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[2019] ZAWCHC 49
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H.L v S (A51/2019) [2019] ZAWCHC 49 (26 April 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: A51/2019
In
the matter between:
H
L
Appellant
And
The
State
Respondent
JUDGMENT DELIVERED ON 26 APRIL 2019
BAARTMAN,
J
[1]
This is an appeal against the convictions on 2 counts of assault with
intent to do grievous bodily harm (
counts 1 and 2
) and two
counts of rape (
counts 3 and 4
), as well as the sentence of 26
years’ imprisonment imposed by the regional magistrate at
Parow.
[2]
The main grounds of appeal, which I deal with below, are:
‘
1. The learned magistrate
failed to consider the appellant’s explanation that he and the
complainant had consensual sex.
2. The court a quo incorrectly
convicted the appellant on two counts of rape and two counts of
assault with intent to do grievous
bodily harm.
3. The court a quo misdirected
[itself] not to consider …the sentences to run concurrently.’
[3]
The court
a quo
accepted that the appellant and the
complainant had been married for 27 years at the time of the
incident. The couple had been
estranged for 3 months prior to 17
December 2016 when the incident that forms the subject of this
judgment occurred. The court
further accepted that the appellant had
assaulted the complainant prior to their separation; however, he
initiated reconciliation
on 17 December 2016 when he sent their
two daughters with a letter to the complainant in which he begged her
to return –
she did.
[4]
On the same day, the appellant assaulted her. The court accepted the
medical evidence of Dr Islam that the complainant sustained
the
following injuries:
‘
The [complainant] was badly
assaulted on her head and different parts of her body. The assault
was prominent and of a serious nature.
Bruises on the neck,
tenderness on the chest, skin and head was hanging, clearly [the
complainant] had been scalped. The bone on
the scalp could be seen.
The wound was [approximately] 5 centimetres deep and wide. …The
[complainant] was lucky to be alive.
The nature of the wound and the
depth of the injury could have led to instant death.’
[5]
The state proffered a count of assault with intent to do grievous
bodily harm (count 1) and a count of attempted murder (count
2)
pursuant to the injuries sustained. The court, in respect of count 2,
accepted that the appellant had wanted to cut off the
complainant’s
hair and not to kill her. Therefore, in respect of count 2, he was
convicted of assault with intent to do grievous
bodily harm. In the
circumstances of this matter, the criticism against that finding is
incomprehensible. The assault that
caused the bruises on the
neck and tenderness on the chest (count 1) was inflicted with the
fist to punish the complainant because
she had gone to a friend to
borrow some cigarettes. Thereafter, the appellant ordered the
children out of the house, made the complainant
sit on the bed and
started cutting off her hair until blood burst out of her scalp.
[6]
It was common cause that the complainant had had an extra marital
affair and had been staying with her lover’s sister
while she
was away from home. The appellant was left to care for their 6
children in her absence. The cutting off of her hair and
scalping
(
count 2
) appear to have been done in a jealous rage. He
remarked that the complainant was a beautiful woman before cutting
off her hair
and used insulting language towards her. I cannot fault
the trial court’s finding that 2 offences were committed.
[7]
The trial court accepted that after the appellant had cut off the
complainant’s hair, he instructed her to undress. She
was tardy
in compliance, therefore, he assisted by cutting her clothes off her
body with a knife. In particular, he cut off her
bra and panties. At
that stage, one of their children, J, entered the room and asked the
appellant why the complainant was bleeding.
The appellant got rid of
J and promised not to hurt the complainant further and threw the
knife across the bed. Thereafter, the
appellant had sex with the
complainant by penetrating her mouth and vagina. It is in issue
whether the trial court erred in concluding
that the intercourse was
non-consensual and that 2 counts of rape had been committed.
[8]
The trial court was cautious in
its approach to the complainant’s evidence as she was a single
witness. The complainant admitted
that she smoked ‘tik’
on the day but said that she had only inhaled the drug once before
she was interrupted and had
not continued. There is no indication
that she was under the influence of the drug thereafter. The trial
court found that the complainant’s
evidence was satisfactory in
all material respects
[1]
.
The record bears out the correctness of that finding. The chronology
of the events supports the finding that the sex was non-consensual.
[9]
However, the situation is complicated by the history of abuse in this
marriage. The complainant conceded there had been occasions
when they
would make up with sex after a fight. However, she said that the
appellant had never assaulted her to this extent. ‘…hy
het nog nooit vantevore vir my so seer gemaak nie.’
Nevertheless, she was prepared to concede that the appellant might
have
accepted that she was a willing sexual partner. However, the
fact that the complainant was used to sex sometimes following an
assault
does not mean that she consented to the sexual intercourse.
