S v Egglestone (482/07) [2008] ZASCA 77; [2008] 4 All SA 207 (SCA); 2009 (1) SACR 244 (SCA) (30 May 2008)

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[2008] ZASCA 77
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S v Egglestone (482/07) [2008] ZASCA 77; [2008] 4 All SA 207 (SCA); 2009 (1) SACR 244 (SCA) (30 May 2008)

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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 482/07
REPORTABLE
In the matter between:
MALCOLM
WILLIAM EGGLESTONE APPELLANT
v
THE
STATE
RESPONDENT
Coram: Farlam, Mlambo JJA, Mhlantla AJA
Heard: 28 February 2008
Delivered: 30 May 2008
Summary: Criminal Law – appeal against multiple convictions and
sentence – consent – what is – indecent assault – what
is –
S v F
still the law – owner of escort agency
having sexual intercourse with and indecently assaulting prospective
prostitute during
on-the-job training – participation in training
not amounting to consent – convictions for rape and indecent
assault confirmed.
Order in para [29].
Neutral citation: This judgment may be referred to
as
Egglestone v The State
(297/2005)
[2008] ZASCA 77
(30 May 2008).
JUDGMENT
(Dissenting Judgment p 16)
MLAMBO JA
[1] This is an appeal against convictions for rape,
kidnapping, common assault, indecent assault and a sentence of 10
years’ imprisonment.
The appellant was originally arraigned in the
Cape Town Regional Court where he faced a total of 11 charges made up
as follows:
rape (count one); indecent assault (count two); assault
(count three); kidnapping (count four); indecent assault (count
five);
kidnapping (count six); indecent assault (counts seven, eight,
nine and ten) and rape (count eleven). The offences were allegedly

committed during March to May 1997 save for those in counts eight to
eleven which were alleged to have taken place in February
1998. The
trial started on 9 April 1999 and was concluded three years later on
22 May 2002 when the appellant was convicted on
counts one to five
and eight to ten.
[2] On 30 October 2002 the regional court sentenced
the appellant to 12 years’ imprisonment structured as follows:
10
years on counts one and two taken together for purposes of
sentence; six months on count three, two years on count four, one
year
on count five and six months on counts eight to ten all taken
together for purposes of sentence. It was ordered that the sentences

imposed on counts three, five and eight to ten were, in terms of
s
280(2)
of the
Criminal Procedure Act 51 of 1977
, to run concurrently
with the 10 year sentence imposed on counts one and two.
[3] In an appeal before the Cape High Court (Ngwenya J
and Wille AJ), heard on 18 March 2005, the appellant’s conviction
on counts
nine and ten was set aside as well as the 12 year sentence.
The High Court imposed a 10 year imprisonment sentence structured as

follows: 10 years’ imprisonment on counts one to four all taken
together for purposes of sentence and six months imprisonment

regarding the convictions on counts five and eight which was ordered
to run concurrently with the 10 year sentence. On the same
day the
High Court granted the appellant leave to appeal to this court
regarding the conviction on counts five and eight and the
six month
imprisonment sentence imposed in respect of those counts. Leave was
refused regarding the conviction on counts one to
four and the
sentence imposed in that regard but on 27 July 2005 this court
granted the appellant special leave to appeal to this
court regarding
his conviction on those counts and the sentence imposed in respect
thereof.
[4] The charge sheet alleged that during April and May
1997 the appellant raped N.L. (count one); assaulted her indecently
by pulling
down her panties, touching her vagina and having anal
intercourse with her as well as forcing her to put his penis in her
mouth
(count two); assaulted her with his open hand (count three);
deprived her of her liberty of movement by preventing her from
leaving
his premises at Erf 851, Somerset-West, Cape Town (count
four) where all the offences save for the one in count eight were
allegedly
committed; that he indecently assaulted M.W. by taking off
her bra and touching her breasts (count five) and that on or about
22 February
1998 at or near Cape Town the appellant indecently
assaulted Lee-Ann dos S. by touching her leg, rubbing her stomach and
trying
to touch her breasts as well as kissing her on her mouth
(count eight).
[5] All the complainants were high school teenagers from
the impoverished communities around the Cape Peninsula recruited by
the
appellant to work for him as escort agency prostitutes. The
recruitment took place by means of pamphlets distributed by other
female
employees of the appellant. The job advertised in the
pamphlets was however that of lingerie modelling. N.L. (L.), the
complainant
in counts one to four was walking home from school when
she was handed one of the pamphlets. She showed interest in the job
but
preferred to seek her parents’ permission to go for an
interview. The appellant personally spoke to her mother who gave her
consent
for N. to attend the interview. It is not clear from the
record whether the appellant was candid with N.’s mother about the
true
nature of the job. N. and her younger sister Nicolette, who was
also a potential recruit, were interviewed at a restaurant.
[6] During this interview N. and Nicolette learnt that
the job did not just entail modelling lingerie but working in an
escort agency
as prostitutes where they would be expected to perform
certain sexual acts and provide sexual favours to clients. It appears
that
they were informed that they were at liberty to choose what part
of the job they would prefer for instance as receptionists and/or

