About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 24
|
|
Cornelissen v S (A110/2021) [2022] ZAFSHC 24 (10 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A110/2021
In
the matter between:
SOUL
CORNELISSEN
Appellant
and
THE STATE
Respondent
HEARD
ON:
31
JANUARY 2022
CORAM:
DANISO,
J et LITHEKO, AJ
JUDGMENT
BY:
LITHEKO, AJ
DELIVERED
ON:
10 FEBRUARY 2022
INTRODUCTION
[1]
The appellant appeals against his conviction on
one count of rape, one count of kidnapping and one count of assault
with intent
to do grevious bodily harm, as well as sentence of life
imprisonment imposed by the Regional Court in Bloemfontein.
The count of rape on which the appellant was convicted constituted a
contravention of section 3 read with other relevant
sections of the
Criminal Law Amendment Act (Sexual Offences and Related Matters), Act
32 of 2007 further read with Section 51(1)
and Schedule 2 of the
Criminal Law Amendment Act, 105 of 1997
.
[2]
The court
a quo
took the three convictions together for
purposes of sentence and on the 28
th
May 2018 sentenced
the appellant to life imprisonment.
[3]
The appellant has an automatic right of appeal in terms of
Section
309(1)(a)
of the
Criminal Procedure Act 51 of
1977
, as amended (the CPA) in view of the fact that he was sentenced
to life imprisonment.
[4]
The appeal against the convictions turns on the
evaluation of the evidence. The appellant had pleaded not
guilty and in his
plea explanation in terms of
Section 115
of the CPA
he claimed that the sexual intercourse with the complainant was
consensual and, regarding assault GBH, he denied all
allegations
against him. He did not tender any explanation in respect of
his plea of not guilty to kidnapping. There are
essentially two
mutually destructive versions of the events that unfolded between
Wednesday the 20
th
July 2016 and
Sunday the 24
th
July 2016.
THE
ISSUE
[5]
The issue in this appeal is whether the court
a
quo
was correct in accepting the
version of the state and rejecting that of the appellant.
THE FACTS
[6]
RAPE AND KIDNAPPING.
6.1 The
complainant, M[....] R[....] aged 22 years old at the time of the
trial, is the wife of the appellant
and they have three minor
children. However, at the time of the incident they had not
been staying together for a period
of about three weeks. The
complainant had a protection order against the appellant but the
terms thereof are of no relevance
in the appeal as he was not charged
with a contravention thereof.
6.2 On
the night of the 20
th
July 2016 the complainant was at her
parental home with her mother, who had been recently discharged from
hospital. They were sitting
by the fire outside when the appellant
arrived in possession of a 16 cm long panga. He demanded that
the complainant leave
with him and, when she refused, he threatened
to kill her and her family. He then pulled the complainant to his
place, hitting
her on her shoulders with the flat side of the panga
along the way. Upon entering in the appellant’s shack,
she sat
on a couch. There were altercations between them, when she
wanted to go and intimating that she does not want the appellant,
which
attracted the attention of the appellant’s mother and his
neighbour. The appellant dismissed them, ordering his mother not
to
interfere in his affairs. He got into bed and told the complainant to
join him, threatening to kill her if she does not do so
and she
complied with the order, sleeping in her T-shirt and a tight.
6.3
While they were sleeping the appellant tried to remove the
complainant’s tights. She
held the tights and a tussle
ensued resulting in the appellant removing one leg of the panty and
the tight when she got tired of
fighting. The appellant then had
sexual intercourse with her for 25 - 30 minutes without her consent.
In the morning, the appellant’s
mother, who stays on the same
premises in another shack, came into the appellant’s shack with
their youngest child.
The complainant reported to the
appellant’s mother that the appellant brought her there against
her will. She however
did not report to her about the rape
because the appellant’s mother was scared of the appellant.
From the 20
th
July 2016 until the 24
th
July
2016 the appellant kept her in his shack. She did not take a bath and
relieved herself in a bucket as the appellant did not
allow her to
leave.
