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[2011] ZASCA 198
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S v Nitito (123/11) [2011] ZASCA 198 (23 November 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 123/11
In the matter between:
NDOYISIWE
PAULOS NOTITO
…................................................
Appellant
and
THE
STATE
…................................................................................
Respondent
Neutral
citation:
Notito v The State
(123/11)
[2011] ZASCA 198
(23
November 2011)
Coram
: MTHIYANE, MHLANTLA,
BOSIELO, SERITI JJA and MEER AJA
Heard
: 15 August 2011
Delivered
: 23 November
2011
Summary
: Criminal Law ─
rape ─ indecent assault ─ theft ─ appeal against
conviction ─ assessment of evidence
─ whether all
elements proved ─ guilt of appellant established beyond a
reasonable doubt ─ no reason for appeal
court to interfere ─
conviction confirmed.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from:
Free State
High Court (Bloemfontein) (Hancke J sitting as court of first
instance):
The appeal against the conviction
in respect of all counts is dismissed.
___________________________________________________________
JUDGMENT
MHLANTLA JA (MTHIYANE,
BOSIELO, SERITI JJA and MEER AJA
concurring):
[1] This is an appeal against
convictions on five counts of rape and one count each of indecent
assault and theft. The appellant
was arraigned in the Free State High
Court, Bloemfontein, sitting in Virginia circuit court (Hancke J),
where he faced a total
of 18 charges, made up as follows: rape
(counts 1 and 2); theft (count 3); rape (count 4); robbery with
aggravating circumstances
(count 5); rape (count 6); theft (count 7);
indecent assault (count 8); rape (count 9); theft (count 10);
indecent assault (count
11); rape (count 12); theft (count 13); rape
(count 14); theft (counts 15 and 16); indecent assault (count 17);
and theft (count
18).
[2] The incidents giving rise to
the convictions are alleged to have occurred in Welkom, Kroonstad and
Odendaalsrus in the Free
State province during a period of over two
years from May 2005 to August 2007. The State alleged that the
appellant adopted the
following modus operandi in each instance ─
he would target and approach any female walking alone in town and
inform her
that he was a prophet, that she had been bewitched and
that he could help her. In order to render such help he told each
victim
that he required hair from her head, armpit and the pubic
area. Once the woman succumbed to his request he would touch her
private
parts and then have sexual intercourse with her. In certain
instances the personal items of the victims were also stolen.
[3] During the trial, the State
tendered the evidence of the complainants, medical evidence where
available, as well as the evidence
pertaining to the arrest of the
appellant and the procedure at the identification parade. The
appellant testified in his defence.
At the end of the trial, Hancke J
convicted the appellant on seven counts of rape, eight counts of
theft and two counts of indecent
assault.
[4] The appellant was sentenced
to a total of 120 years’ imprisonment. The learned judge
considered the cumulative effect
of the sentence and with a view to
ameliorate any harshness, ordered that the appellant serve an
effective term of 28 years’
imprisonment. The court below
granted the appellant leave to appeal against his convictions in
respect of the rapes, that is, counts
1, 2, 6, 9 and 14 respectively;
count 3 for theft and count 17 on the indecent assault charge.
[5] The issue before this court
is whether the court below was correct in convicting the appellant
and in particular:
(a) whether the State had proved
its case on the charges of rape in respect of counts 1 and 2, and
whether the appellant had been
properly identified as the person who
committed the said offences;
(b) whether the charge of theft
in respect of count 3 had been proved; and
(c) whether tacit consent had
been given by the respective complainants through their conduct in
respect of the rape charges (counts
6, 9 and 14) and the indecent
assault charge (count 17).
[6] It must be borne in mind that
each case must be considered against the setting of its own facts and
circumstances. In this appeal,
the subjective state of mind of the
complainants is an important consideration in the assessment of the
entire evidence. It is
appropriate to start by briefly considering
the definition and the elements of the crime of rape and the general
principles applicable.
As the law then stood at the time of the
alleged commission of these offences common law rape was defined as
the unlawful and intentional
sexual intercourse by a male person with
a female without her consent.
