About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 13
|
|
De Wet v S (CA&R 90/2017) [2018] ZANCHC 13 (29 January 2018)
Reportable:
YES/
NO
Circulate
to Judg es:
YES
/
NO
Circulate to Magistrates: YES /
NO
Circulate to Regional M agist
rates : YES /
NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High Court, Kimberley)
CASE NO:
CA&R 90/2017
DATE HEAR D:
29 JANUARY 2018
REASONS:
29 JANUARY 2018
In the matter between:
JOSHUA
DE
WET
Appellant
and
THE
STATE
Respondent
Coram:
Olivier J
et
Erasmus
AJ
REASONS
Olivier J:
[1.]
The appellant, Mr Joshua De Wet, stood trial in the Regional Court in
Port Nolloth
on charges of rape, on the basis of vaginal penetration
with a finger (count 1) and attempted rape, on the basis of attempted
vaginal
penetration with his penis (count 2)
[1]
.
The case for the prosecution was that both offences had been commit
ted at the home of the complainant, during the early evening,
and
basically on the same occasion.
[2.]
The appellant pleaded not guilty to both counts. In his plea
explanation in respect
of count 1 he stated that he had pushed his
hand into the complainant’s pants while sitting on her lap on a
bench in the
lounge, and while they were cuddling and kissing, that
he had then touched her vagina, but had never inserted his finger.
During
the incident the complainant remarked that the appellant was
married and that what he was doing amounted to rape, but according
to
the appellant she had said that in a joking manner. According to the
appellant the complainant had never resisted, and in effect
had
impliedly consented.
[3.]
In respect of count 2 the appellant stated that he and the
complainant had, after
the incident in the lounge, gone to a bedroom,
while still kissing and cuddling, where the complainant lay down on a
bed. He stated
that he had then removed both of their pants, and that
she had in fact assisted him by lifting her buttocks, so that he
could pull
her pant s off. The appellant stated that he had at that
stage been aroused to such an extent that he ejaculated onto the
complainant's
panty, before he could penetrate her.
[4.]
The appellant was convicted on both counts. On count 1 it was found
that the complainant
had resisted, but had been overpowered by the
appellant, who had then inserted his finger into her vagina. On count
2 it was found
that the appellant had in fact forced the complainant
to the particular bedroom, had forcefully removed her clothing and
had th
en ejaculated prematurely. It was found that these action s
had amounted to an attempt to rape the complainant.
[5.]
The appellant was sentenced to 10 years imprisonment on count 1 and 5
years imprisonment
on count 2, and it was ordered that the sentence
on count 2 be served concurrently with the sentence on count 1.
[6.]
The appellant's application for leave to appeal against the convict
ions and sentences
was dismissed, but he was granted such leave on
petition. After having heard argument, and in the light of the fact
that the appellant
was already serving the sentences at that stage,
we deemed it fit to make the following order, and what follows are
the reasons
therefore.
THE APPEAL
SUCCEEDS AND BOTH THE CONVICTIONS AND SENTENCES ARE SET ASIDE.
[7.]
The following facts were common cause:
7.1 In
October 2009 an intimate incident took place between the appellant
and the complainant on a rugby
field in Alexander Bay.
7.2 Over
the years thereafter they regularly saw one another in passing, and
always greeted one another
in a friendly manner.
7.3 The
appellant would on such occasions often make reference to the
incident on the rugby field, by asking
the complainant when they were
going to play rugby again.
7.4 The
appellant would also always, apparently jokingly, call the
complainant his mother-in-law's daughter,
and he would also call her
mother his mother-in-law.
7.5
During 2011 the appellant got married, but he kept on greeting the
complainant and her mother like before.
7.6 On 10
March 2014 the appellant visited the house of the complainant. It
appears that he had in some
way been involved in the voting process,
and he asked the complainant whether she had registered as a voter.
7.7
At some stage they were both on the couch in the sitting room or
lounge, where the complainant
had been sitting.
7.8 The
complainant wore tracksuit pants and a panty.
7.9 The
appellant put his hand inside the complainant’s pants, and
apparently also inside the panty.