6.4
On the night of Saturday the 23
rd
July 2016, while she was
sleeping, the appellant removed her tight and panty and raped her for
the second time. This time
she did not resist as she realised
that that would not help. After the second rape she told the
appellant that she was going to
report the matter. The
appellant asked for forgiveness for what he had done. She did
not sustain any injuries
as a result of the rapes.
[7]
ASSAULT GBH
7.1
On Sunday the 24
th
July 2016 the complainant’s brother Teboho
Raletele (the second state witness) arrived at around 10 a.m. looking
for the complainant.
The complainant informed him upon enquiry that
she had not reconciled with the appellant and that she wanted to go
back home.
When he told the complainant to get the child so
they could leave, the appellant would not have any of that and told
the complainant
she would leave on Monday when the appellant goes to
work. The second state witness’s plea for the appellant to
release the
complainant angered the appellant. He got hold of the
panga and attacked the second state witness therewith injuring him on
the
hand wherewith he blocked the panga. As the appellant was
attacking the second state witness, the latter reached for an axe
and
a spade behind the couch. They exited the shack and two friends
of the appellant who were outside reprimanded the appellant
not to
fight. The complainant then left with the second state
witness. Along the way the appellant came and the second
state
witness and appellant started throwing stones at each other.
The appellant was later joined by two friends, one of
whom had a
firearm. They changed direction and that was the last she saw of the
appellant and his friends.
7.2
Upon her arrival at home, the complainant changed her clothing and
took the protection order
in order to report the matter to the
Bloemspruit police as they did not come when she called them.
She reported to her mother
and her sister, Makatleho Linga (the
fourth state witness) about the rape and the kidnapping. At the
police station she laid
a charge of rape and kidnapping and she was
taken to National Hospital for examination and treatment.
[8]
The second state witness testified that the fourth
state witness informed him that on the 20
th
July 2016 the appellant took the complainant by
force and he was armed with a sword. He then went to the appellant’s
place
to look for the complainant as he also knew that they were no
longer in a relationship. On his arrival at appellant’s place
he met the appellant at the door, where he was directed by two people
he had met outside. Appellant allowed him to enter
to see the
complainant and upon entering he was hurt to discover that the
complainant was relieving herself in a 20 litre bucket
that was in
the shack. She confirmed that she is not in a relationship with
the appellant and that she wanted to go home.
When he related this to
the appellant, suggesting that he must leave with the complainant,
the appellant attacked him with a sword
which he blocked, sustaining
an open wound in the process on his right hand. He used his own
weapon, a stick to fend off
the attack and managed to leave with the
complainant. He later on, in the street, got involved in a
further fight with the
appellant, throwing stones at each other. The
appellant was together with other two people, one of whom had a toy
gun.
[9]
The state then called Zacharia Moletsane, the
appellant’s neighbour who confirmed that the appellant and the
complainant were
arguing and he asked the appellant not to fight.
The appellant advised that they were resolving their issues and
not fighting.
[10]
The fourth and last state witness to be called was
Makatleho Linga, the complainant’s sister. She testified that
on the 20
th
July
2016 at night while in bed she heard the appellant and the
complainant arguing. The appellant wanted the complainant to leave
with him and the complainant did not want to do so. The
appellant was holding a panga and when the complainant ran into the
house, the appellant pulled her out of the house. She did not
do anything, fearing that the appellant might hurt her with
the panga
that he had. On the 24
th
July 2016, she called and asked the second state
witness to go check the complainant. He went and later that day came
with the complainant.
She observed an injury on his hand and he
reported that he found the complainant in appalling conditions having
being confined
in a shack relieving herself in a pee pot. She
confirmed that the complainant reported that she was raped and the
appellant kept
her against her will and did not want her to leave.
The appellant was not even going to work in order to keep an eye on
her. She
was crying when she made the report. She was also afraid to
go alone to the police station to lay a charge. She confirmed that
the complainant and the appellant were always fighting.
