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[2013] ZASCA 85
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Tladi v S (895/12) [2013] ZASCA 85; 2013 (2) SACR 287 (SCA) (31 May 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 895/12
REPORTABLE
In the matter
between:
NELSON
MPHATHALATSE TLADI
............................................
APPELLANT
and
THE STATE
....................................................................................
RESPONDENT
Neutral citation
:
Tladi v The State
(895/12)
[2012] ZASCA 85
(31 May 2013)
Coram:
Maya,
Tshiqi, Pillay JJA, Saldulker and Mbha AJJA
Heard:
23 May
2013
Delivered:
31
May 2013
Summary:
Criminal
law – rape – assessment of evidence – whether two
separate acts of rape proved – sentence –
prescribed
minimum sentence in terms of
Criminal Law Amendment Act 105 of 1997
read with
Part III
of Schedule 2.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Pretorius J and Hiemstra AJ,
sitting as court of appeal):
The appeal against
the conviction on count 1 is dismissed.
The appeal against
the conviction on count 2 is upheld and the conviction is set aside.
The appeal against
the sentence of life imprisonment is upheld. The sentence is set
aside and replaced with the following:
‘
The
accused is sentenced to 20 years’ imprisonment’.
JUDGMENT
SALDULKER AJA
(MAYA, TSHIQI AND PILLAY JJA AND MBHA AJA, CONCURRING):
[1] The appellant,
Mr Nelson Mphathalatse Tladi, was charged in the Thabamoopo Regional
Court, Limpopo, on two counts of rape. He
pleaded not guilty and
tendered a plea explanation in terms of s 115 of the Criminal
Procedure Act 51 of 1977 (the CPA). In
his plea, he admitted
having sexual intercourse with the complainant but pleaded that it
was consensual. He was convicted on both
counts and sentenced to life
imprisonment. On 3 February 2011, an appeal against his convictions
and sentence was dismissed by
the North Gauteng High Court, Pretoria.
He now appeals against his convictions and sentence with the leave of
the high court.
[2] The state led
the evidence of the complainant and that of an independent witness,
Ms Mpho Koma. A J88 (a medical report completed
by an authorised
medical practitioner) together with a DNA report were also submitted
into evidence.
[3] The version of
the complainant was as follows: Around the time of the rape she was
involved in an extra-marital relationship
with the appellant’s
younger brother Michael. On 15 January 2005, she was confronted by
Michael’s wife, who then confiscated
her hand bag and Michael’s
cellular phone. Michael then gave the complainant the appellant’s
contact numbers to call
him and arrange to retrieve her hand bag. On
the day of the incident she called the number. Believing that she was
talking to Michael,
she made arrangements to meet him at the
appellant’s room which was in a hostel. Upon her arrival there
around 15h00, she
entered the room and sat, waiting for Michael to
arrive. A while later the appellant entered and informed her that
Michael had
told him to check whether she had arrived. He assured her
that Michael was on his way to meet her.
[4] According to
her, the appellant was restless, going in and out of the room several
times. When it became late he offered to
go and buy her food, and
left the room. However, when he returned, he had no food with him. A
while later, he left the room again,
and returned very late. The
appellant then informed her that he was going to sleep at his wife’s
place and that she could
sleep in his room. When he left, she
undressed and went to sleep on a sponge in the room. The door was not
locked.
[5] Whilst she was
sleeping, the appellant returned to the room and locked the door. He
began to fondle her and told her that she
will get used to him ‘in
a bad way’. He then throttled her and attempted to stab her on
her stomach with a pair of
scissors in an effort to scare her. She
stood up and tried to ward him off. He overpowered her and she fell
back onto the sponge.
He then unzipped his trousers, removed her
panty and had sexual intercourse with her twice without her consent.
