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[2010] ZAWCHC 665
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Ngwane v S (A631/09) [2010] ZAWCHC 665 (11 August 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: A631/09
In
the matter between:
NKOSIVUMILE
NGWANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED THIS 11th DAY OF AUGUST 2010
RILEY,AJ:
[1]
The appellant was convicted of five counts of rape and one count of
assault in the Regional Court at Parow and sentenced as
follows:
(1) On count 1 (rape) the
appellant was sentenced to 10 years imprisonment.
(2) The remaining four counts
(2-5) of rape were taken together for the purpose of sentencing and
the appellant was subsequently
sentenced to life imprisonment.
(3) On count 6 (assault), the
appellant was sentenced to 6 months imprisonment.
(4) Since the appellant was
sentenced to life imprisonment by a Regional Court he was granted an
automatic right to appeal
to this court. The appellant now appeals
against both his conviction and sentence.
[2]
When the matter came before us on appeal it was noted that the trial
magistrate had reconstructed a portion of the record of
the
proceedings which had not been-mechanically transcribed on 8 May
2008. It appears that after the record was presented to the
trial
magistrate prior to it being submitted to this court for the appeal
that she had on her own prepared a reconstruction of
this evidence
and filed a certificate dated 19 November 2009 which provides as
follows:
Rekonstruksie van ontbrekende
getulenis gelewer op 8 Mei 2008.
"Ek, Elsa van Zyl sertifiseer
hiermee dat die rekonstruksie van die ontbrekende getuienis geLewer
op 8 Mei 2008 van my notas
gemaak was en dat dit 'n kon-ekte weergawe
is van die getuienis wat ek aangehoor het.
"
[3]
In
S v Zenzile
2009 (2) SACR 407.
(WC) a portion of the trial
record, pertaining to the whole of the State's case was missing and
could not be found despite a diligent
search. The presiding
magistrate had attempted to reconstruct the missing portion working
from his trial notes but there was no
indication that the accused had
been informed of the reconstruction or of his rights in connection
therewith. When he had been
asked to sign an affidavit verifying the
accuracy of the reconstruction, he had refused to do so.
[4]
Yekiso J held at paras 16-18 at 413j-414a, 414g-h and 415a-b that the
concept of a fair trial within the meaning of section
35(3) of the
Constitution of the Republic of South Africa, 1996, was broader than
simply the conduct of the trial in terms of constitutionally
mandated
rules and procedures, it included substantive fairness. The right to
a fair trial, so he held, extended up to and included
sentencing
proceedings. Thus a determination of whether proceedings had been
held in accordance with justice could be made only
on the basis of a
proper or properly reconstructed record of these proceedings.
[5]
Yekiso J held further that fairness to the accused meant that he
should have been informed of the need for a reconstruction
and of his
right to participate in that process, as well as of his right to
legal representation and if necessary an interpreter
and that the
fact that the reconstruction had taken place entirely in the
magistrate's chambers negated the right of the accused
to a public
trial before an ordinary court as well as his right to be present
when being tried. In the result, he held that the
accused's right to
a fair trial had been significantly compromised and set aside the
convictions with the proviso that his order
was not tantamount to the
acquittal of the accused of the charges preferred against him but
that the State could elect to re
institute a prosecution against
him on the basis of the same charges.
[6]
In
S v Gora
2010 (1) SACR 159
Kruger AJ held at par 14 p.162
that the "fair trial requirements will have been met if the
parties successfully collaborated
towards properly reconstructing a
sufficiently accurate record of the proceedings in order to allow the
court of appeal to properly
adjudicate upon the issues raised on
appeal". He held further that the record of the proceedings up
unto the stage of conviction
was properly constructed with due regard
to the right of all the parties but that since the appeal on sentence
could not be properly
adjudicated without the original record or at
least a properly reconstructed record that the appellants would not
receive a fair
trial and referred the matter back to the trial court
to sentence the appellants afresh. See p. 164 par 20 and p. 170 paras
51-52.
[7]
With reference to the judgment of this court in
S v Zenzile
supra
the trial magistrate was requested to provide detailed
comment on the following issues:
(1) Precisely where the record
was reconstructed?
(2) Whether the accused was
present in the process of reconstruction?
(3) Whether the process of
reconstruction was consistent with the accused's right to a fair
trial, in particular, a right
to a public hearing before an ordinary
court, a right to be present when being tried, and a right to legal
representation, respectively,
as set out in ss35(c), (e) and (g) of
the Constitution of the Republic of South Africa 1996.
