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[2019] ZANCHC 30
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Zibathini v S (CA & R 99/17) [2019] ZANCHC 30 (19 July 2019)
IN THE HIGH
COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Reportable
/Not
reportable
Case no: CA &
R 99/17
In the matter
between:
ZABATHINI
JONAS
APPELLANT
And
THE
STATE
RESPONDENT
Heard:
06 May 2019
Delivered:
19 July 2019
Coram:
Phatshoane J and Pakati J
Judgment
PHATSHOANE J
Introduction:
[1]
On 30
March 2015 Mr Zabathini Jonas, the appellant, then 30 years old, was
convicted by a Regional Court Magistrate, Ms A. Venter,
sitting in
the Regional Court Phillipstown, Northern Cape, on two counts of rape
in circumstances where the provisions of s 51
of the Criminal Law
Amendment Act, 105 of 1997 (“the minimum sentence
legislation”), applied. The two counts were taken
together for
purposes of the sentence of life imprisonment imposed on each count.
[2]
This
appeal lies against both the conviction and sentence in terms of s
309(1)(a) of the Criminal Procedure Act, 51 of 1977 (“the
CPA”), which affords convicted and sentenced persons an
automatic right to appeal. Section 309(1)(a) provides in part that
if
a person was sentenced to imprisonment for life by a Regional Court
under s 51(1) of the minimum sentence legislation he or
she may note
an appeal without having to apply for leave in terms of s 309B.
[3]
Before
us it was contended, for the appellant, that the Magistrate
misdirected herself in rejecting the appellant’s version
and
convicting him on the two counts of rape. It was further argued that
she erred in finding that there existed no substantial
and compelling
circumstances which justified a deviation from the imposition of the
ordained sentence of life imprisonment.
The
Background:
[4]
It was widely known in the small town of Petrusville that the
24
year old Ms RB, the complainant, openly led her life as a lesbian
.
Mr Jean Jantjies, the complainant’s neighbour, added that
she
dressed-up and walked like a man. She had masculine short haircut and
bore an uncanny male appearance.
What
happened to her o
n
12 June 2010 was purely motivated by her sexual orientation which the
appellant was fully alive to.
[5]
At
approximately 22h00 on 12 June 2010 the complainant left her niece’s
home, accompanied by her two nieces and other people,
for Convo
Sports Pub, a tavern situated in Petrusville. Later that evening,
after her nieces had left the tavern, the complainant
joined her
neighbour, Mr Jean Jantjies, who was in the company of the appellant.
She barely knew the appellant except by sight.
At approximately
03h00, when the tavern was about to close for business, the
complainant, Mr Jantjies and the appellant departed
to find a place
where they could purchase cigarettes. At a certain house Mr
Jantjies sent the appellant to buy cigarettes.
The appellant
requested the complainant to accompany him.
[6] Instead
the pair went to Thembinkosi Township where they arrived just before
04h00. The appellant entered
a three-roomed house through a window
and opened the door for the complainant. She then enquired from the
appellant whether that
was the place where they were supposed to
purchase cigarettes. The appellant pulled out a pocket knife and
brandished it in her
face. He commanded her to enter into the bedroom
and to take off her pants. When she enquired “
wat is dit dan
nou
” he ordered her not be childish because she was
accustomed “
to these things
”. The complainant says
she entered the bedroom as she feared that the appellant would harm
her. He followed her still holding
the knife. She sat on the bed. He
grabbed her pair of denim trousers “hy het aan my broek geruk”
with one hand while
the other was still holding onto the knife. The
trousers’ button came loose and fell off. She says she
submitted because
he told her that he will push the knife into her
genitalia and wielded it close to that part of her body.
[7] The
complainant lowered her pants and underwear to her knees and so did
the appellant. He pushed her
on the bed; he sat next to her and put
on a condom; he pulled her pants further down, below her knees, with
his knee to part her
legs; he then penetrated her vaginally and had
sexual intercourse with her while he laid on top of her with their
feet on the floor.
The act was painful. She told him that he was
hurting her and was crying. At some point the appellant removed his
penis from her
genitalia. The condom he used was torn. He put on
another one. At that stage she says she lost consciousness. When she
regained
it the appellant was still having intercourse with her
vaginally. She continued crying as the act was very painful. During
the
act the appellant wanted to turn her around to penetrate her from
behind. She managed to prevent him from doing so. However, he
once
more, for the third time, inserted his penis into her vagina.
