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[2016] ZAGPPHC 192
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Bathakathi v S (A190/2015) [2016] ZAGPPHC 192 (14 April 2016)
SAFLII
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IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.:
A190/2015
14/4/16
Not reportable
Not of interest to
other judges
Revised
In the matter
between
MZWABANTU ANDREW
BATHAKATHI
Appellant
and
THE STATE
Respondent
JUDGMENT
JANSEN J
[1] The appellant
appeared before the regional magistrate court in Fochville on two
counts, namely rape and a count of pointing
a firearm at the
complainant during the rape.
[2] The appellant
pleaded not guilty on both counts. In terms of his section 115
plea explanation, he admitted to having
sexual intercourse with the
complainant, but stated that it was with the complainant’s
consent. Regarding the count
of pointing a firearm, the
appellant stated in his section 115 explanation that he did not
even have a firearm with him and
never pointed a firearm at the
complainant.
[3] It bears mention
that this part of the record had to be reconstructed but that the
charge sheet is at least included in the
record. The alleged
rape allegedly happened on or about 28 March 2010 within the township
of Kokosi and the count relating
to the pointing of a firearm (in
terms of section 120(6)(a) read with sections 1, 103, 120(1)(a), 121
read with schedule 4 and
section 151
of the
Firearms Control Act 60
of 2000
) took place during the said rape.
[4] On 6 July 2011
the appellant was convicted on both counts and sentenced to 20 years
in respect of the rape and two years for
pointing a firearm.
[5] The complainant
was born on 22 April 1994 according to her birth certificate which
was accepted as an exhibit. Hence,
she was 15 years, 11
months and 6 days old when the alleged rape occurred.
[6] The appellant,
according to his birth certificate, was born on […] September
1983. Hence he was twenty-six, going
on twenty-seven, when the
alleged rape occurred.
[7] The matter came
before this court based on the appellant’s petition against his
conviction and sentence being granted.
(Leave to appeal in
respect of both conviction and sentence was refused by the court
a
quo
.)
[8] Before turning
to the evidence, it is emphasised that even though it was sought to
reconstruct a part of the missing evidence,
a part of the record
relates to evidence in a completely different matter and the record
ends with part of a judgment rendered
in another matter. The
transcribers also emphasise that the interpreter often commenced
interpreting whilst another party
was still speaking and that the
questions and statements of the presiding officer and attorney for
the appellant were inaudible
on various occasions. The record
further (containing the transcription of evidence in a totally
different case) commences
halfway into a question posed by the
appellant’s attorney. What the transcribers state is the
following: —
“
Neem
asseblief kennis dat daar ‘n heel aantal ‘onduidelikhede’
in die oorkonde voorkom as gevolg van die feit
dat klank op twee
geleenthede totaal vervaag het. Selfs op mp3 kon dit wat deur
Hof gestel word nie waargeneem word nie.”
[9] The court
a
quo
had sought to reconstruct the record as far as it was able to
do and the transcribers did their best to type what could be gleaned
from the recordings in instances where the sound was of a poor
quality.
[10] This court is
of the opinion that the relevant parts of the evidence which were
transcribed are such that they can rely on
the record in its current
format. The contrary was, in any event, not contended on behalf
of the appellant.
[11] The appellant
was represented by an attorney throughout the proceedings.
AD CONVICTION
[12] A J88 medical
report was admitted by the defence and was handed in as an exhibit.
It was dated 29 March 2010, a day after
the rape, and indicated that
there was “…
tear bleeding from the vagina with tear
on posterior fourchette and tear on hymen membrane at 5 o’clock/7
o’clock.
It looked bruised. Buttocks full of
grass.”
The conclusion which was reached by the
medical practitioner was that the complainant had been sexually
assaulted.
[13] In addition to
this evidence, the complainant, her mother and her sister were called
by the state as witnesses.
[14] The appellant
testified in his own defence and called no witnesses.