She said that she was too scared to refuse the oral sex because she
saw the rage in the appellant’s eyes.
‘
Ek het dit gedoen ja want ek
was bang om te weier because ek kon sien die woede in sy oë in.
Ek kon sien hoe kwaad is hy.’
[10]
The appellant confirmed that he had been upset – angry –
when he hit the complainant. He further said that the
complainant had
tried to run away from him before they had sexual intercourse and
that he could see how ‘totally scared’
she was. He then
instructed her to undress because he knew she would be unable to
escape if naked. The appellant further said that
he only saw the
blood on the complainant’s head after they had consensual sex.
It follows that he confirms that he cut off
her hair and scalped her
before having sex. In those circumstances, the trial court found:
‘
Die omstandighede van die
seksuele omgang is van so ‘n aard dat geen mens sal instem om
seksuele omgang te hê in daardie
omstandighede nie. Dit is ook
onmoontlik dat beskuldigde nie die bloed gesien het wat van die
klaagster se kop geloop het op daardie
stadium nie…’
[11]
I cannot fault that finding;
its correctness is borne out by the medical evidence. In the
circumstances of this matter, the complainant
was coerced through a
violent assault to submit to sexual intercourse
[2]
.
It follows that the court’s finding that the appellant raped
the complainant is unassailable. In convicting the appellant
on two
counts of rape, the court relied on the definition of rape
[3]
,
which provides:
‘
Sexual penetration includes 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;
(b)
any other part of the body of one person or, any object, including
any part of the body of an animal, into or beyond the genital
organs
or anus of another person; or
(c)
the genital organs of an animal, into or beyond the mouth of another
person,
and “sexually penetrates”
has a corresponding meaning;’
[12]
Each act complained of, oral
and vaginal penetration, constitutes sexual penetration. The acts
occurred reasonably close in time
to each other. In Willemse
[4]
,
the court found an accused who had penetrated the complainant
vaginally and had then ‘proceeded to have anal intercourse
with
her’ committed 2 counts of rape. The court reasoned that the
separate penetration acts involved ‘a distinct thought
process’
in which the accused decided to rape the complainant in a different
manner from the first act of penetration and
was ‘a strong
indication that [it] was a separate form of rape’.
[13]
Similarly, in
S
v Uithaler
[5]
,
the court found that the accused had committed two offences: rape and
indecent assault. The offences were committed, on 1 April
2007 before
the Sexual offences Act came into operation in terms whereof anal
penetration was defined as rape, in the following
circumstances:
‘
[3] …On the day in
question the appellant and his co-accused approached the complainant
while relaxing with her male companion
at the back of a bakkie which
was parked in an industrial area in George. The appellant forced the
complainant to accompany him
into nearby bushes where he proceeded to
rape her vaginally. Thereafter he instructed the complainant to turn
around and lie on
her stomach and penetrated her anally…’
[14]
I am persuaded that the trial court correctly concluded that the
appellant committed two counts of rape. The definition of
sexual
penetration leaves no doubt that two separate acts were committed in
the circumstances of the matter. The case law referred
to above
supports that finding.
Sentence
[15]
The trial court took the two counts of assault with intent to do
grievous bodily harm together and sentenced the appellant
to 8 years’
imprisonment. Similarly, the court took the two counts of rape
together and imposed 18 years’ imprisonment.
As indicated
above, the appellant submitted that the trial court erred in not
letting the sentences run concurrently. The submission
has no merit.
[16]
The trial court has discretion when imposing sentence and a court of
appeal has limited grounds to interfere with the exercise
of that
discretion. I have carefully considered the court’s judgment on
sentence and could find no misdirection in the exercise
of its
discretion.
[17]
However, if the sentence imposed invokes a sense of shock, this court
can interfere. The appellant’s personal circumstances
appear
from the record, I do not repeat them. The details of the offence,
dealt with above, leave no doubt that the offences are
serious. The
community interest is apparent and the court dealt with it correctly.
In the circumstances of this matter, the sentence
of 26 years’
imprisonment does not invoke a sense of shock and is not
inappropriate.
[18]
I, for the reasons stated above, make the following order with which
Wille J concurred.
(i) The appeal against conviction and
sentence is dismissed.
_____________________________
BAARTMAN
J
I
concur.
_____________________________
WILLE
J
[1]
Section 208
of the
Criminal Procedure Act, 51 of 1977
.
[2]
S v GO
2017 JDR 1582 (SCA) at paras 16–19.
[3]
The (Sexual Offences and Related Matters) Amendment Act, 32 of 2007.
[4]
S v Willemse
2011 (2) SACR 531 (ECG).
[5]
[2014] JOL 31517
(WCC).