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[2017] ZASCA 114
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Otto v S (988/2016) [2017] ZASCA 114; 2019 (3) SA 189 (WCC) (21 September 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 988/2016
In
the matter between:
GERHARDUS
PIETER
OTTO
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Otto
v State
(988/2016)
[2017] ZASCA 114
(21
September 2017)
Coram:
Swain
JA, Plasket, Molemela, Mokgohloa and Mbatha AJJA
Heard:
6 September 2017
Delivered:
21 September 2017
Summary
:
Criminal
law – appeal against conviction of rape – appellant
failed to testify – conceded by appellant that sexual
intercourse proved – lack of consent and intention also proved
– appeal against conviction dismissed – appeal
against
sentence – no misdirection on part of court below and sentence
of 22 years imprisonment not shockingly inappropriate
– appeal
against sentence dismissed.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Mphahlele J and Petersen AJ sitting as court of
appeal):
The
appeal against both conviction and sentence is dismissed.
JUDGMENT
Plasket
AJA (Swain JA, Molemela, Mokgohloa and Mbatha AJJA concurring):
[1]
The appellant was convicted, in the regional court, Heidelberg, of
having raped the complainant, his niece. He was sentenced
to ten
years’ imprisonment. He appealed to the Gauteng Division of the
High Court, Pretoria against conviction. The State
cross-appealed
against the sentence imposed on the appellant. The appeal against
conviction was dismissed by Petersen AJ, with
Mphahlele J concurring,
but the State’s appeal against sentence succeeded. The
appellant’s sentence was increased to
22 years’
imprisonment. He now appeals against both conviction and sentence and
does so with the special leave of this court.
Conviction
The
facts
[2]
The complainant testified that she, her parents and her younger
brother spent the night of 23 July 2011 at the townhouse of
her uncle
– the appellant – his wife and their two sons.
[3]
The townhouse had two bedrooms. The complainant’s parents and
her brother slept in one, while the appellant and her aunt
slept in
the other. She slept on a couch in the living area. Her cousins slept
in the same general area but a curtain separated
them from her.
[4]
The complainant’s parents, her aunt and the appellant had gone
out for a meal. When they returned, her parents went to
bed, as did
her brother. Her aunt and the appellant watched television for a
while. Her aunt then went to her bedroom but the appellant
remained
in the living area.
[5]
While the complainant dozed on the couch, she felt someone touching
her upper body. She opened her eyes and saw that the person
doing so
was the appellant. He then tried to kiss her but she told him to
stop. The appellant left the room. The complainant turned
her body so
that she faced the back-rest of the couch. The appellant returned and
told her to look at him. When she did not, he
forced her face towards
him and thrust his penis into her face. He told her to sit up and he
sat next to her. He told her to suck
his penis. She initially refused
but then did so because she thought that if she did so for a while,
he would leave her alone.
When, however, he thrust his penis too deep
into her mouth, she choked.
[6]
The complainant stood up and the appellant pushed her to the kitchen
where he stripped her of her panties and pants. He first
penetrated
her vaginally and then anally.
[7]
After this they returned to the couch in the living area where the
appellant instructed the complainant not to tell anyone about
what he
had done to her because, if she did, he would go to jail. The
following morning, the complainant and her family left to
return to
their home. In his evidence, the complainant’s father said that
he had noticed that the complainant had not been
herself that
morning: she was quiet and withdrawn.
[8]
On 27 July 2011, the complainant told her grandmother that she had
been raped by the appellant. Shortly thereafter, she was
medically
examined. The examination revealed injuries to her vagina and anus
that were consistent with her having been penetrated
in the recent
past.
[9]
The appellant’s version, as put to the complainant in
cross-examination, was a denial of having had sexual contact or
intercourse with her at all. He opted not to testify with the result
that there was no evidence before the court of any version
but that
testified to by the complainant.
The
issues
[10]
The gravamen of the appellant’s heads of argument was that the
State had failed to prove beyond reasonable doubt that
the appellant
had sexually penetrated the complainant because her evidence was
contradictory in certain respects, was inconsistent
in respect of
what she had told her grandmother and father concerning the incident
and was improbable in various ways.
[11]
Mr Strijdom, who appeared for the appellant, was constrained to
concede, however, that the acts of sexual penetration testified
to by
the complainant had been established by the State. In the light of
the medical evidence and the appellant’s failure
to testify –
and despite any criticism that could be levelled against the
complainant’s evidence – that concession
was justifiably
and correctly made. This concession puts paid to a great deal of the
criticism of the complainant’s evidence
as well as the argument
relating to the improbability of the appellant having sexual
intercourse with the complainant in such close
proximity to where his
sons were.
[12]
In argument before us, the principal issue was whether the court
below was correct in its findings that the complainant had
not
consented to the three acts of sexual penetration and that the
necessary intention on the part of the appellant had been proved.
[13]
Rape is no longer a common law crime. It is now an offence defined by
statute, the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
.
