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[2022] ZAECGHC 8
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S v Hendricks (27/2021) [2022] ZAECGHC 8 (1 February 2022)
NOT
REPORTABLE
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, GRAHAMSTOWN)
Case no: 27/2021
Date heard:24 January 2022
Date
Delivered:01 February 2022
In
the matter between
THE
STATE
and
NICHOLAS
HENDRICKS
ACCUSED
JUDGMENT
GOVINDJEE,
J
Background
[1]
The
accused was charged with attempted murder and rape. It is alleged
that he unlawfully and intentionally attempted to kill M..M..
(the
complainant), by repeatedly hitting, kicking and stabbing her with a
knife and fork all over her body between 13 and 17 September
2020. On
17 September 2020 the accused allegedly raped the complainant, who
was 18 years of age at the time, by inserting the handle
of a mop
into her vagina without her consent and against her will.
[2]
The
accused pleaded guilty to attempted murder and not guilty to rape in
contravention of
s 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007
.
[1]
His guilty plea was not accepted by the state. Various admissions
were made in terms of
s 220
of the
Criminal Procedure Act, 1977
.
[2]
These include the contents of the J88 medical form completed by Mr
Fezile Mtini, the copies of the complainant’s hospital
files
and correct reflection of her injuries, treatment received and
physical condition.
[3]
The accused also accepts that a photograph album containing
photographs of the complainant taken immediately before the accused’s
arrest on 17 September 2020 correctly reflect the complainant, the
injuries he inflicted upon her and the interior of the flat
where she
lived at the time.
[3]
Those
injuries are serious in nature, reflecting the complainant in a badly
beaten state, with numerous stab wounds and punctured
skin. The
accused admits that he caused these injuries by assaulting the
complainant by hitting her with closed fists, trampling
her and
stabbing her multiple times with a fork and knife. He admits further
that he foresaw the possibility that the complainant
could die as a
result of the injuries she suffered at his hands, and that he
reconciled himself to this possibility. The key issue
in dispute is
the alleged rape of the complainant. The accused also denied
assaulting the complainant on more than one day.
The
evidence
[4]
The
complainant testified that she had been romantically involved with
the accused for approximately nine months. On 13 September
2020 she
accompanied the accused from Alexandria to purchase a television in
Gqeberha. Upon their return the accused noticed a
crack in the
television screen while at his shop. He took out his anger on the
complainant, also alleging that she was having affairs
with other
men, and assaulted her by hitting her face with his fists. The couple
returned to their flat in Jakiya Street. The accused
became angrier,
again assaulting the complainant with his fists, before stabbing her
with a knife and fork.
[5]
The
complainant’s face became swollen and she started to bleed. The
accused sprayed deodorant on the wounds and in her eyes.
The
complainant was unable to fight back given the accused’s
strength. He hit her harder with his fists, most blows being
directed
towards her face and some to her body. The floor of the flat was
covered with blood. The complainant was instructed to
clean the blood
and had difficulty doing so because her eyes were burning. The
accused also trampled on the complainant when she
fell.
[6]
At
some point the accused calmed down and the assault ceased. The
complainant spent the night at the flat. The accused left the
premises the following morning. When he returned, the accused
informed the complainant that she would be taken to bath at the
accused’s other place of residence, where he resided with his
wife and child. When they arrived, the complainant tripped and
fell,
resulting in another bout of anger and accusation about the
television and the alleged affairs. The accused again hit the
complainant with his fists, also on her shoulders where she had been
stabbed. She bled on the couch and was instructed by the accused
to
clean the blood.
[7]
A
friend of the accused, James, then arrived, before being sent out.
The complainant was again assaulted, being hit on her back
and chest,
pushed against the wall and thrown against the ground and against gym
equipment. The reason for the assault, according
to the complainant,
remained the same accusations of infidelity and the broken
television. James returned and the accused explained
that the
complainant had been unfaithful towards him. The accused then
assaulted the complainant by hitting her with a standard-looking
mop
with a wooden handle, approximately two centimetres in diameter, and
instructed her to clean the blood on the floor. The tip
of the mop
broke off during this assault. James sat by passively as the
complainant tried to clean the blood. The accused then
instructed the
complainant to take a bath.
