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[2020] ZALMPPHC 82
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Shai v S (A14/2019) [2020] ZALMPPHC 82 (21 October 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: A14/2019
In
the matter between:
COSTA
THABALESOKA SHAI
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant was
arraigned in the regional court for Phalaborwa on one count of rape
read with the provisions of section 51 (1)
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (CLAA). He appeared before
Nkuna PD and was found guilty as charged
and sentenced to life
imprisonment. Since life imprisonment was imposed by the regional
court, the appellant enjoys an automatic
right of appeal. The
appellant is appealing against both conviction and sentence.
[2]
The background facts are as follows. During trial the appellant has
pleaded not guilty to the
count of rape and his plea explanation was
that of consensual sex intercourse. The complainant’s version
was that on 15
th
December 2012 around 23h00 she was
walking alone from Namakgale Topville going home to Mashishimale
village. As she was walking,
she passed two men who greeted her but
she did not respond to them. After passing the two men, when she
looked back, she noticed
that the two men were following her. She
started running. The two men caught her in the bushes between
Mashishimale and Topville.
She screamed for help but she did not get
any. The two men took her to the bushes of Mashishimale.
[3]
In the bushes, one of the men (first man) pushed her down to the
ground. When she was on the ground,
the other man (second man) took
off her pants and panty. After taking off her pants and panty, the
first man inserted his penis
into her vagina and had sexual
intercourse with her without her consent. The first man did not
ejaculate, but withdrew his penis
out of her vagina. The second man
took off his trouser and underwear whilst the first man was holding
her by her shoulders. The
second man put on a condom on his penis and
inserted his penis into her vagina. Thereafter the second man had
sexual intercourse
with her without her consent.
[4]
After the second man was finished, the first man made her to lie on
her stomach and put his penis
into her anus and had sexual
intercourse with her without her consent. After he had ejaculated
both the first and second man wiped
their penises with tissues and
threw the tissues to the ground. Thereafter they put on their
trousers and asked her whether she
was going to report them to the
police and she said no. After that they left her, she put on her
panty and trouser.
[5]
She then phoned her brother Sello who came and took her home. On
arrival at home she explained
to her parents what had happened to
her. A criminal case was opened with SAPS and she was taken to
hospital where she was examined
by a doctor.
[6]
The men who raped her, were unknown to her and she has never seen
them before prior to the incident.
However, she will be able to
identify one of the perpetrators. She does not know the accused
before court. She stated that she
was later phoned by a police
officer who informed her that a suspect in her rape case has been
arrested, and that the said suspect
was the appellant. The
investigating officer further told her that the appellant was linked
by DNA tests results. She denied that
she had consensual sex
intercourse with the appellant.
[7]
The second witness for the State was Lucas Mokgalabone the brother of
the complainant. He corroborated
the version of the complainant. He
stated that he found the complainant standing on the road crying and
she told him that she had
been raped by two men in the bushes. She
further told him that she did not know the people who have raped her.
[8]
The appellant testified under oath and denied the complainant’s
version. He stated that
prior to the 15
th
December 2012
the complainant was unknown to her. He stated that on 15
th
December 2012 at about 20h00 he was walking along the street when he
found the complainant sitting on a boundary wall of a certain
homestead. He asked the complainant what she was doing at night and
the complainant told her that she had a fight with her boyfriend.
He
proposed love to her but she did not accept his proposal.
[9]
The appellant decided to leave the complainant alone. As he was about
to leave her, the complainant
told him to accompany her and that they
will talk along the way. The complainant told the appellant that she
will give him what
he wanted on the way even though she is in a love
relationship with someone from Topville.
[10]
They walked together to the direction of Mashishimale. When they
reached the bushes of Mashishimale and Topville,
he asked the
complainant where they were going to do it. The complainant replied
by telling the appellant that they can do it anywhere.
The
complainant then took off her jean and put it on the ground. The
appellant took off his shirt and laid it on the ground. The
complainant lied on his shirt and the appellant took off his trouser.
He climbed on top of her and they started having consensual
sex
intercourse.
[11]
The appellant stated he had sexual intercourse with the complainant
once and that he was not in the company
of anyone. He had penetrated
her into her vagina and also ejaculated into her vagina. After they
have finished having sex, he continued
accompanying her. When they
were close to Mashishimale, the appellant told the complainant that
he was turning back as he was coming
very far and it was late at
night. The complainant told the appellant that he must accompany her
up to her homestead, they are
having a car and she will request her
parents to take him home. The appellant told the complainant that he
will not accompany her
up to her homestead since it was late at
night, and further that he will not know what her parents will do to
him since it was
late at night. The complainant told him that her
boyfriend from Topville was Zacharia Malesa. The appellant knew
Zacharia. The
appellant then left the complainant. As the appellant
was walking to Topville, he met Zacharia who seemed to be searching
for someone.