That is when, on her version, he
inserted his finger into her vagina and, on the appellant's version,
he only touched the complainant’s
vagina.
7.10 There was a sound at
the door through which the appellant had entered the house, as if
somebody was knocking on it. The
appellant then got up and locked the
door.
7.11 The appellant and the
complainant then moved to a bedroom.
7.12 That is where the
appellant, intending to have sexual intercourse with the complainant
by penetrating her vaginally with
his penis, removed their clothing,
but then ejaculated prematurely.
[8.]
As far as count 1 is concerned, the insertion of his finger into the
complainant’s
vagina without her consent would have constituted
r ape, as envisaged in the Act. Without consent, the mere touching of
her vagina
would in any event have constituted indecent assault,
which would have been a competent verdict on count 1. As far as count
2 is
concerned, the State’s case was that the appellant's
actions would, without the consent of the complainant, have
constituted
an attempt to rap e, again as envisaged in the Act. The
issues, as far as count 1 was concerned, were therefore penetration
and
consent and, as far as count 2 was concerned, consent.
[9.]
It is trite that a court of appeal should not readily interfere e
with the factual findings
of a tri al court
[2]
.
However, it will, and in fact should, be done where such
findings
are clearly wrong
[3]
all the
more so where such findings are premised on the recorded evidence,
rather than on demeanour
[4]
.
[10.]
The complainant's evidence was that she and the appellant had in
October 2009 attended a dance at the rugby
field and had ended up
kissing.
[11.]
She went on to testify that, on the day of the present incident, the
appellant knocked, then entered the
house without having been invited
to do so and closed the door behind him. She had been alone at home,
and according to the complainant
her daughter had been out at that
stage.
[12.]
According to the complainant the appellant, after having enquired
about her registration as a voter, in
some way ended up on top of
her, where she was sitting on the couch. He again wanted to know when
they were going to the rugby
field again. He tried to get his hand
inside her pants, repeatedly, but according to her she managed to
prevent this by pulling
his hand away every time. During that process
she said to him that he was a married man and asked him whether he
realised that
what he was doing amounted to rape. According to the
complainant the appellant, while she was still struggling and
resisting, managed
to get his hand inside her pants and inserted his
finger into her vagina.
[13.]
That is when the appellant got up, peaked through a window and then
locked the door.
[14.]
According to the complainant the appellant then forced her to the
bedroom. She resisted, but he held her
by her arms. In the bedroom he
threw her onto the bed, held her down and removed his pants and then
hers. The appellant then ejaculated
before he could penetrate her
vagina with his penis.
[15.]
The complainant testified that the appellant then left the room. She
got up from the bed, pulled up her
pants and panty, and straightened
the bedding. When the appellant came back to the room, she closed the
door of the room to prevent
him from entering, and he then walked
away.
[16.]
The complainant went on to say that she then went to the toilet,
where she noticed the semen of the appellant
on her panty and wiped
it off.
[17.]
According to the complainant her daughter arrived at some stage, but
it is not clear exactly when. The complainant
then sent a so-called
Whatsapp message to Mr Gregory Cloete, and made a report to him. It
later appeared that the report was in
fact contained in a series of
such messages.
[18.]
Mr Cloete arrived and took the complainant to the house of her aunt,
Mrs Lizzy Balley, to whom she then
also made a report.
[19.]
The comp lain ant testified that she was then taken to the police
station by one Lucinda Nel. She did not,
however, at that stage lay a
complaint, according to her because she was too emotional.
[20.]
At a later stage she spoke to her father, and then also to her
mother.
[21.]
The next morning her mother took her to Sister Meissenheimer in
Springbok for a medical examination. That
afternoon the complainant
opened a criminal case against the appellant.
[22.]
Mr Cloete and Mrs Balley testified about the complainant's reports to
them will revert to their evidence
in this regard at a later stage.
[23.]
Sister Meissenheimer was not called as a witness, but her report
(J88) was entered into evidence.
[24.]
After an unsuccessful application for his discharge in terms of
section 174 of the
Criminal
Procedure Act
[5]
the appellant's case was closed without having presented any
evidence.
