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[2011] ZAGPPHC 205
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Mavundla v S (A683/10) [2011] ZAGPPHC 205; 2012 (1) SACR 548 (GNP) (23 September 2011)
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REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Date: 2011-09-23
Case Number:
A683/10
In the matter between:
DANIEL
MAVUNDLA
..........................................................................
Appellant
and
THE
STATE
....................................................................................
Respondent
JUDGMENT
SOUTHWOOD J
[1]
On
21 May 2010 the appellant was convicted of contravening section 3 of
the Sexual Offences Act 32 of 2007 (rape) in the Benoni
regional
court and on the same day was sentenced to life imprisonment in
accordance with section 51(1) and Schedule 2 of Part I
of the
Criminal Law Amendment Act 105 of 1997 (‘the Act’). The
sentence of life imprisonment could be imposed because
the appellant
was found to have raped the complainant more than once. The
appellant has an automatic right of appeal and appeals
only against
the sentence.
[2] The appellant
pleaded not guilty to the charge and spontaneously explained that he
is not guilty because he did not rape the
complainant: she
consented. The appellant’s attorney gave a lengthy plea
explanation, the essence of which is that the
complainant agreed to
have intercourse with him because she was grateful to him for
rescuing her from robbers (or as his attorney
put it: she returned
the favour).
[3] The appellant
formally admitted that on or about 1 September 2009 he had consensual
intercourse with the complainant (L F K)
on one occasion. As a
result of the plea explanation and the formal admission the issue to
be decided was whether the complainant
consented to have sexual
intercourse with the appellant or not.
[4] The appellant
was clearly guilty of rape. The evidence against him was
overwhelming and his defence of consent was so improbable
that it
could not be reasonably possibly true – see
S
v Shackell
2001
(2) SACR 185
(SCA)
para
30. The primary question to be answered in this appeal is whether
the evidence established that the appellant had raped the
complainant
more than once to bring the provisions of section 51(1) of the Act
into operation. In this regard the appellant’s
counsel raises
the following questions:
(1) Whether the
court
a
quo
misdirected
itself by finding that the complainant was raped multiple times;
(2) Whether the trial court
misdirected itself by finding that the appellant had the intention to
rape the complainant multiple
times;
(3) Whether the trial court
misdirected itself by finding that the minimum sentence applicable in
respect of the rape count was
life imprisonment and not 10 years
imprisonment.
It should be noted
that the court
a
quo
,
without referring to any authority or analysing the evidence,
pertinently found that the appellant raped the complainant more
than
once. As to the necessity for accurate understanding and careful
analysis of the evidence in rape cases see
S
v Vilakazi
2009
(1) SACR 552
(SCA)
para
21.
[5] The court
a
quo
correctly
accepted the evidence of the complainant. She was a very good
witness and she gave a logical and coherent description
of the
incident. It can be summarised as follows: After the appellant had
locked the door to his house he told the complainant
to take off all
her clothes which she did because of the knife the appellant was
holding. The appellant then ordered the complainant
to get onto the
bed where he inserted his penis into her vagina and had intercourse
with her until he ejaculated. After that the
appellant told the
complainant to climb off the bed and hold onto it. He then
penetrated her from behind and had intercourse with
her until he
ejaculated. (It is not clear how long this took.) After that the
appellant told the complainant to get onto the
bed again where the
appellant had intercourse with her once more while she was lying on
her back. The appellant ejaculated for
a third time. (Again it is
not clear how long this took). The appellant then fell asleep but
the complainant woke him and asked
for the key which he gave her.
The complainant dressed and went home.
[6] The complainant
was pertinently questioned about the intervals between the acts of
penetration. The complainant could not estimate
the time which
elapsed between each act and testified that, in effect, there was one
act of intercourse even though the appellant
ejaculated three times.
In answer to a question about the lapse of time after the intercourse
on the bed and the intercourse while
she was standing next to the bed
she replied –
‘What happened is after I got
off the bed he followed me and he penetrated me.’
In answer to the court’s
question regarding rest periods in between she replied:
‘No rest
periods because we were on (the) bed and we climbed off the bed and
he kept having intercourse with me.’
[7] The problem of
whether such evidence establishes that the complainant was raped more
than once was discussed in
S
v Blaauw
1999
(2) SACR 295
(W)
at
300a-g:
‘Mere and
repeated acts of penetration cannot without more, in my mind, be
equated with repeated and separated acts of rape.
A rapist who in
the course of raping his victim withdraws 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.