[8]
While
in the bathroom, the accused took some water from a kettle, poured
this into a cup, and then onto a wound on the complainant’s
arm
causing a burn. That wound was still visible at the time of
testimony. Once she had bathed and dressed, the complainant
accompanied
the accused to his shop, where she fell asleep on the
couch. The accused instructed James to assist the complainant to wear
a spiderman
mask to cover her facial swelling and they proceeded to
return to the flat. The complainant felt dizzy and lay on a bed while
the
accused had a discussion with James. The accused left the
complainant with James for a few hours. James left for work at
daybreak,
by which time the accused had returned. He informed the
complainant that they were to go to Kenton-on-Sea, so that the
complainant
could be left with a friend of his, unknown to the
complainant.
[9]
Before
they arrived, the accused instructed the complainant to lie about
what had occurred. She was to explain that she had been
assaulted and
stabbed by two robbers and did so when the friend’s mother made
enquiries. That lady explained to the accused
that the complainant
was seriously injured and should be taken to the clinic. Accompanied
by his friend, the accused acceded. Once
there he repeated the story
to be told by the complainant. After she had been seen by a nurse at
the clinic, who recorded that
the complainant had been hurt during a
robbery, the accused offered to take her to hospital instead of her
travelling by ambulance.
He explained to the staff that she would be
transported quicker that way, and indeed transported her to Port
Alfred Hospital.
[10]
The
accused treated the complainant with some kindness once she had been
admitted to hospital, bringing her yoghurt and water. The
complainant
was placed under observation as an in-patient. The accused and his
friend were informed of this development. He instructed
the
complainant to advise the nurse that it was unnecessary for her to
remain in hospital and that he would obtain medication for
her from a
pharmacy. The complainant signed herself out of hospital.
[11]
In
the vehicle, the accused indicated that he had demonstrated kindness
thanks to his friend, who was dropped off at his home. The
accused
and complainant returned to their flat. The accused assisted by
bringing water and by taking the complainant to the toilet.
She
washed and lay on the bed while he went to the pharmacy to collect
some medication, which she was given to use. The accused
subsequently
advised the complainant that the landlady was looking for her, and
that she was to repeat the story about the robbery
to her.
[12]
On
Wednesday 16 September the accused specifically mentioned that he
believed the complainant had had an affair with somebody named
Chestan. She was to call Chestan and tell him she was expecting his
child. When she denied this she was again hit with fists and
trampled
on her legs and knees. The complainant contacted her best friend by
telephone to obtain Chestan’s number, at the
accused’s
insistence. The complainant was barely comprehensible given the
facial swelling. She eventually received Chestan’s
number and
called him based on the accused’s instructions. Chestan told
the complainant that they had never had a love relationship.
The
accused grabbed the phone, switched it off and assaulted the
complainant in a similar fashion. When the complainant was seated
on
the couch, the accused started stabbing her with the fork and knife
on her legs, face and head. He also made movements with
a knife on
her forehead. The complainant would later learn that the accused had
cut the profanity “POES” into her forehead.
[13]
The
complainant lost the feeling of pain and could not describe
everywhere she had been stabbed and slashed. At one point the
complainant
was stabbed in her thigh, the knife being pulled down her
leg while still inside her causing a tear. She was also stabbed above
both knees and in the chest. That evening the accused gave the
complainant some medication and she heard him talking on the
telephone
to some family members.
[14]
The
following morning the accused blamed the complainant for the police’s
arrival, with Chestan, the previous evening. He
again hit her with
his fists. The landlady entered the premises sometime later and the
accused fetched water from an outdoor tank.
The complainant used this
opportunity to tell the landlady that the accused was the cause of
her condition. The landlady departed,
the accused returned and
enquired as to whether the complainant had said anything about his
assault. She denied this and was hit
and then stabbed in the head
with the fork. The accused then tied the complainant’s hands
and said he would now do to her
what had been done to her friend, who
she knew had been raped a few years previously.
[15]
The
accused then removed the complainant’s trousers, took the
broken mop stick that was close by and pushed it into her vagina,
took it out and repeated this twice. The complainant, who was crying,
was told to keep quiet and untied. Her top was removed and
tied to
her head and she put on different pants. The landlady returned with
another lady and brought clean clothes, asking about
the cloth tied
to the complainant’s head. When this was untied, the landlady
saw the marks on the forehead and her friend
told the complainant
about the word that had been cut into her. The complainant was
advised that the police had been called and
would be there soon.
[16]
The
accused hit and stabbed the complainant again once the ladies had
departed, and boiled water in a kettle. He told the complainant
that
she would soon see her mother, who had died four months previously.
