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[2016] ZAFSHC 154
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Sandawane v S (A66/2016) [2016] ZAFSHC 154 (30 June 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A66/2016
In
the appeal of:
MALEFETSANE
JOSEPH
SANDAWANE
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J
et
MURRAY, AJ
HEARD
ON:
13 JUNE 2016
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
30 JUNE 2016
[1]
The Appellant was arraigned in the Regional Court at Welkom on a
charge of Rape in contravention of s 3 read with s 1, 56(1),
57, 58,
59, 60 and 91 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act, Act 32 of 1997, as well as with
s 51(1) and
Schedule 2 Part 1 of Act 105 of 1997.
[2]
On 12 November 2015 the Appellant was convicted as charged and
sentenced to life imprisonment. He now appeals against both
conviction and sentence in terms of s 309(1)(a) of the Criminal
Procedure Act, Act 51 of 1977. The main issue on appeal is whether
the Appellant did commit rape, and if so, whether it constituted
multiple incidences of rape.
[3]
S 51(1) of Act 105 of 1997 determines that a court
shall
impose
a sentence of life imprisonment on a person who is convicted of an
offence which falls under Schedule 2 Part 1 of Act 105
of 1997.
Multiple rapes of the same victim indeed fall under Part 1 of
Schedule 2 and unless substantial and compelling circumstances
justify the imposition of a lesser sentence, life imprisonment is the
ordained minimum sentence for the offence.
[4]
The Appellant had legal representation for the duration of the trial
and was duly warned of the implications of s 51(1). In
the appeal he
was represented by Ms Kruger, while Ms Lesie-Shale appeared for the
State. The State supported his conviction
and sentence.
[5]
The salient facts on the complainant's version (which the trial court
accepted as credible and reliable) are that on 19 January
2014
shortly after 3:00 in the morning at Nyakallong, Allanridge, the
Appellant accosted the complainant, 34-year old Ms N. B.,
while she
was on her way to the police station with the meat cleaver
("butcher's axe") with which she had cut her husband
during
a fight. While she walked, she was talking on her husband's
cell-phone to his gay friend who had been the direct cause of
the
fight. Her unknown assailant (the Appellant) broke the cider bottle
which he had with him and attempted to wrest the cleaver
from her
hand. There was sufficient light from an Apollo lamp and the
surrounding shops for her to see his face. While they struggled,
the
cloth in which she was wrapped, dropped, leaving her in only her
underwear. The Appellant grabbed the cleaver and told her
he was
going to rape her.
[6]
He took her into a passage between a pre-con wall and some toilets,
undressed himself, told her to lie on the ground on her
back. She was
naked, but was so terrified of what he was going to do with the meat
cleaver that she could not recall whether he
or she herself had
removed her underwear. Still holding the cleaver, the Appellant put
on a condom, inserted his penis into her
vagina and started moving up
and down on her
"for some time".
After a while he
removed the condom, telling her that he was not enjoying it, and
instructed her to kneel and open her mouth. He
then forcibly inserted
his penis into her mouth. Thereafter he instructed her to stimulate
it by hand.
[7]
She was seven months pregnant at the time and told him that she was
in pain, but that did not deter him. He simply told her
to get down
on her knees, holding the wall, and again penetrated her vagina, but
this time without the condom, and from behind.
In that position, as
she put it,
"he
raped [her] for some time".
[8]
Once they had left the passage in front of the toilets and reached a
certain pole, he again took out his penis and showed it
to her,
saying that, as she could see, he was not yet satisfied. He took her
back to the toilets, told her to open her legs, then
raped her for
the fourth time. By that time it was getting light and taxis started
to arrive at the nearby taxi rank. He then asked
where she lived and,
since she was limping, supported her as they walked to her house,
telling her to stop limping otherwise people
would notice that
something was wrong. At her house he informed her that he was going
to keep having sex with her
"until the baby
was
out".
She told him that she was just going to fetch
her children from the neighbours, but that he in the meantime should
go to bed and
relax.
[9]
As soon as she reached her in-laws' house next door, she told them
what had happened. She was crying and was still standing
at their
door when she saw Lucky and Mosile jump over the fence between the
two houses in pursuit of the Appellant. An ambulance
took her to the
police station. She told the police that she would be able to
identify the Appellant if she saw him again. When
they showed her a
photograph in an identity document, she recognised his face even
though on that photo he was still a young man
and still had his hair.
