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[2021] ZAGPPHC 429
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M.T.S v S (A182/20) [2021] ZAGPPHC 429 (29 June 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE
H
I
GH
COURT
OF
SOUTH
AFRICA
GAUTENG
DIVIS
I
ON,PR
E
TORIA
CASE
N
O:
A182/20
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
M[...]
T[...] S[...]
Appellant
and
THE
STATE
Respondent
J
U
D
G M
E
N
T
The
judgment
and order are
a
ccordingly
published
and distributed electronically. The
date
and time
of hand down Is
deemed
to
be 10:00
on 29 June 2021.
TEFFO,
J:
[1]
The appellant was arraigned in the Regional Court, Benoni where he
faced two counts of rape in contravention of section 3 of
the Sexual
Offences and Related Matters Act, 32 of 2007.
[2]
He pleaded not guilty but was eventually convicted on both counts and
sentenced to life imprisonment on each of the two counts
in terms of
section 51(1) and Part 1 of Schedule 2 of the Criminal Law Amendment
Act, 105 of 1997
("
the
CLAA"). The
appellant has an automatic right of appeal in terms of section 10 of
the Judicial Matters Amendment Act, 42 of
2013. He now appeals
against his conviction and sentence .
[3]
In respect of the first count, he admitted that he had consensual
sexual intercourse with the complainant, Ms N[...] H[...]
(N[…])
and in respect of the second count, the appellant denied that he
raped or had sexual intercourse with the complainant,.
Ms N[...]
M[...] (N[...] ). He gave a plea explanation that he fought with the
complainant.
[4]
The issue that had to be decided in the court below in respect of the
first count was whether the complainant consented to have
sexual
intercourse with the appellant or not. In respect of the second
count, the issue was whether the appellant raped the complainant
or
not.
[5]
In respect of the first count, the court a quo found that the
appellant raped the complainant more than once and in respect
of the
second count, it found that during the rape serious bodily injuries
were inflicted on the complainant which attracted the
application of
the provisions of section 51(1) read with Part I of Schedule 2 of the
CLAA.
[6]
The questions to be answered in this appeal are whether or not
the court a quo misdirected itself when it found the appellant
guilty
of rape on both counts. In the event that this Court finds that the
convictions of rape on both counts were correct, it
has to determine
whether or not in respect of the first count, the evidence presented
in the court a quo established that the complainant
was raped more
than once. Mr J L Kgokane for the appellant raised the following
issues in his heads of argument:
(a)
Whether or not the court a quo misdirected itself by finding
that the complainant was raped multiple times.
(b)
Whether or not the State presented evidence to prove that the
appellant had the intention to rape the complainant multiple times.
(c)
Whether the trial court misdirected itself by finding that the
minimum sentence applicable in respect of the first count of rape
was
life imprisonment , and not 10 years' imprisonment.
With
regard to the second count, the following issues were raised:
(a)
Whether the rape involved the infliction of grievous bodily
harm.
(b)
Whether the trial court misdirected itself by finding that the
minimum sentence applicable in respect of the second count was life
imprisonment, and not 10 years' imprisonment.
The
salient
facts
The
first
count
[7]
N[...] testified that on 11 June 2018 at approximately 15:00 she was
in the company of the appellant
and J[...] at the place of
residence of B[…]. B[...] later arrived. However, B[...] and
J[...] left and the
complainant remained with the
appellant in the house. The appellant informed her about
the problems he had with
his girlfriend and then invited her to go
with him to the kitchen to warm up a plate of food. As the food was
warming up, she and
the appellant waited in the bedroom next to
kitchen. The appellant told her that he would be better off if he had
someone like
her in his life. She informed him that she could not as
she knew his girlfriend.
[8]
The appellant became angry and she could see it in his face. She
decided to leave and when she stood up, the appellant grabbed
her
hand and forced her onto the bed. She asked him what he was doing,
and he said
"what
do you
think
I am doing".
He eventually overpowered her,
undressed her pants, pulled them down her knees and legs and when she
screamed , he closed her mouth
and pushed his hand into her mouth. As
a result, she sustained a small tear or a bruise on her upper and
lower lip.
[9]
He started to have sexual intercourse with her without a condom. He
became more aggressive and said he would bite her if he
wanted to. He
also mentioned that she was not the first one. Further, that if she
kept quiet, he would give her money. She tried
to close her thighs
but he kept on opening them.
