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[2020] ZAGPJHC 298
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Molefe v S (A124/2012) [2020] ZAGPJHC 298 (29 May 2020)
SAFLII
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REPUBLIC
OF SOUTH AFRICA
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NR: A 124/2012
DDP
REF NR: JAP 2012/0139
DATES
OF APPEAL: 29 OCTOBER 2019
and
21 FEBRUARY 2020
In
the matter between:
GEORGE
MOLEFE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
[1]
On 21 February 2008 the appellant was found guilty in the Regional
Court, Soweto on three counts of rape in terms of section
3 of Act 32
of 2007 (read with the provisions of section 51(1) of Act 105 of
1997) and on two counts of kidnapping.
[2]
Appellant was sentenced on the same day. Three counts of rape were
taken as one for purposes of sentence and he was sentenced
to
imprisonment for life. He was sentenced to 3 years imprisonment on
each of the kidnapping convictions. The learned magistrate
ordered
that the sentences imposed i.r.o. the kidnapping charges would run
concurrently with the life sentence.
[3]
Appellant had an automatic right to appeal in terms of
section
309(1)(a)
of the
Criminal Procedure Act 51 of 1977
. He filed a notice
of appeal against his convictions and sentences on 27 February 2008.
Regrettably, a portion of the transcribed
record of the proceedings
went missing and consequently had to be reconstructed. All the
parties involved signed off on the reconstructed
record at the end of
2014. The reconstructed record was only received by the office of the
Director of Public Prosecutions (“DPP”)
by 25 September
2018.
[4]
No explanation has been proffered for these inordinately long delays.
All in all it has taken more than 12 years for appellant’s
appeal to be heard. It is unacceptable that a criminal appeal record
should take this long to be reconstructed and sent to the
office of
the DPP. Particularly disturbing is the fact that all parties
signed off on the reconstructed record at the end
of 2014, but the
reconstructed record was only received by the office of the DPP on or
about 25 September 2018, some 4 years later.
It is not the kind of
efficiency, diligence and commitment contemplated in our
constitutional democracy. Access to courts is a
right enshrined in
section 34
of our Bill of Rights. This right should be given due
regard and respect. So as to prevent a recurrence of such
unacceptably long
delays, this judgment will be sent to the DPP for
his consideration and preventative action.
[5]
This appeal was first heard by my learned brother Judge Van der Linde
and me. Counsel were asked to prepare and present further
argument on
certain issues. Before the further hearing could take place, Judge
Van der Linde, sadly, died. The matter was re-allocated
to be heard
before my learned sister Judge Opperman and myself. Argument was
presented afresh in this re-hearing. The same counsel
appeared as
before and adv. N.J. Horn was asked to present argument on certain
issues,
amicus curiae
. We thank counsel for their valuable
assistance.
The
Facts
[6]
The events giving rise to this criminal appeal took place during the
evening of 1 March 2007. That evening the complainant Ms
L N was
walking in the Protea Glen area of Soweto. On her way back home she
came across three men. This happened shortly after
8 o’clock in
the evening. Appellant was one of them. They blocked her way. Her
testimony paints a picture of appellant’s
brutality. Appellant
grabbed complainant’s hand and then assaulted her by twice
slapping her on the cheek with an open hand
and kicking her,
randomly. He pulled her to a house and once there, dragged the
complainant into a toilet cubicle, lifted her skirt,
removed her
panties and inserted his penis into her vagina. He was not wearing a
condom. Sexual intercourse ended when the appellant
ejaculated. All
of this occurred without the complainant’s consent and despite
her pleas and protestations. This accounted
for the first charge of
rape. Thereafter the appellant pulled the complainant to the yard
where he was residing, took complainant
to an area behind the rooms
at the yard, made her lie on the ground and again had sexual
intercourse with her, without her consent
and without the use of a
condom. This too ended with the appellant ejaculating. It took
approximately 4 minutes to move from the
area where the first rape
occurred to reach the area where the second non-consensual sexual act
occurred. This gave rise to the
second charge of rape. The appellant
then took the complainant into his shack. There, on a bed inside the
shack, he undressed the
complainant and the appellant again had
sexual intercourse with her, without a condom or her consent.
Intercourse ended his ejaculation.
This constituted the third charge
of rape. Complainant testified that she sought help from an unknown
young man, but he did nothing
due to his fear of appellant. The young
man later informed the appellant that his girlfriend was there,
whereupon appellant ordered
the complainant to dress fast and leave.
She was kept in the shack for approximately 20 minutes.
[7]
There is considerable corroboration of complainant’s evidence
that she was raped, rather than having had consensual intercourse,
as
the appellant contends for. The complainant’s mother I N
testified that while she was selling goods in the street, she
saw the
complainant running towards her. The complainant told her that she
was raped and gave some detail of where and how it happened.
