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[2021] ZAGPPHC 380
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M.E.T v S (A127/2020) [2021] ZAGPPHC 380 (17 June 2021)
SAFLII
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: A127/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
17
JUNE 2021
In
the matter between:
M[…]
E[…] T[…]
Appellant
And
THE
STATE
Respondent
JUDGMENT
van
der Westhuizen, J (Lingenfelder, AJ., concurring)
[1]
The appellant was convicted in the Regional Court Pretoria on a
charge of theft and
two charges of rape. The appellant was sentenced
on the charge of theft to two (2) years imprisonment and to two life
sentences
in respect of the rape charges. The sentences were directed
to run concurrently. In view of the provisions of
section 309(1)(a)
of the
Criminal Procedure Act, 51 of 1977
, the appellant enjoys an
automatic right to appeal. The appellant appeals against both
conviction and sentence. The appellant enjoyed
legal representation
throughout.
[2]
The court
a quo
thoroughly considered the evidence placed before it and in particular
considered the credibility of each of the witnesses. The
court
a
quo
held, after correctly applying the
cautionary rules, that the complainant was a credible and truthful
witness. Support was found
in the evidence of an independent witness
who assisted the complainant after her ordeal.
[3]
The complainant, together with her friends, was at a tavern. She
drank two dumpies
of alcohol. They decided to go to a second tavern.
Soon after they had arrived there, the complainant decided to return
to the
first tavern. She left on her own. On her way back to the
first tavern, she was accosted by the appellant. He was assisted by
two
other males. The appellant stripped her of her clothes, in
particular the pants that she was wearing. She was held by the two
other
males while the appellant sexually penetrated her vagina. The
appellant tried to kiss her, but she held her mouth closed. The
appellant
then bit her on the cheek. The said three perpetrators then
dragged her screaming to the hostel while she was naked. Inside the
hostel, one of the other two males penetrated her vagina. When she
screamed, the second perpetrator put a finger in her mouth to
prevent
her from screaming. A knock on the door interrupted the sexual
assault on the complainant. A male person enquired what
the noise was
about. That person then demanded that they leave the room. He was
awakened by the screaming. One of the other two
perpetrators left.
The appellant took the complainant’s jacket with her cell phone
that was in one of the pockets. They then
dragged her to a second
room where the appellant sexually penetrated her a second time. When
he was finished, the other perpetrator
also raped her a second time.
The person who interrupted the incident in the first room returned
again enquiring about the noise.
The perpetrators ran away. The
appellant left in the direction of that of the other male who had
left after the incident in the
first room. He found the complainant
naked and crying. He handed her a blanket to cover her nakedness and
gave her money for transport.
The complainant went to the police
station to lay a charge.
[4]
The appellant’s version, that was rejected by the court
a
quo
, was that he had consensual sex
with the complainant and paid for it. The appellant only admitted to
one act of consensual sex.
The appellant’s version in respect
of the charge of theft was correctly rejected. If indeed he had paid
for the complainant’s
sexual favours, it would not have been
necessary for the independent witness to give the complainant money
for transport. She had
no pants on, and her jacket was gone. She was
given a blanket to cover her nakedness.
[5]
Considering the evidence as a whole and on a holistic approach,
[1]
it was proven that the complainant suffered multiple sexual
penetration in a gang rape circumstance. Multiple sexual penetrations
by different perpetrators were proven. The rejection of the
appellant’s version was correctly done by the court
a
quo
.
Having admitted sexual intercourse, albeit allegedly by consent, with
the complainant, the evidence of the surrounding circumstances
gives
credence to the version of the complainant rather than to that of the
appellant. On the appellant’s version he was
the only person
present in his room. He denied having sexual intercourse with the
complainant outside his room. That denial was
correctly rejected. The
complainant was stripped of her clothes by the appellant outside in
the veld where she was raped the first
time. The witness who found
her in the second room was adamant that she was naked, no clothes
were nearby, and for that reason
he handed her a blanket to cover
herself. He also gave her money for transport. The only inference
that could be drawn was that
she had no clothes with her and also
that she was paid no money as alleged by the appellant.
[6]
The evidence presented in the court
a
quo
that the complainant was bitten on
the cheek was never challenged by the appellant. The court
a
quo
held, in my view correctly so, that
the objective facts before that court clearly indicated that the
complainant never consented
to having sexual intercourse with the
appellant.
[7]
The court
a
quo
correctly held that the appellant had formed two different intentions
to rape the complainant. In this regard, and on the accepted
facts,
the appellant had sexually penetrated the complainant outside in the
veld the first time. After dragging the complainant
to the room in
the hostel, the complainant was sexually penetrated by one of the
other perpetrators when the independent witness
enquired for the
first time about the noise. Thereafter, in the second room the
appellant sexually penetrated the complainant a
second time. Clearly
a second intention to rape the complaint a second time had been
formed by the appellant. There was a clear
difference in time and
place.