She screamed for
help. Thereafter, the appellant left, informing her
that he was going to arrange transport to take her home. Upon his
departure,
the complainant ran out of the room with her trousers in
her hand, crying for help. She ran to the other rooms where she found
two women, Ms Koma and Ms Lekolwane, who helped her and gave her
refuge until the next morning. On the following day, she went to
the
hospital and the police station where she reported the rape.
[6] She stated that
it was difficult for her to speak as the appellant had throttled her.
Her face was swollen and she had a scar
on her cheek from being
bitten by the appellant. Although he stabbed her with the scissors
she was not seriously injured and the
injuries were not visible.
[7] Ms Koma
testified that she was asleep in her room, in the same hostel where
the rape occurred, when she heard the voice of a
female person
screaming for help. The screams were coming from a room in the left
block of the hostel. She then walked to Ms Lekolwane’s
room
next door, and they both sat together for a while listening to the
screams and the pleas for help. The screams subsided but
did not
abate. They were afraid to go out and investigate. She went back to
her room. After twenty minutes the screams got louder.
She then heard
that the screams were no longer coming from a room but from the
passage. She peeped through the window and saw a
person next to Ms
Lekolwane’s door. Ms Lekolwane always slept with her lights on.
She went out to investigate. The complainant
was crying and she was
clad only in her panties which were turned upside-down and looked
‘like it had been dragged’.
Ms Koma and Ms Lekolwane took
her inside the latter’s room. The complainant, who had a
scratch on her abdomen and appeared
‘a bit messed up’informed
them that she had been raped, and pointed out the room where the rape
had taken place. She
told them that she had been raped by a person
who had deceived her into believing that she was going to meet her
boyfriend in that
room.
[8] The appellant
testified on his own account. He also called his co-worker Ms Mahlare
to testify as his witness. He stated
that he had met the complainant
on three occasions. On the first occasion the complainant visited him
at his workplace, accompanied
by her friend. She professed her love
for him. On the second occasion, she came to his room, and he refused
to have sexual intercourse
with her because she was having a
menstrual period. On the third occasion, the fateful day, the
complainant called him informing
him that she was on her way to visit
him. At around 22h00 when he arrived at the hostel, he found the
complainant waiting for him
in his room. She was drinking liquor
which belonged to his wife. They argued over the liquor that she had
imbibed. In an attempt
to take the liquor away from her, he twisted
her hand. During that struggle she screamed. The appellant then
suggested to her that
because she had drunk his wife’s liquor,
she should have sexual intercourse with him. The complainant agreed
and they then
had sexual intercourse. He then became concerned that
his wife would return and discover the complainant in his room. He
left the
room on the pretext that he was going to arrange transport
for her, and went to his parents’ home where he spent the rest
of the night.
[9] Ms Mahlare
merely stated that the complainant had indeed visited their work
place, not to see the appellant as he suggested,
but Michael, who
worked at the same place.
[10] The first issue
in this appeal is whether the sexual intercourse was consensual. In
my view, the trial court correctly accepted
the evidence of the
complainant that she did not consent to the sexual intercourse.
Although she was a single witness regarding
the rape, she gave her
testimony in a clear and coherent manner. She was further materially
corroborated by Ms Koma, an independent
witness who knew neither of
the parties and thus had no motive to lie or favour the complainant.
Ms Koma’s observations tie
in with those made by the medical
doctor who examined the complainant twenty one hours later and found
her to be traumatised. Ms
Koma’s evidence also confirms the
complainant’s version in another respect. She told Ms Koma from
the onset, in her
traumatised state, that the appellant had deceived
her into thinking that she was going to meet her boyfriend Michael.
The apparent
contradiction between her description of the injuries
she sustained (which she said were not that visible) and the
observations
of Ms Koma and the doctor, as recorded in the J88, as
strenuously contended for by counsel for the appellant pales into
insignificance
when viewed in proper context. And any inference that
the independent witness conspired with the complainant to fake the
trauma
of her rape which we would have to draw to reject Ms Koma’s
evidence, is farfetched and must be rejected.