[8] At
approximately 06h00 that morning, after the two horrific hours of the
sexual encounter, they dressed
up. The appellant, on his own accord,
escorted the complainant up to an area called Greenpoint. She
proceeded to her niece’s
house and reported the incident. Her
eyes were swollen as a result of her constant cry; she could barely
speak out, she was shivering
and completely traumatised. Her niece,
Riekie, took her home and the police were summoned.
[9] The
complainant says she did not give the appellant permission to have
sexual intercourse with her because
she is not interested in men. She
was examined by Dr Jakobus Anton Liebenberg on the same day of the
incident at 14h00. The doctor
could not insert his finger inside her
genitalia as it was injured and the pain was unbearable.
[10] The doctor’s
medical report (the J88 form) was admitted in evidence by consent. He
observed, during the medical
examination, that the complainant was
hysterical, emotionally traumatised, and cried continuously. Although
at the time she was
not menstruating her underwear was blood stained.
She had extensive vaginal injuries and her whole vaginal area, says
the doctor,
was traumatised. He found blood on her perineum which
came from the vaginal anatomy but not the uterus; the posterior
fourchette
also had blood which trickled down from the clitoris. The
clitoris and its surrounding area, the para-urethral folds and the
labia
minora, were swollen and red. The hymen was also swollen and
bruised with a fresh tear at 07h00.
[11] The doctor explained
that in his 23 years of experience as a physician the complainant was
the most traumatised
patient he ever examined due to the extensive
pain that she endured. This was an exceptional case where he had to
administer 10
mg of Valium intravenously to calm her down because she
was in a state of emotional shock. The doctor intimated that with
consensual
sexual intercourse he would not have arrived at the
clinical findings he made. The nature of the injuries he observed
were strongly
associated with forced penetration and said it was
highly improbable that the intercourse was consensual. It was
possible, he said,
that the patient would have lost consciousness
during the act.
The appellant’s version
[12] The appellant’s
version is that when they could not find cigarettes they went to his
residence because the
complainant had already agreed to sleep over at
his house. Under cross-examination he expanded that he told her that
he loved her
and her response was that “sy het nie ‘n
probleem nie”. He confirmed having entered the house
through the
window because the front door was locked and had to open
the door from inside for the complainant. She got inside the house;
they
smoked some tobacco; and both freely proceeded to the bedroom.
She sat on the bed and they started talking about the complainant’s
sexual orientation. He says that he knew that she was a lesbian and
he likes lesbians but wanted to correct their sexual orientation.
There was a bit of a quarrel on the use of a condom because the
complainant did not want him to wear it as it caused her sores
on her
private parts. He nevertheless utilised it because this was their
first sexual encounter and there were many sexually transmitted
diseases. They had sexual intercourse once. Under cross-examination
he intimated that when the complainant moaned that the intercourse
was rough he fell asleep. The complainant then enquired about the
many voices she heard inside the house. She told him that she
did not
trust the situation and that the appellant should escort her home.
They left for the appellant’s aunt’s house
where they
slept in the room outside but did not engage in any sexual
intercourse.
[13] The appellant does
not recall any incident involving a knife and never carries one. He
denied having threatened
the complainant. He says about 10h00 that
morning the complainant requested him to escort her to Greenpoint
which he did. She was
not crying or looking upset. During the course
of that day, while he was attending a funeral, one aunty Liz called
him to inform
him that the police were looking for him for rape.
The judgment
of the Court
a quo
:
[14] The Magistrate was of
the view that the complainant made a favourable impression as a
witness. She noted that it
was traumatic for her to relive and
recount the episode to the Court; that the complainant did not
contradict herself or attempt
to manufacture evidence. She was
persuaded that the complainant told the whole truth about the
incident.
[15] As for the appellant,
the Magistrate found that he contradicted the version as put to the
complainant by his own
legal representative; that the appellant was
arrogant on the witness stand; he evaded questions; gave vague and
sarcastic responses
to questions posed to him. What weighed with the
Magistrate against the appellant was his own version that he wanted
to correct
homosexual girls. The Magistrate gained the impression,
correctly in my view, that the appellant boasted with regard to his
misplaced
and offensive powers to correct the lesbians’ sexual
orientation. In the overall the Magistrate styled him an infamous
liar
and rejected his evidence as false insofar as it was
contradicted by that of the State.
