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[2021] ZAGPPHC 272
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Mbele v S (A94/2020) [2021] ZAGPPHC 272 (30 April 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE
30 APRIL 2021
CASE
NO: A94/2020
In
the matter between
ROBERT
PETROS MBELE
Applicant
and
THE
STATE
Respondent
J
U D G M E N T
This
appeal was decided in terms of the provisions of
section 19
of the
Superior Courts Act 10 of 2013
and otherwise disposed of in the terms
of the Directives of the Judge President of this Division. The
judgment and
order are accordingly published and distributed
electronically.
DAVIS,
J
[1]
Introduction
1.1
This is the appeal by
the first of two accused who had been convicted of rape of a 51 year
old woman. Although the offences had
been committed in 2005, the
record indicated the commencement of proceedings only in February
2011. Pleas were tendered on
6 November 2012 and the actual
trial commenced on a March 2013. Conviction and sentencing took
place on 6 November 2013.
1.2
This court, per Jordaan
J and Pienaar AJ granted leave to appeal in respect of the petition
of the first accused against conviction
and sentence on 26 November
2016.
1.3
In granting leave to
appeal as aforesaid, the court added the following:
“
In
particular it must be argued before the court of appeal if it was
competent to convict each of the two accused on two counts
of rape.
If more than one accused take part in a crime like murder, robbery,
theft etc it can certainly not be argued that
each accused is guilty
of the crime for what he did and is also guilty as an accomplice for
what his co-perpetrators did and is
then also guilty of the crime.
For example if ten accused take part in a murder, robbery or theft
they can certainly not
be convicted of ten counts of murder, robbery
or theft where only one victim was involved
”.
1.4
For purposes of dealing
with this appeal and the issue raised when leave to appeal was
granted, accused number one shall be referred
to as the appellant
accused number two shall be referred to as in the court a quo.
1.5
In concluding this
introduction, I point out that there are no explanations in the
record of proceedings itself for the vast time
lapses referred to in
paragraphs 1.1 and 1.2 above. In the appellant’s
hand-written application for leave to appeal,
filed timeously, he
stated the following: “
the
incident occurred in 2005 and I stayed in custody for a year and the
case was dismissed in 2006. It was brought back again
in 2008
only to be dismissed in 2009 … . to my surprise, it was
brought back in 2011 and I was found guilty and sentenced
in 2013
”.
As the accused were legally represented and as no pleas of
autrefois
acquit
were
tendered, I assume that the “dismissals” referred to
withdrawals. Even so, the delays and the slow pace
with which
the wheels of justice ground, are worrisome. There is also no
explanation for the further lapse of time between
the granting of
leave to appeal and the date when the matter came before us on appeal
on 21 April 2021.
[2]
The facts of the
matter and the accepted evidence
2.1
Counsel for the
appellant summed the complainant’s evidence correcting in heads
of argument filed on behalf of the appellant.
It is (equally
briefly) this: on the day in question being 17 September 2005, the
complainant was walking on her way home from
a house of friends.
It was approximately 20h30. She was walking with difficulty as
she has “a problem”
with her one leg. She was
approached from the front by the two accused. She was grabbed
by the two men and warned not
to scream, but she did so in any event
upon which one broke a bottle and the other produced a knife.
She was taken against
her will and despite her initial resistance and
upon threat of death to a building site where there was a partially
built house.
She was pushed and then apparently restrained by
the appellant while the second accused proceeded to rape her.
After he left,
the appellant proceeded to also rape her. She
was also at one stage searched under her clothing for money or a
cellphone
but only tissues were found on her. Shortly after the
appellant “had finished” and stood up, a group of
youngsters
arrived at the site and apprehended the appellant.
The complainant was taken with the appellant to a satellite police
station,
which was found to be closed. Both were then taken to
a nearby clinic from where the police were also called.