She said
she was running away from the boy who raped her. The complainant was
weak and leaned on her. She was crying. The mother
also testified
that complainant’s T-shirt was torn at the back.
[8]
That same night, shortly before 11pm, complainant went to the police
station. The police took her to Baragwanath hospital where
she
underwent a gynaecological examination. The medico-legal report of Dr
Likibi was received in evidence by consent. He described
complainant’s clothing as dirty and torn and noted that her
body was painful. The doctor further described in the medical
report
that the complainant had suffered injuries to her vagina. She had
increased friability, the posterior fourchette had scarring
and there
was swelling and bruising at 5 and 7 o’clock.
[9]
Further corroboration is to be found in the circumstances of
appellant’s arrest. Complainant took inspector David Munyai
of
the South African Police Force to appellant’s house, but
appellant was not there. About a week later complainant took
inspector Munyai there, again. On arrival the inspector knocked on
the door of the house for a long time, stating that it was the
police. There was no response. The police kicked the door down,
entered the house and came across a young lady. Inspector Munyai
asked her about the whereabouts of “George” (the
appellant). She told Munyai that George did not come back. Manyai
asked her where does he sleep when he is around. She pointed to the
bedroom. Munyai entered the bedroom. He testified that it was
evident
that someone had been sleeping in the bed. He looked underneath the
bed, but there was no-one there. Inspector Munyai then
opened the
wardrobe and found the appellant in the wardrobe, slightly crouched,
and frightened.
[10]
The appellant testified that the complainant used to be his
girlfriend. He denies having raped the complainant. He testified
that
he did not have sex with her in the toilet, nor at the back of the
rooms where he stays. He admitted that he had sex with
the
complainant in the shack. Appellant testified that she was wet and
ready for intercourse and that penetration was easy.
[11]
When responding to questions regarding the evidence of investigating
officer David Manyai, appellant denied that he was hiding
away in the
wardrobe of his bedroom when the police arrived. Appellant admitted,
however, that he was in the house at the time.
Onus
of Proof and Proper Approach to the Facts
[12]
The onus rests on the state to prove beyond a reasonable doubt that
the accused committed the crime accused of. Equally trite
is the
principle that an accused should be acquitted if his or her
exculpatory testimony can be reasonably possibly true.
[13]
Is has long been our law that the trier of fact should not consider
the evidence implicating the accused and evidence exculpating
the
accused in a compartmentalised manner. The court must evaluate the
evidence before it in its totality and judge the probabilities
in the
light of all the evidence; see
R v Difford
1937 AD 373
,
S v Van der Meyden 1999(1) SACR 447 (W)
and
S
v Toubie 2004(1) SACR 530 (W).
[14]
The proper approach to evidence and the assessment of probabilities
was described in
R v Mlambo 1957(4) SA 727(A)
at 738 A
to C:
“‘
In my opinion, there
is no obligation upon the Crown to close every avenue of escape which
may be said to be open to an accused.
It is sufficient for the Crown
to produce evidence by means of which such a high degree of
probability is raised that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime charged. He
must, in other words, be morally certain of the guilt of the accused.
An accused’s claim to the
benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest
upon a reasonable and solid foundation
created either by positive evidence or gathered from reasonable
inferences which are not
in conflict with, or outweighed by, the
proved facts of the case.”
[15]
The passage was quoted with approval by Olivier JA in
S v
Phallo and Others 1999(2) SACR 558 (SCA
)
at 562g to
563e.
[16]
In my opinion, especially having regard to the wide range of
witnesses that corroborated the complainant in several aspects
of her
evidence, the state has proved beyond reasonable doubt that the
crimes of rape and kidnapping were committed by the appellant.
The
exculpatory evidence of the appellant, also, cannot reasonably
possibly be true.
Case
Law on Multiple Sexual Acts
[17]
The appellant was found guilty on three counts of rape.
[18]
The facts that arise in this matter are not uncommon in rape cases.
Several sexual acts, committed without consent, being perpetrated
by
the same accused with the same complainant, within short intervals
and often at the same place. The question often posed is
whether the
several acts should account for one or more convictions of rape.
[19]
Each case must, of course, be evaluated and judged on its own facts.
Nonetheless, examples in case law are of assistance to
establish the
jurisprudential flow of thought and to divine principles therefrom,
to the extent applicable.