1
Consent has to be free, voluntary
and consciously given in order to be valid. Where sexual intercourse
takes place with a woman
who is unconscious (as is alleged to have
occurred in counts 1 and 2 which are discussed fully below), there
can be no consent
as she is incapable of consenting. In
R
v K
1958 (3) SA 420
(A) the court had to deal with a question of consent. Schreiner JA
had occasion to remark that:
2
'The position is
more difficult in cases where the woman has been defrauded into
consenting and more difficult still when her mind
is affected not by
the accused’s threats or fraud but by a pre-existent
disability, such as that produced by mental disease,
hypnosis, drugs
or intoxicating liquor ... At the one end of the scale, if the woman
is insensible from any cause she clearly cannot
be a consenting
party, nor is it easy to see how the impression could arise that she
was consenting.'
[7] Similarly, consent is invalid
where it was obtained in a fraudulent manner. The authors, Jonathan
Burchell and John Milton,
3
state the following:
'There is no real
consent where the woman is mistaken as to the nature of the act to
which she consents. This so-called
error
in negotio
exists
where she fails to appreciate that what she is consenting to is
sexual intercourse and thinks that it is an act of a different
nature, such as a medical operation.
If she appreciates
that what the man is doing is sexual intercourse, but wrongly
supposes that it will have certain consequences,
the consent is real
even though the man may have deceived the woman, there is no rape.'
[8] The author Snyman,
4
states:
'For consent to
succeed as a defence, it must have been given consciously and
voluntarily, either expressly or tacitly, by a person
who has the
mental ability to understand what he or she is consenting to, and the
consent must be based on a true knowledge of
the material facts
relating to the intercourse.'
Snyman goes on to state that
consent obtained as a result of force, intimidation or threats of
harm does not constitute valid consent.
I agree with the above
authors' (Burchell & Milton and Snyman) exposition of the law on
the question of consent.
[9] Against this background, the
issues on appeal have to be decided with specific reference to the
facts before the court. It is
therefore necessary to analyse and
assess the evidence relevant to each count separately.
[10] I now proceed to deal with
the appeal against conviction on count 1 (the rape count). This
relates to an incident that occurred
in Welkom during May 2005 and
involved Ms Diemo Nkoata, who was at that time, 18 years old. She
testified that a certain man, whom
she identified as the appellant,
approached her. He told her that he was a prophet and informed her
that she had been bewitched.
He offered to reveal to her, through the
medium of a mirror, the identity of the witches and how they had
bewitched her. He also
informed her that there were worms inside her
body and that she would die within three days if no treatment was
administered to
her. He however, never explained the manner in which
such treatment would be provided. He took her to an old building and
instructed
her to undress and sit on a box. She partly removed her
trousers as well as her underwear, at which time the appellant went
into
another room. She noticed, upon his return, that his trousers
had been lowered to his knees.
[11] The complainant testified
that she thereafter lost consciousness. When she regained
consciousness she found the appellant standing
next to the door. He
informed her that he needed hair from her head, armpit and pubic
area. He thereupon removed the hair and placed
it in a piece of
toilet paper which he put inside his trouser pocket. He instructed
her to get dressed. At that point she discovered
that her private
parts were wet and felt pain inside and outside her vagina. Curiously
the appellant remarked: 'I felt you are
not that bad'. The
complainant did not comprehend what he meant by this.
[12] The complainant subsequently
reported the incident to the police after listening to a radio
bulletin about a man pretending
to be a prophet. She later attended
an identification parade where she positively identified the
appellant as the person who had
committed these offences against her.
[13] Testifying in his defence,
the appellant denied any involvement in the commission of the
offences in question. He told the
court that he did not know the
complainant and had no recollection of ever meeting her.
[14] The trial court rejected the
appellant’s version and accepted the complainant’s
evidence. The judge found that
the complainant had not given any
consent prior to losing consciousness and that she could not have
done so while in that state.
He was accordingly convicted of rape as
charged.
[15] Before us, counsel for the
appellant submitted that the court below erred in convicting the
appellant of rape. He contended
that the State had failed to prove
the act of sexual intercourse. He further argued that even if this
were proved, the commission
of the offence as well as the identity of
the perpetrator had not been established.
[16] This submission cannot be
sustained. It is so that there is no direct evidence concerning what
transpired when the complainant
was in a state of unconsciousness.
The question to be asked is what could have caused that pain and
brought about the wetness?
In
S
v Reddy
,
5
Zulman AJA said the following
regarding the assessment of circumstantial evidence:
'In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to subject
each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation given
by an accused is true. The
evidence needs to be considered in its totality. It is only then that
one can apply the oft-quoted
dictum
in
R
v Blom
1939
AD 188
at 202-3, where reference is made to two cardinal rules of
logic which cannot be ignored. These are, firstly, that the inference
sought to be drawn must be consistent with all the proved facts and,
secondly, the proved facts should be such "that they
exclude
every reasonable inference from them save the one sought to be
drawn".'
