About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 444
|
|
Oliver v S (A233/2010) [2010] ZAWCHC 444 (20 August 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A233/2010
DATE
:
20
AUGUST 2010
In
the
matter between:
PETER
J OLIVIER
…..........................................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
JUDGMENT
ZONPI,
J
:
The appellant, who was
legally represented, appeared in the Mossel Bay Regional Court on 7
August 2008 facing various charges, including
one count of rape and
two counts of robbery with aggravating circumstances. As regards the
charge of rape, it was alleged by the
State that the appellant on or
about 7 March 2008 and at Mayixhale Street, he raped a 17 year old
girl complainant. With regard
to the two counts of robbery with
aggravating circumstances, the State alleged that at the same time
and place, the appellant robbed
the complainant of her cellphone and
a pair of takkies by threatening her with a knife and further at the
same time and place,
the appellant robbed one Dawn McClear of her
cell phone and earrings. All of the counts were subject to the
provisions of Act 105
of 1997 (the minimum sentence).
The
appellant pleaded not guilty to all the charges and in relation to
the count of rape, he alleged that sexual intercourse was
consensual. At the conclusion of the trial, the appellant was
convicted on one count of rape and two counts of theft and was
sentenced to ten years imprisonment on a count of rape and three
years imprisonment on each count of theft, which were taken
together
for the purpose of sentence. He was effectively sentenced to 13
years imprisonment. With the leave of the court a
quo
he
appeals to this Court against convictions and sentences.
Mr
Bruinders
appears
on behalf of the appellant, while Ms
Kortje
for
the State. The appellant's attack on conviction is based on the
ground that the court
a
quo
erred
in convicting the appellant in circumstances where there were
numerous contradictions, inconsistencies and improbabilities
in the
State's case. The evidence which formed the basis of the appellant's
conviction was to the following effect. The complainant,
who was 17
years old at the time of the commission of the offences, testified
that on the day in question at about six o'clock
in the evening, she
and her friend Dawn, met their friend one Arnold on their way home
from attending biblical studies. Arnold
asked them to accompany him
home to collect money, which they did. While Arnold went to collect
money, they waited for him outside
his house at the street corner.
When he returned with the money, they all went to a tavern called
Cosy Corner.
Arnold bought about four
beers, which they all partook of As they were busy drinking, the
appellant, who was known to them, arrived.
They had met him and had
a chat with him at the same tavern some two weeks before this
particular encounter. The appellant joined
their table and Arnold
bought some beers. After a short while, Arnold went outside while
she and Dawn were on the floor dancing.
Shortly thereafter the
appellant also went out and when he returned, he reported to them
that Arnold had been stabbed. He told
them to phone the ambulance.
The appellant took them to his house and they all sat in the sitting
room. When they asked him why
they were there, he told them not to
get worried and when the complainant insisted that she wanted to go
home, he smacked her
with a knife.
The complainant took a
cell phone from Dawn and phoned the police, as she did not trust the
appellant. The appellant approached
her and grabbed the cell phone
from her hand and smacked her with a 30 centimetre long knife on her
cheek. Thereafter the appellant
went out of the sitting room. During
the appellant's absence, the complainant asked Dawn to phone the
police from her cell phone,
but as Dawn was busy phoning, the
appellant returned and grabbed the cell phone from her hand. He used
the gang language and
told them to use it as well. When she told him
that she did not understand it, he slapped her on the face with an
open hand.
At this point in time,
he dragged her by the hand to the bedroom, telling Dawn that she
would see what he was going to do to her
friend. She asked Dawn to
follow her Dawn sat on the bed. The appellant told her to lie on the
bed, when she refused, he threatened
to kill Dawn. He told her to
pull her pants down, when she refused, he, himself, pulled out one
of her pants' legs. At that stage
he held a knife against Dawn's
throat, but he put it down on the bed as he pulled her pants down.
Dawn was sitting on the bed
and looked on as the appellant did all
of this. Thereafter the appellant pulled his pants down up to the
knee level, took out
is penis and put it into her vagina and raped
her.