[10]
She told him she needed to pee. He withdrew his penis and said she
can pee on the bed or in a bucket that was in the room close
to the
door. When she stood up, he accompanied her. She held the door and he
asked what did she think she was doing. She peed a
bit. He then
dragged her back to the bed. As she was resisting, he held her head
and continued to penetrate her. She then lied
to him and told him
that she was HIV positive. He stood up, got a condom and put it on
and penetrated her again for the third time.
On these three occasions
he did not ejaculate, instead, he urinated inside the condom. He took
that condom out and put another
one on. As he was still busy having
sexual intercourse with her, she heard B[...] coming back through the
kitchen door to the dining
room.
[11]
She asked the appellant that they should go and buy food as she was
hungry. He agreed. Immediately the appellant opened the
bedroom door,
she ran to the dining room where B[...] was sitting. She asked B[...]
to take her out of the house. As they went
out of the kitchen door,
she told him that the appellant raped her and immediately ran down
the street to a certain house where
she found an old lady and asked
her to call her mother. Her mother arrived and they went to Daveyton
police station. She was eventually
taken to the Far East hospital
where she was examined and a J88 medical report was completed.
[12]
She denied that the sexual intercourse with the appellant was with
her consent.
[13]
B[...] T[...] (B[…]) corroborated N[…]'s evidence
regarding the fact that they were together on the day of the
incident
at his house, J[...] and him left and N[...] remained with the
appellant in the house. He returned to the house
and the complainant
reported the rape to him.
The
second count
[14]
N[...] testified that she is a lesbian. She knew the appellant and
they resided in the same street. On 16 July 2018 at approximately
06:00 she was in the company of the appellant on their way home from
the tavern. They reached her home and she entered. the house.
The
appellant left. A couple of minutes later, the appellant came to her
house and knocked. She was alone in the house. Her sister
had left
for work while her brother was sleeping in the backrooms.
[15]
She let the appellant inside the house. He wanted to light a
cigarette. The heater was on and she lit the cigarette and gave
it to
him. Her brother went out.
[16]
The appellant told her that he was going to have sexual intercourse
with her. She did not take him seriously. He stood up and
they
started fighting. He grabbed her by her clothes. She tried to push
him away. He punched her around her face and kicked her
on her legs.
Eventually he overpowered her and bit her around her face and on her
stomach. She fell. She was wearing a pair of
jeans . The appellant
pulled off her pair of jeans . He also took off her boxes that she
wore inside her jeans . He opened her
legs and came on top of her. He
inserted his penis inside her vagina without a condom. He ejaculated
. After that he stood up.
Her neighbour, Mr M[…], heard her
screaming, came to the house and kicked the door open.
[17]
At that time the appellant was still inside the house and he fought
verbally with Mr M[…]. Eventually the appellant
left. This was
the first time he saw the appellant naked. She observed a scar on his
body. It was confirmed in court that the appellant
had a scar on the
left-hand side of his body on the lower stomach area.
[18]
Her neighbour found her naked. Her brother came back and police were
called . Her sister took her to the police station and
she also went
to the clinic where she was examined.
[19]
She denied the appellant's version under cross examination that she
smoked drugs with him, he proposed love to her, she refused
and he
decided to leave with the drugs they were smoking together . That she
and the appellant fought over the drugs he had. Further
that she was
the person who invited him to her residence, proposed to him that she
loved him and wanted to have sexual intercourse
with him.
[20]
Mr T[…] R[…] M[…] (R[…]) corroborated the
evidence of N[...] that he was her neighbour .
He testified
that on the day of the incident at approximately 08:00 he heard
N[...] screaming that she was being raped. He
called his son,
S[...] and asked him to accompany him to N[...] 's house.
[21]
He went to N[...] 's house together with S[...] and another
colleague of his. The kitchen door was open and the dining
room door
was locked. They pushed it open and N[...] stormed out of the
dining room and jumped on them. She was completely
naked and her eye
was swollen. The appellant was already dressed. They took the
appellant out of the yard and he was busy swearing
at them. He told
them that N[...] invited him over her place the previous day
and that she was drunk as she had been smoking
drugs.
