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[2015] ZAGPPHC 834
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Mahlangu v S (A118/15) [2015] ZAGPPHC 834 (31 July 2015)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: A118/15
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
31/7/2015
In
the matter between:
THEMBINKOSI
MAHLANGU
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tuchten
J
:
1.
The appellant, was charged in a regional court with the crime of
rape. It was alleged in evidence that during the early morning
of 24
March 2014, in his room in Daveyton, he had vaginal intercourse with
the complainant three times against her will. Because
there was more
than one act of sexual penetration alleged, the minimum sentence
applicable was life imprisonment, unless substantial
and compelling
circumstances were found.
2.
The appellant pleaded not guilty to the charge. His defence was that
he had consensual sex with the complainant twice during
the period in
question. Despite his plea, the appellant was found guilty as
charged. The court below found no substantial and compelling
circumstances and imposed the mandatary sentence of life
imprisonment.
3.
A person in the position of the appellant has an automatic right of
appeal and, exercising that right, the appellant appeals
against both
conviction and sentence.
4.
The complainant was 19 years old at the time. The regional
magistrate, who of course had ample opportunity to observe the
complainant
in the witness box, described her in her judgment as
"beautiful" and a "lovely young lady". The
regional magistrate
described the appellant, who was 34 at the time,
as an "average individual of 34, heading for middle age".
5.
At the time of the incidents in issue, the complainant was in a
relationship with a young man called T M. On the evening in question,
the complainant and M were together at a tavern identified in the
evidence as D's Tavern. The complainant did not know the name
of the
tavern. The complainant and M, who was called as a witness on behalf
of the appellant, gave differing accounts of how they
came to be at
D's Tavern together. The complainant said that they had earlier that
evening met at a certain street corner in Daveyton
by arrangement and
then been at M' s home until, at about 01hOO in the morning, M
expressed a desire to buy some beers and asked
the complainant to go
with him to a tavern for that purpose. The complainant said that M
told her to wait outside for him, which
she did. After about an hour,
when M had not left the tavern. the complainant went inside, she
said, to look for him. She was told
that he had already left.
6.
M said that they had not been to his home that evening but had come
to D's Tavern after spending some time at Mojo's Tavern.
He said that
he had indeed left the complainant outside the tavern but only for a
short time, while he bought beer, after which
they stood outside for
about an hour while he drank his beer. Then, M said, he left her
outside the tavern while he went home to
give the house keys to the
person with whom he was staying, after which he returned to the
tavern to find that the complainant
was no longer there. He was only
away, M said, for about ten minutes in all.
7.
The court below found the complainant's version more probable and I
agree. The complainant was unlikely to have attempted to
find her
way, on foot, at that time of night and alone to a place where she
could safely spend the night after waiting only ten
minutes for her
boyfriend.
8.
The complainant testified that when she found herself alone at D's
Tavern, she telephoned her older sister, to whom I shall refer
as B.
B's evidence was not challenged in cross examination and was
accepted by the regional magistrate who found B to be a
credible and
reliable witness. During the period from about 01h00 to about 03h00,
there were four telephone conversations between
the complainant and
B. The complainant, according to the evidence of both the complainant
and B, was struggling to get her bearings
and find her way from D's
Tavern to her sister's home, on foot. This was made more difficult
for the complainant because of the
lack of street signs. At about
03h00, B telephoned the complainant to find out where she was. The
complainant told her she was
at the Sibonelo passage and was on her
way to her sister. About 15 minutes later, B telephoned her again but
the complainant did
not answer the call. B did not hear from the
complainant again until she arrived at B's home at about 06h30 in
circumstances I
shall describe below.
9.
What had happened after the telephone call between the complainant
and B at about 03h00 was that the complainant had met up with
the
appellant.
10.
The complainant testified that the appellant had accosted her in a
passage while she was trying to find her sister's home, demanded
that
she go with him, slapped her in the face when she resisted and
grabbed her T shirt. In the course of the struggle, the complainant
said, her T shirt was torn. Then, she said, she decided to go with
the complainant because she feared being further assaulted.
Although
a police vehicle passed them while they were on their way to the
appellant's home and she tried to signal to the police
that she
needed help, she was not able to do so.
11.
Counsel for the appellant rightly drew attention to the fact that the
complainant did not succeed in alerting the police in
the vehicle to
her alleged predicament. But I think one must remember that she had
already been assaulted by the appellant, on
her version, and could
reasonably have feared, as she said she did, that if she did more to
attract the attention of the police
and if the police did not stop,
the appellant would once more punish her with violence for her
attempt to escape him.
12.
Once in the complainant's home, which was a back yard shack,
according to the complainant, the appellant turned the volume on
the
radio up high. This and the previous violence shown toward her
persuaded the complainant that resistance was both futile and
dangerous and she submitted to the appellant who forced her to
undress and raped her three times within about an hour and a half
to
two hours.
13.
The complainant asked the appellant to use a condom. The appellant
said he did not have condoms and produced or referred to
a document
which he said demonstrated he was HIV negative.
14.
The appellant said that he had observed the complainant while she was
drinking an alcoholic cider drink in D's Tavern and dancing.
The
appellant actually identified the drink as a Flying Fish. This cannot
be true as it was proved beyond a reasonable doubt that
the
complainant did not drink alcohol at that time. The appellant gave an
elaborate account of how he found her outside the tavern
in the
company of some men. He said he hugged her (although he had only seen
her once before, had never spoken to her and did not
know her name)
and asked her if she felt safe in their company and offered to
accompany her home, to which she agreed, saying she
lived in Jhumba
Street. When they were actually in Jhumba Street, the appellant
testified, the complainant agreed to go with the
appellant rather
than go home.
