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[2010] ZAWCHC 183
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Jumat v S (A602/2009) [2010] ZAWCHC 183 (30 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN
)
CASE
NUMBER:
A602/2009
DATE: 30
JULY 2009
In
the matter between:
WAZIER
JUMAT Appellant
and
THE
STATE
Respondent
JUDGMENT
HLOPHE.
JP
This
is an appeal against the judgment of Mr Justice Motala, now retired.
An appeal was noted against both conviction and sentence.
The
facts giving rise to this may be briefly stated.
The
appellant, who was an accused in the court
a
quo
was
charged with, and convicted of rape and the matter came to the High
Court before Justice Motala for purposes of sentence.
The
defence advanced by the appellant was one of consent, namely he did
not deny that there was sexual intercourse between himself
and the
complainant. He said the complainant consented to sexual intercourse.
Before us today, in the full Bench Appeal. Mr
Burgers
appeared for the appellant. The State was represented by Ms
Cecil
.
He argued, among other things, that the evidence was consistent with
the view that there was consent at all material times, namely
that
the complainant had given consent and. therefore, there was no rape
whatsoever in the circumstances.
The
difficulty with that submission is the following. If one looks at the
totality of the evidence, to the extent that Mr Burgers
may argue
that there were some contradictions, it is clear that there were no
material contradictions. To the extent that there
is argument
advanced that the medical evidence is not conclusive inasmuch as
there could well have been injuries sustained by the
complainant to
her private parts, if she was having consensual sexual intercourse
for the first time, this agreement is not convincing.
One
must look at the totality of the evidence. In my judgment, the
totality of the evidence and the circumstances of this case militates
against any finding or conclusion that sex was consensual. Indeed no
suggestion was made whatsoever why the complainant, who allegedly
had
consensual intercourse with the appellant, would immediately report
that to Mr Francis, immediately after the so-called consensual
intercourse. If anything, that is indicative of the fact that she did
not consent to sexual intercourse.
Ms
Cecil, who appeared for the State, also argued, and correctly in my
view, that if one looks at the totality of the evidence,
it militates
against any conclusion or finding that sexual intercourse was indeed
consensual. It is a well known principle of our
law that if there are
contradictions in the evidence of a complainant, if anything, that is
an indication that the evidence was
not rehearsed. And in my view,
these contradictions are not material. For example, Mr Burgers made
an issue of the fact that she
said she was taken by her father,
whereas the evidence was that she was taken by William and somebody
else. If anything, that is
an indication that her evidence was not
rehearsed at all and she was indeed telling the truth.
One
must not lose sight of the fact that the complainant was
15
years, seven months old at the time of the alleged incident.
Furthermore no doubt rape would have traumatised her. There is no
question in my mind that if one looks at the totality of the
evidence, it is militating against the submission that sex was indeed
consensual. Insofar as the conviction is concerned, I would
certainly uphold the conclusion and confirm the judgment of the court
a quo relating to conviction.
We
turn now to sentence. The appellant was sentenced to 12 years direct
imprisonment by the learned judge. The learned judge found
that there
were substantial and compelling circumstances warranting a deviation
from the prescribed minimum sentence of
15
years imprisonment To be quite frank, I was, and I remain, firmly of
the view that if anything, the sentence borders on leniency.
I would,
therefore, dismiss the appeal against both conviction and sentence as
being altogether without merit.
MOOSA.
J
:
I agree.
MOOSA.
J
LE
GRANGE, J
:
I agree
LE
GRANGE, J
HLOPHE.
JP
:
I agree and that is the order of court. The judgment of the court a
quo
is
confirmed insofar as it relates to both conviction and sentence and
the appeal is dismissed.
HLOPHE.
JP