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[2010] ZAWCHC 625
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Rabie v S (A296/2009) [2010] ZAWCHC 625 (10 December 2010)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
Case
No.: A296/2009
In the matter
between:
JEFFREY
HEINRICH RABIE Appellant
and
THE
STATE Respondent
JUDGMENT DELIVERED: FRIDAY 10
DECEMBER 2010
SALDANHA,
J
[1.]
The appellant Mr. Jeffrey Heinrich Rabie was convicted on the 14
th
of February 2008 in the High Court (Eastern Circuit Local Division)
at Oudtshoorn on charges of abduction, rape and the murder
of a six
year old child. He was sentenced to five years imprisonment on the
count of abduction, 20 years imprisonment for the rape
and 25 years
imprisonment for the murder. The sentences were ordered to run
concurrently in terms of section 280(2) of the Criminal
Procedure Act
which resulted in an effective term of imprisonment of 25 years.
[2.]
The appellant had successfully obtained leave to appeal against the
convictions on the charges of abduction and the rape and
leave to
appeal against the sentence imposed on the charge of murder.
[3.]
The charges arose out of an incident on the 3
rd
of
February 2007, near Dysselsdorp in the district of Oudtshoorn where
the appellant was alleged to have abducted M-A D a 6 year
old child
with the intention of having sexual intercourse with her and
whereafter he was alleged to have raped and murdered her.
The
appellant had been legally represented at the trial and had tendered
a plea of not guilty to the charge of abduction and claimed
that it
amounted to an unfair duplication of the charges with that of the
alleged rape. The appellant tendered pleas of guilty
to an indecent
assault and the charge of murder and made various formal admissions
in terms of section 220 of the Criminal Procedure
Act. The state
however was not prepared to accept the pleas and elected to lead
evidence on each of the charges.
[4.]
At the trial the state tendered the evidence of five witnesses. A set
of photographs of the scene at which the deceased was
found near a
bush on the banks of the Olifantsrivier near Dysselsdorp and
photographs which had been taken during the post mortem
examination
of the deceased were by agreement submitted into evidence. A plan and
satellite photographs of Dysselsdorp were also
used during the course
of the trial. During the course of the trial the appellant made
further admissions in terms of section 220
of the Act with regard to
the analysis of a specimen of blood as being that of the deceased and
which had been found on his clothes.
He also admitted that a specimen
of his semen was found on a long pants worn by the deceased. During
the course of the state's
case the court undertook an inspection in
loco of the area at which the incidents of the 3
rd
of
February 2007 were alleged to have occurred.
[5.]
The appellant for his part chose neither to testify nor lead any
evidence in support of his defence.
[6.]
It appeared that as a result of the evidence for the state and the
admissions made by the appellant much of what had occurred
on the 3
rd
of February 2007 was largely common cause.
[7.]
Ms Sofie Erasmus a resident of Dysselsdorp who lived at no 270
Dysselsweg testified that during the afternoon of the 3
rd
February 2007 while sitting in her front yard she saw the deceased in
the company of the appellant together with another young
girl. She
had overheard the appellant say to the deceased and the other girl
words to the effect, "ja man ek gaan dit vir
jou gee." She
thereafter saw the deceased hand over a bar of soap to the other girl
who then walked off in the direction of
her home in Koeriesweg. The
appellant proceeded further up Dysselsweg while the deceased followed
him and Erasmus recalled that
the deceased had uttered words to the
effect that she did not want "minder as vyf rand." She last
saw the appellant and
the deceased as they took a turn in Dysselsweg.
[8.]
A A a 17 year old young man to whom the appellant was known as
'Oubaas' claimed that he and the appellant had previously lived
and
worked together. He had seen the appellant on two separate occasions
on the morning of Saturday 3
rd
of February 2007. A testified that during the afternoon
between 4pm and 5pm while he and two others were sitting under
a tree
in Koeriesweg he saw the appellant again. The appellant approached
them from the direction of Dysselsweg and A saw that
there was blood
on his clothes. On enquiry, the appellant said to him that he had
been involved in a fight and that his mouth had
been cut and had
bled. A claimed that the appellant appeared afraid as if something
had happened to him and was also in a hurry
to get home. He later saw
the appellant again and it appeared that the appellant had washed
himself and had on a change of clean
clothes.
