About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 586
|
|
Jansen Van Vuuren v S (A803/2013) [2015] ZAGPPHC 586 (11 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
P
R
ETORIA)
Case
No: A803/2013
DELETE WHICHEVER
IS NOT APPLICABLE
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST
TO OTHER JUDGES:
YES
/NO
(3) REVISED
√
_________________
…..
____________________
DATE
.............................
SIGNATURE
In
the matter between:
JOHANNES
JACOBUS JANSEN VAN
VUUREN
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOHLAMONYANE
AJ:
[1]
This is an appeal
by
the
Appellant
against
his
conviction and sentence
of
five
(5)
years
’
imprisonment
imposed
by the
R
egional
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 Matter
s
)
Amendment
Act,
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
a
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
friends
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
tru
s
ted
implicitly.
She
referred
to
the
Appellant
as
"one
of
my
best
friends
at
that
time".
On
the
aforesaid
date, at about 9pm she and the Appellant attended a braai
with
some
friends.
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,
g
o
t
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.
At
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
sho
r
t
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
"rubhing
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
c
omfort
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
friendship
a
step fu
r
ther
as he had earlier that week intimated to
L.
that
he
wanted
them
to
be
more than
friends.
He
said
a
t
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
“so
en
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.
S.
A. C.
("C.")
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
C.
about
the
incident.
She
told C. 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 C.
when
she
was
informed
by
L.
about
what
had
transpired,
L.
was
emotional
and
crying.
[l0]
A.
C.
("A."),
the
daughter
of
C.
had
been
good
friends
with
both
the
Appellant
and
L..
Two
weeks
prior
to
the
incident,
A.,
L.
and
Appellant,
together
with A.’s
fianc
é
,
spent some leisure time
together
as
A.
was
celebrating
her
birthday,
at
a
pla
c
e
called
[…]
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
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.
[12]
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:
[13]
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
sati
s
factory
in
all
respe
c
ts
as
provided
for
in
section
208
of
the
Criminal
Procedure
Act,
no
51
of
1977
("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.
[15]
The
first
report
she
made
to
C.
on
Sunday
morning
is
crucial
to
the
determination
of
whether
she
was
raped
or
not.
L.
told
C.
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,
a
c
cording
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
A.
the
Sunday
night
after
the
incident
on the Saturday
night.
She
gave A.
a
similar
version
she
gave
to
A.’s
mother,
C.,
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 143, 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
that
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
fu
r
ther
submitted that if the
Appellant
had
removed
L.’s
clothing
she
would
have
woken
up.
I also agree
with
this
submission.
It
was
fu
r
ther
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
c
onsideration
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
four
years,
A..
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
coun
s
el
that
it appears that the Court
a
quo
accepted
the further
evidence
tendered
by
the
Appellant.
The complainant was
n
o
t
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
fu
r
ther
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
fu
r
ther
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
c
ould
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 and sentence succeeds.
22.2
The conviction of rape and sentence of five year imprisonment are 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 Leona
rd
SC