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[2019] ZANCHC 4
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Stefaans v S (CA&R40/2018) [2019] ZANCHC 4 (25 February 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: CA&R40/2018
Heard on: 29/10/2018
Delivered:
25/02/2019
In
the matter between
THEMBA
STEFAANS
Appellant
V
THE
STATE
Respondent
Coram: Pakati J
et Mamosebo J
JUDGMENT
ON APPEAL
PAKATI
J
[1]
This is an appeal by Mr Themba Stefaans, the appellant, against both
his conviction and sentence imposed by
the Regional Magistrate C
Kgopa delivered on 15 December 2017. He was convicted on two counts,
Count 1: rape and Count 2 is that
of kidnapping. The appellant had
pleaded not guilty to both counts, and tendered an explanation that
the rape was consensual and
denied kidnapping the complainant, Ms H D
K. He was sentenced to life imprisonment in respect of Count 1
and three years’
imprisonment in respect of Count 2. Both
sentences were ordered to run concurrently. In terms of section 103
of the Firearms Control
Act
[1]
he was declared unfit to possess a firearm.
AD
CONVICTION AND SENTENCE
[2]
The appellant’s grounds of appeal are that the trial court
erred:
2.1
In finding that the State proved its case beyond reasonable doubt;
2.2 In accepting the
evidence of the complainant;
2.3 In finding that the
appellant’s version is not reasonably possibly true;
[3]
It was also submitted for the appellant that the complainant and her
boyfriend shared about 3
litres of home-made beer before
the incident. Therefore she must have been more under the influence
of alcohol than she
was willing to admit that her state of
sobriety had a negative impact upon her credibility as a
single witness.
It was
contended that her version was improbable taking into account
that
she was walking behind the appellant while alleging
that she was under threat of harm and did not attempt to
run away;
that the appellant asked her to make a bed and also carried
her on his back.
[4]
It was further argued for the appellant that the court erred
in finding that there were no substantial and compelling
circumstances
which justified the imposition of a lesser sentence. In
any event, it was contended that the degree of violence used to
subdue
the complainant was not extreme in that the complainant did
not sustain permanent physical injuries.
[5]
In
S v
HADEBE AND OTHERS
[2]
Marais JA expounded on the principle governing the hearing of an
appeal as follows:
‘
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial
Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial court are so well known that
restatement is unnecessary.’
See
also
R
v Dhlumayo and Another
[3]
.
BACKGROUND
FACTS
[6]
The complainant shared a home with her boyfriend, Mr N P L also known
as M, and five children. On 18 December
2016 she and M were at her
cousin’s shanty when an argument between them ensued. The
appellant arrived and found them still
arguing. M left and the
complainant remained with the appellant. The complainant requested
the appellant to accompany her to L
T’s place, which he did. As
they approached the tarred road the appellant grabbed the complainant
by her neck from behind
and throttled her. The next moment she was on
the ground. She struggled with him while on the ground to the extent
that she wet
herself. He pulled her, dragged her towards certain
shanties, and threatened to kill her if she screamed.
[7]
The appellant took the complainant to the veld. At that stage she was
bare feet. Her shoes were lost when
the appellant throttled her. He
ordered her to follow him into the veld. She complied as she was
scared of him.
[8]
The appellant stopped under a certain tree and ordered the
complainant to undress her panty and bend over,
which she did. He
ordered her to insert his erect penis into her vagina and had sexual
intercourse with her from behind without
her consent. After he
ejaculated he ordered her to put his t-shirt on the ground and lay on
it with her back, which she did. He
thereafter inserted his penis
into her vagina and had sexual intercourse with her without her
consent for the second time. Thereafter
they dressed up and he
carried her on his back and walked until they got to the other side
of the road. As they parted ways the
appellant warned her that her
family would make a laughing stock of her should she tell anyone
about the incident.
[9]
The complainant made the first report to her brother, T A K, who
immediately summoned the police. The police
took her to the police
station where she made a statement. One of the police officers took
her to the scene where they found her
shoes, her hat, the appellant’s
watch, and the knife that he took from her shanty. The police officer
only picked up the
watch and left the other items behind. The
complainant was then transported to hospital where she was examined
and later taken
to L T’s (her sister also known as M) place.
[10] As a result
of the incident the complainant sustained some scratches and cuts on
her back, abrasions on her knees and
her neck was swollen. She had
difficulty swallowing. Her T-shirt was torn. M corroborated her
evidence that the appellant arrived
at their shanty while he and the
complainant had an argument. He added that the appellant wanted to be
accommodated in their shanty
for that night and he refused. He went
out to his neighbour’s house to ask for a kierie because the
appellant insisted on
sleeping at his place but when he returned the
complainant and the appellant had gone. He later found the
complainant at M’s
place. He observed that she was bleeding
from her mouth, had scratches on her neck and her t-shirt was torn.