She understood this to mean that he was going to kill
her. The
accused went to fetch the kettle once the water had been boiled. A
knock on the door caused him to pick up the knife and
fork from the
floor and to throw this into a cupboard. Fortunately for the
complainant, the police had arrived.
[17]
A
policewoman instructed the accused to leave the premises so that they
could talk to the complainant alone. As she was unable to
speak
clearly because of the facial swelling, the landlady sat close to her
and communicated with the police. The complainant indicated
that the
accused had been the one to attack her and stab her. She was taken to
hospital in Port Alfred and admitted.
[18]
The
policewoman returned to take a statement from her the following day,
but she was unable to speak. The complainant conveyed,
for the first
time, that the mop handle had been inserted into her vagina, in the
presence of a nurse and doctor. She was subsequently
transferred to
Livingstone Hospital in Gqeberha and remained in hospital between 19
September until 2 October 2020, including time
undergoing an
operation. A variety of medical problems have followed: the
complainant is unable to stand for long periods of time,
which makes
it difficult for her to work, she experiences shortness of breath and
the scars where she was stabbed remain visible.
Given the publicity
that followed, the complainant also struggled emotionally and
testified that it had taken her a long time to
accept the scars on
her body and to being seen in public. She consulted a psychologist
once per week for between three to four
months, had to take
medication for sleep and to lower stress, and no longer has any
interest in men or relationships.
[19]
The
photograph book, containing pictures taken by the police, conveys the
complainant’s sorry condition, including the letters
incised
into her forehead, better than words can. They also show a great deal
of toilet paper, that the complainant had used to
clean her own
blood, inside the toilet.
[20]
The
accused admits the thrust of the assault and requested his counsel to
convey his apologies to the complainant during his cross-examination.
They had been in love and the assault had been based solely on his
disappointment at news of the complainant’s infidelity.
The
accused had even moved out of his marital home to be with the
complainant, who had wanted him to leave his wife. He had never
taken
the complainant to Gqeberha to buy the television. He had not
inserted any weapon or item into the complainant’s vagina.
The
version he put to the complainant denied the use of a fork in the
assault. The accused believed that the complainant had had
a
relationship with his friend, Stuart Meyer, as they had been seen
together at a tavern. On the version put, the first assault
took
place at his house and not at the shop and he had no recollection of
crafting any word on the complainant’s forehead.
[21]
The
complainant was unshaken during cross-examination. Her evidence was
clear and unequivocal and her responses measured. It was
difficult
for her to accept the accused’s apologies. But she confirmed
that they had been in love and that the accused had
supported her
after her mother’s funeral. She denied that the rumours about
her infidelity were true. When the accused told
James about her
affairs, she had denied it, resulting in the continued physical
assault. The accused barred the complainant from
visiting taverns
during their relationship, so she could not have been seen there. The
complainant confirmed that she had accompanied
the accused and two of
his friends to Gqeberha to buy the television, and that was part of
the reason for the initial assault,
which had taken place as she had
described.
[22]
Constable
Magorosi testified that she had received a complaint from Chestan on
16 September 2020. He had received a threatening
WhatsApp message
from the accused, alleging an affair with the complainant.
Accompanied by a colleague and Chestan, Magorosi visited
the accused
at his flat, who confirmed sending the message and promised to
refrain from doing so in future. The complainant was
visible in the
background and clearly asleep. The accused indicated that the
complainant had taken sleeping tablets.
[23]
A
complaint of assault was received the following day from the
complainant’s landlord. Magorosi returned to the accused’s
flat. He was standing in the doorway holding a kettle with boiling
water in his hands. The complainant was seated on the couch
with her
swollen face covered with a T-shirt. Whenever she tried to respond to
questions the accused spoke before her and she would
repeat the
answer. The message conveyed was that the complainant had been
robbed.
[24]
As a
result of his intervention, Magorosi requested a colleague to escort
the accused out of the flat so that she could question
the
complainant together with the landlady. The complainant had also
given some hand and eye signals suggesting to Magorosi that
the
accused should not be present. Once the accused had left, the
complainant indicated her assault at the hands of the accused,
adding
that he should not be told what she had said, as he had threatened to
kill her. The complainant was afraid of the accused
and was reluctant
to speak.
