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[2018] ZAGPJHC 428
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Jaars and Another v S (A304/2016) [2018] ZAGPJHC 428 (8 June 2018)
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
A304/2016
COURT
A QUO
CASE
NO
:
41/2589/2007
DPP
REF NO
:
9/2/5/1-2016/467
DATE
:
8
th
June 2018
In
the matter between:
JAARS
,
ROGER
First
Appellant
BOTHA
,
SHANE
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
ADAMS
J
:
[1].
This is an appeal by the first and second
appellants against their convictions and sentences. The first and
second appellants were
respectively accused 2 and accused 1 in the
court
a quo
,
being the Johannesburg Regional Court. At all relevant times the
appellants were legally represented in the court below. On the
4
th
February 2014 the first appellant was convicted as follows: On five
counts of rape; read with the provisions of section 51(1) of
the
Criminal Law Amendment Act 105 of 1997 (‘the CLAA’), one
count of assault, one count of kidnapping and one count
of indecent
assault. On the same day the second appellant was convicted on five
counts of rape, read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
, and one count of kidnapping.
[2].
On the 5
th
of June 2015 the first appellant was sentenced as follows:-
1.
On
the five convictions of rape, which, for purposes of sentence, were
taken as one, the court
a
quo
imposed a sentence of direct imprisonment for life;
2.
On
the conviction for common assault: two years direct imprisonment;
3.
On
the conviction for kidnapping: ten years direct imprisonment; and
4.
In
respect of the conviction for Indecent assault: five years direct
imprisonment.
Ex lege
,
the sentences run concurrently.
[3].
On the same day the second appellant, who,
according to the Learned Magistrate
a
quo
, played a lesser role in the
commission of the crimes, was sentenced as follows:-
1.
On
the five convictions of rape, which, for purposes of sentence, were
taken as one, the court
a
quo
imposed a sentence of direct imprisonment for life;
2.
On
the conviction for kidnapping: ten years direct imprisonment; and
Ex lege
, the
sentences run concurrently.
[4].
The appeal against conviction principally
turns on the reliability of the evidence of the complainant and her
witnesses as contrasted
against the evidence of the appellants, who
claimed, in a brief plea explanation in terms of section 115 of the
Criminal Procedure
Act 51 of 1977 (‘the CPA’), that the
sexual intercourse with the complainant was consensual. The
appellants also deny
the allegations against them relative to the
other charges, notably the kidnapping charge. There is also an issue
relating to the
admissibility against the first appellant of
admissions made by the second appellant in terms of the provisions of
s 112
of the
Criminal Procedure Act. I
shall return to that aspect of
the matter in due course.
[5].
Some of the rape convictions of the
appellants were based on the doctrine of common purpose. The
Magistrates Court had found that
the first appellant had physically
raped the complainant three times, and convicted him on those three
counts of rape. Additionally,
the court
a
quo
convicted him on two more charges
of rape, with the reference to the physical rape of the complainant
by the second appellant,
on the basis of the doctrine of common
purpose. Conversely, the Magistrates Court had convicted the second
appellant on five counts
of rape, three of which related to the
physical raping by the first appellant of the complainant. The point
about this issue, which
was not raised by any of the Counsel on
behalf of the appellants or the State Advocate, but which is raised
by us
mero motu
in the interest of justice, is that this may very well have been a
complete misdirection on the part of the Regional Court. I shall
return to this aspect of the matter later on in my judgment.
[6].
There are certain facts in this matter
which are common cause by virtue of the fact that the parties either
agreed some of those
or the evidence in support of other facts were
not seriously challenged by the defence. Those facts are the
following.
[7].
The appellants and the complainant met each
other on the evening of Thursday, the 29
th
November 2007. The appellants gave the complainant, her sister and a
friend a lift to Melville where they intended attending an
‘after
– party’. First appellant at some point gave the
complainant R200, and the idea was that that amount would
be used as
entrance fee to the night club which was hosting the after –
party. Shortly after the first appellant gave the
complainant the
R200, she gave it to another friend of hers. She wanted to ‘knock’
the first appellant, meaning she
intended cheating him out of the
cash.
[8].
At some point during the evening, after
some to and fro in the Melville and surrounding areas by their party,
consisting of the
appellants, the complainant, her sister and the
friend, the appellants and the complainant left Melville without the
sister and
the friend, and went to a deserted place which goes by the
name of ‘the Dooms’ near Riverlea. There the first
appellant
and the second appellant took turns to have sexual
intercourse with the complainant. The first appellant had sexual
intercourse
with the complainant at least three times, whilst the
second appellant twice had intercourse with her.
[9].
In the early hours of that morning, being
Friday, the 30
th
November 2007, the appellants dropped off the complainant in
Riverlea. Later that same morning, the complainant laid charges of
rape against the appellants and both of them were arrested shortly
thereafter. At about 13H40 in the afternoon on the same day,
the
complainant was examined by Dr S L Phoshoko, who completed the Form
J88 Medico – Legal Examination Report.
[10].
The issues in dispute which the Court
a
quo
was required to adjudicate in sum
were the following: Whether the appellants took the complainant by
force and removed her from
Melville, thus kidnapping her; whether the
complainant was assaulted by the first appellant; whether the first
appellant indecently
assaulted the complainant; and importantly
whether the complainant had consented to having sexual intercourse
with the appellants.
[11].
The evidence on behalf of the state,
succinctly summarised, was as follows.
[12].
The State presented the evidence of a
single witness namely, E G (‘the complainant’), who
testified that she met the
appellants for the first time during the
early evening of Thursday, 29 November 2007, at about 20h30. They
were travelling in a
white Polo, driven by the second appellant. At
that stage she was called to the car by the first appellant, who
asked her whether
she had any plans for the night, to which she
responded that she intended attending a Matric Farewell after –
party in Melville
later on that night. They offered her a lift to
Melville as, according to them, they had no plans for the night. The
three of them
then went to her grandmother's house and collected her
friend, T A (‘T’) and her sister, U G (‘U’).
Thereafter
they made their way to the after – party in
Melville.
[13].
During the course of the night, whilst they
were driving around the Melville area waiting for the after –
party to get going,
the first appellant suggested that he would like
to have sex with all three of them, being the complainant, U and T. T
and U replied
by saying that the evening is still young, whilst the
complainant’s response was to the effect that they were not
that type
of girls.
[14].
Later on they returned to the club in
Melville and the first respondent gave the complainant R200 to pay
for their entrance fee.
When they got to the club the first
respondent stopped her from immediately paying the entrance fee, at
which stage she decided
to ‘knock’ the first appellant by
handing the R200 to another friend of hers, one C. This seemingly
made the first
appellant somewhat agitated and resulted in an
altercation between them all. The complainant attempted to defuse the
tension by
offering to get the money back from C, but the first
appellant would have none of that. By then the situation had
developed into
a serious situation and the complainant instructed T
and U to go and get the money from C. Whilst they were gone, the
first and
second appellants physically forced the complainant into
their car – first appellant held her mouth shut and pulled her
into
the car, whilst the second appellant dragged her by her legs.
Thereafter, second appellant drove off at high speed with her in the
car. At some point during the high speed drive, she attempted to open
the car door, but it was locked. The first appellant gave
her a slap
across her face with an open hand for good measure. They drove to a
deserted place in Riverlea, where the first appellant
undressed her
by pulling down her pants. He penetrated her vagina with his penis
and raped her. He used a condom. She was not sure
if he ejaculated,
but he stopped and got out of the car. Thereafter the second
appellant also took off his pants and he penetrated
her vagina with
his penis and raped her without a condom. He stopped after he
ejaculated. While second appellant was raping her,
the first
appellant was standing outside the car.