[8]
The trial magistrate responded to this as follows:
"The appellant did appear in
this court today (21 April 2010). His attorney Mr. February,
was present as well as Mrs.
Rubin, the prosecutor, who
handled
the original trial. The proceedings in open court were recorded. The
appellant
was
informed of the situation and my reconstruction
of the missing portion of the record was read out to him with the
assistance of
an interpreter. He
was
satisfied that it is
a
correct version of the missing evidence. Mr. February and Mrs.
Rubin had nothing to add. I asked the clerk of the court to have this
recording transcribed and forwarded to you as soon
as
possible."
[9]
The proceedings of 21 April 2010 which was held in open court
confirms the above.
[10]
It is trite law that on appeal, the record of the trial court is of
cardinal importance. The record is indeed the whole basis
of the
hearing by the court of appeal. If the record is inadequate for a
proper consideration of the appeal, it will as a rule,
lead to the
conviction and sentence being set aside (See:
S v Chabedi
2005
(1) SACR 415
at 417 f).
[11]
In this case we are not dealing with an inadequate record. I am
satisfied that the record although reconstructed is adequate
for the
consideration of this appeal. The crucial question is whether the
process of reconstruction fallowed by the trial magistrate
is
consistent with the accused's right to a fair trial, in particular, a
right to a public hearing before an ordinary court; a
right to be
present when being tried; and a right to legal representation wh. n
being tried; and a right to legal representation
respectively, as set
out in SS 35(c), (e) and (g) of the Constitution of the Republic of
South Africa, 1996. Further concerns which
arise are whether or not
the trial magistrate did not become
functus officio
at the
time when the purported reconstruction of the record was done and
filed as part of the record on appeal? And whether it is
competent
for the trial magistrate to further purport to reconstruct the record
without having had the matter remitted back to
the court a
quo
by
order of this court.
[12]
The following is common cause:
(1) That when the record was
presented to the trial magistrate by the clerk of the court prior to
it being submitted to this
court for consideration of the appeal, she
realised that the portion of the record relating to the appellant's
testimony and his
cross-examination was missing and that it had not
been mechanically recorded;
(2) That she then proceeded to
do a reconstruction of the missing portion of the record with
reference to her contemporaneous
notes which she had kept during the
trial.;
(3) That based on this, she
issued a certificate dated 19 November 2009, that her reconstruction
of the missing portion of
the evidence adduced on 8 May 2008 is a
correct version of the evidence heard by the court
a
quo.
(4) That after she received the
request for comment on the concerns set out in paragraph 7 above, she
proceeded
to
re-convene the proceedings in open court where
the appellant in the presence of his attorney of record and the
prosecutor who were
involved in the original trial, confirmed that
the trial magistrate's reconstruction of the missing portion of the
evidence is
correct.
[13]
At ·the hearing of the appeal, counsel for the appellant and
the state were agreed that at the time that the trial magistrate
purported to do the reconstruction of the record that she was
functus
officio
and not competent to do the reconstruction. They were
further agreed that the trial magistrate had in any event not acted
in accordance
with the principles laid down in S v
Z
en
z
ile
(supra)
and other decisions of this court dealing with the
reconstruction of the record.
[14]
The approach adopted by Yekiso J in
S v Zenzile
(supra)
and
Kruger AJ in
S v Gora
(supra)
is sound. It is
imperative that criminal trials are conducted in accordance with
notions of fairness and justice (See
S v Zuma
[1995] ZACC 1
;
1995 (1) SACR
568
(CC)). On a strict application of the principles as laid down in
S v Zenzile
(supra)
and
S v Gora
(supra)
this
court would be obliged to find that the appellant's rights to a fair
trial had been compromised and that the convictions and
sentences
imposed had to be set aside and that the matter should be remitted
back to the regional court for a retrial.
[15]
Our appeal courts have however long since recognised that the primary
aim of criminal procedure and the role of the courts
in matters of a
criminal nature is to ensure that substantial justice is done (See
R
v Hepworth
1928 AD 265
at 277).
[16]
It is true that the trial magistrate did not follow the correct
procedure in regard to the reconstruction of the record. What
is
however clear, is that having done the reconstruction in the way that
she did, the contents of the missing portion of the record
as
reconstructed by her was confirmed as correct, by the appellant
himself, assisted by his attorney of record, the state prosecutor
and
an interpreter in proceedings held in open court. In this matter, all
the parties including the appellant are
ad idem
about the
accuracy or correctness of the reconstructed missing portion of the
record.
