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[2022] ZANCHC 32
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Tuku v S (CA&R16/2020) [2022] ZANCHC 32 (20 May 2022)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: CA & R 16/2020
Heard
on: 14/02/2022
Delivered
on: 20/05/2022
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
GENERICO
TUKU
Appellant
and
THE
STATE
Respondent
Quorum:
Mamosebo ADJP et Ramaepadi AJ
JUDGMENT
ON APPEAL
MAMOSEBO
ADJP
[1]
Notwithstanding his plea of not guilty, the Regional Court President,
Mr K Nqadala, convicted the appellant and two other co-accused
who
are not party to this appeal, in the Regional Court for the Northern
Cape Region held at Hopetown. On 02 December 2019, the
appellant was
found guilty on one count of rape
[1]
read with the provisions of s 51(1) of the Criminal Law Amendment
Act
[2]
and was sentenced on 12
December 2019 to life imprisonment. The appeal is against both
conviction and sentence, which he
exercised in terms of his automatic
right of appeal. It bears recording that accused 2 (Meldon Pieterson)
and accused 4 (Vernon
Philiso) were also convicted of rape but did
not appeal. Accused 3 was found not guilty and discharged.
[2] The appeal is
premised on the grounds that the trial court erred:
2.1 In
accepting as truthful the evidence of Mr R[....] M[....], a single
witness, without applying the cautionary
rule and despite the
contradictions and inconsistencies;
2.2 In
finding that the State had proved the case against the appellant
beyond reasonable doubt;
2.3 In
finding that the complainant was not able to give valid consent to
sexual intercourse;
2.4
Misdirected itself in finding that there are no substantial and
compelling circumstances to deviate from the
prescribed minimum
sentence of life imprisonment; and
2.5 In
finding that a direct life imprisonment sentence was an appropriate
sentence under the circumstances.
[3] The appellant was
legally represented by Ms Madelein Gerrits on
judicare
throughout
the proceedings before the trial court. He elected not to
disclose the basis of his defence by exercising his constitutional
right to remain silent.
[4]
The complainant, Ms M[….] F[….], died from natural
causes on 04 October 2016 before the trial commenced.
[3]
However, before her passing she had deposed to an affidavit in
which she laid criminal charges against the appellant and
his
co-perpetrators. Her affidavit was ruled inadmissible by the
trial court, regard being had to s 3 of the Law of Evidence
Amendment
Act
[4]
, dealing with hearsay
evidence.
[5] The following
documents were handed in as exhibits by agreement between the
parties: The report by the medical practitioner,
the J88 form;
the statement by the forensic analyst and the reporting officer of
the Forensic Science Laboratory of the South African
Police Service
in terms of s 212 of the Criminal Procedure Act (the CPA); Ms
Michelle Baard, who subsequently gave oral evidence
in court; as well
as the appellant’s buccal forms exhibits “E1” and
“E2”.
[6] The subject of
contention against the State’s case is the evidence of Mr
R[....] R[....] M[....] (M[....]), the single
witness, whose
testimony was attacked on the ground that the trial court failed to
heed the cautionary rule when assessing his
evidence, which is along
these lines: M[....] did not remember the date of the incident
except that it happened on a Saturday
morning. The charge sheet
reflected it occurred on or about 25 July 2015 between 03:00 and
04:00 at or near Hopetown. The
defence does not contest the
date and it has become a
non sequitur.
[7] M[....] testified
that he was in the company of the complainant and Ms J[….]
T[….]. They had been at Mama Lloyd’s
Tavern where they
had consumed intoxicating liquor. He and the complainant were
drunk. The complainant was almost in a paralytic
state of
intoxication. She had slumped on the table at the tavern and he had
to support her all the way home.
[8] J[….] left him
and the complainant and went home. Meintjies felt a sense of duty to
struggle with the complainant and
get her home safely. Four men
accosted them. It was during the morning of 25 July 2015
between 03:00 and 04:00. He
knew three of them, one of whom was
the complainant’s colleague, who is also the appellant.
