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[2016] ZANCHC 87
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Waterboer v S (CA&R50/16) [2016] ZANCHC 87 (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
number: JA 78/10
Case No: CA & R 50/16
Heard on:
25/07/2016
Delivered on:
16/09/2016
In
the matter between:
JOHN
WATERBOER
APPELLANT
AND
THE
STATE
RESPONDENT
Coram:
Pakati J et Mamosebo J
JUDGMENT
MAMOSEBO J
[1] The
appellant, Mr John Waterboer, was convicted in the Kimberley Regional
Court on six counts of rape, one count of attempted
rape and one
count of robbery. The Regional Magistrate, Mr DF Schneider, took all
six counts of rape together for purposes of sentence
and imposed a
sentence of life imprisonment; six months imprisonment for assault
and two years’ imprisonment for theft. The
appeal is against
the conviction and sentence on the rape counts only. The Regional
Magistrate had already informed him when imposing
sentence that he
qualified for automatic appeal in terms of s 309B of the
Criminal Procedure Act, 51 of 1977 (CPA). In addition,
the appellant
also applied for condonation for the late filing of the appeal.
[2]
The first issue is whether the sexual intercourse between the
appellant and the complainant was consensual. The second issue
is
whether life imprisonment was an appropriate sentence.
The condonation application
[3]
The appellant was sentenced on 07 May 2015. He filed his application
for condonation and the Notice of Appeal on 09 December
2015,
approximately 7 months after he was sentenced. Although he and
his legal representative were aware on the same day
when sentence was
imposed that he qualified for automatic appeal, he raised the
following as reasons for the late noting of an
appeal:
3.1 He was transferred from
Tswelopele Correctional Centre in Kimberley to Mangaung Correctional
Centre
in Bloemfontein;
3.2 After his transfer he lost
contact with his attorney of record;
3.3 His attorney only learned on
21 September 2015 that he was at Mangaung Correctional Centre. There
is
no explanation for the delay from 21 September after the attorney
had become aware of the appellant’s whereabouts; and
3.4
The reason for the delay was because he had not consulted with his
attorney.
[4]
Condonation is not to be had for the asking. It is trite that the
explanation for the delay must cover the entire period of
the delay
and must be reasonable. See
Minister of agriculture and Land
Affairs v CJ Rance (Pty) Ltd
2010 (4) SA 109
(SCA) at 117
(para 35). Despite the fact that the explanation
furnished by the appellant did not cover the entire period,
Ms
Mabaso, counsel appearing for the respondent, did not oppose the
condonation application. There will not be any prejudice if
the
application is granted. We condone the appellant’s late filing
of the application. This should however, not be used as
a precedent
for future applications. The delays must be adequately explained.
The merits on conviction
[5]
The appellant pleaded not guilty on all the six counts of rape. In
his plea explanation he admitted formally in terms of s 220
of the
CPA, to having had sexual intercourse with the complainant on the six
occasions but pleaded that it was consensual.
Therefore the
only element that the State needed to prove was whether there was
consent or not.
[6]
The complainant, Ms R C, originally from Cape Town, was a trainee at
Mohawk Spur, Kimberley. On 28 February 2015 she reported
for work at
Spur at 16h30. Her shift ended around 24h00. She had been on her feet
since 16:30 and must unquestionably have been
exhausted. There was an
arrangement between her and her fiancé, Mr Lumburg, to fetch
her from Mohawk Spur. Mr Lumburg
did not show up. It is common
cause that she left the building and the parking area and moved
towards the main road. She was approached
at knife point by the
appellant and ordered to walk along and not to scream or else her
eyes will be gouged out
and
tongue cut out. She obliged.
[7]
The appellant then produced condoms and enquired from her what they
were and whether she knew what they are used for. She did
not respond
and the record reflects that she was emotional. He ordered her
to walk and they did so moving towards a certain
train bridge where
he ordered her to climb over a wall depicted on photo 2 of Exh A. She
remained calm and complied with his instructions.
Once they
were over the wall and in a bushy stinking area between the bridge
and the railway line, observed on photos 3 and 4,
the appellant
pulled down her jeans and also removed his pants. He inserted a
condom and ordered her to lie down on some branches
on the grass
where he repeatedly raped her; about three times. During the last
encounter they were in a standing position.