lingerie models excluding sexual activities. However, irrespective of
the job they preferred, it appears that they were informed
that they
had to be trained as all inclusive escort agency prostitutes,
encompassing the whole spectrum of a prostitute’s work,
such as
rendering private shows and different kinds of sexual favours to
clients.
[7] After the restaurant interview the L. sisters were
taken to the appellant’s premises in Somerset West called the
Stables.
The premises were highly secured and structured in the form
of a reception area, negotiation rooms, private rooms as well as show

rooms for private shows and modelling. There the appellant instructed
the sisters at intervals to undress and provided them with
lingerie
to put on. He then proceeded to fondle their breasts and their
genitals which was apparently a continuation of the interview.

Afterwards the sisters were taken to their home where Nicolette
declined the job offer whilst N. accepted and was fetched the next

day to start working for the appellant. It is not in dispute that
during L.’s stay at the Stables she participated in so-called

training sessions carried out by the appellant during which he would
have touched and fondled her breasts and genitals, led her
to perform
a pelvic massage and to have normal sexual intercourse as well as
oral and anal intercourse with him.
[8] M.W. (W.), the complainant in count five, also went
through the restaurant interview. On arrival at the Stables she was
also
instructed to undress and it was during this incident that the
appellant fondled her breasts. She, however, never took up the job

offer despite expressing interest. In so far as L. dos S. (D.S.) (the
complainant in count eight) is concerned, she participated
in the
selling of teddy bear gifts for the appellant at restaurants and
other public places. It was during one of such jaunts that
the
appellant kissed her on her mouth and rubbed her on her leg and
stomach.
[9] The issue before us is whether the court
a quo
was correct in dismissing the appellant’s appeal and in upholding
the trial court’s view that the state had succeeded in proving
his
guilt on the remaining counts.
[10] It is appropriate to start by briefly considering
what amounts to indecent assault. An authoritative discussion of the
nature
and meaning of the offence is found in
S v F
1982
(2) SA 580
(T) where
it was held that indecent assault is
committed even though the violence is not directed at the
complainant's sexual organs. It is
the accused's intention,
manifested in words or conduct, that is important and not necessarily
the act. In order to constitute
the offence, it is not necessary,
however, that the complainant's sexual organs should actually have
been touched. Any action whereby
the accused aims with some part of
his or her body at the sexual organs of the complainant is
sufficient. In this regard Ackermann
J stated that (at 585):
‘Ek is gevolglik van mening dat daar wel gekyk kan en moet word na
die uitgesproke bedoeling van 'n beskuldigde soos oorgedra
aan die
klaer (hetsy deur woorde, gedrag of by implikasie) om vas te stel of
‘n aanranding ‘n onsedelike aanranding daarstel.’
[11] In
S v Kock
2003 (2) SACR 5
(SCA) at p 10 par 9 Heher JA remarked that:
‘Indecent assault is in its essence an assault (not merely an act)
which is by its nature or circumstances of an indecent character.’
Counsel for the appellant sought to persuade us that in
this passage this court overturned
S v F
in so far as the definition of indecent assault is concerned. I do
not agree. In my view
S v Kock
only
introduced an objective test of indecency and
left the position expressed in
S v F
intact. In fact no exhaustive discussion of the offence was done in
S
v Kock
nor was there any reference to
S v F
.
I have no doubt that the position in this regard remains as
authoritatively set out in
S v F
.
[12]
Perhaps
some comment is also apposite regarding the required approach to
evidence in sexual offence cases. As already mentioned,
in
S v
Jackson
1998 (1) SACR 470
(SCA) this court
discarded the so-called cautionary rule which was the norm in sexual
offence cases. In that case this court ruled
that the burden on the
state is to prove the case beyond a reasonable doubt – no more, no
less. The evidence may, however, call
for a cautionary approach but
that is a far cry from the application of a general cautionary rule.
Hot on the heels of
S v
Jackson
came
S v M
1999 (2) SACR 548
(SCA) where
S v Jackson
was reinforced.
1
[13] Against this background I turn to the facts of this
case. The basis of the appeal against the convictions on the L.
counts
(counts one to four) is that the trial court erred in finding
that L. was a credible witness; in accepting her evidence; in
rejecting
the appellant’s version of events, and in finding that L.
was not in the Stables of her own free will. In this regard it was