Section 3
of the Act provides:
‘
Any
person (“A”) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (“B”),
without the consent of B, is guilty of the offence of rape.’
[14]
The term 'sexual penetration' is defined by
s 1(1)
to include ‘any
act which causes penetration to any extent whatsoever by . . . (
a
)
the genital organs of one person into or beyond the genital organs,
anus, or mouth of another person’.
[15]
In terms of
s 1(2)
, consent, for purposes, inter alia, of the offence
created by
s 3
means ‘voluntary or uncoerced agreement’.
Section 1(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 is an abuse of power or authority
by
A to the extent that B is inhibited from indicating his or her
unwillingness or resistance to the sexual act, or unwillingness
to
participate in such a sexual act’.
[16]
The onus rests on the State to prove all of the elements of the
offence of rape, including the absence of consent and intention.
This
is so even where, as in this case, the version put to the complainant
by the appellant’s legal representative was a
denial of any
sexual contact with her. That false version makes the State’s
task a great deal easier,
[1]
as does the
fact that the appellant decided not to testify.
[2]
[17]
The court below considered the twin issues of consent and intention
in some detail. It considered the evidence of the complainant
that,
when the appellant first kissed her, ‘she refused and said no’;
that after the appellant left the room and then
returned, she refused
to turn around and look at him as he had instructed her to do; that
when he physically forced her head towards
him, he thrust his penis
into her face; that he then told her to suck his penis and that she
had, at first, refused but then did
so in the hope that by ‘playing
along’ for a while, he would then leave her alone; that, after
he had choked her by
thrusting his penis too deep into her mouth, he
pushed her to the kitchen, took off her panties and pants and
penetrated her.
[3]
[18]
The court below concluded from this evidence:
[4]
‘
The
legal principles applied to the complainant’s evidence on
consent as highlighted
supra
,
demonstrates that the consent by the complainant was neither real,
given voluntarily nor demonstrated tacitly. The appellant
irrespective of denying intercourse could not have reasonably
believed that the complainant had consented to the kissing, the
sucking
of his penis or the vaginal or anal penetration, all acts
which on their own constitute either sexual penetration or sexual
violation.
In that regard he acted both unlawfully and had the
requisite
mens
rea
to rape the complainant.’
[19]
Mr Strijdom was unable to point to any misdirection in the court
below’s consideration of the facts and conclusion that
the
State had indeed proved a lack of consent on the part of the
complainant and the necessary intention on the part of the appellant.
I too can detect no misdirection. In the result, the appeal against
conviction must fail.
Sentence
[20]
The jurisdiction of a court of appeal to interfere with the sentence
imposed by a trial court is limited. In
S
v Bogaards
[5]
Khampepe J
stated:
‘
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences
imposed by courts
below is circumscribed. It can only do so where there has been an
irregularity that results in a failure of justice;
the court below
misdirected itself to such an extent that its decision on sentence is
vitiated; or the sentence is so disproportionate
or shocking that no
reasonable court could have imposed it.’
[21]
In
S
v Malgas
[6]
Marais JA
held that when a court imposes sentence in respect of an offence
referred to in the
Criminal Law Amendment Act 105 of 1997
it is no
longer given a ‘clean slate on which to inscribe whatever
sentence it thought fit’: instead, it is required
‘to
approach that question conscious of the fact that the legislature has
ordained life imprisonment or the particular prescribed
period of
imprisonment as the sentence which should
ordinarily
be imposed for the commission of the listed crimes in the specified
circumstances’. The emphasis, he held, was on ‘the
objective gravity of the type of crime and the public’s need
for effective sanctions against it’. The appellant’s
crime – the rape of a person younger than 16 years of age –
attracts a prescribed sentence of life imprisonment in
the absence of
substantial and compelling circumstances to justify a less severe
sentence.
[7]
[22]
Mr Strijdom argued that the sentence imposed by the court below was
shockingly inappropriate and ought to be interfered with
on this
basis. To determine whether there is any substance in the
argument, it is necessary to consider the three sets of
interests
that are required to be balanced in the sentencing process.
[23]
The court below found that the personal circumstances of the
appellant were generally positive. He was 40 years old at the
time of
the commission of the offence, a first offender, in stable employment
and his family’s breadwinner. He displayed
no remorse for
violating his niece. As a result of his false denial, it must be
added, he put her through the gruelling, unpleasant
experience of
having to testify about her ordeal. While the appellant’s lack
of remorse is not an aggravating factor,
[8]
it is
indicative of a failure on his part to take responsibility for his
actions and of an absence of empathy for his victim. The
court below
took most of these factors into account.
[9]
[24]
It also considered his conduct in relation to the complainant when it
said:
[10]
‘
The
appellant abused the relationship of trust of an uncle over his
niece. He callously and unperturbed by the presence of his sons
and
family members in the house, satisfied his sexual desires with the
young complainant. He violated the innocence of the complainant
both
physically as she was a virgin; and emotionally by telling her he
would be imprisoned if she spoke out, perpetuating this
by taking her
cellphone number and phoning her to remind her.’