[25]
Magorosi
relayed what the complainant had told her at the time about her
assault, including having been stabbed with a knife and
fork. Those
items were found in the house, covered in dried blood. Her injuries
were clearly visible all over her body and once
the T-shirt bound on
her head was removed. The word ‘POES’ had been cut into
the skin on her forehead with a knife.
Magorosi had taken the
photographs contained in the album presented to court, including the
toilet paper with blood. The complainant
explained to her at the time
that the accused would clean her up after assaulting her. She had
difficulty communicating but was
audible. The accused was then
arrested.
[26]
Magorosi
visited the complainant in hospital on 18 September 2020 to take a
witness statement. The complainant was in pain, the
conversation was
short and a statement was not taken. The complainant did, however,
confirm that the accused had assaulted her,
adding that he had taken
a broken mop stick and inserted it into her vagina.
[27]
A
forensic nurse based at Dora Nginza Hospita, Fezile Mtini, testified
that he had examined the complainant on 22 September 2020
and
completed the ‘J 88 report on a medico-legal examination by a
health care practitioner’. She was heavily sedated
at the time
so that a patient history could not be obtained. He confirmed the
multiple lacerations covering the body from head
to toe, some of
which had been sutured.
[28]
The
gynaecological examination revealed nothing abnormal, but Mtini had
added on the report that this did not mean that no sexual
penetration
had occurred. He explained this comment during his testimony, which
was unchallenged. An object may have been inserted
into the
complainant’s vagina causing injury, but he had examined her
five days later. By that time, as with the inside of
a cheek,
swelling and bruising may have healed, if indeed those injuries were
present in the first place. The medication prescribed
to the
complainant would have assisted with any reduction in swelling in
this area.
[29]
Dr
van Jaarsveld testified that she worked in the Port Alfred Hospital
and treated the complainant on 19 September 2020. The complainant
was
struggling to breath, her blood levels were very low and she required
blood transfusion to remain alive. She was critically
ill, also
suffering from Crush Syndrome, which could result in acute renal
failure. Perusing the photographs, Van Jaarsveld described
the
various indications of bruising, blunt force trauma, puncture wounds
caused by the fork and lacerations caused by the knife
and confirmed
that the injuries depicted would have caused the Crush Syndrome. The
inevitable consequence, if untreated, was mortality
and the
complainant would not have survived had she not been brought to
hospital for treatment on 17 September 2020.
[30]
The
witness testified that the complainant’s wounds depicted in the
photographs were at different stages of healing, so that
it was clear
that the assault which caused her condition had occurred over a
period of a few days. The complainant also had a fractured
nose and
blood collection in her sinuses at the time of examination. She
required a further blood transfusion on 22 September and
was kept
sedated until 25 September 2020.
[31]
The
accused testified in his own defence. He was 27 years old, married
with two young children and self-employed. He had been involved
in a
love relationship with the complainant for eight to nine months. He
had heard rumours about the complainant’s infidelity
and
confronted the complainant in the presence of James at his home. She
had admitted sleeping with one of his best friends. This
caused the
accused to snap, and he hit and kicked the complainant in the
presence of James, who asked him to stop.
[32]
The
accused, complainant and James then went to the flat. The accused
questioned her about affairs with other men. The complainant
confessed to this, resulting in the accused stabbing her with a knife
and fork all over her body for a period of approximately
an hour and
a half. James then indicated that he did not want to remain involved,
and left the premises. The accused attended to
some of the
complainant’s injuries, providing bandages and pills, and
realised he had made a mistake.
[33]
The
assault had resulted from his anger and disappointment in the
complainant, whom he loved deeply, so much so that he was willing
to
leave his wife for her. The next day, the complainant was taken to
Kenton-on-Sea, and entered the clinic on her own. The accused
thought
that the complainant would explain what had happened; instead she
returned to indicate that she had said that she had been
robbed,
without the accused having instructed her to do so.
[34]
The
accused took the complainant to the Port Alfred Hospital. Her
condition was very serious. The accused stepped out to pick up
some
food for the complainant and she discharged herself in his absence.
They returned to the flat and James arrived. The accused
visited his
home, returning to the flat at midnight. The following day the
accused contacted Chestan, who was his customer, directly
by sending
him a threatening message. Magorosi’s version of the police
visit that followed this threat was confirmed.
[35]
The
complainant had repeated her lie about a robbery to the landlady, who
offered some assistance with a friend. The police arrived
while the
accused was boiling water for washing. They indicated that they had
received a complaint from the landlord about an assault
and were
invited by the accused to talk to the complainant, who was seated on
the couch. The complainant repeated her lie to the
police, the
accused assisting with communication because of the complainant’s
condition. The accused was asked to step outside
and was arrested
after a few minutes.