After raping her, the
appellant told Dawn she was the next one. Dawn said "Nee, ek
het h grote pee" and the appellant
left her. Thereafter the
appellant told Dawn to go to the kitchen. While at the kitchen the
appellant removed earrings from Dawn's
ears and put them into his
pocket. The appellant told the complainant to go back to the
bedroom. She did. In the bedroom he told
her to take off her
takkies, which she did, because she was scared of him and he gave
her his shoes to wear. The appellant was
unarmed at that stage. The
appellant told the complainant to keep quiet. He threatened her if
she reported the matter to the
police. He thereafter took her out
and opened the front door to let her and Dawn out. He took them
halfway and told them to come
back later for their belongings.
On their way they saw a
police van and Dawn signalled it to stop, which it did. Dawn related
to the police what had just happened
to them. The police took them
to the nearest police station. Dawn gave a statement to the police.
The complainant asked the police
to fetch her mother, which they
did. Her mother and Dawn accompanied her to hospital As the doctors
were not available to attend
to her on that day, she was asked to
return the following day, which she did.
During cross-examination
she was taken through her statement she made to the police on 7
March 2008. She admitted to signing it
after the police officer had
read it back to her. She was happy with what was read back to her,
although she was at that stage
confused and under the influence of
alcohol. She denied that she had consensual intercourse with the
appellant and that Dawn
was sitting in the sitting room while she
had intercourse with the appellant in the bedroom.
Maria Andrews is the
complainant's mother. She confirmed that on the day in question at
about half past ten in the evening, the
police came to report to her
that the complainant had been raped. The police took her to the
police station. According to her
observation, the complainant was
not drunk when she saw her at the police station, though she was
hysterical.
Dawn McClear, who was 18
years old when she gave evidence, corroborated the complainant's
version insofar as it related as to
how she left the tavern and
landed at the appellant's house. Though she differed with the
complainant on the events which took
place in the appellant's
bedroom before the appellant raped the complainant, she, however,
corroborated the complainant's evidence
regarding the occurrence of
rape. She also confirmed that the appellants took away their cell
phones when they wanted to phone
the police. She further testified
that while in the appellant's kitchen, the appellant approached her
and removed her earrings
from her ears. This removal was without her
consent.
On their way home after
the rape of the complainant, they saw a police van. She waved it to
stop which it did. She informed the
police (Sgt. Seconds) that the
complainant had been raped by the appellant. Sergeant Seconds took
them to the police station.
Sergeant Seconds confirmed Dawn and the
complainant's evidence insofar as it related to him.
The appellant's evidence
is briefly as follows. He testified that he was 27 years old and
that on 7 March he met Arnold, the complainant
and Dawn at the
tavern. As they had been expecting him, he joined them when he
arrived at the tavern. There were about five beers
on the table and
he took out R100.00 from his pocket and bought a bottle of VO
Bertram's Brandy, which they all partook of including
the
complainant. It was not the first time that he met the complainant
and Dawn on the day at the tavern. He had met them the
previous week
at the same tavern, it was on that occasion that he told her that he
was interested in her. She did not immediately
indicate to him
whether she was accepting his proposal. She told him that she would
think about it and would inform him in due
course.
When he met the
complainant on 7 March 2008, he asked her if she had thought about
his request, to which she replied in the affirmative.
The appellant
then asked her if she would go with him to his house. She agreed on
condition that he would take her home. From
the tavern all three of
them went to his house. Arnold was no longer with them. He left them
without a word while they were at
the tavern. The appellant did not
know where Arnold had gone to. He did not bother to look for Arnold
He remained with the complainant
and Dawn. When they arrived at his
house, they all sat in the sitting room. Dawn said she wanted to
phone her uncle to enquire
about the whereabouts of Arnold.
While Dawn made a call,
he and the complainant went inside the bedroom. They sat on the bed
and kissed each other He asked the
complainant if he could have
sexual intercourse with her, she agreed, but said that they had to
finish before Dawn finished phoning.
