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[2010] ZAWCHC 554
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Klaasen v S (A443/2010) [2010] ZAWCHC 554 (12 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A443/2010
DATE
:
12 NOVEMBER 2010
In
the matter between:
ADRIAN
KLAASEN
…............................................................................
Appellant
and
THE
STATE
…...................................................................................
Respondent
JUDGMENT
MANCA.
AJ
:
The
appellant was charged and convicted of raping the complainant, L Lo,
on 28 August 2004 in Parkdene, a residential area just
outside
George. He was sentenced to 10 years imprisonment, which is the
minimum sentence prescribed for this offence. The appellant
was
legally represented throughout the trial.
The
complainant's version of events was relatively straightforward. She
explained how she had visited a tavern with her friends,
got drunk,
left the tavern and was assaulted and raped by an unidentified man
on her way home. This evidence went completely
unchallenged by the
appellant. The appellant was, however, identified by other
witnesses.
The
first of these witnesses was one Samuel du Preez. He testified that
he saw the complainant being assaulted by the appellant
on the night
in question. Afraid to intervene, he raised the alarm by running to
the complainant's mother's house and describing
to her what he had
seen. This resulted in the complainant's mother telephoning the
police who, it would appear, notified the
neighbourhood watch.
Within minutes the police and members of the neighbourhood watch
descended on the scene. The were taken
by Du Preez to where he last
saw the complainant and the appellant.
The
complainant and the appellant were no longer there and the search
was expanded to a nearby field where, according to one Hendrik
Swartbooi, a member of the neighbourhood watch he and others came
across what he described as a
swart
bondeltjie
lying
in the grass. On closer inspection, a man jumped up and ran away and
Mr Swartbooi and others gave chase. The fact that the
man who ran
away had been lying on top of the complainant was not challenged.
As
I have indicated, Swartbooi and others chased this man, who was
shortly thereafter apprehended by a Mr Van Buhlen, also a member
of
the neighbourhood watch. Mr Van Buhlen was not called as a witness,
because he died before the trial took place. However,
Mr Swartbooi
told the Court that he never lost sight of the man who was caught by
Mr Van Buhlen. That man was the appellant.
The
Court was also told by Mr Swartbooi and a Captain Cornelius that
whilst in custody, Captain Cornelius removed a condom from
the
appellant's penis. The Court also heard evidence, tendered by way of
affidavits admitted in terms of section 212 of the Criminal
Procedure Act, that the condom which had been handed in, had been
examined and that it contained a DNA profile which matched
that of
the complainant.
The
appellant's evidence was that he had been at Daniel's Tavern on the
night in question and that when he was on his way home,
he was
apprehended for no apparent reason, taken to the police cells, not
offered an explanation for his arrest, only to be told
the following
day that he was charged with rape. He denied that a condom was
removed from his person by Captain Cornelius.
Ms
Arnott
,
who appeared for the appellant, argued that the evidence adduced by
the State did not establish that the identity of the person
who
raped the complainant was the appellant. She submitted that, in the
first instance, the identification evidence of Du Preez
was open to
criticism and should not have been relied upon. Whilst there is much
to be said for this criticism, in my view the
unsatisfactory
elements of Du Preez's evidence, do not assist the appellant.
Mr
Swartbooi testified that he saw a man get up from what he described
as the
swart
bondeltjie
in
the field and ran away from him and the other neighbourhood watch
members. Mr Swartbooi and others gave chase, and although
Swartbooi
was not the one who apprehended the appellant, he never lost sight
of him. In this regard, Ms
Arnott
submitted
that because Mr Swartbooi had not identified the perpetrator when he
first gave chase, that there was a reasonably possibility
that the
person who was apprehended and the person who fled the scene were
two different persons.
In
my view there is no such reasonably possibility. Mr Swartbooi chased
the man who got up from the
swart
bondeltjie
and
never lost sight of him while he was chasing, up until the time when
that person was apprehended by Mr Van Buhlen. As far
as the evidence
of Captain Cornelius is concerned, no reasons have been advanced why
his evidence that he removed a condom from
the appellant's penis
should be rejected. The appellant's evidence on the other hand was
most improbable and unconvincing.
In
the circumstances I am of the view that the appellant was correctly
convicted by the magistrate and that his appeal against
his
conviction should fail. As regards his sentence, he was sentenced to
10 years, which is the prescribed minimum for this offence.
In my
view, there are no substantial and compelling reasons that we should
interfere with that sentence. In the circumstances
I am of the view
that the following order should be made. The appellant's appeal
against his conviction and sentence is refused.
MANCA, AJ
BLIGNAULT,
J
:
I agree and it is so ordered.
BLIGNAULT,
J