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[2015] ZAFSHC 10
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Lucas v S (A207/2014) [2015] ZAFSHC 10 (5 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A207/2014
In
the Appeal of:
PATRIC
SELLO LUCAS
…....................................................................................
Appellant
and
THE
STATE
…......................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
MURRAY, AJ
JUDGMENT
BY:
RAMPAI, AJP
HEARD
ON:
8 DECEMBER 2014
DELIVERED
ON:
5 February 2015
[1
]
These were appeal proceedings. The appellant was found guilty
of rape. He was then sentenced to 15 years imprisonment.
He was aggrieved by both the conviction and the sentence. He
came to us with the leave of the trial court. The respondent
opposed the appeal on both fronts.
[2]
An incident took place at Theunissen one day during March 2013.
A teenage girl N[…] E[…] R[…] was
attacked in
the street and taken to a shack where she was sexually violated or
molested.
[3]
The incident gave rise to a charge of rape. The appellant was
arrested on 25 April 2014 in connection with the incident.
The
prosecution alleged that the appellant raped N[…] E[…]
R[…], a girl 16 years of age, at Theunissen on
20 March 2013
in contravention of section 13 of Sexual Offence and Related Matters
Act, Act No. 32/2007, read with section 92 (2)
of the Criminal
Procedure Act, Act No. 51 of 1977 and section 51(1) of the Criminal
Law Amendment Act, Act No. 105 of 1997 as well
as Part I, Schedule 2
thereof.
[4]
The appellant was tried in the Welkom Regional Court. His trial
commenced on 10 March 2014. He pleaded not guilty.
He was
legally represented. On 19 March 2014 he was convicted.
On the same day he was sentenced to 15 years imprisonment.
He
was aggrieved. On 15 August 2014 he was granted leave to
appeal.
[5]
The version of the state was narrated by two witnesses, namely: Ms
N[…] E[…] R[…], the complainant and
Ms N[…]
R[…], her cousin. The version of the complainant was
that she and her cousin were walking on foot in
the evening.
They were on their way home. She stayed with her maternal
grandmother. The two girls were from Tshepong
Mine in Welkom
where they had visited her father. The appellant surprised them
at ±20:00. Because she refused
to go with him, he
brandished a panga, hurled abusive insults at her, pounced on her,
restrained her and took her to his shack.
Her cousin ran away
from the scene when the appellant tightly held her. His shack
was ±100 metre from the scene of
the confrontation.
[6]
There he undressed her and raped her. Initially he penetrated
vaginally but later anally as well. When she screamed
he once
again hurled vulgar language at her and threatened to chop her with a
panga. She started bleeding from her vagina
in the process.
When he was done, he walked with her but turned back at a certain
shop.
[7]
She walked home and slept. She told nobody about the incident
at home, at school or at Virginia Hospital. She was
afraid to
tell. She first reported the rape incident to Sr Tlatsi of
Lusaka Clinic. The nurse called the police.
She later
made a statement to the police. Her grandmother accompanied her
to the police for that purpose. She became
so ill that she was
taken to Virginia Hospital by an ambulance a day after the incident.
It would appear that the police
took her to Bongani Hospital on 26
April 2013 where Sr M T Ceba, a forensic nurse completed Form J88
medical report. The
incident took place on 13 March 2013 and
not on 20 March 2013. Her cousin corroborated her to a certain
extent.
[8]
The version of the defence was narrated by the appellant alone.
He denied that he was involved in the incident on 13 March
2013.
He admitted, however, that he was at Theunissen on that day. He
denied raping the complainant on 20 March 2013.
He asserted
that he was not at Theunissen on 20 March 2013 but at Winburg where,
on that day, he was looking for a job.
[9]
The trial magistrate found that the complainant properly identified
the appellant as her rapist or as the perpetrator.
On behalf of
the appellant the finding was supported. It was contended by Ms
Liebenberg that there was sufficiently reliable
evidence concerning
the identification of the appellant contrary to the contention of the
appellant.
[10]
The issue in the case revolved around the identity of the
perpetrator. The reliability and not the credibility of the
prosecutor’s witnesses was questioned and criticised.
[11]
As regards conviction, the ground of the appeal was that the
complainant could not have made correct observation of the
perpetrator
because her identification of the perpetrator was
adversely impaired by the prevailing darkness.
[12]
The identificative evidence of a witness is approached by the courts
with caution. Such caution is exercised by vigilant
testing of
the reliability features of the identifying witness’
observation -
S v Mthetwa
1972 (3) SA 766
(A) at
768A-C. The trial court was mindful and alive to the
principle. In my view the trial court cautiously treated
the
complainant’s evidence of identification. The trial court
correctly found that the evidence of the cousin did not
make any
significant contribution as far as the issue of the perpetrator’s
identify was concerned.