[11]
The appellant testified in his defence and
confirmed his relationship with the complainant. On the day in
question at 12h00
the complainant called him and told him to come and
pick up their children when he knocks off. He indeed went to
the complainant’s
place, where he found her together with her
mother and her sister, the fourth state witness. He stood at
the gate and the
children went to him and he left with them. Later
the complainant called him to fetch her. He went to fetch the
complainant. He
asked what the complainant wanted from him as she had
obtained a protection order against him. The complainant apologised
to him,
ostensibly for having obtained a protection order against
him. He forgave her and they went to his place where the complainant
prepared food while he bathed and then watched TV. After eating
they slept and had consensual sexual intercourse. In
the
morning he went to work, leaving the complainant in the shack.
[12]
On Sunday the 24
th
July 2016, the complainant wanted them to have sex
but this did not materialise as they were disturbed by a knock on the
door. Later
the second state witness arrived and he wanted to see his
sister who, according to the appellant was inside the shack watching
TV. He later went into the house, after receiving a report from
a child that the complainant and the second state witness
were
arguing. He then went into the shack and upon asking the second state
witness what was happening, the latter hit him with
an open hand on
his face. He fell as a result of the assault and the second state
witness took out a panga but the appellant quickly
grabbed it and
they fought over it. In the process, the second state witness
injured his finger.
[13]
In cross-examination, unable to explain the reasons why his version
was not put to the witnesses, he
blamed his legal representative. The
material allegations that he was
questioned about
are the following:
13.1
why it was not put to the complainant that he went to her place of
residence at the complainant’s invitation
as she called him to
fetch the children,
13.2
why it was also not put to the complainant that he went twice to the
complainant’s home, and on the
second occasion he stood in the
street and called the complainant to come to him as she had obtained
a protection order against
him,
13.3
why it was not put to her that he confronted the complainant
with the protection order that she had
obtained against him and that
she apologised for doing so whereafter they left together,
13.4
why the allegations that they used a pee bucket was not disputed when
his testimony was that they used a
neighbour’s toilet.
13.5
why it was not put to the complainant that she initiated sexual
intercourse that never materialised as they
were disturbed by a knock
on the door,
13.6
why it was not put to her that they had consensual sexual intercourse
only on the 24th July 2016 and not
on the 24th July 2016,
13.6
why it was not put to the second state witness that he was the
initial aggressor who slapped the appellant
for no reason.
13.7
why it was put to the second state witness that he did not sustain
any injuries when he was at the place
of the appellant,
[14]
He denied that the complainant used a bucket to relieve herself. He
testified that they were using
a neighbour’s toilet and he was
surprised why the complainant was not confronted with this version.
He testified that he
does not know why the complainant laid charges
against him when sexual intercourse was consensual.
[15]
The appellant called his mother, Griet Cornelissen
who did not know anything and had never seen the complainant between
the 20
th
July
2016 and the 24
th
July
2016. Her testimony did not assist the court
a
quo
in any manner.
THE LEGAL POSITION
[16]
As indicated earlier, the question that needs to
be asked is whether the court
a quo
was correct in holding that the state had proved
the guilt of the appellant beyond a reasonable doubt.
[17]
It
is trite that the state has a duty to establish the guilt of the
appellant beyond a reasonable doubt and conversely, the appellant
is
entitled to his acquittal if there is a reasonable possibility that
he might be innocent.
[1]
[18]
A
court of appeal is not entitled to interfere with the trial court's
factual findings, which are presumed to be correct, in the
absence of
demonstrable, material misdirection and clearly erroneous findings on
the part of the trial court.
[2]
I
t
is not for the court of appeal to second-guess the well-reasoned
factual findings of the trial court.
[3]
[19]
The version of the appellant, as put to the complainant, was that she
was still staying with the complainant.
This was however contradicted
by the appellant when he testified that he went to the complainant’s
place to fetch the children
at the request of the complainant. He
returned there later, still at the complainant’s request, to
fetch her. They left together
after the complainant had apologised
for having obtained a protection order against him.