[15].
Thereafter, the appellants took turns to
rape her again – the first appellant twice more, without using
a condom and the second
appellant one more time. She was crying
during her ordeal, and the second appellant told her not to cry.
[16].
When she was confronted by the first
appellant for the third time, he turned her on her stomach and wanted
to penetrate her anus.
She asked him not to do that, and he obliged.
He lit a cigarette and used it to burn her arm. He then took a bottle
and broke it.
He wanted to insert the broken bottle into her vagina,
but she acted as if she was in love with him and climbed on top of
his lap.
She told him that he is now her boyfriend and that she would
do anything just to get out of there alive. This behaviour caused him
to change his mind and he did not insert the broken bottle into her
vagina.
[17].
At about dawn, she asked if she could
urinate and was allowed to get out of the car. She tried to flee. She
cried for help and tried
to get the attention of two men standing on
a nearby bridge. These men did not respond to her cries for help.
First appellant ran
after her, caught her and gave her another slap
across the face and forced her back into the car. At that stage they
also forced
her to drink a shot of Rum. At some point during the
whole unsavoury saga the first appellant told her that he had been in
prison
for 18 years because he had raped someone. He told her that he
is not scared to go back again, but when he comes out, he will kill
her. He said that he knew her and her family even though they do not
know him.
[18].
Both the appellants then fell asleep. She
woke up the second appellant and begged him to take her home. Second
appellant then took
her back to Riverlea and she got out of the car.
When he dropped her off, the second appellant apologised to her for
everything
that happened and asked her not to lay charges against
him.
[19].
She thereupon ran to the house of her
friend, one W, and told them that she had been raped. She was crying
and clearly in shock,
and W’s cousin gave her sugar water to
drink in order to calm her down. Thereafter, they accompanied her to
her grandmother's
house, where she found her sister, U, and her
uncle's girlfriend, Cindy. She reported the rape to them as well.
They then all went
to her friend, Janka's house where the police was
called. The police arrived and took her to LanCLAAgte Police Station,
where she
formally laid a charge of rape against the appellants. She
was taken to a doctor who examined her and gave her medication. She
remembered that she had a bite mark on her arm, but could not recall
exactly when during the assaults, she was bitten.
[20].
Later on the appellants were arrested when
they presented themselves at the LanCLAAgte Police Station, after
having been told by
two guys that the complainant was claiming that
she had been raped by the two of them. The complainant was at the
police station
when the two appellants were arrested. That was before
she was taken to the doctor.
[21].
She was asked by the prosecutor to give
more clarity about how many times she had been raped. She explained
that first appellant
raped her first, then second appellant raped her
once. Thereafter first appellant raped her a few more times,
whereafter second
appellant raped her for the second time and then
the first appellant raped her the last time.
[22].
The second state witness was W D. She is a
friend of the complainant. She testified that on Friday, 30 November
2007, at about 08h30,
the complainant arrived at her home in a state.
She was shaking and crying, and she was visibly in a bad space. The
complainant
told her that two men had raped her at ‘the Dooms’.
She told her that earlier that evening, the men demanded some money
back, but by then she did not have the money. They forced her into
the car and drove to ‘the Dooms’, where they assaulted
her by slapping her across the face and burned her with a cigarette.
The complainant explained that she knew the two assailants.
The
witness remained with the complainant until the police came to fetch
her.
[23].
T A was the third state witness. She is a
friend of the complainant and testified that on Thursday, 29 November
2007, at about 20h30
she was with the complainant's sister when she
noticed a white VW Polo with two male occupants accompanied by the
complainant.
They were called by the complainant and they all went to
Melville. She confirmed the complainant’s story relating to the
rest of the evening in all the material respects.
[24].
She furthermore testified that she and U
went to another club and when they came out of the club, she saw the
first appellant busy
choking the complainant. She asked first
appellant what was going on and he told her that he wanted his money
back. They went to
the car and first appellant and the complainant
got into the car. She did not notice where the second appellant was
at that stage.
She and the first appellant then had an argument about
the money, whereafter she and U went back into the club to try and
find
the missing R200. As they were walking back to the club, she saw
the car being driven off by the second appellant with the complainant
and the first appellant as passengers. She testified that she knew
the first appellant by sight, but she did not know the second
appellant before the night of the incident in question.
[25].
The sister of the complainant, U G, was the
fourth state witness. Her evidence accorded in the main with the
evidence of the complainant
and T. She also testified that at some
point during the course of the evening the first appellant suggested
that all three of them,
namely she, the complainant and T, should
have sexual intercourse with him. All three of them, according to
her, replied that that
was not going to happen as they are not that
type of girls.
[26].
She also confirmed the version of T
relating to what happened up to the point when the appellants sped
away from in front of the
club with the complainant still in the car.
Thereafter, they waited a long time to get a lift back home and only
manage to arrive
home in the early hours of the next morning, being
Friday, the 30
th
November 2007.
[27].
Thereafter the doctor who examined the
complainant on the afternoon of Friday, the 30 November 2007, Dr S L
Phoshoko, testified
that, on examination, she found bruising of the
complainant's left cheek, as well as a bite mark on the right forearm
and a cigarette
burn mark on the complainant's right shoulder. Her
findings confirmed the reported history of a physical assault on the
person
of the complainant. A clinical examination of the vaginal area
revealed that: her
labia majora
were tender; there were fresh bruises on her
labia
minora
; the
posterior
fourchette
had a tear or laceration;
and there was swelling around the hymen. Dr Phoshoko concluded that
her findings were consistent with
forceful vaginal penetration.
[28].
She furthermore testified that even during
prolonged vigorous and rough sexual intercourse she would not expect
a consensual woman
to expose herself to be hurt and torn without
complaining at some stage about the pain, especially with the kind of
injuries she
found on the complainant. The Form J88 Medico –
Legal Examination Form, completed by Dr Phoshoko, was received into
evidence
as an exhibit.
[29].
The doctor was re – called on
application by the defence. She was cross-examined about whether
beads implanted under the skin
of the penis would have caused
gynaecological injuries during consensual sexual intercourse. The
doctor had no knowledge or experience
in something like that and
could not really assist the Court, except to speculate that if the
beads under the skin of the penis
were not smooth, it would be
possible that it could cause injuries.
[30].
The sixth and last state witness was R G,
the complainant’s mother. She gave evidence that on the
Saturday following the commencement
of the trial; the second
appellant came to her home with his wife. The second appellant
requested to speak to the complainant.
He explained that he wanted to
ask for her forgiveness for what happened on the evening that she was
raped. The witness insisted
that the second appellant explained to
her exactly what had happened on that fateful night. He told her that
he was with the first
appellant when they gave the complainant a lift
to a party. At some stage during the evening, he withdrew some money
and handed
it to the first appellant, who in turn handed to the
complainant the R200 in order for her to pay the entrance fee at the
function.
