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[2015] ZANCHC 13
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S v Mathibe (K/S 13/15) [2015] ZANCHC 13 (15 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBELEY)
Case No: K/S 13/15
DATE: 15 MAY 2015
In the matter between:
THE STATE
AND
IVAN
MATHIBE
.....................................................................................................................
ACCUSED
JUDGMENT
PAKATI J
[1] The accused, Mr Ivan Mathibe, is
arraigned on five charges. The first charge, theft, was withdrawn at
the inceptive of the trial.
In Count 2 he is charged with kidnapping.
In Counts 3 and 4 he is alleged to have committed rape in
contravention of s 3 read with
secs 1
,
55
,
56
,
56A
and
57
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32
of 2007
, and further read with secs 256 and 261 of the Criminal
Procedure Act, 51 of 1977 (the CPA), as well as s 51 of the Minimum
Sentences
Act, 105 of 1997. In Count 5 he faces a charge of murder.
The incidents are alleged to have occurred on 29 November 2014 at or
near Galeshewe, Kimberley.
[2] The accused, a 30 year old male, is
accused of having kidnapped the deceased, F………
D……. B………,
a five year old (born
on 30 September 2009), raped and murdered her. He is represented by
Mr P Fourie on the instructions of Legal
Aid South Africa, Kimberley.
He pleaded guilty to Counts 2, 3 and 5 and not guilty to Count 4 and
denied raping the deceased vaginally.
A statement (Exhibit “A”)
in terms of s 112 (2) of the CPA reads as follows:
“I the undersigned, Ivan Mathibe,
do hereby declare as follows:
1. I am the accused in this matter.
2. I know and understand the charges
against me and plead guilty to charges 2, 3 and 5 without being
unduly influenced to do so.
3. My legal representative has
explained the consequences of section 51 of Act, 105 of 1997, to me
namely that charges 3 and 5 carry
a prescribed minimum sentence of
life imprisonment unless the court finds the existence of compelling
and substantial circumstances
which may persuade the court to deviate
from the prescribed minimum sentence. I have considered all this
information but still
decide to plead guilty.
4. I make the following admissions:
4.1 I admit the identity of the
deceased as that of F…… D………. B…….
4.2 I admit that the body of the
deceased did not sustain any further injuries from the time that the
body was found on the scene
of crime until the time that a
medico-legal autopsy was performed on the body of the deceased.
4.3 I admit that Dr Lemainé
Fouché conducted [the] medico-legal autopsy on the body of the
deceased and compiled [the]
post-mortem report and I admit the
contents of the report as true and correct.
4.4 I admit that the cause of death is
a head injury.
4.5 I admit that the deceased was 5
years old at the time of her death.
5. The facts [to] which I plead guilty
are the following:
5.1 I admit that on 29 November 2014 I
was at Galeshewe in the district of Kimberley.
5.2 I was at the home of Mr Solomon
M…….. who is the father of the deceased.
5.3 I sat and drank beer with Mr M………..
I also smoked tik that day.
5.4 The deceased was also present but
she played outside the house.
5.5 I decided to go home and got up
from where I was seated and left the house. When I got outside I
noticed the deceased playing.
5.6 I took her by the hand and walked
down the street.
5.7 Whilst walking down the street I
decided to rape the deceased. I walked with the deceased to the veld
at Witdam and took her
behind a bush.
5.8 I instructed her to undress which
she did and I then ordered her to lie down on her stomach on the
ground.
5.9 I then pulled my pants down and got
on top of the deceased and forced my penis into her anus and raped
her. When I raped her
in her anus my penis slipped out of the anus
and touched the vagina of the deceased and in the process might have
penetrated her
vagina.
5.10 After I [had] raped the deceased I
decided to let her go home but immediately realised that I
was going to get into
trouble if the deceased told her parents what I
have done to her.
5.11 I then decided to kill the
deceased and picked up a stone and threw it to the head of the
deceased. The stone hit the head
of the deceased and she immediately
lay still on the ground.
6. I admit that I had no permission to
remove the deceased from the care of her parents and that I am guilty
of kidnapping.