[15] Given the fact
that the appellant admitted to having sexual intercourse with the
complainant, the only issue was whether it
was consensual. If
she was under the age of sixteen, the question of consent is not even
an issue as the provisions of
section 51
and schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended, prescribes a
minimum sentence of life imprisonment.
[16] From the
record, it does not appear that the possible imposition and
implications of a minimum sentence were explained to the
appellant.
[17] The magistrate
termed the complainant’s evidence cogent and credible. She
testified that the appellant arrived at the
house of her aunt, where
she and her sister were staying, to walk with him to go and buy Coca
Cola. This happened at about
20h00. She testified that
the appellant asked her aunt’s permission for her and her
sister to accompany him and that
he then took them to a tavern called
T.. He bought himself, and Ace, a friend of his who had accompanied
them, Black Label beer
and Cokes for the sisters. He then
offered to buy the sisters a Smirnoff Storm, then another and a
third, all of which the
girls consumed. It bears mention that
these were 750ml bottles.
[18] The appellant,
according to the complainant, was her cousin as her mother and the
appellant’s mother were sisters but
they referred to him as
their “uncle”.
[19] Asked why she
drank the Smirnoff Storms, she answered that she wanted to know what
it tasted like. Much later they left
the tavern but because her
legs felt weak, she asked the appellant to carry her on his back.
He could not proceed as the
younger sister also had problems walking
due to her state of inebriation.
[20] The complainant
testified that the appellant sent her sister back to the tavern to go
and fetch his brother who was there in
order to assist in carrying
her. After her sister had left, the appellant pulled her into a
cemetery where he gave her the
choice of having sex with him or being
shot. She stated that he took out a firearm with his right hand
from behind his back
and with his left hand, undressed her by pulling
off her jean shorts and panties. He forced her onto her back.
He then
penetrated her and moved up and down and she testified that
it hurt tremendously. The whole time he held the firearm in his
right hand. At that point in the time, two men appeared and
asked what was happening whereupon the appellant told them to
leave
or he would shoot the complainant. She dressed quickly whilst
he pointed the gun at her and the two men.
[21] Thereafter the
appellant took her back to the tavern where she found her sister and
told her that they should go home.
The appellant accompanied
them. She started running when close to the house and she went
straight to her aunt’s bedroom
and told her that she had been
raped. Her sister and the appellant arrived and her sister
entered and the appellant told
her to lock the door.
[22] The aunt texted
the complainant’s mother and they phoned the police. The
complainant was taken to a doctor and
the police the next day.
She also testified that she could remember what happened even though
she was drunk.
[23] The version
which was put to her in cross-examination was different. It bears
mention that the magistrate mentioned that when
she left the witness
box, she was crying.
[24] The complainant
added that the appellant had threatened her that if she told anybody
about what had occurred, he would kill
her or her family members.
[25] It was put to
the complainant that her younger sister (when they were still at
their aunt’s home) was told that a Rebecca
called her to tell
her somebody wanted her outside and it was the appellant and his
friend Ace. The younger sister, only
thirteen, told the
appellant they should first ask their aunt’s permission before
they could go and buy Cokes with him, which
he indicated he wished to
do.
[26] They then went
to T.. It was put to the complainant that the appellant did not offer
to purchase Storm of his own accord after
he had purchased Coke for
the girls. It was put to her that she had insisted on the
appellant purchasing the Smirnoff Storm,
which she denied. The
younger sister, the complainant admitted, was running around in the
tavern. It was put to her
that they were all relaxed, having a
good time whereupon the complainant stated that she felt
uncomfortable because there were
so many people. She was asked
why she did not demand to be taken home and she answered that she did
not because the appellant
had invited them and purchased Coke and
drinks for them. She ultimately insisted that they go home but
she could not walk.
[27] It was then put
to her that the appellant’s version was that she kissed him and
hugged him and sat on his lap, all of
which the complainant denied.