They then had sex. Dawn arrived
and said to the complainant she must make haste. The appellant and
the complainant got up, put
their clothes on and they left the
bedroom. He took them halfway and asked them to make a turn at his
house the following morning.
The complainant and Dawn said it was in
order. The appellant then went back to sleep.
The next day he met
Arnold at the tavern. He and Arnold did not talk, but Arnold told
him that the previous evening he decided
to go home after smoking a
pill. The appellant denied having robbed the complainant of her
takkies, he said she left them at
his house. She might have decided
to leave them. She said she would come fetch them the following day.
He said they were drunk
on the night in question. He denied having
robbed Dawn and the complainant of their cell phones or having
robbed Dawn of her
earrings.
Arnold Isaacs was called
to testify on behalf of the appellant. When he gave his testimony he
was serving a sentence. He knows
the complainant and Dawn. Dawn was
his girlfriend. On the day in question there was an arrangement that
he would meet them after
training They wanted to go to the tavern,
but did not have money for wine. They gave him their cell phones, a
Nokia and a Motorola
V360 to pawn. He took them to a certain
Somalian, who agreed to pawn them for R400.00. He took it and gave
it to Dawn and the
complainant, which they split up. They then
proceeded to the tavern and bought beers.
While they were busy
drinking the appellant arrived. He greeted the appellant. The
appellant asked him if he could join them.
The witness said he
could. The appellant joined them and he bought a bottle of brandy.
The witness went out with his friend to
smoke Mandrax He did not
return thereafter. He went home, leaving the appellant and the two
ladies behind at the tavern. The
following morning Dawn informed him
that the appellant raped the complainant She had come to give him
his cell phone which he
had given her the previous day at the
tavern. He confirmed that the previous week they had also met at the
tavern. The appellant
and the complainant sat together and talked.
During cross-examination he testified that he saw the appellant the
following day
in the street when he was on his way to buy Mandrax.
At that stage Dawn had already informed him that the complainant had
been
raped by the appellant.
Inspector Rasant, the
investigating officer, testified regarding the statements he took
from the complainant on 9 March 2008,
that is some two days after
the incident. He denied that the complainant had mentioned to him
that the appellant robbed Dawn
of her earrings He was also referred
to Dawn's statement which he took on 9 March 2008. He denied that
the earrings robbery was
also mentioned to him by Dawn.
The
main attack before us on the magistrate's judgment is that in light
of numerous contradictions, inconsistencies and improbabilities
in
the State's case, he erred in finding that the State had proved its
case beyond reasonable doubt and convicting the appellant.
In an
attempt to persuade us to find that there were contradictions and
inconsistencies in the State's case, Mr
Bruinders
,
who appeared for the appellant, took us through the record to
pinpoint deficiencies.
The
principles governing the hearing of appeals against finding of fact
are well established and that is, in the absence of demonstrable
and
material misdirection on the facts by the trial court, the
presumption is that its conclusion is correct and the appeal court
will only reverse it when it is convinced that it is wrong. See in
this regard
R
v Dhlumavo & Another
1948(2)
SA 677 (A) at 606 and
S
v Hadebe & Others
1998(1)
SACR 422 at 426. At 426e-g the Court in
S
v Hadebe
had
this to say:
"That
being the case, the credibility findings and findings of facts of
the trial court cannot be disturbed unless the recorded
evidence
shows them to be clearly wrong. In assessing whether or not such is
the case, the approach which commended itself in
Moshephi
& Others v R
(1980-1984)
LAC 57
at 59F-H. seems appropriate in the particular circumstances
of the matter": 'The question for determination is whether, in
the light of all the evidence adduced in the trial, the guilt of the
appellants was established beyond a reasonable doubt. The
breaking
down of the 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 the 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 against, together with all the
other available evidence. That
is not to say that a broader 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."
I
cannot find misdirection on the part of the trial court in this
matter. The evidence given in the court a
quo
was
fairly and accurately summarised in the judgment. Attention was
given to the detailed criticism of the evidence of the witnesses
who
testified for the State. They were evaluated in the context of the
entire body of the evidence that was led, and appropriate
weight was
attached to them in the light of all the evidence and inherent
probabilities and improbabilities of the case.