[10]
In
evaluating
the
evidence,
the
trial
court
correctly
applied
the
guidelines
set out in
S
v Civa
[1]
,
namely
that:
"evidence
must be weighed as a whole, taking account of the probabilities, the
reliability and opportunity for observation
of the respective
witnesses, the absence of interest or bias, the intrinsic merits or
demerits of the testimony itself, any
inconsistencies,
corroboration, and all other relevant factors .."
[11]
I agree with the trial court's finding that the complainant was
honest and straightforward, and gave a logical, chronological
and
consistent description of the night's events. She never wavered from
her version in cross-examination, she did not contradict
herself and
there were no inherent improbabilities in her story. Even though she
was a single witness regarding the rapes, I could
find no reason on
the evidence to doubt her version. She was indeed honest enough to
admit having cut her husband with the meat
cleaver, which incident
had led to their respective trips to the police station. As soon as
she and the Appellant reached her house,
she went to her in-laws'
house and told Mosile and Lucky about the rapes. I agree with the
trial court's finding, therefore, that
"there is no apparent
reason
why she
would fabricate
such
an elaborate sequence of events".
[12]
Corroboration for the material aspects of her evidence, furthermore,
was found in the evidence of Mosile Ratselani who confirmed
that the
Complainant, with the meat cleaver in her possession, had left her
children with them and had returned at around 5h45,
"terrified
and
crying",
to tell her that she had
been raped and that the person who had raped her was in her house.
She testified that all of them, including
the Complainant's husband,
then went to the Complainant's house, and unsuccessfully ran after
the Appellant when he fled over the
wall. · She confirmed that
the Complainant had no cell-phone and stated that she herself clearly
identified the Appellant
from about three metres away.
[13]
It is
trite, as stated in S v Francis
[2]
, that a
court of appeal's powers
to
interfere
with
the
findings
of
the
trial
court
on
credibility
are limited
and
that:
"bearing
in mind the advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional
cases that this court
will be entitled to interfere with the trial court's evaluation of
oral testimony."
[14]
I cannot fault the trial court's acceptance of the Complainant's
evidence as not only credible, but also reliable. The Complainant
testified that she could clearly see the Appellant's face in the
light of the Apollo lamp and the lights of the surrounding shops;
she
spent almost three hours in his close company; it was getting light
when they walked to her home; she also saw him in the house
and again
when he jumped over the fence. Ms Ratselani, whom the trial court
described as an impressive witness, confirmed that
it was indeed the
Appellant whom she had seen running from the Complainant's house in
the early hours of that morning. Ms Ratselani's
description of the
Complainant's appearance early on the relevant morning as
"crying
and terrified"
was also held by the trial court to be
confirmation of the suspicion of non-consensual intercourse. I see no
reason for this court
to interfere in the trial court's acceptance of
the oral evidence of the State witnesses.
[15]
The Appellant himself pleaded not guilty, simply denied the charge
against him, and refused to testify. He offered no plea
explanation
and his alleged version, which in my view was obviously made up as
the Complainant's evidence proceeded, was put to
the Complainant,
namely that the Appellant knew the Complainant well; that they lived
only 500 metres from each other; that they
had met in front of
Shoprite the previous year and had exchanged phone numbers; that the
Complainant had informed him that her
husband was cheating on her;
that on the day in question she had phoned him and asked him to come
and stay with her since she and
her husband had had a fight and he
had left the house; and that he met the Complainant on the street
while he was walking towards
her house, and they went to her house
together.
[16]
At first it was put to her that the Appellant asked her to have sex
with him, that she consented and that they had sex twice,
but only in
her house. After a consultation with the Appellant, the latter's
legal representative put to the Complainant that the
Appellant had
'
offered'
to have sex with her in order to comfort her and
that she had agreed. He also put to her that
"when they met
on the street that
evening",
she had
told the Appellant that she had financial problems and asked him for
an R800 loan. He then gave her R200 from the R3 000
in stokvel money
that he had with him. The Complainant denied all of these
allegations. The State's version, in the light
of the
Appellant's refusal to testify, remained uncontroverted.
[17]
The trial
court in
considering
the
Appellant's
refusal to
testify, relied
on the
principles
in S v
Brown
[3]
to find
that,
although
his failure
to
testify
could not be held against him, it could act to his detriment in that
the State's accepted evidence remains uncontroverted.