[20]
The appellant testified that he had sexual intercourse with the
complainant only once on the 20
th
July 2016 although it
was put to the complainant that the two incidents of sexual
intercourse that she testified about, were with
her consent. It
was also not put to the complainant that she wanted another session
of sex on Sunday which was interrupted
by a knock on the door.
[21]
The appellant confirms the version of the
complainant that upon his arrival at the complainant’s place he
found her in the
company of her mother and sister, the fourth state
witness. The latter’s evidence corroborated that of the
complainant that
she was removed from her place against her will and
that the appellant had a panga in his possession. This is
further consistent
with the report that was given to the second state
witness.
[22]
The complainant’s evidence that she was kept
against her will and provided with a bucket wherein to relieve
herself was corroborated
by the second state witness who testified
that he saw the 20 litre bucket wherein the complainant was relieving
herself and that
the condition that he found the complainant in hurt
him.
[23]
The complainant and the second state witness
corroborated each other regarding the events that took place after
the arrival of the
second state witness at the place of the
appellant. Firstly, the complainant intimated to him that she had
been kept against her
will and she was crying. Secondly, he saw the
20 litre bucket which the complainant used to relieve herself.
Thirdly, she witnessed
the assault on the second state witness that
resulted in an injury to his right hand. This was also
corroborated by the fourth
state witness although she could not
recollect which hand was injured.
[24]
The court
a quo
gave a detailed judgment. The Learned
Magistrate was mindful of the cautionary rules which applied to the
complainant’s
evidence as a single witness. He carefully
analysed her evidence and found no shortcomings therein. Counsel
for the
appellant conceded in her oral submissions that there were no
material contradictions in the complainant’s evidence. The
Learned Magistrate, in his application of the provisions of
section
208
of the CPA, found that she was a truthful, reliable and credible
witness. The Learned Magistrate concluded as follows,
“
The
court observed the complainant during her testimony. The court finds
no inherent improbabilities in her evidence. The background
leading
to the alleged rape was corroborated”.
[25]
The Learned Magistrate was also careful not to
accept the complainant’s evidence only at face value and
properly applied his
mind in order to exclude a possibility of
reliance on any fabrication on her part. In this regard he said, if
she was fabricating,
“
she could
have easily perhaps informed her brother when he arrived that they
have reconciled.”
This he
found to have been indicative of consistency on the part of the
complainant coupled with the uncontradicted evidence of
the
appellant’s neighbour, the third state witness, that he heard
the appellant and the complainant arguing and told the
appellant not
to fight.
[26]
The Learned Magistrate rejected the appellant’s
version as false beyond reasonable doubt in respect of all the
charges.
In his testimony the appellant came up with a totally
different version that was not put to the complainant or the second
state
witness in their cross-examination. As indicated, for this the
appellant blamed his legal representative.
[27]
The Learned Magistrate reasoned that in view of
the defence of consent that the appellant had pleaded, it was
imperative to put
to the complainant a version that on Sunday, the
interrupted sexual intercourse was initiated by the complainant.
He found,
correctly, that if the version of the appellant was the
truth in this regard, under no circumstances would she have cried
rape.
[28]
Regarding the assault GBH, the appellant had put
to the second state witness that he was not injured. However, in his
testimony
the appellant acknowledged the injury and gave an
explanation as to how the second state witness sustained same. This
sudden change
in the appellant’s version was indicative of
mendacity on his part, and points to this having been an attempt on
the appellant’s
part to mislead the court. Furthermore,
the appellant testified that the second state witness was the initial
aggressor by
slapping him when this version was not put to him in
cross-examination. The Learned Magistrate found that appellant
was not
a reliable witness as he changed his version. Although in his
cross-examination of the complainant the appellant denied that there
was any fight between him and the complainant that attracted the
attention of the third state witness, in his testimony, he admitted
this and sought to explain it by testifying that the argument was
simply about money that the complainant misused on liquor instead
of
obtaining an Identity Document.
