issue in dispute
is whether there was consensual sexual intercourse between the
appellant and complainant, whether the
complainant’s evidence
as a single witness was credible, reliable and satisfactory in all
material respects, and whether
the appellant’s version was
reasonably possibly true.
(15) The court-a-quo
found that the factors which were consistent with the complainant’s
version that there was no consensual
sexual intercourse were:
(a) the complainant was
forced out of a moving train;
(b) she had visible
injuries after the incident;
(c) immediately after
being raped she reported the incident to people who were on the
platform and thereafter to the police and
the doctor who examined
her;
(d) she left her torn
panty at the scene and which was later discovered by the police; and
(e) there was no
relationship between her and the complainant prior to the day in
question.
(16) The court-a-quo
correctly had regard to the totality of the evidence and correctly
found that the complainant’s version
was corroborated by the
evidence of not only Constable Makwela but also of Dr Bhoja who
observed a number of injuries sustained
by the complainant when he
examined her shortly after the incident. This evidence was not
disputed. Dr Bhoja and Constable Makwela
corroborated the
complainant’s evidence that her underwear was forcibly torn and
removed from her body.
(17) In my view the
court-a-quo was correct in finding that the appellant’s version
was inherently improbable, that it was
unlikely that if he owed the
complainant who he terms a prostitute the amount of R50.00, and with
whom he had consensual intercourse,
he would have furnished her with
his telephone number to enable her to engage him for the outstanding
amount owed.
(18) The appellant’s
version that he had the consensual sexual intercourse with the
complainant was correctly rejected by
the court-a-quo as inherently
improbable and false beyond reasonable doubt because the objective
proven factual evidence and forensic
evidence is inconsistent with
the notion that the appellant consented to consensual sexual
intercourse. The court-a-quo correctly
accepted the complainant’s
evidence that she was raped by the appellant and his co-perpetrator,
that during this ordeal she
was also robbed by the appellant of her
personal possessions including R100.00 cash and her cell phone. On
the second count of
rape, the court-a-quo was also correct to convict
the appellant as an accomplice in the commission of rape perpetrated
by his co-perpetrator.
THE CONVICTION ON
KIDNAPPING
(19) The court-a-quo’s
finding that the appellant and his co-perpetrator, and the two
accomplices kidnapped the complainant,
thus depriving her of her
liberty, and took her to the waiting room on the platform where she
was raped is a duplication of convictions.
See
S v Verwey
1968
(4) SA 682
(A) at 687F-688B and 689d-F.
(20) In my view the
court-a-quo misdirected itself in convicting the appellant on the
charge of kidnapping. The deprivation of the
complainant’s
liberty was predicated on a continuous intent in pursuance of one
criminal transaction to rape the complainant.
The commandeering of
the complainant from the train into the waiting room was with the
continuous criminal intention of executing
the rape which could not
occur without depriving the complainant of her liberty in that
“
specific period
” when the complainant was raped.
(21) In the matter
between
Luvuyo Moneli v The State Case No. 494/07
[2008] ZASCA
50
delivered on the 1 April 2008 it was held:
“To determine
whether there had been an improper duplication of convictions the
courts have formulated certain tests. However,
these tests are not
equally applicable in every case. One such test is to ask whether two
or more acts were done with a single
intent and constitute one
continuous criminal transaction. Another is to ask whether the
evidence necessary to establish one crime
involves proving another
crime S v Grobler and Another
1966 (1) SA 507
(A) at
511G-H; and S v Prins and Another
1966 (3) SA 807
(A).”
(22) Consequently, the
appeal in respect of the conviction of kidnapping is upheld, the
appeal against the conviction on count 1,
count 2, and count 5 is
dismissed.
(23) Concerning sentence
it was argued that because the appellant was 27 years old, a first
offender, was employed, has two dependants,
was in custody for 19
months before sentence, and further that, taking into consideration
that offence committed by the appellant
is not the type of rape which
can be categorized as the worst type in the circumstances, these
factors cumulatively should have
been taken by the court-a-quo as
constituting substantial and compelling circumstances justifying a
sentence other than the prescribed
minimum sentence of life
imprisonment, consequently it is submitted that the court-a-quo
misdirected itself in imposing life sentence
on the appellant.
(24) The power of a court
to interfere with the sentencing discretion of a trial court is
limited. The limits were set out as follows
in
S v Malgas
2001
(1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA 220:
“A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the
question of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers
it. To do so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates
its exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing
so, it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance.
As it is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
Court may yet
be justified in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence
of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that
it can properly be described as “shocking”,
Startling” or “disturbingly inappropriate”. It must
be
emphasised that in the latter situation the appellate Court is not
at large in the sense in which it is at large in the former,
in the
latter situation it may substitute the sentence which it thinks
appropriate merely because it does not accord with the sentence
imposed by the trial court or because it prefers it to that sentence.
It may do so only where the difference is so substantial
that it
attracts epithets of the kind I have mentioned. No such limitation
exists in the former situation.”