Visibility at this scene
(“Scene 1”) was good,
supplied by some electric street light, hence his ability to
positively identify the attackers
that he knew.
[9] The attackers
demanded with menaces that he leave them with the complainant. He
resisted because he realised that foul
play was brewing. The
men pelted him with an assortment of missiles putting him to flight.
He made a beeline to the
complainant’s mother’s
home and reported the incident to her. She is Ms K[….]
F[….]. The two of
them went to “Scene 1” but the
men and the complainant had disappeared. A search for them yielded no
results.
[10] The police were
summoned to S[….] High School (“Scene 2”) later
the very morning of 25 July 2015. Sgt Justine
Nqanjiso and Cst Anne
Carol Persent had reported for duty at 07:00. They were on patrol
duty when they received a telephonic complaint
from an informant
whose name, unfortunately, neither appears on record, nor did the
person testify. Be that as it may, they proceeded
to Scene 2 where
they found the complainant.
[11] According to them,
the complainant was in a sorry state. She was clearly
traumatised and very emotional. Her clothes
were dishevelled
and soiled. The back of her head was similarly soiled. She
had sustained injuries to her face which
was swollen. The
injuries were indicative of blunt trauma. Her upper lip was
also swollen and bruised. Whereas
the evidence shows that she
had earlier worn shoes the police found her barefoot. She was
naked on her nether region. Her
pair of panties were discovered
a distance away from her at Scene 2.
[12] The police escorted
the complainant to Hopetown Wege Hospital
for
examination by Dr Thrista Strauss who completed a
J88 medical
examination form. Dr Strauss holds an MBCHB from the University
of the Free State. She has 15 years practicing
medicine. She
noticed the following: blunt trauma to the face and that she
was traumatised and emotional. The
gynaecological examination
did not display any tears or bleeding, bruises or injuries. The
doctor, however, observed extensive
genital warts. She recorded
on the J88 form that there was no evidence of forced penetration.
She, nevertheless, took
samples from the vulva, vagina and
cervix. The complainant’s pair of panties and a black
tight were also sent to the
laboratory as part of the exhibits.
[13] The investigating
officer, Cst Frans Louw, collected and packaged the condoms and the
condom wrappers found at Scene 2, (S[….]
High School). He
also pointed the scene out to Cst. Modisaotsile Piet Tshabadira,
attached to the Local Criminal Record Centre,
who compiled a photo
album of the scene. The complainant (deceased) also made
certain pointings out to Cst. Tshabadira.
[14] W/O Siphosethu
Nyathi, attached to the Forensic Science Laboratory in Cape Town, is
in possession of BSc Honours and Masters
Degrees with majors in human
biology and physiology and herbal science, obtained from the
University of the Western Cape. Her
studies are relevant to DNA
analysis. She has 13 years’ experience in biological
science. She identified all
the exhibits that she received for
analysis. By virtue of also having received information that
the case involved rape she
conducted specific tests involving the
testing for semen. She examined the vaginal swab, the cervix
swab and the vulva swab.
All these swabs had the presence of
semen. She further examined the pair of panties, which had no
presence of semen
and blood. This is understandable as the
underwear must have been undressed before the sexual assault, which
is not in doubt.
[15] There were also skin
cells collected at the crime scene, Scene 2. There were
stockings with an indication of possible
semen but no blood.
W/O Nyathi also examined the condoms, some with the presence of semen
and others without. Condom
wrappers were also examined. Her
findings were compiled in a table format. The appellant was
positively linked to the
sexual activity through this DNA genetic
material.
[16] Undeniably, the
deceased/complainant reported a crime of rape as a result of which a
police docket was registered. Notwithstanding
that the trial
court ruled her statement inadmissible it remains a fact that the
police investigated a rape complaint and that
there was transfer of
the appellant’s semen onto the genitals of the complainant.