[9.]
The body of the deceased was found on Sunday the 4
th
of February 2007 by a reservist, Constable McKenna, lying in a
footpath near a bushy area on the farm Ebenheizer in Dysselsdorp
near
the Olifantsrivier. Save for a long pants that she had on, the rest
of her body was naked. Her panty was found approximately
5 meters
along the footpath from where she lay. There was blood on the front
and back of the long pants near the thigh area. Blood
was also found
on the panty in the area of the vagina and rectum. Semen which was
analyzed and found to be that of the appellant
was found on the long
pants worn by the deceased. No semen was found in a vaginal specimen
which had been obtained during the postmortem
examination and none
was found on the panty of the deceased.
[10.]
The appellant, as indicated, had tendered a plea of guilty to
indecent assault and the murder of the deceased. His description
of
the events that led to the death of the complainant was set out in
his statement in terms of section 112
(2)
where in paragraph 7 he claimed;
"Hoewel
dit aanvanklik my bedoeling was om bloot huis toe te loop en dit nie
my aanvanklike intensie was nie, het ek op n stadium
besluit om haar
eenkant te kry met die doel om geslagsgemeenskap met haar te hou. Ek
het op 'n stadium, ek weet nie presies wanneer
nie, wel gese dat sy
saam met my moet kom en sy het my agtervolg".
[11.]
At paragraph 8 he explained;
"Ek
het saam met die ooriedene gestap in die rigting van die bosse by die
Olifantshvier soos blyk uit Bewysstuk "B"
hieronder gemeld.
Naby die rivier by die bosse het ek haar klein broekie en ook haar
sweetpakbroek afgetrek. Ek het ook haar bostuk,
ek kan nie onthou wat
dit was nie, uitgetrek. Ek wou met haar gemeenskap gehou het. Toe ek
egter haar broekie afgetrek het, het
ek gesien dat sy te klein was en
dat sy my hoegenaamd nie kan akkomodeer nie. Ek het toe besluit om
haar onsedelik aan te rand.
Ek het my regterwysvinger gebruik om haar
anale kanaal te penetreer. Dit kan wees dat ek ook in die proses ook
haar vaginaal kon
penetreer het met my wysvinger. Die ooriedene het
egter begin skreeu. Ek het gesien dat my hand vol bloed is en het
besef dat ek
haar beseer het. Ek het ook later gemerk dat my klere
vol bloed was." The statement further dealt with the appellant's
version
as to how he was alleged to have murdered the deceased. The
appellant had also admitted that the route which the court had
followed
during the inspection in loco from Dysselsdorp to the area
where the deceased had been found was the same as that he and the
deceased
had taken on the day of the incident. They had walked passed
the residence of Ms Erasmus on Dysselsweg and turned right into
Magerman
Street and proceeded into a T Junction with Belelie Street.
There they turned right and walked along a passage-way between the
Pinkster Kerk and houses and emerged into an open veld where they
followed a footpath and walked through a ditch and around a
sportsfield.
On the other side of the sportsfield they followed a
footpath through another ditch and proceeded to an open field. From
there
they walked along a footpath into a bushy area near the banks
of the Olifantsrivier where the incident occurred. The distance
covered
along the route was estimated as between 1 and 2 kilometres
from the residence of Ms Erasmus in Dysselsweg.
[12.]
Dr. Adam Johannes EJarnard a district surgeon from Oudtshoorn
conducted the post mortem examination on the 5
th
of February 2007 on the body of the deceased. Barnard had practised
as a medical practitioner for approximately 49 years of which
40
years was as a district surgeon. He concluded that the cause of death
was as a result of multiple injuries. He had observed
a tear of
approximately 2cm x 1cm in the area between the deceased's vagina and
her anus. He was of the view that the tear had
been caused by a blunt
instrument which had been forced into the entrance of the vagina but
without fully penetrating it. Based
on his many years of experience,
Barnard claimed that the tear appeared to be typical of an attempt at
a forceful insertion of
a penis into the relatively small vagina.
