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[2016] ZALMPPHC 14
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Mametja v S (A39/2016) [2016] ZALMPPHC 14 (17 November 2016)
IN THE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: A39/2016
17/11/2016
In
the matter between:
OUPA
JOSIAS
MAMETJA
APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
CHIDI
AJ:
INTRODUCTION
[1]
On 28
January 2016, Oupa Josias Mametja, the Appellant, then a 28 year old
male, was convicted and sentenced to 10 years imprisonment
by the
Mokerong Regional Court, Mrs A Swanepoel, (“the trial court”)
for the rape of one S.M. a 22 year old woman (“the
complainant”).
[2]
It
was alleged that the Appellant contravened "the provisions of
Section 3 read with Sections 1, 56, 57, 58, 59, 60 and 61
of the
Criminal Law (Sexual Offences and Related Matters Act 32 of 2007),
(Sexual Offences Act). Further read with the provisions
of
Sections
94
,
256
and
261
of the
Criminal Procedure Act 51 of 1977
(“CPA”).
Further read with
Section 51
(2) (b) and Schedule 2 of the Criminal
Law Amendment Act 105 of 1997 (“the Minimum Sentence Act”).
Further read with
Section 120 of the Children’s Act 38 of
2005. In that on or about 22 March 2015 and at or near
Ga-Madiba in the Regional
Division of Limpopo the said Appellant did
unlawfully and intentionally commit an act of sexual penetration with
the complainant
to wit, “S.M.,a 22 year old female person by
inserting his penis into her vagina” (
sic
)
without the consent of the said complainant.
[3]
Section
51(2) (b) and Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, is applicable in that “the rape was committed in
circumstances other than those referred to in
Part I
” (
sic
).
[4]
The
Appellant applied for leave to appeal which was duly granted.
[5]
It
appears from the record that the Appellant was legally represented
throughout the trial. It is also evident that he had a fair
trial in
that he was informed of the consequences of the prescribed minimum
sentencing regime at the time when the charges were
put to him.
THE
RELEVANT FACTS
[6]
The
Appellant was convicted on the following factual matrix:
6.1.
The
complainant performed as a singer during the night at the Junction
Joint Tavern. After the performance she spoilt herself with
liquor,
as a result of which she became moderately drunk. She left the
Junction Joint Tavern at about 02:30 to join her friend,
B.K. at
Mosome Tavern. As it was late at night both of them could not go to
their parental homesteads to sleep because their parents
are strict
and would not open for them. B.K. contacted her boyfriend, the
Appellant, requesting a place to sleep. Appellant accepted
B.K.’s
request that the two may sleep at his home. At the homestead of the
Appellant the complainant and B.K., sat down and
talked before
sleeping. The Appellant suggested that the three of them sleep on the
same bed but B.K. objected to that. Appellant
then offered to sleep
on the floor whereas the complainant and B.K. would sleep on the bed
but that was also not acceptable to
the complainant. The complainant
then slept on the floor fully dressed while the Appellant and B.K.
slept on the bed together.
6.2.
While
the complainant was asleep on the floor, the Appellant had sexual
intercourse with her without a condom. As she was tired
and drunk,
she did not feel the Appellant when he undressed and penetrated her.
She woke up when she felt someone on top of her
breathing fast. She
realized that her pair of trousers was down on her legs and her bra
was loose. The Appellant was also not dressed.
6.3.
She
felt that there was a discharge coming out of her. It appeared that
the Appellant has ejaculated inside her. She did not give
consent to
the Appellant to have sexual intercourse with her.
6.4.
She
asked the Appellant as to what he was doing; she immediately pulled
B.K. by the leg to inform her that the Appellant had just
raped her.
She screamed in order to alert the Appellant’s family members.
Appellant’s mother came to the room on hearing
the noise. After
hearing the report of the complainant, Appellant’s mother
chased the complainant and her friend, B.K., away
from her homestead.
6.5.
Complainant
immediately from the Appellant’s homestead went to the police
station to report and lay charges of rape. Appellant
followed her to
the police station but returned when the complainant pelted him with
stones. At the police station she was taken
to Mokopane Hospital for
medical attention.
6.6.
The
medical practitioner examined her and completed the J88 report
(Medical Form) which was accepted as an Exhibit. The medical
practitioner noted on the medical Form that there are no injuries to
exclude anal penetration.