[16] The Magistrate was
satisfied that there were two acts of sexual penetrations as opposed
to three. She reasoned
that the complainant was subjected to brutal
acts of rape where she sustained serious bodily injuries and
concluded that this was
a typical “corrective rape” which
fell within the ambit of s 51(1) of the minimum sentence legislation
because the
victim was raped more than once and sustained serious
bodily injuries. As already alluded to, she found the appellant
guilty on
both counts of rape.
[17] The Magistrate noted
that, although the appellant was a first offender in respect of the
sexual offences, he did
not show any contrition. She held that the
appellant violated the complainant’s right to privacy and
dignity. Having observed
the complainant in Court she doubted whether
the complainant would ever recover from the psychological trauma she
experienced.
She was unable to find any substantial and compelling
circumstances justifying a departure from the imposition of the
minimum prescribed
sentence. Resultantly, she took Count 1 and 2
together for purposes of the sentence and imposed a sentence of life
imprisonment.
The
analysis:
[18] What arises for
consideration is whether that the Magistrate misdirected herself in
rejecting the appellant’s
version and convicting him on the two
counts of rape. It should also be determined whether she erred in
finding that there existed
no substantial and compelling
circumstances which justified a deviation from the imposition of the
sentence of life imprisonment.
[19]
An
appellate Court would invariably be reluctant to upset the findings
of a trial court. In the oft quoted dictum in
R
v Dhlumayo and Another
[1]
the Court listed the following as one of the
principles
which should guide an appellate court in an appeal purely upon fact
:
‘
The
trial judge has advantages-
which
the appellate court cannot have - in seeing and hearing the witnesses
and in being steeped in the atmosphere of the trial.
Not only has he
had the opportunity of observing their demeanour, but also their
appearance and whole personality. This should
never be
overlooked.
’
[20] The Magistrate did
not make any adverse credibility findings against the complainant.
With the benefit of having
perused the record that finding cannot be
faulted. As for the appellant, his version was hopelessly untruthful
and contrived. To
demonstrate this, his counsel in the Court
a quo
put to the complainant that in the week prior to the sexual
intercourse in issue the complainant and the appellant had a sexual
encounter at some place near the Town Hall of Petrusville. When the
appellant realised that he had painted himself into a corner
by
giving his attorney mendacious instructions he changed course to say
that the instruction to his attorney was that two weeks
prior to the
incident in issue he had sexual intercourse with another, as he puts
it, “tomboy”, because he loves lesbians.
[21] The appellant went so
far as to say he had already turned a lesbian into a heterosexual,
who now have children.
He nonchalantly bragged that he put her on the
right path and no longer “bumps”, which he explained to
mean that she
no longer walks like a man. He hopes that if he engages
in sexual intercourse with lesbians they will turn into
heterosexuals:
“
Ek hoop ek gaan haar reg maak
.” He
also says that he hoped that if he had sexual intercourse with the
complainant she would turn into a heterosexual.
[22] When probed on the
place where he had the inventive intercourse with the “tomboy”,
purportedly two
weeks prior to the incident in issue, he said it was
at the same house he had intercourse with the complainant. Clearly,
he had
forgotten that his instruction to his legal representative was
that it was at a place near the Town Hall. When he started
comprehending
the dilemma with his self-destructing version his
excuse was that there was a misunderstanding between himself and his
attorney.
[23]
The
appellant’s witnesses did not add anything of value to his
case. For instance Mr Philemon Siya Afrika says that on one
morning
around 04h00 he found the appellant and the complainant in his
(Siya’s) bedroom sitting next to each other on the
bed.
He does not recall what day of the week or a month or season of the
year this was. He told the appellant and the complainant
to leave and
they immediately did so. The probative value of his evidence became
even further debased when he intimated that on
that day, that he
could not recall, he was extremely under the influence of alcohol to
the extent that he requested someone to
escort him home, whom he had
to lean against, as he could not walk steadily. He says that his
state of intoxication had a serious
impact on his sight and
comprehension. Mr Vincent Jogum, a police officer, was surprised that
the appellant called him as a witness.