[20]
Mere and repeated acts of penetration cannot without more be equated
with repeated and separate acts of rape. As a general
rule, the more
closely connected the separate acts of penetration are in terms of
time (i.e. the intervals between them) and place,
the less likely a
court will find that a series of separate rapes has occurred. Where
an accused has ejaculated and withdrawn his
penis from the victim,
but he again penetrates her thereafter, it was inferred that the
accused has formed the intent to rape the
complainant again, even if
the second rape took place soon after the first and at the same
place. (See
S v Blaauw
1999 (2) SACR 295
(W)
at 299 c-d and
300 c-d.)
[21]
In
S v Mavundla
2012 (1) SACR 548
(GNP),
after the appellant
had locked the door to his house, he told the complainant to take off
all her clothes, which she did, because
of the knife the appellant
was holding. The appellant then ordered the complainant to get onto
the bed. He inserted his penis into
her vagina and had intercourse
with her until he ejaculated. After that the appellant told the
complainant to climb off the bed
and hold onto it. He then penetrated
her from behind and had intercourse with her, again, until he
ejaculated. (It is not clear
how long this took.) After that the
appellant told the complainant to get onto the bed again where the
appellant had intercourse
with her once more while she was lying on
her back. The appellant ejaculated for the third time. (Again it is
not clear how long
this took.) The appellant then fell asleep. The
complainant woke him and asked for the key, which he gave her. The
complainant
dressed and went home.
[22]
In Mavundla’s case the court accepted the evidence of the
complainant that there was no interruption in the intercourse,
the
appellant simply shifted the position of the complainant. While
ejaculation could determine the end of intercourse, in this
case that
clearly did not happen. There was no suggestion that the intercourse
had ended and that the appellant withdrew his penis
twice and formed
the intention to rape the complainant on two further occasions. The
court found that this was one prolonged act
of intercourse.
[23]
In
S v Tladi
2013 (2) SACR 287
(SCA)
the appellant was charged
with two counts of rape. He overpowered the complainant in his room.
She fell onto a sponge. He unzipped
his trousers, removed her panties
and had sexual intercourse with her twice, without her consent. He
was convicted on both counts
and sentenced to life imprisonment. On
appeal the court found that only one act of rape had been proved
beyond reasonable doubt,
on the reasoning at p 291 d to f:
“
There is no evidence from
the complainant as to how the appellant raped her for the second
time. The complainant’s evidence
does not suggest that there
was an interruption in the sexual intercourse to constitute two
separate acts of sexual intercourse
and, therefore, two separate acts
of rape. The complainant’s evidence suggests that the sexual
acts were closely linked and
amount to a single continuing course of
conduct. There is no suggestion in her evidence that there was any
appreciable length of
time between the acts of rape to constitute two
separate offences. This evidence against the appellant is therefore
limited and
is insufficient to establish his guilt on two separate
counts of rape. The trial court should have analysed the state’s
evidence
and should have concluded that only one act of rape had been
proved beyond a reasonable doubt.”
[24]
In
S v Maxabaniso
2015 (2) SA 553
(ECP)
the appellant took the
complainant to his home. Upon their arrival he ordered two young boys
who were present, to leave. When the
complainant realised that he had
plans with her, she escaped when she thought that it was opportune to
do so. He caught her, took
her back into the house, locked the door,
undressed her and himself and penetrated her. At some stage he
stopped, withdrew from
her, informed her that he was not finished
with her and left the room to go to the toilet. When he returned from
the toilet, he
threw the complainant onto a mattress on the floor and
penetrated her again. The court found that the magistrate’s
finding
that the appellant raped the complainant twice, was correct.
The court reasoned at 555g – h:
“
This was not one continuous
course of conduct or, as in one of the rapes in S v Blaauw supra, an
interruption in an act of rape
to change the position of the victim.
Rather, two distinct acts of penetration occurred, in different
places in the room, with
the first interrupted by the appellant
withdrawing from the complainant and leaving the room for a period.”
[25]
There are other authorities on the issue, but those largely cover the
principles laid down and illustrate the courts’
approaches to
multiple sexual acts. The cases dealing with different kinds of
penetration, such as in
S v Seedat
2015 (2) SACR 612
(GP)
and
S v Ncombo
2017 (2) SACR 683
(ECG),
are not dealt with, for
they do not apply to the facts of this matter.
[26]
In the present appeal, every sexual act was perpetrated quite
separate in time and took place at distinctly different places.
Appellant dragged the complainant from one place to another, raping
her at three different places. During each sexual act, appellant
ejaculated. These facts have already been described in para [6]. What
is clear is that the appellant formed a new intention before
each
incident to have intercourse with his victim, again.
[27]
On the facts proven in this case, and applying principles laid down
by our courts, I am of the view that the appellant has
been convicted
correctly on three counts of rape. The convictions on the three
charges of rape are confirmed.