When first appellant wanted his money back, an altercation
ensued and the first appellant pulled the complainant into the car,
whereafter he (the second appellant) drove off before the complainant
could escape. He was instructed by the first appellant, so
the second
appellant explained to her, to drive off to ‘the Dooms’
near Riverlea so that he could ‘teach the
complainant a
lesson’. There the first appellant assaulted the complainant,
tore off her clothes from her body and raped
her. He explained that
the first appellant raped the complainant several times. When he was
finished, he forced the second appellant
to rape the complainant as
well. While he (the second appellant) was busy raping the
complainant, the first appellant pulled him
out of the car, and then
proceeded to rape the complainant again and assaulted her as well.
The first appellant raped the complainant
repeatedly, whereafter he
fell asleep. In the early hours of the next morning, the complainant
woke him up and begged him to take
her home, which he then did.
[31].
The second appellant begged the
complainant, so he told the complainant’s mother, to withdraw
the charges against him as at
the end of her ordeal he was the one
who helped the complainant to escape. She told him that they could
not withdraw the charges.
[32].
She also saw the complainant on the morning
after the rapes and confirmed that she was crying a lot. She saw that
her lip and one
eye were swollen. She was in a horrible state and
repeatedly said that the appellants would kill her.
[33].
That concluded the evidence on behalf of
the State, and the appellants thereafter gave evidence in their
defence.
[34].
The second appellant was the first to give
evidence. He confirmed that they met the complainant, her sister and
their friend on
the evening of Thursday, 29 November 2007. The
complainant requested a lift from them to Melville, and they agreed
that they would
take them there. When they arrived in Melville the
complainant found that her friends were not there yet. They stayed
inside the
car and drank some of the appellants' liquor. At some
stage the complainant asked the first appellant for money, and he
agreed
to give her money. However, first appellant indicated that he
would want sexual intercourse in return for the money. They drove
to
a nearby ATM, where the second appellant withdrew R400 and gave R200
to complainant. They returned to Melville and everybody
got out of
the car. He went to buy cigarettes.
[35].
On his return to the vehicle, the second
appellant found that only the first appellant and the complainant
were sitting in the car.
The complainant asked him to drive to
Riverlea, which he did. She instructed him to stop at a certain
house. She went into the
house and returned shortly thereafter. She
directed him to a field near a railway line and instructed him to
stop there. He got
out of the car to urinate, upon his return he
noticed that the first appellant and the complainant were arguing
about the R200
and drugs. As he got into the car, the complainant
asked the first appellant to tell him (the second appellant) to get
out of the
car. The complainant and the first appellant then engaged
in consensual sexual intercourse.
[36].
At some point, security guards came to the
car and the complainant gave them cigarettes. She then instructed him
to drive deeper
into the veld. He did as instructed, got out of the
car and the first appellant and the complainant had sexual
intercourse again.
When they were done, first appellant told him that
the complainant was asking for him. He went to her and she asked if
he had any
money. He told her he had R200. She asked him to give her
the money and she would then also have sexual intercourse with him.
He
insisted that for R200 she should have sexual intercourse with him
twice, and the complainant agreed. They then engaged in sexual
intercourse twice.
[37].
After they all had sexual intercourse, they
sat in the car and continued drinking until they fell asleep. The
next morning the complainant
asked him to take her home, which he
did. He and the first appellant went to the first appellant’s
house, and whilst there
they were confronted by two males who claimed
that, according to the complainant, they had raped her. This
obviously concerned
them and they immediately went to the Police
Station.
[38].
On the 13
th
of August 2013, after all of the evidence on behalf of the State and
the Defence had been completed and just before closing arguments
were
about to commence, the second appellant had a change of heart and
proffered a guilty plea and a statement in terms of
section 112
of
Act 51 of 1977 on two counts of rape. The section 112 statement was
received into evidence by the court
a
quo
, but the plea on the two counts of
rape was not accepted by the State. In his section 112 statement the
second appellant made a
number of admissions which implicated not
just himself, but also the first appellant in the commission of the
various offences
with which they were charged. He admitted that he
raped the complainant twice. He further admitted that they kidnapped
the complainant
and he stated that the first appellant had also raped
the complainant. As indicated
supra
this statement gave rise to a number of issues in the trial in the
Magistrates Court, notably the first applicant’s application
for a separation of the trials, which application was refused by the
Magistrate. In this appeal, Counsel for the first appellant
has again
raised this aspect in the context of the admissibility of the
incriminating section 112 statement against the first appellant.
I
will return to this issue later on my judgment.
[39].
The first appellant thereafter testified in
his own defence. He denied all the allegations against him and his
evidence was to the
effect that he knows the complainant's father,
but Thursday, the 29
th
November 2007, was the first time that he ever met the complainant
herself. She approached the car that he and second appellant
were
sitting in and asked them for a lift for her and her friends to
Melville. The second appellant, who is the owner of the car,
agreed
to take them to the party. When they arrived in Melville the three
girls got out of the car and asked them to wait for ten
minutes,
which they did. After a while the three girls returned to the car.
The complainant asked him to give her R300 for drugs
and told him
that she would have sexual intercourse with both of them in return.
All five of them drove to an ATM in Westbury where
the second
appellant withdrew money, and gave R200 of that to the complainant.
[40].
The complainant wanted to go and buy drugs
in Riverlea, but her two friends wanted to go back to Melville. They
dropped the two
girls off in Melville and thereafter went to go and
buy drugs at a house pointed out to them by the complainant. Having
bought
the drugs, the complainant directed them to a deserted place
near Riverlea. When they got there, she used the drugs and thereafter
asked them if they had condoms, to which they replied no. She then
said that that is fine.
[41].
The complainant thereupon instructed the
second appellant to get out of the car and she undressed herself. The
first appellant pointed
out during his evidence that beadings were
implanted under the skin of his penis. He said that the complainant
had consensual sexual
intercourse with him. During the sexual
intercourse, the complainant complained that the beads in his penis
were hurting her and
they stopped having sex. She nevertheless then
called the second appellant and she had sexual intercourse with him
as well. She
thereafter dressed herself and they sat in the car and
continued drinking. Two security guards came to the car and asked for
cigarettes,
and the complainant gave them. When the security guards
left, he was so drunk that he fell asleep. He woke the next morning
in
his bed at his home.
[42].
He was woken by his sister, who told him
that she was told by two men that the complainant was saying that he
and the second appellant
had raped her. One of these men was the
complainant's boyfriend. He and the second Appellant then went
looking for these guys and
found them in the company of the
complainant. The complainant's boyfriend then accused them of raping
her. He testified that they
went to the police station a few times
before they were arrested.
[43].
The next witness for the defence was the
first appellant's sister, Jacqueline Heidi Jaars. She confirmed the
first appellant’s
version about what happened on the morning of
Friday, 30 November 2007. Her evidence added very little value to the
matter.
[44].
Fabian Johnston was the last defence
witness. He testified that the first appellant is known to him as a
person who resided in the
same area as him. He did not really know
first appellant very well as they just greeted each other. He knows
the complainant very
well because she used to live across the street
from his residence. He was also at the Matric Farewell after party in
Melville
on the evening of Thursday, 29 November 2007, and he saw the
appellants in the company of the complainant and two other females.
He only saw them as they alighted from the car at the club.
[45].
His evidence was that on the next morning
he was in the company of a group of people in a park near a tunnel in
Riverlea. They were
using drugs and drinking. Just after 06h00, he
saw the complainant walking through the tunnel. She was alone. She
asked if they
would give her drugs and alcohol, and he gave it to
her. She told him that she was still ‘high’. She stayed
with the
group of people for about 30 to 45 minutes and left. When he
saw her at that time, he did not notice that her clothes were torn
or
that she had any injuries. She did not report to them that she was
raped by the first appellant.