[25.]
The complainant was a single witness as far as the issues of
penetration and consent were concerned. Her
evidence therefore needed
to be approached with caution and, where not substantially
satisfactory, would have had to be
.
corroborated
by other evidence
[6]
. The
question is whether it can be said that the complainant's evidence
was substantially satisfactory regarding the issues in
dispute, and
that it excluded the reasonable possibility of the version of the
appellant being true.
[26.]
The Regional Magistrate referred to various aspects which were
considered to be probabilities favouring
the case of the prosecution.
26.1
The Regional Magistrate found that the fact of premature ejaculation
was
"inconsistent"
with the appellant's version that
events in the bedroom had taken place with the complainant's consent.
It is not altogether clear
why the Regional Magistrate came to this
conclusion. Would the premature ejaculation really have been more
consistent with the
version of violence, where the appellant had been
struggling to get the complainant to the bedroom, to get her onto the
bed and
to undress her?
26.2
The Regional Magistrate
also found that the fact that the appellant had stood up immediately
after ejaculating was inconsistent
with a scenario of consent, and
consistent with the complainant's version of having prevented the
appellant to penetrate her
[7]
. Again, it is not clear why this would be so. What else would the
Region al Magistrate have expected the appellant to have done
on his
version? Whether or not the intercourse was going to be consensual,
it would certainly not have been strange for the appellant,
having
realised that he had already ejaculated, to get up and leave.
26.3
The Regional Magistrate found the version of the appellant that he
believed the complainant's
remark, about him being married and being
busy with rape, to have been made jokingly, to be
"ridiculous
in the extreme".
Once again, it is not clear why the
Regional Magistrate came to this conclusion. The appellant had even
made reference to the complainant's
facial expression at the time
when she made the remarks. In fact, why would the complainant, in
circumstances where she was being
subjected, on her version, to a
forceful indecent assault, deem it relevant to confront the attacker
with the fact that he was
married? Why would that have been relevant,
and why would she have thought that it would have stopped him. Surely
a violent attack
like that would have constituted rape, regardless of
the marital status of the attacker.
26.4
The Regional Magistrate found the short duration of the event s in
the house to be
inconsistent with the version of the appellant that
they had kissed and cuddled on the couch, that he had then closed the
door
and that they had then gone to the bedroom. The Regional
Magistrate found it unlikely that
"such consensual and sexual
encounters"
could have taken place in such a short space of
time. It was found that a short duration of time was more consistent
with the version
that the appellant had been forcing himself onto the
complainant. Why would the cuddling and kissing version have taken
longer
than the incident described by the complainant? The Region al
Magistrate seems to have lost sight of the fact that everything,
whether consensual or not, was cut short by the appellant's premature
ejaculation.
26.5
The Regional Magistrate found, as regards the events in October 2009,
that whatever
relationship there might after that have existed
between the appellant and the complainant, that relationship had been
"punctuated"
when the appellant got married in 2011,
and the Regional Magistrate found that this made it unlikely that the
complainant would
have consented in the way described by the
appellant. It is an unfortunate fact of life that married people
sometimes commit adultery,
and sometimes unmarried people are
involved in that. I think judicial notice can be taken of this.
26.7 The
fact that the complainant did open a criminal case against the
appellant is not
in our view, in the particular circumstances of this
case, a decisive consideration, or one which
"could
significantly affect the
•
probabilities
one way or another'
[8]
It
must be seen against the background that the complainant had chosen
not to lay a complaint when she had been taken to the police
station
the previous day. It appears that she only decided to do so after
having spoken to her parents.
[27.]
The Regional Magistrate found that Cloete's evidence
"corroborated"
what the complainant had testified regarding the fact that the
complainant had told the appellant that he was busy with rape, the
wrestling in the sitting room, the fact that the door had been locked
by the appellant, the fact that the appellant had pushed
her down,
the fact that the appellant had taken her pants off and the fact that
the appellant had ejaculated on her.