[8]
After the third copulation the appellant ordered her to get dressed.
They walked until they reached a squatter camp where he
undid a
corrugated sheet on the side of a shack and claimed that he was not
in possession of the key to unlock the door. Although
he wanted her
to enter first she persuaded him to do so, which he did. She
followed. It was pitch-dark in that room. Photo20
depicts a
clear picture of the inside of that room. The corrugated sheets
making up the structure of this dwelling
are severely run-down. There
is a torn piece of cloth material hanging on the side probably
creating the feel of a curtain on the
wall. The piece of
furniture depicted on photo 20 is an old metal bedstead with metal
legs partially covered with a floral
blanket and other small items.
The complainant was raped, she says, another three occasions on the
bed. He then listened to music
on his cellphone and fell asleep. The
knife was there all along where she could see it.
[9]
At dawn, he walked her towards the direction of her home. Once she
became familiar with the location where she was, they parted
ways.
She saw her children walking to the shops. She shouted for them. Her
eldest daughter telephoned Mr Lumburg who joined them
soon. She made
the first report to him. She was taken to a doctor who examined her.
She did not sustain physical injuries but only
felt abdominal pain
and her private parts were also painful. The examination
revealed that she was pregnant. She mistook
the pregnancy to be the
product of rape and immediately had the pregnancy terminated through
an abortion.
[10]
Since this incident the relationship between Ms RC and Mr Lumburg was
strained. She has returned to Cape Town and has abandoned
the idea to
reside in Kimberley. Their plans to get married have been scuppered
and their plan to buy a home at Roodepan was accordingly
abandoned.
Ms Campbell says she now does not trust men in general since
the incident. Her own father and two brothers
have not been spared.
She also suffers from sleepless nights.
[11]
Mr Lumburg testified that he resides at De Beers. He met the
complainant in Cape Town while studying at the University of Cape
Town. They have been in a romantic relationship for ten years. They
were looking for a joint home because the complainant
was intending
to stay with him permanently. On the fateful evening when he went to
pick her up she had gone. He enquired
from his sister who was a
manager at Spur if she was aware of her whereabouts but she was not.
His concern led him to drive around
Kimberley searching for her well
aware that she was unfamiliar with the place. He drew a blank at
Kimberley hospital and even reported
her missing at the police
station. In the morning he returned to the Spur and still did not
find her. While still searching he
received a call from his daughter
informing him that her mother is home. That is when he received the
report about the rape from
the complainant.
[12]
Ms Karen Lumburg-Deerling, senior manager at Mohawk Spur, Mr
Lumburg’s sister, also testified. She confirmed that the
complainant was in training at Spur and had reported for work at
16h30. When her brother arrived he did not find her at Spur. Ms
Lumburg-Deerling confirmed that after the incident the complainant
became withdrawn and after two months returned to Cape Town.
The
State closed its case whereafter the defence also closed its case
without leading any evidence
.
[13]
During cross-examination, Mr Hanise who appeared for the accused at
the trial, asked the complainant why she did not use the
opportunities to escape when the appellant was asleep that evening.
Her explanation was along these lines: She came from Cape Town
and
was not familiar with Kimberley, particularly the area where she was
taken. She feared to be stabbed or killed. She was threatened
with a
knife. From the stage when she was forced to climb over the wall she
says she told herself (as though in silent prayer):
“
Here
gee vir my kalmte dat ek reg kan dink.”
She
was also asked why she did not seek help the following morning as the
appellant walked her into town. She said she feared for
her life. Mr
van Tonder, for the appellant, conceded that the complainant’s
responses are quite evident that she was afraid
of the appellant.
[14]
The complainant testified that “
hy het gesoen hy het alles
wat ‘n mens doen as jy omgang het, het hy gedoen.”
When
asked whether she kissed him back her response was: “
I
had to
.”
The defence argued that there cannot be
talk of rape. This submission, in my view, is incorrect. The response
“I had to”
portrays a situation where the victim does not
have a choice. It cannot be argued that just because he kissed her
that qualifies
or supports the appellant’s defence of consent.
