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[2010] ZAWCHC 450
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Hendricks v S (A317/2010) [2010] ZAWCHC 450 (27 August 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER: A317/2010
DATE:
27 AUGUST 2010
In
the matter between:
KHAYALETHU
HENDRICKS
…
.........................................................
Appellant
and
THE
STATE
…
................................................................................
Respondent
JUDGMENT
BLIGNAULT.
J
:
Appellant was convicted
on 30 October 2009 in the regional court at Parow on three charges.
The first charge is that he raped
M B per anum on 1 March 2009 to 2
March 2009. The second charge reads identical to the first charge.
The third charge is that
he assaulted the same person, M B by
hitting him with a knife. He was convicted of common assault on this
charge.
Appellant was sentenced
to 17 years imprisonment on the first two charges taken together. On
the third charge he was sentenced
to six months imprisonment to run
concurrently with the 17 years imposed in respect of the first two
charges.
Appellant pleaded not
guilty to all the charges. He was not legal represented.
At the outset, the State
applied to allow the complainant, that is M B (Mzumo), to testify in
a separate room through an intermediary.
This application was
allowed. Mtestified that he was 17 years old when he gave evidence
and was born 21 September 1992. He was
staying with his uncle and
his family in Langa. On 1 March 2009, he was walking towards Zone 2
to look for a friend. It was about
eight to nine in the evening.
Then he saw a man, which he said was called Jerry. He later
confirmed that this man was the appellant.
He had seen appellant
previously walking in the street.
He, Mzumo, wore a
jacket, T-shirt, pants and underwear. Appellant was alone. Appellant
then asked him to buy loose cigarettes
for him. He returned with the
cigarettes to appellant's house. He knew where he lived, because his
niece was a friend of appellant's
cousin. Appellant opened the door
and asked him to come in. Then he closed the doors and
locked them. Appellant
told him, and these were his words,that he had a sentence, did he
want a banana or blood. It appears that
at first Mdid not understand
what he was referring to. But then appellant took out handcuffs and
put them on his one hand. Later
he took the handcuffs off and took a
knife. He hit Mwith a knife on top of his head five times. Appellant
then asked him to undress
himself. Mtook all his clothes off.
Appellant was also undressing himself. Appellant told him not to
look at him.
Appellant then switched
off the light, climbed into the bed and told Mto lie on his stomach.
Then he put his penis in him, that
is Mzumo's anus, and made
movements. Appellant asked him why was he "holding himself".
Appellant then put the lights
on and took the knife. At this stage
it would appear that he was no longer penetrating him. He said that
if Mheld himself again,
he would stab him. Then he switched the
lights off again and proceeded to put his penis in his anus again.
He took a long time,
then stood up, switched on the light and opened
the door.
He, Mzumo, tried to get
out, but appellant held his hand and said that he must stay inside
so that he can get dressed. He dressed
himself and appellant said
that if he told anyone, he would kill him. Then he, Mzumo, left and
went home. He was dressed, except
for his underpants, which were in
his hands.
/...
At home he told his
uncle, Salomzi, what had happened. This was about one o'clock in the
morning. Then his aunt, Pamela, woke
up and they went to the police
station. They took him to a doctor, who examined him. Later that
night he took the police to appellant's
house. Appellant was not
there, but the police found the handcuffs in his house.
Dr
Paul Alexander Theron, a district surgeon, testified that he
examined the complainant after the incident. He saw him at a quarter
past ten in the morning of 2 March 2009. He found
that
the back area of his scalp was painful, but there were no lesions.
In the perianal and anal area, he found two lesions externally,
which had been caused by blunt trauma. They were tears of the
perianal skin. Then he examined his rectum and found that it was
very painful. He concluded that rape per anum was probable.
Mr Salomzi Bacela
testified that the complainant, Mzumo, is his sister's child. Mstays
with him in Langa. On the day in question
Mcame to his house. Mwas
shocked. He had his underpants in his hand. Masked him whether he
knew the man called Jerry. He did
not. Mthen told him what had
happened between him and the man called Jerry. Mgave him a detailed
account of the incident. That
account, I may say, tallied with
Mzumo's version of the
incident in his own
evidence about it. Salomzi said that he did not know appellant, but
that Mtold him that his other son was
a friend of one of appellant's
family members. Salomzi said that the went to the police station
with Mzumo. Mlater took the police
to appellant's house, but he was
not at home.
Appellant testified that
he was at Monwabisi's house on Sunday 1 March 2009 at about seven
o'clock in the evening. They played
dominos, watched DVD's and
played music. Before eight o'clock in the evening, Monwabisi said
that he had seen Mady going into
his shack. After a while he, that
is appellant, went to see Mady. Mady was with his girlfriend named
Maasi. Appellant sat down
next to him and they chatted. At some
stage they went to Bonteheuwel and back. They sat at Mady's place
all night long. Monwabisi
joined them at some stage. On Sunday 1
March 2009 he said he was not at home at all. Or, the Friday
thereafter he was at Monwabisi's
place where he was told there was a
rumour that he had assaulted Mzumo. He went to Mzumo's house and
explained to a woman, whom
he took to be Mzumo's mother, that he did
not assault Mzumo, as he had not been at his home on that Sunday.
The police then arrived
and arrested him.
