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[2015] ZAGPPHC 534
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Van Vuuren v S (A803/2013) [2015] ZAGPPHC 534 (11 June 2015)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH
COURT OF
SOUTH
AFRICA
(GAUTENG
DIVISION,
P
R
ETORIA)
Case
No: A803/201 3
In the matter between:
JOHANNES
JACOBUS JANSEN V
AN VUUR
EN
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOHLAMONY
ANE AJ:
[
I] This is an appeal by the Appellant against his conviction and
sentence of five (5) years ' imprisonment imposed by the
Regional Court Magistrate sitting in Pretoria on 22 June 201 2. The
Appellant was convicted of rape in contravention of section
3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Ac t, no
32 of 2007. Section 51 and Schedule 2 of the Criminal
Law Amendment
Act, no l05 of 1997 was applicable.
[2]
Leave to appeal against both conviction and sentence was granted
on 20 September 2012 by the Court
a quo.
The Court
u quo
extended the Appellant's bail pending the outcome of this
appeal.
[3]
Although this Court was faced with a reconstructed record which was
not certified as correct and true by both the State and
the defence
counsel, this Court, on the view it had taken of the matter, decided
to proceed to finalise the appeal in the interests
of justice.
SALIENT
FACTS:
[4]
On 23 April 2010, a young lady aged […..] years, L. S.
("L.")
was allegedly raped by the Appellant. L. had testified that she
was good [.....] with Appellant, whom she affectionately called Jaco.
They worked for the same employer at some stage. She trusted him and
poured out her sorrows to the Appellant, whom she trusted
implicitly.
She referred to the Appellant as
"one of
my
best [.....]
at
that
time”.
On the aforesaid dale, at about 9pm she
and the Appellant attended a
braai with some [.....]. They thereafter went to the
Appellant's apartment, where both of them went for a swim inside a
pool. L. later went for a shower. She thereafter put on what she
refers to as chef's pants and a long jacket with a zip belonging
to
the Appellant. After she took a shower, she went to the
Appellant ' s bedroom where she lay on his bed. The Appellant,
who
also took a shower after L. went to his bedroom, got into bed and
chatted with her. According to L., she eventually fell asleep
with
her back turned towards the Appellant.
[5]
When she woke up, L. says she could feel the Appellant's penis inside
her and could feel how the Appellant was moving inside
her. She
states that she could feel every movement.
[
6] It is L.' s version that she did not give the Appellant
consent to have sexual intercourse with her. According to her
she was
fully dressed when she fell asleep, but upon waking up her pants were
pulled down and her zip was undone.
[7]
The Appellant's testimony is that he and L. had taken one
"shot
of shooter"
(meaning strong alcohol) before going to the
braai that day. At the braai they had one bottle of wine and some
Vodka. A t
his home L. jumped into the swimming pool with her clothes
on. When inside the swimming pool she
took off her trousers, threw them at the Appellant
and teased the Appellant for being a
"sissi"
who was afraid to swim with her. He then put on his swimming costume
and jumped into the water. They only swam for a short period
as it
was cold. They then climbed out of the swimming pool and L., as
stated, went to shower. The Appellant waited for her to finish
showering and thereafter took a shower. When he finished, he found
her lying on his bed. She had taken one of his jackets from
the
wardrobe which she was wearing. The Appellant stated that he got into
the bed with her. They lay against each other and he
was
"rubbing
her
warm".
In other words they were,
according to him, warming each other. He was rubbing her all over her
legs, back and hugged her. The Appellant
then heard her crying and
asked her what was remiss as she was visibly upset. Her response was
she was missing Marco. Upon inquiring
who Marco was, L. indicated
that it was her ex-boyfriend. He asked her to turn around so that he
could cuddle her as he wanted
to comfort her. After a while both of
them fell asleep. He later woke up. He stated that he wanted to see
whether she wanted to
take their [.....]hip a step further as he had
earlier that week intimated to L. that he wanted them to be more than
[.....]. He
said at that stage L. was awake as well. He says he was
aware that she was awake whilst he was moving his body against hers.
He
then rubbed her on her back with his
"
private part
',
with a view to see if she would react. He then felt her pushing
back into him with her body.
[8]
The Appellant then proceeded to touch her, rubbed her leg, her back,
'feeling
her
up "
and moving
his body against her. She then started moving her body against his
private parts but still wearing her clothes which
she had slept in.