2.2
The complainant had
made a statement to the police the next day. Despite the
appellant’s criticism of the complainant’s
evidence
(given some 8 years after the incident) and certain discrepancies
between her written statement and her evidence, I find
very little of
material difference. In her statement, she alleged that she was
searched inside the building after the first
rape, while in her oral
evidence the search took place before she was taken into the
building. In her statement she alleged
that at some stage when
she was taken to or into the building, the accused had held their
hands over her eyes while in her oral
evidence, she did not mention
this. Having regard to the time lapse, the traumatic nature of
the events and the fact that
the basis facts and major chronological
sequence of events as well as the exact location and date and time of
the incidents remained
the same, I am of the view that the
discrepancies are so minor as to be of no real consequence.
2.3
What is more important,
is the independent corroboration of the events regarding the
appellant, furnished by the second prosecution
witness. He
testified that, on the night in question, he was sitting in a
watering hole called Tembi’s Tavern.
He observed the
appellant coming into the tavern and looking around before leaving
again. Some twenty minutes later, another
male entered the
tavern shouting for assistance as some lady was being raped in a
nearby house. He and the tavern owner rushed
to render
assistance and he observed the appellant, still fastening his pants
and pulling up his zipper, emerging from the incomplete
house.
The appellant attempted to run away and jump over the fence but was
apprehended by a group of men. The complainant
was found inside
the uncompleted house getting dressed. The only difference
between the evidence of this witness and that
of the complainant, was
the estimation of time. She of course started her narrative at
the commencement of events and he,
near the conclusion thereof.
This probably accounted for the estimated time difference.
2.4
The second accused was
arrested some time later as the complainant had reported that the
first rapist who had left the scene was
known as “old Jan”.
2.5
Both the appellant and
the second accused testified in their defence. They both
admitted intercourse with the complainant,
but alleged that it was
consensual. The second accused said she had consented inside
Tembi’s Tavern to have intercourse
with him in the Tavern’s
toilets while the appellant said she had consented outside while he
was walking with her, “to
have sex” with him because he
was “thirsty” for it as he had no girlfriend.
According to him, her only
fear was of being caught as she was
married. According to the appellant they were both drunk.
2.6
What impressed me about
the complainant’s manner in which she conducted herself during
cross-examination, was not only the
clear and forthright manner in
which she dealt with the questions put to her and her repeated
reference to parts of her evidence
in chief, but also her almost
derisive reference to the accused as youngsters or “boys”
when the suggestions consensual
intercourse were put to her.
Even her answers dovetailed with that of the independent witness
which had been called to lead
evidence after her to such an extent
that there were no real discrepancies between them as to the
immediate events after the second
rape. She also denied any use
of alcohol. She does not frequent taverns or, in particular,
Tembi’s Tavern.
2.7
I find that the
magistrate had correctly summed up the evidence, accepted the version
of the complainant and rejected the versions
of consensual
intercourse tendered by the accused as false. As a court of
appeal, I find no reason to interfere with the
factual findings and
credibility assessments of the learned magistrate.
[3]
The conviction
3.1
From what I have stated
above it must follow that the appellant had correctly been found
guilty of having raped the complainant.
He was also correctly
found guilty of assault as a result of the manhandling of the
complainant and the threatening with either
the bottle or the knife
and the treats to kill her if she did not keep quiet.
3.2
The question is whether
the appellant could also be found guilty on any charge in relation to
the rape committed by accused number
two (chronologically, the first
rape).
3.3
The record shows that
three charges were put to each accused individually. The
charges put to the appellant were similarly
worded to the charges put
to accused number two. Charges 1 and 2 in each case, were
identically worded, namely “…
that
on 17 September 2005 and at or near Balfour, in the Regional Division
of Mpumalanga, the accused unlawfully and intentionally
had sexual
intercourse with a female person …without her consent
”.
3.4
Both the accused had
pleaded not guilty, but had formally admitted intercourse.
3.5
The learned magistrate,
having correctly found that both the accused had intercourse with the
complainant without her consent and
having correctly accepted the
mutually corroborative evidence of the prosecution witnesses (insofar
as their participation in the
events overlapped), found as follows:
“
The court is
therefore satisfied that the guilt of both accused have been proven
beyond a reasonable doubt … just a moment,
the two accused
were charged with two counts of rape and one of assault with intent
to do grievous bodily harm. On the two
counts of rape each
accused is found guilty on one count of rape and on one count of
being an accomplice to rape. The third
count of assault with
the intent to do grievous bodily harm, both are found guilty as
charged
”
3.6
At the time of the
conviction of the two accused, the instrumentality approach to rape
still prevailed. Fortunately and, for
the many reasons
mentioned in both the majority and minority judgements in
S
v Tshabalala
2020
(2) SACR 38
(CC), this approach has been jettisoned and is no longer
part of our law. This decision was subsequently applied in
S
v Mthombeni
2020(2)
SACR 384 (KZP).