[17]
It is trite law that our constitution and our courts recognises the
right of an accused person to a speedy trial. The accused
has a
legitimate expectation that the criminal proceedings which includes
the appeal process is finalised within a reasonable time.
He is also
entitled to finality of the proceedings against him and as is so
often said, justice delayed is justice denied. Victims
of crime
should also not be subjected to unnecessary delays in the disposition
of cases and they should not be subjected to the
indignity and trauma
of having to testify and to be cross-examined at a new trial on the
same issues.
[18]
In my view the fundamental right to a fair trial does not exclusively
focus on the rights and privileges of the accused person.
I agree
with Leach J where he held in
Attorney General: Eastern Cape v
Dhlabati
(1997]
2 All SA 111(E)
at p 115 that the rights and
privileges of the accused must be interpreted and given effect to in
the context of the rights and
interest of the law abiding persons who
make up the bulk of society and, in particular the victims of crime.
[19]
Even though the trial magistrate did not follow the correct procedure
in regard to the reconstruction of the record, I am of
the view that
the selfsame notion of fairness and justice requires that I condone
her error. In my view, substantial justice has
been done in this
matter. I accordingly find that there has been no infringement on the
accused's constitutional rights or his
rights to a fair trial due to
the trial magistrate's failure to follow the correct procedure in the
reconstruction of the record.
Despite the condonation of the trial
magistrate's conduct in the purported rectification, the fact that I
have sanctioned this
approach is no authority to magistrates
confronted with this kind of dilemma in the future. It is imperative
that presiding officers
follow the clear principles and guidelines as
set out in the authorities referred to above.
[20]
What is however of concern is the number of cases that are referred
to the High Courts on review and/or appeal from which it
is clear
that no uniform approach is followed in regard to the procedure
applicable to the reconstruction of the record. There
is no specific
provision in the
Criminal Procedure Act 51 of 1977
which prescribes
the procedure to be followed in regard to reconstruction of the
record.
Rule 66
(read with Rule 67) of the Magistrate's Court Rules
of Court Act 32 of 1944 (as amended) provides that the preparation of
the record
in criminal proceedings and the preparation of the record
submitted to the court of appeal, which would include reconstruction
of the record in the event that reconstruction is required, is the
primary function of the clerk of the criminal court. In
S v Leslie
2000(1) SACR 347 (WLD) it was held that it is necessary for the
Department of Justice (as it then was) to assist appeals clerks
with
proper guidance about the reconstruction of the record and that it
was unacceptable to permit them to flounder in the handling
of a task
for which both knowledge of the law is required and the capacity to
think innovatively but practically. In
S v Zenzile
(supra),
Yekiso J laid down further guidelines to be followed in the
reconstruction of the record to ensure that the accused's rights to a
fair trial is not infringed due to the fact that problems occur in
regard to the reconstruction of the record. The effective and
fair
administration of justice, the rights of the accused to a fair trial
in terms of the Constitution and the protection of the
rights and
interests of the law abiding persons of society require that the
Department of Justice and Constitutional Development
cause
legislation to be passed by parliament based on the principles set
out in
S v Zenzile
(supra)
and other cases dealing with
the issue of reconstruction of court records laying down the
procedure to be followed in the reconstruction
of records in criminal
proceedings.
The
merits of the appeal
[21]
I now turn to deal with the merits of the appeal against the
conviction and sentence.
[221
The state called six witnesses, namely M. M., the complainant in
count 1; her sister S. M. to whom she reported the rape; Mieta
Solomons, a social worker who testified in support of the state's
application in terms of
Section 158
of the
Criminal Procedure Act
51/1977 for
the complainant on counts 2 to 6 not to testify in open
court; N. F., the complainant in counts 2 to 6; N. F. (the sister of
N.)
to whom N. first reported the rape by the appellant on her and
Dr. Donovan Mark Andrews, district Surgeon at Karl Bremer Hospital
who examined the complainant N. F. on 2 June 2007. By agreement
between the state and defence, the medical report (JBS) completed
by
Dr. Dahms was handed into court.
[23]
The appellant testified in his own defence.
[24]
M. M., a 23 year old female testified that she resided at Kosuvu in
Langa with her familly. She knew the appellant as Boy-Boy
and her
family obtains electricity from the appellant’s family house.