[46].
During cross-examination, the wheels came
off for Fabian. He was confronted with the Form J88 – Medico
Legal Examination Report
and the complainant’s injuries noted
thereon. He was not able to explain these injuries in the light of
his evidence that
she was injury – free when he saw her at
06h00 that morning. He suggested that she may have been assaulted by
her boyfriend
as he saw them ‘fighting’ during the course
of that Friday.
[47].
After he heard that the first appellant had
been arrested for raping the complainant he realised that this was
wrong, as he had
seen her that morning and she did not complain to
him about any rape. He could not get hold of the first appellant at
that stage.
He also did not inform the police, because he did not
know who the investigating officer was and because LanCLAAgte Police
Station
was corrupt. During 2010, he visited the first appellant in
jail and told him that he saw the complainant on the morning after
the alleged rape. First appellant asked him to testify in his case
and he gave him his contact number. First appellant never contacted
him. During November 2012, he was arrested and he met the first
appellant in the prison. That was when they had a chance to speak
about the case and his sense of justice told him that he had no
choice but to testify in the defence of the first appellant. He
was
requisitioned to go to court.
The
second appellant’s section 112 Statement / Guilty Plea
Explanation – should the court
a quo
have admitted it?
[48].
As I alluded to above, the second appellant
on the 13
th
of August 2013, indicated through his Counsel that he intended
changing his plea to one of guilty on two of the rape charges. In
his
brief statement / plea explanation in terms of section 112 of the
CPA, the second appellant stated that his Counsel had explained
to
him his constitutional rights and that he was making the said
statement freely and voluntarily. He furthermore stated that on
the
night of Thursday, the 29
th
November 2007, he and the first appellant forced the complainant into
his car and drove to Riverlea with her. There he (the first
appellant) twice had sexual intercourse with the complainant ‘against
her will and without her consent’, after the
first appellant
had sexual intercourse with the complainant which was also against
her will and without her consent. He furthermore
confirmed that he
was guilty of the charge of rape and that he was pleading guilty
thereto freely and voluntarily with full knowledge
of the elements of
the crime he was accused of. The section 112 statement was received
and accepted into evidence, but the second
appellant’s plea on
only the two counts of rape was not accepted by the state and the
court
a quo
.
The said statement implicated not only the second appellant, but also
the first appellant in the commission of crimes of kidnapping
and
rape of the complainant. The statement was inculpatory relative to
both the first and the second appellants.
[49].
An issue which I believe we need to deal
with at this stage relates to the admissibility of the statement
against the first appellant
as well as against the second appellant.
I interpose here to note that at the hearing of the appeal, Mr Tlake,
Counsel for the
second appellant, did not take issue with the
admissibility of the section 112 statement against the second
appellant. This, in
my view, does not however mean that we have to
accept that the admissions are admissible against the second
appellant. The issue,
in our judgment, still requires interrogation.
Even more so in the case of the first appellant, on whose behalf, Mr
Penton, his
Counsel at the hearing of the appeal, submitted that the
admissions should not have been allowed to stand against the first
appellant.
Put another way, the enquiry relating to the s 112
admissions by the second appellant is this: were the first and the
second appellants
accorded a fair trial in terms of s 35 of the
Constitution?
[50].
Whilst it probably goes without saying, it
requires emphasising that the second appellant’s changed plea
of guilty was not
under and in terms of the provisions of s 105A of
the CPA, which defines and makes provision for ‘plea –
bargain negotiations’.
The state and the second appellant had
not agreed that he would tender a guilty plea on the two charges of
rape only and that the
state would accept such a plea without further
ado. There were seemingly very little, if any plea negotiations. The
procedural
formalities as required by s 105A were not followed, such
as a formal agreement signed or handed up in the trial court. The
second
appellant simply handed up a s 112(2) statement, indicating
that he was pleading guilty on two of the charges of rape. Therein
lies the difficulty.
[51].
The answer to the above question of
admissibility of the statement relative to the second appellant can,
in my view, be found in
the
ratio
in
S v Sewela
,
2007(1) SACR 123 (W), at par [7]. The court had this to say in
relation to section 112 admissions, read with the provisions of
s
113:
‘
[7]
The proviso lays down that 'any allegation . . . admitted by the
accused up to the stage at which the court records a plea of
not
guilty, shall stand as proof . . . of such allegation'. Clearly, none
of the allegations admitted in the appellant's statement
in terms of
s 112(2) were being admitted by him 'up to' the point at which the
plea was changed; at that stage, he was thus no
longer making the
admissions concerned, and so, they no longer served to 'stand as
proof'. Any doubt in this regard is removed
by the phrase 'other than
an allegation referred to above'. The reference in the phrase is to
an allegation in the charge which
is no longer admitted and,
therefore, to the appellant's initial statement, which now no longer
stands as proof. Further support
for this interpretation is the
injunction to the court to 'require the prosecutor to proceed with
the prosecution', indicating
that the State now has to prove the
allegations no longer admitted.
[52].
Section 113 provides as follows under the
heading: ‘Correction of plea of guilty’ —
‘
(1)
If the court at any stage of the proceedings under section 112 (1)
(a) or (b) or 112 (2) and before sentence is passed is in
doubt
whether the accused is in law guilty of the offence to which he or
she has pleaded guilty or if it is alleged or appears
to the court
that the accused does not admit an allegation in the charge or that
the accused has incorrectly admitted any such
allegation or that the
accused has a valid defence to the charge or if the court is of the
opinion for any other reason that the
accused’s plea of guilty
should not stand, the court shall record a plea of not guilty and
require the prosecutor to proceed
with the prosecution: Provided that
any allegation, other than an allegation referred to above, admitted
by the accused up to the
stage at which the court records a plea of
not guilty, shall stand as proof in any court of such allegation.’
[53].
In sum, the above judgment, with which we
agree, lays down the principle that the admissions made by the second
appellant in terms
of s 112 could no longer stand for the simple
reason that his plea of guilty did not stand. That means that the
court
a quo
misdirected itself and erred in attaching any weight to the
admissions and by regarding same as corroboration for the version of
the complainant, who was a single witness in respect of the incident
of the rapes.
[54].
It follows logically that, if the
admissions should not have stood against the second appellant, they
could not have stood against
the first appellant as well. That is
simply a matter of common sense. In any event, even if the admissions
were admissible, they
would most certainly not have been admissible
against the second appellant’s co – accused, namely the
first appellant.
In that regard, I can do no better than refer to the
decision in
Mhlongo v S; Nkosi v S,
[2015] ZACC 19
, in which the
Constitutional Court held that the common law position that extra
curial confessions and admissions by an accused
are inadmissible
against a co – accused, must be restored. I can think of no
reason why this principle can and should not
have equal application
to section 112 admissions made during the course of a criminal trial.
Therefore, the court
a quo
ought not to have admitted same against the first appellant and its
contents were therefore inadmissible.
[55].
In the circumstances, we are of the view
that the second appellant’s section 112 admissions ought to
have been disregarded
by the court
a
quo
.
The
Remaining Case against the Appellants
[56].
The second appellant’s section 112
statement and admissions being inadmissible, the question which we
then had to consider
is this: what remains of the case against the
appellants? Closely linked to that question is whether, by admitting
the second appellant’s
s 112 admissions and by the court
a
quo
having regard to its contents, the
appellants nevertheless received a fair trial.