7. I also admit that I had no
permission to perform an act of sexual penetration on the deceased
and that she by law could not consent
to an act of sexual penetration
and that I am guilty of rape.
8. I admit that I had no right or
reason to kill the deceased and that I am guilty of murder.
9. I admit that I knew that my acts
were wrong and that I can be punished for it by a court of law.
10. I admit that although I consumed
alcohol and smoked tik I was not affected by it in such a way that I
did not know what I was
doing.
11. I have given my co-operation to the
Police since my arrest on 29 November 2014 and also made a full
confession of the events
to a magistrate.
12. I am sorry for what I have done and
thus plead guilty.”
[3] Dr Lemainé Fouché,
who performed the autopsy on the deceased, recorded the chief
post-mortem (Exh “B”)
findings as follows:
“The body of a black female child
with abrasions and lacerations on the head, with a depressed fracture
of the right tempero-parietal
bones, as well as a shattered hinge
fracture through the middle cranial fossae. The brain is swollen with
flattening of the gyri.
There are lesions around the urethral opening
and labial minora. There is a fissure in the ano-rectal junction
stretching into
the rectum as a linear erythematous lesion. No
sphincter present”
[4] She further recorded the injuries
in the genital organs as follows:
“There are erythematous changes
around the urethral opening. There are small fissures present on both
sides of the urethral
opening. There is a small fissure, 4mm long in
the 15:00 position on the left labia minora. There are small tears in
the hymen,
2mm long in the 18:00 and 19:00 positions. There is a
small haemorrhage, 2mm in diameter in the right labia minora. A
perineal
dissection revealed the following injuries to the ano-rectal
area: a deep fissure, 2cm x 4mm in the 18:00 position in the anus,
stretching into the rectum for 2 cm continuing further inwards as a
linear erythematous lesion. There is a ring erythematous change
approximately 5mm wide on the inside of the anal opening. No
sphincter present. These lesions are consistent with anal
penetration.”
[5] According to Dr Fouché
erythematous change means when an organ looks red and swollen. The
injuries were in the perineal
area and not inside the vagina. She
explained the perineal dissection as the removal of skin tissue
around the urethral opening,
the vagina as well as the anus. This
enabled her to have a clear picture of the internal injuries. She
explained that “no
sphincter present” means that the anal
opening was wide and was dysfunctional whereas normally there would
be a slack. She
testified that the injuries in the anus were serious
and had a fissure (a long narrow crack) which should not be there in
a toddler.
[6] Dr Fouché could not tell
whether the deceased was first penetrated vaginally or anally. She
did not rule out a possibility
that the accused’s penis could
have slipped out of the anus and injured the vagina. She also did not
exclude another possibility
that there could have been an attempt to
penetrate the vagina. She testified that there were small tears in
the hymen and had there
been full penetration there would have been
serious and deeper injuries to the hymen.
[7] Elaborating on her post-mortem
findings Dr Fouché recorded the following injuries to the head
and neck:
“
HEAD AND NECK
5. Skull:
An extensive under-skin haemorrhage
overlying the left parietal bone. There is a depressed skull
fracture, 5cm x 4cm of the right
tempero-parietal bones. There is a
shattered hinge fracture through the middle cranial fossae. The dura
mater is intact.
6. Intracranial contents: Mass: 1134g.
The brain is macroscopically swollen with flattening of the gyri. No
herniation noted.”
The doctor concluded that the cause of
death was head injuries and that the injuries are consistent with
blunt trauma to the skull.
She opined that a stone fitted in well as
the assault weapon used.
That concluded the State case.
[8] The accused elected to exercise his
constitutional right to remain silent and closed his case.
[9] What remains for determination
relating to the sexual charges is whether the State proved two
separate acts of rape. Mr Fourie
requested the Court to acquit the
accused with regards to Count 4 and only convict him on Counts 2, 3
and 5 as pleaded.
[10] The only evidence before Court is
that of Dr Fouché and the accused’s statement in terms
of s 112 (2) of CPA.
Sadulker AJA in S v TLADI
2013 (2) SACR 287
(SCA) quoted with approval the case of S v BLAAUW
1999 (2) SACR 295
(W) at 300 a-d where Borchers J held:
“Mere and repeated acts of
penetration cannot without more, in my mind, be equated with repeated
and separate acts of rape.