It was further put to her that it was the appellant’s version
that after her sister left,
whilst they were returning to her aunt’s
home, she kissed the appellant and started unbuttoning his overall,
which she denied.
She admitted that her jeans were tight
bootleg jeans. She also testified that he forced her upper legs
open with one
hand, and that she tried to resist but could not hold
his hand as he produced a firearm.
[28] The complainant
testified that the appellant pulled her to a cemetery. When
asked why he did not carry her as she could
not walk, she said she
did not know.
[29] It was further
put to her that she told the appellant that she wanted to have sex
with him but that he was not to tell her
sister. It was also
put to her that she went to the cemetery voluntarily and that the
appellant even made her lie on his
overall. Furthermore, it was
put to her that the appellant would testify that they heard the
footsteps of two men and remained
silent. The complainant
denied all the versions put to her.
[30] They then went
back to the tavern and sat for quite a while whilst the appellant
consumed two more Smirnoff Storms, which the
complainant denied.
She stated that she found her little sister and told her that they
should return home immediately.
[31] The complainant
also admitted that Nkulu, the appellant’s brother, had asked
the appellant from where they had returned
and that the appellant
alleged from his girlfriend. The complainant further admitted
that she never asked her sister why
she had not returned to her
(where she left her with the appellant close to the cemetery) –
not on the day of the incident
nor the following day.
[32] It was put to
the complainant that the appellant would allegedly also testify that
he gave her R20.00 at the tavern and that
they agreed to tell nobody
about having sex which the complainant denied. It was also put
to her that the appellant would
testify that they agreed to have sex
and that he never threatened her.
[33] The next
witness was the appellant’s aunt whose evidence was consistent
with that of the complainant. She testified
that the
complainant told her about the rape, the two men who approached and
asked what was happening in the cemetery (as sex with
a girlfriend
would not take place in a cemetery). She testified that the
complainant had told her that the appellant pointed
a gun at her and
added that the complainant had told her that the appellant had held
her mouth shut with his shirt. She further
testified, as had
the complainant, that the appellant threatened to murder the
complainant if the two men did not leave.
She testified that
the complainant was crying. She added that the complainant told
her that if she were to tell anybody,
including the police, the
appellant threatened to kill her.
[34] During
cross-examination, the aunt testified that the appellant was part of
the family. The complainant was recalled
for further
cross-examination (although the magistrate commented that she was
crying) in order to establish whether she was not
afraid to arrive
home late and drunk. The aunt was asked whether she saw that
the complainant was dirty, but she stated that
she only saw that her
zip was undone. She testified, upon questioning, that she did
not confront the appellant because the
complainant had told her that
he was armed. She admitted that she was strict with the
children and would scold them when
they did anything wrong, and that
she indeed scolded them when the younger sister told her that they
had been drinking because
they were not accustomed to alcohol.
She stated that the children had a lot of respect for her. She
also testified
that she trusted the appellant as he was the girls’
uncle.
[35] The complainant
finally admitted that both she and her sister were drunk and knew
that they would get into trouble. She
also testified that she
told the appellant that they were not allowed to drink alcohol but
that he urged them to drink the Smirnoff
Storms.
[36] It was put to
her that the she had fabricated the story of a rape because she was
afraid of her aunt but her aunt testified
that she thought that they
were telling the truth. The complainant denied that she had
kissed the appellant.
[37] She testified
that the complainant had told her that the appellant had carried her
and then ran to the cemetery with her.
[38] The younger
sister then testified and corroborated the complainant’s
evidence in all material respects. She said
that she and the
appellant’s brother indeed returned to where they had left the
complainant and the appellant after she had
fetched him from the
tavern but upon finding nobody there, returned to the tavern.
She said they were uncomfortable because
there were so many people,
some quarrelling. The State closed its case.
[39] The appellant
then testified. His evidence did not accord with the version
put to the complainant and the other witnesses.
According to
him, he was sitting in a tavern, and went out to speak to his friend,
when the younger sister came to ask him to buy
them Coke.