In
my view
the
State's
uncontroverted
evidence
was
indeed
strong
enough to prove beyond a reasonable doubt the
facta
probanda
to
substantiate
a
conviction
of
rape.
[18]
The remaining question is then whether the Appellant was correctly
convicted of multiple rapes punishable with life imprisonment
or if
he should have been convicted of only one incidence of rape for which
15 years' imprisonment is the ordained minimum sentence
for second
offenders.
[19]
It was submitted on behalf of the State that the trial court
correctly regarded the first three acts of penetration to have
stemmed from a single intent and therefore to have constituted only
one prolonged act of rape, but that that could not apply to
the
fourth act which was perpetrated only after they had already walked
away from the rape scene. It was not quite clear from the
judgment,
though, that that was indeed what the trial court found. And in the
judgment on sentence the trial court referred to
the Appellant having
raped the Complainant 'four times'. What is important, though, is
that the court did explicitly find the Appellant
to have raped the
Complainant more than once.
[20]
Ms
Lesie-Shale
argued
that
the
last
penetration
was
a
separate
new
act
of rape,
driven by
a new
intent,
while Ms
Kruger,
with
reference
to
S
v
Blaauw
[4]
,
averred
that
all the
penetrations
had to
be
regarded
as
a
mere
continuation
of
the
original
intent
and
the
original act because there was
no evidence
as to the length of time
that
elapsed between the various
acts, none
as to the distance that they
walked
before
returning
for
the
last
penetration,
and
none as
to the
presence or absence of ejaculation in each instance.
[21]
In
S
v M
[5]
Satchwell J, after having
referred to S v Kimberley
[6]
and S
v
Mohamotsa
[7]
concluded,
regarding
the different categories of rape in Schedule 2 Part 1 of Act
105 of
1997, that
"the
wording of the descriptions and categorisations of the circumstances
of these rapes is clear and without ambiguity or
confusion. What is
proscribed is rape by the same rapist of the same rape victim on more
than one occasion. All that is required,
is that the rapes are
repeated. It matters little whether the rapes are separated by hours
or days or weeks or months..."
[22]
A
prolonged
act
of
rape
without
rest
or
interruption
and
involving
three
ejaculations
was
regarded
as
a
single
act
of
rape
according
to the court in S v Mavundla
[8]
.
However, closely followed acts of vaginal and anal penetration
were found to constitute
two
separate
acts of
rape in S v Willemse
[9]
. And
in S v
Blaauw
[10]
,
on which
the
Appellant
relied, where the accused ordered his
victim to
lie on the ground and penetrated
her again
after having done so while they both
stood
against a
tree,
the
court
held
that
he
was merely
completing
the
rape
which
he
had
commenced
while
they
were both
standing
against the
tree,
and
found
him
to
have
committed only one
act of
rape.
[23]
In S v
Tlad
i
[11]
the
Supreme
Court
of Appeal
found
that
there
had been
insufficient
evidence
to
establish
two
rapes
since
the
two
penetrations
stemmed
from
one
sexual
encounter
which
on
the
complainant's own evidence did not suggest
'an
interruption
in the sexual
intercourse
to
constitute
two
separate
acts
of sexual intercourse
and,
therefore,
two
separate
acts
of rape.'
This
conclusion was based
on
the
complainant's
evidence
that
suggested
that
the
sexual
acts
were
so
closely
linked
that
they
amounted
'to
a
single
continuing
course
of
conduct
without
any
'appreciable
length
of
time
between
the
acts
of
rape"'.
[24]
In casu,
on the Complainant's own version, the first
three acts of penetration in the passage in front of the toilets were
closely linked
in time and place. One could therefore either, in
accordance with
Mavundla
and
Blaauw,
regard
them as a single prolonged act of rape 'without rest or
interruption', as the trial court remarked, or, in accordance with
Willemse,
see them as separate acts since the two
vaginal penetrations were followed by an oral penetration.
[25]
But,
although
in
the
circumstances
of this
case
there
might
be
a
reasonable
doubt
about
the
singularity
or
separateness
of these
initial acts of penetration, there is in my view no doubt that the
final penetration constituted a separate
new act of
rape.
I
respectfully
agree
with
Satchwell
J
[12]
that
all that
is
required
is that
the
rapes are
repeated, regardless of whether they are separated by hours, weeks,
or
months.