[17] In the present case, the
physical condition of the complainant as described above (the wetness
and the pain on her vagina)
indicates that sexual intercourse between
her and another person did place. The appellant was the only male
person in her immediate
vicinity. There is no evidence of any other
person being present. The only reasonable inference to be drawn is
that it is the appellant
who had sexual intercourse with the
complainant. There is nothing to suggest that the complainant
consented to sexual intercourse
at any stage. The remark by Schreiner
JA in
R v K
referred to in para 6 above, is apposite in this
case as the complainant had lost consciousness. It follows that the
State had
succeeded in proving the guilt of the appellant beyond a
reasonable doubt. The court below correctly convicted the appellant
of
raping the complainant, referred to in count 1.
[18] I turn now to consider the
appeal against conviction on counts 2 and 3 (the rape and theft
charges). Ms Malefu Kutu testified
that she was approached by the
appellant in Welkom on 5 June 2005, whilst on her way to a garage to
buy pre-paid electricity. The
appellant told her that he was a member
of St Paul's Church. He informed her about her personal problems with
her family, but she
ignored him. She entered the shop, bought the
electricity and left. The appellant caught up with her. He held a
white substance
in his hands and touched her on her shoulder
whereafter she lost consciousness.
[19] When she regained
consciousness, she was alone next to a railway line. Her trousers and
underwear had been lowered to her knees.
She discovered that her
private parts and underwear were wet and a dirty substance ─
liquid in form ─ came out. Her
handbag, containing her
cellphone, bank cards, electricity coupon and cash, had been stolen.
She surmised that the appellant had
taken these items as he was the
last person in her company before she lost consciousness. She
reported the incident to the police
and was examined by a
professional nurse. She also attended an identification parade where
she pointed out the appellant.
[20] Ms Ceba, a professional
nurse, testified that she had examined the complainant a day after
the incident. A gynaecological examination
revealed a profuse
yellowish discharge. According to Ms Ceba, her findings did not
exclude evidence of the alleged sexual assault.
[21] The appellant stated he had
no recollection of ever meeting the complainant. He denied the
allegations against him. The trial
court accepted that the State had
relied on circumstantial evidence. The judge found that the appellant
was the last person to
be seen in the company of the complainant and
whilst she was still in possession of her belongings. The judge
accordingly found
the appellant guilty as charged.
[22] The basis of the appeal
against conviction on these counts is that the trial court erred in
accepting the circumstantial evidence.
Counsel for the appellant
submitted that there was no evidence to establish that sexual
intercourse had taken place and if so,
that there was insufficient
evidence to link the appellant to the commission of these offences.
[23] In my view, this submission
is devoid of merit in view of the following factors: First, the
testimony of the nurse, Ms Ceba,
that evidence of sexual assault
could not be excluded, remained unchallenged. It is clear therefore
that someone had sexual intercourse
with the complainant whilst she
had lost consciousness. It is evident that the complainant did not
give consent prior to losing
consciousness nor could she have done so
once unconscious. It follows that the sexual act took place without
her consent. The only
issue that has to be established is the
identity of the perpetrator. Second, there is a striking similarity
to the facts of the
rapes in counts 1 and 2: the rapes were committed
within a period of four weeks of each other and in the same area,
namely Welkom.
The pattern of behaviour of the perpetrator is the
same: he approached a female person; informed her that she had been
bewitched;
offered to help her; and the female lost consciousness
whilst in the company of the perpetrator.
[24] In this appeal, there is no
evidence to suggest that another man could have had sexual
intercourse with the complainant and
no suggestion to that effect was
made during the trial. Similarly, there is no evidence to suggest
that any other person could
have committed the theft. There is thus
no reason for the court to speculate in that regard. In light of the
totality of the evidence,
the inference is irresistible that the
appellant committed the offences notwithstanding the lapse of time
and distance between
the two places. It follows that the court a quo
correctly convicted the appellant in respect of counts 2 and 3
respectively.