As he continued rubbing her, the Appellant stated that she was
enjoying it, as she was moving rhythmically with
him. To take it a
bit further, the Appellant pulled her pants slightly down and
according to him he started
"playing"
with her
genitals. He touched her genitals which he felt were wet and rubbed
them. It is the Appellant' s contention that at all
times whilst he
was conducting foreplay, L. enjoyed it. When the Appellant rubbed
his private parts against hers, she then
exclaimed
"
\
.soen
my"
.
At some stage he put his hand in her
hand which she squeezed while he was playing
with her.
He then started kissing her on her
neck moving up to her mouth. She then asked what the Appellant was
doing to which
he replied that he was kissing her. He then stopped
kissing her. She lay for a while and then got up. She then told the
Appellant
that she was of the opinion that he had raped her,
which the Appellant denied. The Appellant then climbed
out
of the bed and sat on the floor. He took her home at about 05h00
the next morning.
[9]
It was Saturday night when the alleged rape took place.
Susan Anna Carter
("Carter ")
is a woman
in whose home L. lived because she was chased away from her home by
her stepfather. On Sunday morning, 24 April 2010,
L. informed Carter
about the incident. She told Carter that she thought she had been
raped and that she had to talk to Jaco (the
Appellant) because she
was asleep whilst the alleged rape had taken place and
did not know what had happened.
According to Carter when
she was informed by L. about what had transpired, L. was emotional
and crying.
[l0]
Angelique Carter
("Angelique
"),
the daughter of Carter had been good […..] with both the
Appellant and L. Two week s prior to the incident, Angelique, L.
and
Appellant, together with Angelique' s fiancé, spent some
leisure time together as Angelique was celebrating
her
birthday, at a place called Klein Paradys near Brits, in the North
West Province. She testified that L. and the Appellant touched
each
other, played on the lawn, swam together and that L. lay with her
head on the Appellant 's tomach.
[ll]
L. denied any touching between her and the Appellant before the day
of the incident. She also denied that she and the Appellant
touched
and kissed each other just before she fell asleep on the day in
question. According to the Appellant on two previous
occasions
L. slept over at his home. On the first occasion, she had insisted
that the Appellant sleep in another room. On the second
occasion, L.
came to sleep in his room, when they shared his bed. It is the
Appellant ' s version that he had feelings for L. which
he had
expressed to her before the day in question.
[1
2] The Appellant denies penetrating her with his penis on the day in
question. He however, admits having touched, rubbed
and
played with her on the night in question. On the other hand. L.
denies having consented to sexual intercourse with the
Appellant.
ISSUE
TO BE DECIDED:
[1
3] The issue to be decided in this appeal is whether the
Appellant did sexually penetrate the complainant with his
penis
and if so, whether such penetration was consensual.
[l4]
The learned Magistrate correctly determined that L. was a single
witness whose evidence is required to be clear and satisfactory
in
all respects as provided for in section 208 of the Criminal Procedure
Act, no 51 of 1 977
("the
CPA”).
The learned Magistrate accepted the evidence of L. that on
the night in question, before she fell
asleep, there was no touching or
kissing. The learned Magistrate found
her
evidence, as fully described above, to be
satisfactory.
[1
5] The first report she made to Carter on Sunday morning is crucial
to the determination of whether she was raped or not. L.
told Carter
that she thought she was raped as she did not know what happened. In
my view, L., herself, was unsure as to whether
she had been raped or
not. It is humanly impossible not to feel the initial penetration but
only feel it when, according to her.
the Appellant was already
".
..
inside of
me"
.
According to L. she did not see the Appellant penetrating her.
She also reported the incident to Angelique the Sunday night after
the incident on the Saturday night. She gave Angelique a similar
version she gave to Angelique’s mother, Carter, i.e. she
did
not see the penetration, but
"...she felt him
inside
her"
.
L. could have been
imagining things that did not happen, because of hysteria,
inebriation or guilt. Schreiner JA in R v Rautenbach,
1949 (1) SA 135
( A ) at 1 43, summed up the position as follows:
"It
is
not
only
the
risk
of
conscious fabrication
that
must
be guarded
against; there is
a
lso the danger that a frightened woman,
especially
if
inclined
to hysteria,
may
imagine
than things have happened
which
did not
happen at all!
".