6.7.
On
the rape charge, the Appellant admitted that he had sexual
intercourse with the complainant the night of the incident. His
defence
was that the sexual intercourse was consensual.
6.8.
His
version was that when he was in bed with his girlfriend, B.K., the
complainant uttered the words “
the
two of you should not do anything silly (sexual intercourse). If you
do such I will jump onto that bed and you will do the very
same thing
to me as you will be doing to B.K.
”
(
sic
).
To him it was clear that she was interested in what the Appellant and
his girlfriend were doing in bed. That the complainant
while asleep
pulled the Appellant by the leg and invited him to the floor.
Appellant woke up thinking the complainant wanted a
“chamber
pot” to urinate.
6.9.
However,
the complainant started kissing her and fondled his testicles. He
kissed her back and after he got an erection they had
sexual
intercourse. He was surprised that after the sexual intercourse the
complainant woke up B.K. to inform her about what has
just happened.
[7]
B.K.
also gave evidence and confirmed that while she was fast asleep in
bed, the complainant woke her up to report that the Appellant
has
just raped her. She could not believe the story of the complainant
for she knew that the Appellant would not do such a thing
in her
presence. She also confirmed that she went with the complainant to
the police station.
[8]
Appellant
denied the allegations with regard to the rape.
[9]
The
Appellant’s version was rejected by the trial court as not
being reasonably and probably true and he was accordingly convicted
as charged.
THE
ISSUES FOR DETERMINATION
[10]
This
court is called upon to determine the following issues:
10.1.
Whether
the sexual intercourse between the complainant and the Appellant was
consensual;
10.2.
Whether
the complainant was in a state that she could not give consent to
sexual intercourse;
10.3.
Whether
the complainant when she said “
the
two of you should not do anything silly (sexual intercourse). If you
do such I will jump onto that bed and you will do the very
same thing
to me as you will be doing to B.K.
”,
that was consent to sexual intercourse;
10.4.
Whether
the version of the Appellant is reasonably and probably true.
10.5.
Whether
the appeal court should interfere with the sentence imposed on the
Appellant.
LEGAL
PRINCIPLES
11.
The
offence of rape is defined in Section 3 of the Sexual Offences Act
as:
“
Any
person (“A”) who unlawfully and intentionally commits an
act of sexual penetration with a complainant (“B”),
without the consent of B, is guilty of the offence of rape.”
12.
The
above definition shows that the sexual act of penetration must have
happened with the complainant’s consent. Section 1(3)
(
d
)
of the Sexual Offences Act deals with the situation where as in this
case there was inability to appreciate the nature of the
sexual act.
Snyman
[1]
states that:
“
There
is no valid consent if X performs an act of sexual penetration in
respect of Y if Y is asleep, unless, of course, Y has previously,
whilst awake, given consent. The same applies to a situation where Y
is unconscious. Paragraph (iii) of section (3) (d) provides
further
that consent is not valid if Y is “in an altered state of
consciousness, including under the influence of any medicine,
drug,
alcohol or other substance, to the extent that Y‘s
consciousness or judgment is adversely affected.”
13.
It is
an undisputed fact that the complainant was tired and moderately
drunk at the time she fell asleep in the Appellant’s
room. Her
judgment was obviously impaired by the tiredness coupled with the
liquor she drank.
14.
At
the time the Appellant had sexual intercourse with the complainant
she was asleep. Though the Appellant is averse that the complainant
consented to the sexual intercourse by inviting him to the floor to
have sexual intercourse with him. The contention of the Appellant
is
startling in that when the complainant became aware of what was
happening to her she asked the Appellant is to what he was doing.
A
fact which was never controverted.
15.
The
complainant is a single witness on the issue of sexual intercourse.
Therefore her evidence must be approached with caution.
However, in
S
v Artman And Another
[2]
it was held that the exercise of caution must not be allowed to
displace the exercise of common sense.
16.
Common
sense dictates that the situation in which the complainant found
herself in could not have made her to immediately after
the sexual
intercourse with the Appellant to divulge that information to her
friend, B.K.
17.
The
Appellant depicts the complainant as a person of loose morals; in
that he states that she invited him to the floor, fondled
his
testicles and kissed him first. This is improbable taking in to
consideration the circumstances of this case.
18.