She informed
him that the appellant had raped her.
[11] Ms Maria
Cornelia Zwiegelaar, a Warrant Officer in the South African Police
Services, took the statement from the complainant.
She testified that
when the complainant arrived at the charge office with her family her
clothes were soiled and dusty. She was
very emotional. She further
observed that her elbow, feet and legs were covered in scratch marks.
The complainant showed her that
her buttocks also had scratch marks.
Her lower lip was torn inside. She had difficulty in speaking due to
her sore throat.
[12] A Sergeant
in the South African Police Services attached in the Family Violence
and Child Protection and Sexual Offences,
Kimberley and the
investigating officer, Moses Morris, stated that when he first saw
the complainant she had dry blood on her lips
and she was bare feet.
He corroborated the evidence of the other witnesses regarding the
scratch marks on her body. He added that
he took her to Thuthuzela
Care Centre. His evidence went unchallenged.
[13] The DNA test
result, handed up in evidence as Exhibit “B” by consent,
reads in part:
‘
4.1
The DNA result from the “Vulva” Swab (16D1AA6870)
(PAD001920247) matches the DNA result from the reference sample
(16DBAY3771) (PA4002963824).
4.2
The most conservative occurrence for the DNA result from the “VULVA”
Swab (16D1AA6870) (PAD001920247) is 1 in 47
million trillion people.’
[14] The appellant
testified in his defence and did not call witnesses to corroborate
his version. He intimated that on the
day of the incident he,
one S (surname unknown), the complainant and two of his friends whose
names were undisclosed were at Sunrise
Tavern drinking liquor. The
complainant asked him to accompany her to her shanty. She left first
and he followed later. He found
the complainant and M in their shanty
arguing and he intervened. The complainant wanted him to sleep at her
shanty but M refused.
He testified further that the complainant told
M to return to Free State, his home, because she did not want him
anymore. A fight
ensued between them after M threw the
mattress out of the shanty and pushed the appellant. The appellant
armed himself with a knife in a quest to stab M but the complainant
disarmed him. M then walked out of the shanty to the neighbour’s
house. At that stage he and the complainant left.
[15] The
appellant alleged that he and the complainant went to another shanty
where they had consensual sexual intercourse.
Thereafter they left.
He helped the complainant jump over a fence but she fell on the other
side of the fence and landed on her
stomach. As they walked the
complainant suddenly ran away saying that M was following them. He
assured her that he would not let
M harm her. They walked at the back
streets of the shanties on a road leading to the field proceeding to
the complainant’s
sister’s place. She asked him to carry
her on his back because it was thorny and she was bare feet. He left
her at the gate
at her sister’s place and he went to Sunrise
Tavern.
[16] The
appellant denied that he was related to the complainant. He explained
that the intercourse in issue was not their
first sexual encounter.
He said he went to the complainant’s shanty because he
once had a love relationship with her.
He denied either raping
or kidnapping the complainant.
[17] The issue
that had to be determined by the trial Court was whether the
complainant and the appellant had consensual sexual
intercourse or
not. The Court
a quo
also had to consider whether the
conviction of kidnapping constituted duplication of convictions.
[18] In
convicting the appellant the Magistrate was of the view that the
appellant adjusted his version as the case proceeded
and was very
evasive in answering questions. She mentioned that the appellant did
not dispute that he had sexual intercourse with
the complainant twice
thereby confirming the version of the complainant. The Magistrate
remarked:
‘
He avoided
questions in cross-examination he did not want to answer questions
and kept extending and changing his version to the
extent that he
presented more than one version before court.
…
[The] accused’s
version was full of illogical improbable explanations and
contradictions and extensions. It cannot therefore
be found to be
reasonably possibly true in the light of the total evidence
presented. From the evidence in total [the] complainant
was injured
and threatened to be killed if [she] screamed and was dragged or
pulled into the veld to be raped and therefore it
cannot be said
[that] she was with [the] accused freely in the circumstances as she
was kept and taken [to] where [she did not
want] to go and had asked
[the] accused [where] to take her to. From these threats of
violence that led and resulted in the
injuries she sustained it
cannot also be said she consented to the sexual intercourse with the
accused and more than once. She
testified accused ejaculated and then
changed the positions and had sexual intercourse with her again. That
did not seem or appeal
to be a single act as per defence’s
argument. In the evidence in total I therefore find that the state
was able to prove
the case against [the] accused beyond a reasonable
doubt. Accused’s version is rejected as not reasonably possibly
true.’