[16]
The Appellant's counsel submitted that it was impossible for the
Appellant to have penetrated
L. with his penis in the
position in which she lay whilst sleeping. I agree with this
submission. Counsel further submit ted that if the Appellant had
removed L.'s clothing she would have woken up. I also agree with
this
submission. It was further argued that throughout cross-examination
L. repeatedly retorted that she was unsure of what
had
taken place.
[17]
In my view, the totality of circumstances pertaining
to the Appellant and L., prior to the incident
should be
taken into account as they are relevant to what took
place on the day of
the incident.
Although L. stated in her evidence that
on the date in question it was only the
second time that
she had slept at the Appellant ' s home whereas the
Appellant stated
it was for the third time, what is
crucial is that she did sleep over at the Appellant ' s home prior to
the incident. She
stated that on previous occasions she slept over
because of the distance between where she lived and Appellant's home.
She wanted
to save fuel. I find it hard to accept that she slept over
to save fuel. Circumstances suggest that she was at ease in the
presence
of the Appellant and enjoyed his company. If she did
not, she would not enjoy alcoholic drinks with him, play around
with him and even sleep in his bed. It should also be
taken into consideration that the first time when
she slept over the Appellant did
not sleep in his own bed
as
he was courteous enough to let L.to sleep on her
own in his bed. L. was consequently appreciative of
his gentlemanly
behaviour.
[18]
In the result, I find that the learned Magistrate has erred and
misdirected herself in finding that L.' s evidence was
clear
and satisfactory in all material respects. She also misdirected
herself in rejecting the evidence of the Appellant
as not being
reasonably possibly true.
[19]
The version of the Appellant that at a certain stage L. insisted that
he kiss her remains uncontroverted. L.' s denial that
there was no
touching and kissing before she fell asleep does not
accord with the version of L.' s friend of three
or f our years,
Angelique. She had indicated that the Appellant and L. would drink
liquor together, swim together, touch each other
and play around on
the lawn. It is therefore highly incongruous for L.to deny that she
ever touched, kissed or held hands with
the Appellant. Sight should
not be lost of the f act that the doctor who examined L. stated that
there were no injuries found
on L.' s genitalia.
APPLICATION
TO
LEAD
FURTHER
EVIDENCE:
[20]
During the hearing of the application for leave to appeal, tile
Appellant ' s legal representative also made an application
to
lead further evidence in accordance
with the provisions
of section
309B of the CPA. I agree with the Respondent ' s counsel that it
appears that the Court
a
quo
accepted
the further evidence tendered by the Appellant. The
complainant was not afforded an opportunity of responding
to the
further evidence as required by subsection 4 (c) of section 309B of
the CPA. She suggested that the matter be referred back
to the Court
a quo
to give the complainant an opportunity of
responding to the further evidence by the Appellant. To my mind, the
matter cannot be
referred back as that would not best serve the
interests of justice. This Court is in a position to finalise the
appeal without
reference to the further evidence tendered by the
Appellant. It should also be noted that it will be a travesty of
justice if this
matter is further delayed by referring it back as on
28 March 2014, the appeal was removed from the roll
because the
record was incomplete.
CONCLUSION:
[21]
On his own version, the Appellant had put one of his fingers into the
genital organs of L. and states that she was enjoying
it. In terms of
section 3 of the Criminal Law (Sexual Offences and Regulated Matters)
Amendment Act, no 32 of 2007,
the Appellant ' s
conduct qualifies as a sexual penetration. It could amount to rape if
there were no consent from L.. In
my view, L. consented to the sexual
penetration by the Appellant ' s finger, during
foreplay. Counsel for the
Respondent conceded, correctly in my
view, that the conviction cannot be sustained. I am unable to hold
that the Appellant had
penetrated her with his penis. In the result,
the State did not prove the alleged rape beyond reasonable doubt. As
a consequence,
the conviction is set aside.
[22]
For the aforegoing reasons, the following order is proposed:
22. l
The appeal against both conviction andsentence succeeds.
22.2 The
conviction of rape and sentence of five years imprisonment ore set
aside.
____________________
MD MOHLAMONYANE
[Acting Judge of the High
Court of
South Africa,
Gauteng Division
Pretoria]
I
agree.
_________________________
M
M JANSEN
[Judge
of the High Court of
South
Africa, Gauteng Division, Pretoria]
For
the Appellant
Advocate M Va
n Wyngaard
Instructed
by
Legal Aid South Africa
For
the Respondent
Advocate E Leonard SCfriend