submitted that L. had voluntarily come to the Stables and had stayed
there throughout at her own free will; that at no time did
she
request or demand to be taken home; that she expressly consented to
him fondling and touching her; that she was willing and
consented to
undergo the training he offered her as an all inclusive escort agency
prostitute; that the training he provided entailed
his role playing a
potential client, necessitating that he perform various actual sexual
acts with her, to prepare her for the
work ahead and that she
consented to all the sexual activity that took place between them. It
was submitted that L. understood
this fully and any wrongdoing was
denied. It was further submitted that there was only one incident of
sexual intercourse during
training between them during the first week
and that further sexual intercourse between them was not related to
training but was
fully consensual as they had become lovers.
[14] Regarding the W. indecent assault count (count 5)
the appellant contends that the trial court erred in finding that W.
had
not consented to his conduct. It was submitted that when he
handled her breasts he had her consent to touch her that way.
Regarding
the D.S. indecent assault count (count eight) the
submission was that the trial court erred in accepting her version
and in finding
her to have been a credible witness and also finding
that the appellant’s conduct was objectively indecent. It was
submitted
that the appellant intended to congratulate her by kissing
her on her cheek but she suddenly turned to face him and he thereby
accidentally kissed her on her mouth. As far as rubbing her leg and
stomach was concerned, it was submitted that he did this simply
to
congratulate her on making good teddy bear gift sales and that he
meant nothing other than just to express his appreciation
for her
good performance.
[15] It is well established that as an appeal court we
are at large in the event of a misdirection on fact by the trial
court, to
‘disregard the trial court’s findings of fact, even
though based on credibility, in whole or in part according to the
nature
of the misdirection and the circumstances of the particular
case; . . .’ and arrive at our own conclusion.
2
As always the correct approach in the assessment of an accused’s
guilt or innocence is that all the evidence must be taken into

account.
3
[16] The trial court accepted L.’s evidence and found
that she was kept at the Stables against her will by the appellant
and that
during her stay there he raped her, assaulted her by
slapping her on her face, as well as indecently assaulting her when
he penetrated
her anally. It is not clear however from the trial
court’s judgment whether all or some, and if so, which of the
incidents of
sexual intercourse that took place between the appellant
and L. gave rise to the rape conviction. I mention this because L.
testified
that on the Wednesday of the first week at the Stables, the
appellant raped her and that during the second week she had sexual
intercourse with him on two further occasions. It is, however,
apparent from the trial court’s judgment that the reasoning that

primarily led to the conviction of the appellant on the L. counts was
its finding that there was no evidence that the appellant
was in the
process of starting an escort agency business. The trial court
reasoned that it could also find no evidence of the appellant’s