Barnard was cross-examined at length by the appellant's legal
representative as to whether
the tear could have been caused by the
use of a finger. In this regard the version of the appellant (as set
out in his plea explanation
of indecent assault) was put to Barnard.
He maintained though that it was improbable that a finger would have
caused the injury
but did not rule out the possibility thereof.
The
conviction of rape
[13.]
The court a quo found that the injuries to the vagina of the deceased
had been caused by a blunt instrument although only
through partial
penetration. The finding was based largely on the evidence of Barnard
and from the photographs taken at the post
mortem examination. The
question that arose was whether the only reasonable inference to be
drawn was that the appellant had attempted
to penetrate the vagina of
the deceased with his penis. Based on his experience and observations
Barnard held the very strong view
that the vaginal injuries sustained
by the complainant were caused as a result of an attempt to insert a
penis into the deceased's
vagina. He considered that the injury was
also consistent with the angle at which the attempted penetration of
the vagina had occurred.
The court a quo also took into account that
semen had been found on the long pants of the deceased although no
semen had been found
on the blood stained panty which had been found
almost 5m from the place where she lay. Although no semen was found
on the vaginal
smear the court was correctly of the view that for the
purposes of proving rape it was not necessary for the state to prove
that
there had been an ejaculation. In order to determine what in
fact occurred the court considered all the surrounding circumstances.
The court was mindful of the appellant's version as it appeared from
the plea explanation, in particular his claim that he had
taken the
deceased from Dysseldorp to have sexual intercourse with her. It
therefore considered it improbable in the circumstances
that the
appellant would not have attempted to have sexual intercourse with
her and that in doing so, had inflicted the injuries
to her vagina.
Moreover all of the evidence had to be considered in the context of
the appellant's election not to put his version
before the court by
way of testimony. In this regard the court appropriately referred to
the judgment in S v Boesak
2001 (1) SACR 11
at para 24 where it was
held;
"The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to
a decision to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain
silent in the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of
an explanation to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence
What is stated above is
consistent with the remarks of Madala J, writing for the Court, in
Osman and Another v Attorney-General,
Transvaal, 24_when he said the
following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case,
an accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution
of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution's
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
A destroy the fundamental nature of our adversarial
system of
criminal justice.'
[14.]
This view was also supported in S v Buda and Others
2004 (1) SACR 9
(T)
in which the following was stated;
"Yet
there are, as has been held by the Supreme Court of Appeal and the
Constitutional Court limits to this right. There comes
a stage in a
prosecution where an accused has a duty to tell her or his story or
to lead other evidence, which would show that,
for example, the
denial of participation is reasonably possibly true. The question is,
of course, whether that stage has been reached
in this case. "
[15] In the matter
of S v Chabalala
2003 (1) SACR 134
(SCA) at para 20,
Heher AJA
stated;
"As
was pointed out in S v Mthethwa
1972 (3) SA 766
(A) at 769D: Where .
. . there is direct prima facie evidence implicating the accused in
the commission of the offence, his failure
to give evidence, whatever
his reason may be for such failure, in general ipso facto tends to
strengthen the State case, because
there is nothing to gainsay it,
and therefore less reason for doubting its credibility or
reliability; see S v Nkombani and
Another
1963 (4) SA 877
(A) at
893G and E S v Snyman
1968 (2) SA 582
(A) at588G.'"
[16.]
In the circumstances, I am of the view that the court a quo correctly
found that the appellant having been faced with the
evidence of the
state called for a response on his part. In the absence of such
response the state was correctly found to have
proved beyond
reasonable doubt that appellant had raped the deceased.
The
conviction of abduction.
[17]
In S v Whitehead & Others
2008 (1) All SA 257
(SCA) at 268 Nafsa
JA (on behalf of the majority court) on the question of a duplication
of convictions stated that;
"[34]
The proper enquiry is whether in reality there has been a duplication
of convictions. In order to address this issue
it should be borne in
mind that a single act may have numerous criminally relevant
consequences and may give rise to numerous offences.