27.1
With the exception of the
aspects of the wrestling and the pushing down, all the other aspects
in respect of which the Regional
Magistrate found Cloete to have
corroborated the complainant's evidence, were actually not in dispute
[9]
.
27.2
As far as the remaining
two aspects are concerned it is trite law that a report about a
sexual incident generally cannot serve as
corroboration, but will
only be admissible as to the consistency of the allegation that there
had been no consent
[10]
.
[28.]
In his plea explanation the appellant expressly stated that he did
not know why the complainant had
laid the charges, but that he
suspected that it may have been because he was married, because he
had not been able to complete
the intercourse and had made a mess on
the complainant or because the complainant could possibly have been
concerned that the events
in the house could become known, and that
it would then be said of her that she got involved with married men.
28.1
The Regional Magistrate found these possibilities to be
"ludicrous
in the extreme".
28.2
It would appear, with respect, that the Regional Magistrate lost
sight of the fact that
the appellant had expressly stated that he did
not actually know what could have motivated the complainant to lay
false charges
against him . He was merely speculating.
28.3
Furthermore the Regional Magistrate apparently never considered why
the complainant had
not, when she was taken to the police station the
very same day, opened a case. Her explanation that she was too
emotional to do
so, is difficult to believe, because she had at that
stage already discussed the events in some detail with Cloete, and
thereafter
also with Mrs Balley.
28.4
Insofar as the Regional
Magistrate's rejection of the possible motives raised by the
appellant may have contributed to the rejection
of the version of the
appellant as a w hole, that would have been wrong in law. An accused
person has no duty to explain why a
complaint was laid
[11]
.
[29.]
In our view there were various unsatisfactory aspects in the evidence
of the complainant, some of which
the Regional Magistrate did not
refer to.
[30]
The appellant's version, as contained in his plea explanation, was
that he and the complainant had
known each other for many years and
that they once had sexual intercourse at the rugby field.
30.1
All the complainant was
initially prepared to admit regarding the incident at the dance was
that she and the appellant had kissed.
In her police statement she
also simply said that they had kissed on the rugby
•
field, and added that it had been nothing serious
[12]
When the complainant and Cloete discussed the incident on the rugby
field, after she had laid these charges against the appellant,
she
told Cloete only about a kiss
[13]
. When it was put to her that the appellant's version, in his plea
explanation, was that they in fact had sexual intercourse on
that
occasion, she simply denied this.
30.2
In cross-examination the version of the complainant changed
drastically,
to a scenario where they had in fact wanted to have sex,
where both of their pants had been pulled down and where they had in
fact
been attempting to achieve penetration, but had failed because
of the fact that they had been standing.
[31.]
The complainant's initial evidence was, as far as the incident in the
lounge is concerned and as already
said, that the appellant had
repeatedly attempted to get his hand into her pants, but that she had
pulled away his hand every time
[14]
. Shortly after that, however, she corrected herself, claiming to
have forgotten to say that the appellant had eventually succeeded
in
getting his hand into her pants and that he had then inserted his
finger into her vagina. The Regional Magistrate apparently
viewed the
fact that the complainant had corrected herself in this way as a sign
of honesty. How is it possible that the complainant
could initially
have forgotten such a vital piece of information? In fact, her
initial evidence was in effect that each and every
one of the
appellant's attempts to even get his hand inside her pants had been
unsuccessful, until he eventually had to get up
to go to the door.
Her initial version therefore in effect excluded any suggestion that
the appellant had even succeeded to get
his hand into her pants.
[32.]
The Regional Magistrate furthermore clearly regarded the fact that
the complainant had also mentioned penetration
with a finger in her
police statement as corroboration for her evidence in this regard. It
is trite law that evidence of a simil
ar statement is inadmissible
under circumstances like these
[15]
. Also this part of the police statement was never canvassed in
evidence as far as we could discern, and it therefore appears as
if
the Regional Magistrate had at some stage on his own read the whole
statement and had then relied on contents thereof that he
regarded as
"
similar"
to
what the complainant had testified in court, but which had never been
canvassed in evidence.
[33.]