Although she greeted the appellant when she saw him,
she had never
actually spoken to him. On the night of 30 November 2006 she slept
over at the shack of her boyfriend A.. On 1 December
2006 and whilst
she was still asleep, she was awoken by a knock at the door between
08h00 and 09h00 in the morning. As she thought
it was the neighbour
she opened the door. She was surprised to see that it was the
appellant. As she was only dressed in a t-shirt
she first closed the
door and put on her long pants. She then opened the door again and
the appellant entered.
[25]
The appellant greeted her and said that he had a Motorolla cellphone
for sale. She told -him that she did not have money. He
was, however,
adamant that she should take the cellphone. She then showed her
boyfriend's telephone to him and said that she already
had one. He
then offered her money which she refused.
[26]
He then closed the door and ordered her to undress. When she refused
he took a knife from the cupboard, threatened her with
the knife, to
undress. After she had taken off her pants he pushed her down onto
the bed and then had sexual intercourse with her
without her consent.
He left thereafter.
[27]
After the appellant had left, she went home crying and then told her
sister S. that she had been raped by the appellant. They
went to the
appellant's house where they told his sister about the rape. She and
her sister thereafter went to the police to lay
a charge and she was
later examined by a doctor.
[28]
S. M. confirmed that M. had arrived at home crying on the morning of
the 1st December 2006 and that she had told her that she
had been
raped by the appellant. She corroborated the complainant's version in
material respects.
[29]
The medical examination report of Dr. Dahms, which was handed in by
agreement between the state prosecutor and defence indicates
that M.
had no injuries. She was sexually active prior to the date of the
incident and she had reported to Dr. Dahms that she last
had sexual
intercourse the day before the rape. Remnants of the hymen were found
to be present during the examination.
[30]
N. F., a 17 year old female testified in a separate room in
accordance with the provisions of
Section 158
of the
Criminal
Procedure Act whilst
all the other parties could see and hear her by
way of a closed circuit television.
[31]
She testified that she knew the appellant as Boy-Boy as she visited a
girl friend who stayed in the back yard of appellant's
parent's home.
Apart from greeting the appellant when she saw him upon visiting her
friend, she did not have dealings with him.
[32]
She was at home when the appellant and his friend arrived there, and
the appellant asked her sister P. where she was. The appellant
asked
her if she could come with him to help him, to which she agreed to.
She then walked with them until they reached a bridge
which goes over
the railway line at Langa. The appellant's friend remained at the
foot of the bridge and she and the appellant
went to the top of the
bridge where the appellant asked her to hold his cap and/or jacket.
She refused to do this and he then said
the police was there. When
she looked down she did not see the police nor the appellant's
friend.
[33]
He then told her that they should run because he was being sought by
the police. He then held her hand and they then ran down
the bridge.
When they reached an area close by the railway line he told her to
sit. He said that he would stab or shoot her and
that they had to go
to another place. She refused to go with him. She resisted him and
they started struggling with each other.
In the process of this
struggle he choked her and she in turn choked him. During the
struggle, the button on her shirt, her belt
and her trouser's button
got loose. In the process of the struggle she fell onto her back and
he then got on top of her. She does
not know when he loosened his
pants, but she grabbed hold of his penis and pulled
it.
He
screamed and said that his friend must kill her but she saw no one
else. When she did not let go of his penis, he bit her on
her cheek.
She continued to fight back and he then pushed his finger in her eye
and choked her into submission. During the course
of this her nose
had started to bleed. The appellant then pulled down her pants and
proceeded to rape her. She testified that she
screamed and that the
appellant in turn screamed at her.
[34]
Thereafter the appellant told her that they should go to a place
where there was a sponge. When they got up and he let go of
her she
tried to run away but stumbled as her pants was still at her knees
and she then fell down. The appellant then got onto
her again and
raped her for a second time.
[35]
The appellant thereafter told her that she should choose whether he
should tie her up and leave her there or that she had
to
give
him what he wanted. When she told him that she chose to be tied up
and left there he told her that she was talking nonsense.
She
screamed again and again and tried to run away but she fell again.
The appellant told her that she was making him struggle;
they
wrestled with each other again and he then raped her for the third
time.
[36]
The appellant then told her that they should go to a place where
there was a cement slab. He then told her to lay down on the
cement
slab and when she refused he tripped her and then raped her for the
fourth time. She managed to escape and ran home. When
she arrived at
home she awoke her sister P. and reported to her that the appellant
had raped her. She sneezed up blood and vomited.