Schwikkard
[3]
states
that:
“
Probabilities
must also be considered in the light of proved facts. It is, for
example, possible to accept direct credible evidence
even though this
evidence conflicts probabilities arising from human experience or
expert opinion”.
19.
In
S
v Monageng
[4]
the court stated that it is proper to test the evidence against
inherent probabilities as they play a critical role in the enquiry.
20.
The
evidence of the complainant that the Appellant had sexual intercourse
with her is proven. Nonetheless, immediately after the
sexual
intercourse she wakes up B.K. not to say what you (B.K.) did with the
Appellant I also just did it with your boyfriend.
But she says “
you
cannot believe it” (sic)
;
the Appellant has just raped me.
21.
When
the complainant realized that B.K. did not believe her, she took
another step by making noise to alert the Appellant’s
family
members. She acted like any normal woman who finds herself in a
helpless situation by screaming.
22.
B.K.,
when told that her boyfriend had just raped the complainant she
states that it would be impossible for the Appellant to have
sex with
another woman in her presence. But the Appellant proved her wrong as
his defence is that there was consensual intercourse.
23.
In
S
v Gentle
[5]
the court found that:
“
It
must be emphasized immediately that by corroboration is meant other
evidence which supports the evidence of the complainant and
which
renders the evidence of the accused less probable, on the issue in
dispute.”
24.
It is
my considered view that the version of the complainant is
corroborated by B.K; in all material respect. Consequently there
was
no consensual sexual intercourse between the Appellant and the
complainant. The trial court correctly accepted the version
of the
complainant as reliable.
25.
The
version of the Appellant is on the other hand that when the
complainant stated that: if “
the
two of you should not do anything silly (sexual intercourse). If you
do such I will jump onto that bed and you will do the very
same thing
to me as you will be doing to B.K” (sic),
she was interested in the sexual intercourse between the Appellant
and B.K. hence she invited the Appellant to the floor.
26.
Conversely,
the record does not show that the complainant climbed the bed to have
sexual intercourse with the Appellant. On the
contrary, the proved
facts are that she refused to sleep with the Appellant and B.K. on
the same bed. Likewise, B.K. did not accept
the proposal that she
shares the bed with her friend and the Appellant. As the court found
in
S
v Chabalala
[6]
that:
“
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
.”
27.
The
complainant only woke up to see the Appellant on top of her having
sexual intercourse with her. She immediately asked the Appellant
as
to what he was doing. The Appellant left her and dressed himself; but
he does not say it is you who invited me I am finishing
what you
started. The probability in this case weighs in favour of the State.
28.
I
find that the Appellant’s version cannot be reasonably and
probably true. He was correctly convicted as charged.
THE
SENTENCE IMPOSED AND FACTORS THAT WERE TAKEN INTO ACCOUNT
29.
The
Appellant is a first time offender as the State did not prove any
previous convictions.
30.
The
personal circumstances that were placed before the trial court were
that the Appellant was:
30.1.
30
years old;
30.2.
Not
married;
30.3.
Has
one child who is 7 years old;
30.4.
The
child is residing with her grandmother;
30.5.
He
is employed at Livilla Construction earning R200,00 per fortnight.
30.6.
He is
staying with his parents who are 73 and 71 years old respectively.
His parents are not in good health.
30.7.
He
has a brother who is 25 years old.
30.8.
He
has completed Grade 12.
30.9.
It
was stated by the Appellant’s attorney that the complainant
rendered herself vulnerable to the convicted person by going
to the
Appellant’s house.
31.
The
State read into the record the report on victim impact statement
relating to the complainant which in part stated that:
31.1.
She
was deeply hurt as she was raped before when she was 13 years old.
She was traumatized as a result of which she no longer has
trust in
men.
31.2.
She
is not free to have sexual intercourse with her partner due to the
prior incident of rape.
31.3.
She
was once suicidal because of that rape.
31.4.
The
person who raped her is the boyfriend of the complainant’s
friend.
31.5.
She
finds it difficult to forget the prior rape incident.
32.The
provisions of Section 51 (2) (b) of the Minimum Sentence Act find
application unless there are substantial and compelling
circumstances
to deviate from the prescribed minimum sentence as well as the
following factors:
32.1.
The motive to commit the offence.
32.2.
Prospects of reformation and correction.
32.3.