other businesses such as the selling of gifts at restaurants and
other public places.
[17] In coming to this finding the trial court
overlooked objective and uncontested evidence which established as a
matter of fact
that the appellant was in fact engaged in the
establishment of an escort agency. For instance the recruitment
modus
operandi
and the structure of the Stables fitted in with the
business that he said he was establishing which, he testified, was
how it was
done in the industry. The appellant’s evidence in this
regard is undisputed. In my view, the trial court misdirected itself
when
it overlooked this evidence about the appellant’s business
activities.
[18] It is also clear that the trial court also
misdirected itself when it accepted L.’s evidence that she had been
kept at the
Stables against her will. In arriving at this conclusion
the trial court ignored common cause evidence to the effect that L.
had
come to the Stables voluntarily and had at no stage requested
and/or demanded to be taken home. There is also uncontested evidence

that L. had a number of opportunities to escape or simply walk away
if she was so inclined but she did not. Clearly the State had
failed
to prove beyond reasonable doubt that L. was kept at the Stables
against her will and was deprived of her freedom throughout
her stay
there. The kidnapping conviction can therefore not stand.
[19] However, in so far as L.’s rape and indecent
assault is concerned, my view is that the court
a quo
was
correct in upholding the trial court’s conclusion in that regard.
Regarding the Wednesday rape she testified that after the
rape, she
took a shower, staying there for a whole hour contemplating what had
just happened to her. Thereafter, when she had an
opportunity she
telephoned Nicolette and reported the rape. Nicolette confirmed that
her sister had reported the rape to her in
that telephone
conversation. She testified that she did not know what to do, but
decided to phone her sister’s boyfriend, Bradley,
to tell him of
the telephone call from her sister. It is common cause that in the
early evening of that Wednesday, Bradley called
L. on the appellant’s
cell phone. Bradley could however not be called to testify about the
content of the telephone conversation
he had with Nicolette and with
L. as he could not be located.
[20] The appellant denied that he had sexual intercourse
with L. on that Wednesday. Whilst he disputed this rape allegation he
admitted
the telephone call with Bradley. His version is that the
first sexual encounter between him and L. where he actually
penetrated
her was on the Thursday of the first week and that this
was purely part of her training as an all inclusive escort agency
prostitute.
He stated that he was role playing a client when he
penetrated her. This also was his explanation regarding his
penetrating her
anally the next day. This, he stated was also part of
her training and that she was a willing and consenting trainee, so to
speak.
Furthermore he testified that the sexual intercourse between
them on the Monday and Tuesday of the next week was fully consensual

and that it had nothing to do with training. His version was that he
had become estranged from his girlfriend, Tamsyn, and as he
had been
sleeping in L.’s bed during that time a relationship had arisen
between them leading to their having sexual intercourse
on the stated
occasions. He admitted though that she was reluctant at first, during
training, to participate in explicit sexual
activity with him. In
fact he stated, with regard to the anal intercourse, that he realized
after penetrating her for the first
time that she was uncomfortable
and he stopped. He testified that he realized at that stage that this
was an activity she could
simply not perform and that it would have
to be excluded from her tasks. He also stated that she could not
perform pelvic massages,
having failed, apparently, to perform one on
him during training.
[21] It is so that as far as the Wednesday rape is
concerned L. contradicted herself about when this rape would have
happened. She
stated in her examination-in-chief that the rape
happened during the day, but in cross-examination she said it
happened in the
evening. Furthermore in her first police statement
about her ordeal at the Stables she did not mention the Wednesday
rape at all.
In relation to the sexual intercourse incidents of the
next week, L. was clear that the respondent had relentlessly tried to
have
sexual intercourse with her but she had steadfastly resisted.
She testified that she succumbed to his advances during the second

