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[2020] ZAGPJHC 165
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Valela v S (A23/2020) [2020] ZAGPJHC 165 (3 June 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEAL CASE NO:
A23/2020
In the
matter between:
AYANDA
VALELA
Appellant
and
THE
STATE
Respondent
CORAM:
MABESELE J AND DLAMINI AJ
J U D G M E N T
MABESELE,
J
:
[1] The appellant was
convicted in the Protea Regional Court on a charge of kidnapping and
two counts of rape; each read with the
provisions of
section 51(1)
of
the
Criminal Law Amendment Act, 105 of 1997
. He was sentenced
as follows:
Count
1 – 5 years imprisonment;
Count
2 – life imprisonment;
Count
3 _ life imprisonment.
He was
deemed unfit to possess a licenced firearm. He now appeals against
both convictions and sentences.
[2] The central issue in
this appeal is whether the state proved its case beyond reasonable
doubt that the complainant did not give
consent to sexual intercourse
with the appellant. The complainant was a single witness.
Section 208
of the
Criminal Procedure Act, 51 of 1977
allows for
conviction of the accused on the evidence of a single witness
provided the evidence is clear and satisfactory in all
material
respects.
[3] It is common cause
that the complainant and appellant knew each other. The
complainant had an affair with M and appellant
was aware of the
affair. The appellant was arrested inside the shack of the
complainant after he was pointed out to the police
by the complainant
who had gone to the police station to lay a charge of rape against
the appellant. It is further common
cause that the complainant
and appellant had sexual intercourse. The version of the
complainant is that sexual intercourse
took place during the night in
her shack, without her consent. In the contrary, the appellant
testified that sexual intercourse
did take place with the consent of
the complainant earlier that day inside the shack of the complainant
and that on the night of
the same day they both shared bed but no
sexual intercourse took place as alleged by the complainant.
What was also in dispute
was the version of the appellant that he had
a secret affair with the complainant.
[4] Complainant was 45
years old at the time of the incident. Her version is that on
26
th
July 2014 she and her boyfriend M went for shopping
to buy grocery in preparation for her birthday the next day.
After they
had purchased whatever items were needed they went back to
her home in Lolli, Extension1. It was around 14:00. Since
there was a football game on that day M left her to join his friends
who watched the match on TV. As she went through the
items that
they had purchased with M she realised that she still needed more
items. She decided to go to a local spaza shop to
buy them.
[5] While she was at the
shop she met her neighbour called P who asked her for a favour to go
with her home to charge her cell phone
because she did not have
electricity at her place. The appellant who was around the
vicinity also asked the complainant for
the same favour. He wanted to
bring his new shaving machine that he had just bought on promotion
and needed to test if it was working.
The complainant agreed.
The appellant then followed the complainant to her home. After
they had entered the house the
complainant pointed the electric plug
where the appellant could test his machine. She did not pay
attention to him as she
focused on her own things.
[6] At some point the
appellant received a call. After the phone call he informed the
complainant that those were his friends
and he needed to leave.
After the appellant had left, the complainant decided to go to P’s
place not far from her house.
She spent quite some time at P’s
place. When she went back home she became worried that it was
dark in the street.
She looked around and saw Ayanda who stays
the third house from hers. She approached Ayanda and asked if he
could walk her home.
Ayanda agreed. While they were
walking in the street almost near the complainant’s house they
suddenly saw a person
who he identified as the appellant emerge from
the rocks near the gate of her house. The appellant approached
them with a
shining object in his hand. Having found themselves
in that situation they ran to different directions. She ran
into
her yard up to the door of her room. As she took out the
keys to open the door she felt someone touching her from the back
on
the left shoulder. That person commanded her to quickly open
the door of her room. After she had opened the door
the man
entered the house with her. She begged that man who turned out
to be the appellant not to hurt her and told him to
take anything he
wanted. She told him that she was sick. The appellant in turn
told complainant not to waste time and started
undressing her of a
pair of jeans whilst having a knife in his right hand. After he
undressed her he pushed her onto the
bed, got on top of her, and
started having sexual intercourse with her. She explained the
rape incident as follows:
‘
I was
experiencing a short breathe at that stage.
And the only thing
that I could do was to clear my head so that I could get some
air…….After I felt that I was wet,
he slept on top of
me again. And obviously that was a penis that I felt because it
was getting erect as he was lying on top
of me again. He then
got off and faced up. I wanted to lift my head up and I became
dizzy. I felt like vomiting’
[7] When she was asked
whether the appellant withdrew his penis from her vagina after he had
intercourse with her for the first
five minutes she responded that
the appellant did not withdraw his penis. She was unable to estimate
the time the appellant took
on top of her because she felt dizzy and
wanted to vomit at that stage. Thereafter the appellant got off
and lay on the bed.
