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2016
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[2016] ZAGPPHC 448
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Dingwayo v S (A623/15) [2016] ZAGPPHC 448 (15 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: A623/15
15/6/2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
PETRUS
DINGWAYO Appellant
And
THE
STATE Respondent
Coram:
HUGHES J
JUDGMENT
HUGHES
J
1.
The appellant, Petrus Dingwayo, having been refused leave from the
court
a
quo
petitioned this court and was granted leave
on sentence only.
2.
The appellant was found guilty of one count of rape and one count of
theft. He was sentenced to life imprisonment for the rape
count and
ten years on the theft count and both sentences were ordered to run
concurrently.
3.
The issue is a narrow one, in that the magistrate's finding that the
complainant was raped on three separate occasions is vitiated
by a
material misdirection.
4.
The events of the offences are briefly set out. The complainant, a 61
year old childless female was raped in her home on 7 August
2013 from
20HOOpm to 1H30. She testified that during the course of the rape the
appellant initially requested a condom from her.
She advised that she
did not have one and he requested her to fetch a plastic. He used
this to cover his penis. The complainant
testified that he was
unsuccessful.
5.
Her further testimony is that during the course of the ordeal the
appellant on two different occasions demanded of her to make
him
coffee and eats after which she returned to the bedroom and the
sexual violation continued. He at one stage sought Vaseline
with
which he covered his penis. She states that on his first attempt
using the Vaseline he was unsuccessful but on the second
attempt she
states he was successful.
6.
According to the complainant for the last sexual act the appellant
demanded that she put her legs together and he put his penis
between
her legs penetrating and eventually ejaculating. She insisted and
persisted that the appellant penetrated her three times.
7.
The medical evidence was that of Dr Tinenbaum which confirmed that
penetration did in fact occur approximately 2 to 3 cm into
the
genitelia, passing the labia majora and the labia minora, causing
injury by way of bruises to the para-urethral fold and foss
navicularis. He testified that in this rape there was no penetration
to the hymen.
8.
It is trite that the appeal court will only interfere with the
findings of the court a
quo
if it has misdirected itself and
the evidence shows that the court
a quo
was clearly wrong in
its finding. Exceptional circumstances will have to exist for a court
of appeal to interfere with the court
a quo' s
analysis of the
evidence. See
R v Dhlumayo and another
1948 (2) SA 677
(A).
9.
I find no fault in the magistrate's finding that the appellant raped
the complainant on three separate occasions. The magistrate
took into
account the intervals for the appellant's coffee breaks and also when
the complainant fetched the Vaseline. I also find
no fault with the
learned magistrate's reliance on the medical evidence of Dr Tinenbaum
that on every attempt by the appellant
he passed the labia majora and
the labia minora area of the vagina of the complainant. This evidence
corroborates the complainants
persisting testimony that she was raped
on three occasions by the appellant.
10.
The Sexual Offences and Related Matters Amendment Act 32 of 2007
defines sexual penetration as it "includes any act which
causes
penetration to any extent whatsoever by-
(a) The genital organs of one
person into or beyond the genital organs, anus, or mouth of another
person;
(b) Any other part of the body
of a person or any object including any part of the body of an animal
into or beyond the genital
organs or anus of another person;
(c) The genital organs of an
animal into or beyond the mouth of another person, and 'sexually
penetrates' has a corresponding
meaning;"
In
section 3 describes rape 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."
11.
In the light of the definition above I am fortified in concluding
that no misdirection is evident in the magistrate's analysis
of the
evidence and concluding that the complainant was raped on three
separate occasions by the appellant. The evidence of the
complainant
corroborated by the medical evidence is in my view clear that the
appellant entered into the genitalia area past the
labia majora and
labia minora area, about 2 to 3cm into the complainant's genital
organ, on three occasions.
12.
The appeal in respect of the sentence cannot succeed.
13.
In the circumstances Ipropose the following order:
The appeal against sentence is
dismissed.
It
is so ordered
________________________
W
HUGHES
Judge
of the High Court Gauteng, Pretoria
I
concur
________________________
AC
BASSON
Judge
of the High Court Gauteng, Pretoria
Date
of hearing: 07 June 2016
Date
delivered: 15 June 2016
Attorney
for the Appellant: Adv F J Der Westhuizen
Telephone:0828967435
Attorney
for the Defendant: Adv M Van Vuuren
Telephone:
0711532917