week because she had lost the will to resist him anymore and allowed
him to have sex with her so that he could leave her alone.
She was
unshaken in cross-examination that from the second day of her stay at
the Stables, she was confronted with the appellant’s
advances for
sexual intercourse. These, she said, were aided by Ronel Dunbar and
Tamsyn who took turns in trying to persuade her
to give in to the
appellant’s demands. At some stage Tamsyn slapped her on her face
because of her continued refusal to give
in to the appellant’s
demands.
[22] It is clear from the evidence that the appellant
was astute in what he was doing because he would come into L.’s
room and
get under the blankets of her bed without saying a word. She
testified that he would then fondle her but she would stop him. This

happened for a couple of days until the Wednesday when he forced
himself on her. I do not doubt that the Wednesday rape occurred

despite the contradiction about when it took place. Her call to
Nicolette that afternoon and Bradley’s telephone call to her
in the
evening is uncontested. That is the one and only night that Bradley
called her and, in my view, this was no coincidence,
it is because
Nicolette had reported to him what her sister had relayed to her. I
am further of the view that the appellant’s
version of L. and him
having become lovers leading to their having sexual intercourse on
the second week, was also correctly rejected.
L. had, by the second
week clearly become worn out by the pressure to give in to the
appellant’s advances, and did so on the
Monday and Tuesday. She was
correctly believed when she stated that no relationship had
materialised between her and the appellant.
[23] The appellant’s submission that L.’s
willingness to dress in lingerie and take part in training was proof
of her consent
for him to have sexual intercourse with her cannot be
accepted. No mention of actual sex during training was mentioned
during the
interviews and anyway the appellant was her employer and
not a client who had paid for sexual favours. This notion that as an
employer
he was entitled to have sexual intercourse with her as his
trainee employee, as part of job training, is fallacious. It amounts

to a situation where the trainee employee, in order to get the job,
has no choice but to submit to his sexual exploits irrespective
of
her feelings and inclination. In my view, the appellant’s conduct
is a classic illustration of a power situation where as
an adult
twice L.’s age and in control of the Stables he simply did as he
pleased with her. One important manifestation of this
is his brazen
conduct of simply sleeping in her bed, uninvited. He was clearly in a
dominant position and simply asserted this
dominance by forcing
himself on her.
4
His appeal on the rape and indecent assault convictions (counts one
and two) cannot succeed. One must further not forget that L.
was
clear that she had agreed to work as a receptionist and that her
willingness to take part in training was because the appellant
had
told her that she nevertheless had to do it. She was unshaken in
cross-examination that she did not consent to sexual intercourse
even
though she took part in training.
[24] It was also submitted that L.’s continued stay at
the Stables, despite the activities she was supposedly coerced into,
is
clear evidence that she was a willing participant in those
activities. This is besides the point. L. was not contradicted when
she testified that she accepted the job because her family was
struggling financially and she actually left school to do it. There

is nothing to gainsay the suggestion that her continued stay at the
Stables was influenced by the appellant’s promises to her
and her
mother that she would make a lot of money working for him.
Furthermore, in so far as the supposedly consensual sexual
intercourse with her during training is concerned, it cannot be
stated that she was a novice in sexual matters and as such needed
to
be ‘trained’ on how to have sexual intercourse with potential
clients. L. was, on the facts of this case, a teenager who
had a
boyfriend and knew exactly what sexual intercourse was. As I have
already stated, the notion that training as a prostitute
encompassed
actual sexual intercourse with one’s employer is besides me, more
so when one is dealing with a person who knew what
sexual intercourse
was.
[25] It was further submitted on the appellant’s
behalf that L.’s conduct after she left the Stables is not
consonant with someone
who had, amongst other things, been raped. It
is true that she testified that she reported to her mother that she
had been raped
but nothing was done about her report. The argument
was that one would have expected her to have insisted on going to the
police
or even her mother would have gone to the police when she
heard this, neither did so, instead they went to have a Mothers’
day
lunch. It was only after L.’s mother discussed the matter with
a neighbour a few days later that the neighbour encouraged them
to
contact the police, which they did. I do not agree that this
demonstrates that no sexual wrongdoing had taken place. On the
facts
of this case, I cannot accept the suggestion that L. should be
disbelieved simply because she did not behave in the manner