According to him, the younger sister insisted on going to the T.
tavern because a jazz band was playing there
and that he had actually
wanted to buy the children Coke at another shop. He also stated
that even though the younger sister
said that she would go with the
complainant, he was reluctant because it was a “rough”
place. Allegedly, the
younger sister stated that she was well
acquainted with the tavern. None of his evidence was put to the
complainant and her
sister during cross-examination.
[40] According to
the appellant, the younger sister insisted that he purchase them
Smirnoff Storms after he had purchased them Coke.
He also came
with a feeble version that he thought that the children were 18 years
old and would not have been allowed into the
tavern if they were any
younger. However, he admitted that no ID documents were
requested. He also came with a new
version that the police were
frisking the men in the tavern and would have found a firearm had he
been carrying one. He also
said they were celebrating the
children’s good school results and hence he purchased the
Smirnoff Storms.
[41] The appellant
testified that the complainant kissed him in the tavern
unexpectedly. When they returned home and he carried
the
complainant on his back and after they had sent the younger sister
back to the tavern, the complainant allegedly kissed him
again and
asked to have sexual intercourse. He allegedly did it reluctantly,
“against his will”.
[42] Regarding the
two men who arrived at the scene, he testified that they just laughed
and walked past. He denied having
a firearm.
[43] The appellant
then alleged that after they had had sex, the complainant wished him
to have sex with her younger sister as well.
[44] During
cross-examination, he was evasive as to how he fitted into the family
and testified that he was simply called “uncle”.
He
tried to argue this away by stating that he had had a sexual
relationship with the complainant’s mother’s sister.
[45] The appellant
also changed his version and said that it was he who had asked the
complainant to have sexual intercourse with
him. He said that
because the complainant kissed him in a way indicating a willingness
to have sex, he wanted to have intercourse
with her. He
insisted that he never planned on having intercourse and that it
simply happened and that because he was intoxicated,
he was less
inhibited.
[46] The appellant
testified that when the complainant kissed him, he got a warm feeling
which caused him to wish to have sex.
He added that he was
inebriated and that it was a mistake. He told the court, when
questioned by the court:—
“
Waar is
dit toe nou? – Na hierdie soenery en na ek toe heirdie warm
gevoel gekry het.
Wat vra u toe?
– Ek het haar gevra dat ons seks moet hê want hierdie
gesoenery van ons dit is soenery dat ‘n mens
seks wou hou.
Goed en wat sê
sy toe? – Sy het gesê ja dit is reg ek het toe vir haar
gese kom ons soek ‘n veilige plek.”
[47] The appellant
also admitted under cross-examination that he had been drinking at
another tavern and was intoxicated before
they went to T..
[48] The appellant
said because they were in a cemetery, they were rushed and he did not
know whether he injured the complainant
but there was no time for
foreplay.
[49] The appellant
even denied that there could have been grass on her buttocks as the
doctor had remarked because he had allegedly
taken off his overall
and made her lie on it.
[50] The appellant
reiterated that he had not known that he was going to have sexual
intercourse with somebody whilst under the
influence of alcohol.
[51] The appellant
was asked why the complainant would immediately have told her aunt
that she had been raped and he answered by
stating that he had
refused to have sexual intercourse with her younger sister even
though the complainant insisted that he should.
He said that he
had refused because he had not meant to have sexual intercourse with
the complainant in the first instance.
He further expressed his
regret that he had taken the girls to T. and had not simply purchased
them Coke. He was also asked
why knowing that he was taking the
girls to a dangerous tavern, he had not told the aunt that that was
what he intended doing.
He had no audible explanation.
[52] The appellant
stated again that he bought the children the Smirnoff Storms to
celebrate their good school results. It
was also put to him
that he sent the younger sister back to the tavern because he knew he
was going to rape the complainant.
He denied this stating that
the younger sister was heavily under the influence of alcohol.
[53] The appellant
once again blamed the rape on the complainant’s conduct.