[57].
The evidence on behalf of the State I have
summarised above. The question is whether this evidence is sufficient
to prove the guilt
of the appellants beyond a reasonable doubt. Put
another way, the question is whether, at the end of the trial, the
evidence as
a whole was sufficient to ground the conviction of the
appellants?
[58].
To determine whether the state had proved
the guilt of the appellants beyond a reasonable doubt, the whole
mosaic of evidence must
be considered. This evidence as a whole
should be considered in deciding whether the version of the
appellants, namely that they
both had consensual sexual intercourse
with the complainant in a deserted place in the dead of night, is
reasonably possibly true.
[59].
It is trite that the State bears the onus of establishing the guilt
of the appellants beyond a reasonable doubt, and the converse
is that
they are entitled to be acquitted if there is a reasonable
possibility that they might be innocent (
R v Difford,
1937 AD
370
at 373, 383). In
S v Van der Meyden
,
1999 (2) SA 79
(W),
which was adopted and affirmed by the SCA in
S v Van Aswegen,
2001
(2) SACR 97
(SCA), it was reiterated that in whichever form the test
is applied it must be satisfied upon a consideration
of all the
evidence
. Just as a court does not look at the evidence
implicating the accused in isolation to determine whether there is
proof beyond
reasonable doubt, so too does it not look at the
exculpatory evidence in isolation to determine whether it is
reasonably possible
that it might be true. In similar vein the
following was said in
Moshephi and Others v R
, LAC (1980 -
1984) 57 at 59F - H, which was cited with approval in
S v Hadebe
and Others,
1998 (1) SACR 422
(SCA) at 426f - h:
'The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the appellants was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful aid
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far
from it. There is no substitute for a detailed and
critical examination of each and every component in a body of
evidence. But,
once that has been done, it is necessary to step back
a pace and consider the mosaic as a whole. If that is not done, one
may fail
to see the wood for the trees’.
[60].
What is important is the overall picture.
If the version of the appellants is to be accepted, it would mean
that the state witnesses
fabricated and concocted their entire story
from beginning to end. The version of the appellants also does not
explain the medical
evidence of the injuries sustained by the
complainant. Viewed holistically the version of the appellants is not
tenable.
[61].
Although the complainant was a single
witness in respect of the incident, the court
a
quo
evaluated her evidence with
caution, as it was required to do. See:
R
v Mokoena
,
1932 CPD 79
;
S
v Stevens
, 2004 JDR 0505 (SCA). Section
208 of the CPA provides that a Court is entitled to convict an
accused person on the evidence of
a single witness.
[62].
As I indicated
supra
,
the appellants were convicted upon the evidence of a single witness
which was substantially satisfactory in all material respects
and
corroborated. (
S v Ganie
,
1967 (4) SA 203
(N)).
[63].
The court
a
quo
clearly was cognisant of the
cautionary rule relating to a single witness, but also understood
that the exercise of the cautionary
rule must not be allowed to
displace the exercise of common sense. See:
S
v Sauls and Others
,
1981 (3) SA 172
(A)
at 180E-G;
S v Artman and Another
,
1968 (3) SA 339
(SCA). In
S v Jones
,
2004 (1) SACR 420
(C) it was held that the cautionary rule requires
that a court must be aware of factors which render uncritical
acceptance of evidence
hazardous. Cautionary rule does not require
that evidence must be free of all criticism, it requires only that
evidence must be
substantially satisfactory in relation to material
aspects or corroboration. Even though a single witness' evidence
might be criticized
in some aspects, it still does not exclude the
fact that a Court might despite the criticism levelled against the
witness, find
the witness a credible witness. (
S
v Abdoorham
,
1954 (3) SA 163
(N);
S
v Sauls
, 1981 (3)SA 172 (A)).
[64].
We agree with the submissions by Ms Muller,
Counsel for the respondent, that the Court
a
quo
correctly approached the evidence
of the complainant with extra caution after it weighed up her good
and bad qualities as a witness.
The Court
a
quo
correctly found that the
complainant's version is substantially corroborated by independent
evidence. Even if one excludes the
second appellant’s section
112 admissions, there is plenty of corroboration to be found for the
version of the complainant,
not the least of which is the version of
the appellants who confirm that the complainant was taken to a
deserted place where she
would not have been able to solicit the help
of anyone. There are also the clinical findings in the Form J88
Medico – Legal
Report, which is clear evidence that the
complainant was assaulted and burned with a cigarette. The
gynaecological findings surrounding
the genital injuries suffered by
the complainant confirms her evidence of forceful penetration –
rape. This belies the claim
by the appellants that the sexual
intercourse was consensual.
[65].
The evidence of the second, fourth and
sixth state witnesses about the state the complainant was in during
the morning after the
rape, also corroborates her version. They
testified that she was shacking and crying. She had injuries and her
clothes were torn.
She immediately reported that she was raped. In my
view, this is not the natural behaviour of a young woman who had
consensual
sexual intercourse.
[66].
There are almost always some contradictions
to be found between the evidence of state witnesses. I agree with the
submission by
Ms Muller that if the inconsistencies and differences
which exist are of a relatively minor nature and the sort of thing to
be
expected from honest but imperfect recollection, observation and
reconstruction, if anything the contradictions points away from
any
type of conspiracy between the witnesses. See:
S
v Mkohle
,
1990 (1) SACR 95(A).
[67].
We are of the view that the court
a
quo
, after considering all the
probabilities and improbabilities and particularly the fact that
there is no onus on the appellants
to convince the court of the truth
of their explanation, correctly held the evidence of the appellants
was inherently improbable
and false beyond a reasonable doubt. Their
evidence, in addition to being contradictory in material respects
inter the defence
witnesses and between what was put to the state
witnesses and what their
viva voce
evidence was in the end, was inherently improbable in more than one
respect. The learned Magistrate’s finding that sufficient
corroboration existed for the evidence of the complainant cannot be
faulted. The improbability or implausibility of the appellants’
version, particularly the fact that on their version the state
witnesses concocted the whole story against them, is apparent.
[68].
We are accordingly of the view that, even
after the statement by the second appellant is excluded from the
evidence before the court
a quo
,
there is no reason for disturbing any of the factual findings made by
the court
a quo
.
The case against the appellants was overwhelming, even if the second
appellant’s statement is excluded from the evidence,
and the
Regional Magistrate was correct in his finding that the first
appellant raped the complainant three times and the second
appellant
raped her twice, as per her evidence.
[69].
As far as the kidnapping is concerned,
there can be no doubt that the appellants, acting in concert, had
deprived the complainant
of her freedom by forcing her into their
vehicle and driving her to a deserted place. In any event, they were
both involved in
the act of kidnapping the complainant – they
both forced her into the car and the second appellant drove away
whilst the
first appellant was restraining her in the vehicle. The
offence of kidnapping stood separate and distinct from the rape, and
it
cannot be said that there was an improper duplication of charges.
[70].
We are therefore satisfied that,
notwithstanding the misdirection on the part of the Magistrate
a
quo
by admitting the second appellant’s
s 112 admissions, the appellants had a fair trial, and that we ought
not to interfere
with his factual findings. This does not however
mean that the convictions and sentences should be confirmed.
Common
purpose – the rape counts
[71].