The complainant was asked to explain
how a single act of rape took about two hours and she then proceeded
to supply the details
I have quoted above. She was describing, in my
view, at least two separate acts of rape. The first was near the
bridge and it
was terminated by the accused’s ejaculation and
withdrawal. The second took place some undefined time later about 12
paces
away and a different position was initially adopted by the
accused. In my view the difference in time, place and position
between
these two incidents is sufficient for them to constitute two
separate acts of sexual intercourse and, hence, two separate acts of
rape. Whether or not the third act of penetration at the foot of the
tree constitutes a third rape or merely the continuation
of the
second rape, need not be decided. The accused raped the complainant
twice and the magistrate was correct in his view that
rape had been
committed in the circumstances described in Schedule 2 of Act 105 of
1997, namely, and I quote from that Schedule:
“In
circumstances where the victim was raped more than once.”’
[8] While I agree
with the approach, the facts of the present case are clearly
different from those in
Blaauw
.
In the present case the complainant was emphatic that there was no
interruption in the intercourse, the appellant simply shifted
the
position of the complainant. While ejaculation could determine the
end of intercourse, in this case that clearly did not happen.
There
is no suggestion that the intercourse ended and that the appellant
withdrew his penis twice and formed the intention to
rape the
complainant on two further occasions. This was one prolonged act of
intercourse.
[9] The court
a
quo
therefore
wrongly applied the provisions of section 51(1) of the Act and
sentenced the appellant as if he had raped the complainant
twice.
Section 51(2)(b) of the Act prescribes a minimum sentence of 10 years
imprisonment for a first offender who commits rape
and the question
should have been whether there were substantial and compelling
circumstances which would justify the imposition
of a sentence of
less than 10 years imprisonment or whether there were aggravating
circumstances which require that a sentence
heavier than the minimum
prescribed sentence be imposed.
[10] The following
factors are in the appellant’s favour: He was 29 years old at
the time and was a first offender. In view
of these facts he is
probably capable of rehabilitation. He was a hawker and earned about
R40 a day selling snacks and sweets.
He was not married but he had a
child of 7 years old. Apart from the injuries sustained by the
complainant to her private parts
the appellant did not cause the
complainant physical injury. The appellant was in custody awaiting
trial for 8
1
/
2
months.
[11] The following factors are
aggravating:
(1) The appellant used a knife to
ensure that the complainant did his bidding. Because of the knife
the complainant complied with
every direction which he gave her;
(2) The intercourse
was prolonged and painful. According to Sister Gomes who examined
the complainant after the incident and completed
the J88 she found
the following: swelling of the urethral orifice, the para-urethral
folds, the labia majora (the lower segment),
the labia minora, the
posterior fourchette was red and there were small tears at 5-6
o’clock with increased friability and
the fossa navicularis was
swollen and red; the hymen was fibriated, it was very swollen and
there were fresh tears at 5 o’clock;
the complainant’s
vagina would not admit any fingers, it was so swollen that it was
closed and it could not be examined.
Based on these findings Sister
Gomes reached the following conclusions:
1. The lady has lower abdominal pain
form the violent penetration into the vagina;
2. The urethral area is swollen and
red from first contact penal penetration;
3. There is a fresh tear in the very
swollen hymen at 5 o’clock.
4. The hymen is so swollen that
vaginal examination could not take place;
5. The posteria fourchette has
numerous small tears from repeated attempts to penetrate the vagina
when lady pulling away; and
6. Definite forced penetration with
an erect penis.
Sister Gomes
confirmed these
findings and conclusions when she testified.
(3) The appellant
refused to wear a condom when requested by the complainant to do so:
this clearly exposed the complainant to
the risk of sexually
transmitted disease and/or infection from AIDS; and
(4) The complainant
was severely traumatised. At about 08h00 on 31 August 2009 her
boyfriend noticed that she was shaking, trembling
and scared and at
14h00 Sister Gomes recorded that she was very emotional.
[12]
In
my view the aggravating facts justify a sentence heavier than the
prescribed minimum sentence. I regard 12 years imprisonment
as
appropriate in all the circumstances. I have made allowance for the
period of 8
1
/
2
months while the appellant was in custody awaiting trial.
[13] I make the following order:
I The appeal
against sentence is upheld and the sentence of life imprisonment is
set aside and replaced with a sentence of 12 years
imprisonment;
II In terms of section 282 of Act 51
of 1977 it is ordered that the substituted sentence be deemed to have
been imposed on 21 May
2010.
_______________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT
I agree
_______________________
F.G. PRELLER
JUDGE OF THE HIGH COURT
CASE NO:
A683/10
HEARD
ON: 23 September 2011
FOR
THE APPELLANT: MR. M.G. BOTHA
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. S.A. SENOGE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 23 September 2011