[17] The State also
called members of the South African Police Service who took buccal
samples of the four male persons to testify.
The investigating
officer, Cst Louw, also testified. Their evidence is
uncontroverted.
The
appellant’s case and defence
[18] The appellant did
not disclose the basis of his defence; neither did he proffer any
plea explanation. In other words,
as already alluded to, he
exercised his constitutional right to remain silent. Ms Gerrits’
cross-examination of M[....] commences
at p312 (21) to p 323(21).
However, the only indication of appellant’s line of defence
appears at p323 (9) to (11) where
the following is recorded:
“
Ms
Gerrits
: Mr
Tuku said he did not see you that night.
Mr
M[....]:
He will say that
of course.
”
[19] The only inference
from this so-called line of defence is that the appellant seems to
intimate that he was at Mama Lloyd’s
Tavern at some stage but
did not see M[....] there. He is as silent as the grave about
what may have unfolded at Scene 1
where the attack on M[....] took
place. He also does not suggest anything concerning his
co-accused, whether at Scene 1 or
Scene 2. He further does not
suggest anything on whether he had sexual intercourse with the
complainant with or without her
consent.
[20] The appellant’s
counsel sought to persuade this court that the trial court overlooked
the contradictions and the inconsistencies
by M[....] in assessing
his evidence as a single witness. First, an attack was levelled
at the discrepancy between his evidence
in court and what he had said
to the police when making a statement regarding his attackers. While
in court, M[....] said
the appellant and his co-perpetrators attacked
him with a bottle and stones. However, in his statement to the police
he said it
was one of appellant’s friends who did so. In
his evidence-in-chief, he said when he fled the complainant just
stood
there because they forced her to be there but she did not want
to leave with them. Further, and to the contrary, during
cross-examination
by accused 3, he testified that the complainant
said they should leave her and M[....] alone. M[....] is also
criticised
for omitting to mention in his police statement that the
complainant was pulled away and only brought it out during
cross-examination.
[21]
Mr Cloete, arguing for the State, and invoking
S
v Bruiners en ‘n Ander
[5]
and
S
v Mafaladiso en Andere
[6]
submitted
that the criticism on the stated contradictions levelled against the
evidence of M[....] are trivial and not material.
I agree.
This is so because the evidence is clear that he was put to
this flight with an assortment of missiles. He
had no other
reason or choice but to leave the complainant, whom he cared for so
much, in the hands of hostile men. Consistent
with this conduct
is that he immediately reported the attack and the danger, which the
complainant was facing, to her mother. There
is no gainsaying
evidence that the pair risked their safety in a vain attempt to
rescue the complainant. The gang had clearly
abducted the
complainant from Scene 1 to Scene 2 where she was ravaged and left
helpless.
[22] I am inclined to
accept M[....]’ evidence that he was attacked with a half-empty
beer bottle because he maintains that
he had been drinking beer out
of it but had put it down when he helped the complainant to her
feet. One of the assailants
picked it up, attacked him with it,
and even hurled it at him.
[23]
Ms Gerrits in her cross-examination was deliberately non-committal.
This evidently has to do with the instructions of
her client to
her. The Constitutional Court in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[7]
made
the following instructive remarks pertaining to the cross-examination
of witnesses:
“
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general
rule it is
essential, when it is intended to suggest that a witness is not
speaking the truth on a particular point, to direct
the witness’
attention to the fact by questions put in cross-examination showing
that the imputation is intended to be made
and to afford the witness
an opportunity, while still in the witness box, of giving any
explanation open to the witness and of
defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness
is entitled to
assume that the unchallenged witnesses’ testimony is accepted
as correct. This rule was enunciated by
the House of Lords in
Browne v Dunn[ (1893) 6 The Reports 67 (HL)] and has been adopted and
consistently followed by our courts.”