Robbery, for
example, may be committed by means of more than one act.
[35] There is no infallible
formula to determine whether or not, in any particular case, there
has been a duplication of convictions.
The various tests that have
been formulated by our courts (to which Combrinck JA refers) are not
rules of law, nor are they exhaustive.
They are simply useful
practical guides and in the ultimate instance, if these tests fail to
provide a satisfactory answer, the
matter is correctly left to the
common sense, wisdom, experience and sense of fairness of the court.
[36] It has always been accepted
that a logical point of departure is to consider the definitions of
those offences in regard to
which a possible duplication might have
taken place".
[18.]
The court a quo adopted a similar approach and considered each of the
definitial elements of the offence of abduction. The
authors C R
Snyman in Criminal Law ( 5
th
ed) at pages 405 to 407 and Jonathan Burchell, Principles of Criminal
Law (3
rd
Ed) pages 764 to 767 define the offence of abduction as the
"....unlawful and
intentional removal of an unmarried minor , male or female from the
control of his or her parent or guardian
and without the consent of
such parent or guardian, intending that he or she or somebody else
may marry or have sexual intercourse
with the minor"
[19.]
The arcane origins of the offence of abduction regarded minor females
as subservient in society largely subject to the authority
of their
parents and as economic assets. Snyman correctly holds the view that
although the offence is today largely limited in
application it
appropriately punishes "unscrupulous people who entice young
people away from their parental homes", in
order to have sexual
intercourse with them or oy placing them at the disposal of others
for such purposes. (Snyman at pages 403-404.)
In this context it is
important to note that the offence is committed against the parent or
the guardian of the child.
[20.]
In the application of the elements of the offence to the facts of the
matter it appears that the evidence established the
following: (a)
"the removal", the appellant had enticed the deceased with
the promise of an amount of money to accompany
him, (b) of an
"unmarried minor", the deceased was a 6 years old child,
(c) "from the control of her guardian",
her grandmother was
her guardian at the time of the incident and in whose care and
custody she had resided, (d) "with the
intention of having
sexual intercourse with the minor", which on the evidence
appears to have been the intention of the appellant
and based also on
his own statement in terms of the section 112, (e) "without the
consent of the guardian," clearly the
removal occurred without
the consent and knowledge of the deceased's grandmother, and (f)
"having acted unlawfully without
any justification for his
conduct" as is apparent from all of the evidence and on the
admissions made by the appellant himself.
[21.]
The court a quo also considered whether the requirement that the
removal had to be for a substantial period had been proved
and in
this regard took note of the route taken by the appellart and the
deceased and distance that they had walked, approximately
1,5km from
the residential area of Dysselsdorp to the banks of the
Olifantsrivier where the rape and murder occurred.
[22.]
The court a quo had also considered the various tests to be applied
with regard to the question of a duplication of convictions
and in
this regard referred to the decision of Comrie J in S v Davids
1998
(2) SACR 313
at 316 B-E;
"Over
the years various tests have been devised by the Courts, as aids to
the determination of what can be a very difficult
question. The case
law is collected and considered in Du Toit et al: Commentary on the
Criminal Procedure Act ad s 83. See too
the commentary on s 106(1).
Compare Hiemstra SA Strafproses 5th ed (per Kriegler) ad s 83 and s
106. The two principal tests may
be called the evidence test and the
intention test. They are not rules of law, nor are they exhaustive.
They are no more than useful
practical guides. R v Kuzwayo
1960 (1)
SA 340
(A). If these tests fail to provide a satisfactory answer,
then the matter is left to the wisdom, experience and sense of
fairness
of the Court. Indeed, the leading cases acknowledge that it
has not been possible to develop a comprehensive principle, or set of
principles, which will resolve all the many questions which may arise
in this grey area of the law. Gordon v R
1909 EDC 254
at 268; S v
Prins en 'n Ander
1977 (3) SA 807
(A) at 813; S v Christie
1982 (1)
SA 464
(A) at 485.
[23.]
