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[2015] ZAGPPHC 130
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Sparks v S (A672/14) [2015] ZAGPPHC 130 (12 March 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A672/14
DATE:
12 March 2015
MICHAEL
SPARKS
..................................................................................
APPELLANT
V
THE
STATE
...........................................................................................
RESPONDENT
JUDGMENT
MABUSE
J
:
1.
This is an appeal against both conviction and sentence, leave so to
appeal having been granted by the Trial Court on 5 September
2013.
2.
Mr. Michael Sparks, the appellant in
casu
, appeared before the
Regional Court Magistrate in Bloemhof where he was charged with the
offence of rape. The particulars
of the charge against the
appellant in the court
a quo
were set out as follows in the
charge sheet:
“
That
the accused is guilty of the crime of contravening the provisions of
sections 3 read with section 1, 55, 56(1), 57, 58, 59,
60 and 61 of
Act 32 of 2007. Rape (read with the provisions of sections 51
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
), as
amended.
In
that on or about 5 May 2012 and at or near Coverdale, Bloemhof, in
the Regional Division of North West the said accused did unlawfully
and intentionally commit an act of sexual penetration with the
complainant to wit R[…] K[…]
by
inserting his penis into or beyond her genital organ
without the consent of the said complainant.
Section 51
and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended
is applicable in that the complainant sustained serious bodily
injuries.”
[3]
The appellant, who enjoyed legal representation during the entire
trial, pleaded not guilty to the charge and chose to make
no plea
explanation. Despite his plea of not guilty to the charge, the
appellant was convicted thereof and upon conviction
was sentenced to
life imprisonment. After the state had lead the evidence of its
witnesses and the appellant had closed his
case without tendering or
leading any evidence, the Court
a quo
was satisfied that the
appellant had committed the offence he had been charged with.
[4]
The charge against the appellant in the Court
a quo
had its
genesis in the following circumstances or set of facts. On 5
May 2012 around 20h00, Miss R[...] K[...], the complainant,
was
sitting alone at a tavern in Coverdale when the appellant, who was in
the street outside the same tavern, called her and made
enquiries
from her about his cell phone. He beckoned her to come outside
in the street and the complainant obliged.
When she joined him,
he asked her where his cell phone was and the complainant answered
that it was in the possession of her niece,
one R[...] .
[5]
The appellant told her that he could not hear properly and proposed
that they move to a certain corner where their discussion
would
continue. Both of them walked up to that corner and once they
had arrived there the appellant lifted her up and carried
her to a
bushy area where a struggle between the two of them ensued.
Again he asked her about his cell phone and again she
told him that
R[...] had his cell phone and that he could summons the Police
if he did not believe her.
[6]
The appellant slapped her. She slapped him back in the face in
revenge. He then dragged her by her legs on the ground.
While she was lying on the ground the appellant came on top of her.
She was scared. She asked him what he was doing
and told him
that that was no way of looking for his cell phone. One more
time she asked him to call the police. While
she was still
lying on the ground the appellant pressed her down with his knee and
closed her mouth with his one hand. He
pulled her panty off
whereupon she asked him why he did so. He stood her up and when
she tried to flee he head butted her
on her forehead as a consequence
of which she fell. He pulled out his penis and pressed it
against her nose telling her to
smell it.
[7]
With his penis erect, the appellant then lay on top of her. She
screamed harder and while they were still in that position
two males
arrived at the spot. When these two males arrived there, they
asked him what he was doing and he said that the
complainant did not
want to give him his cell phone. Still the complainant said
that he should call the police. One
of those men was Thapelo.
The complainant then rose from the ground and went to stand behind
Thapelo.
[8]
These two men left in order to call the Police. When they left
they wanted to take the complainant with them but the appellant
refused. As they were leaving the appellant grabbed the
complainant, slapped her and then Thapelo told him to stop.
He
threw the complainant on the ground and one more time produced his
penis. At this stage the complainant told him that
he would
never have any sexual intercourse with her. The police then
arrived at the scene. When the police arrived
he was trying to
have sexual intercourse with her. The appellant did not insert his
private part into her private part.
[9]
While the appellant was driven away in the police van she was driven
to the hospital in Christiana where she was examined by
one Dr.
Sunday Steven Morakeyo.
[10]
Thapelo Mogamisi testified and told the Court that while he was in
the company of a friend of his he fell upon the appellant
and the
complainant. He was attracted to the spot where he found them
by the screams that came from there. He saw how
one person was
pressing another on the ground. The person who was pressing
another on the ground arose from the complainant
and approached him.
He realised at this stage that it was the appellant. He asked
him what he was doing. The
appellant did not respond.
Thapelo saw the police van. He stopped it and made a report to
them. That is the reason
why the police arrived at the scene.
[11]
After placing his qualifications on record, doctor Morakeyo confirmed
that on 5 May 2012 and at Christiana Hospital he examined
the
complainant and having done so completed a medico-legal examination
report, otherwise known as J88, about his examination and
findings on
the complainant. He told the Court that when he examined her
the complainant was traumatised, emotionally distressed,
in pain and
had some fresh bruises on both her upper arms, forearms and both
sides. Although he mentioned other bruises,
for purposes of
this appeal and the case in the Court
a quo
he concluded that
the complainant had been “probably sexually assaulted”.
