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[2014] ZAGPPHC 141
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C.M v S (A85/13) [2014] ZAGPPHC 141 (20 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: A85/13
DATE:
20 FEBRUARY 2014
In
the matter between:
C[…]
M[…]
………
.........................................................................
APPELLANT
and
THE
STATE
……………………………………………………………
.
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
The appellant appeared
before the regional magistrate at Nelspruit on four charges of rape
and attempted murder. He was convicted
of all charges. He was
sentenced to the following terms of imprisonment:
1.
Rape committed on 28 April
2010, 15 years;
2.
Attempted murder committed
on 28 April 2010, 3 years;
3.
Rape committed on 29 April
2010, 15 years;
4.
Rape committed on 30 April
2010, life imprisonment;
5.
Rape committed on 30 April
2010, life imprisonment;
Leave
to appeal his conviction and sentence was granted by the court a quo.
[2]
The appellant and
complainant lived together as husband and wife and a child was born
from this relationship. The complainant terminated
the relationship
and went to live at Nkombula. The appellant resided at Ngodini
Mielieland. On 28 April 2010 after work, she encountered
the
appellant at the bus terminal and he got onto the same bus she took
to travel to her home. The appellant sat next to her and
informed her
that he wished to resume their relationship and threatened to kill
her if she refused. He accompanied her to her house.
She refused to
open the door and an argument ensued,. She called her brother K[…]
Z[…] (“K[…]”)
to report the incident. On
his arrival he found them still arguing. The appellant later
convinced her brother that he would apologize
to her and that he
would not harm her. After her brother left the appellant pulled her
by her hair into the bushes, twisted her
arm, throttled her until she
had difficulty breathing. He undressed her and raped her. He
continued to throttle her during the
rape and also when he had
finished and threatened to kill her and also kill himself. Out of
fear she apologized to him and agreed
to resume their relationship.
[3]
The appellant persuaded her
not to use the same road they had used to the bushes because her
brother might see them. They walked
in the bush area from about 20h00
till 24h00. There was a stage where she could no longer walk and he
had to carry her on his back
till they reached a tarred road, they
walked to a place called Bhuka where they got a lift to Ngodini and
from there they walked
to his residence at Mielieland. They arrived
there between 1 h00 and 2h00 and it was the next day on the 29
th
.
At his residence he again had sexual intercourse with her
without her permission. The
appellant took out a bottle of Bon Aqua and told her it contained
poison which he wanted her to drink
first to see if it would kill her
and then he would also drink it. Again she apologized to him and
promised to fetch their baby
so that they would get back together. At
about 5h00 her mother called on her phone and the appellant allowed
her to speak to her.
The complainant informed her mother that she was
with the appellant and that he had a bottled full of poison and
wanted to kill
her. She persuaded her mother not to go to the police.
[4]
The appellant accompanied
her to her residence in the morning because she had to change clothes
and go to work. She reported the
incident to the police at Nelspruit
and she was informed to open a case at Kaboweni. After work she went
to her mother’s
residence and reported the incident and her
mother informed her that her brother had already given her a report.
The next morning
that is on the 30
th
the appellant called her and sent an sms at about 6h30 and she did
not respond. At 16h00 the appellant came to her work place because
he
wanted to talk to her. She informed him that her regional manager was
present and that she was going to knock off at 18h00.
She then called
her sister N[…] to wait for her at the station and that if she
did not arrive they should go to the police.
When she knocked off the
appellant was waiting for her, he forced her to board a bus to
Ngodini. On arrival at his residence he
again had sexual intercourse
with her on two occasions without her consent. The police arrived the
next morning and appellant was
arrested.
[5]
The complainant’s
brother K[…] and sister N[…] testified. K[…]
testified that he met the appellant and
complainant on the 28
th
and he realized that they were arguing. The appellant looked scared
and asked that she accompany him to his place. He spoke to
the
appellant who assured him that he would apologize to the complainant.
K[…] testified that he was on another errand.
He promised
complainant that he would be back in five minutes to fetch her. On
his return both appellant and complainant had disappeared.
He looked
for them but did not find them. He tried calling her but she did not
answer. He reported the incident to her family and
N[…]
informed him at night that they located the complainant. N[…]
testified that after receiving a report from K[…]
she spoke to
the complainant around midnight of the 28
th
when the complainant reported that she was somewhere in the bushes in
the company of the appellant. After the complainant arrived
home from
work on 29
th
day she reported the rape and assault to her. When the complainant
did not return from work the following day they reported the
matter
to the police, which led to appellant’s arrest on 31
st
.
Mrs Ngobeni, a nursing sister also testified about her medical
examination of the complainant. Although she could not say that
the
complainant was raped, she recorded her findings. The complainant’s
vaginal orifice was swollen and she had other injuries
on the body,
abrasions on the right leg, and on the left index finger; she
complained that she had been throttled and was assaulted
on the chest
with a fist and both legs looked swollen.
[6]
The appellant denied the
incidents of 28 and 29 April 2010. He testified that the complainant
had accused him of infidelity and
that they had separated as a result
thereof. However even though they were no longer living together they
continued to see each
other. He testified that the charges against
him were false and that the complainant had informed him during the
trial that he
was being disciplined because his family did not
approve of her. On 30 April 2010 he was called by the complainant
because she
wanted him to buy food for the child. He proceeded to her
work place at about 14h00 where she demanded to be given money and he
refused to give it to her. He later went to his residence. In the
evening the complainant arrived, they spent time relaxing and
the
complainant slept over. They had consensual sexual intercourse at
night and during the morning. They were awoken by the police
and he
was arrested.