(25) In my view the
courts-a-quo considered the personal circumstances of the appellant
the seriousness of the offences, and the
interests of society and
correctly found that there were no substantial and compelling
circumstances as envisaged in
section 52 of the General Law
Amendment Act 105 of 1997.
In my view the court-a-quo should
have ordered that the life sentences imposed on the appellant in
respect of count 1 and 2, to
run concurrently because the offences
arise from the same criminal transaction.
(26) In
S v
Vilakazi
2009 (1) SACR 552
(SCA)
Nugent JA remarked:
“[1] Rape is a
repulsive crime, it was rightly described by counsel in this case as
‘an invasion of the most private
and intimate zone of a woman
and strikes at the core of her personhood and dignity’. In
S
v Chapman
this court called it a ‘humiliating,
degrading and brutal invasion of the privacy, the dignity and the
person of the victim’
and went on to say that [w]omen in this
country….have a legitimate claim to walk peacefully on the
streets, to enjoy their
shopping and their entertainment, to go and
come from work, and to enjoy the peace and tranquillity of their
homes without the
fear, the apprehension and the insecurity which
constantly diminishes the quality and enjoyment of their lives.
[3] ……………The
Constitutional Court reminded us in
S v Dodo
.
That punishment must always be proportionate to the deserts of the
particular offender – no less but also no more –
for all
human beings ‘ought to be treated as ends in themselves, never
merely as means to an end’.
[14] It is only by
approaching sentencing under the Act in the manner that was laid down
by this court in
S v Malgas
which was said by
the Constitutional Court in
S v Dodo
to be
‘undoubtedly correct’ that incongruous and
disproportionate sentences are capable of being avoided. In that case
the Constitutional Court said that the approach laid down in
Malgas,
and in particular its ‘determinative test’ for deciding
whether a prescribed sentence may be departed from, makes plain
that
the power of the court to impose a lesser sentence can be exercised
well before the disproportionality between the mandated
sentence and
the nature of the offence becomes so great that it can be typified as
gross [and thus constitutionally offensive].
That ‘determinative
test’ for when the prescribed sentence may be departed from was
expressed as follows in
Malgas
and it deserves
to be emphasised:
If the sentencing
court on consideration of the circumstances of the particular case is
satisfied that they render the prescribed
sentence unjust in that it
would be disproportionate to the crime, the criminal and the needs of
society, so that an injustice
would be done by imposing that
sentence, it is entitled to impose a lesser sentence.
In cases of serious
crime the personal circumstances of the offender, by themselves, will
necessarily recede into the background.
Once it becomes clear that
the crime is deserving of a substantial period of imprisonment the
questions whether the accused is
married or single, whether he has
two children or three, whether or not he is in employment, are in
themselves largely immaterial
to what that period should be, and
those seem to me to be the kind of ‘flimsy’ grounds that
Malgas
said should be avoided.”
(27) The question is
whether the sentence of life imprisonment is unjust and inappropriate
having regard to the nature of the rape
perpetrated on the
complainant? The complainant was attacked by four assailants in a
train, she was grabbed and commandeered at
gun point out of a moving
train into a waiting room. Her leather jacket was removed, her
panties were torn from her body, she was
made to lie on top of her
leather jacket, her hands and feet were held down, she was assaulted
on her face and on her thighs and
told to open her thighs. She was
raped by the appellant and his co-perpetrator without the use of a
condom at the risk of the transmission
of HIV-AIDS, she was
humiliated, sworn at and told she possibly has HIV-AIDS because she
has sexual intercourse with Nigerians.
She was taunted and told to
behave as if she was having sexual intercourse with her husband, and
was forced embrace her assailants.
(28) I cannot find fault
with the court-a-quo’s finding that this was a most vicious
rape. The appellant stands unrepentant
and remorseless, in my view
the chances of rehabilitation are remote if not non existent, due to
his lack of contrition and taking
responsibility for his conduct. The
imposition of life sentence given the circumstances of this case
cannot be said to be unjust
or inappropriate. See
S v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W).
(29) In the premises the
appeal on sentence in respect of two (2) counts of rape and the
robbery with aggravating circumstances
is dismissed. The sentence of
3 years in respect of the conviction on kidnapping is set aside,
consequently, the composite sentence
reads as follows:
(a) The appellant is
sentence to life imprisonment in respect of count 1 and 2; and
(b) 15 years in respect
of robbery with aggravating circumstances.
Dated at Johannesburg on
the 3
rd
December 2010.
__________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
I CONCUR
__________________________________
BADENHORST AJ
ACTING JUDGE OF THE HIGH
COURT
DATE OF HEARING: 4
th
November 2010
DATE OF JUDGMENT: 3
rd
December 2010
ON BEHALF OF THE
APPELLANT: S B MADONDO
TELEPHONE NUMBER: (011)
870-1480
ON BEHALF OF THE
RESPONDENT:
R T MAREUME
TELEPHONE NUMBER:(011)
220-4100