[29]
The
Learned Magistrate was alive to the fact that he had to make a choice
between the two conflicting versions before him. In
making a
choice in favour of the complainant’s version he understood
that he had to accept that version in its entirety.
He referred
to the following summary of the cautionary rule in case of
S
v Sauls:
[4]
“
there
is no rule of thumb test or formula to apply when it comes to a
considerartion of the credibility of a single witness. The
trial
Judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether, despite the
fact that there
are shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told”
[30]
In
S
v Hadebe & Others,
[5]
,
Marais JA cited the following passage in
Motshephi
and Others v R
(1980-1984)
LAC 57
at
59 F-H
,
which I find apposite here:
"The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees."
[31]
The
Learned Magistrate took into consideration all the contradictions in
the testimony of the complainant as well as those in the
testimonies
of the complainant and other witnesses for the state and having done
so, found that her version was the truth.
He rejected the
appellant’s version as false beyond reasonable doubt. In my
view he was correct in doing so. The version
of the appellant was
riddled with improbabilities and the fact that he came up with a
version that was either not put to the state
witnesses, or was
different to that put to the state witnesses indicated that he was
fabricating a version to fit in with the state’s
case.
The law does not require the prosecution to close every possible
loophole, even more so those based on conjecture and
which is utterly
fanciful.
[6]
[32]
In conclusion the state proved beyond reasonable
doubt that the appellant took the rape complainant from her parental
place against
her will and kept her at his place thereby restricting
her freedom of movement. He had sexual intercourse with her on the
night
of the 20
th
July
2016 and again on the night of the 24
th
July 2016 without her consent. When the second
state witness tried to rescue the complainant, the appellant
assaulted him with a
panga with intent to cause him grievous bodily
harm. The appellant was aware of the unlawfulness of his conduct in
doing so and
intended the consequences of his actions. The appellant
was therefore correctly convicted of rape read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
,
kidnapping and assault GBH.
SENTENCE
[33]
The appellant’s ground whereupon the
sentence is challenged is that the court
a
quo
erred in its finding that there
existed no substantial and compelling circumstances warranting a
deviation from the minimum sentence
and that the sentence of life
imprisonment is shocking and inappropriate.
[34]
The rape in this matter falls within the ambit of
Section 51(1)
of the
Criminal Law Amendment Act
,
which prescribes a minimum sentence of life imprisonment in
circumstances where the victim was raped more than once, unless
there
are substantial and compelling circumstances that justify deviation
from the minimum prescribed sentence.
[35]
Counsel for the appellant directed our attention
to the personal circumstances of the appellant, which are that he was
27 years
old, a first offender, he has three minor children with the
complainant, aged 7 years, 4 years and 2 years old, he was gainfully
employed and the sole breadwinner of his family, his highest
educational qualification is standard 5 and that he spent a year and
10 months in custody awaiting finalisation of his trial. She
submitted that this factors, taken cumulatively, together with
the
fact that the complainant did not sustain any physical injuries,
constitute substantial and compelling circumstances.
[36]
It is necessary to assess whether that court
a
quo
misdirected itself in finding that
no substantial and compelling circumstances existed that warranted
imposition of a sentence lesser
than the prescribed life
imprisonment.
[37]
Counsel for the respondent argued that the
sentence of life imprisonment was appropriate as there were not
substantial and compelling
circumstances warranting a deviation
therefrom whereas for the appellant it was submitted that such
circumstances existed and that
an appropriate sentence would be
between 20 years and 22 years direct imprisonment.
[38]
Sentencing
is a matter within the discretion of the trial court. A court
of appeal can only interfere with the sentence imposed
if it is
demonstrated that the trial court misdirected itself to such an
extent that its decision on sentence is manifestly wrong
or is so
disproportionate or shocking that no reasonable court could have
imposed it.
[7]
[39]
Rape
has been described as a “horrifying crime and is a cruel and
selfish act in which the aggressor treats with utter contempt
the
dignity and feelings of the victim”.