[22]
Mr S[…] M[…] (S[...] ) corroborated his father, R[…]'s
evidence that he called him from the house and
alerted him of the
noise at N[...] 's house. He came out of the house and heard people
arguing.
They
went to N[...] 's house. They found the kitchen door opened and the
door inside the house leading to the dining room was closed.
He
forcefully pushed that door open and it opened. He got inside
and saw N[...] and the appellant inside the dining
room. He
corroborated his father's evidence that N[...] was naked and
the appellant was dressed. N[...] and the appellant
were
arguing. He corroborated his father's evidence that N[...] 's right
eye was swollen . N[...] was crying and saying to
the appellant
"
You are raping me and I told
you
I will scream
and
call people
.
"
The appellant said he did not do it and he left. N[...] 's eye
was also bleeding.
[23]
Under cross-examination S[...] testified that the appellant
showed him a white powder in a plastic bag in his hands and
said he
was there to smoke drugs. He denied that he told him that he and the
complainant were fighting over the drugs.
[24]
The J88 medical report completed in respect of the complainant in the
first count was handed in by agreement.
[25]
The doctor who completed the J88 medical report in respect of the
complainant in the second count also testified. His evidence
is on
record. Where necessary, it will be referred to later in the
judgment.
[26]
Warrant Officer Mbele, the Investigating Officer in the matter also
testified. His evidence related to the chain of evidence
of buccal
samples that he collected from the appellant , and swabs collected
from the second complainant which were eventually
sent to the
Forensic Science Laboratory.
[27]
The appellant testified that he was in the company of N[…],
J[...] and B[...] at […]'s residence on the
day of the
incident. They were sitting in the lounge and smoking drugs. He and
N[...] left the others and went to the bedroom
where they
seduced each other and eventually had sexual intercourse.
Subsequently , N[...] went and told his friends about it.
He does not
know why she told them.
[28]
In respect of the second count, the appellant corroborated the
complainant, N[...] 's evidence that the two walked together
home
from the tavern on the morning of the incident. Contrary to her
evidence , he testified that at the tavern N[...] told
him she loved him and has always loved him. Her problem was
that she knew he has a girlfriend with whom he has a child. He
saw
that as an opportunity because his girlfriend was not there at the
time and said to her,
"Baby,
come,
let
us
be
togethe
r
."
He started buying her beers. They kissed. He also bought her more
beers and drugs in the morning. Eventually they left the tavern
together to her place of residence.
[29]
They arrived at her place of residence and went to the lounge where
she put the TV on. He sat on the couch, they continued
drinking and
smoked drugs. N[...] undressed herself and remained with her
panties. He also took off his jeans . They kissed
and went to the
bedroom. They seduced each other and when he was about to penetrate
her, she pushed him away . She was no longer
interested. He became
angry and started taking the drugs and alcohol they were drinking.
N[...] then said he cannot take
the drugs. He told
her she did not contribute any money to buy them. She started
fighting with him. He told her to
open the door. At that time, he had
the drugs in his hands. She did not want to open the door. He tried
to open it but N[...] bit
him and he bit her back. There was a
commotion in the house and they were making noise. He kept on telling
her to open the door
for him. Eventually she pulled the door open. He
went out and met her two neighbours. He did not have sexual
intercourse with N[...]
.
[30]
Under cross-examination he could not explain why his DNA was found
inside N[...] 's vagina .
Applicable
l
egal
principles
[31]
A
court of appeal is
not at
liberty to depart from the trial court's
findings
of fact
and
credibility,
unless
they
are
vitiated
by
irregularity,
or
unless
an
examination
of the
record
of
the
evidence
reveals
that
those
findings
are
patently
wrong
.
The trial
court's findings of fact and credibil
i
ty
are presumed to be
correct,
because the
trial court, and not
the court
of appea
l
,
has had
the
advantage
of seeing
and hearing
the
witnesses
,
and is in
the best
position to
determine
where
the
truth
lies
[1]
.
[32]
Section 208
of Act
51
of
1
977
("the
Criminal Procedure Act')
provides
that
an
accused
person
may
be
convicted
of
any
offence
on
the
single
ev
i
dence
of a competent witnes
s
.
I
t
is, however, a well-established judicial principle that
the
evidence
of
a
single
witness
should
be
approached
with
caution,
his or her
merits as a witness
being
weighed against factors which
militate
against his or her credibi
l
ity
[2]
.