[19] The Court
a
quo
dealt with the fact that the complainant was a single witness and
that her evidence should be treated with caution. It relied on
section 208 of the CPA which provides that a court may convict an
accused of any offence on the evidence of a single and competent
witness. The trial Court found that the complainant’s evidence
as corroborated by her boyfriend, M, and T K was consistent
with the
sequence of events as reported to the police. To this end, the
complainant’s evidence clearly showed that the sexual
intercourse could never have been consensual. The Magistrate was
further of the view that the complainant’s evidence was
satisfactory in all material respects. The Magistrate cannot be
faulted in concluding as she did.
The
injuries observed on the complainant coupled with her appearance at
the time when she was found as well as her emotional state
do not
support the version of the appellant that sexual intercourse took
place in a shack and was consensual.
[20] The
Magistrate gave a well-reasoned judgment in convicting the appellant
of rape. It follows that the appeal on this
conviction must fail.
[21] There is
generally, no infallible formula to determine whether there is a
duplication of convictions or not.
[4]
Regarding the question whether the conviction on kidnapping
constitutes duplication of convictions regard should be given to
section
83 of the CPA which provides guidance in terms of instances
where doubt may exist when charging an accused with several offences
to avoid a duplication of convictions. In
S
v BM
[5]
Wallis JA set out the rule of practice thus:
‘
[3]
It is apparent that charging Mr BM with two separate counts, arising
out of what was clearly one and the same incident, involved
an
improper duplication (splitting) of charges. It has been a rule of
practice in our criminal courts since at least 1887 that
‘where
the accused has committed only one offence in substance, it should
not be split up and charged against him in one
and the same trial as
several offences’. The test is whether, taking a common sense
view of matters in the light of fairness
to the accused, a single
offence or more than one has been committed. The purpose of the rule
is to prevent a duplication of convictions
on what is essentially a
single offence and, consequently, the duplication of punishment.’
Also
see
S
v DLAMINI
[6]
[22] An offence
of rape would inevitably require a perpetrator to deprive his victim
of freedom with the intention of committing
rape. Likewise, in this
case, for the appellant to rape the complainant he had to deprive her
of her freedom of movement in order
to rape her. That act cannot be
separated from the rape itself. In my view therefore the conviction
of kidnapping is indeed a duplication
of convictions. The Magistrate
misdirected herself in this regard.
SENTENCE
[23] The
following factors as well as mitigating factors of the appellant were
placed on record for consideration by the court
a quo
:
23.1 The appellant was
born on 14 November 1985 and when the matter was finalised he was 32
years. He has two younger siblings;
23.2 He is unmarried;
23.3 The highest
standard he passed at school was Standard 8, Grade 6 in today’s
terms;
23.4 Before his arrest
he was employed at [….] in Petrusburg for six months and
earned R900-00 weekly;
23.5 He had an eight
year old child. The six year old child he claimed was his was
actually not his as he was in custody at the
time. The mother of the
eight year old did odd jobs. When he was arrested he was staying with
his girlfriend.
23.6 His mother passed
away in 2008 and his father is currently married to his step-mother;
and he owned no property.
[24]
The prosecutor proved the following previous convictions:
24.1 On 28 December
2001 the appellant was convicted of theft and was sentenced to pay
fine of R100-00;
24.2 On 23 February
2009 he was convicted of rape and was sentenced to seven years
imprisonment in terms of section 276 (1) (B)
of the CPA and in terms
of
section 103
(2) of the
Firearms Control Act, 60 of 2000
, he was
declared unfit to possess a firearm. On 23 July 2012 he was released
on parole supervision until 22 August 2015.
24.3 On 29 November
2012 he was convicted for theft and was sentenced to undergo six
months imprisonment which was wholly suspended
for six months on
certain conditions. He was declared unfit to possess a firearm.
[25] The
appellant’s previous convictions show that he has not learnt
from his previous brushes with the law. Most importantly,
the fact
that he is not a first offender, as far as rape is concerned,
aggravates his case.
[26] The
prescribed sentence for rape in the circumstances of this case is
life imprisonment unless the Court
finds substantial and compelling circumstances which would warrant a
deviation from the imposition of the prescribed sentence.
[7]
As articulated by Marais JA in
S
v MALGAS
[8]
the prescribed sentences are not to be departed from lightly and for
flimsy reasons.