In her evidence-in-chief the complainant denied that the appellant
had at any stage been sitting on her
lap, as stated by him. In
cross-examination the complainant testified that, at the stage when
the appellant asked her about the
,
rugby
field, he had already been on top of her for a while
[16]
which
would suggest that the appellant had in some way or another been on
top of the complainant when they were talking about the
rugby field.
To Balley the complainant reported that the appellant had in fact
jumped onto her
[17]
. This
was, however, never part of the complainant's evidence and would in
fact be very difficult to reconcile with her version.
[34.]
When the complainant was examined by Sister Meissenheimer the next
morning, she apparently told her that
the appellant had forced her to
have sex with him. The report contains no indication that the
complainant had told Meissenheimer
that the appellant had inserted
his finger. Also, a report that the appellant had
"forced her
to have sex with him"
would in our view suggest some form of
coercion, rather than a violent subjection to one-sided sexual
intercourse.
[35.]
According to Balley the complainant had told her that the appellant
put his hand into her panty, but Balley
made no mention of the
complainant adding that the appellant had at any stage inserted his
finger into her vagina. According to
Balley the complainant told her
that this happened in the bedroom, while the complainant's evidence
was of course that it had happened
in the lounge.
[36.]
It is clear from both the statement and the evidence of Balley that
the complainant had also told her, or
at the very least led her to
believe, that actual sexual intercourse had in fact taken place.
[37.]
The complainant's report to Cloete consisted of a series of so-called
Whatsapp messages. The first
message was only to the effect that
the appellant had pinned her down. The exact contents of the
subsequent messages were never
disclosed by Cloete, but the only
relevant additional information that appears to have been contained
in them was that the door
was locked, and that the appellant's semen
had land ed on the complainant. The Whatsapp reports to Cloete were
clearly silent on
any form of penetration, let alone by specifically
a finger.
[38.]
At no stage did the complainant shout for help; not even when the
appellant got up from the couch after
having allegedly already
succeeded in penetrating her with his finger and when it sounded like
somebody was knocking at the door.
She did also not do so after
having observed the appellant locking the door, and by that time the
appellant's intentions must have
been painfully clear to her. It
appeared that the complainant had neighbours on both sides of her
house, and also opposite the
street, and she conceded that people
could have been walking past her house in the street at that stage.
She tendered various different
explanations for not having called for
help, not one of which was really satisfactory;
inter alia
that
she was not the type of person who would scream.
[39.]
As already mentioned the complainant's initial version was that the
appellant had thrown her down onto the
bed
[18]
. This is also what she had apparently told Balley . In
cross-examination, however, she changed her version and said that she
had not been thrown down, but had only been pinned down on the bed;
which would obviously beg the question how she landed up on
the bed
in the first place. Her police statement also made no mention of
having been thrown onto the bed; only that they had wrest
led until
they were on the bed.
[40.]
Initially the complainant said that the appellant had indeed
attempted to have intercourse with her, but
could not succeed because
she struggled too much. Later she testified that the appellant had
ejaculated before he had even attempted
to penetrate her vagina. At a
later stage the complainant reverted to the version that the
appellant had indeed attempted to penetrate,
but that she had
prevented it by closing her legs.
[41.]
In fact, on the complainant's initial version the appellant had not
even pulled down her panty, which would
correspond with his plea
explanation that he had ejaculated onto her panty. The complainant's
evidence that she wiped the panty
(not herself) when she noticed the
semen on it, would also fit in with the semen having landed on the
panty. It would also correspond
with Cloete's evidence that the
complainant had reported to him that the appellant had ejaculated
onto her panty. It was only at
a later stage that the complainant
testified that her panty had been pulled down, and was hanging around
her ankles near the floor,
when the appellant ejaculated directly
onto her vaginal area, and that she seemed to suggest that the semen
landed up on her panty
when she pulled it up after the incident. This
version is, however, difficult to reconcile with the
complainant's
,
evidence
that she wiped
"it''
[19]
,
in
other words the panty and not herself , when she noticed the semen.
[42.]