She too got off the bed and crawled towards
a bucket which was placed near the door. When she reached the
door she grabbed
a towel nearby, opened the door and sneaked out.
She ran to her boyfriend’s place. Upon arrival she
reported
to him that she was raped by someone she knew but did not
know the name. It was around 23:00. The boyfriend
suggested
that they should go to the police station. She had
wrapped herself with the towel on the bottom part, on their way to
the
police station. On arrival she made a report to the
police. After she had made a statement the police drove with
her
and her boyfriend to her shack. Upon arrival they found the
door open and there was darkness inside the shack. As a
result,
the police used torches and found the appellant on the bed. He
had covered himself with a duvet. When the appellant
saw the
police he threatened to stab them with the knife but he was
apprehended. From home the complainant was taken to the hospital.
The medical report confirmed that the complainant was sexually
penetrated. The complainant denied that she ever had a secret
relationship with the appellant.
[8] Mr M S confirmed that
the complainant came to him late at night and reported that she was
raped. She said the complainant
had covered herself with a
towel. After the report was made to him he suggested to the
complainant that they should go to
the police station. He
testified that he was present at the complainant’s shack when
the police arrested the appellant.
[9]
Mr Ayanda Mazulu new the complainant by the name of N. He
testified that on the day of the incident he was at the tavern
in the
evening when the complainant and appellant came in. There were
a lot of people drinking. When it became late
they were all
requested to leave the tavern. As he walked through the gate he
saw the complainant and appellant walk in different
directions.
He parted ways with them at the gate and went home. Mr Mazulu
testified that he was subsequently approached by
the complainant who
told him that she opened the case of rape against the appellant and
she needed his support. He said that
the complainant asked him
to inform the police that he was accompanying her home when they w
ere
suddenly confronted by the appellant with a knife. With regard
to the statement he made to the police, he confirmed the
correctness
of the contents of the statement that indeed he was in the company of
the complainant when the appellant confronted
them with a knife and
grabbed the complainant. He tried to intervene without
success and ran home. After he was
questioned by the prosecutor
and defence counsel regarding the material discrepancies
between his evidence-in-chief and the
statement he made to the police
the
court
a quo
declared him a hostile witness and admitted his statement in terms of
section 3(1)(c)
of Act 45 of 1988, on application by the prosecutor.
[10]
The police confirmed the version of the complainant insofar as it
relates to the arrest of the appellant at her shack and particularly
that the appellant threatened them with a knife when they arrest
him. However, the police officer Masupha testified that
the
complainant was wearing a jean at the police station as opposed to
the version of the complainant and M that the complainant
had covered
the lower part of her body with a towel. On this issue the
court a quo
correctly found that the police officer was mistaken if regard is had
to the evidence of the complainant, M and the medical doctor
that the
complainant could not have worn jeans.
[11]
The appellant knew the complainant and her boyfriend M. He said
that before the 26
th
July 2014 had been involved in a secret relationship with the
complainant for six months. His version is that on the 26
th
July 2014 he met the complainant around 11:00 in the street. She was
on her way to a local shop. The complainant invited him over
to her
place of residence. Later he went to the complainant’s
place of residence. Upon arrival he gave the complainant
money to buy
beer. The complainant came back in the company of P. They
sat and drank beer. After P had left them
in the dining room
they proceeded to the bedroom where they had sexual intercourse.
It was 13:00 then. After sex they watched
a football match.
After the match was played he left the house. However, they
both agreed to meet at the tavern owned
by P. At the stipulated
time they met at the tavern and consumed more alcohol. They
left the tavern at 20:00 and went
to the complainant’s place of
residence. On arrival they went to bed. They did not have
sex because they had
taken alcohol and were drunk.
[12]
He could not remember whether he had taken off his clothes when he
went to bed or was still wearing his jacket. He said
while he
was asleep he was surprised to see torches lit on his face. The
incident frightened him to an extent that he took
out his knife from
his jacket. After he had realized that the police were in the
house he did not do anything to them.
He was then arrested.
[13]
The law is clear that where sexual intercourse is common cause what
is required is a credible evidence which renders that state’s
version more likely that sexual intercourse took place without
complainant’s consent, and the appellant’s version less
likely that it did not (S v Gentle 2005(1) SACR 420(SCA) at 431.
There is no obligation on the state to close every avenue of escape
open to the accused. It is sufficient for the state to produce
evidence by means of which it demonstrates such a high degree
of
probability that the accused committed the crime with which he has
been charged.