[15]
The defence raised the following contradictions in the evidence of
the complainant:
(15.1) That in her written statement she said she gained
access through the window and in court she said the appellant removed
a
side panel of the shanty;
(15.2) That the appellant held her by her hand while
entering the shack whereas she disputed having said that while
testifying in
court;
(15.3)
She testified that her fiancé was supposed to pick her up at
the Spur restaurant at 24h00 whereas her fiancé’s
testimony was to the effect that he was to pick her up at 22h00.
The
defence has conceded, correctly so in my view, that the
contradictions are not material. I should add that they did not
affect
the complainant’s credibility. See
S v Mkohle
1990 (1) SACR 95
(A) at 98f-h and
S v Mafaladiso en andere
2003 (1) SACR 583
(SCA) at 593e – 594h.
[16]
A good starting point would be with the instructive remarks by Langa
DP in
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at 11E- F (para 24) pertaining to the failure by the accused to
testify where there is evidence before court which calls him
to
answer:
“
[24]
The right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to
remain silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person.
It arises again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify
during the proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences
attaching to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses
to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the
absence of an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of
the evidence. What is stated above is consistent with
the remarks of Madala J, writing for the Court, in Osman and Another
v Attorney-General,
Transvaal
[1998] ZACC 14
;
[1998 (2) SACR 493
(CC);
1998 (4) SA
1224
(CC);
1998 (11) BCLR 1362
(CC)], when he said the following:
‘
Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an
accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of
its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted, it would
destroy the fundamental nature of our adversarial
system of criminal
justice.”
[17]
Mr Schneider, the Regional Magistrate, had only the evidence of the
complainant pertaining to the rape upon which the he had
to consider
the guilt of the appellant. She was a single witness and her evidence
required to be treated with caution. Section
208 of the CPA provides
that an accused may be convicted of any offence on the evidence of
any single competent witness. The trial
court should weigh the
evidence of the single witness and consider its merits and demerits
and having done so, should decide whether
it is satisfied that the
truth has been told despite the shortcomings or defects in the
evidence. See
S v Sauls
1981 (3) SA 172
(A) at 180E –
G. Presiding Judicial Officers must also cleanse themselves of the
temptation of introducing the outlawed cautionary
rule that women are
predisposed to be unfaithful, and require absolutely that their
evidence be corroborated in every case. See
S v Jackson
1998
(1) SACR 470
(SCA) at 476c – 477e.
[18]
Tellingly, she had a lot to lose as compared to the appellant. One
would even say a bright future was unfolding before
her. She
was engaged to be married; the couple was making plans to buy their
first home, her three children, whom she adored
and refers to as “her
babies”, were finding stability in terms of being in a complete
home comprising a mother and
a father and she was in training for a
job. She was building a future for her children. Unsuspecting, the
complainant had also
conceived and was going to have a baby whose
life had to be terminated before it even started. If I compare
the aforementioned
circumstances and weigh them against those of
risking being in a one night flirtatious consensual sexual
intercourse stand with
a complete stranger all the circumstances
militate against consent. The venue for copulation out in a bushy
grassy stinking area
and later in the filthy room depicted on photo
20 was so demeaning that complainant on viewing it may well have
withdrawn her initial
consent.
[19]
The magistrate found that there was not much criticism, if any, that
could be levelled against the evidence of the complainant.
This was
confirmed by Mr van Tonder correctly conceding as follows: “
In
view of limited amount of criticism which can be levelled against the
evidence of the complainant, as well as the fact that the
appellant
elected not to testify, I find it difficult to formulate convincing
arguments as to why his convictions should be set
aside.”
[20]
The defence by the accused that the sexual intercourse was consensual
is blatantly false and without merit. I could find no
misdirection by
the Regional Magistrate pertaining to the assessment of the evidence
on conviction. The appeal in this regard
must therefore fail.
On
sentence
[21]
The appellant was charged with rape read with the provisions of s 51
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as
amended. The charge sheet explicitly stated that the provisions of s
51 of the Criminal Law Amendment Act 105 of 1997 (the minimum
sentencing legislation) applied to the counts of rape.