Her sister P. then
called the neighbours who accompanied them to the appellant's house
where the people reported what had happened
to the appellant's mother
and sister. The next morning they went to the police and she was
taken to a doctor for examination. At
the time of the incident she
was still a virgin. N. F. corroborated her sister's evidence in
material respects.
[37]
Dr. Andrews examined N. on 2 June 2007 and completed the J.88 which
was handed in as an exhibit. On examination he found fresh
bruises
and abrasions to her left cheek, right elbow, vestibule and cervix.
Her left cheek was swollen and her vagina had bleeding
lacerations.
In his opinion, the injury to her cheek could have been caused by a
bite. At the time of the examination she was very
emotional, nervous
and traumatised. During his gynaecological examination he found that
there was redness of the clitoris, the
frenulum of the clitoris, the
urethral orifice, para urethral folds, the labia majora, labia
minora and the posterior fourchette.
There were fresh tears in the
posterior fourchette, fresh tears and abrasions in the fossa
navicularis. Her hymen had multiple
fresh tears and was torn. The
cervix was freshly bruised and abraded. In his expert opinion the
injuries were consistent with her
version that she had been raped
several times. In his view it was highly unlikely that the injuries
had been caused during consensual
intercourse. His findings were
consistent with the fact that the complainant was a virgin prior to
the incident. He excluded prior
penetrative sexual intercourse prior
to the incident as unlikely as he found no "old" tears in
the hymen.
[38]
The appellant's version was that he had intimate love relationships
with both the complainants at the same time which had endured
up and
to the particular incidents. His version was that he had previously
had sexual intercourse with both the complainants. In
short he stated
that on 1 December 2006 he was walking to Bonteheuwel when he saw M.
outside a shack with her pajamas on, where
she was throwing out water
and that she called him. He went into the shack with her and they
spoke. She asked him for money as
she wanted to go home and also
asked for his cellphone. She went to lay down on the bed and invited
him to come and sit next to
her. They then both took off their
clothes and had consensual intercourse. When he left, she
reminded him of the money she
needed and he said that he would give
it to her later. According to him, M. had laid the charge because she
thought that the people
who were sitting outside saw him and knew the
man that she was living with.
[39]
In regard to counts 2-5 he confirmed that he had gone to N.:s.house
and enquired from P. where she was. He entered the house
and spoke to
N. who agreed to accompany him to his house. When they got to his
house there were people chatting to his sister and
they then went to
his friend L.'s house. He then told N. that there were people at his
sister's house and that he decided to go
to L.'s place. He testified
that at L.'s house they first sat and chatted. The complainant had an
argument with him after she accused
him of having a relationship with
another girl. They however resolved the issue and that he thereafter
had consensual sexual intercourse
with her on four occasions.
[40]
Thereafter whilst walking her home she became angry at him again
about the other girl and kicked him on his private parts.
He then
grabbed hold of her and bit her on her cheek. Thereafter they chatted
again and he then walked her to her house and then
went home.
According to him she laid the charge against him when she heard of
his relationship with the other girl.
[41]
In respect of count 1, it is common cause that the appellant had
sexual intercourse with M. M. on 1 December 2006. The only
issue in
dispute is whether or not the sexual intercourse was with her
consent. In respect of counts 2-5 it is common cause on
appellant's
own version that he had sexual intercourse with N. F. on 1 June 2007.
What is in dispute is where the sexual intercourse
took place and
whether it was with or without her consent. On count 6 it is alleged
that the appellant choked, bit and pushed his
finger in her eye. It
is not in dispute that the appellant bit N. on her cheek. What is
however in dispute is whether the assault
by him on the complainant
took place before or after they had sexual intercourse and under what
circumstances the biting occurred.
[42]
It was contended on behalf of the appellant that the trial court had
erred in not approaching the evidence of the witnesses
with caution
in particular since they were single witnesses and because the
charges were of a sexual nature.
[43]
There is no basis for this contention. In my view the learned
Regional Magistrate was very much alive to the fact that she
was
dealing with the evidence of single witnesses in respect of the
allegations against the appellant. This is illustrated by the
following remarks at page 117 of her judgment where she stated -
"'n
Gebrek aan toestemming kan bewys word deur die direkte ge/oofwaardige
getuienis van 'n klaagster.