[14]
The complainant had an affair with M. Her undisputed version is
that on the day of the incident, before midday, she and
M went for
shopping to buy grocery in preparation for her birth day the next
day. M had given her money to buy grocery and
she was probably
happy. That being the case it is highly improbable that soon
after M had left her home she would invite
the appellant and had sex
with him. This means that the version of the appellant that he
had sex with the complainant that
afternoon of 26
th
July 2014 is manufactured. It follows that there was no secret
relationship between the complainant and appellant.
[15]
The undisputed version of the complainant that after the appellant
got off her and lay on the bed she crawled to the door and
escaped
from the house clearly shows that she was being raped. The
complainant would not risk her life and go to M at midnight
if
nothing happened to her in her house. The fact that the
appellant threatened the police with a knife when they wanted
to
arrest him strengthens the version of the complainant that the
appellant threatened her with a knife and demanded to have sex
with
her, without her consent, thus demonstrate that the appellant is a
violent person. With regard to Mazulu the magistrate
correctly
labeled him a liar whose objective was to protect the appellant.
For these reasons the appellant was correctly
convicted for rape.
[16]
The evidence that led to the conviction of the appellant on a count
of kidnapping requires scrutiny. Kidnapping consists
in
unlawfully and intentionally depriving a person of his or her freedom
of movement and\or, if such person is under the age of
18 years, the
custodians of their control over the child (Snyman 6
th
edition. P.471). The indictment in respect of count 1 reads:
‘
In
that upon or about the 26
th
day of July 2014 and at or near Soweto-Lawley in the Regional
Division of Gauteng the accused did unlawfully and intentionally
deprive A R of her freedom of movement by grabbing her and or by
forcing her to accompany him to the shack and or room’
[17]
Contrary to this charge the evidence of the complainant is that she
had already reached home from the shop and was unlocking
the door
when the appellant suddenly grabbed her and they both entered the
house. From her evidence it cannot be said that she
was deprived of
her movement. Therefore, a conviction on count1 cannot stand.
[18]
It is trite law that the imposition of sentence is at the discretion
of the trial court. The court of appeal may only
interfere if
the sentence has not been judicially and properly exercised.
[19]
Since counts 2 and 3 fall within the ambit of
section 51(1)
of the
Criminal Law Amendment Act, 105 of 1997
and invite a sentence of life
imprisonment, substantial and compelling circumstances must exist to
justify lessor sentence.
The Act does not say which
circumstances are substantial and compelling. Although it is
trite that substantial and compelling
factors include traditional
factors ordinarily taken into account when considering an appropriate
sentence, the minimum sentence
may not be departed from for flimsy
reasons.
[20]
The appellant is single. He has four children with different
women. The children are residing with their respective
mothers. The appellant was 47 years old when he was convicted
and sentenced. He is a first offender. At the time
of his
arrest he was employed and earning an amount of R900-00 per week.
These factors, taken cumulatively, do not justify a departure
from
the prescribed minimum sentence. The appellant was raped in a
brutal manner. This does not suggest that some rape
are not
brutal. Rape is brutal no matter how it is committed. The
notion that some rape are not worse than others is
regrettable.
Rape destroys pride and self-worth of a woman as it is evident in the
evidence of the complainant. Since
she was raped the
complainant now consider herself useless and is shy to be in the
company of people. These are aggravating
factors which the
court a quo
correctly
took into account.
[21]
It is clear from the evidence of the complainant that she was raped
once and not twice, as charged. The complainant testified
that at no
stage the appellant withdrew his penis from her vagina until the
appellant got off her. Therefore counts 2 and
3 must be taken
together for purpose of sentence. Therefore both convictions
and sentences on these counts cannot be tempered
with.
[22] For these reasons
the following order is made:
1.
The appeal is upheld,
partially.
1.1 The appeal against
conviction and sentence in respect of count 1 succeeds. The
conviction and sentence on this count is
set aside.
1.2 The appeal against
convictions on count 2 and 3 (taken together) and against sentence of
life imprisonment is dismissed. The
convictions and sentence are
confirmed.
1.3 The order of the
court a quo
declaring the appellant unfit to possess a firearm
is confirmed.
________________________________________
M. M MABESELE
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I
agree
________________________________________
DLAMINI
JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date of
hearing
: 3 June
2020
Date of
judgment
:
3 June 2020
For the
appellant
:
Adv.
Mosoaneng
Instructed
by
: Legal
Aids S.A
For the
respondent
:
Adv.
Thwala
Instructed
by
: DPP