suggested. This approach, in my view, unfairly puts her, as a rape
complainant, in the position of an accused in which the appellant,
as
the real accused, stands to profit should it be found that the
complainant’s failure to conduct herself in a certain manner
means
she either consented or is simply falsely implicating the appellant.
Judicial pronouncements against this approach have been
unfortunately
few and far between. See, however,
S v M
(supra) where Cameron JA in my view, aptly expressed the correct
approach.
5
In this case the fact that there was no urgency in reporting to the
police can never be a basis to find that no rape had occurred.
It
must also be stated that the conviction for assault involving L.
cannot stand. No such evidence was led. The only assault on
her was
the slap she got from Tamsyn.
[26] As far as W. is concerned, she was clear when she
testified that although she was surprised, she did not object to the
appellant
undressing her and helping her loosen her bra and touching
her breasts. In her evidence she stated that ‘dit was snaaks’ but

she just wanted him to do what he had to so that she would leave. He
had given her no prior warning that he was going to fondle
her
breasts. The test relating to indecent assault is an objective one.
6
It has nothing to do with the fact that the complainant objected or
not. Clearly, the appellant’s conduct of touching W.’s
breasts, a
total stranger at that time, is clearly objectively indecent. The
same goes for the appellant’s conduct of rubbing
D.S.’s leg and
stomach. The same cannot, however, be said about the kiss. His
version of how this happened is sufficiently plausible.
[27] Finally I am of the view that taking all the
evidence into account, the State had succeeded in proving the guilt
of the appellant
regarding all the rape incidents involving L. as
well as the indecent assaults on her and on W. and D.S.. Those
convictions were
therefore properly arrived at and the court
a
quo
cannot be faulted in upholding them. A
factor that, I think, must not be lost sight of in this case is that
even though L., W.
and D.S. voluntarily went to the Stables, this did
not mean that this was a licence for their dignity and integrity to
be violated
at will by the appellant. It appears from the appellant’s
evidence that this is what went on in his mind. He had targeted
vulnerable
young women who would respond to the prospect of making
money due to their poverty. To him, immediately they came to his
premises
and were willing to go through with the interview and
training, he was at liberty simply to do with them as he pleased.
This, in
my view, betrays the appellant’s real intention that as
long as they were on his premises they were his chattels to violate
at
will. Their dignity and integrity irrespective of the job they
enlisted for, should have been respected at all times.
7
[28] In so far as sentence is concerned, I am of the
view that the sentence imposed for the rapes was lenient. Rape has
been described
as a horrific offence deserving of appropriately
severe punishment which sends out a clear message to would be
offenders.
8
Despite my view about the leniency of the sentence imposed for the
rapes, I am not at large to interfere in that regard merely
because I
would have imposed a different sentence. There is no cross appeal in
this regard and besides the fact that the sentence
is lenient does
not necessarily mean that it is so light that it induces a sense of
shock. However, the setting aside of the kidnapping
conviction means
that sentence has to be reconsidered as the court
a
quo
imposed one sentence for the kidnapping,
the rapes and indecent assault on L.. Taking all the circumstances of
the matter into
account a sentence of eight years for the rapes and
indecent assault of L. appears appropriate when taken together for
purposes
of sentence. I would also order that the sentence of six
months’ imprisonment imposed for the indecent assaults on W. and
D.S.
should run concurrently with the sentence of eight years.
[29] In the circumstances the following order is made:
29.1 The appeal against the convictions on count three
and four succeeds and those convictions are set aside.
29.2 The appeal against the convictions on counts one,
two, five and eight is dismissed.
29.3 The sentence of 10 years imposed by the court
a
quo
is set aside and in its stead is substituted a sentence of
eight years’ imprisonment.
29.4 The sentence of six months imposed for the
convictions in count five and eight is confirmed. It is ordered that
this sentence
shall run concurrently with the sentence of eight
years.
_________________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
MHLANTLA AJA
FARLAM JA
[30] I have had the advantage of reading the judgment of
my colleague Mlambo JA in this matter. I agree with his conclusion
that
the appeal against the convictions on counts three and four
should be upheld and that the appeal against the convictions on
counts
five and eight should be dismissed. As far as the conviction
on count one is concerned I agree that it should be upheld but only