[13]
The complainant’s evidence of identification contained the
following favourable features which enhanced the reliability
of her
observations:
she
had prior knowledge of the appellant;
she
knew him by his nickname, Enzo;
she
knew he had a gold plated tooth;
she
knew precisely where he stayed;
she
recognised him when he approached her and her cousin on the scene in
the street;
the
initial scene of the confrontation was not completely dark because
some lights from a shop in the vicinity slightly or dimly
illuminated the scene;
she
walked with him for a distance of 100 metre from there to the shack;
there
was a burning electric lamp inside the appellant’s shack;
the
appellant stopped raping her as result of the blood he saw oozing
from her vagina because the shack was well lit;
she
spent some appreciable length of time with him in his well-lit
shack;
she
again walked with him for some time from his shack to the point near
the shop where the lights were burning;
his
face was unmasked and his head hairless.
[14]
There were certain unfavourable features of the complainant’s
evidence of identification. The encounter took place
at night –
20:00. The street was not brightly illustrated. The
complainant did not report the incident at the
first available
opportunity. The trial magistrate properly dealt with this
aspect and the various factors which caused the
delay.
[15]
She was afraid that members of her family would scold her; that her
aunt would angrily confront the appellant; that she was
afraid the
appellant would have her killed and that she was uncertain as to how
to go about reporting such a degrading sexual incident.
Her
behaviour might have appeared strange at a first glance.
However, I hasten to point out that her cousin, who sensed danger
and
ran home, reported to no member of the family that the complainant
was in trouble and needed to be rescued. However she
reported
to no adult in the house. Later on the complainant behaved in a
similar manner. The similar conduct of the
two girls told a
story. I gained the impression that the complainant was a
motherless girl living in a totally dysfunctional
household where no
family support system of any sort existed. The trial magistrate
pointed out that no adverse inference
may be drawn from the
complainant’s delay or omission to make such a previous and
consistent statement – section 58
and section 59 of the Sexual
Offence and Related Act, Act no. 32 of 2007.
[16]
It was indeed so that the complainant could no longer remember how
the appellant was dressed. Her lack of recollection
was not a
crucial aspect. The fact of the matter was that she had prior
knowledge of the appellant. Similarly, nothing
significant
turned on her evidence that she knew the appellant by sight.
Her evidence to that effect was clearly an understatement.
The
undisputed evidence showed that the appellant was not a stranger to
her. She knew him a whole lot more than just by mere
sight.
[17]
The prosecutor failed to canvass the complainants’ evidence
concerning the actual date of the incident. During
cross-examination the complainant was adamant that the correct date
was 13 March 2013 and not 20 March 2013. The appellant
was not
thereby prejudiced. His alibi was opportunistic.
Moreover, it concerned an irrelevant date. As regards
the
crucial and relevant date, 13 March 2013, the evidence of the
appellant was hopelessly boiled down to a bare denial.
He gave
no explanation whatsoever of his movements at Theunissen that day.
Some snippets of his alibi surfaced after the
complainant had pointed
out that the date mentioned in the charge sheet was incorrect.
He opportunistically tried to take
advantage of the loophole or the
discrepancy in the prosecution case.
Rex v Hepworth
1928 AD 265
on 277.
[18]
When the favourable features and the unfavourable features of the
complainant’s evidence of identity are compared, it
becomes
clear and obvious that she had ample opportunity to make reliable
observations notwithstanding some unfavourable features,
and some
contradictions by her cousin. Her identificative evidence was
substantially reliable, in my view.
[19]
The trial magistrate was also aware that the complainant was a child
witness; that she was also a single witness and that the
court had to
treat her evidence with caution. In my view the trial court
cautiously considered the complainant’s evidence
and correctly
found that it was satisfactory in all material respects –
R
v Mokoena
1932 OPD 79.
[20]
When the evidence as a whole was considered, it became apparent that
the evidence tendered by the state against the appellant
was so
strong that the appellant’s version could not be reasonably
true. The trial court was correct in rejecting it
as beyond
reasonable doubt false.
[21]
In my view the trial magistrate committed no material misdirection.
I would, therefore, dismiss the appeal as regards
conviction.
