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[2017] ZANCHC 33
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Gouws v S (CA&R70/16) [2017] ZANCHC 33 (5 May 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: CA&R 70116
Matter
heard: 06-02-2017
Delivered:
05-05-2017
In
the Appeal of:
JOHNNY
GOUWS
Appellant
and
THE
STATE
Respondent
WILLIAMS
J et LEVER AJ
JUDGMENT
WILLIAMS
J:
1.
The appellant was convicted in the Regional Court held at Douglas on
a count of rape and was sentenced to life imprisonment.
He now
appeals against both the conviction and the sentence imposed.
2.
The grounds of appeal relating
to the conviction can be
summarised as follows:
2.1
The court
a quo
erred in not treating the complainant's
evidence, as a youthful, single witness with the necessary caution;
2.2
The court
a quo
erred in finding that the state witnesses T.
Baartman and P. Tallies were credible and reliable witnesses;
2.3
The complainant's version of events is not corroborated by the
medical
evidence; and
2.4
The court
a quo
erred by rejecting the appellant's version as
not reasonably possible true.
3.
The complainant who was 12 years old at the time of the incident,
testified that she was in the company of her two friends
T. and
P. on the night in issue. They had been drinking beer on the soccer
field of the local school and were just about to buy
more beer from a
nearby tavern when the appellant, who is known to all three of them,
approached the group, grabbed the complainant
and dragged her off
into a copse of trees. The appellant then removed her pants and
panties and vaginally raped her. The appellant
thereafter made the
complainant sit with him on a rock until family members of the
complainant, who had been alerted by her two
friends, approached the
scene and the appellant ran away.
4.
The complainant testified that she was ashamed to tell her
grandmother that she had been raped but when one K. asked her she
replied in the affirmative. A report was made to the police that same
night and the next morning the complainant was examined by
a doctor.
5.
T. testified that she, the complainant and P. were sitting on the
soccer field when the appellant approached and grabbed the
complainant. P. tried to intervene but the appellant kicked him in
the stomach. T. ran away while the appellant pelted her with
stones.
She alerted the complainant's family and on their return to the field
they encountered P., who then joined the group in
looking for the
complainant. They saw the appellant and complainant sitting on a
rock. The appellant ran away when he saw them.
When asked what the
appellant had done to her the complainant replied that the appellant
had raped her.
6.
P.'s evidence was that he and the two girls were on their way to the
soccer field with two beers which they had bought at the
tavern when
the appellant approached them. He grabbed the complainant and when P.
intervened he was kicked in the stomach. T. ran
off. P. later met up
with T. and the people she had called but did not go back with
them to the complainant.
7.
The contradictions in the evidence of the complainant, T. and
P. relate mainly
to
where the appellant had
approached them. This contradiction is in my view
not material
in light of the fact that the appellant placed himself on
the scene. The appellant, who was
legally represented,
did not give a plea explanation but during cross-examination
of the three above-mentioned
witnesses it was put to them that
the appellant had been out looking for P. who had earlier taken a box
of wine belonging to the
appellant. The appellant had then
found the three witnesses on the soccer field with the box of
wine. T. and P. ran
away with the wine while the complainant walked
across the road to a cafe. The appellant then left to spend the rest
of the night
with his girlfriend Hanna Witbooi.
8.
The complainant, T. and P. denied the version of the appellant as put
to them. Hanna Witbooi who was called by the state as a
witness and
later recalled by the defence, also denied that the appellant
spent the night with her and that she was his girlfriend.
9.
The state witnesses R. P, S. J. (the complainant's grandmother) and
K. S. (K.) confirmed that they were awakened that particular
night by
T. who informed them that the appellant had dragged the complainant
away. S. also testified that she saw the appellant
sitting with the
complainant on the rock before he ran away. Jansen and S. however
both testified that the complainant had told
Jansen that she had been
raped by the appellant, contrary to the
complainant's version that
she had told S.. Not
much turns on this however since it appears that S. and Jansen
were together when the complainant made
the report.
10.
The complainant, as mentioned, was only seen by a medical
practitioner, Dr Morolong the morning after the incident. Dr Morolong
who completed a J88 medical form also testified. His evidence was
that he could find no injuries on the complainant. According
to the
doctor this factor could point to either consensual intercourse or
the fact that the complainant had been sexually
active prior to
the incident.
11.
The doctor collected samples from the complainant - her
panties, an intra-vaginal swab, and swabs of the vulva and vestibule
- which together with a reference sample of the appellant's blood,
were sent for DNA testing. The DNA result of the samples collected
from the complainant matched the DNA result of the appellant's blood
sample.
12.
In these circumstances, the appellant's version that he had no sexual
or even physical contact with the complainant and that
he was falsely
implicated in the matter for reasons not very clear, was in my view
correctly rejected by the court
a quo.
Mr Fourie who
appeared for the appellant wisely conceded during argument that the
conviction was unassailable.
13.
As far as the sentence is concerned, the appellant, who was 37 years
at the time of the incident, has numerous precious convictions.
Most
telling of these is a conviction of rape during 2001 and for which he
was sentenced to 10 years imprisonment. The appellant
could clearly
not be rehabilitated since the offence
in casu
was committed
8% years later, after an apparent early release.
14.
The present conviction - that of rape of a person under the age of 16
years - attracts a sentence of life imprisonment in terms
of the
minimum sentence provisions, unless
substantial and compelling circumstances exist
which
justify the imposition of a lesser sentence. The court a
quo
considered all the relevant factors and found no substantial and
compelling circumstances to exist. Here too the court a
quo
cannot
be faulted. The appellant shows no remorse for his actions and is
clearly a danger to society.
In
the circumstances the following order is made.
a)
The appeal against both conviction and sentence is
dismissed.
____________________
CC
WILLIAMS
JUDGE
I
concur
____________________
L
LEVER
ACTING
JUDGE
For
Appellant:
Mr PJ Fourie
Kimberley Justice Centre
For
Respondent: Adv KF llanga
Office of the OPP