[25] I turn now to consider the
appeal against the convictions of rape in respect of counts 6, 9, and
14 as well as the indecent
assault conviction, being count 17. I
propose to deal with the issues raised on appeal together as the
defence raised relates to
all these counts. The main submission
advanced on behalf of the appellant was that the complainants in
these counts, through their
conduct, had consented to have sexual
intercourse with or to be touched on their private parts by the
appellant. Counsel for the
appellant further submitted that their
consent was real, despite any misrepresentation that may have
occurred. For this proposition
counsel relied on, inter alia,
R
v K
1966 (1) SA 366
(SRA);
R v Williams
1931 (1) PH H38 (E) and
S
v W
2004 (1) SACR 460
(C). In my view these decisions are of no assistance to the
appellant. I will show how the facts of these cases are
distinguishable
from the facts of this case in so far as they bear on
the question of consent.
[26] I must mention here that the
issue of consent as a defence in respect of the allegations in these
counts, was raised for the
first time on appeal, as the appellant had
throughout his trial presented a bare denial of the allegations.
Regarding the appellant’s
decision to raise this defence on
appeal, I accept that there is no onus on the appellant. However, one
would have expected him
to have pertinently raised this issue during
the trial. Be that as it may, my view is that since the outcome of
this appeal turns,
inter alia, on the element of consent, it will
therefore be necessary to consider the possibility of consent even
where the appellant
had denied sexual intercourse
.
6
[27] The appeal in respect of
count 6 (the rape charge), relates to an incident which occurred in
Odendaalsrus on 22 November 2005
involving Ms Seipati Sefothelo, a 13
year old girl. The complainant testified that the appellant
approached her and told her that
he was a prophet. He informed her
that she had been bewitched and offered to reveal the identity of the
culprits by using a mirror.
He led her to an area underneath a
bridge. He informed her that the people had taken hair from her head,
armpit and pubic hair.
He stated that he would have to extract hair
from these areas as well, to prevent the people from further
bewitching her. He then
removed hair from these areas, wrapped it in
a piece of paper and placed it underneath a stone.
[28] He instructed her to remove
her trousers and underwear and stated that he needed semen from a
male person because a 'tokoloshe'
had sexual intercourse with her
during the night. He told her to face the wall and bend down. She
complied, but realised that the
appellant had removed his trousers.
She sought an explanation for his actions, but the appellant did not
respond and proceeded
to have sexual intercourse with her. She felt
some pain and started crying, whereafter the appellant stopped. The
complainant testified
that she never consented to have sexual
intercourse with him. She told the court she resisted when he raped
her by pushing him
backwards. She was not aware that the appellant
would have sexual intercourse with her during the healing process.
She also identified
the appellant at an identification parade.
[29] As against the State's
version, the appellant denied any involvement in the commission of
the alleged offence. The trial court
rejected the appellant’s
version as false. The judge reasoned that the complainant’s
consent was not based on true
knowledge of the reasonable facts
relating to the intercourse. The court below accordingly convicted
the appellant of raping the
complainant.
[30] In this court, counsel for
the appellant, as I have already alluded, raised a new defence of
consent and relied on the cases
referred to in para 25 above. He
submitted that since the complainant was 13 years old, the court
below ought to have convicted
the appellant of contravening s
14(1)
(a)
of the Sexual Offences Act 23 of 1957 and not rape as
the complainant had consented to the sexual act through her conduct.
[31] In my judgment the
submission that the complainant had given consent falls to be
rejected. It is evident that the appellant
never explained to this
child that the 'treatment' would include having sexual intercourse
with him. In my view, the circumstances
in
R v K
1966 (1) SA
366
(SRA),
R v Williams
and
S v W
are different as the
complainants in those matters were aware that the act of sexual
intercourse would take place and had consented
thereto. It follows
that the appellant's reliance on those cases is misplaced. They
cannot assist the appellant with regard to
the facts relating to this
count as there was no prior consent when he had sexual intercourse
with the complainant. The misrepresentation
in this case related to
the act of sexual intercourse, and not the results of the treatment.
In the circumstances, it cannot be
said that the complainant
consented ─ tacitly or otherwise ─ to sexual intercourse.
Furthermore her evidence that she
resisted by pushing him clearly
militates against consent. It follows that the appellant was
correctly convicted of rape involving
the 13 year old girl.
[32] This brings me to the appeal
against the conviction of rape on count 9. The testimony of Ms
Florence Nkosi, a 19 year old student,
related to an incident that
took place in Welkom on 17 September 2006. She testified that she was
approached by a man, wearing
a badge of the Zion Christian Church.