[27] It was
submitted on behalf of the appellant that the trial Court had erred
in not finding substantial and compelling
circumstances present
because the amount of violence used was not high; the complainant
only sustained superficial injuries with
no lasting physical trauma;
that she did not sustain any lasting emotional or psychological
trauma and the rape committed on her
was not the worst kind of rape
imaginable. Bosielo JA had this to say regarding the approach
on appeal in respect of findings
regarding substantial and compelling
circumstances in
S
v PB
[9]
:
‘
[20]
….The approach to an appeal on sentence imposed in terms of
the Act should, in my view, be different to an approach
to other
sentences imposed under the ordinary sentencing regime. This, in my
view, is so because the minimum sentences to be imposed
are ordained
by the Act. They cannot be departed from lightly or for flimsy
reasons. It follows therefore that a proper enquiry
on appeal is
whether the facts which were considered by the sentencing court are
substantial and compelling, or not.’
[28] The
instructive remarks by Ponnan JA in
S
v MATYITYI
[10]
bear mentioning:
‘
But,
with respect, to restrict the enquiry to permanent physical injuries,
as the learned judge appears to have done, is to fundamentally
misconstrue the act of rape itself and its profound psychological,
emotional and symbolic significance for the victim.’
[29] The Supreme
Court of Appeal said the following in
DIRECTOR
OF PUBLIC PROSECUTIONS, WESTERN CAPE V PRINS AND OTHERS
[11]
:
‘
[1]
No judicial officer sitting in South Africa today is unaware of the
extent of sexual violence in this country and the way in
which it
deprives so many women and children of their right to dignity and
bodily integrity and, in the case of children, the right
to be
children; to grow up in innocence and, as they grow older, to awaken
to the maturity and joy of full humanity. The rights
to dignity and
bodily integrity are fundamental to our humanity and should be
respected for that reason alone. It is a sad reflection
on our world,
and societies such as our own, that women and children have been
abused and that such abuse continues, so that their
rights require
legal protection by way of international conventions and domestic
laws, as South Africa has done in various provisions
of our
Constitution and in the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007 (the Act).’
[30] The
following pronouncements by Ponnan AJA (as he then was) in the
unreported judgment of
S
V DE BEER
[12]
are insightful and further adds impetus to the view expressed by the
Supreme Court of Appeal regarding the offence of rape:
‘
[18]
Rape is a topic that abounds with myths and misconceptions. It is a
serious social problem about which, fortunately,
we are least
becoming concerned. The increasing attention given to it has raised
our national consciousness about what is
always and foremost an aggressive act. It is a violation that is
invasive and dehumanising. The consequences for the rape victim
are
severe and permanent. For many rape victims the process of
investigation and prosecution is almost as traumatic as the rape
itself.’
[31] The trial
Court had considered the appellant’s personal circumstances,
which were nothing out of the ordinary,
the seriousness of the
offences, and the interests of the community. The complainant trusted
the appellant who breached that trust.
She was related to the
appellant and never expected him to rape her. She took him as her
brother. She spent time in the company
of the appellant and M, her
boyfriend. On the day of the incident the appellant took advantage of
the situation between them. She
testified that she hated him and
requested that he be sentenced to a long term of imprisonment.
[32] For reasons
advanced herein before I am of the view that the Magistrate correctly
found no substantial and compelling
circumstances in the personal
circumstances of the appellant justifying a deviation from the
imposition of sentence of life imprisonment.
[33] Regard being
had to the facts and circumstances in this case, I am satisfied that
there was no misdirection by trial
Court with regards to the sentence
imposed for the offence of rape, which would warrant any interference
by this Court. It
follows that the appeal against sentence in
respect of this offence must also fail.
In
the circumstances I make the following order:
1.
The
appeal against conviction and sentence in Count 1 of rape is
dismissed.
2.
The
appeal against conviction and sentence in respect of Count 2 of
kidnapping is upheld.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
I
concur
MC
MAMOSEBO
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Appellant:
Adv
A Van Tonder
Instructed
by:
Legal Aid South Africa, Kimberley Office
On
behalf of the Respondent:
Adv A Stellenberg
Instructed
by:
Director of Public Prosecutions, Kimberley Office
[1]
Act, 60 of 2000
[2]
1997 (2) SACR 641
(SCA) at 645e-f
[3]
1948 (2) SA 677 (A)
[4]
Commentary on the Criminal Procedure Act, Service 60, 2018 , 14-7
[5]
2014 (2) SACR 23
(SCA) at para [3]
[6]
2012 (2) SACR 1(SCA)
at para [22]
[7]
See s 51(1) read with 51(3)(a) of Act 105 of 1997
[8]
2001 (1) SACR 469 (SCA)
[9]
2013 (2) SACR 533
(SCA) at 539F – 540A (para 20)
[10]
2011 (1) SACR 40
(SCA) at 45h
[11]
2012 (2) SACR 183
(SCA) at 186e – g
[12]
2005 JDR 0004 (SCA) at para 18 (121/2004)