[12]
At the close of the state case the appellant’s legal
representative tried unsuccessfully to secure his acquittal in terms
of s 174 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
When that failed he closed the appellant’s
case without leading
any evidence either by the appellant or the appellant’s
witnesses.
[13]
The Court
a quo
was correct in observing that in criminal
matters, it was the duty of the State to prove its case beyond
reasonable doubt.
It was alive to the fact that the State
relied on the evidence of a single witness and for that reason it had
to approach such
evidence with caution. It could only convict
on the strength of such evidence of a single witness if it was clear
and satisfactory
in all material respects.
[14]
During cross examination by Mr. Bornman who appeared for the
appellant in the Court
a quo
the complainant was adamant that
the appellant never penetrated the private parts with his penis or
any other object or body part
for that matter. She told the
Court that she would have known if the appellant had penetrated her
and furnished a valid reason
why she said so. When it was put
to her during cross-examination and the appellant would deny having
raped her she confirmed
that and told the Court that she knew that
the rape did not take place.
[15]
It was clear during the trial in the Court
a quo
that the
evidence of the state witnesses was inconsistent. The state
took up the issue of discrepancy between the complainant
and the
doctor’s evidence with the complainant. When she was told
that the doctor had seen the injuries on her private
parts she told
the Court that she did not know where the injuries came from.
By this she meant that she did not sustain those
injuries at the
hands of the appellant.
[16]
The Court
a quo
expressed its observation as follows:
“
Now
here the only problem which well very (indistinct) is the issue that
the complainant claimed that there was no actual penetration.”
The
magistrate, while accepting that the complainant had testified that
she had not been penetrated, convicted the appellant on
the basis of
the evidence of the doctor. This is what is stated in the
judgment:
“
Indeed
and according to this evidence before the evidence is overwhelming
that although the doctor, although the complainant stated
herself
there was no penetration but the doctor found penetration.”
[17]
The Court
a quo
furnished no reasons whatsoever why it
preferred the evidence of the doctor to that of the complainant.
The doctor’s
findings were that the complainant had “
probably
been sexually assaulted”
. He did not find evidence of
penetration otherwise he would have recorded it as such accordingly.
It is in our unanimous
view that there was no evidence at the close
of the state case upon which a reasonable man acting carefully might
have convicted
the appellant of rape as charged.
[18]
Quite correctly, the magistrate pointed out that the state bore the
onus
to prove its case beyond reasonable doubt. The fact
that the appellant chose not to testify did not
per se
mean
that the state had discharged its
onus
. It did not
follow therefore that because the evidence of the state stood
uncontradicted, the case against the appellant
had been proved:
“
Similarly,
the circumstances that evidence is uncontradicted is no justification
for shutting one’s eyes to the fact, if it
be a fact, that it
is vague and contradictory to serve as proof of a question in
issue.”
See
Shenker
Brothers v Bester 1952(3) S A 664 [A.D.] at 570G
.
In
State v Frances 1991(1) SACR 198 A at
page 203 G
this is what Smallberger JA,
as he then was, had to say:
“
It
was therefore incumbent upon a trial Court to properly evaluate the
evidence of D in the light of its alleged deficiencies, and
the
criticisms voiced against it, in order to determine whether it
measured up with the standard required for its acceptability.
If it did not measure up to such standard, it would not avail the
state in the discharge of onus of proof upon it that the accused
no.
5 failed to testify. While an accused person’s failure to
testify may in appropriate circumstances be a factor
in deciding
whether his guilt has been proved beyond all reasonable doubt, this
is only so where the state has prima facie discharged
the onus upon
it. A failure to testify will not remedy a deficiency in the
state case such as the absence of apparently credible
implication of
the accused.”
(
S
v Masia 1962(2) SA 51A at 546 E-F
).
[19]
There is incontrovertible evidence thought that the conduct of the
appellant on that particular evening amounted to an attempt
to rape
the complainant. The complainant has testified about it and Mr.
Moeng has also conceded that on the facts of this
case, if anything,
the appellant should have been convicted of attempted rape. In
the light of the aforegoing, we are unanimous
in our view that good
grounds exist for this Court to interfere with the sentence imposed
by the Court
a quo
on the appellant.
[20]
In the result we make the following order:
1.
The appeal against both conviction and sentence is upheld.
2.
The conviction of the appellant by the court a quo is hereby set
aside and in its place is substituted the following:
“
The
accused is found guilty of attempted rape.”
3.
The sentence imposed by the court a quo on the appellant is hereby
set aside and replaced with the following:
“
The
accused is sentenced to seven (7) years imprisonment.”
4.
The order of the court a quo in terms of
s 103
of the
Firearms
Control Act 60 of 2000
shall remain in place.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered
_______________________
E.
BERTELSMANN
JUDGE
OF THE HIGH COURT
Appearances
:
For
the appellant: Attorney S. Moeng
Counsel
for the respondent: Adv. L. Pienaar
Date
Heard: 2 March 2015
Date
of Judgment: 12 March 2015