[24]
The reasoning of the trial court in its acceptance of M[....]’
evidence as reliable and credible
[8]
goes as follows:
“
[S]uggestions
by the defence in cross-examination which were not repeated in
evidence that R[....] [M[....]] was so drunk that he
cannot recall
what happened are without substance, because the suggested drunken
condition is inconsistent with him, that is R[....],
being able in
that condition to give assistance to the drunken Minerva [the
deceased]. It is also inconsistent with
him to have been
picking her up when she fell and assisting her to walk on. It is also
inconsistent to him having [been] able to
have run to Minerva’s
home to report to her mother when he was attacked and chased by the
abductors of Minerva. And
it is also inconsistent with him as
having been able in that condition to accompany Minerva’s
mother to go look for Minerva
even though they did not find
her……R[....] was a credible witness and his evidence is
corroborated in all material
respects by the undisputed evidence of
this occurrence as well as by the police evidence as regards the
state of intoxication of
Minerva. The differences between the
police statement and his evidence in court as were identified did not
amount to contradictions
but were merely his evidence in court
assuming a more detailed account of the incident and he adequately
explained these as responses
to the questions posed.”
I
agree with the Regional Magistrate’s approach.
[25]
Sight must not be lost of the evidence by M[....] that the
complainant was so drunk that she fell down and even had to be
assisted to walk home. This evidence was supported by the
evidence of the investigating officer, Cst. Louw, who testified
that
he could not obtain her statement outright because she was still
under the influence of liquor that morning. Now this
is
compelling evidence from two witnesses pertaining to the extent of
her intoxication. It is inexplicable how the appellant
can
argue otherwise. She was therefore incapable in law of
appreciating the nature of the sexual act perpetrated on her.
In
my view, s 1(3)(d)(iii) finds application because consciousness or
judgement was adversely affected. Diemont JA
in
S
v Sauls and others
[9]
remarked that the State is not obliged to indulge in conjecture and
find an answer to every possible inference which ingenuity
may
suggest any more than the Court is called on to seek speculative
explanations for conduct which on the face of it is incriminating.
[26]
Section 1(3)(d)(iii) of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act
[10]
stipulates:
“
(3)
Circumstances in subsection (2) in respect of which a person (‘B’)
(the complainant) does not
voluntarily or without coercion agree to
an act of sexual penetration, as contemplated in sections 3 and 4, or
an act of sexual
violation as contemplated in sections 5(1), 6, and 7
or any other act as contemplated in sections 8(1), 8(2), 8(3), 9, 10,
12,
17(1), 17(2), 17(3)(a), 19, 20(1), 21(1), 21(2), 21(3) and 22
include, but are not limited to, the following:
(d)
where B is incapable in law of appreciating the nature of the sexual
act, including where B is, at the
time of the commission of such
sexual act –
(iii)
in an altered state of consciousness, including under the influence
of any medicine, drug, alcohol or other
substance, to the extent that
B’s consciousness or judgement is adversely affected.”
[27]
Mr Steynberg relied on this Court’s unreported appeal judgment
in
S
v Vernon Vincent Sarel Long
[11]
where the appellant was convicted by the Regional Court on two counts
of rape and sentenced on each count to 10 years imprisonment.
There
the appellant threatened the complainant with a knife and coerced her
to accompany him to his house where he committed
two acts of sexual
penetration without her consent. An immediate striking
difference between the case
in
casu
and
the
Long
case is that there were several eyewitnesses whose account of what
they witnessed was found to be contradictory. The appeal
court,
per Olivier J, Williams J concurring, also found the testimony of the
complainant improbable and unsatisfactory in many
respects. In
the case before us we find that the evidence of M[....] was not only
reliable and credible but was corroborated
by objective evidence.