As
die klaagster 'n enkel getuie
is ten opsigte van die geskilpunt moet haar getuienis met
versigtigheid oorweeg word. Daar moet nie
al/een bevind kan word dat
sy
ge/oofwaardig is nie maar ook dat haar getuienis betroubaar
is. Selfs al word bevind dat haar getuienis geloofwaardig is, moet
daar
steeds bepaal word of daar waarborge vir die betroubaarheid van
haar getuienis gevind kan word in die ander gelewerde getuienis.
Onafhanklike of ander getuienis oor haar optrede voor of na die
beweerde verkragting, en veral haar toestand direk na die gebeure
en
of sy onmiddellik rapport daaroor gemaak het, kan belangrike
waarborge vir haar betroubaarheid
wees.
Mediese getuienis ten
opsigte van beserings kan ook
aanduidend wees van die
betroubaarheid van haar getuienis. 'n Ander belangrike faktor wat die
betroubaarheid van haar getuienis
kan ondersteun of teenspreek is die
kwaliteit en die geloofwaardigheid al dan nie, van die getuienis."
[44]
I am satisfied that the trial magistrate critically and thoroughly
evaluated the evidence of Malezwa and N. and I agree with
her finding
that both complainants presented their evidence in a credible, clear
and satisfactory manner.
[45]
It was contended on behalf of the appellant that the trial magistrate
had erred when she rejected the appellant's version as
so unreliable
and improbable that she had no alternative but to reject his version
as false and untruthful. I do not agree that
the trial magistrate had
erred when she made these findings. The appellant was indeed a
pathetic witness who was untruthful and
adapted his version as and
when it suited him.
[46]
In my view, the trial magistrate is correct in rejecting the
appellant's version as false, untruthful and not reasonably possibly
true. His evidence in chief differed in material respects from his
plea explanation and further differed from the version which
was put
to the state witnesses. He contradicted himself in his evidence in
chief and it is clear to me that he adapted his version
as the trial
progressed. This was particularly clear during cross-examination, on
his own version. His explanation as to why the
complainants had
falsely accused him does not make sense. In his evidence in chief he
testified that he had been involved in a
relationship with M. for
more than a year. This aspect was never put to M. during cross
examination. At most it was put to her
that they had sexual
intercourse previously. Even though it was put to her initially in
cross-examination that she told the appellant
on the day of the
incident that it was her boyfriend's house, the appellant never
mentioned this in his evidence in chief and expressly
denied this
fact while he was under cross-examination. In his evidence in chief
he testified that he had found out before the incident
that M. was
living with another man but later stated that he only heard about it
after his arrest.
[47]
Even though he initially testified that he knew that she did not live
at the place where the incident occurred, he stated under
cross-examination that she just told him that he lived there. During
cross-examination it was put to M. that she saw that her boyfriend's
neighbour was sitting outside his shack and that she was possibly
scared that the neighbour would tell her boyfriend that the appellant
had been there. The evidence of the appellant differed materially in
this regard. He initially testified that there were other
people in
the shack who went out when she and appellant went into the shack.
Later he adapted his version by saying that the people
sat in another
shack with an open door and that they could see M. go in with him.
According to his version these people must have
seen that M. called
him into the shack. If M. was so concerned that her boyfriend would
find out that appellant was there, she
would surely not invite him
into her boyfriend's home in full view of other people. This version
by the appellant makes no sense
at all and is highly improbable
especially for the reasons he advanced as to why M. would have a
motive to falsely implicate him.
It is further highly unlikely and
most improbable that if they were in fact involved in an intimate
relationship with each other
and if they did have consensual
intercourse, that she would immediately go home distraught and crying
reporting that he had raped
her, informing his family and then go to
the police.
[48]
In respect of counts 2-5 he stated in this plea explanation and later
in cross examination to N. that on the day of the
alleged rape
he had consensual intercourse with N. on one occasion. In his
evidence in chief he surprisingly stated that he had
had sexual
intercourse with N. on four occasions. This was a material deviation
from his defence in respect of counts 2-5. The
appellant could give
no explanation as to why there was this material difference between
his plea explanation in comparison to
his testimony.
[49]
The trial magistrate is accordingly correct in her finding that
appellant had fabricated this version in an attempt to bring
it in
line with N.'s version.
[50]
The version of the appellant that he and N. had first kissed and
petted and that there was sufficient foreplay between them
so that,
she was so to say ready and receptive for consensual sexual
intercourse, is in direct conflict with the independent medical
evidence from which it appears conclusively that N. was a virgin at
the time that the incidents occurred. I agree that it is highly
unlikely and improbable that N. had had intercourse previously. The
nature of the injuries suffered by her, seen in its totality,
excluded consensual sexual intercourse.