However, the verdict that the appellant was guilty as charged was
incorrect. The appellant was charged
in terms of section
51(1)(a) of Act No. 105 of 1977 read with Part I of Schedule 2 –
rape(a)(i) category. The mere
fact that the appellant sexually
penetrated the complainant vaginally as well as anally did not
justify the conclusion that he
raped her more than once. There
was, on the appellant’s mind, a single intent at the same place
and time. See
S v Blaauw
1999 (2) SACR 295
(W) at
300a-b per Borchers J. The trial court materially erred in this
regard and the appellant should therefore be convicted
of rape in
terms of Section 51(2)(b)(i) of Act No. 105 of 1977 read with Part
III of Schedule 2. That carries with it a prescribed
minimum
sentence of 10 years for a first offender.
[22]
As regards sentence, the principle is that a court with appellate
jurisdiction can interfere with the sentence imposed by the
trial
court if it is convinced that the trial court committed a material
misdirection or that the sentence is shockingly inappropriate
–
S v Pieters
1987 (3) SA 717
(A).
[23]
The trial magistrate found that the appellant committed an offence as
envisaged in terms of section 51(1)(a), Act No 105 of
1977 read with
Part I, Schedule 2 in that he raped the complainant more than once –
see rape category (a)(i). The prescribed
minimum sentence for
such an offence is life imprisonment. Although the evidence
showed that the appellant vaginally and
anally penetrated the
complainant his two forms of penetrations through different bodily
apertures, constituted one and not two
sexual acts of rape. The
two acts of rape were, in my view, erroneously dichotomised in the
verdict. The two were inextricably
linked not only in terms of
place and time but also by way of a single and dominant criminal
intent.
[24]
On account of such material misdirection and huge penal disparity
between the prescribed minimum sentence in terms of section
51(1) and
section 51(2) appellate interference is also justified as regards
sentence. In the case of the former the prescribed
minimum
sentence is life imprisonment – (vide Part I) whereas in the
case of the latter the prescribed minimum sentence is
imprisonment
for a period of 10 years - (vide Part III). We are, therefore,
at large to consider the question of sentence
afresh.
[25]
In sentencing the appellant to 15 years instead of life imprisonment
the trial magistrate took into account the following personal
circumstances of the appellant as mitigating factors:
he
was 24 years of age at the time he was sentenced but 23 years of age
when he committed the crime;
he
was not married but had two dependent minor children;
he
did casual jobs and earned R1 400 per month on average;
he
maintained his children and his terminally ill mother;
he
stopped raping the victim when he realised she was bleeding;
S
v SMM
2013
(2) SACR 292
(SCA);
he
was incarcerated for 11 months from 25 April 2013;
S
v Stephen & Another
1994 (2) SACR 163
(W)
at 168e-g;
S
v Raboko
2010
(1) SACR 310
(O) at 318j;
he
was a first offender.
[26]
In sentencing the appellant the trial court also took into account
the following circumstances as aggravating factors;
the
gravity of the crime of rape;
the
appellant aggressively pounced upon the complainant, abused her,
threatened her with a panga, and genitally injured her;
the
complainant profusely bled for a long time;
she
became very ill as a result of the rape;
she
suffered severe emotional trauma and depression;
she
was a virgin and a teenager.
[27]
In my view there were no substantially compelling circumstances to
warrant a reduction of the prescribed minimum sentence of
10 years’
imprisonment. The aggravating factors so overshadowed the
mitigating factors that the imposition of the prescribed
minimum
sentence would, in my view, be too lenient and disproportionate to
the gravity of the crime and the interest of the community.
I
am, therefore, not persuaded that there is much room to exercise
appellate interference as regards the actual 15 year sentence
imposed.
[28]
Notwithstanding some favourable aspects of the appellant’s
profile as an individual, the fact that he audaciously acted
like a
predator and penetrated a child in a reprehensible manner is a
strongly aggravating factor. The repercussions of his
sexual
violation of the child have caused her to endure a great deal of
pain. She agonises about the adverse impact thereof
on her
future health. When men take sexual advantage of vulnerable
children, they must expect that they will be retributively
punished.
[29]
Accordingly, I make the following order:
29.1
The appeal fails
in toto
;
29.2
The conviction of the appellant on a charge of rape (a)(i) as
envisaged in Part I of Schedule 2 is set aside. It is
substituted with a conviction on a charge of rape as envisaged in
Part III of Schedule 2 to Act No. 105 of 1977.
29.3
The sentence of imprisonment for 15 years is confirmed.
__________________
M.
H. RAMPAI, AJP
I
concur.
_______________
H.
MURRAY, AJ
On
behalf of the appellant: Adv. P. van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of the respondent: Adv. E. Liebenberg
Instructed
by:
The
Director: Public Prosecutions
Bloemfontein