[33]
The correct approach to the application of the so-called
"cautionary
rule"
was set out by Diemont JA in
S v Sauls and
Another
1981 (3) SA 172
(A) at 180E-G where he said
the following :
"
There is no rule of thumb
test or formula to apply when it comes to
a
consideration of
the
credibility of
a
single witness ...
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 had been told.
The cautionary
rule referred to by De
Villiers JP in R v Mokoena
1932 OPD
79
to 80 may be guide to
a right decision but it does not mean that the 'appeal must
succeed
if
any
criticism,
however
slender,
of
the
witnesse
s
'
evidence were well founded
...'
It has been said more than
once that
the
exercise of caution must not be allowed to displace the exercise of
common sense."
The
convictions of rape on both counts
[34]
The evidence about the two counts of rape is that of a single
witness . In respect of the first count, the trial
court found that
the complainant, N[...] gave a detailed and coherent version of
events. Further, that if she wanted to be penetrated
as the appellant
wanted the court to believe, she would have co-operated . She would
have lifted herself to receive the penis,
and that even if she did
not, that would not explain the multiple abrasions she sustained in
the fossa navicular is. The court
a quo found corroboration of N[…]'s
evidence about the rape in the J88 medico-legal report. Sight should
also not be lost
that the complainant also had a bruise on the muscle
of her upper lip which she testified she sustained when the appellant
forced
his hand into her mouth to stop her screaming when he was busy
raping her. The injuries noted on the J88 medical report are not
consistent with a sexual intercourse by consent.
[35]
The appellant was not a truthful witness. After N[...] and B[...] had
testified that he was left in the house with N[...] after
B[...] and
J[...] had left, which evidence was not challenged under
cross-examination, the appellant created a picture that
when he and
N[...] went to the bedroom where they had sexual intercourse, B[...]
and J[...] were in the house. They left
them in the lounge and
suddenly he did not know why N[...] would tell B[...] that he raped
her. In my view the trial court correctly
rejected his evidence as
not reasonably possibly true, and found that the State had proved
beyond a reasonable doubt that he raped
N[…].
[36]
Regarding the second count, there was overwhelming evidence against
the appellant. The evidence of R[…] and S[...] corroborated
N[...] 's evidence that she was raped. After her screaming raised the
alarm, they went to her residence and found her completely
naked and
crying. Her eye was swollen and bleeding. If the appellant and N[...]
only fought over the drugs they were smoking,
why was she found
naked. How would N[...] have been able to observe a scar on his
body which she was able to mention and
confirm in court. The
appellant could not explain this evidence and the fact that his DNA
was found in the complainant's vagina.
It does not make sense as to
why if N[...] had invited him to her residence because she
loved him, she would suddenly become
disinterested in what they had
intended doing after they had kissed and seduced each other. The
findings of the trial court are
correct. There is just no reason to
fault them. The appellant was clearly guilty of rape.
The
first count - Whether or not the complainant was raped more than once
[37]
The
enquiry
whether
the
accused
raped
the
complainant
more than
once is a
factual
matter. Each
case has to
be
decided
on its
own
facts.
In
S v
Blaauw
[3]
,
Borchers
J set
out
the
approach in
the
following
manne
r
:
"Mere
and
repeated
acts
of
penetration cannot
without
more,
in
my
view,
be
equated
with
repeated
and
separate
acts
of
rape.
A
rapist
who in the course of
raping his victim withdraws his penis, positions the victim's body
differently
and
then
again
penetrates
her,
will not,
in
my view, have committed rape twice.
This is what I
believe occurred when the
accused became dissatisfied
with
the
position he
had
adopted when he stood
the complainant
against
the tree. By
causing her
to lie
on
the
ground
and
penetrating
her
again
after
she
had
done
so,
the
accused was completing
the act of rape he had commenced
when they both
stood
against
the tree.
He
was
not
committing
another
separate
act of rape.
Each
case must be determined
on its
own
facts. As
a general
rule
the
more closely connected the separate acts of
penetration
are in terms of time (i.e. the intervals
between
them) and place, the less likely
a
court
will be to find that
a
series
of
separate
rapes has occurred. But
where
the accused has ejaculated and withdrawn his
penis
from the victim, if
he again penetrates
her
thereafter,
it should, in my view, be inferred
that
he
has formed the
intent to
rape
her
again,
even if
the
second rape takes
place soon
after
the
first
and
at
the
same
place."