[54] The defence
then closed its case.
The applicable
legal principles
[55] It was argued,
on behalf of the appellant, that although the court may convict an
accused on the evidence of a single witness
in terms of
section 208
of the
Criminal Procedure Act 51 of 1977
, such evidence must be
reliable and satisfactory in all material respects. A general
cautionary rule in respect of sexual
assault cases is outdated as was
held in
S v Jackson
1998 (1) SACR 470
(SCA)
.
[56] The examples
set out in the cases cited by the appellant’s counsel namely: —
Stevens
v
S 2005
(1) All SA (1) SCA
;
S
v Sauls and others
1981
(3) 172 (A)
at 180 E-G; and
R
v Mokoena
1932
OPD 79
at 80.
do not find
application in this case.
[57] There was no
reason whatsoever for the complainant to have lied. It is true
that on that particular evening she ventured
into new territory by
going to a tavern and drinking (apparently for the first time) but
that is a far cry from believing that
that would give rise to a wish
on her part to have sexual intercourse with her uncle. People
behave differently whilst under
the influence of alcohol and the
complainant might have started flirting and kissing the appellant,
but that did not mean that
she wished to engage in sexual
intercourse.
[58] Assuming,
arguendo,
that she did kiss him in an inebriated state –
that does not indicate at all that she wished him to rape her –
which
is what he literally did because he said they were pressed for
time. The evidence points to the contrary. Her younger
sister said that the complainant was trembling when she returned to
the tavern and when close to home, she ran and went to her
aunt and
cried and told her that she had been raped.
[59] In his
evidence, the appellant admitted that his conduct had been wrong and
that the sexual intercourse should never have taken
place.
Furthermore, he was the one who enticed the compliant and her sister
to drink and who took them to a bar which he
knew was unsavoury
(“rough”).
[60] The reasons
advanced by counsel for the appellant why the complainant and her
sister were lying were that they were drunk,
had intentionally
consumed three bottles of alcohol, arrived home late under
“suspicious circumstances”, coupled with
the fact that
the complainant did not cry at the tavern or on her way home.
The latter point takes the matter no further.
People react
differently when in shock. She was trembling. The
children probably also kept on drinking because their
inhibitions
were lowered by the alcohol which they had consumed and the appellant
kept on buying yet further alcohol. He
stood in a position of
trust towards them which he abused.
[61] Regarding the
firearm, the appellant’s counsel argued that the complainant
would not know whether it was a firearm or
what the appellant pointed
at her. However, one can accept that everybody has an idea of the
general appearance of a firearm, whatever
its make, and when one is
told that one is going to be shot, one will believe the person making
the statement. It should
be borne in mind that the pointing of
a firearm in terms of Act 60 of 2000 is of a firearm, an antique
firearm or even a pellet
gun.
[62] Regarding the
appellant’s version – it was full of fabrications. The
magistrate found the complainant and especially
her younger sister to
be credible, disciplined children. It was submitted that the
appellant kissed the complainant in the
presence of her younger
sister. That, most certainly, was not the younger sister’s
testimony. Why on earth –
even if intoxicated – the
complainant would wish her sister to be raped is incomprehensible.
She said that it hurt
very much.
[63] One could
speculate that the complainant and her sister were in the same
trouble because they visited a tavern together and
consumed alcohol,
and that after having sex, she wished her sister to be in the same
boat that she was. This would be pure
speculation however.
On the other hand, it is
prima facie
such a strange defence
for the appellant to have fabricated, that he could reasonably
possibly have been telling the truth regarding
this issue.
[64] However, even
if this were the case, it would merely be because the complainant
wished her sister to be in as much trouble
as she was. It does
not detract from the fact that the appellant raped her.
[65] In the
premises, the state proved beyond a reasonable doubt that the
appellant raped the complainant.