The
Two Counts of Kidnapping
[28]
The evidence of the complainant was that the appellant deprived her
of her freedom of movement by pulling her to a toilet and,
thereafter, pulling her to his premises and forcing her into his home
and bedroom. Appellant kept the complainant captive for a
couple of
hours.
[29]
Snyman, Criminal Law, 6th edition, p471 defines kidnapping in the
terms: “
Kidnapping consists in unlawfully and intentionally
depriving a person of his or her freedom of movement
.” The
evidence of the complainant has proved all elements of the crime.
[30]
The appellant was convicted of two counts of kidnapping. The only
question left to be answered is whether the two counts amount
to a
duplication of convictions.
[31]
The “single intent” test is commonly used to determine
whether a duplication has occurred. The test determines
that where a
person commits two acts, each of which could be separately labelled
as criminal, but does so with a single intent,
and both acts are
necessary to carry out that intent, then that person may be convicted
of only one offence because the two acts
constitute one continuous
criminal transaction.
[32]
The single intent test is particularly applicable where the accused
has carried out a number of unlawful acts. Thus, where
an accused
commits a whole series of acts each one of which, standing alone,
could be a separate offence, but they constitute a
continuous
transaction which is carried out with a single intent, his conduct
would constitute a single offence.
[33]
The kidnapping was perpetrated in order for the appellant to have
unlawful intercourse with the complainant. The two unlawful
criminal
acts of kidnapping constitute a continuous transaction and therefore
amounts to a duplication of convictions. Adv Britz,
acting for the
state, conceded as much in her heads of argument. The concession was
correctly and properly made.
[34]
In consequence the second conviction of kidnapping and the sentence
pursuant thereto, are set aside.
On
Sentence
[35]
The appellant has a previous conviction for rape. On 11 January 1999
he was found guilty of rape and sentenced to 10 years
imprisonment.
He was released in 2006, having served 7 years and 3 months in
Leeukop prison.
[36]
The traditional approach on when and to what extent a court of appeal
can interfere on sentence imposed by the trial court
was described by
Malan JA in
S v Malgas 2001(1) SACR 469 (SCA)
at
478d
:
“
A court exercising appellate
jurisdiction cannot, in the absence of material misdirection by the
trial court, approach the question
of sentence as if it was 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 … 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’
… In the latter situation … [i]t
may do so only where the difference is so substantial that it
attracts epithets
of the kind I have mentioned.”
[37]
In
S v PB,
2013 (2) SACR 533
(SCA)
Bosielo JA formulated the
approach by a court on appeal against a sentence imposed in terms of
the minimum sentencing legislation
at para [20]:
“
What then is the correct
approach by a court on appeal against a sentence imposed in terms of
the Act? Can the appellate court interfere
with such a sentence
imposed by the trial court’s exercising its discretion
properly, simply because it is not the sentence
which it would have
imposed or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should,
in my view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is so
because the minimum
sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy reasons.
It follows therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial
and compelling, or
not.”
See
also the principles applied and approaches adopted by Nugent JA in
S
v Vilikazi
2009 (1) SACR 552
(SCA)
at 562G and by Lewis JA in
S
v Nkomo
2007 (2) SACR 198
(SCA)
at 201e-f.
[38]
The learned magistrate properly considered and weighed up the
personal circumstances of the appellant, the seriousness of the
crimes and the interests of society. There is in my opinion no ground
for interfering with the sentence handed down on the three
charges of
rape which the magistrate considered one for purpose of the sentence,
nor the sentence on the first count of kidnapping.
The magistrate’s
order that the sentence will run concurrently is, in my opinion,
correct. So, too, his decision and order
that the accused is unfit to
possess a firearm.
The
Order
[39]
I propose that the following order be made:
[i] The appeal against the convictions
and sentences on the three charges of rape is dismissed. The
convictions and sentences are
confirmed.
[ii] The appeal against the conviction
and sentence on the first count of kidnapping is dismissed. The
conviction and sentence are
confirmed.
[iii] The appeal against the
conviction on the second count of kidnapping is upheld. The
conviction and sentence are accordingly
set aside.
[iv] The order that all the sentences
will run concurrently, is confirmed.
[v] The order that the accused is
unfit to possess a firearm, is confirmed.
[vi] A copy of this judgment is to be
made available to the DPP and his attention is to be drawn to the
content of paragraphs [3]
and [4] of this judgment.
______________
A.P.
Joubert
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
I
agree. It is so ordered.
______________
Ingrid
Opperman
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
29 October 2019
Further
Hearing: 21 February 2020
Judgment
delivered:
Appearances:
For
Appellant: Adv. Y. Britz
Instructed
by: Legal Aid South Africa
For
Respondent: Adv. C.E. Britz
Instructed
by: Office of the Director of Public Prosecutions
Amicus
Curiae: Adv. N.J. Horn