[12]
The appellant stated that he was arrested during 2014. When he was
arrested the police told him that the
complainant had laid a charge
of rape against him. The appellant denied that he had penetrated the
complainant in her anus.
[13]
The appellant in the case at hand has pleaded consent and dispute
having had sex with the complainant more
than once. It is trite that
the onus rests on the State to prove all the elements of the offence
of rape, including the absence
of consent and intention.
[14]
The first issue which this court must determine is whether the
complainant had not consented to sexual intercourse
with the
appellant and also whether the necessary intention on the part of
appellant had been proved.
[15]
In terms of section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
(CLA) any person who
unlawfully and intentionally commits an act of sexual penetration
with a complainant without the consent of
the complainant is guilty
of the offence of rape.
[16]
In
Otto
v State
[1]
the Court said:
“
In
terms of s (2), consent for purposes, inter alia, of the offence
created by s 3 means voluntary or uncoerced agreement. Section
(3)
provides that the circumstances in respect of which a complainant
‘does not voluntarily or without coercion agree to
an act of
sexual penetration include, but are not limited to ‘the
situation’ where there are abuse of power or authority
by A to
the extent his or her unwillingness or resistance to the sexual act,
or unwillingness to participate in such a sexual act’.“
[17]
The complainant testified that after the appellant had finished
raping her and had left, she phoned her brother
to come and collect
her. This version was corroborated by the complainant’s brother
who testified that he found the complainant
alone and crying and she
told him that she was raped by unknown men. There is no evidence that
on the day in question the complainant
was drunk. It is therefore
impossible that if the complainant was sober, and had accepted the
love proposal by the appellant and
thereafter agreed to have had
consensual sexual intercourse with her, she would have done so
without even asking his name. Both
the complainant and the appellant
met each other for the first time on the day in question and did not
know each other. Common
sense dictates that they would have
introduced themselves to each other and if they started showing
interest in each other they
would have told each other their names
and where they come from. Whether the information they are giving
each other is correct,
is immaterial. However, from the transcribed
record it does not show that this was the case and was what happened.
According to
the appellant’s version the complainant just
agreed to be accompanied by a total stranger without verifying his
details and
on the way she agreed to have sex with him still without
verifying the details of the person she was about to have sex with.
This
I find to be improbable.
[18]
The reason for accompanying the complainant was that it was late at
night and the complainant was staying
far. The appellant was supposed
to have accompanied the complainant home. However, after getting
satisfaction, the appellant was
no longer willing to accompany the
complainant up to her homestead despite it being late at night and
despite the complainant offering
that she will talk to her parents to
take the appellant to his homestead. Suddenly, the appellant was
afraid of the complainant’s
parents, whilst before he got
satisfaction he did not think about them. This version I find not to
be reasonably possibly true.
If indeed it was a consensual sexual
intercourse and they both have enjoyed themselves, he would not have
had any problems in accompanying
the complainant up to her homestead
and make sure that his newly found love has arrived home safe.
[19]
Even from the appellant’s own version, he found the complainant
late at night, on the street after
she had fought with her boyfriend
and that she was staying far. The appellant found the complainant
stranded and vulnerable and
took advantage of the situation.
According to the appellant when he first met the complainant he
proposed love to her and she refused.
He then told the appellant that
he was leaving her alone. As he was leaving, the complainant asked
him to accompany her and that
she will give him what she wanted on
the way even though she is in a relationship with someone. They
walked until they were in
the bushes of two villages. They were now
in the middle of nowhere and that is when he asked the complainant
where they were going
to do it.
[20]
That shows that the complainant did not have any other alternative
but to succumb to the appellant’s
demand. If she did not accede
to the appellant’s demand, she would have been left stranded in
the middle of the night in
the bushes, hence she told him that she
will give him what he wanted even though she is in a relationship
with someone. The appellant,
waited until they were in the middle of
two villages, in the bushes, late at night and wanted to know where
they were going to
do it. The appellant knew that since they were in
the bushes, late at night and between two villages, the complainant
was now more
vulnerable to have refused his demand. In my view, if
the court was to accept the appellant’s version, that shows
that the
complainant’s was coerced by the situation she was in
to accede to the appellant’s demand.
