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2016
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[2016] ZAFSHC 155
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Gongotha v S (A119/2016) [2016] ZAFSHC 155 (1 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal number: A119/2016
In
the matter between:
THEMBA
JOEL GONGOTHA
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
J
et
MATHEBULA, AJ
HEARD
ON:
8
AUGUST 2016
JUDGMENT
BY:
MATHEBULA,
AJ
DELIVERED
ON:
1
SEPTEMBER 2016
[1]
The appellant who was legally represented, was charged and convicted
with rape in the Regional Court, Parys. At the conclusion
of
the trial, he was sentenced to life imprisonment and declared unfit
to possess a firearm. He is now appealing against
both
conviction and sentence.
[2]
The record in this matter was incomplete and had to be reconstructed
by the regional magistrate. The affected dates were
the
proceedings of the 11 February and 14 March 2014. Both the
state and the defence confirmed that the constructed record
was the
true reflection of the proceedings of those two days.
[3]
At approximately 23H00 on the 3 August 2014, the complainant was at
home watching television. Her one brother was sleeping
in the
bedroom. The door leading to the outside was unlocked as the
other brother had still not returned home. While
sitting in the
dining room, she noticed a person passing next to the window.
She thought it was her brother who was returning
home and she
proceeded to open the kitchen door. It was the appellant.
He immediately strangled her and put his hands
on her mouth.
Further, he pulled her out of their erf. She tried to escape
but all was
in
vain.
She
was taken
to
the veld.
[4]
It was at this spot that the appellant undressed and threatened her
that if she makes noise she will be killed. He proceeded
to
rape her. At some point he told her that she must come on top
and began stabbing her with a knife. Then he took
her to
another spot because he saw the headlights of a passing motor
vehicle. Again he raped her and stabbed her several
times with
a knife. She received several stitches which were still visible
on the day of the trial.
[5]
The attack on her continued relentlessly and she pretended to be
dead. The appellant put on his clothes and left her for dead.
She waited for about 5 minutes and thereafter left the scene with the
jacket that the appellant had left behind. She saw
a light
which turned out to be a police motor vehicle. She related her
ordeal to them. They took her to the hospital
to attend to the
excessive bleeding and thereafter to the police station to obtain the
statement. Later she went to point
out to them the scene where
she was raped.
[6]
Her evidence was corroborated by Puleng Elizabeth Barda. She
testified that she was a police officer based at Tumahole,
Parys.
On that day they had attended the complaint in the execution of their
duties. They were approached by the complainant
near the
bridge. She was crying, half naked, dirty, bleeding and
carrying some clothes in her hands. She was in pain.
[7]
The complainant told her that she had been raped. Furthermore
that the assailant was known to her (complainant) although
she did
not know his name. She obtained a statement from her and drove
her to the hospital. Later the complainant went
with them to
point out the scene where she was raped.
[8]
The state called three more witnesses to establish the chain from the
time the samples were obtained, stored and delivered for
forensic
analysis. Lastly, the state called Samuel Masegwana who
testified that he is a senior forensic analyst with the
South African
Police Services. He had compiled the report which positively
linked the DNA profile of the appellant to the
sample that were
collected by the police. In his view, there was overwhelming
evidence that the tests were correct and the
appellant properly
identified.
[9]
The appellant testified in his defence and did not call any
witnesses. According to him, he met the complainant at Blue
Train Tavern. A conversation ensued between them and he lent
her his long sleeve skipper jersey because it was chilly that
evening. He consumed few beers there and later left to go
home. At no stage did he have any sexual intercourse with
or
inflicted stab wounds on the complainant. He further testified
that the police were misleading the court that he was positively
linked through his DNA profile.
[10]
I’m satisfied that the court
a
quo
was correct in finding that the appellant is the one who raped the
complainant on that fateful day. The court accepted her
evidence and the issues that needs to be decided in this matter will
be so decided on the basis of her evidence. The appellant
penetrated the complainant by putting his finger in her private
parts. This was followed by putting in his penis. He
coerced her to come on top because he was not feeling anything.