[28]
The Constitutional Court in
S
v Boesak
[12]
made the following insightful remarks on the failure to controvert
prima
facie
evidence:
“
[24]
The right to remain silent has application at different stages of a
criminal prosecution. An arrested person is
entitled to remain
silent and may not be compelled to make any confession or admission
that could be used in evidence against that
person. It arises
again at the trial stage when an accused has the right to be presumed
innocent, to remain silent, and not
to testify during the
proceedings. The fact that an accused person is under no
obligation to testify does not mean that there
are no consequences
attaching to a decision to remain silent during the trial. If
there is evidence calling for an answer,
and an accused person
chooses to remain silent in the face of such evidence, a court may
well be entitled to conclude that the
evidence is sufficient in the
absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified
will depend on the weight of
the evidence. What is stated above is consistent with the
remarks of Madala J, writing for the
Court, in Osman and Another v
Attorney-General, Transvaal, when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a prima facie case,
an
accused who fails to produce evidence to rebut that case is at risk.
The failure to testify does not relieve the prosecution
of its duty
to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal,
the prosecution’s
case may be sufficient to prove the elements of the offence.
The fact that an accused has to make
such an election is not a breach
of the right to silence. If the right to silence were to be so
interpreted, it would destroy
the fundamental nature of our
adversarial system of criminal justice.””
[29] Mr Cloete, also
relying on the
Long
judgment argued, correctly in my view,
that it was improbable that a complainant would, after being forced
to accompany a group
of men, consent to have sex with them.
[30]
It is competent for a court to convict on the evidence of a single
competent witness. See
S
v Sauls
[13]
where
the following
ratio
decidendi
by
Diemont JA appears:
“
In
R v T 1958(2) SA 676 (A) at 678 Ogilvie Thompson AJA said that the
cautionary remarks made in the 1932 case
[14]
were equally applicable to s 256 of the 1955 Criminal Procedure Code,
but that these remarks must not be elevated to an absolute
rule of
law. Section 256 has now been replaced by
s 208
of the
Criminal
Procedure Act 51 of 1977
. This section no longer refers to “the
single evidence of any competent and credible witness”; it
provides merely
that
“
an
accused may be convicted on the single evidence of any competent
witness”.
The absence of the
word “credible” is of no significance; the single witness
must still be credible, but there are,
as Wigmore points out,
“indefinite degrees in this character we call credibility”.
(Wigmore on Evidence vol III
para 2034 at 262.) There is
no rule of thumb test or formula to apply when it comes to a
consideration of the credibility
of the single witness (see the
remarks of Rumpff JA in S v Webber
1971 (3) SA 754
(A) at 758). The
trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide
whether it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony,
he is satisfied that the
truth has been told. The cautionary rule referred to by De
Villiers JP in 1932 may be a guide
to a right decision but it does
not mean
“
that
the appeal must succeed if any criticism, however slender, of the
witnesses’ evidence were well founded”
(per Schreiner JA in R
v Nhlapo (AD 10 November 1952) quoted in R v Bellingham
1955 (2) SA
566
(A) at 569). It has been said more than once that the exercise of
caution must not be allowed to displace the exercise of common
sense.”
[31]
The correct approach to the evaluation of evidence in a criminal
trial is enunciated thus by the SCA in
S
v Chabalala:
[15]
“
The
trial court’s approach to the case was, however, holistic and
in this it was undoubtedly right: S v Van Aswegen
2001 (2) SACR 97
(SCA). The correct approach is to weigh up all the elements
which point towards the guilt of the accused against all those
which
are indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused’s guilt.”
[32] In my view, it is
not for this Court to speculate in favour of the appellant but must
decide on the facts placed before it.
Regard being had to all
the evidence considered hereinbefore and the supporting authorities,
it follows that the trial court
was indeed correct to convict the
appellant of rape read with
s 51(1)
of the CLAA.
The appeal
against his conviction must therefore fail.
