About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 481
|
|
Rafatlema v S (A627/2015) [2017] ZAGPPHC 481 (9 March 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A627/2015
DATE
OF APPEAL: 9 FEBRUARY 2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between
JERRY
RAFATLEMA
Appellant
Versus
THE
STATE
Respondent
JUDGMENT
MADIMA,
AJ
[1]
The appellant faced four counts of rape, one count of
kidnapping and another of theft in the Pretoria Regional Court. He
was found
guilty on all counts. On 23 April 2010 he was sentenced to
a cumulative life sentence. The appellant's application for leave to
appeal on 13 October 2011 was refused. He is before us in terms of
s309 (1) (a) of the Criminal Procedure Act, Act 51 of 1977.
The
relevant section provides for an automatic right to appeal against
both conviction and sentence where a life sentence has been
imposed
by a court a
quo.
[2]
The brief background to this matter is as allows. The
complainant is from Tafelkop in Limpopo Province. She was 17 years of
age
at the time of the incident and had just completed matric. On 31
January 2009 she was in Mamelodi East visiting her brother, G.
She
was in Pretoria to register at the Tshwane University of Technology
to upgrade her matric which she had not passed as well
as she would
have wished.
[3]
On that fateful day the complainant was walking along a
railway line on her way to Magugu Valley. She met with the appellant,
then
a 29 year old man, coming from the opposite direction. The time
was about 14:00. The appellant greeted her. She acknowledged him.
He
ordered her to stop. She did not. He grabbed her by her trousers
around the waist. He ordered her not to make any noise. He
told her
that she had a nice body and forced her to accompany hi into bushes
nearby. He informed her that he could kill her if
she did not
co-operate. He was not scared of anyone.
[4]
When they reached a secluded spot, the appellant undressed the
complainant, then himself. He ordered her to lie on her back and
raped her. He did not use a condom. The complainant suffered several
injuries on her back and buttocks, as the ground upon which
she was
ordered to lie was rough and had small stones. The appellant also
strangled her and bit both her breasts during the sexual
assault.
When he was done he apologized. He told her that his mother had been
raped in the exact same spot. She did not respond.
The appellant then
took R10.00 from her jeans pocket.
[5]
The appellant instructed the complainant to accompany him to
his home. They boarded a taxi which had other passengers inside. She
did not tell anyone in the taxi about her predicament. Upon their
arrival at the appellant's home, he introduced her to his mother.
The
appellant's mother appeared to like her and invited the complainant
to pay her a visit again. The appellant occupies a backroom
at his
mother's house. It was in his room that the appellant raped the
complainant three more times, again without a condom.
[6]
The complainant managed to escape from the appellant's room at
about 22:00.
She
took the sum of R9.00 that was next to the bed to pay for her taxi
home. There were no taxis on the streets at that time of
night. She
flagged down a vehicle that was passing by. When she got home she did
not tell her brother what had happened to her,
save to tell him that
she had been kidnapped. She was too afraid to tell him that she had
been raped. The next morning she related
the whole saga to one S T
("T"), a tenant in the same house as her brother. T called
her brother who had by that time
already left for work. They both
took the complainant to the police station and later to the hospital.
[7]
T's evidence corroborated that of the complainant. T testified
that she had seen the injuries sustained by the complainant on her
neck, back and breast. The J88 also confirmed the complainant's
injuries.
[8]
The findings contained in the J88 were consistent with first
time penetration of a vagina, specifically in that the hymen was not
intact and there was visible scarring inside her vagina.
[9]
In his defence the appellant testified that he had met with
the complainant on the day in question. He proposed love to her, she
accepted and they fell in love. They ended up at the appellant's
place of residence. He introduced the complainant to his mother.
He
never raped her. The sex between them was consensual. The appellant
denied kidnapping the complainant as well as robbing her
of R10.00.
Sometime during the course of that evening the complainant Ieft and
went home by taxi. He also denied that they had
intercourse in the
veld.
[10]
The appellant's mother testified in his defense. She stated that the
appellant arrived home with the complainant. He introduce
the
complainant as his girlfriend and the complainant did not deny that
fact. The conduct of the complainant never raised any suspicion
with
her and she appeared comfortable. The mother invited the complainant
to come and visit again.
[11]
The appellant testified that he did not know what caused the
injuries of the complainant recorded on the J88. He stated that when
she left his house she did not have those injuries.
Grounds
of appeal
[12]
The
appellant submitted that the court a
qu
o was wrong in
convicting him. He laments the fact that the court was not
sufficiently cautious when evaluating the evidence
of the
complainant, who was also a single witness. The court also did not
take into account the contradictions and improbabilities
in the
State's case. The appellant further submitted that the court should
not have convicted him in the absence of
viva voce
evidence of
the J88 record.
[13]
The appellant submitted further that the court failed to apply
the test of dealing with two mutually destructive versions. The court
ought to have found the evidence of the appellant reasonably possibly
true.
Was the evidence of the
complainant substantially satisfactory in every material respect?
[14]
The appellant made much of the fact that the complainant was a
single witness. He relied
on
S v Mahlangu and Another
2011 (2) SACR 164
(SCA
) where
the court held
that:
"Section 208 of the Criminal Procedure A t 51
of 1977 provided that an accused may be convicted of any offence on
the single
evidence of any competent witness. The Court can base its
finding on the evidence of a single witness, as long as such evidence
is substantially satisfactory in every material respect, or if there
is corroboration".
[15]
The appellant submitted further that there were contradictions
and improbabilities in the complainant's evidence. Some of these are
the following:
He
instructed me to stop which I did not do. He came
fro
m
my back (sic) following me and I kept on walking, I did not stop. He
grabbed me with trousers [indistinct] and after that he whispered
in
my ear telling me that I must not make noise. After that he told me
that I have
a
nice
body and he like (sic) my body"
When
did he now tell you he liked your body, when did this happen now?
The
first time I bumped to him, he greeted me. That is before he can
pass
me and make
a
U-turn.
He greeted me and told me that he is
..
[indistinct]...by
my body.
So
he had
a
conversation with you:---- Yes
[16]
I find no contradiction in the evidence of the complainant.
The evidence of the complainant is clear when viewed in the context
of all of the other evidence led. The complainant was walking. She
met the appellant. He stopped her. She continued walking. He
told her
she had a beautiful body. whether theirs was a full blown
conversation is neither here nor there. The appellant threatened
her.
He told her he was not afraid of anyone. No one would help her e en
if she tried to solicit such help from them.
[17]
The appellant submitted that the complainant also contradicted
herself in her evidence regarding the incident in the bushes when
she
testified that:
Reason
being that I
was
scared
even if when we were at t
1e
bushes
he
was
picking up
stones, throwing them at me
No
he
was
just holding
it, scaring me (sic) that he will throw me (sic), but he never
did.
The
contradiction raised by the appellant is not material and does not
impact on the totality of the evidence regarding the sexual
assault.
[18]
The complainant is also said to contradict herself on the
number of times she was raped. The J88 record states that the
complainant
reported to the medical practitioner that she was raped
twice, once in the bush and another time in the house.
The
patient
was
apparently
sexually assaulted twice in the bush and at the home by the
perpetrator.
[19]
The court a
quo
did not have the benefit
viva voce
evidence of the doctor who examined the complainant. The
inscription the J88 is not clear. In the absence of
viva voce
evidence it is possible that the complainant could have told the
medical practitioner that she was sexually assaulted at two separate
locations, namely the bush and the home, or that she was raped twice.
I am satisfied that it is not an indication that the complainant
contradicted herself.
[20]
The complainant is also accused of not fleeing from the
appellant, or to alert the bystanders about her situation when an
opportunity
to do so availed itself.
But
they could ha have heard you if you screamed? -----Yes
Okay,
so why did you not run then?---- I did not run because
we
were in the field and when I looked down I was scared to fall. It is
the reason why I did not run.
Okay.
Now madam when you got into the taxi, you had not seen a knife or any
gun at that stage from the accused. Why did you not
alarm the people
there and say you are being forced into the taxi, they must help you?
-----I
was scared and
that never crossed my mind as the accused told me that even if you
tell somebody else they will not do anything and
secondly I was
feeling pains.
Okay
when you spoke to his mother, were you friendly with the mother?
---
That is correct. And you were then friendly
with the mother?
------
Yes
And
you were acting as if you were his girlfriend?
-----
Yes
So
you only found your brother?
---
Yes and he asked me where
I was coming from. I told him that the one guy kidnapped me, but I
managed to escape without hi doing
anything to me.
And
why were you lying to your brother?
---
I
was scared at that time. Then I told myself I was not going to tell
anybody what happened.
[21]
I am in agreement that certain parts of the evidence of the
complainant seem improbable. For example, the complainant, after
the
sexual assault in the bush, boarded a taxi with the appellant. The
taxi had other passengers inside. She did not raise the
issue of her
predicament with fellow passengers. She testified that it did
not cross her mind. The complainant also did not
tell her
brother that she was raped; only that she was kidnapped. Further the
complainant did not tell the appellant's mother that
she was being
held by her son against her will. It must be borne in mind that the
complainant was 17 years of age going on 18.
This was her first
sexual encounter. She was afraid. Her account of the events and her
responses to the sexual assault might have
been related better by
someone older and wiser to the world. She was not. This on its own
does not make her evidence substantially
tainted.
[22]
The J88 was also a source of complaint by the appellant. He
submitted that the court rejected the evidence of the appellant
solely
because of the J88 which set out the injuries sustained by the
complainant.
Looking
at the evidence of the complainant it is the finding of this court
that there is indeed some corroboration for how she was
being raped
and being against her consent and that is being corroborated by the
JBB medical report.
The
JBB without reemphasizing its content is very clear that·the
complainant suffered serious injuries and that leads me
to the
following conclusion. The version of the accused is accordingly
rejected.
[23]
The report of the J88 which recorded the injuries sustained by
the complainant corroborates the complainant's version that she was
sexually assaulted. The appellant denied that the complainant
sustained any injuries on her back, neck and breasts, whilst she
was
in his company. He specifically testified that the complainant did
not have these injuries when she left his home. If the appellant's
version is to be believed this means that the complainant endure
another sexual assault between 22h00 and the next morning when
she
reported the incident to T. The injuries on the complainant's back
and buttocks are consistent with lying on the ground in
the veld. The
injuries on her back, buttocks, neck and the bite marks on her
breasts corroborates her evidence and are not consistent
with the
appellant's version of events.
[24]
The J88 record, as already alluded to above, corroborates the
complainant's evidence. The complainant testified that the sexual
assault was for her, the very first sexual encounter. The J88 record
was consistent with intercourse for the first time. I am aware
of the
Supreme Court of Appeal's dim view of uncorroborated J88 reports.
In
S
v MM
2012 (2) SACR 18
(SCA)
the Court found
that
"As appears to be an increasing feature of cases such as
these, the doctor's report was simply hand in by consent
and the doctor was not called to give evidence. That practice is,
generally speaking, to be deprecated. It means that there is
no
opportunity for the doctor to explain the frequently subtle
complexities and nuance, of the report, to clarify points of
uncertainty
and to amplify upon its implications and the reasons for
any opinion
·
expressed in the report. That may make
the difference between a conviction and an acquittal, or perhaps a
conviction on a lesser
charge. Depending on the area where there is a
lack of clarity, the lack of clarification may either benefit or
prejudice an accused.
Neither result is desirable. Magistrates and
judges who are confronted with these reports, without explanation, do
not have the
requisite medical knowledge to flesh out their full
implications. Unless therefore there can be no confusion, for
example, in a
case where the fact of rape is admitted and the only
issue one of identification of the perpetrator,it will
generally
be desirable for the doctor to give evidence in Support of
his or her report.
"
Every case should be
dealt with on its own merits.
[25]
The complainant is also criticized because she did not make any
attempt to escape from the appellant when she had ample opportunity
to do so. Her response was that she was scared of the appellant. He
had threatened to tie her down on the railway line and also
kill her
if she did not co-operate. There is no reason to disbelieve her in
this regard. It was only when she was certain she could
get away from
him without being detected that she did.
Do
some or all of the above indicate that the complainant was a willing
and consenting participant?
[26]
If the complainant was a willing and consenting participant
then why did she report the kidnapping and the rape to T. It is
understandable
why she did not report the rape to her brother. Regard
must be had to the fact that the complainant was only 17 years at the
time.
She was new to the city. She had just arrived from the rural
areas. She was scared to tell her brother the fate that befell her.
There is no reason she would make it up. She was however more
comfortable reporting her ordeal to another female, T. If she had
not
been raped, but had voluntarily had sex with the appellant, she could
simply have kept quiet and nobody would have known, especially
her
brother.
[27]
The appellant's sole defence is that the sex between him and
the complainant was consensual. Additionally their encounter was at
his home and not in the bush as claimed by the complainant. The
appellant has o explanation about the bruises sustained by the
complainant. He alludes to the fact that the complainant sustained
the injuries after she had left his home that night. The evidence
of
the appellant's mother does not take the matter further. At most her
evidence is an account of what she witnessed between her
son and the
complainant.
[28]
The court a
quo
was faced with two mutually destructive
versions. Where there are two conflicting versions, the court held in
S
v Dangazela 2010 JOR
0577
(SCA)
at
paragraph 12
that
"in such
circumstances, apart from considering the credibility and reliability
of the witnesses, it
was
justified in assessing the
probabilities of the two versions and to reach
a
finding
as
to which one is true and which one is not. It could of course only
dismiss the defence version
as
false in the event that it
reached that conclusion beyond reasonable doubt. And it had to d
o
so
after giving consideration to the evidence before it as a
whole."
In
S
v Schackell
2001 (4) SA 1
(S A)
the Court stated that
"It is a trite principle that in
criminal proceedings the prosecution must prove its case beyond
reasonable doubt and that
a mere preponderance of probabilities is
not enough. Equally trite is the observation that, in view of this
standard of proof in
a criminal case, a court does not have to be
convinced that every detail of an accused's version is true. If the
accused's version
is reasonably possibly true in substance, the court
must decide the matter on the acceptance of that version. Of course
it is permissible
to test he accused's version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable, it
can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly
be true."
[29]
The court a
quo
found was alive to the precautionary
rules to be applied as far a single witness is concerned. The court
found that he complainant
testified in a clear and eloquent manner
and that she gave a clear account of the rapes. The court held that
she was a truthful
and credible witness. The court a
quo
observed
that if one looks at the size of the complainant against the size of
the appellant that the complainant was in a "very
vulnerable
position' and that she "felt scared and threatened". The
court correct found corroboration for the complainant's
evidence in
the undisputed J88 report. In my view the findings of the court a
quo
cannot be faulted. The findings were based on the evidence before
it, especially the record in the J88.
[30]
In my view the court a
quo
was correct in rej cting the
appellant's version. The appellant's version is far-fetched in the
extreme. His evidence is found wanting
in several respects.
Sentence
[31]
That rape is a serious crime cannot be overemphasized. It does not
seem that those who rape others are alive to the seriousness
of this
very invasive of infractions.
In S
v Chapman
[1997] ZASCA 45
;
1997 (3) SA
341
(SCA)
the co Jrt held as follows regarding the
seriousness of rape
"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. The rights to dignity, to
privacy
and the integrity of every person are basic to the ethos of
the Constitution and to any defensible civilization. Women in this
country are entitled to the 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 tranquility of their homes without fear, the
apprehension and insecurity which constantly diminishes the
quality
and enjoyment of their lives. The Courts are under
a
duty to
send
a
clear
message
to the accused, other potential
rapists and the community: we are determined to protect equality,
dignity and the freedom of all
women, and we shall
show
no
mercy to those who seek to invade those rights"
[32]
The appellant submitted that the sentence of life imposed on
him is disturbingly inappropriate to the crime he committed. It was
submitted that the court a
quo
did not properly inform him
that the minimum sentence of life was applicable to him. Further that
his personal circumstances were
not seriously taken into account.
Importantly the court failed, so it was submitted, to apply the
determinative test as set out
in
S v Malgas·2013 (2)
SACR (SCA)
where it was held that
"A Court exercising
appellate jurisdiction can at, in the absence of material
misdirection by the trial court, approach the
question of sentence
as
if it were the trial court and then substitute the sentence
arrived at by it simply because it prefers it. To do
so
would
be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its exercise
o
that discretion an appellate Court
is
entitled to consider
the question of sentence afresh. In doing
so,
it
assesses
sentence
as
if it were
a
court of first instance and
the sentence imposed by the trial court
has
no relevance.
As
tis said, an appellate Court
is
at large.
This however
does not mean that an appeal court ·s precluded from
interfering with sentences imposed by a trial court in
the absence of
a material misdirection. Indeed the appeal court may do so when the
disparity between the sentence of the trial
court and the sentence
which the appeal court would be impose had it been the trial court is
so marked that it can properly be
described as hocking, startling or
disturbingly inappropriate.
[33]
In Director of Public Prosecutions, Western Cape v Prins
2012 (2) SACR 183
(SCA) at p 186
paragraph 1, Wallis JA writing
for the majority held that
"No judicial officer in
South Africa today
is
unaware of the extent of sexual violence
in thi
s
country and the way in which it deprives
so
many
women and children of their right to dignity and bodily integrity
and, in the
case
of children, the right to be children, to
grow up in innocence and,
as
they grow older, to awake
to
the maturity and joy of full humanity. The rights to dignity and
bodily integrity are fundamental to our humanity and should
be
respected for that reason alone.
Women are not free to walk the
streets of their country without fear of assault by predators lurking
in the shadows. It is not safe
for them to walk alone even during the
day. It surely is a chilling and sobering thought that women walk in
fear of being violated
anytime they take a walk to the nearby corner
shop.
[34]
In
S
v
C
1996 (2) SACR 182
(C)
the Court heId that
"A rapist
does
not
murder his victim
-
he murders her self-respect and destroys her
feeling of physical
an
d
mental integrity and security.
His
monstrous
deed often haunts
his
victim
and subjects her to mental torment for the
rest
of her life
a
fate
often
worse
than
loss
of life."
The
complainant shall forever carry with her the knowledge arising from
the event of that fateful day. It is not unreasonable to
pine that
each and every time the complainant is intimate with a man, the tape
of her rape will play in her subconscious. As stated
in S
v
C
supra,
her
fate is worse than death itself.
[35]
The Court
in S
v Ncheche
[2005] ZAGPHC 21
;
2005 (2) SACR 386
(W)
held that "a woman's
body
is
sacrosanct and anyone who
violates it
does so
at his peril and our legislature, and the
community at large, correctly expects our courts to punish rapists
very severely."
Is the life sentence disproportionate to the
four rapes, a kidnap and theft? Are there substantial and compelling
circumstances
that warrant a deviation from or an interference with
the sentence imposed by the trial court?
[36]
The courts have on numerous occasions held that the imposition
of a sentence on accused persons is always in the discretion of the
trial court. A court of appeal may only interfere if it finds that
the sentence has not been judicially and properly exercised.
See
S
v Rabie 1975 (4)
857
(A);
S
v Salzwedel and Others
1999 (2)
SACR 586
(SCA).
In
S
v Rabie, supra
the
Court held that
"In every appeal against
sentence, whether imposed by a magistrate or a Judge, the Court
hearing the appeal should (a) be guided
by the principle that
punishment is pre-eminently a matter for the discretion of the trial
Court, and (b) should be careful not
to erode such discretion: hence
the further principle that the sentence should only be altered if the
discretion has not been judicially
and properly exercised". The
test under (b) is whether the sentence is vitiated by irregularity or
misdirection or is disturbingly
inappropriate."
[37]
Can the appellant be rehabilitated? Of concern to me is the
fact that the appellant has not shown any remorse. Contrition can
only
come from an appreciation and acknowledgment of the extent of
one's error. S
v Nkunkuma and Others
2014 (2) SACR 168
(SCA) at
p175 paragraph 14 referring in part to in
S
V Matyityi
2011
(1) SACR 40
(SCA).
In S
v Dyantyi 2011 (1) SACR ·40
(ECG) paragraph 25
the Court found that an accused will rarely be
able to show that he is a suitable candidate for rehabilitation
without proving to
the Court that he is genuinely remorseful.
[38]
The appellant's defence was that the sexual intercourse with
the complainant was consensual in the midst of overwhelming evidence
against him. Although the appellant apologised to the complainant
after the rape in the bush, he took her home
with
him and raped her again. This is not conduct consistent with a
remorseful person.
[39]
Did the court a
quo
misdirect itself when it imposed
the life sentence on the appellant? Trollip JA in S
v Pi/lay 1977
(4)
S
531 (A) at 535E-F
described
misdirection as
entailing
".
an error committed by the
Court
in
determining
or
applying the facts for assessing the
appropriate sentence.
As
the essential inquiry in
ari
appeal against sentence, however is not whether the sentence
was
right
or
wrong, but whether the Court in imposing it
exercised its discretion properly and judicially,
a
mere
misdirection is not by itself sufficient to entitle the Appeal Court
to interfere with the sentence, it must be of such a nature,
degree,
or
seriousness that it shows, directly
or
inferentially,
that the Court did not exercise its discretion at all
or
exercised it improperly
or
unreasonably. Such misdirection
is usually and conveniently termed one that vitiates the Court's
decision on sentence.
I see no misdirection on the part of the
trial court in the imposition of the life sentence. It is similarly
my view as the court
held in S
v Khumalo
1973 (3)
Sa
697
(A) at 6 BA,
that
"Punishment must fit the criminal
as
well
as
the crime, be fair to society, and be blended with
a measure of mercy according to the circumstances."
[40]
It is the function of the courts to protect society,
especially women and children. The question of retribution,
deterrence, and
the prevention of crime as well as the protection of
the community at large cannot be overlooked in passing an appropriate
sentence.
I am satisfied that the trial court had regard to all of
the relevant factors when it passed the sentence. I take my cue from
S
v Motloung
2016 (2) SACR 243
(SCA)
where the
Court held that
"it could only do so when there was
a
material misdirection by the sentencing court. But it may
interfere with the exercise by the sentencing court of its
discretion,
even in the absence of
a
material misdirection,
when the disparity between the sentence imposed by the trial court
and that which the appellate court would
have imposed, had it been
the trial court, was so marked that it could properly be described as
shocking, startling oi disturbingly
inappropriate."
[41]
I find the sentence imposed by the trial Cc urt not shocking,
not startling or disturbingly inappropriate. On the contrary the sen
ence imposed fits the crime and will send a clear message to all
would be rapists.
[42]
In the result the following order is made:
1.
The appeal
against conviction and sentence is dismissed.
_______________
TS MADIMA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
concur, and it is so ordered
______________
L WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of the Appellant: H Steynber
Instructed
by: Legal Aid South Africa
082
734 66 1
On
behalf of the Respondent: Adv R Molokoane
Instructed
by: Office of the DPP
Pretoria
084
874
2570
Dates
of Hearing: 9 February 2017
Date
of Judgment: 9 March 2017