[11] I have found
the appellant’s version inherently improbable for the following
reasons: He presented conflicting versions
to the court – it
was put to the complainant that the appellant on the day in question
finished work at 17h00 and accompanied
her to his room where they had
consensual sexual intercourse and he then left to go to his wife’s
place; when he testified
he stated that after finishing his work, he
arrived at his room at about 22h00 and met the complainant there; he
had consensual
intercourse with her after the fight over his wife’s
liquor and then he left for his parents’ place where he slept
because he was afraid that his wife will find him there with the
complainant, yet he left the complainant in his room asleep in
his
bed. His evidence that the complainant was pursuing him was not
supported by his own witness Ms Mahlare, who, as stated
above,
testified that the complainant had gone to the work place to visit
Michael and not the appellant. The appellant’s
version
cannot be accepted as reasonably possibly true in view of these
inherent improbabilities and the trial court correctly
rejected his
version that there was consensual sexual intercourse.
[12] The second
issue in this appeal is whether the state proved that there were two
separate incidents of rape. In
S v Blaauw
1
the court said:
‘
Mere
and repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separate acts of rape
.
A rapist who in the course of raping his victim withdraw his penis,
positions the victim’s body differently and then again
penetrates her, will not, in my view, have committed rape twice. This
is what I believe occurred when the accused became dissatisfied
with
the position he had adopted when he stood the complainant against a
tree. By causing her to lie on the ground and penetrating
her again
after she had done so, the accused was completing the act of rape he
had commenced when they both stood against the tree.
He was not
committing another separate act of rape.
Each
case must be determined on its own facts. 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 be to find that a series of separate
rapes has occurred
.
But where the accused has ejaculated and withdrawn his penis from the
victim, if he again penetrates her thereafter, it should,
in my view,
be inferred that he has formed the intent to rape her again, even if
the second rape takes place soon after the first
and at the same
place.’
(My
emphasis.)
[13] The trial court
placed much store on Ms Koma’s evidence and interpreted it as
suggesting that there were two distinct
screaming bouts. This is
clearly a misdirection. Ms Koma testified that the screams were
sustained, fading a little but did not
abate. 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
2
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. The 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. Counsel for the state was constrained to
concede that no evidence was presented
in the trial court to sustain
a conviction on the second count. Consequently there was no basis for
the conviction on the second
count of rape. And it falls to be set
aside.
[14] Regarding
sentence, it appears that the trial court took into account the fact
that the appellant had been convicted of two
counts of rape and
formed the view that it had to impose the minimum sentence prescribed
in s 51(1) and Part I of Schedule 2 of
the Criminal Law Amendment Act
105 of 1997 (the Act) namely life imprisonment. In that regard, the
court erred.
[15] In the light of
the appellant being convicted of only one count of rape which falls
within the ambit of Part III of Schedule
2, the prescribed minimum
sentence for an offender with two previous convictions is a period of
twenty years’ imprisonment.
Counsel for the appellant could not
advance any argument that there were substantial and compelling
circumstances that warrant
a deviation from that sentence.
[16] In the result,
the following order is made:
The appeal against
the conviction on count 1 is dismissed.
The appeal against
the conviction on count 2 is upheld and the conviction is set aside.
The appeal against
the sentence of life imprisonment is upheld. The sentence is set
aside and replaced with the following:
‘
The
accused is sentenced to 20 years’ imprisonment’.
_____________________
H SALDULKER
ACTING JUDGE OF
APPEAL
APPEARANCES
For Appellant: Ms Le
Roux
Pretoria Justice
Centre, Pretoria
Bloemfontein Justice
Centre
For Respondent: Mr P
T Nkuna
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
1
S
v
Blaauw
1999 (2) SACR 295
(W) at 300 a-g.
2
S
v Mavundla
2012 (1) SACR 548
(GNP) and
S v Willemse
2011
(2) SACR 531
(ECG).