Whether the Appellant was remorseful or not.
33.The
trial court considered the following as aggravating factors:
a.
Rape
is a serious offence;
b.
The
right to dignity;
c.
The
fact that the Appellant did not use condoms at the time of the
commission of the offence;
d.
The
fact that there was no physical injury does not count in favour of
the Appellant;
e.
This
offence brought back her unpleasant memories of the previous incident
of rape;
f.
There
are no substantial and compelling circumstances to deviate from the
prescribed minimum sentence.
34.As
was said by Scott JA (as he then was) in
S
v Kgosimore
[7]
held that:
“
It
is trite law that sentence is a matter for the discretion of the
court burdened with the task of imposing the sentence. Various
tests
have been formulated as to when a Court of appeal may interfere.
These include whether the reasoning of the trial court is
vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate or to induce a sense of shock
or whether
there is a striking disparity between the sentence imposed and the
sentence the Court of appeal would have imposed.
All these
formulations, however, are aimed at determining the same thing; viz
whether there was a proper and reasonable exercise
of the discretion
bestowed upon the court imposing sentence.”
35.The
Appellant’s legal representative did not make any submissions
with regard to what constitute substantial and compelling
circumstances during mitigation of sentence; neither is there any
such submission in the heads of arguments. In contrast the State
argues that the court this compelled to impose the prescribed
sentence. The record does not even reflect that there are substantial
and compelling circumstances in this case.
36.
In
S
v Roslee
[8]
the court stated that:
“
Although
there is no onus on an accused to prove the presence of substantial
and compelling circumstances, it must be so that an
accused who
intends to persuade a court to impose a sentence less than that
prescribed should pertinently raise such circumstances
for
consideration. In a given case it may not be enough for an accused to
argue that such circumstances should be inferred from
or found in the
evidence adduced by the State
.”
37.
Parenthetically, the Appellant’s legal representative claimed
that the complainant made herself vulnerable by sleeping
at his room.
This argument is untenable; it lacks a sense of respect to the
complainant as a woman. Even sex-workers must be treated
with dignity
and respect.
In
S v Jordan and Others (Sex Workers Education and Advocacy Task Force
And Others as Amici Curiae
)
[9]
,
in their minority judgment, O’Regan and Sachs J (a point not
contradicted in the majority judgment) observe that:
“…
Neither
are prostitutes stripped of the right to be treated with dignity by
their customers. The fact that a client pays for
sexual
services does not afford the client unlimited license to infringe the
dignity of the prostitute
.”
38.
As stated in
S
v Vilakazi
[10]
that
:
“
Rape
is a repulsive crime. It was rightly described by counsel in this
case as ‘an invasion of the most private and intimate
zone of a
woman and strikes at the core of her personhood and dignity. Yet
women in this country are still far from having that
peace of mind.
According to a study on the epidemiology of rape ‘the evidence
points to the conclusion that women’s
right to give or withhold
consent to sexual intercourse is one of the most commonly violated of
all human rights in South Africa.”
CONCLUSION
[49].
Having considered all the relevant circumstances of this case, it is
my considered view that this court should not interfere
with the
sentence imposed by the trial court.
ORDER
[50] Therefore I make the
following order:
“
The
appeal against both conviction and sentence is dismissed.”
M.P CHIDI
ACTING
JUDGE OF THE HIGH COURT
I
agree.
AML
PHATUDI
JUDGE
OF THE HIGH COURT
[1]
CR
Snyman “
Criminal
Law
”
6ed LexisNexis (2014) at355.
[2]
1968
(3) SA 339
(A) at 341B-C.
[3]
PJ
Schwikkard
et
al “Principles of Evidence
”
ed Juta (2015) at 569.
[4]
[2009]
1 All SA 237
(SCA) at 242 para 13.
[5]
2005
(1) SACR 420
(SCA) at 431 para 18.
[6]
2003
(1) SACR 134
(SCA) at 139 para 15.
[7]
1999
(2) SACR 238
(SCA) at 241 para 10.
[8]
[2006] ZASCA 14
;
2006
(1) SACR 537
(SCA) at 545 para 33.
[9]
[2002] ZACC 22
;
2002
(6) SA 642
(CC) at 670 para 74.
[10]
2012
(6) SA 353
(SCA) at 356-357 paras 1 - 2