In respect of "the evidence test" the factors to be
considered were "whether the evidence necessary to establish
the
commission of one crime involves proving the commission of another
crime". In respect of the "intention test"
the enquiry
related to "whether the two criminal acts are done with a single
intent and constitutes one continuous criminal
transaction."
[See S v Davids above]
[24.]
Ms Andrews who appea-ed on behalf of the appellant relied on the
"intention test" in support of the contention that
there
was an unreasonable duplication of convictions. She submitted that
the appellant only had a single and continuous intention
in respect
of the offences of abduction and the indecent assault/rape. The court
a quo in this regard referred to the decision
of Wessels J in S v
Grobbelaar
1996 (1) SA 507
(A) as a useful basis for the application
of the "intention test", which decision was also referred
to by Nafsa JA in
S v Whitehead (above) with approval at para 42;
"[42]
Another test which is sometimes applied by the courts in determining
whether there is a duplication of convictions is
the so-called
'intention test'. In terms of this test, if a person commits several
acts, each one of which could be a separate
offence on its own, but
they constitute a continuous transaction that is carried out with a
single intent, his or her conduct would
constitute only a single
offence. However, as pointed out by Wessels JA in Grobler (supra) at
523F - H:
'Insofar
as the 'single intent' and 'continuous transaction' test is
concerned, the distinction between motive and intent and the
different intents inherent in different offences must not be
overlooked . . . If a person breaks into a room intending to steal
from the occupiers and does so at one and the same time it might be
said that in substance he committed only one offence. Assuming
he
enters and steals the goods of the first person while he is asleep
and then proceeds to the next person who awakes after his
property
has been stolen. In order to silence this person the accused renders
him unconscious with a blow to the head. The third
person is
awakened, and the accused then forcibly deprives him of his goods
before departing. Common sense suggests that the accused
may properly
be convicted of housebreaking with intent to steal and theft, assault
and robbery".
[25.]
The court a quo was correctly of the view that unlike the offence of
rape, it is only necessary to prove the mere intention
to have sexual
intercourse for the offence of abduction. The court correctly found
that the offence of abduction had been completed
as soon as the
deceased had been removed by the appellant with the intention of
having sexual intercourse with her. Whether or
not sexual intercourse
in fact ensued was irrelevant. However, besides the actual removal,
sexual intercourse did in fact take
place with the rape of the
deceased. Such sexual intercourse was not an element of the offence
of abduction and the mere intention
of having sexual intercourse
without the consent of the deceased was not also an element of the
offence of rape. Moreover the abduction
was an offence against the
guardian of the deceased whereas the rape was perpetrated against the
deceased. The evidence therefore
proved two separate offences, one of
abduction and the other of rape. There was, therefore, in my view no
unreasonable duplication
of charges.
Sentence
[26.]
Ms Andrews submitted that the trial court committed various
irregularities in sentencing the appellant, such as over emphasizing
of the severity of the offences, a failure to accord sufficient
weight to the appellant's personal circumstances (he was a young
adult with no previous convictions for violent offences) and that the
court had over emphasized the deterrent value of the sentence.
She
further submitted that the court a quo had also failed to take into
account that the offences had been committed by the appellant
while
under the influence of alcohol and drugs.
[27.]
It is an oft stated principle that sentencing resides primarily in
the domain and at the discretion of the trial court.
In S
v Kibido
1998 (2) SACR 213
(SCA)
these
principles were expressed as follows;
"..............
it is trite law that the determination of a sentence in a criminal
matter
is pre-eminently a matter for the discretion of the trial Court. In
the exercise of that function the thai court had a wide
discretion in
(a) deciding which factors should be allowed to influence the court
in determining the measure of punishment and
(b) in determining the
value to attach to each factor taken into account A failure to take
certain factors into account or an improper
determination of the
value of such factors amounts to a misdirection, but only when the
dictates of justice carried clear conviction
that an error has been
committed in this regard.
[28.]