A rapist who in the course of raping his
victim withdraws his penis, positions the victim’s body
differently and then again
penetrates her, will not, in my view, have
committed rape twice. This is what I believe occurred when the
accused became dissatisfied
with the position he had adopted when he
stood the complainant against a tree. By causing her to lie on the
ground and penetrating
her again after she had done so, the accused
was completing the act of rape he had commenced when they both stood
against the tree.
He was not committing another separate act of rape.
Each case must be determined on its own facts. As a general rule the
more closely
connected the separate acts of penetration are in terms
of time (ie the intervals between them) and place, the less likely a
court
will be to find that a series of separate rapes has occurred.
But where the accused has ejaculated and withdrawn his penis from
the
victim, if he again penetrates her thereafter, it should, in my view,
be inferred that he has formed the intent to rape her
again, even if
the second rape takes place soon after the first and at the same
place.”
[11] In this Division of the High Court
in XOLANI PLAATJIES v THE STATE (Unreported judgment delivered on 27
March 2015) Lacock
J (Kgomo JP concurring) had this to say on
multiple rapes (Translated):
“(6) Secondly, the issue that
falls for determination is whether the Magistrate was correct to
convict the appellant on three
separate acts of rape in that he poked
his finger on three occasions into the vagina of the complainant; and
whether the three
acts did not in reality constitute a single
intent.”
“6.2 In casu it is evident that
the appellant’s insertion of his finger in the complainant’s
vagina was interrupted
on two occasions when the complainant kicked
him away from her. After each brief interruption the appellant would
poke his finger
once more into the vagina of the complainant. This
situation repeated itself whilst the complainant was lying on her
bed. Having
regard to the short duration and the place where these
finger-penetrations occurred, it would, in my view, be convoluted or
artificial
to conclude that each of the three separate
finger-penetrations amount to an independent intention to rape. I am
of the view that
the brief interruptions are demonstrative of a
single intent to penetrate the complainant with his finger.
6.3 In the result the conviction of the
appellant on three separate counts of rape was unjustified and a
misdirection.”
Lacock J’s reasoning was based on
S v Blaauw (supra) which he quoted with approval. He also cited S v
Tladi (supra) which
the SCA endorsed.
[12] Counsel for the State, Ms J
Mabaso, conceded that no evidence was presented in the trial to
sustain a conviction on Count 4
(rape). The evidence by Dr Fouché
that she would have expected to find more serious and deeper injuries
in the hymen if
there was vaginal penetration is consistent with the
accused’s version. There is therefore no basis for a conviction
on Count
4. I am satisfied that the State failed to prove its case
beyond a reasonable doubt in this regard. The version of the accused
is reasonably possibly true and entitled him to his acquittal.
[13] The accused in para 5.11 of his s
112 (2) statement stated:
“I then decided to kill the
deceased and picked up a stone and threw it to the head of the
deceased. The stone hit the head
of the deceased and she immediately
lay still on the ground.”
This clearly shows his intention to
silence the deceased because he says so in so many words in para 5.11
of his guilty plea. Taking
into account the conduct of the accused
towards the deceased, a five year old defenceless toddler, the weapon
used to inflict the
injury, the part of the body aimed at, being the
most vulnerable part of a human being, and his expressed intention I
am satisfied
that the accused had the direct intention to kill the
deceased and did so.
The following verdicts are returned:
1. On Count 1: Theft, was withdrawn.
2. On Count 2: Kidnapping, The accused
is found guilty of kidnapping the deceased, F……….
D……..
B……..
3. On Count 3: Rape, The accused is
found guilty of having raped the deceased, F………….
D…………
B……, a minor of five
years.
4. On Count 4: Rape, The accused is
found not guilty and discharged.
5. On Count 5: Murder, The accused is
found guilty of the murder of F………… D………
B………. with dolus directus as the form of intent.
BM PAKATI
JUDGE
On behalf of the State: ADV J MABASO
Instructed by: Director of Public
Prosecutions
On behalf of the Accused: MR P
FOURIE
Instructed by: Legal Aid South
Africa, Kimberley