[36]
The
accused denied that he had raped the complainant with the broken mop
stick or any other object. He made the point that a broken
stick
could not have smooth edges on both sides. He had, however, contrary
to the version put to the complainant, used a knife
and fork during
his sustained assault. The accused testified that he never instructed
the complainant to convey a robbery in order
to cover his conduct. He
accepted that the injuries he had inflicted were serious and he felt
bad about this and tried to assist
her. He also disagreed with the
version that the assault had been motivated in part by the broken
television, as the complainant
had never accompanied him to Gqeberha
for that reason. The complainant may have been motivated to lie about
these aspects because
of her family’s dislike for the accused.
[37]
Under
cross-examination, the accused could not explain the reason for the
discrepancy between the version put on his behalf to the
complainant,
regarding the fork, and his own testimony. The complainant had
admitted to her affair with Meyer in front of James,
and he had only
slapped her several times and trampled her at his house, before they
moved to the flat. The accused could not explain
properly why the
complainant would then confess to affairs with other men, having just
been assaulted for an alleged affair with
Meyer. He indicated that he
had lied to her by promising that she would not be assaulted again.
Once she confirmed the other affairs,
he had punched, kicked and
stabbed her.
[38]
The
accused displayed emotion when explaining his love for the
complainant. He accepted that he could have broken off their
relationship
instead of attacking the complainant, but was emotional
and angry at the time. The two sets of assaults occurred on the same
day
after which the accused tried to obtain medical assistance for
the complainant. He could not explain the entries contained in the
Port Alfred Hospital folder for 15 and 17 September 2020, the
correctness of which had already been admitted. The former entries
reflect bruises to the face, three lacerations on the legs, facial
swelling and bruises on the hands. No mention was made at that
stage
of the word cut on the forehead or the voluminous other wounds she
eventually sustained. The accused could only suggest that
the T-shirt
wrapped around the head may have covered this and that the
examination had been brief. He was unable to explain why
the hospital
would selectively reflect only some of the complainant’s
injuries if these had all been incurred before 15 September
2020, and
denied assaulting her after that date.
[39]
The
accused maintained that he had taken the complainant to the nearest
facility, which was a clinic, and that she had lied of her
own free
will to protect him, also when she was taken to hospital and spoke to
the police. He was unable to explain why the complainant
had
subsequently identified him as the perpetrator and remained silent
when it was put to him that she was scared of him.
[40]
As to
the mop, the accused testified that, as far as he could recall, he
had not used a mop handle to penetrate the complainant.
He questioned
the presence of the mop at the flat, indicating that he understood
the complainant to have testified that he had
struck her with the mop
at his home. There was no mop at the flat at all and, on the
complainant’s version, he would have
had to travel with the mop
from his home, which was unlikely. It was alleged that the
complainant’s step-father, an investigating
officer in
Alexandria, may have influenced her to lie about the rape given his
dislike for the accused. The accused accepted that
the complainant
had not waited long to reveal the alleged rape, doing so when
questioned by police the day after his arrest. He
maintained that she
had access to a mobile phone and may have been influenced to allege
rape, which he denied.
[41]
When
pressed on the word on the forehead, the accused now indicated that,
having thought about the matter, he did recall cutting
the word into
the complainant’s skin out of anger and disappointment and
because he had snapped. He assumed this was inflicted
with the knife
and later admitted doing so to make the complainant feel pain,
accepting the gross connotation of the word. But
the accused would
not have penetrated the complainant with the mop handle, knowing that
he would sleep with her again in future.
He felt bad about the attack
and was prepared to hand himself over to the police. He had not done
so at the complainant’s
insistence that they would sort matters
out between themselves.
[42]
According
to the accused, the complainant had discharged herself because her
mother had passed away in the same hospital and she
would prefer to
die at home. His version was now that he had tried to convince her to
remain at the hospital for treatment and
that he had intended to take
her back on 16 September, before the flat owner’s intervention
the following day. The accused
had not handed himself over to police
because of the complainant’s insistence that they would resolve
matters themselves.
He was surprised when she eventually told the
truth.