The appellant having been convicted of the offences of rape and
murder, to which the provisions of section 51(1) of Act 105
of 1997
read together with Part 1 of Schedule 2 (the Minimum Sentence
Legislation) applied, was faced with sentences of life imprisonment
unless substantial and compelling circumstances which justified the
imposition of a lesser sentence were found to be present. In
S v
Malgas 2001 (1) 469 (SCA), Marais JA held that the courts are
enjoined by the legislature not to deviate lightly from the
prescribed minimum sentence but when doing so the courts are required
to take into account all of the circumstances peculiar to
the
offence.
[29]
The appellant did not testify in mitigation of sentence. There was,
therefore, no explanation from the appellant as to the
reasons or
motivation for the commission of the offence of murder despite his
having initially tendered a plea of guilty thereto.
However a
relative of the appellant a Mr. Hansen Jordaan, a building contractor
(without being solicited) testified in respect
of sentence. Jordaan
claimed that his intention was not to testify in mitigation or in
aggravation of the sentence but that he
felt compelled to testify so
that the court could fully appreciate the appellant's background and
circumstances. The appellant's
parents had separated shortly after
his birth. He, together with a brother and two sisters were brought
up by their maternal grandparents.
It appears that the attention that
they received from the maternal grandparents was short-lived as the
appellant's cousins and
their mother also moved in with the
grandparents and according to Jordaan the grandparents shifted their
attention away from the
appellant and his siblings. The appellant had
progressed no further than grade 2 at school and out of embarrassment
left school
at the age of 14. He had since worked in the building
industry and according to Jordaan was both hardworking and a reliable
labourer.
He was regarded as exceptionally good with the use of his
hands, especially with paint work. The appellant had moved from one
residence
to another and at some stage had lived with the grandmother
of the deceased. He had worked for Jordaan and Jordaan related how
the appellant in a conversation with him about his behaviour burst
out into tears and claimed that nobody had cared for him. Jordaan
thereafter took the appellant under his wing and attempted, rather
unsuccessfully, to curb his abuse of and dependence on alcohol
and
drugs. Jordaan had also been troubled by the appellant's
inappropriate behaviour. He had, therefore, asked the appellant to
vacate his premises approximately a week prior to the incident. He
claimed that with hindsight he ought rather to have shown greater
insight into the appellant's problems and should have given him more
attention. The court was impressed with the evidence of Jordaan,
whose evidence largely formed the basis of the court's finding that
there were indeed substantial and compelling circumstances
that
enabled the court to deviate from the prescribed sentences of life
imprisonment. The court had also considered the role that
the
appellant's alcohol and drug abuse had played in the commission of
the offence and that the appellant was to be regarded as
a first
offender for having no history of violent crime. The appellant was
relatively young and the court was of the view that
he had the
potential to be rehabilitated in the light of the skills that he had
displayed as a worker in the building industry.
The court was
correctly of the view that insofar as the possibility existed that
the appellant could be rehabilitated it was in
the public interest
that he be given such an opportunity.
[30.]
In balancing the appellant's circumstances with that of the interests
of the community and the nature of the offence the court
was mindful
of the seriousness of the offences, their high prevalence and the
intervention by the legislature in prescribing minimum
sentences for
the offences. The gruesomeness of the murder of the deceased is
evident from the photographs and the medical report
which formed part
of the record. The deceased was both a vulnerable and defenseless six
year old child who endured a brutal attack
at the hands of the
appellant who callously left her for dead. The court was correctly of
the view that, had it only looked at
the nature and gruesomeness of
the offence together with the public interest, no substantial and
compelling circumstances would
have been found. However, on a proper
consideration of all the circumstances the court correctly found that
there were substantial
and compelling circumstances and appropriately
imposed a sentence of 25 years imprisonment for the murder.
[31.]
In the result I would uphold the conviction on the abduction and rape
charges as well as the sentence of 25 years imprisonment
which was
imposed for the offence of murder be confirmed.
I
accordingly propose that the following order be made:
(1.) That the
appeals against the convictions of abduction and rape be dismissed.
(2.)
That the convictions in respect of abduction and rape be confirmed.
(3.)
The appeal against sentence be dismissed and the sentence of 25
years on the count of murder be confirmed.
SALDANHA,
J
I agree.
VELDHUIZEN,
J
I agree and
it is so ordered.
CLEAVER,
J