[51]
His version in regard to how and when the bite was inflicted by him
on N. underwent several changes during the trial. It was
initially
put to N. that she had first accused him of sleeping with other women
after they had already had sexual intercourse and
that she had kicked
him on his private parts whilst they were at L.'s shack. When he
wanted to stop her from kicking him again
she pulled his penis with
her hand. He testified that he then bit her so that she could let go
of his penis. In his evidence in
chief he however stated that she had
accused him of having another girl even before they had sexual
intercourse. He stated that
she had however cooled off, and only
after they had sexual intercourse four times and whilst he was
accompanying her home she became
angry again and then kicked him. He
testified that he then grabbed hold of her and bit her before she
could grab him or bite him.
[52]
On the totality of the evidence presented in respect of the counts of
rape I am accordingly satisfied that the appellant's
guilt has been
proved beyond a reasonable doubt and the appeals in respect of the
conviction for rape is accordingly dismissed.
[53]
I am however not satisfied that the appellant was correctly convicted
on the separate count of assault. In my view the appellant
had lured
N. away from her house under false pretences. I am satisfied that he
lured her to the place at the railway line at Langa
with the
intention to have sexual intercourse with her. When they arrived at
the place he threatened to stab or shoot her. When
she refused to
accompany him further he started wrestling with her and choked her in
the course of the struggle. When she fell
on her back he then climbed
on top of her. On her version his pants was already loose and she
grabbed at his penis and pulled it
in an attempt to prevent the rape.
When she refused to leave his penis he bit her on the cheek. When she
continued to resist by
fighting him off he pushed his finger in her
eye and choked her into submission until she could no longer fight.
He then pulled
down her pants and raped her.
[54]
In my view the threats and violence formed part of the first rape and
cannot be regarded as a separate assault on N.. The conviction
on
assault therefore amounts to a duplication. In the result I find that
the Regional Magistrate had erred and misdirected herself
when she
convicted the appellant of the assault on count 6.
[55]
The
Criminal Law Amendment Act 105 of 1997
prescribes a sentence of
10 (ten) years imprisonment in respect of count 1 and a minimum
sentence imprisonment of life in respect
of the rapes in respect of
counts 2 - 5 unless there are substantial and compelling
circumstances that justify a lesser sentence.
After considering the
personal circumstances of the appellant, the interests of the
community and the seriousness of the offences
the Regional Magistrate
found no substantial and compelling circumstances that justify a
lesser sentence and sentenced the appellant
to 10 (ten) years
imprisonment in respect of count 1 and to life imprisonment in
respect of counts 2 - 5 which were taken together
for the purpose of
sentence.
[56]
The rapes in question were callous and brutal, particularly in
relation to the second complainant N. . In both instances the
appellant abused the trust that the complainants had in him with
callous disregard to the rights of the complainants and the sanctity
of their bodies. The severity of the offences are aggravated by the
use of a knife to threaten M. into submission and the fact
that N.
was relatively young; a virgin; was seriously assaulted and suffered
serious vaginal injuries during the course of the
multiple rapes on
her. Even though no evidence was presented to the court about the
emotional and psychological harm that the respective
victims
suffered, I am satisfied that they were not left unscathed.
[57]
Our courts have repeatedly held that society demands that persons who
make themselves guilty of offences of this nature must
be severely
dealt with. In cases such as this, the element of retribution and
deterrence rather than the interest of the criminal
himself come to
the fore when it comes to the assessment of what would be a suitable
sentence.
[58]
Counsel for the appellant submitted that the trial magistrate should
have found that there were substantial and compelling
circumstances
that justify the imposition of a lesser sentence than imprisonment
for life and further contended that the trial
magistrate had failed
to give proper consideration to the approach adopted by our courts in
S v Abrahams
2002 (1) SACR 116
(SCA), S v Mahomotsa
2002 (2) SACR 435
(SCA), S v Vilakazi and Others
2000 (1) SACR 140
(W) and
S v
Malgas
2001 (1) SACR 469
(SCA) to mention but a few of the cases,
he relied on, when she sentenced the appellant.