Section
51 stipulates:
“
Discretionary
minimum sentences for certain serious offences –
(1)
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part 1 Schedule 2 to imprisonment for life.”
Schedule 2 provides-
“
Rape
as contemplated in section 3 of the Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
(a)
When committed –
(i)
In circumstances
where the victim was raped more than once whether by the accused or
by any co-perpetrator or accomplice.”
[22]
The Regional Magistrate took the following factors into account: The
personal circumstances of the appellant and whether there
is a
possibility that he may rehabilitate; the interests of society and
the seriousness of the offences of which he had
been
convicted. The Court was alive to the fact that the legislature
has ordained life imprisonment unless substantial and
compelling
circumstances were found to be present.
[23]
The following personal circumstances were taken into consideration by
the Regional Magistrate:
The
appellant was 31 years old and had passed standard 8 at school. He is
unmarried. Before his incarceration he was involved in
a love-
relationship with Ms Ursula McGulty, who testified in aggravation of
his sentence. She is the mother of his two minor children.
He is not
the primary caregiver to these minor children. He was in custody
awaiting finalisation of his trial for a period of 14
months.
[24]
Concerning the six counts of rape, the Court viewed them in a very
serious light. It accepted that the ordeal must have been
extremely
traumatising particularly because it lasted from Friday night into
Saturday morning. Noting that she did not sustain
any physical
injuries during the rape itself the Court accepted that she was
repeatedly raped at knife-point. The trauma
experienced by the
complainant caused her own wedding plans to flounder. She also had to
leave Kimberley and took a conscious decision
that she will never
reside in Kimberley ever again. Ponnan JA found that the age of an
accused who is a major is a neutral factor.
See
S
v Matyityi
2011
(1) SACR 40
(SCA) at 48. Also see
S
v Dlamini
1991
(2) SACR 655
(A) at 666a - e.
[25]
The tone when dealing with the rape cases was set by Chief Justice
Mahomed’s pronouncements
in
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA) at 5b-c:
“
This
in our view is a correct approach. Rape is a very serious offence,
constituting as it does a humiliating, degrading and brutal
invasion
of the privacy, the dignity and the person of the victim. The rights
to dignity, to privacy and the integrity of every
person are basic to
the ethos of the Constitution and to any defensible civilisation.
Women in this Country are entitled to the
protection of these rights.
They have a legitimate claim to walk peacefully on the streets, to
enjoy their shopping and their entertainment,
to go and come from
work, and to enjoy the peace and tranquillity of their homes without
the fear, the apprehension and the insecurity
which constantly
diminishes the quality and enjoyment of their lives.”
[26]
In
S v Malgas
2001 (1) SACR 469
(SCA) at 482e Marais JA
remarked:
“
I.
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence,”
[27]
The Regional Magistrate considered the circumstances in totality
weighing all factors together and found that there were no
substantial and compelling circumstances to warrant a deviation from
the prescribed sentence of life imprisonment. The rape has
impaired
the dignity of the complainant and shattered her life. As stated by
Mahomed CJ women in this country must be able to
enjoy the benefit
and protection of the law. They must be able to go and come from work
without fear.
[28]
I can find no irregularity or misdirection on the part of the
Regional Magistrate. The sentence is also not disturbingly
inappropriate.
There was no reason for the Magistrate to deviate from
the prescribed sentence for flimsy reasons. In my view, the appellant
is
fortunate to get away with one life sentence. Two life
imprisonments should have been imposed. There was a first series of
three
rapes in the bush followed by a second series of three rapes in
the dilapidated shack. See
S v Blaauw
1999 (2)
SACR 295
(WLD). It follows that the appeal against sentence
must also fail.
ORDER
1.
In the result,
the appeal against the conviction and sentence on the six counts of
rape is dismissed.
____________________
MAMOSEBO J
NORTHERN CAPE HIGH COURT
I concur
_____________________
PAKATI J
NORTHERN CAPE HIGH COURT
Appearance:
For the Appellant :
Mr A van Tonder
Instructed by:
Justice Centre, Kimberley
For the Respondent:
Adv J Mabaso
Instructed by:
Office of the Director of Public Prosecutions