[21]
In
Mugride
v S
[2]
Erasmus AJA said:
“
The
law requires further that consent be active and therefore mere
submission is not sufficient. In Rex v Swiggelaar Murray AJA
commented as follows: ‘The authorities are clear upon the point
that though the consent of a woman may be gathered from her
conduct,
apart from words, it is fallacious to take the absence of resistance
as proof of consent. Submission by itself is no grant
of consent, and
if a man intimidates a woman to induce her to abandon resistance and
submit to intercourse to which she is unwilling,
he commits rape. All
the circumstances must be taken into account to determine whether
passivity is proof of implied consent or
whether it is merely the
abandonment which the woman, whilst persisting in her objection to
intercourse, is afraid to display or
realizes is useless.”
[22]
According to the appellant’s version, the complainant has left
her boyfriend’s homestead because
they fought. It was late at
night and the complainant did not wish to go back to the boyfriend’s
homestead. She wanted to
go home, but was far. There was a stranger
who offers assistance but at a price. The only way to arrive home
safely was to give
the stranger what he wanted. It was therefore
useless for the complainant to continue resisting the appellant’s
demands if
she wanted to arrive home safely. That submission, in my
view, does not satisfy the requirement of active consent. The State
has
therefore proved that the appellant had the necessary intention
to rape the complainant.
[23]
Taking into consideration the evidence presented in its totality, in
my view, the evidence of the appellant
is false beyond reasonable
doubt, and the trial court was correct in rejecting it. The trial
court has correctly accepted the version
of the complainant that she
did not consent to have sexual intercourse with the appellant. On
conviction there is nothing to fault
the trial court. Therefore, on
conviction, the appeal stands to fail.
[24]
Turning to sentence, it is trite that sentencing is the prerogative
of the trial court, and should not lightly
be interfered with. At
appeal in which interference with the sentence will be justified is
when it is found that the trial court
has misdirected itself in some
respect or if the sentence imposed was so disturbingly
disproportionate that no reasonable court
would have imposed it. The
test is not whether the trial court was wrong, but whether it
exercised its discretion properly. ( See
S
v Romer
[3]
).
[25]
The appellant was charged with rape that was falling under section 51
(1) Part I of Schedule 2 of the CLAA
in that it is alleged that the
complainant was raped by more than one person and more than once. The
trial court in its judgment
has found that the complainant was raped
by more than one person. Ordinarily the trial court was compelled to
impose life imprisonment
unless it finds that substantial and
compelling circumstances exists which justifies the deviation from
the prescribed minimum
sentences.
[26]
The question to be determined is whether the State has managed to
establish jurisdictional facts for this
rape to fall under section 51
(1) of the CLAA. To determine whether jurisdictional facts have been
established the issues to be
determined are whether the complainant
was raped by more than one person; or whether the appellant has raped
the complainant more
than once; or whether the complainant was below
the ages of sixteen when she was raped. The third issue is not
applicable in this
case as there is no evidence presented that the
complainant was below the ages of sixteen.
[27]
Dealing with the first issue, the complainant’s evidence proves
that she was raped by more than one
person. However, it is only the
appellant who was before the trial court.
[28]
In
Mahlase
v The State
[4]
the court said:
“
The
second misdirection pertained to the sentence imposed for the rape
conviction. The court correctly bemoaned the fact that Ms
DM was
apparently raped more than once and in front of her colleagues. The
learned judge however overlooked the fact that because
accused 2 and
6 who were implicated by Mr Mahlangu, were not before the trial court
and not yet been convicted of rape, it cannot
be held that the rape
fell within the provisions of Part 1 Schedule 2 of the
Criminal Law
Amendment Act (where
the victim is raped more than once) as the high
court found that it did. It follows that the minimum sentence for
rape was not
applicable to the rape conviction and the sentence of
life imprisonment must be set aside.”
[29]
The case at hand is not distinguishable from the Mahlase case. The
other person implicated by the complainant
was not before the trial
court, and no evidence was presented to show that the other person
has been convicted for the rape on
the complainant. Therefore, the
minimum sentence under
Part I
Schedule 2 is not applicable to the
rape which the appellant has been convicted of. The trial court has
therefore misdirected itself
and the sentence of life imprisonment
stand to be set aside.
[30]
Turning to the second issue whether the appellant had raped the
complainant more than once, the appellant
was linked to this offence
by the DNA found deposited in the complainant’s anus. According
to the complainant’s evidence,
the person who penetrated her
first, had penetrated her in her vagina, but had withdrawn his penis
before ejaculating. Thereafter
she was penetrated by the second
person in her vagina and that the second person had used a condom.
