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[2014] ZAGPPHC 463
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Mthombeni and Another v S (A771/12) [2014] ZAGPPHC 463 (10 March 2014)
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IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(THE
REPUBLIC OF S
OUTH
AFRICA
)
CASE
NUMBER: A771/12
In
the matter between:
FANUEL
MTHOMBENI
.............................................................................................................
1
st
APPELLANT
FATHER
MOLOTO
..................................................................................................................
2
nd
APPELLANT
and
THE
STATE
...............................................................................................................................
RESPONDENT
Appeal
heard: 20 August 2013
JUDGMENT
MPHAHLELE
J
[1]
The appellants were arraigned in the regional court, Pretoria, on a
charge of rape. It was alleged that on or upon 2 December
2006 and at
or near Olifantsfontein, the appellants did unlawfully and
intentionally have sexual intercourse with J[...] L[...]
(“the
complainant”) without her consent. The appellants were
convicted of the charge preferred against them and they
were
sentenced to life imprisonment. The appellants appeal against both
the conviction and sentence imposed by the trial court.
In regard to
conviction, the central issues in this appeal are whether the state
proved the guilt of the appellants beyond reasonable
doubt. In
particular, the appellants contend that the state failed to establish
that the complainant was raped, and that the appellants
were her
rapists.
[2]
The state adduced the following evidence: The complainant testified
that on 2 December 2006, she attended a party in an area
known as L
& J with her cousin, S[...]. S[...] left the party to check
on her child, who was at home. When she noticed
that S[...] had not
returned, the complainant decided to leave the party as it was
getting dark. The appellants, who were also
at the party, asked
whether she was leaving. The appellants then accompanied her and she
walked between them. Whilst walking the
2
nd
appellant
grabbed her right hand and put his hand on her mouth whilst the 1
st
appellant held her left hand and also grabbed her throat. The 2
nd
appellant then instructed the complainant to drink something out of a
green bottle, she only sipped a little of the substance.
She was
taken to what was referred to as ‘the mountain’. There,
the 2
nd
appellant violently plucked at her skirt, tearing
it in the process of pulling it down. He then pulled her panties
down. At that
moment they were joined by 2 other men who are unknown
to the complainant. The 2
nd
appellant pushed her and then
she fell on her knees; he then raped her. She informed him that she
was 3 months’ pregnant.
All four men took turns in raping her,
each raped her three times. Her life was spared because they believed
that the substance
that she took drugged her and she would not be
able to recognise them. Upon arrival at her home, she reported the
rape ordeal to
her neighbour, L[...] M[...] and specifically informed
him that the appellants are the ones who raped her. Then L[...]
accompanied
her to her home and reported the ordeal to her husband.
Then S[...] was summoned to accompany her to the police station to
lay
a complaint against the appellants. She sustained injuries to her
knees and had a sore throat. She sustained no genital injuries,
she
only had pains in her womb.
[3]
Under cross-examination, the complainant stated that all four men
penetrated her thrice each and ejaculated inside her. She
testified
under crossexamination that it was dark at the party but she
recognised the appellants as they were close to her. She
further
testified that the appellants even approached her and S[...] when
they arrived at the party and had a chat with S[...].
The State
submitted that it was not able to secure S[...] to testify as a
witness as she could not be traced.
[4]
P[...] M[...] M[...] (J[...]’s husband) testified that on 2
December 2006 the complainant only came back home the following
morning (in the company of L[...] M[...]) after attending a party
with S[...]. The complainant reported to her that four men raped
her
but she only recognised the two appellants (the appellants who are
well known to him). She was dirty and her clothes were torn.
[5]
L[...] M[...] testified that on 2 December 2006 at approximately
05h45 the complainant came to his place of residence. She was
sobbing
and he noticed that her knees were bruised and her clothes were very
dirty. She then informed him that she was raped. She
identified the
appellants as part of the men who raped her.
[6]
Dr. Cornelius Petrus Notnagel testified that he examined the
complainant on 3 December 2006. Her clothes were dirty and full
of
sand and mud. He found that the complainant had abrasions on both her
knees. She informed him that the perpetrators gave him
something to
drink. He concluded that she was roughly handled by the perpetrators.
He confirmed that the complainant was about
12 weeks’ pregnant.