[66] Regarding the
pointing of a firearm, the complainant’s testimony sounds
far-fetched. It is improbable that he suddenly
produced a firearm and
somehow managed to undress her with one hand and remove her tight
bootleg jeans with one hand. It
is held that the appellant’s
version that he had no firearm could reasonably possibly be true.
No firearm was ever
retrieved either from the cemetery or the
appellant.
AD SENTENCE:
[67] These
appellant’s personal circumstances were conveniently summarised
by the appellant’s counsel as follows: —
a)
The Appellant was 27 years old when he was sentenced.
He was still young and was not beyond rehabilitation.
b)
He was single but staying with his girlfriend.
c)
His girlfriend’s financial position was not
placed on record and it may be safely assumed that the was the sole
bread winner
at home.
d)
He had one minor child to maintain.
e)
He was a primary care giver and contributed R400-00
towards the maintenance of the minor child.
f)
He was not fully literate, but was employed by a
Contractor known as Pelle earning R1600-00 per month. He worked
continuously
for the same company for a period of 3 years.
g)
He was partially literate having passed grade 11 only.
He never received any life skills and or anger management lessons.
h)
He was under the influence of alcohol when he committed
this offence.
i)
He was a first offender and did not have pending cases.
j)
He was on bail and in custody from date of sentencing
namely 6 July 2011 until date of the hearing of his appeal on 2
November 2015.
He was therefore in jail for approximately four
years before his appeal was heard.
[68] It was argued,
in the circumstances of this case, that imprisonment for a period of
22 years induces a sense of shock, allowing
the appeal court to
interfere with the sentence imposed. The magistrate expressed
himself in very strong terms regarding
the fact that the consumption
of liquor could never be a mitigating circumstance, even though he
accepted that he appellant was
drunk and that the courts should hold
so unequivocally. I am unable to agree with the magistrate.
Circumstances may
lead to the consumption of alcohol and the
commission of a crime which was never intended. It is the
consumption of liquor
which should be addressed. It cannot
always be held that an inebriated person is still functioning
intentionally and with
dolus
(depending on the
circumstances). The magistrate clearly overemphasized the
seriousness of the offence and disregarded the
fact that the
appellant was drunk. The fact that he was inebriated, in the
first instance, was of course of his own volition,
for which he must
be held accountable.
[69] It must be kept
in mind that the purpose of punishment of criminals should be
rehabilitative and that the triad of the
opus classicus Malgas
should be applied. A sentence of 22 years would simply
break the young man and deprive him of all hope.
[70] The
respondent’s counsel emphasised that the appellant was in a
position of trust, used a firearm during the commission
of the
offence which was serious and showed no regret. The finding is
incorrect. The appellant did show regret. He
stated in
his evidence that he wished that the incident had never occurred and
that they had never gone to the T. tavern and that
the sexual
intercourse was not intentional and should not have happened as it
was wrong. That the complainant probably kissed
him is borne
out by his spontaneous allegation that he felt that “warm
feeling” when one wishes to have sex due to
the manner in which
the complainant kissed him.
[71] In the
premises, the following order is proposed: —
Order
1. The conviction in
respect of the pointing a firearm is set aside.
2. The appeal in
respect of sentence is upheld and the magistrate’s sentences
are substituted with the following sentences: —
The
appellant is convicted to 10 years’ imprisonment, four (4)
years of which are suspended on condition that he does not
commit
any sexual offence during the period of four years.
The
appellant is declared unfit to possess a firearm in terms of section
103 of Act 60 of 2000.
The
sentence is antedated to 6 July 2011 in terms of
section 282
of
the
Criminal Procedure Act.
MM
JANSEN J
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered.
DE KLERK AJ
JUDGE OF THE HIGH
COURT
For the Appellant
Advocate S Moeng
(012-401 9200/082 299 1644)
Instructed by
Pretoria Justice Centre
For the
Respondent
:
Advocate S Scheepers
(084 520 0593)
sscheempers@npa.gov.za
Instructed by
The Director of Public Prosecutions
(Ref: PA 34/2015 (2/11/SS)