After the second person had
finished, the first person came back
again, turned her and made her to lie with her stomach and thereafter
penetrated her in her
anus, and that is when he ejaculated.
[31]
The question is whether these two acts can be regarded as
constituting more than one rape. In
Tladi
v The State
[5]
the court said:
“
The
second issue in this appeal is whether the state proved that there
were two separate incidents of rape. In S v Blaauw the court
said:
‘
Mere
and repeated acts of penetration cannot without more, in my mind, be
equated with repeated acts of rape. A rapist who in the
course of
raping his victim withdraw his penis, positions the victim’s
body differently and then 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 a 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 a 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: (my
emphasis.)”
[32]
The evidence by the complainant is that she was raped by two unknown
people. The first person who penetrated
her in the vagina also
penetrated her in the anus where he ejaculated. The second person to
penetrate her in her vagina used a
condom. The DNA found deposited in
the complainant’s anus was linked to the appellant. Therefore,
the appellant is the person
who had penetrated the complainant both
in her vagina and anus.
[33]
There is insufficient information as to what made the appellant to
withdraw his penis before ejaculating
and give the second person an
opportunity to rape the complainant. We don’t have information
whether the appellant was removed
or called by the second person
before he could finish or the appellant did so on his own; whether
the appellant withdrew his penis
as a result of it losing its
erection and also the time period that lapsed before he penetrated
the complainant again. All that
we have is that for the first time
the appellant did not ejaculate. If a rapist penetrates the victim in
her vagina, and before
he ejaculates withdraws his penis and
penetrate her in the anus where he ejaculates, in my view, that is
one continuous act, and
he did not form two separate intentions.
[34]
In the case at hand after the appellant had withdrawn his penis, he
was interrupted by the second person
who penetrated the complainant
before the appellant penetrated the complainant again. The evidence
of the complainant suggests
that after the complainant had withdrawn
his penis, the second person put a condom and raped her. Then after
the second person
had finished, she was turned and made to lie on her
stomach where the appellant immediately penetrated her in her vagina.
It does
not seem that there was any waiting period or that after the
appellant had withdrawn his penis for the first time, it lost its
erection and had to wait for it to regain its erection again. It
seems whilst the second person was busy the appellant was still
having his erection, hence after the second person had finished he
immediately penetrated the complainant in the anus.
[35]
The evidence of the complainant suggests that the two acts by the
appellant were closely linked. Even if
he was interrupted by the
second person, it seems the two perpetrators were just giving each
other chance to penetrate the complainant
in the vagina before they
turned her to lie on her stomach since the other one was using a
condom whilst the other was not. The
evidence by the complainant does
not suggest that after the second person had finished, there was a
lapse of time before the appellant
penetrated her in her anus. In my
view, what the appellant did was a single continuing course of
conduct and does not amount to
two separate acts of rape. There is
insufficient evidence to establish the guilt of the appellant on two
separate counts of rape.
That explains why the trial court did not
deal with the issue whether the complainant was raped more than once
by the appellant.
[36]
In the light that the State has failed to establish jurisdictional
facts for the trial court to impose life
imprisonment, the rape which
the appellant has been convicted of falls within the ambit of
Part
III
of Schedule 2 where the prescribed sentence for a first offender
is 10 years, second offender 15 years and third offender 20 years.
The appellant is a first offender. The appeal on sentence stand to
succeed.
[37]
In the result I make the following order:
37.1
The appeal against conviction is dismissed.
37.2
The appeal against sentence is upheld.
37.3
The sentence of life imprisonment imposed by the trial court on the
appellant is set aside and substituted with
the following:
“
The
accused is sentenced to 10 years’ imprisonment”
37.4
The sentence is antedated to the 24
th
January 2019.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE
I
AGREE
M
NAUDE AJ
ACTING
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCE:
Counsel
for the Appellant
: SM MAWASHA
Instructed
by
: LEGAL AID SA POLOKWANE
Counsel
for the Respondent
: V JACK
Instructed
by
: DPP LIMPOPO POLOKWANE
Date
of hearing
: 4
TH
SEPTEMBER 2020
Date
of judgment
: 21
ST
OCTOBER 2020
[1]
[2017] ZASCA 114
(21 September 2017 at para 15
[2]
2013 (2) SACR 111
(SCA) at para 40
[3]
2011 (2) SACR 153
(SCA) at paras 22 and 23
[4]
[2011] ZASCA 191
(29 May 2013) at para 9
[5]
[2012] ZASCA 85
(31 May 2013) at para 12