[38]
In
S v
Mavundla
[4]
,
the
accused
penetrated
the complainant on the
bed,
then off
the bed and then on the bed again.
He
ejaculated on each of the acts
three
t
i
mes.
There was
no rest or
interrupt
i
on
between the acts.
Southwood
J, and
Preller J
concurring
held that
this
was
one
prolonged
act
of
intercourse.
The court
found
that
while ejaculation
could
determine the end of
intercourse,
that
did
not happen
in that
case.
There
was
no
suggestion
that
the
intercourse
ended and that the appellant withdrew
his penis
twice and formed
the
intention to rape the complainant on two further occasions
.
[39]
In
S
v Tladi
[5]
the
appellant
had been
convicted
of two
counts of rape in
the
regional
court
and
sentenced
to
l
i
fe
imprisonment.
The
trial
court
had
concluded
from
the
ev
i
dence
of
a witness
that
as there
were
two
screaming
bouts, the
complainant
had
been
raped
twice.
On
appeal,
it was
held
that
there was
no
justification
for this
conclus
i
on
as the complainant
herse
l
f
did not
i
ndicate
that
there
was
an
interrupt
i
on
in the
sexual
intercourse
suffic
i
ent
to
constitute
two
separate
acts
of
sexual
i
ntercourse.
The
complainant's
evidence
suggested
that the
sexual acts were closely
l
inked
and amounted to a single continuing course of conduct.
[40]
In S
v
Maxabaniso
[6]
the
evidence
showed that
the appellant
had raped
the
complainant
twice
during the
course
of
one
encounter
with
her. The
two
incidents
of
rape
were
separated
by an
interruption
when the
appellant
went to
the
toi
l
et.
I
t
was held
that
the rape
was not
one
continuous
course of
conduct.
[41]
In S
v
Molaza
[7]
relying
on
S
v
Maxabaniso
[8]
the
court
per
Opperman
J
and
Ishmael J
concurrin
g
,
held that the evidence proved that the complainant
was raped
twice in
that it
was common
cause
that
there
was a lapse
of
between
20
to
25
minutes
between
the
two
acts. The
first
intercourse
was
with
a condom
. The
appellant
went
to the
bathroo
m
,
he asked
his friends
to
boil water
for the comp
l
ainant
to drink and then had intercourse again with the complainant without
a condom.
[42]
Having considered the above cases, and taking into account that there
are many more cases that deal with the issue, I find
that the facts
in
S v
Ma
x
abaniso
and S
v
Molaza
are distinguishable to the matter before us.
There
is evidence that there was an interruption which was significant
between the two acts of rape. Further that the interruptions
were
initiated by the accused himself.
[43]
In the present matter the appellant threw the complainant on the bed,
penetrated her and while still on top of her, she told
him she wanted
to pee. He withdrew the penis after telling her to pee either on the
bed or inside a bucket which was in the room.
She opted to pee in the
bucket which was next to the bedroom door in an attempt to escape.
Unfortunately, the appellant followed
her, stood next to her as she
peed and immediately she was done, he threw her again on the bed and
continued to penetrate her.
While he was still busy, she told him
that she was HIV positive. He then looked for a condom which was not
far away according to
the evidence, put in on and continued the act.
He did not ejaculate but peed inside the condom and then changed it
and put another
one.
[44]
Each case has to be decided on its own facts. The interruption was
caused by the complainant. There is no evidence of the duration
of
the sexual intercourse nor of any significant interruptions between
the different acts. The evidence is clear that there were
some
interruptions. However, this took place within a short space of time.
There is no evidence to prove that the interruptions
in the sexual
intercourse were sufficient to constitute multiple acts of sexual
intercourse. The appellant was just completing
the act of rape that
he had commenced. I cannot therefore conclude that the appellant
formed separate intentions to rape the complainant
multiple times.
The evidence proves that this was one prolonged and continuous act of
rape.
[45]
Under the circumstances the trial court misdirected itself by
convicting the appellant of raping the complainant multiple times.
It
should have convicted him of rape under section 51(2) read with Part
Ill of Schedule 2 of the CLAA.