The complainant straightened the bed when the appellant got up and
went out of the room. This is also what
she told Cloete. We found
this difficult to reconcile with the actions of somebody who had just
been subjected to a violent sexual
attack. It is equally difficult to
reconcile with a person who was so traumatized by the events in that
house that she was too
emotional to lay a complaint when she was at
the police station later that very same day.
[43.]
The complainant initially testified that the appellant had simply
walked away after the incident, but when
she was confronted with the
fact that she had told Balley that the appellant had run away, she
had no hesitation to adapt her version
and to say that the appellant
had jogged home when leaving the house. On her initial version she
would, however, also not have
observed the appellant on the outside
of the house, but she adapted version to one according to which she
had followed the appellant
when he left the house, locked the door
and then peaked through the window, observing him jogging off. It is
also not clear when,
on this new version, it was that the complainant
had gone to the bathroom then.
[44.]
The new evidence that she had locked the door at that stage is
difficult to reconcile with Cloete's evidence
that, when he arrived
in response to the Whatsapp-messages, he found the complainant
sitting in a chair in the lounge.
[45.]
Having regard to the degree of violence that must on the
complainant's version have been applied, it could
be argued to be
strange that not as much as a single bruise was left. No mention was
apparently made to Meissenheimer of such violence.
[46.]
In our respectful view the Regional Magistrate was wrong to find, on
the basis of the complainant's evidence
that she had not consented to
what had taken place in both the lounge and the bedroom. Her evidence
was, in our view, far from
satisfactory on the issue of consent, and
there was nothing to corroborate it.
[47.]
The same applies to the issue of penetration, as far as count 1 is
concerned. In the absence of any independent
corroborating evidence
the evidence of the complainant alone was not nearly sufficient to
exclude the reasonable possibility that
no penetration had taken
place.
[48.]
The fact that the appellant did not testify could not in these
circumstances in our view have strengthened
the case for the
prosecution.
[49.]
It follows that we were of the view that the convictions should be
set aside, which makes it unnecessary
to deal with the appeal against
the sentences.
C
J OLIVER
JUDGE
NORTHERN CAPE DIVISIO N
I
concur.
S L
ERASMUS
ACTING
JUDGE
NORTHERN CAPE DIVISION
For the
Appellant:
Adv D Filand
(Instructed by Towell &
Groenwaldt Attorneys)
For the
Respondent:
Adv J
S Mabaso
(On behalf of The Office of
the Director of Public Prosecutions}
[1]
As envisaged in the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act
, 32 of 2007 ("the Act" ).
[2]
Compare
Kebana v S
[20 I 0] I All SA 310 (SCA) para [ 1 2 ]
[3]
Compare
S v M
2006 (I) S ACR 1 35 (SCA) para [40]
[4]
Compare
S v Cross berg
2008 (2) SACR 3
1 7 (SCA) para [149]
[5]
51 of 19 77
[6]
Compare
S v Ma hla ngu and Another
20 I I (2) S AC R 1 64
(SCA) at 17 1 b to d
[7]
A version to which I will revert in due course.
[8]
Compare
Erasmus v Camde boo M unisipaliteit
20 I I JDR 1 4 77
(ECG) para [22]
[9]
Co mpare
S v Gentle
2005 ( I) SACR 420 (SCA) at 430 -431 ;
S
v Scott-Crossley
2008 ( I ) SACR 223 (SCA) para [8]
[10]
Compare
S v Hammond
2004 (2) SAC R 303
(S C A)
[11]
Compare
S v Lotter
2008 (2) SACR 595
(C) para [38);
Van
der Watt v S
[20 I 0)
3 All SA 434
(SCA) para [ 16) and
S v
Raghubar
201 3 ( I ) SACR 398 (SCA) para [ 1 9
[12]
'maar dit was nie iels ernslig nie"
[13]
" 'n soent jie··
[14]
''elke kee r het ek sy hand weggeruk"
[15]
Compare
R
v
M
19 5 9 (I) SA 434 (A) at 437 - 438F
[16]
" was hy al lankal ho - o p my
[17]
"" hy het haar toe bespring·'
[18]
'’my op die bed gegoot''
[19]
“
dit”