In the
present
case
the
evidence
is
that
the
Complainant and the Appellant were walk
i
ng
away from the scene
of the rape
when at a certain point the Appellant took out his penis again,
showed
i
t
to the Complainant,
instructed
her to return to the rape
scene
and
penetrated
her
again.
That,
in
my
view,
constituted a new
intent and
a
separate,
new act of rape.
[26]
It
corresponds
with the decision in
S v
Maxabaniso
[13]
where Plasket J
held that
the rapes in that case did not constitute one continuous
rape
since
the
intercourse had
been
interrupted
when
the
appellant left the
complainant
in the
bedroom to
go to
the toilet
and
penetrated
her again
upon his
return.
In
my view the Appellant's
decision
in
casu
to
allow them
to walk
away from
the
rape scene
clearly
concluded
his initial
intent to
rape and
the
rape
itself.
His
subsequent decision
to turn
around and go back
to the rape
scene,
therefore,
in
my view
constituted
the
initiation
of
a
newly
formed intention to rape and the final penetration constituted the
practical implementation
of
that
new
intent.
In
this
instance
it would
be
reasonable to
infer,
therefore,
that
there was
not one
continuous
course
of
conduct,
or,
as
in one
of
the
rapes
in S v
Blaauw
[14]
a
mere
interruption
in the
rape to
change
position,
but two
distinct
acts
of
penetration.
[15]
[27]
I am of the view, therefore, that the trial court correctly convicted
the Appellant of having committed more than one rape,
which then
placed his offence in Part 1 of Schedule 2, read with s 51(1) of Act
105 of 1997. And once it had been established that
s 51(1) was
applicable, the starting point of the Appellant's sentencing had to
be life imprisonment.
[28]
It is trite
that
a
court of appeal can only interfere in a sentence
if it is
clear that the trial court
misdirected
itself
in imposing
the
sentence
that it
did, or if
it
did not
exercise its
discretion
properly or
judicially.
(See S v
Rabie
[16]
,
S v
Pieters
[17]
and S v
Pillay
[18]
).
The
trial court
in
the
present
case imposed
one
sentence
of
life imprisonment
although
it
found two
rapes to
have
occurred. Plaskett
J
in
Maxabaniso,
held
that
that
would
not
constitute
a
misdirection
[19]
He confirmed
that the correct way of charging an accused who was accused of raping
a victim more than once, was
to
charge
him with
one
count
of
rape,
read with
s
51(1),
as was
done in
the present
case, and to then impose one sentence of life imprisonment.
In his view
"the repeated penetration of the victim is
what
aggravates the perpetration of
the rape
and renders
him liable
for life
imprisonment
in
respect
of his
entire
course
of
conduct".
[29]
The trial court found no substantial and compelling circumstances to
justify the imposition of a lesser sentence than life
imprisonment.
In reaching that conclusion, the court took into account the
Appellant's personal circumstances, namely that he was
32 years old
when the offence was committed; that he was a single parent with a
10-year old child who live with the biological
mother; that he had
completed Grade 12 at school; that he had earned R2400 per month with
piece jobs which earnings he used to
support his family, and that he
had spent 23 months in custody pending the finalisation of the case.
[30]
In considering the seriousness of the offence, on the other hand, the
court stated that the Appellant had raped the Complainant
four times
in the space of two-and-a-half hours; had forced her to have oral
intercourse; had disregarded the fact that she was
seven months
pregnant; had caused the total breakdown of her marriage; had caused
her to fear men; that he had a previous conviction
(in 2010) of the
same offence of rape for which a sentence of 8 years' imprisonment
had been imposed on him, with 2 years thereof
suspended for 5 years;
that he had therefore been out on parole when the present rapes were
committed; that he does not appear
to have learnt from his previous
incarceration and that it had been an extremely serious instance of
rape..
[31]
The
trial
court carefully considered the aims of punishment, namely
retribution, rehabilitation, deterrence and prevention and the Zinn-
triad, and
weighed
up
the
mitigating
against the
aggravating circumstances
of the
case.