15.
This version was put to the complainant. The complainant testified
that she lived in Extension 6, where there were no street
names, and
her sister lived in Kwalo. The complainant denied that she lived in
Jhumba Street and her denial was not challenged.
16.
The version of the appellant would therefore have it that the
complainant on the spur of the moment, either at or very near
her
home, decided to go with and have sexual relations with this much
older man whom she had never met before. Viewed in context,
the
appellant' s version is so absurd that it cannot be reasonably
possibly true.
17.
The complainant testified that after the first two acts of sexual
intercourse, the appellant fell asleep and slept for about
an hour.
When he awoke he once again had sexual intercourse with her.
18.
The appellant testified that this attractive looking, much younger
woman offered him her telephone number but he refused to
take it. The
reason he gave in the witness box was that she smelt bad. He said
that although they had exchanged names,
he could
not remember the complainant' s name. The regional magistrate rightly
rejected this evidence as not reasonably possibly
true, observing
that the medical examination performed on the complainant that same
day and recorded in the form J88 made no mention
of any such smell
(although the regional magistrate noted, there is usually such a
recordal if any untoward odour is noted) and
described the
complainant as neatly dressed. The complainant testified that she was
advised not to bath until after the examination
so as not to destroy
any evidence and in fact underwent the examination unbathed.
19.
The evidence of the complainant was that she had taken note of the
appellant's admitted address, […] Street, on her cellphone
and
had transferred this data to her statement to the police. She would
hardly have done so if the sex had been consensual and
the appellant
had made it clear to her that he did not want to see her again. The
appellant suggested that she laid the charge
because he had rejected
her. The regional magistrate rejected this improbable hypothesis as
not reasonably possibly correct and
in my view she did so correctly.
20.
B testified that the complainant was crying when the complainant came
to her home at about 6h30 that morning. B also corroborated
the
complainant's unchallenged evidence that the complainant's T shirt
was torn when the complainant arrived at her home. I consider
this
evidence to be significant corroboration for the complainant's
version. There is no way that the appellant's version can accommodate
this evidence and the appellant did not attempt to explain how the T
shirt could have been torn.
21.
Finally, on the facts, the appellant testified that at the
complainant's request, he had a telephone conversation with M during
the early hours of the morning and told M (to frighten him) that he
was a police officer investigating a charge of rape laid by
the
complainant. This request was said to have been made during an
interval between acts of sexual intercourse. The complainant
denied
having made any such request or that there had been any such
telephone conversation. M, who was called on behalf of the
appellant,
did not mention any such telephone conversation and was not asked
about the topic during his evidence. The appellant's
version is this
regard can safely be rejected as false.
22.
The regional magistrate found the complainant to be a credible
witness and rejected the version of the appellant where it conflicted
with that of the complainant as false. I find no ground to differ
from that finding. The appeal against conviction must therefore
fail.
23.
As I have said, the court below found no substantial and compelling
circumstances. Because there were multiple rapes, the appellant
faced
a minimum sentence under s 51(1) read with Schedule 2 of the
Criminal
Law Amendment Act, 105 of 1997
unless the court below found
substantial and compelling circumstances why such a sentence should
not be imposed. It is beyond dispute
that this was a serious and
disgusting offence. A defenceless young woman, abandoned by her
boyfriend, was violated several times
by the appellant. The court
below rightly found aggravating the decision of the appellant to rape
her three times without a condom
and ejaculate in her and rightly
described the conduct of the appellant as callous and demonstrating
no remorse.
24.
But I cannot agree that there were no substantial and compelling
circumstances. I find such circumstances in the following,
taken
together: the appellant was a first offender and the complainant
suffered no physical injuries. By this last I do not mean
to play
down that the emotional suffering to which the regional magistrate
referred in her judgment and which was demonstrated
on the record.
The complainant must have suffered deeply as a result of her ordeal.
What I mean is that this case does not fall
into what the SCA in S
v
Abrahams
2002 1 SACR implied was the category of rape for
which the ultimate sentence of life imprisonment should be imposed.
25.
In addition, I get the impression that the regional magistrate gave
undue weight in the sentencing process to the appellant's
scandalous
evidence in relation to the complainant' s alleged body odour. The
regional magistrate observed as follows:
[The
complainant] is well looked after and I suppose her body odour can be
that anybody can suffer from, but I almost find it offensive
that you
now eventually came to the conclusion that explain your irrational
behaviour for not taking her contact details, that
it should be
explained away by suggesting that she have some offensive bodily
odour which you only noticed the next morning. I
feel it so unfair.
26.
This is in my view a border line case in relation to substantial and
compelling circumstances but I propose to give the appellant
the
benefit of the doubt.
27.
In my view, a sentence of 26 years imprisonment (antedated to 14
August 2014, the date upon which the appellant was sentenced)
would
be appropriate.
28.
I make the following order:
1. The appeal against
conviction is dismissed and the conviction is confirmed;
2. The appeal against
sentence is upheld. The sentence imposed by the court below is set
aside and is substituted by a sentence
of imprisonment for 26 years.
3. The sentence of 26
years imprisonment imposed by this court is antedated to 14 August
2014.
_______________________
NB
Tuchten
Judge
of the High Court
31
July 2015
_______________________
MA
Makume
Judge
of the High Court
31
July 2015