[59]
In
S v Abrahams
(supra)
the appellant was convicted of
raping his 14 year old daughter and was sentenced in a High Court to
seven years imprisonment. On
appeal by the State against sentence the
court increased the sentence to 12 years imprisonment. The court held
that the life sentence
ordained by the Legislature should be-
reserved for cases devoid of substantial and compelling factors and
that it should only
be imposed as a minimum sentence in the most
serious cases. In
S v Mahomotsa
(supra)
the complainant
was 15 years old and the accused was convicted of two counts of rape
in relation to her. On appeal the minimum life
sentence imposed by
the court
a quo
was substituted with a sentence of 8 & 12
years imprisonment on the respective counts. In S v Nkomo 2007(2)
SACR 198 (SCA) the
accused was convicted of abduction and rape. The
accused was sentenced to 3 years imprisonment for the abduction but
referred to
the High Court for sentence since he had raped the
complainant 5 times and the prescribed sentence was life
imprisonment. The sentence
of life imprisonment imposed by the High
Court was set aside on appeal and substituted with a sentence of 16
years imprisonment.
In S v GN 2010(1) SACR 93 (T) the appellant was
convicted of raping his biological daughter of 5 years old. The life
sentence imposed
on him was set aside on appeal and the appellant was
sentenced to 20 years imprisonment. The approach and its application
in S
v M
a
homotsa
(supra)
and the other cases referred
to above conveys that even where imprisonment for life is prescribed
as a minimum sentence that a court
must bear in mind that it is the
ultimate penalty that the courts in this country can impose. As such
it must not be imposed lightly,
even when it is a prescribed minimum
sentence. In order for it to arrive at a just sentence, a court must
have a balanced regard
to the nature and seriousness of the crime,
the personal circumstances of the accused and the legitimate
interests of society.
The result thereof is that justice demands
that, even for similar crimes, different sentences must often be
imposed. In S v Malgas
(supra)
at para 25 it was pointed out
that s 51 of the Act 'has limited but not eliminated the courts'
discretion in imposing sentence ...'.
It follows that, even where the
Act prescribes a minimum sentence, the courts must still seek to
differentiate between sentences
in accordance with the dictates of
justice. Thus, where the Act prescribes imprisonment for life as a
minimum sentence, the fact
that it is the ultimate sentence must also
be taken into account. In the present case the magistrate did not in
her judgment on
sentence give consideration to the approach adopted
by our courts in the above cases nor did she compare the approach
adopted in
the above cases with the circumstances of the present
case. The approach adopted by the magistrate in regard to sentence in
this
matter, amounts, in my view to a misdirection, the nature and
degree which is sufficient to enable this court to interfere and
reconsider sentence. Even though the rapes committed by the appellant
were callous and_ brutal they do not in my view qualify as
falling in
the category of the worst cases of rape. In my view the trial
magistrate also failed and neglected to take into account
the
appellant's favourable personal circumstances. He was 27 years old.
Although unmarried, he supported two children. He had fixed
employment and was a first offender. At the time of sentence he had
been in custody for a year. The magistrate also failed to take
into
account that the rapes on counts 2-5 are very closely connected in
time and space.
[60]
Having regard to the cumulative effect of all these factors, I am of
the view that substantial and compelling circumstances
do indeed
exist to impose a lesser sentence than ten (10) years in respect of
count 1 and life imprisonment in respect of counts
2 - 5.
[61]
Having said that, the crimes remain very serious and must be punished
severely. Taking into account all the factors relevant
to sentence, I
am satisfied that a term of eight (8) years imprisonment on count 1
and a term of twenty (20) years imprisonment
on counts 2 - 5 (counts
2 - 5 taken together for the purpose of sentence) is a more
reasonable, balanced and justifiable sentence
in this matter.
[62]
In the premises, I would propose the following order:
(1) The appeal succeeds in
respect of count 6 and the conviction and sentence of six (6) months
imprisonment for assault is
set aside.
(2) The appeal in respect of
counts 1to 5 is dismissed.
(3) The sentence of ten (10)
years imprisonment in respect of count 1 and the sentence of life
imprisonment in respect of
counts 2 to 5 imposed by the court a
quo
are set aside and are substituted with the following sentences:
Count 1:
Eight (8) years
imprisonment.
Counts 2-5
: are taken together
for the purposes of sentence and the accused is sentenced to twenty
(20) years imprisonment.
(4) In terms of
s 280
of the
Criminal Procedure Act 51 of 1977
, the sentence imposed on count 1
shall run concurrently with the sentence of twenty (20) years
imprisonment imposed on counts 2-5.
(5) In terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, the sentence is antedated to 19
May 2008.
______________
J.
F. RILEY, AJ
I
agree. It is so ordered.
_____________
N.
J. YEKISO, J