in respect of the rapes committed on the Monday and Tuesday of the
second week of N.L.’s stay at the Stables: I do not think
that a
rape on the previous Wednesday has been proven. I also think that the
appeal against the conviction on count two should
be upheld. I
further do not agree regarding the sentence to be imposed.
[31] At the outset it must be pointed out that, as my
colleague has found, the magistrate misdirected himself materially to
such
an extent that this court is obliged to decide the case purely
on the record (without having the benefit of seeing the witnesses)

with the result that the question of onus becomes all-important (see
R v Dhlumayo
1948 (2) SA 677
(A), principles 11 and 13).
[32] As far as count one is concerned I am satisfied,
having read and re-read the relevant parts of the record and having
had regard
to what was put in cross-examination to the complainant
and what the appellant said in his evidence, that the complainant
submitted
to his advances without actually consenting and that he was
reckless as to whether she consented or not. His evidence as to the

way she responded to his lovemaking, which was not put to her in
cross-examination, was, in my view, false and reinforces my
conclusion
that he was in fact reckless. As far as the alleged rape
on the Wednesday is concerned the complainant’s boyfriend was not
called
and it is dangerous to speculate as to what he would have said
if he had given evidence. The complainant contradicted herself as
to
when on the Wednesday the rape occurred and did not mention it at all
in her first police statement. Obliged as we are to decide
the case
on the record I do not think we can be satisfied in the circumstances
that the complainant was raped on the Wednesday
of the first week.
[33] As far as count two is concerned it is common cause
that the complainant agreed to undergo training as what was
euphemistically
called an all-inclusive lingerie model, ie as a
prostitute. It is also clear, in my view, from the record that at
each stage in
the training he asked the trainee if he could proceed
and made it clear to her that if she did not want to carry on he
would stop.
In those circumstances I do not see how it can be found
that in doing what he did he realised that she was not consenting or
that
he was reckless as to whether she consented or not. It follows
that in my view the appeal against this conviction should succeed.
[34] As far as the appeal against the sentence is
concerned, I think that the trial court and the court
a quo
erred
in failing to take into account that the appellant had been in
custody as an awaiting trial prisoner for four and a half years
and
that his health deteriorated badly during that period. He had also
lived in daily fear of assault and rape. Counsel for the
appellant
referred in this regard to Schutz J’s approving reference (in
S
v Stephen
1994 (2) SACR 163
(W) at 168f) to the Canadian decision
of
Gravino
(70/71)
13 Crim L Q 434
(Quebec Court of Appeal) in
which it was said: ‘Imprisonment whilst awaiting trial is the
equivalent of a sentence of twice that
length.’
[35] While I would hesitate to give general approval to
that statement, I think that the circumstances of the appellant’s
pre-conviction
incarceration justify its application here. I fully
endorse what was said in the cases cited in my colleague’s judgment
regarding
the seriousness of the crime of rape but I think that the
factor to which I have just referred should have been taken into
account
and that the sentence of ten years’ imprisonment imposed by
the court
a quo
should be replaced by a sentence of six years’
imprisonment.
……………
..
IG FARLAM
JUDGE OF APPEAL
1
At p 555b-c: ‘The factors which motivated this
Court to dispense with the cautionary rule in sexual assault cases
apply, in
my view, with equal force to all cases in which an act of
a sexual nature is an element. The reasons given by Olivier JA at
474f-477d
in
S v Jackson
therefore require no elaboration or qualification in relation to the
crime of incest and I proceed to consider the evidence without
the
restraints imposed by the cautionary rule.’
2
R v Dhlumayo
1948 (2) SA 677
(A) at 706. See also
S v
Heslop
2007 (1) SACR 461
(SCA) at 472c.
3
S v Gentle
2005 (1) SACR 420
(SCA) at 433h-l;
S v M
2006 (1) SACR 135
(SCA) at p 183 para 189.
4
Masiya v Director of Public Prosecutions, Pretoria and Another
(Centre For Applied Legal Studies And Another, Amici Curiae)
2007 (2) SACR 435
(CC) para 36: ‘. . . historically, rape has been
and continues to be a crime of which females are its systematic
target. It
is the most reprehensible form of sexual assault
constituting as it does a humiliating, degrading and brutal invasion
of the
dignity and the person of the survivor. It is not simply an
act of sexual gratification, but one of physical domination. It is