She identified this person as the appellant. The man used the same
modus operandi as described
above. In this complainant’s case,
he told her that some eggs had been inserted inside her body and that
he could remove
them. She believed him, as she had previously been
informed about the same issue by another man. The appellant took an
amount of
R20 from her. He removed hair from her head, armpits and
pubic area. He initially inserted his finger into her vagina stating
that
he was trying to find the 'sperm'. Thereafter, he told her to
remove her trousers and underwear. She demanded an explanation for
this but he became aggressive and stated that she should not question
his motives if she needed his help.
[33] She eventually complied and
removed her clothing. He demonstrated to her the manner in which she
should sit and instructed
her to open her legs. She duly complied as
she believed that he was helping her. He instructed her to close her
eyes and pray.
She did as she was told, but when she opened her eyes,
she was surprised to see the appellant half-naked kneeling in front
of her.
He proceeded to have sexual intercourse with her and ordered
her not to make any noise as he was helping her. The complainant
testified
that she did not have an opportunity to prevent the
appellant. He also did not explain the manner in which some 'sperm'
would be
extracted from her. She further told the court that she had
screamed because she felt pain and tried to push him away. She had
not given him permission to have sexual intercourse with her and had
not expected him to do so. After the incident, the complainant
left
the park with the appellant. She also pointed out the appellant
during the identification parade.
[34] The appellant denied ever
meeting the complainant. He further denied the allegation of rape.
The court below rejected the appellant’s
version and convicted
him as charged.
[35] Counsel for the appellant
submitted that the complainant had through her conduct consented to
the sexual intercourse. This
submission cannot be sustained as the
appellant used the same modus operandi with this complainant as with
the others. He had ordered
her to sit like a person who was having
sexual intercourse and became aggressive when she refused to undress.
It is also clear
that the appellant never told her that sexual
intercourse would be part of the treatment. He instructed her to
close her eyes,
effectively taking her by surprise. That she screamed
and tried to push him away, clearly points to lack of consent. In the
circumstances,
the complainant did not give valid consent. In the
result the appellant's guilt in respect of count 9 was properly
established.
His appeal against this rape conviction cannot succeed.
[36] Regarding the appeal against
conviction of rape (count 14), Ms Selloane Makoro testified about an
incident which occurred in
Welkom on 26 April 2007, when she was aged
19. She told the court that the appellant had approached her as she
was leaving a doctor’s
office. He told her that he was a
prophet and that she was sick. He offered to help her and suggested
they proceed to a quiet place
where he would reveal everything to her
in a mirror. They walked together until they reached a spot with a
tree trunk where he
instructed her to pray. The appellant also
pointed out two other men in the nearby surroundings. He instructed
her to undress,
turn around and hold onto the tree trunk which she
did. He ordered her not to look at him. She felt him penetrating her.
She wanted
to scream for help but did not do so, as she was
frightened and under the impression that the two men she had seen
earlier and
who were still standing under a tree were the appellant's
friends. According to the complainant, the appellant did not explain
the manner in which he would help her. Nor did he tell her that the
healing process would entail having sexual intercourse with
her. She
stated that she would have declined his offer, had she been aware of
his motives. The appellant also took her wallet,
cellphone,
medication and left. The complainant pointed out the appellant during
the identification parade.
[37] The appellant denied the
allegations against him. He told the court that he saw the
complainant for the first time during the
identification parade. The
court below rejected the appellant’s version and convicted him
of rape.
[38] In this court, counsel
persisted in his argument that tacit consent had been given by the
complainant. In my view, this argument
is fallacious. It is evident
that the complainant was frightened and under the impression that the
two men she saw earlier, and
who were still in the vicinity,
cooperated with the appellant. It is clear that she submitted due to
fear. There can be no consent
under such circumstances. It follows
that the court below was correct in convicting the appellant of
raping the complainant.
[39] I am satisfied that in none
of the above cases of rape was the consent of each of the respective
complainants obtained.
[40] The final count relates to
conviction on the charge of indecent assault (count 17). The
testimony of Ms Gloria Vatsha related
to an incident which occurred
in Welkom on 26 August 2007. The appellant approached her and
introduced himself as a prophet. They
walked together and met an
unknown female. They went to a park where the appellant instructed
her to pray and left with the other
woman. The complainant stated
that she had some reservations about the appellant’s motives
and upon his return told him that
she was no longer interested.