He does not know anything
about the incident and was also not involved in the arrest of the
appellant. He never at any stage discussed
the case with the
appellant or the complainant.
[24] The Magistrate
correctly found that the doctor’s evidence corroborated the
complainant’s evidence.
As it shall be recalled, the doctor
explained that
he
could not have arrived at the clinical findings he made had the
intercourse been consensual. He also observed that the injuries
sustained by the complainant were strongly associated with a forced
penetration. T
he
appellant could not say why the complainant would plot against him.
Mr Van Tonder, for the appellant, conceded that he was unable
to
formulate any convincing argument why the appellant’s version
should be found to be reasonably possibly true. In the end,
no cogent
criticism can be sustained against the Magistrate’s conclusion
that the complainant was raped twice by the appellant.
The upshot of
this is that the appeal against the conviction should fail.
[25] I now turn to the
sentence imposed. The appellant was raised by his elder sister
because his mother left them when
he was still young. He completed
grade 12 at school. During the sentencing proceedings he was 30 years
old and unemployed. He has
two minor children aged 11 and 4 years,
who were cared for by his sister. He has one previous conviction of
housebreaking with
intent to steal and theft dated 21 July 2009.
Following which he was sentenced to 30 months imprisonment wholly
suspended for a
period of four years on certain conditions.
[26] Mr Van Tonder argued
that the complainant was threatened with a knife and therefore
minimal force of violence was
used. He submitted that this was not
the worst kind of rape imaginable and that there was no evidence that
the complainant suffered
lasting physical trauma. He contended that
these were mitigating circumstances which, when considered
cumulatively with his personal
circumstances, constituted substantial
and compelling circumstances which would justify the imposition of a
lesser sentence.
[27] The
offences the appellant was convicted of fall within the ambit of Part
I Schedule 2 of the
minimum sentence legislation which attracts life
imprisonment
[2]
.
Insofar as the appellant sought to argue that there were no serious
physical injuries inflicted on the complainant it should be
remembered that the appellant used a knife to subdue and instil fear
on her. She feared for her life and was intimidated by him.
Therefore, the purported absence of physical injuries on the body of
the complainant was not because the appellant had been benevolent
towards her. Apparent
from
the record the complainant was disconsolate when she testified in
Court. Very often she was requested to take a deep breath
and to
drink some water. She had since her encounter with the appellant left
Petrusville for the Western Cape because she could
not come to terms
with the episode. She says it was better for her to express her
sexuality in the Western Cape as opposed to a
small town such as
Petrusville. With this in mind, it can hardly be argued, as Mr Van
Tonder sought to do, that the offence had
no enshrined psychological
impact on the complainant.
[28]
Gender based violence
has no place in our constitutional dispensation. The gay and lesbian
community are entitled to equal enjoyment
of all rights and freedom
as entrenched in our Constitution like all other South Africans. They
should be treated with dignity
and respect. They are entitled to be
who they are and express themselves in any manner they wish without
fear of being ostracised
and violated. The so-called “corrective
rape” is evil and cannot be countenanced. Our Courts will
continue with their
concerted effort to protect the lesbian, gay,
bisexual and transgender (LGBT) rights.
What
the appellant did to the complainant was to pulverise her sense of
belonging and self-expression. This is quite repulsive and
unpardonable.
[29] Nothing that was
placed before the Magistrate, considered cumulatively, engender one
to a conclusion that there
were substantial and compelling
circumstances justifying the deviation from the imposition of life
imprisonment. It follows that
the appeal against the sentence should
also fail.
I make the following order:
1.
The
appeal against both the conviction and sentence is dismissed.
MV Phatshoane J
Pakati J concur in the judgment of
Phatshoane J
APPEARANCES:
FOR THE APPELLANT:
Adv A. Van Tonder
Instructed by Legal Aid South Africa.
FOR THE RESPONDENT:
Adv Q.H. Hollander
Instructed by the Director of Public
Prosecutions, Northern Cape.
[1]
1948 (2) SA 677
(A) at 705
[2]
See s 51(1) of the Criminal Law Amendment Act, 105 of 1997 (minimum
sentence legislation)