an extreme and flagrant form of manifesting male supremacy over
females. (See
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA)
(1997 (3) SA
341)
at 344I-345B (SA). This Court has said in
S v Baloyi
[1999] ZACC 19
;
2000
(1) SACR 81
(CC)
(2000 (2) SA 425
;
2000 (1) BCLR 86)
at para
[12]
that rape, like domestic violence, is “systemic, pervasive and
overwhelmingly gender-specific . . . [and] reflects and reinforces

patriarchal domination, and does so in a particularly brutal form”.’
See also
S v Ferreira
2004 (2) SACR 454
(SCA) para 40 where
the following is stated: ‘Sexual violence and the threat of sexual
violence goes to the core of women’s
subordination in society. It
is the single greatest threat to the self-determination of South
African women. It also, therefore,
means having regard to an abused
woman accused’s constitutional rights to dignity, freedom from
violence and bodily integrity
that the abuser has infringed. (
S v
Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b-f
[1997] ZASCA 45
;
(1997 (3) SA 341
at
344J-345E); the Constitution, ss 10, 12(1)(c) and 12(2)).’
5
At para 272: ‘Accused persons are entitled to be acquitted when
there is reasonable doubt about their guilt. That does not
make it
necessary or permissible for motives to be freely imputed to sexual
offence complainants at appellate level when these
were not fairly
and properly explored in their testimony. To permit this would
threaten return to the indefensible days when
complainants were
treated as inherently unreliable, inherently inclined to false
incrimination, and inherently disposed to destructive
jealousy in
relation to their consensual male sexual partners.’
See also
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 778 where the
following was stated: ‘However, rape is an experience of the
utmost intimacy. The victims or survivors
thereof are largely
confined to the female sex. I have heard the response of such
survivors generically described as “a scream
from silence”. The
result has been a paucity of South African legal and judicial
understanding and commentary on the full parameters
and implications
of this phenomenon. Rape is an experience so devastating in its
consequences that it is rightly perceived as
striking at the very
fundament of human, particularly female, privacy, dignity and
personhood. Yet, I acknowledge that the ability
of a judicial
officer such as myself to fully comprehend the kaleidoscope of
emotion and experience, of both rapist and rape
survivor, is
extremely limited.’
6
S v Kock
(supra).
7
Mahomed CJ in
S v Chapman
1997 (2) SACR 2
(SCA) at 5b-e
stated: ‘The rights to dignity, to privacy and the integrity of
every person are basic to the ethos of the Constitution
and to any
defensible civilisation. Women in this country are entitled to
protection of these rights. They have a legitimate
claim to walk
peacefully on the streets, to enjoy their shopping and their
entertainment, to go and come from work, and to enjoy
the peace and
tranquillity of their homes without the fear, the apprehension and
the insecurity which constantly diminishes the
quality and enjoyment
of their lives.’
8
S v Chapman
(supra) at 5b: ‘Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal invasion
of the
privacy, the dignity and the person of the victim.’ See
also
S v Mojaki
2006 (2) SACR 590
(T) at 591: ‘Rape is a
very serious offence, so serious that I doubt whether those who are
not women will ever be able to fully
understand its effect on the
victim. It violates the dignity of the person being raped. More so
when it is perpetrated on young,
defenceless and innocent ones.
Children are entitled to be children.’ See also
Chapman
(supra) at 5e: ‘The courts are under a duty to send a clear
message to the accused, to other potential rapists and to the
community: We are determined to protect the equality, dignity and
freedom of all women, and we shall show no mercy to those who
seek
to invade those rights.’