[41] The appellant replied that
the rejection of his offer could lead to her death. She became
alarmed and decided to stay and accept
the appellant’s
assistance. He instructed her to hand her belongings to the other
female. She did so – assuming this
was for safekeeping. The
appellant and the complainant left the other woman, whereafter he
informed her about her problems. He
extracted some hair from her head
and armpit. He also informed her that she would not be able to
conceive as some of her eggs were
blocking her uterus and offered to
remove them. He instructed her to unzip her skirt, pull down her
underwear and open her legs.
He inserted his finger into her vagina
and also pulled out pubic hair. She testified that she was not
comfortable but did not stop
him because she was under the impression
that he was helping her.
[42] The appellant told the court
that he had no recollection of the incident. He averred that he would
never attack a stranger
in such a manner. The court below rejected
his version as false and convicted him.
[43] Before us, counsel
re-iterated in his submissions the defence of consent on this count
as well. This argument cannot prevail.
First, the test pertaining to
indecent assault is an objective one. It has nothing to do with
whether the complainant objected
or not. In
S
v F
,
7
the court held that regard must
be had to the expressed motive or intention of the accused as
conveyed to the complainant (whether
by words, conduct or
implication), in determining whether an assault amounted to an
indecent assault. It further held that the
particular part of the
body of the complainant at which the assault was directed, was not of
decisive importance in determining
the ‘indecency’ of the
assault. In
S v
Kock
,
8
Heher JA remarked that:
'
Indecent
assault
is
in
its
essence
an
assault
(
not
merely
an
act
)
which
is
by
its
nature
or
circumstances
of
an
indecent
character
.'
In this case, the appellant’s
conduct of inserting his finger into the complainant’s vagina
is objectively indecent.
[44] Second, it is evident that
the appellant never explained the manner in which the eggs would be
removed from the uterus and
therefore it was clear that the
complainant did not have full appreciation of what she was consenting
to. It is clear that consent
was secured by clandestine machinations
amounting to fraud. In the result, the appellant was correctly
convicted of indecent assault.
[45] In my judgment, whilst the
facts of the cases relied upon by the appellant correctly reflect the
state of the law in relation
to those cases, it however does not
assist the appellant on the facts of this appeal for the dicta were
premised on entirely different
contexts. In those cases, the
complainants had consented to sexual intercourse. Put differently,
they had a full appreciation of
what they were consenting to, that
is, that sexual intercourse would take place. That is not the case in
this appeal.
[46] In my view, on the totality
of the evidence tendered, the appellant’s version was correctly
rejected as not reasonably
possibly true. The complainants targeted
by the appellant were relatively young and disconcertingly gullible.
They appeared to
have had some personal problems and were thus taken
in by the appellant. The complainants referred to in counts 1 and 2
respectively
were in no position to consent as they were unconscious
when the acts of sexual intercourse occurred. Similarly, in respect
of
the complainants in counts 6, 9, 14 and 17 respectively, there was
no consent. There was duress, intimidation or fraud which nullified
valid consent. I agree with counsel for the State that the defence of
consent raised on appeal, was not a true defence, but a contrived
afterthought by the appellant in an attempt to escape liability for
his deeds. I am accordingly satisfied that the State has proved
the
guilt of the appellant beyond a reasonable doubt. There is thus no
basis to disturb the trial court's findings. It follows
that the
appeal must fail.
[47] For these reasons the appeal
against the conviction in respect of all counts is dismissed.
_______________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES
For Appellant: P W Nel
Instructed by Mr K Pretorius
Legal Aid Board
Bloemfontein
For Respondent: D W Bontes
Instructed by Mr Mthethwa
Director of Public Prosecutions
Bloemfontein
1
The
common law crime of rape has been repealed by the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
and
replaced with an expanded statutory crime of rape.
2
R
v K
1958 (3) SA 420
(A) at 421G-H.
3
Principles
of Criminal Law
3 ed (2005) at
710-711. See also C R Snyman
Criminal
Law
5 ed (2008) at 364;
S
v W
2004 (1) SACR 460
(C).
4
C
R Snyman
Criminal Law
5
ed (2008) at 364.
5
S
v Reddy
1996 (2) SACR 1
(A) at 8c-e.
6
See
S v York
2002 (1) SACR 111
(SCA) para 19.
7
S
v F
1982 (2) SA 580
(T).
8
S
v Kock
2003 (2) SACR 5
(SCA) para 9.