The
appellant called two witnesses. V[…] M[…], appellant’s
neighbour and friend testified that the complainant
and appellant
used to see each other and the appellant would leave his house keys
with him for the complainant. Even though they
were separated and
during the appellant’s incarceration she would visit the
appellant’s residence to check on the house.
The complainant
informed him that the charges were laid against the appellant in
order to discipline his family. B[…] M[…]
testified
that the appellant and complainant never parted and that they
continued seeing each other even though there was once
a fight about
another woman who was involved in a relationship with the appellant.
[7]
It was trite that in
criminal proceedings the State had to discharge its onus beyond a
reasonable doubt. An accused person was not
obliged to convince the
court of the truthfulness of his version, if it was reasonably
possibly true, he was entitled to the benefit
of the doubt and to an
acquittal. It was also trite that unless there was a demonstrable
material misdirection by the trial court
of the findings of fact, a
court of appeal had limited powers to interfere with such findings of
fact; S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645 E-F.
[8]
The magistrate made the
following findings:
1.
That the complainant was
corroborated by her brother K[…] in as far as it concerned the
events of the 28
th
that preceded the alleged rape. He went to complainant’s house
after receiving a call from her and found her in the presence
of the
appellant. He observed that there was an
argument,
the appellant promised to apologize to the complainant;
2.
The complainant was
corroborated by her sister N[…], that when she managed to
contact the complainant at around 24h00 on
28
th
the complainant reported that she was with the appellant walking
somewhere in the bushes. Furthermore that on the 30
th
the complainant called that they wait for her at the bus stop and to
report to the police if she failed to arrive at home;
3.
The complainant sustained
injuries as recorded in the J88 medical form and according to the
evidence of nursing sister Ngobeni.
This
corroboration gave credence to the testimony of the complainant and
the magistrate correctly in my view rejected the complete
denial by
the appellant of the allegations against him of the 28
th
and 29
th
.
It further corroborated the version of the complainant regarding the
incident of the 30
th
.
When she failed to return home that evening the family reported to
the police and they went in search of her.
[9]
The magistrate correctly
also rejected the version of the appellant and his witnesses. If
indeed the complainant followed him to
his residence and that they
had gone out to buy food and had a pleasurable evening, watching a
movie and making love, then there
was no reason for the complainant
to have requested the police to be called. Furthermore the magistrate
correctly found that his
witnesses’ testimony did not assist
the appellant in any material respect.
[10]
Both counsel were requested
by me to prepare additional heads to address
the
issue of whether there had not been a duplication of charges on
convictions. In S v Radebe
2006 (2) SACR 604
(OFS)
Ebrahim J at 607 h-j
and 608a,
referred to R v Van der
Merwe
1921 TPD 1
where Bristowe J, stated the following:
“
Generally
speaking, the law is one act one offence, or rather, perhaps, that
one offence is constituted by the outcome of one criminal
intent in
the accused’s mind, and that it is carrying of that intention
into effect which constitutes the criminal act. The
difficulty is
that in so many cases acts are closely connected with each other;
they cannot be separated and one attributed to
one intention and one
to another. Often they follow closely on one another, and often the
actual crime consists of a series of
acts which cannot be
disconnected, so that the difficulty is to decide where is the
boundary line at which the series attributable
to one criminal
intention ceases and the series attributable to another criminal
intention begins. What we have to do is to find
a satisfactory test
which we can apply for the purpose of determining the question,
namely what is the part of one criminal act
and what must be
attributed to another.
”
and
at
609b
“
The
rule against duplication of convictions is a rule primarily aimed at
fairness. Its main aim and purpose is to avoid prejudice
to an
accused person in the form of double jeopardy, that is, being
convicted and punished twice for the same offence when in fact
he or
she has only committed one offence”
[12]
I am of the view that there
was a duplication of convictions in respect of the rape charges
committed on 28
th
and 29
th
and those committed on the 30
th
.
The acts were preceded by a demand that they get back together again
and when
complainant
refused there were threats to kill her, she was throttled, assaulted
and there was a threat to commit suicide made during
the incidents of
the 28
th
and 29
th
and on the 30
th
.
The rape incidents fell in between. I am not satisfied that the
evidence if viewed holistically justifies four rape convictions.
In
my view the State proved two incidents of rape and only two
convictions of rape were justified and the convictions and sentence
have to be set aside and substituted with a conviction on two counts
of rape.
I
am further satisfied that the court a quo
when sentencing the
appellant took all the relevant facts into account and shall not
reconsider them again.
[13]
In the circumstances the
following order is given:
The
appeal on conviction and sentence in respect of the rape charges is
upheld and substituted with the
following convictions and sentence;
1.
The appellant is convicted
of two counts of rape committed on 28
th
and 30
th
April 2010 and is sentenced to the following:
15
years imprisonment for the rape committed on 28 April 2010 and,
20
years imprisonment for the rape committed on 30 April 2010. The term
of imprisonment of 15 years is to run concurrently with
the 20 years
imprisonment for the rape committed on the 30 April 2010
2.
The appeal in respect of
count 2 (Attempted murder) is dismissed and the conviction and
sentence are confirmed.
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
I
agree,
MALINDI
P.G
(ACTING
JUDGE OF THE HIGH COURT)
MATTER
HEARD ON: 10 FEBRUARY 2014
JUDGMENT
RESERVED ON:10 FEBRUARY 2014
ATTORNEYS
FOR THE APPLICANT: THE LEGAL AID SA
ATTORNEYS
FOR THE RESPONDENT :THE NATIONAL DIERCTOR
OF
PROSECUTIONS