Of
the factors which the trial court did consider
in
mitigation,
the
Appellant's
age
could
in terms
of
S v
Matyityi
[20]
at most
have been a neutral factor regarding its possible
effect of
diminishing moral blameworthiness, however, since there
was no
evidence that his 'relatively youthful' age had influenced or
affected his
conduct
[32]
It is only
when the proportionality of the Appellant's sentence of life
imprisonment is considered that his age of 34 could have
an effect
In S v
Martin
[21]
, for
instance,
the
court
warned
that
discrepancies
between the
imposition of life imprisonment on young as opposed to old
offenders
cannot be
ignored and
held
that:
"A
life sentence imposed upon a lively man of 30 imposes a much longer
and harsher sentence than the nominally identical sentence
when
imposed on a man of 65 who has lost interest in everything around
him."
[33]
However, as
subsequently stated in S v M
[22]
, despite
the fact that a
person who
is 25 years
old at the time of sentencing
is more
likely
to
serve a longer period of imprisonment than someone sentenced at
the age of
60, that should not in and of itself cause a court to fail to impose
a life
sentence
where it
i
s
statutorily
required.
[34]
Traditionally,
time spent in custody while awaiting trial is taken into
account
for
purposes of sentencing
and such
time is usually deducted from the potential sentence. A life
sentence, however, is
theoretically
indeterminate.
The
23
months
which
the
Appellant
was
incarcerated pending
finalisation
of his
trial
could, according to
the
court
in
S
v
M
[23]
,
therefore
not
individually
have
served
as
a
substantial
and
compelling
circumstance.
(See
also
S
v
Tladi
[24]
,
supra).
[35]
None of the factors which the trial court considered in mitigation,
could in my view, individually have constituted substantial
and
compelling circumstances. Neither could they cumulatively have
rendered life imprisonment unjust when weighed against the
aggravating factors in this case.
[36]
Besides the factors which the trial court itself mentioned regarding
the seriousness of the crime, furthermore, two factors
in my view
added to the heinousness of the offence, for instance that the
Appellant had subdued his victim into compliance with
the broken
bottle and then with the meat cleaver, and that the Appellant had
after the first rape removed the condom and so potentially
exposed
the Appellant and her unborn child to possible HIV infection.
[37]
Since the aggravating factors by far outweighed the mitigating ones,
in my view the trial court correctly found there to have
been no
substantial and compelling circumstances to justify the imposition of
a lesser sentence than the ordained one of life imprisonment.
The
court neither misdirected itself, nor imposed a sentence that is so
disturbingly inappropriate as to warrant interference by
this court.
The Appellant's sentence of life imprisonment therefore has to stand.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The appeal is dismissed and the Appellant's
conviction and sentence are confirmed.
__________________
H
MURRAY AJ
I
concur:
__________________
L
J LEKALE J
On
behalf of the Appellant:
Mr S Kambi
Legal Aid South Africa
1st Floor South Wing
41 Charlotte Maxeke
Street Bloemfontein
On
behalf of the Respondent:
Ms Lesie-Shale
Office of the Director
of Public Prosecutions
Waterfall Centre
BLOEMFONTEIN
[1]
1
974(3)
SA
844
(T)
[2]
1
991
(2) SACR
1
98
(A) at 204c-e
[3]
1
996
(2) SACR 49
(NC) at 61
[4]
1
999
(2) SACR 295
(WLD) at 300a-g
[5]
2007(2) SACR 60
(W)
[6]
2005(2) SACR 663 (SCA) at (24] and (25] at 668 h-1
and 669j -
670c
[7]
2002 (2) SACR 435
(SCA) at 444i
[8]
2012(1) SACR 548 (GNP)
[9]
2011(2) SACR 531
(ECG)
[10]
1
999
(2)
SACR
(W) at
300b
[11]
2013 (2)
SACR 287
(SCA) at [13];
[12]
S v M,
supra.
[13]
2015(2) SACR 553 (ECP)
[14]
1
999
(2) SACR
295
(W)
[15]
S
v
Maxabaniso,
supra,
at
[32]
[16]
1
975(4)
SA 85S (A)
[17]
1
987
(3) SA 717 (A)
[18]
1
977
(4) SA 531 (A)
[19]
S v Maxaba niso,
supra,
at
[24] at
557h.
[20]
2011(
1
)
SACR 40 (SCA)
[21]
1
996(2)
SACR 378 (W
} at 385E
- G
[22]
2007 (2) SACR 60
(W) at
[
1
13]
[23]
2007(2) SACR 60 (W) at [1
1
1
]
and [1
1
4]
[24]
2016(1) SACR 424 (GP)