The
second
count
-
Whether
the
rape
committed
involved
the infliction
of
grievous
bodily
harm
[46]
The
test
for
ascertaining
whether grievous bodily
harm
has
been
inflicted
is
factual
and
objective.
The
correct
approach
to
that
enquiry
necessitates
a holistic consideration of all objective factors pertaining to the
incident,
with
a view to ascertaining whether bodily injuries were inflicted and
whether
they are of
a
serious
nature
[9]
.
[47]
For
harm
to
constitute
grievous bodily
harm,
it
must
be
such
as
seriously
to
interfere
with
comfort
or
health
[10]
.
[48]
The court in
S
v
Ferreira
[11]
set
the
approach as
follows:
"One must assess the
question whether the injuries are serious or not, directly with
reference to the particular victim who
has suffered them and not some
arbitrarily defined average human being."
[49]
The word
"grievous"
is defined in the Cambridge
English Dictionary as
"serious, severe, grave, bad, critical,
dreadful, terrible, awfuf'
.
The English
Oxford Dictionary defines the word as
"having very serious
effects or
causing
pain".
In my
view
"grievous bodily harm"
is more serious as it is
anything of severe detriment to the victim's health. The level of
injuries varies significantly.
[50] The J88 medical
report describes the injuries suffered by N[...] as follows: A
periorbital hematoma, laceration on both
eyelids, a 2 cm x 1 cm
laceration on the right jaw , a circular bruise on the right jaw ,
laceration on the upper chest, a 5 cm
x 5 cm bruise on the upper
shoulder, a bruise on the right breast and 2 cm x 3 cm of two
bleeding hematomas on her head, and a
2 cm x 2 cm laceration on the
right index finger. The doctor concluded that the above injuries were
consistent with physical abuse.
The following further injuries were
noted upon gynaecological examination: fresh abrasions on the labia
minora, posterior fourchette
and the fossa navicularis. With regard
to these injuries the doctor concluded that they were
consistent with sexual abuse.
[51]
From the doctor's evidence and the J88 medical report, the trial
court found that there was some kind of fight between the
appellant
and the complainant in the second count, and this caused her a lot of
injuries. It then convicted the appellant of rape
involving the
infliction of grievous bodily harm.
[52]
Mr Kgokane submitted that the injuries sustained by N[...] are
not that serious as can be categorised as those falling
under section
51(1) read with Part 1(c) of Schedule 2 of the CLAA.
[53]
In this instance, the complainant in the second count suffered
multiple bodily injuries which are superficial. These injuries
cannot, in my view, be regarded as grievous. It follows that the
trial court misdirected itself by concluding that the rape committed
involved the infliction of grievous bodily harm. The court a quo
should have convicted the appellant on a count of rape read with
the
provisions of section 51(2) read with Part Ill of Schedule 2 of the
CLAA.
The
appeal against sentence
[54]
The following personal circumstances of the appellant were placed on
record in mitigation of sentence: He was born on […]
and was
28 years old at the time of sentence. He was single and a father to a
two year old girl. The child stays with her mother
and receives a
grant. He did piece jobs to survive and earned approximately R200,00
per day. He went to school up to grade 11.
He spent eight months in
custody. He is a first offender .
[55]
Mr Kgokane for the appellant submitted the magistrate did not call
for sufficient evidence before she concluded that there
were no
substantial and compelling circumstances. The trial court had a duty
to ensure that all the relevant evidence was
placed before it
prior to sentencing the appellant. There were no pre-sentence and
victim impact reports. Mr Marriot for the State
disagreed.
[56]
In aggravation of sentence the State made the following submissions :
The offences committed were serious and prevalent. The
appellant
committed the second rape when he was on bail for the first rape. He
contravened his bail conditions . Both complainants
were known to the
appellant. He did not respect the sexual preference of the second
complainant.
[57]
He exposed both complainants to sexually transmitted diseases and HIV
and AIDS as he penetrated them without a condom and only
put on a
condom when the complainant in the first count lied to him that she
was HIV positive.
[58]
He caused injuries to both complainants during the rape.
N[...] sustained a bruise on her upper lip and multiple
abrasions in
the fossa navicularis. N[...] had multiple injuries all over
her body and fresh abrasions in the labia minora,
posterior
fourchette and fossa navicularis.