[8]
In
the case of S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) the court said the
following of rape:
“
it
is a humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim”
[9]
[40]
In this case, the gravity of the rape perpetrated
upon the complainant is aggravated by the fact that the complainant
is his wife
who had deserted him and had obtained a protection order
against him owing to a history of violent treatment that she endured
at
the hands of the appellant. She was forcefully removed from her
parental home, where she had found refuge, in the presence of her
mother and sister, and dragged against her will, confined into a
shack in contravention of her constitutional right to freedom
of
movement, and raped on two occasions. The trial court described
this conduct, correctly so, as indicative of “masculine
display
of power”. In a further unwarranted display of power, the
appellant attacked the second state witness when he begged
for
permission to take the complainant home, thereby making himself
guilty of assault GBH. The complainant, although she had deserted
the
appellant, was entitled to a more humane treatment by the appellant
as the mother of his children but instead he lived up to
his ways
that led to the desertion in the first place.
[41]
The trial court took into account the personal
circumstances of the appellant, the nature and seriousness of the
offenses as well
as the interest of society. It was correct in
finding that the personal circumstances of the appellant, considering
the facts
of this case, did not constitute substantial and compelling
circumstances justifying deviation from the prescribed sentence of
life imprisonment. He kidnapped the complainant in the course
of contravening a protection order of which he had knowledge
and
practically kept her hostage in appalling conditions where she could
neither bath, change her clothing nor relieve herself
in descent
ablution facilities.
[42]
I am not persuaded that there is any basis whereupon it can be found
that the sentence imposed by the
trial court is disproportionate or
shocking and that no other court would have imposed such a sentence.
This court is, in my view,
not entitled to interfere with the
sentence imposed by the trial court.
[43]
There is one last issue that needs attention and that is the fact
that the trial court took all the
convictions together for purposes
of sentence. This approach is undesirable as the appellant ought to
have been punished separately
for each crime of which he was
convicted, moreso that the complainant in the rape and kidnapping
convictions is not the same as
the one in the assault GBH matter.
[10]
[44]
The proper approach would have been to sentence the appellant for
each conviction separately, which
is what we propose to do.
THE ORDER
[45]
In the light of the above I would make the following order:
1.
The appeal against conviction and sentence is
dismissed.
2.
The sentence of the court a quo is altered to read
as follows:
3.
In terms of section 276(1)(b) the accused is
sentenced as follows:
3.1
On count 1 of rape the accused is sentenced to
life imprisonment.
3.2
On count 2 of kidnapping the accused is sentenced
to 5 years imprisonment.
3.3
On count 3 of assault GBH the accused is sentenced
to 3 years imprisonment.
3.4
The sentences in count 2 and 3 are ordered to run
concurrently with the sentence on count 1, the effective sentence is
life imprisonment.
M.S.
LITHEKO, AJ
I
concur and it is so ordered
N.S.
DANISO, J
On
behalf of appellant:
Me
S. Kruger
Instructed
by:
Legal
Aid South Africa
Bloemfontein
On
behalf of respondent:
Adv.
A. Ferreira
Instructed
by:
Office
of the Director of Public Prosecutions
Bloemfontein
/roosthuizen
[1]
R
v Difford
1937 AD 370
at 373
[2]
S
v Hadebe and others
1997 (2) SACR 641
(SCA) at 645 E - F
[3]
Mashongwa
v PRASA
2016 (3) SA 528
(CC) at paragraph 45
[4]
1981
(3) SA 172 (A)
[5]
1998
(1) SACR 422
(SCA) at 426 E-H
[6]
S
v Sauls (supra) at 182 G - H
[7]
S
v Bogaards
2013 (1) SACR 1
(CC) at paragraph 41
[8]
N
v T
1994 (1) SA 862
(C) at 864 G
[9]
At
5 a - b
[10]
Jaars
and Another v S (A304/2016)[2018] ZAGPJHC 428 (8 June 2018) at
paragraph 109