[2]
[8]
In my view, the appellant failed to show that the court
a
quo
had erred in the findings of fact. As such, the court of appeal is
limited in interfering with those findings of fact by the court
a
quo
.
[3]
[9]
It follows that the appellant was correctly convicted in respect of
the charge of
theft and the two charges of rape. The appeal against
the convictions stands to be dismissed.
[10]
The appeal in respect of sentence is directed at the imposition of
two life sentences. It is
submitted on behalf of the appellant that
the court
a quo
had erred in sentencing the appellant separately on the two charges
of rape. It is submitted that the court
a
quo
should have taken the two charges
of rape as one for purposes of sentencing. There is no merit in that
submission for what follows.
[11]
On behalf of the appellant it was submitted that the state only
proved one act of sexual penetration
on the first occasion outside in
the veld. The appellant ignores that it was held by the court
a
quo
that the rape on the first occasion
in the veld was in the manner of a gang rape. Secondly, the
circumstances relating to the further
acts of sexual penetration
committed against the complainant inside the hostel were clearly that
of a gang rape. That brought the
provisions of
section 51(1)
of Act
105 of 1997 into play. It is recorded earlier that two distinct rapes
were committed by the appellant, clearly separated
in time and place
and clearly in circumstances of being committed in gang related rape.
[12]
It is submitted on behalf of the appellant that in respect of the
first charge of rape, the appellant
was a first offender and as such
the minimum sentence should have been ten (10) years imprisonment.
There is no merit in that submission.
As held earlier, it was in a
gang rape manner.
[13]
Furthermore, the second rape of the complainant perpetrated by the
appellant was similarly committed
in a gang rape manner.
Consequently, the provisions of section 51(1) of Act 105 of 1997 also
apply. Two separate acts of rape were
perpetrated by the appellant
upon the complainant which warranted the indictment on two counts of
rape. The conviction of the appellant
on two counts of rape required
the imposition of separate sentences thereupon. It matters not that
the same prescribed sentence
of life imprisonment was to be imposed.
The sentences were, as recorded earlier, to run concurrently.
[14]
There is further no merit in the submission on behalf of the
appellant that substantial and compelling
reasons should have been
found to have existed which would warrant a deviation from the
prescribed sentence of life imprisonment,
or for that matter in
respect of the suggested ten (10) years imprisonment period for a
first offender.
[15]
The personal circumstances of the appellant put before the court
a
quo
were: appellant’s age at the
commission of the offences being 27 years of age; unmarried, but has
two children who are cared
for by their mother; appellant dropped out
of school in grade 8; prior to his arrest he was unemployed;
appellant suffers from
high blood pressure and did not receive
medication whilst in custody; and has a previous conviction for house
breaking with the
intent to steal and theft for which he was
sentenced to six (6) years imprisonment.
[16]
None of the aforementioned personal circumstances on their own, or
cumulatively, translate into
substantial and compelling
circumstances. Those are neutral facts. The issue of high blood
pressure and receiving no medication
whilst in custody has no bearing
on the horrendous act committed upon the complainant. How a lack of
education and employment sustains
a finding of substantial and
compelling circumstances was not explained. Cruel acts of rape were
perpetrated by the appellant upon
the complainant, who must endure
the ordeal for the rest of her life. The court
a
quo
correctly found no substantial and
compelling circumstances to have existed that would warrant a
deviation from the prescribed
minimum sentence of life imprisonment.
None have been shown to exist. This court of appeal cannot interfere
with the imposed sentences
in the absence of any misdirection shown
to have been committed by the court
a
quo
. The sentences imposed are not
disturbingly inappropriate. A well-reasoned judgment on sentence was
delivered by the court
a quo.
[17]
It follows that the appeal against sentence cannot be upheld.
The
following order is made:
1.
The appeal against the convictions is
dismissed;
2.
The appeal against the sentences is
dismissed.
C J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Date
of Hearing:
07 June 2021
On behalf of
Applicant: Ms M M P Masete
Instructed
by:
Pretoria Justice Centre
On behalf of Respondent:
P C B Luyt
Instructed
by:
Director of Public Prosecutions
Judgment handed down:
17 June 2021
[1]
S
v Van Aswegen
2001(2) SACR 97 (SCA)
[2]
S
v Blaauw
1999(2) SACR 295 (W)
[3]
S
v Prinsloo et al
2016(2) SACR 25 (SCA)