On
the question of sentence
[33] In terms of the
grounds of appeal and Mr Steynberg’s contention, the trial
court erred in finding that there are no substantial
and compelling
circumstances to deviate from the prescribed minimum sentence of life
imprisonment. Counsel conceded the seriousness
of the offence
of rape and that its heinous nature calls for a need for the
protection of members of society against these kinds
of offences and
that such offences warrant a substantial term of imprisonment. He
nevertheless sought to urge this Court
to find that there was absence
of serious injuries, which should be taken into account when the
seriousness of the offence is considered.
[34]
I paraphrase from
S
v Malgas,
[16]
that
the fact that Parliament had enacted the minimum sentencing
legislation was an indication that it was no longer “business
as usual”. A court no longer had a clean slate to
inscribe whatever sentence it thought fit for specified crimes. It
had to approach the question of sentencing, conscious of the fact
that the Legislature has ordained life imprisonment as the sentence
which should ordinarily be imposed, unless substantial and compelling
circumstances were found to be present.
[35] The appellant
elected not to testify in mitigation of his sentence nor was any
evidence led on his behalf. From the bar
the following personal
circumstances were placed on record, that: Appellant was 30
years of age at the time of the commission
of the offences; he was
not married and has three minor children aged 11, 6 and 2 years who
resided with him until his arrest;
he attended school up to Grade 10;
he was employed at OK Grocer at Hopetown for about one year and 8
months when arrested and earning
R2,650.00 per month; he has a
previous conviction of assault with intent to do grievous bodily harm
committed on 30 August 2013
and was sentenced to 12 months
imprisonment wholly suspended for 4 years on specified conditions;
the offence of rape was committed
during this period of suspension
and it involves violence on another person; the appellant was
arrested on 26 July 2015 and released
on bail in February 2016,
meaning that he was in custody for a period of about 7 months.
[36] For the State Mr
Cloete submitted that rape is a serious offence; that the complainant
had a right to enjoy herself at the
tavern; that the appellant and
his friends had no right to accost her and take her to a secluded
area and rape her; that this conduct
continues to put the spotlight
on the abusive treatment of women in this country who continue to be
subjected to the same abuse.
[37]
Ponnan JA, writing for the majority, remarked insightfully in
S
v Matyityi
[17]
pertaining to an appellant’s age and his silence:
[14] …At
the age of 27 the respondent could hardly be described as a callow
youth. At best for him, his
chronological age was a neutral
factor. Nothing
in it served, without more,
to reduce his moral blameworthiness. He
chose not to go into the box, and we have been told nothing about his
level of immaturity
any other influence that may have been brought to
bear on him, to have caused him to act in the manner in which he did.
[21] …His
silence thus leads irresistibly to the conclusion that there was
nothing to be said in his favour.”
[38]
It is trite that sentencing resides pre-eminently within the
discretion of the trial court. In
Malgas
[18]
Marais JA enunciated the test as follows:
“
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To
do
so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its
exercise of that discretion, an appellate Court is of course entitled
to consider the question of sentence afresh. In doing
so, it assesses
sentence as if it were a court of first instance and the sentence
imposed by the trial court has no relevance.
As it is said, an
appellate Court is at large. However, even in the absence of
material misdirection, the appellate
court may yet be justified in
interfering with the sentence imposed by the trial court. It may do
so when the disparity between
the sentence of the trial court and the
sentence which the appellate Court would have imposed had it been the
trial court is so
marked that it can properly be described as
“shocking”, “startling” or “disturbingly
inappropriate”.”
[39] The submission by Mr
Steynberg is that these personal circumstances considered
cumulatively with the fact that there were no
serious injuries
suffered by the rape victim should serve as substantial and
compelling circumstances, which ought to result in
the appeal
succeeding and the appellant’s sentence being substituted with
a lesser sentence. Counsel submitted a period
of 25 years
should be appropriate.
[40] Mr Cloete submitted
that the responsibility lies with the justice cluster to promote
justice and once a person has been convicted,
an appropriate sentence
must follow. In this instance, argued counsel, the heinousness
is compounded because this is a gang
rape, which carries a minimum
sentence. Her dignity and respect dissipated as soon as she was
left in the early hours of
the morning at the open school terrain
partially dressed, injured and soiled. How can it be said that
the sentence is inappropriate?