[43]
When
confronted with the medical evidence suggesting a prolonged attack on
his part, the accused testified that he only recalled
assaulting the
complainant on one day. He could not explain how the pictures and
testimony revealed wounds at different stages
of healing, some wounds
containing fresh-looking blood and others with dried blood. He denied
boiling water in order to burn the
complainant and merely wanted to
wipe her with a facecloth.
Analysis
[44]
The
complainant was an excellent witness who provided a consistent and
accurate version of the events to which she had been subjected.
She
gave the impression of a person testifying honestly and openly about
her ordeal. She consistently denied having ever admitted
to any
affairs and there was no reason for her not to take the court into
her confidence if in fact she had been unfaithful to
the accused.
[45]
The
evidence shows that the accused was suspicious and jealous, and
responded to his own emotions by resorting to a tortuous, sustained
attack, intentionally designed to inflict harm that would ultimately
result in the complainant’s death. Despite admitting
the charge
of attempted murder, the accused demonstrated a selective
recollection of events, and had no qualms about modifying
his version
and the admissions he made to suit his own purposes. The accused, for
example, initially denied attacking the complainant
with a fork,
despite incontrovertible photographic evidence to the contrary, and
only vaguely recalled cutting the vulgar word
into the complainant’s
skin when pressed during cross-examination. He also suggested that at
one point he had only slapped
the complainant, rather than punching
her, when this was never put to her during cross-examination.
[46]
His
version that he only assaulted the complainant on a single day is
completely contrary to the available evidence, including the
complainant’s testimony and medical evidence confirming wounds
at different stages of healing. The medical evidence demonstrates
clearly that only some wounds and lacerations were visible on the
complainant’s body on 15 September 2020, with many more,
including the carved word, appearing two days later. To suggest that
the plethora of wounds could have been overlooked courtesy
of a
cursory examination on 15 September 2020 is fanciful at best. The
accused also maintained, improbably, that the complainant
admitted to
further affairs even when a first admission had resulted in her
assault at the hands of the accused.
[47]
It
must further be accepted that he repeatedly threatened the
complainant to lie about the cause of her wounds in order to protect
himself, taking no steps himself to confess his crimes and hoping
that the complainant would protect him, even while he accepted
that
she might die as a result of the injuries he had inflicted. His offer
to transport the complainant to the Port Alfred Hospital
from the
clinic as opposed to allowing her to travel by ambulance must be
viewed in that light. He had ample opportunity to assist
the
complainant on the road to recovery between 15 and 17 September 2020
if this was his true intention. Instead, he continued
with his
attack, which intensified when he suspected that the complainant had
told the truth about her attacker to her landlady.
She was naturally
scared of a person who proclaimed his love, only to repeatedly attack
her for no good reason. When it was safe
to do so, and once the
accused was out of earshot, she confirmed to the police that he had
caused her condition. Even then, it
was the evidence of Magorosi that
the complainant was scared of the accused becoming aware of her
disclosure and reluctant to speak.
[48]
A
person is guilty of attempting to commit a crime if, intending to
commit that crime, he unlawfully engages in conduct that is
not
merely preparatory but has reached at least the commencement of the
execution of the intended crime. ‘Intention’
in this
connection bears the same meaning as intention to commit the
completed crime, and
dolus
eventualis
is
therefore sufficient.
[4]
In
R
v Huebsch,
the
Appellate Division considered the level of proof required to support
a conviction for attempted murder. The court held that
there need not
be a purpose to kill proved as an actual fact and that it was
sufficient if there was an appreciation that there
was some risk to
life involved in the action contemplated, coupled with recklessness
as to whether or not the risk was fulfilled
in death.
[5]
[49]
Importantly,
there is no rule that prescribes that a person will be guilty of
attempt only if he has taken the last step possible
in the execution
of the crime.
[6]
A decision to kill another person slowly over a long period of time
may result in a finding of guilt of attempt even on the first
occasion when the person puts events into motion.
[7]
[50]
This
is precisely the position in this instance. The accused went beyond
the stage of preparation and proceeded to torture the complainant
by
hitting, kicking, tramping, stabbing, cutting and piercing her body
over the course of a few days. In doing so, he appreciated
the risk
to her life fully, and nevertheless persisted with his conduct,
reckless as to the outcome. It follows that the state
has proved
beyond reasonable doubt that the accused is guilty of the crime of
attempted murder.
[51]
The
state must also prove the charge of rape beyond reasonable doubt, and
if the accused’s version is reasonably possibly
true in
substance the court must decide the matter on the acceptance of that
version.