Appellant called
Monwabisi Williams to give evidence. He
stayed in Langa and he
knew appellant. Appellant was at his place when he was arrested on
Friday 6 March. He was asked whether
he knew where appellant was on
Sunday 1 March. He said that appellant came to his place, then went
home and came to his place
again. Then appellant when to their
friend, David's place.
The magistrate gave a
full judgment. He summarised the evidence and then evaluated the
witnesses. M, he said, made a good impression
as a witness. He came
across as honest and credible. His evidence was confirmed by the
fact that he reported the incident to
Salomzi immediately after it
happened and that he took the police to appellant's house. Appellant
on the other hand was found
not to be a good witness. Monwabisi, he
found, contradicted appellant's evidence that he, appellant, had
never been at his own
house on the day in question. In the light of
all the evidence, the magistrate said, he found that the State had
proved that
appellant raped Mtwice and that he assaulted him. The
magistrate accordingly convicted appellant on all three charges, but
on
the third charge he convicted him of common assault.
Appellant has a number
of previous convictions for theft and robbery. The last of these was
a charge or robbery on which
he was sentenced on 23
March 2001 to 12 months imprisonment. Appellant testified for
purposes of sentence. He said that his father
had passed away and
that his mother was an elderly person. He was born on 23 June 1968.
He lived with a female partner and he
had three children aged 12
years, nine years and 18 months. His mother was looking after them.
He had already spent eight months
in custody. The Court obtained a
victim impact report prepared by Ms Caron Majevsk. Her principal
findings are:
"From the above it
is clear that the victim, M B was negatively affected by the crime.
The victim has suffered several physical
and psychological effects.
Mappears to suffer from a flashback when required to think and
recall detail of the incident. These
flashbacks can induce feelings
of intense anxiety and fear. It seems to appear as if Mis
suppressing his feelings in an effort
to protect himself from the
full impact of the trauma. This is of grave concern, since these
feelings, if not dealt with, can
be manifested in acting out and
rebellious behaviour which appear to be happening now both at home
The Court also obtained
a probation officer's report in respect of the appellant. The
probation officer dealt fully with the personal
circumstances of the
appellant. The evidence placed before the presiding officer for
sentence was summarised in appellant's counsel's
heads of argument.
In addition to what I have already mentioned, she pointed out that
appellant resided in a shack on his mother's
property, who is a
pensioner and she is 80 years old. It also appeared, I may mention,
from the probation officer's report that
appellant was in fact not
the father of the three children as he had suggested. It also
appeared that he had a scholastic achievement
of Standard 5 and that
he had been in custody for approximately eight months before
sentenced.
The magistrate
approached the sentencing of appellant on the basis that the
prescribed minimum sentence for the first two charges
was life
imprisonment as he had been convicted on two counts of rape. He
found, however, that there were material and compelling
circumstances justifying a lesser sentence and he sentenced him to
17 years imprisonment on both counts taken together. On the
third
charge he convicted him to six months imprisonment to run
concurrently with the 17 years imprisonment on counts 1 and 2.
The
magistrate granted appellant leave to appeal against his conviction
and sentence.
It
is trite law that a court of appeal will not likely interfere with a
lower court's credibility and factual findings. See
S
v Francis
1991(1)
SACR 198 (A) at 204E-F:
"Bearing in mind
the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional
cases that this
Court will be entitled to interfere with a trial court's evaluation
of oral testimony."
I
have considered the magistrate's judgment and appellant's arguments
carefully, but I am not persuaded that he erred in the credibility
and factual findings made by him. I do think, however, that the
magistrate erred in convicting appellant on two counts of rape.
Although there was, according to the evidence, two separate acts of
penetration, they appear to me to have been committed in
the course
of one single rape. It appears that the only reason for appellant's
temporary withdrawal was to threaten Mwith a knife
so that he would
adopt a more relaxed posture. Appellant proceeded immediately
thereafter with the second act of penetration.
In this regard I
refer to the reported case of
S
v Blaauw
1999(2)
SACR 295 (W) at 300a-d.
Appellant should,
therefore, have been convicted on one count of rape only. This means
effectively that his conviction on the
second count must be set
aside. Being convicted only on one count of rape, means that the
sentence of 17 years imprisonment requires
to be adjusted. The
prescribed minimum sentence for rape is ten years imprisonment. I
have considered the circumstances carefully,
but I am not persuaded
that a lesser or more severe sentence should be imposed. There is in
my view no need to interfere with
the sentence of six months
imprisonment on the third charge, save to make it clear that this
sentence will now run concurrently
with the sentence of ten years
imprisonment imposed on the first charge.
The appeal against
appellant's convictions is accordingly upheld in part. Appellant's
conviction on the second count of rape is
set aside, but his
conviction on the first count of rape and the third count of assault
are confirmed. The appeal against sentence
is also upheld in part. A
sentence of ten years imprisonment is imposed in respect of the
first count of rape. The sentence of
six months imprisonment on the
count of assault is confirmed, but it is ordered that such sentence
will run concurrently with
the sentence of ten years imprisonment on
the first count. Both sentences are antedated to 23 December 2009,
being the date on
which appellant was sentenced in the magistrate's
court.
BLIGNAUT,
J
BOTHA,
AJ: I agree
BOTHA,
AJ