As mentioned
supra
,
we are concerned that there may have been a complete misdirection by
the Regional Magistrate in his finding that, on the fact
he found
proven, between the two of them the appellants acted in concert in
raping the complainant five times
.
There is an oddity in the judgment of the learned Magistrate. He
convicted the appellants on additional counts of rape in respect
of
those charges where the co – perpetrator was in fact the one
who committed the actual
actus
of rape. This, we assume, he did on the basis that he was of the view
that the doctrine of common purpose found application. The
peculiarity lies therein that in his judgment the basis for these
convictions is that the second appellant, for example, was an
accomplice to the physical rape by the first appellant of the
complainant. The regional Magistrate had this to say in his judgment
on this point:
‘
Hy
erken inderdaad dat beskuldige 2 ook die klaagster verkrag het in sy
teenwoordigheid en met sy medewete. Dit maak homself aandadig
as
medepligtige aan die verkragting wat beskuldigde 2 op die klaagster
uitgevoer het. Dit het duidelik met sy goedkeuring plaasgevind,
waar
hy nie self die dader tot die verkragting was nie, was hy medepligtig
daartoe. Sien in die verband
S v Kok
,
1988 (1) SA 37
(A). Die argument geld inderdaad ten opsigte van biede
beskuldigdes’.
[72].
Also later in his judgment, the Magistrate
concludes as follows:
‘
Soos
ek reeds aangedui het is dit ook duidelik dat die een beskuldigde die
ander se verkragting bevorder het. Derhalwe het beide
die
beskuldigdes hulle skuldig gemaak aan 5 klagte van verkragting.’
[73].
The wording and the formulation in the
judgment suggest that what the regional court had in mind was to
convict the appellants,
on these additional charges, of being an
accomplice to rape. In the end it in fact convicted of rape on the
basis of common purpose.
Either way, there was a gross misdirection
on the part of the learned Magistrate. I say so for the reasons which
follow.
[74].
The general principles relating to the
doctrine of common purpose have been set out in
S
v Mgedezi & others
,
[1988] ZASCA
135
;
1988 (1) SA 687
(A) at 7051I-706C. In the absence of any prior
agreement, the State has to prove the following requirements for the
doctrine of
common purpose in order for the appellants to be held
criminally accountable. Firstly, that the particular appellant was
present
at the scene of the rape. Secondly, that he was aware of the
perpetration of such offences against the complainant. Thirdly, that
he had intended to make common cause with his co – perpetrator
who was actually perpetrating the offences. Fourthly, that
he
manifested his sharing of a common purpose with his co - perpetrator
of the offences by himself performing some act of association
with
the conduct of the other. Fifthly, that he had the requisite
mens
rea
, that is that he intended to rape
or must have foreseen the possibility of the commission of this crime
and performed his own act
of association with reckless disregard as
to whether or not such eventuality ensued.
[75].
As I said, these are the general principles
in relation to the doctrine of common purpose. Our courts have on
previous occasions
held that, as regards the doctrine of common
purpose, special requirements apply in relation to the offence of
rape. We agree with
this view, and I will explain our rationale
shortly.
[76].
In casu
,
the rapes literally occurred days before the Criminal Law (Sexual and
Related Matters) Amendment Act 32 of 2007 (‘the Sexual
Offences
Act’) came into force on the 16
th
of December 2007 in terms of which the common law offence of rape was
repealed and replaced with a new expanded statutory offence
of rape,
applicable to all forms of sexual penetration without consent,
irrespective of gender. The appellants were accordingly
charged with
and convicted of common law rape.
[77].
Under the common law, as is the case in
terms of the provisions of the Sexual Offences Act, the offence of
rape, as opposed to that
of ‘compelled rape’, is a crime
which can only be committed by the instrumentality of a person's own
body.
[78].
In this regard, the author, C R Snyman,
Criminal Law, 6
th
Ed (2014) states as follows at p 266 para [13]:
‘
The
common purpose doctrine cannot be applied to crimes that cannot be
committed through the instrumentality of another person but
can only
be committed through a person's own body or part thereof. Rape as
well as certain other sexual offences such as intercourse
with a girl
below the age of sixteen are examples of such crimes.’
[79].
This passage was quoted with approval by
Eksteen J in delivering the judgment of the Full Bench of the Eastern
Cape Division of
the High Court, Grahamstown, in
S
v Kholosa and Another,
[Unreported case
no: CA183/2010]. We find ourselves in agreement with this approach to
the application of the doctrine of common
purpose in rape cases.
[80].
It is clear therefore that the regional
magistrate erred in convicting the appellants of rape on five counts
solely on the basis
that the one acted with a common purpose when the
other physically raped the complainant and
vice
versa
. The first appellant should have
been convicted of three counts of rape only and the second appellant
of two counts of rape only.
In the exercise of our inherent
jurisdiction the convictions of the appellants will be altered
accordingly.
Were
the appellants accomplices to the rapes by their co –
conspirators?
[81].
The next question is whether the appellants
were guilty of being accomplices to these rapes perpetrated by their
respective co –
perpetrators. The crime of being an accomplice
has its own requirements and essential elements, and the state is
required to prove
those elements beyond a reasonable doubt. A proper
reading of the appeal record confirms, in our view, that the state
has, in any
event, not proven beyond a reasonable doubt that the
particular appellant had
furthered
the commission of the rape by the other appellant.
[82].
In coming to the aforesaid conclusion I
have had regard to the reasoning in
Phetoe
v S,
(1361/2016)
[2018] ZASCA 20
(16
March 2018). Mocumie JA referred with approval to
Minister
of Justice and Constitutional Development & Another v Masingili &
Others,
[2013] ZACC 41
;
2014 (1) SACR
437
(CC), in which the Constitutional Court grappled with the meaning
of the term ‘accomplice’. Having considered the facts
before it, it stated the following:
‘
An
accomplice is someone whose actions do not satisfy all the
requirements for criminal liability in the definition of an offence,
but who nonetheless furthers the commission of a crime by someone
else who does comply with all the requirements (the perpetrator).The
intent required for accomplice liability is to further the specific
crime committed by the perpetrator.’
[83].
The learned author, C R Snyman, Criminal
Law 6 ed (2014) at pg 266 describes the position as follows:
‘
Accomplice
liability may be defined as follows:
1. A person is guilty of
a crime as an accomplice if, although he does not satisfy all the
requirements for liability contained
in the definition of the crime
and although the conduct required for a conviction is not imputed to
him by virtue of the principles
relating to common purpose, he
unlawfully and intentionally engages in conduct whereby he furthers
the commission of a crime by
somebody else.
2. The word “furthers”
in rule 1 above includes any conduct whereby a person facilitates,
assists or encourages the
commission of a crime, gives advice
concerning its commission, orders its commission or makes it possible
for another to commit
it.’
[84].
In
Phetoe
(supra) the SCA remarked as follows at par [15]:
‘
To
convict the appellant on the basis of his mere presence is to subvert
the principles of participation and liability as an accomplice
in our
criminal law. For criminal liability as an accomplice to be
established, there must have been some form of conduct on the
part of
the appellant that facilitated or assisted or encouraged the
commission of the rape of Ms M during the two separate incidents
in
her shack. Ms M’s evidence does not disclose any assistance
rendered by the appellants in the commission of the rapes;
and the
conduct does not amount to facilitation, assistance or encouragement.