How can it even be argued that
the absence of serious injuries and the personal circumstances should
constitute substantial
and compelling circumstances? Counsel
for the respondent asked the Court to find that there are no
substantial and compelling
circumstances, which would justify a
lesser sentence, and to confirm the sentence of life imprisonment.
[41]
On the aspect of lack of serious physical injuries, in
S
v Radebe
[19]
the
Court enunciated that the absence of physical injuries of a
complainant in a sexual offence complaint does not mitigate against
the seriousness of what the appellant did.
[42]
Over three decades ago, the Supreme Court of Appeal in
S
v Chapman
[20]
already
expressed its deprecation in a rape case when it made these remarks:
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos
of the Constitution
and to any defensible civilisation. Women in this country are
entitled to the protection of these rights.
They have a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and
come from work, and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which
constantly diminishes the
quality and enjoyment of their lives.”
[43] The remarks in the
quoted decided cases are particularly pertinent to this case. The
appellant was not a child at the
age of 30. Two years before
the rape he had already experienced brushes with the law. There
was planning involved which
could not even be prevented by Meintjies.
The appellant and his co-perpetrators displayed a determination
to rape the complainant.
The attack degraded her particularly
by being left partially naked, injured and traumatised. The
appellant and his
gang of marauding co-perpetrators forcefully
removed the deceased from her protector with menaces and assortment
of weapons. They
kidnapped and abducted her. They
physically and sexually assaulted her. She was extremely
fortunate to have survived
the ordeal. The Criminal Law (Sexual
Offences and Related Matters) Amendment Act defines her state as an
altered state of
consciousness to the extent that her consciousness
or judgement were adversely affected.
[44] Having considered
all the personal and mitigating circumstances against the aggravating
factors as well as the interests of
society, I have not found the
existence of any substantial and compelling circumstances to justify
the deviation from the prescribed
minimum sentence. In other
words, I also could not find any misdirection on the part of the
trial court regarding the imposition
of life imprisonment on the
appellant.
It
therefore follows that the appeal against sentence also stands to
fail.
[45]
In the result, the following order is made:
The
appeal against conviction and sentence is dismissed.
_____________________
MC
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
agree
___________________
MJ
RAMAEPADI
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the appellant: Mr H Steynberg
Instructed
by: Legal Aid
South Africa
For
the respondent: Adv JJ Cloete
Instructed
by: The
Office of the Director of Public Prosecutions
[1]
Section 3 of Act 32 of 2007
[2]
105 of 1997
[3]
Death certificate on indexed papers p 971 of the record.
[4]
45 of 1988 which stipulates
:
3. Hearsay evidence
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless
–
(c) the
court, having regard to –
(i) the
nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v) the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be
admitted in the interests of justice.
[5]
1998 (2) SACR 432
(SE) at 437g – 438a
[6]
2003 (1) SACR 583
(SCA) at 594d - h
[7]
2000 (1) S 1 (CC) at para 61
[8]
From p925 of the record
[9]
1981 (3) SA 172
(AD) at 181H – 183C
[10]
32 of 2007
[11]
CA&R 12/2014
[12]
[2000] ZACC 25
;
2001 (1) SACR 1
(CC);
2001 (1) SA 912
(CC) at para 24
[13]
(
Supra)
footnote 10 at 180C - G
[14]
R v Mokoena
1932 OPD 79
at 80
[15]
2003 (1) SACR 134
(SCA) para 15
[16]
2001
(1) SACR 469
(SCA);
2001
(2) SA 1222
(SCA) at paras 7 and 8
[17]
2011 (1) SACR 40
(SCA) at 48b – c and 52b-c
[18]
Supra at 478d-g
[19]
2019 (2) SACR 381
(GP) at 396i-397a
[20]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA)