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[2017] ZANCHC 28
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Van Nel and Another v S (CA&R134/16) [2017] ZANCHC 28 (31 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
I
N
THE H
I
GH COURT OF SOUTH AFRICA
(NORTHERN
CAPE
H
I
GHT
COURT
KIMBERLEY)
Case
number:
CA&R
134/
16
Date
heard:
27 /03/
2017
Date
delivered :
3
1
/03/
20
1
7
In
the matter of :
PETRUS
VAN
NEL
1
st
APPELLANT
VINCENT
LONG
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Williams J et
Snyders AJ
JUDGMENT
SNYDERS,
AJ
1.
The appellants were found guilty of the following charges in the
Regional Court, Douglas on 20 October 2015 :
1.1.
Count 1: The rape of Amanda S. K. (K. ) by 1
st
and 2
nd
appellant;
1.2.
Count 2: The rape of S. E. by 1
st
and 2
nd
appellant;
1.3.
Count 3: The rape of K. by 1
st
appellant;
1.4.
Count 4: The rape of E. by 2
nd
appellant;
1.5.
Count 5 : The rape of E. by 1
st
appellant.
2.
First and 2nd appellant were given life sentences on Counts
1
and 2. First appellant was sentenced to 10 years imprisonment on both
counts 3 and 5. Second appellant was sentenced to 10 years
imprisonment on Count 4. The sentences on all the counts will run
concurrently.
3.
First appellant now appeals against his convictions and sentence and
2
nd
appellant only appeals against his sentence.
4.
Both appellants were legally represented at the trial and pleaded not
guilty. Their plea explanation was that 1
st
appellant had
consensual intercourse with K. and that 2
nd
appellant had
consensual intercourse with E..
5.
The two complainants both testified to being forcefully apprehended
by the appellants. They both testified to the rape
of each
complainant by each appellant in the veld. E. was raped twice by 1
st
appellant in the veld. Both confirm the further rape of K. by 1
st
appellant and of E. by 2
nd
appellant at I . K.'s house .I.
K. confirmed opening the door when the complainants knocked as well
as their report of the rape.
K. and I. K. testified to
E.'s distraught emotional state. This was also highlighted during the
testimony of Dr Morolong
who examined the complainants and completed
the J88 medical examination forms.
6.
The forensic analysis done on swabs taken from K., positively
identified 1
st
appellant's DNA. She had two tears on her
genital areas, which were both ½ cm long and 1mm deep. She had
an abrasion on
her right knee and a laceration on her left hand. All
this objective evidence corroborated the testimony of the
complainants.
7.
The complainants' versions were further corroborated by Ronald
Valentine. He was walking the complainants home when the two
appellants apprehended the complainants and scared him off.
8.
The 1
st
appellant denied having raped E. by inserting his
penis into her mouth and into her vagina. He denied having raped K.
twice by
putting his penis into her vagina. He instead alleges that
intercourse with K. was consensual and that they were in a
relationship
and agreed to meet at the tavern on the evening in
question. K. and E. denied knowing 1
st
appellant prior to
the incident. As correctly pointed out by the Magistrate in her
judgment, the complainants' methods of describing
the appellants (the
long one; the one who had K. first and so forth) do not denote prior
knowledge of the identities of the appellants.
9.
The 1
st
and 2
nd
appellant contradicted each
other in their testimony. They could not seem to agree on where the
complainants were standing at Chico's
house, whether 1
st
appellant and K. were present when 2
nd
appellant brought
E. home, where the complainants were during the housebreaking and
where they went directly after the housebreaking.
These are but a few
contradictions that show that the appellants' versions are not
reasonably possibly true. The Magistrate further
did not misdirect
herself in not accepting the evidence of 1
st
appellant's
witnesses, as the objective facts did not support their testimony.
10.
The complainants' behaviour during the entire episode seemed at odds
with normal behaviour. K. does not call for help
on her cellphone,
the complainants do not seek assistance from the the van that stops
or from the group of men they encounter and
they do not flee when the
appellants are urinating. Their behaviour must however be seen in
light of the trauma they had experienced.
They were 2 slightly built
girls (as seen on the J88) who had just been raped twice and were
being taken on a nightmare trip through
the neighbourhood by two
armed appellants. The explanation simply boils down to fear for their
lives.
11.
n
S
v
Chabalala
[1]
,
the
court stated
the
following:
"The
trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen 2001 (2)
SAR 97 (SCA). The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those
which are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities
on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable
doubt about the
accused 's guilt ".
12.
Having viewed the evidence holistically, I find that Mr Van
Tonder who appeared for the appellants correctly conceded
that the
Magistrate did not misdirect herself in convicting the 1
st
appellant and the appeal on his convictions stands to fail.
13.
With
regard
to the sentences
imposed,
it
is
trite
that the
prescribed
minimum
sentences
are
not
to
be
departed
from
lightly
and
for
flimsy
reasons.
[2]
14.
This
matter seems to
be
what the learned judge
had
in mind when
formulating
the
judgment
in
S v
MM
[3]
.
The
court
held
that
although contentious, there are categories of severity of rape
and
the
life
sentence
ordained by
the
Legislature should be
reserved
for
cases
devoid
of
substantial
factors
compelling
the
conclusion
that
such
a
sentence
is
inappropriate
and
unjust.
15.
K. was raped twice by 1
st
appellant and once by 2nd
appellant. She was further traumatised by 1
st
appellant by
having to kiss him and entertain conversations with him to avoid
further injury to herself and E.. E. was raped twice
by both
appellants. Both complainants attempted to commit suicide. 1
st
appellant had a previous conviction of rape and 2
nd
appellant had a previous conviction of housebreaking and assault.
16.
Neither 1
st
nor 2
nd
appellant have any
substantial and compelling circumstances present in their personal
circumstances. The appellants had both waived
their right to apply
for bail and though both appellants spent almost four years in
custody waiting on finalisation of the matter,
this factor on its own
does not constitute a substantial and compelling circumstance. The
delay in the proceedings was also partly
caused by the withdrawal of
the appellants' attorney mid-trial, necessitating the typing of the
record and the appointment of new
legal representation.
17.
Based on the above, I find that the magistrate did not misdirect
herself in the sentences she imposed on the appellants.
WH
EREFORE TH E FOLLOWING ORDER IS MADE:
a
) The
1
st
app
e
llant'
s
ap
peal
a
gainst
h
is
convictions
and
sentences
imp
ose
d
is
di
s
miss
e
d
.
b)
The 2
nd
appellant's appeal against his sentences imposed
is dismissed.
_____________________
J
.A SNYDERS
ACTING
JUDGE
I
concur
_____________________
C.C
WILLIAMS
JUDGE
On
behalf of Appellant:
Mr A Van Tonder (Legal Aid)
On
behalf of Respondent:
Adv J.S Mabaso (DPP)
[1]
2003(1) SACR
134
(SCA)
at
139H-l40A
[2]
See
S
v
Malgas
2001 (1
)
SA
CR
469 (SCA) at 48
1
j
[3]
2013(2) SACR
292
(SCA
) at
292
C-E