That, in my view, should have been the end of the
matter. The fact
that the appellant laughed after being asked why they were ‘doing
such a thing’ may be conduct that
showed his approval of what
was happening, but that is not enough to establish his liability as
an accomplice. In
S v Nooroordien &
Andere
, in
1998 (2) SACR 510
(NC), in
which two persons had been present when a murder had been committed,
the court at pg 524F-G stated:
“
Alles
wat gebeur het mag, en het in alle waarskynlikheid hulle goedkeuring
weggedra. Dit is egter nie genoeg nie…”
Loosely translated to
English it means ‘all that happened seems to have carried their
approval. That is however not enough.’
[85].
Applying these principles in this appeal,
we are not persuaded that the state had proven that the appellants
were accomplices to
the rapes by their co – conspirators.
[86].
Accordingly, the convictions of the first
appellant on three counts of rape are confirmed, but his convictions
on two counts are
set aside. As regards the second appellant, his
convictions on two counts of rape stand to be confirmed, whereas his
convictions
on three counts of rape should be set aside.
Sentence
[87].
I now turn to deal with sentence. Both the
appellants were sentenced effectively to direct imprisonment for
life. It is trite that
an appeal court can interfere with sentence
only where the sentence is affected by an irregularity or
misdirection entitling this
court to interfere.
[88].
However, as the basis for the appellants’
convictions had changed, the question is whether this court should
set aside the
sentences imposed by the Regional Magistrate,
reconsider these sentences and impose sentences different from those
imposed by the
court below.
[89].
This was a particularly serious case of
rape where a young woman was forcibly taken by the appellants to a
deserted place and subjected
to a humiliating and degrading ‘gang’
rape. In my judgment, the fact that appellants have now been
convicted on less
counts of rape should not generally speaking, in
the circumstances of this matter, result in a lesser sentence. The
question remains
however whether, all things considered, we should
interfere with the life sentences imposed by the regional court.
[90].
A convenient starting point is the fact
that the provisions of s 51(1) of the CLAA, read with Part I of
schedule 2 of the said Act,
apply. This means that a minimum sentence
of imprisonment for life finds application. The question is whether
substantial and compelling
circumstances exist which justify the
imposition of a lesser sentence.
[91].
Section 51(1) of the CLAA reads as follows:
‘
(1)
Notwithstanding any other law, but subject to subsections (3) and
(6), a regional court or a High Court shall sentence a person
it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.’
[92].
Section (3) of the said Act provides as
follows:
‘
(a)
If any court referred to in subsection (1) or (2) is satisfied that
substantial and compelling circumstances exist which justify
the
imposition of a lesser sentence than the sentence prescribed in those
subsections, it shall enter those circumstances on the
record of the
proceedings and must thereupon impose such lesser sentence: Provided
that if a regional court imposes such a lesser
sentence in respect of
an offence referred to Part 1 of Schedule 2, it shall have
jurisdiction to impose a term of imprisonment
for a period not
exceeding 30 years.
(aA) When imposing a
sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence:
(i)
The complainant's previous sexual history;
(ii)
an apparent lack of physical injury to the
complainant;
(iii)
an accused person's cultural or religious
beliefs about rape; or
(iv)
any relationship between the accused person
and the complainant prior to the offence being committed.’
[93].
Part I of Schedule 2 list the crime of
‘Rape as contemplated in section 3 of the Criminal Law (Sexual
Offences and Related
Matters) Amendment Act, 2007-
‘
(a)
when committed-
(i)
in circumstances where the victim was raped
more than once whether by the accused or by any co-perpetrator or
accomplice;
(ii)
by more than one person, where such persons
acted in the execution or furtherance of a common purpose or
conspiracy;
(iii)
by a person who has been convicted of two
or more offences of rape or compelled rape, but has not yet been
sentenced in respect
of such convictions; or
(iv)
by a person, knowing that he has the
acquired immune deficiency syndrome or the human immunodeficiency
virus;
(b) where the victim-
(i) is a person under the
age of 16 years;
(iA) is an older person
as defined in section 1 of the Older Persons Act, 2006 (Act 13 of
2006).’
[94].
I take into consideration what was stated
by the SCA in
S v Vilakazi
,
2009 (1) SACR 552
(SCA). Nugent JA had this to say at par [58]:
‘
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. But they are nonetheless relevant in another
respect. A material consideration is whether the accused
can be
expected to offend again. While that can never be confidently
predicted his or her circumstances might assist in making
at least
some assessment. In this case the appellant had reached the age of 30
without any serious brushes with the law. His stable
employment and
apparently stable family circumstances are not indicative of an
inherently lawless character.’
[95].
It was necessary for the court to find the
existence of substantial and compelling circumstances before it was
entitled to impose
a lesser sentence. In considering whether
substantial and compelling circumstances were present, the learned
magistrate had regard
to the appellants’ personal circumstances
and the fact that both appellants were not first offenders. The first
appellant,
in particular, was previously convicted on the 7
th
of June 1996 on a charge of rape and sentenced to ten years
imprisonment. The court also had regard to the severity and the
seriousness
of the offences committed by the appellants.
[96].
I am satisfied that, with regard to the
first appellant, the learned regional court magistrate properly
considered whether there
were substantial and compelling
circumstances to deviate from the minimum sentences provided for in
respect of the offences under
the relevant provisions of section
51(1) of the CLAA as read with part I of schedule 2 thereof, and also
carefully considered the
triad of factors relevant to sentencing,
namely the nature of the offence, the personal circumstances of the
offender, including
their moral blameworthiness and the interests of
society by which I include the interests of the victim. In that
regard, the Magistrates
Court was assisted by a victim impact report,
as well as by pre – sentence reports in respect of both the
appellants.
[97].
On first principles, the aggravating
circumstances far outweigh the personal circumstances of the
appellants. I do not consider
there to be any misdirection in the
Regional Magistrate’s judgment on the sentence imposed on the
first appellant, which
would entitle this court to interfere with the
sentences imposed. It moreover cannot be said that the sentences are
unduly harsh
or inappropriate (see
S v
Kgosimore,
1999 (2) SACR 238
(SCA)). In
my view the imposition of the life sentence does not induce a sense
of shock nor is it disproportionate particularly
having regard to the
values to which we subscribe and the application of section 51 of the
CLAA.
[98].
I take into consideration, as held in S v
Vilakazi, that in respect of —
‘
serious
crime the personal circumstances of the offender . . . 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 . . .
.'
[99].
At the time of the imposition of the
sentence the first appellant was 37-years old and unmarried. He had
reportedly dropped out
of school when he was in grade 12, which means
that his highest level of education is grade 11. He apparently has no
children.
He has previous convictions, including a conviction during
1996 on a charge of rape.
[100].
Accordingly, life imprisonment remains, in
my view, an appropriate sentence with respect to the first appellant.
[101].
However, the second appellant, in my view,
stands on a different footing. He was also 37 years old at the time
when he was sentenced
by the trial court. He was in a committed
relationship, and had fathered seven children with different mothers.
He attended school
up to grade 8, and dropped out of school whilst in
that grade. His highest level of education therefore is grade 7. He
reportedly
had learning difficulties which caused him to drop out of
school at such a low level. Up to the point that he was convicted he
was in permanent employment as a spray painter. He also has previous
convictions, which in our view, should not be taken into account
in
the sentencing of the second appellant in view of the fact that these
offences of housebreaking and theft were committed as
far back as
1990. The court
a quo
therefore treated him, rightly so in our view, as a first offender.
[102].