In the third instance he took her to another place where
there was a
rubbish dump and commanded her to lie on her back with him on top of
her. On that instance he penetrated her
again with his penis.
[11]
The enquiry whether the appellant raped the complainant more than
once is a factual matter. Each case has to be
decided on
its own facts.
In
S v Blaauw
1999 (2) SACR 295
(W) at 300 C-D per Bochers J, the court set out the
approach as follows:
“
Each
case must be determined on its own facts. As a general rule the more
closely connected the separate acts of penetration are
in terms of
time (ie the intervals between them) and place, the less likely a
court will be to find that a series of separate rapes
has occurred.
But where the accused has ejaculated and withdrawn his penis from the
victim, if he again penetrates her thereafter,
it should, in my view,
be inferred that he has formed the intent to rape her again, even if
the second rape takes place soon after
the first and at the same
place. The complainant was asked to explain how a single act of
rape took about two hours and she
then proceeded to supply the
details I have quoted above. She was describing, in my view, at least
two separate acts of rape.”
[12]
Complainant was forcibly dragged from the comfort of her home and
frogmarched under threat of violence to an open veld.
There she
was violently undressed and made to lie on the damp ground. A
finger was inserted in her private parts. Thereafter,
she was
penetrated the second time with a penis. It is unclear from the
record whether the appellant ejaculated or not.
However, he
withdrew and continued to drag the complainant to another spot which
turned out to be a rubbish dump. There he
penetrated her with
the penis for the third time. In addition while raping her, he
was inflicting several stab wounds on
her body. This in my
view, equals to multiple penetration of the complainant by the
appellant. In so doing, it can
be infered that on each
penetration, the appellant had intended to rape the complainant on
that occasion.
[13]
The prescribed or mandatory sentence in terms of
section 51
of the
Criminal Law Amendment Act 105 of 1997
is life imprisonment.
The court can only deviate to impose such sentence if there is
existence of substantial and compelling
circumstances and impose a
lesser sentence. The court considered the personal
circumstances of the accused, the seriousness
of the crime and the
interest of society. These aspects viewed in totality, the
court did not find substantial and compelling
circumstances and
decided that life imprisonment was the appropriate sentence.
[14]
The appellant was presented as a 31 year old person, unmarried with
two minor children of 8 years and 14 months respectively.
He
had attended formal school up to Grade 11. Prior to his arrest
he was employed at a construction company earning R1 200
every
fortnight. He had two previous convictions of assault and
malicious damage to property. The use of force is a
lurking
element in these previous convictions.
[15]
The offence of which he was convicted is a serious one. It is
humiliating and degrading to the victim. It is perpetrated
against the defenceless members of the society. It happened at
the sanctuary of the complainant and is debilitating to the
freedom
of movement and association of the victim. See
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(A) at 5 B-C.
[16]
This was the worst kind of rape. The appellant executed his
mission in the most brutal manner. During the time
he was
violating the person of the complainant, he inflicted several stab
wounds. At some stage he left the knife stuck behind
her ear.
It was a sadistic attack. The brutal deed continued to a point
where she was out of breath. It appears
that the brutal assault
stopped and she lived to tell the tale primarily because she faked
her death. It was at this point
that the appellant relented and
ran away from her.
[17]
The court
a
quo
evaluated all the evidence and imposed the sentenced that has been
alluded to. I am of the view that the sentence imposed
is not
shockingly inappropriate. The court did not misdirect itself
and the court of appeal should not lightly interfere
with it.
The court
a
quo
interpreted the law in a correct manner and I cannot find fault in
the reasoning. This appeal ought to fail.
ORDER
[19]
The appeal is dismissed.
_______________
MATHEBULA,
AJ
I
concur
_____________
NM
MBHELE, J
On
behalf of appellant: Adv. L Smit
Instructed
by:
Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv. DW Bontes
Instructed
by:
Office of the Director: Public Prosecutions
Bloemfontein
/PK