[25]
These points, it seems to me, go to the seriousness of the offence.
In addition, the appellant penetrated the complainant three
times in
three different ways. The court below also had regard to the
consequences of the rape upon the complainant. While the
physical
injuries she suffered would have healed fairly quickly, the emotional
trauma that she suffered was of an altogether different
character:
the court below recorded (from the pre-sentence report of a social
worker) that while the complainant ‘had received
counselling,
at the time of sentencing in 2013, she still suffered from the
post-traumatic effects of the rape’, that it
‘adversely
affected her behaviour and interaction with older men’ and that
it had also affected the quality of her
life.
[11]
[26]
The court below also considered the interests of society. After
observing that society’s interests ‘in serious
crimes
involving the abuse of women and children’ has been considered
by this court on a regular basis, the court below proceeded
to refer
to dicta in some of these cases.
[12]
They
cumulatively express concern at the fact that abuse of women and
children ‘has now morphed into a scourge to our nation’;
[13]
that
‘[d]omestic violence has become a scourge in our society’
which should not be ‘treated lightly’ and
should be both
‘deplored’ and ‘severely punished’;
[14]
and that the
‘rights of children are all too frequently and brutally
trampled over in our society’ and that those guilty
of this
conduct ‘must face the wrath of the courts’.
[15]
[27]
The court below concluded in respect of the interests of society:
[16]
‘
Government
and society are alive to the scourge of abuse of children. Despite
all positive attempts, we are no closer to eradicating
this evil in
our society. Courts operate in society and must through their
sentencing discretion promote respect for the law. A
message must be
sent to others of like mindedness that “we are determined to
protect the equality, dignity and freedom of
all and we shall show no
mercy to those [who] seek to invade those rights”.’
[28]
While I agree with the sentiment that stern sentences are required to
punish those who abuse the vulnerable in our society,
and to deter
those who may be tempted to do so, the idea that no mercy should be
shown to them overstates the point. Each case
must be decided on its
own facts and, as Holmes JA held in
S
v Rabie
,
[17]
punishment
should ‘fit the criminal as well as the crime, be fair to
society, and be blended with a measure of mercy according
to the
circumstances’.
[29]
The court below then turned to a determination of the sentence and,
after considering the ‘totality of the facts’,
it
concluded that while a sentence of life imprisonment would have been
disproportionate and thus inappropriate, ‘the facts
of this
matter justify a sentence at the higher scale of the deviation from
the mandated sentence’.
[18]
It
considered a sentence of 22 years imprisonment to be appropriate in
the circumstances.
[19]
[30]
I can detect no misdirection in the court below’s approach to
sentence. The offence, for the reasons cited above, is
a particularly
serious one. The personal circumstances of the appellant have been
properly weighed against the seriousness of the
offence and the
interests of society. Far from inducing a sense of shock, the
carefully considered sentence imposed by the court
below strikes me
as being one that is proportionate to ‘the crime, the criminal
and the legitimate needs of society’.
[20]
[31]
That being so, no basis has been established for this court to
interfere with the sentence imposed by the court below. The
appeal
against sentence must therefore fail.
The
order
[32]
The appeal against both conviction and sentence is dismissed.
_________________
C
Plasket
Acting
Judge of Appeal
APPEARANCES:
For
the Appellant:
JJ Strijdom SC
Instructed
by:
OA De Meyer Attorneys, Pretoria
Stander &
Vennote, Bloemfontein
For
the Respondent:
C
Harmzen
Instructed
by:
Director of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
S v York
2002 (1) SACR 111
(SCA) para 19. See too
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 47.
[2]
S v
Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para 24;
S
v Vilakazi
(fn 1) para 48.
[3]
Judgment
para 26.
[4]
Judgment
para 28.
[5]
S v
Bogaards
[2012] ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[6]
S v
Malgas
2001 (1) SACR 469
(SCA) para 8.
[7]
See
Criminal Law Amendment Act, s
51(1) and
s 51(3)
, read with
Part 1
of
Schedule 2.
[8]
S v Hewitt
[2016] ZASCA 100
para 16.
[9]
Judgment
para 38.
[10]
Judgment
para 40.
[11]
Judgment
para 51.
[12]
Judgment
paras 41-43.
[13]
S v
Mashigo & another
[2015] ZASCA 65
para 31.
[14]
S v
Kekana
[2014] ZASCA 158
para 20.
[15]
S v P
2000 (2) SA 656
(SCA) para 13.
[16]
Judgment
para 44.
[17]
S v
Rabie
1975 (4) SA 855
(A) at 862G-H.
[18]
Judgment
para 50.
[19]
Judgment
para 52.2.
[20]
S v
Malgas
(fn 6) para 22.