It is correct that there
are contradictions between the complainant and her witness, Dawn,
for instance regarding how Dawn landed
in the room in which the
complainant was raped.
Dawn
testified that she and the complainant were told by the appellant to
go into the bedroom. However, on the complainant's version,
when the
appellant told her to go to the bedroom, she asked Dawn to come
along as she was afraid of the appellant. The contradictions,
highlighted by the appellant, in my view, do not relate to the main
issue which the court a
quo
had
to determine. They relate to peripheral issues and matter of
details. On the main issues before the court a
quo
,
the evidence was overwhelming that sexual intercourse had been
without the complainant's consent.
The complainant and Dawn
were in agreement that the appellant took out a knife and used it to
force the complainant to have sexual
intercourse with him. The
sexual intercourse took place in the presence of Dawn. The witnesses
also corroborated each other on
how their belongings were removed
from them by the appellant before and after rape of the complainant.
Finally, when they saw
the police van in the street, they stopped it
and Dawn reported to the police that the complainant had been raped
by the appellant.
The
conduct of the appellant and that of the complainant was
inconsistent with the appellant's version that sexual intercourse
was consensual. The court a
quo
correctly
found in favour of the State on the issues which were before it and
the conclusion it reached was correct. In the circumstances
I would
dismiss the appeal against conviction
Before I proceed to deal
with the sentence, I just want to mention that there were also
contradictions in the defence case. For
instance Arnold testified
that he had pawned the complainant and Dawn's cell phones before
they went to the tavern. On his version,
Dawn and the complainant
did not have cell phones when they later went to the appellant's
house. On the other hand, the appellant
testified that while at his
house Dawn went out to phone. So it is clear to me that there are
also contradictions in the defence
case.
I
now turn to consider the appellant's attack on the sentence. The
count of rape was subject to the provision of section 51(2)
of Act
105 of 1997. This is the Act which prescribes a minimum sentence for
certain offences. The minimum sentence prescribed
for rape of the
nature the appellant was convicted of is 10 years imprisonment but
that sentence could be deviated from if there
are substantial and
compelling circumstances. The court
a
quo
investigated
this aspect and found none. It accordingly imposed a prescribed
minimum sentence of ten years imprisonment.
It
was submitted on behalf of the appellant that the court a
quo
erred
in imposing a prescribed minimum sentence on the ground that both
the complainant and the appellant were under the influence
of
alcohol at the time of the incident and that the complainant did not
suffer any serious injury or was not raped repeatedly.
The question
is whether there were sufficient facts placed before the court
a
quo
which
could justify the finding of substantial and compelling
circumstances being made.
The appellant's personal
circumstances were that he was a first offender in relation to the
crime of rape, but had a number of
previous convictions for theft
and housebreaking. He was 28 years old. single and had no dependants
and was unemployed- These
are his personal circumstances.
As
far as the offence is concerned, the evidence showed that the
complainant was raped at a knife point in the presence of her
friend
and her belongings were taken by the appellant. In my view the
appellant's personal circumstances did no constitute substantial
and
compelling circumstances, justifying the court a
quo
to
deviate from imposing the prescribed sentence of ten years
imprisonment. It should be remembered that the sentence prescribed
by the Legislature should not be departed from for flimsy reasons
which cannot withstand scrutiny. The complainant was treated
with
disdain by the appellant, he raped her in the presence of her
friend. Not only did he violate her sexually, but also dispossessed
her of her personal belongings. The appellant's conduct demonstrated
a show of arrogance and power.
The
suggestion that the court a
quo
erred
in not ordering the sentence for theft to run concurrently with the
sentence for rape is rejected. The appellant had a string
of
previous convictions relating to theft and housebreaking. He does
not seem to have learnt from his previous mistakes. In the
circumstances I would dismiss the appeal against sentence as well.
In the result the appeal
against the convictions and sentences is dismissed and the
convictions and sentences are confirmed.
ZONDI,
J
STEYN,
J
:
I agree.
STEYN, J