3.7
Had the accused
accordingly been found to have acted with common purpose, they could
both have been found guilty of both instances
of rape. As
correctly pointed out in heads of argument delivered on behalf of the
appellant, the doctrine of common purpose
had not been relied on by
the prosecution and it neither formed part of its case nor did it
serve as a basis for the convictions.
3.8
It is clear from the
evidence that the appellant had actively participated in the subduing
of the complainant. He had grabbed
her by the arms, threatened
her with either a broken bottle or a knife and might have held her
eyes closed. He actively pulled
or pushed her into the
partially built house. There can be no doubt that his actions
had been in furtherance or facilitation
of the rape committed on her
by accused number two.
3.9
At common law an
accomplice is someone who is not a perpetrator of the offence that he
aids and abets but is someone who in some
way assists the perpetrator
in the commission of the latter’s offence or facilitates its
commission. See Snyman,
Criminal
Law
, 5 Ed at 268.
3.10
On the facts of this
case, the appellant clearly rendered assistance of the commission of
rape by accused number two and was correctly
found guilty of being an
accomplice to rape. This constituted the conviction on the
second charge and answers the query raised
when leave to appeal was
granted.
3.11
On the accepted
evidence, the conviction of rape in respect of the intercourse
without consent perpetrated by the appellant, was
also correct.
This constituted the conviction on the first charge.
[4]
Sentence
4.1
On behalf of the
appellant, it was argued that from the record, it appeared that, when
the charges were put to the appellant, no
reference was made to the
provision of Act 105 of 1997 and the implications of the minimum
sentence regime implemented thereby.
These submissions appear
to be correct.
4.2
The further argument is
that the minimum sentence regime was not in operation in the fashion
it was when sentencing took place,
at the time of the commission of
the offence and, even if the learned magistrate had been entitled to
rely on the provisions of
that act, he did not sufficiently deal with
the issue of compelling or substantial factors in considering
sentence.
4.3
The record however
shows that the learned magistrate had taken all the appellants
personal circumstances placed before the court
a quo, into account.
The magistrate also referred to the rights of “
every
woman seated here in court today, every woman in our society outside
… to come and go as they please, when they please
without
having to fear that they will be molested
”.
4.4
Even if one disregards
any obligation regarding the minimum sentencing regime, the sentences
imposed do not impose a sense of shock
nor do I find them to be
disproportionate or manifestly inappropriate. See:
S
v GK
2013 (2) SACR
505
(WCC) and the cases discussed there. In fact, the
magistrate even apportioned the sentences by imposing a sentence of
10
years in respect of the charge of being an accomplice and 15 years
for the rape actually perpetrated by the appellant. In
my view,
the magistrate had been at liberty to consider imposing the same
sentence on the accomplice as that imposed on the actual
perpetrator
(which in the case of accused number two, was 15 years). The
magistrate had therefore clearly considered the
facts of the case
relating to the two charges and exercised his discretion in a
judicial fashion.
4.5
In my view the
magistrate was also correct to find that the court “…
at
the end of the day has to send a clear message to society that this
type of conduct will not be tolerated
”.
4.6
I find no reason to
interfere with the sentences imposed which I find to be appropriate
in the circumstances.
[5]
Order
Accordingly, an
order in the following terms should be issued:
The appeal against
convictions and sentences are refused.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
I
agree
K
Raikane
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Date
of Hearing: 21 April 2021
Judgment
delivered: 30 April 2021
APPEARANCES:
For
the Appellant:
Adv. L A VanWyk
Attorney for the
Appellant:
Legal Aid SA, Pretoria
For the
Respondents:
Adv. S Mahomed
Attorney for the
Respondents:
Director of Public Prosecution, Pretoria