[59]
In S
v
Malgas
[12]
,
it was
held that
the appeal court can only interfere with the
sentence
imposed by
the
trial
court
where it
is
vitiated·
by
a
material
m
i
sdirection
or
where
the
disparity
between
the
sentence
that
the
trial
court and
the sentence that the appellate court would
have
imposed
had
it been the trial court, is so marked
that
i
t
can
be
described
as
"shocking",
"startling
"
,
or
"disturbingly
inappropriat
e
"
(see
also
Madiba
v S
[13]
).
[60]
The fact that I have found that the trial court should have convicted
the appellant on the two counts of rape under the provisions
of
section 51(2) read with Part Ill of Schedule 2 of the CLAA entitles
this Court to interfere with the sentence that has been
imposed. The
section provides that a first offender who is convicted of rape is
liable to be sentenced to a minimum period of 10
years' imprisonment
unless, in terms of section 51(3) thereof, the court is satisfied
that
"substantial
and
compelling
circumstances
"
exist which justify the
imposition of a lesser sentence.
[61]
I
n
S
v
Malga
s
[14]
endorsed
in S
v
Dod
o
[15]
,
i
t
was held
that it is
incumbent
upon
a
court
in
every case
before
it
imposes
a
prescribed
sentence
,
to
assess upon
a consideration of all the circumstances of
the
particular case,
whether
the
prescribed
sentence
i
s
i
ndeed
proportionate
to
the
part
i
cular
cas
e
.
[62]
The sentence imposed by the trial court is disturbingly
disproportionate with the offences committed. There is in any event
a
striking disparity between the sentence imposed in the trial court
and that which this Court would have imposed had it sat as
a trial
court.
[63] Having considered
the matter, I conclude that the aggravating circumstances in this
matter far outweigh the mitigating factors.
The appropriate sentence
to be imposed under the circumstances is a sentence of 10 years'
imprisonment in each of the counts of
rape. Effectively the appellant
has to serve a period of 20 years' imprisonment. In the circumstances
the sentence falls to be
set aside.
[64]
In the result I make the following order:
1.
The appeal against the conviction of the appellant of rape on
each the two counts under the provisions of section 51(1) read with
Part 1 of Schedule 2 of the CLAA is upheld and the conviction of the
appellant by the regional court of rape on each of the two
counts
under the provisions of section 51(1) read with Part 1 of Schedule 2
of the CLAA is set aside and the following order is
substituted in
its stead:
"
The
accused
is
convicted
of
rape
on
each
count
that
is
read
with the provisions
of
s
51(2) read
with Part Ill
of
Schedule
2 of the CLAA.
2.
The appeal against sentence is upheld and the sentence imposed
by the regional court is set aside and the following sentence is
substituted in its stead:
"
On
count
1
,
the
accused
is
sentenced
to
10
year
s
'
imprisonment.
On
count 2, the accused
is
sentenced
to
10
years'
imprisonmen
t
."
M
J TEFFO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
agree:
P
D PHAHLANE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Appearances
For
the appellant: J L Kgokane
Instructed
by: Legal Aid South Africa
Pretoria
For
the respondent: M Mariot
Instructed
by: The Director of Public Prosecutions
Date
Heard: 18 February 2021
Date
of judgment: 29 June 2021
[1]
S
v
Francis
1
991
(1) SACR
1
98
(A) at 198J-199A,
S
v
Hadebe and Others
1
997
(2) SACR 641
(SCA) at
645E-F
[2]
S
v
Stevens
2005
(1)
All
SA 1
(SCA)
[3]
1999 (2) SACR 295
C'JV) at 300a-g
[4]
2012 (1) SACR 548 (GNP)
[5]
2013 (2) SACR 287 (SCA)
[6]
20
1
5
(2)
SACR
553
(ECP)
[7]
2020 JDR 1489 (GJ)
[8]
Supra
[9]
Director
of
Public Prosecutions Gauteng Division, Pretoria v Moabi
2017
(2) SACR 384 (SCA)
[10]
Rex v
Ashman
[1858)
1
F
& F
88,
[1858) Eng
R 88 (C)
[11]
1961 (3) SA 724
(E) at 725F-G
[12]
2001(1) SACR 469 (SCA) at 478E-H
[13]
[2015] JOL 33686 (SCA)
[14]
Supra
[15]
[2001] ZACC 16
;
2001 (3) SA 382
(CC)