[8]
An accused’s version may be tested against the inherent
probabilities but cannot be rejected merely because it is improbable
but only if it is so improbable that it cannot reasonably possibly be
true.
[52]
In
this case the state relies on the evidence of the complainant as a
single witness in respect of the alleged rape. A court can
convict an
accused on the evidence of a single witness even if that witness’
evidence is unsatisfactory in some or other
respect.
[9]
S 208
of the CPA provides confirmation that conviction may follow on
the competent evidence of a single witness, who is expected to have
delivered credible testimony. It is the duty of a trial judge to
weigh this evidence, consider its merits and demerits and to then
decide whether it is trustworthy and whether, despite any
shortcomings or defects or contradictions in the testimony, the truth
has been told.
[10]
The exercise of caution must not be allowed to displace the exercise
of common sense.
[11]
[53]
In
addition to the significant merits of the complainant as a witness,
already identified, the inherent probabilities favour the
acceptance
of her version of events, also in respect of the rape. The accepted
sustained period of torture and attempted murder,
and the vicious
anger that resulted in the accused carving the word “POES”
into the complainant’s forehead, supports
the complainant’s
version that the accused’s rage translated into her unlawful
and intentional sexual penetration with
the handle of the mop without
her consent.
[54]
While
the complainant did not mention her rape when she was rescued at the
flat, she did so the following day at the earliest subsequent
opportunity. She consistently maintained that version in her
testimony, explaining that the mop handle had broken cleanly and was
inserted into her vagina on more than one occasion after the accused
had verbally threatened her with rape. Mtini’s evidence
in this
regard was neutral and I accept that any physical injuries suffered
by the complainant as a result of the rape had healed
by time he
examined her some five days later, even if there was any slight
unevenness in the end of the mop as a result of the
break. The
complainant had no reason to lie about the rape given the
overwhelming other evidence of the accused’s conduct,
and her
evidence is accepted as truthful. She certainly displayed no overt
hostility towards the accused and readily, and somewhat
forlornly,
conceded that it would be difficult to accept his apology. She
conceded her previous love for the accused and accepted
that he had
loved her. Her testimony was notably free of malice and was that of a
person speaking honestly.
[55]
By
contrast, he accused’s denial of rape is so improbable when
considered against the graphic background of the attempted
murder
that it must be rejected as being not reasonably possibly true. In
coming to this conclusion, I am unable to accept the
accused’s
version that the broken mop could not have made its way from his home
to the flat during the course of the prolonged
attack, given his
state of mind and determination to cause physical harm and pain to
the complainant to the point of killing her.
The overwhelming
probabilities favour the conclusion that he at some point took the
broken mop with him to the flat, using it to
cause further harm to
the complainant.
[56]
Considering
the evidence holistically, and bearing in mind that the complainant
was a single witness in this regard, I am satisfied
that the state
has proved that the accused is guilty of rape beyond reasonable doubt
and that this involved the infliction of grievous
bodily harm as
charged. This conclusion flows largely from the credible, consistent
and measured testimony of the complainant in
relation to her
experiences at the hands of the accused, including her rape. While
the accused continued to deny the rape with
the broken mop handle,
this denial must be rejected as being not reasonably possibly true on
a conspectus of all the evidence.
Order
[57]
I
make the following order:
a.
The
accused is found guilty on counts 1 and 2.
__________________
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the State: Adv
Obermeyer
Director of Public Prosecutions
Makhanda
046 602 3000
Attorney
for the Accused: Mr H Charles
Legal Aid of South Africa
Makhanda
046 622 9350
[1]
Act 32 of
2007.
[2]
Act 51 of
1977.
[3]
The
complainant was treated at Port Alfred Hospital on 15 September 2020
and between 17 and 19 September 2020. She was transferred
to
Livingstone Hospital on 19 September 2020 and treated there until 2
October 2020, when she was discharged.
[4]
CR Snyman
Criminal
Law (5
th
Ed)
(LexisNexis) (2008) 294.
[5]
R v
Huebsch
1953
(2) SA 561
(A) at 567.
[6]
Snyman
supra
at 287.
[7]
Ibid
.
[8]
S v
Shackell
2001
(2) SACR (SCA) at 194
g-i
.
[9]
S v Sauls
and Others
[1981]
4 All SA 182
(A) 185-187.
[10]
R v
Bellingham
1955
(2) SA 566
(A) at 569.
[11]
S v Sauls
supra
.