Whilst the first appellant has thus far
shown no remorse and steadfastly maintained that he was wrongly
convicted, the second appellant,
on the other hand, can be said to
have demonstrated a degree of remorse. This is evidenced by the fact
that in the hours following
the rape, he was the one who decided to
end the complainant’s ordeal by dropping her off in the
Riverlea area close to a
friend’s house. After the trial
commenced, he also reached out to the complainant and her mother and
attempted to ask for
forgiveness from the complainant. Lastly, he
changed his plea to one of guilty on two of the rape charges albeit
at a very late
stage, namely after completion of all of the evidence
and just before the commencement of the closing arguments. To the
parole
officer he also indicated that he is remorseful, and wish that
he could be given a chance to ask for forgiveness from the
complainant.
[103].
In addition to the fact that the second
appellant reportedly had a difficult upbringing in a completely
dysfunctional family setting,
there is another aspect which weighs
heavily on my mind. That relates to the fact he has a diminished
intellectual capacity, which
made him prone to being influenced and
manipulated by others, which is what probably happened in this case.
To the probation officer,
Ms T Seboka, the employer of the second
appellant described him as ‘a good person, dedicated and
hardworking’. The
employer also indicated that ‘despite
the accused’s mental capacity he can be trusted as one of the
best employees
in the company’. The second appellant has
reportedly been diagnosed with a chronic illness for which he
presently receives
chronic medication.
[104].
The cumulative effect of the aforegoing, in
our view, amounts to special and compelling circumstances in relation
to the second
appellant, which should have made the court
a
quo
deviate from the minimum sentence.
We are therefore of the view that, having regard to the aforegoing,
the sentences of life imprisonment
imposed on the second appellant is
unduly harsh and inappropriate. I say this especially if regard is
had to the unchallenged evidence
by the parole officer that the
second appellant presented with intellectual deficits, which made him
prone to outside influences
and to manipulation by others. At age 37,
he was also a first offender. Accordingly, we are of the view that
this court should
interfere with the sentences imposed on the second
appellant by the trial court.
[105].
Taking into consideration all the known
factors, we are of the view that a sentence of 25 years' direct
imprisonment on each of
the two charges of rape would be appropriate.
As discussed in more detail below, if regard is had the provisions of
section 51
of the CLAA, it is undesirable that the convictions of
rape were ‘lumped’ together for purposes of sentence. We
are
of the view that, for this reason alone, the sentences imposed
should be reconsidered, set aside and replaced with sentences in
respect of each of the convictions of rape. This approach, whilst
from a practical point of view has very little effect on the
appellants, is desirable. In any event, for the reasons alluded to
supra
, the
second appellant’s appeal against his sentence must succeed.
[106].
The same cannot be said of the first
appellant, and, in our judgment, his appeal against sentence should
fail, although we do intend
altering the sentences to reflect our
view that it was undesirable to regard the rape convictions as one,
as did the Regional Court,
for the purpose of sentencing. I deal with
this issue shortly.
Conclusion
[107].
In terms of
section 19
of the
Superior
Courts Act 10 of 2013
this appeal court, on hearing the appeal, has
the power to ‘confirm, amend or set aside the decision which is
the subject
of the appeal and render any decision which the
circumstances may require.’
[108].
In view of the misdirections by the learned
Regional Magistrate alluded to above, we intend setting aside some of
the convictions
of both appellants and the sentences imposed in
respect of the second appellant.
[109].
As far as the sentences are concerned, the
Magistrate’s approach in taking the rape convictions as one for
purposes of sentence,
is undesirable. The provisions of the CLAA
envisage that for each rape conviction which falls under the auspices
of
section 51
(1), a life sentence should be imposed. We therefore
intend imposing the reduced sentence in respect of the second
appellant for
the convictions on each charge of rape.
[110].
As far as the first appellant is concerned,
despite the fact that he has now been convicted on only three counts
of rape, his sentence
to life imprisonment remains, in our view, an
appropriate sentence. The fact of the matter is however that the
court
a quo’s
approach
is, in our judgment, undesirable. The sentence of the first appellant
therefore stands to be set aside, reconsidered and
replaced with a
sentence of direct imprisonment for life on each of the three
convictions of rape.
Order
Accordingly
the following order is made:
1.
The appeal by the first appellant, Roger
Jaars, against his convictions is upheld in part.
2.
The first appellant’s convictions in
respect of count 1 (rape), count 2 (rape), count 3 (rape), count 8
(assault), count 9
(kidnapping) and count 10 (indecent assault) are
confirmed.
3.
The first appellant’s convictions in
respect of count 4 (rape) and count 5 (rape) are set aside.
4.
The first appellant’s sentence in
respect of the rapes be and is hereby set aside and are replaced with
sentences of imprisonment
for life in respect of each of the rape
convictions. His appeal against his sentences in respect of the
remaining convictions is
dismissed. Therefore the sentences imposed
on the first appellant are set aside and in its place and stead are
substituted the
following:
‘
(1).
Count 1 (rape): direct imprisonment for life;
(2). Count 2 (rape):
direct imprisonment for life;
(3). Count 3 (rape):
direct imprisonment for life;
(4). Count 8 (Assault):
two years direct imprisonment;
(5). Count 9
(Kidnapping): ten years direct imprisonment; and
(6). Count 10 (Indecent
assault): five years direct imprisonment.
(7). The sentences shall
run concurrently.
(8). The sentences are
antedated to the 5
th
June 2015’.
5.
The appeal by the second appellant, Shane
Botha, against his convictions is upheld in part.
6.
The second appellant’s convictions in
respect of count 4 (rape), count 5 (rape) and count 9 (kidnapping)
are confirmed.
7.
The second appellant’s convictions in
respect of count 1 (rape), count 2 (rape) and count 3 (rape) are set
aside.
8.
The appeal by the second appellant, Shane
Botha, against his sentences is upheld in part.
9.
The second appellant’s sentence in
respect of the rapes be and is hereby set aside and are replaced with
sentences of direct
imprisonment for 25 years in respect of each of
the rape convictions. His appeal against his sentences in respect of
the remaining
convictions is dismissed. Therefore the sentences
imposed on the first appellant are set aside and in its place and
stead are substituted
the following:
‘
(1).
Count 4 (rape): 25 years direct imprisonment;
(2). Count 5 (rape): 25
years direct imprisonment; and
(3). Count 9
(Kidnapping): ten years direct imprisonment.
(4). All of the sentences
shall run concurrently, which means that the second appellant is
effectively sentenced to direct imprisonment
for a period of 25
years.
(6). The sentences are
antedated to the 5
th
June 2015’.
________________________________
L R ADAMS
Judge of the High
Court of South Africa
Gauteng Local
Division, Johannesburg
I agree, and it is so
ordered
__________________________
M MAKUME
Judge of the High
Court of South Africa
Gauteng
Local Division, Johannesburg
HEARD
ON:
7
th
May 2018
DATE
OF JUDGMENT:
8
th
June 2018
FOR
THE FIRST APPELLANT:
Mr
Jesse Penton
INSTRUCTED
BY:
Legal
Aid South Africa
FOR
THE SECOND APPELLANT:
Adv
Elvis Tlake
INTRUCTED
BY:
Johannesburg
Justice Centre
FOR
THE RESPONDENT:
Adv
N Muller
INSTRUCTED
BY:
The
Office of the Director of Public Prosecutions, Gauteng Local
Division, Johannesburg