On examination, he noted that she did not have any scarring, tears or
bleeding on her vagina. Notnagel
further testified that if there was
penetration without her consent, it would not automatically follow
that vaginal injuries would
be present. Where she alleged that she
was raped twelve times he would have expected to see some injuries.
Lubrication and the
time lapse since the rape and his examination
could, however, influence the visibility of some injuries, for
instance swelling.
[7]
The 1
st
appellant denied that he raped the complainant. He
testified that on 2 December 2006 he never attended the party as
alleged by
the complainant and he was never in the company of the 2
nd
appellant. He testified that at 14h30, after work, he went with
Chauke to Johannesburg to collect furniture for delivery in
Potgietersrus.
Chauke has since passed away and it is only him and
Chauke who knew about the trip to Potgietersrus. He does not know
exactly where
the furniture was delivered. Under cross-examination,
he testified that he knew the complainant very well to the extent
that tie
could identify her if he could meet her in the street at
night.
[8]
The 2
nd
appellant testified that he attended the party at
L & J on 2 December 2006. He arrived at the party at 14h00
and left
at 18h00. He then went to a tavern where he left at 22h00
for home. He went home with Enos Malatji as his wife had gone home in
Burgersfort. Whilst sleeping with Enos, the 1
st
appellant
came to his home and informed him that his sister had informed him
that there was a woman who was intending to have the
2
nd
appellant arrested on allegations of rape. The 2
nd
appellant and Enos then went to Clifford’s place. Clifford
informed them that the complainant was seen in the company of
the 1
st
appellant on 02 December 2006. He confirmed that he knew the 1
st
appellant very well. He did not see the complainant at the party or
the tavern. He saw the complainant for the first time in court.
The
2
nd
appellant failed to call Enos as a witness.
[9]
On appeal, the evidence of the complainant was attacked. The
appellants’ counsel submitted that the trial court erred
in
rejecting the evidence of the appellants as false. It was further
submitted that the trial court erred in not attaching a negative
inference to the fact that the State failed to call S[...] as a
witness and further the omission to tender any DNA evidence against
the appellants. The record of the trial proceedings supported the
findings of the trial court that the complainant’s evidence
was
satisfactory in all material respect. The trial court analysed and
weighed the evidence of the State witnesses
vis
a vis
the
evidence of the appellants and correctly found that the complainant
was raped and further that the complainant correctly identified
the
appellants as two of the men who had raped her.
[10]
The trial court was alive to the importance of probabilities in the
evaluation of evidence given by a single witness, and to
the fact
that however credible a witness may seem, evidence concerning the
identity of an accused may be unreliable. The trial
court evaluated
the complainant’s evidence critically and with caution, and
correctly found corroboration in the evidence
of the other witnesses.
In particular, the first appellant testified that he knew the
complainant well, since she used to visit
S[...], his neighbour;
further, he had met her at the tavern. The 2
nd
appellant
also testified that he knew the complainant. Molopo’s
undisputed evidence was that the complainant had told him
early on
the Sunday morning that she had been raped by the appellants and two
other unidentified men. Similarly, the evidence of
Notnagel
corroborates that of the complainant - he testified that she
presented with abrasions on both knees, her clothes were
dirty and in
his view, she was a rape victim that had been roughly handled by the
perpetrators. While it is correct that in his
evidence Notnagel
stated that he would have expected to see vaginal injuries, the fact
that he observed none did not mean that
the complainant did not have
intercourse without consent. The trial court was further correct, in
my view, in rejecting the evidence
of the appellants as false beyond
a reasonable doubt. I cannot find any fault with regard to that
finding and it follows that the
rape conviction was proper and the
appellants were correctly convicted.
[11]
I now turn to the appeal against the sentence. The appellants contend
that they were charged with rape, with reference to s
51 (2) of the
CPA. The significance of this is that s 51 (2), in the present
circumstances, would prescribe a minimum sentence
of imprisonment for
not less than 15 years. The provisions of s 51 (1), on the other
hand, read with Part I of Schedule 2, provide
for a minimum sentence
of life imprisonment in the case of rape in circumstances where the
victim was raped more than once whether
by the accused or any
co-perpetrator. The court a
quo
clearly
had this provision in mind when it sentenced each of the appellants
to life imprisonment.
[12]
The record indicates that on 4 December 2006, the appellants appeared
before a magistrate other than the magistrate who conducted
the
trial, and that “Minimum sentence provisions as per s 51 and s
52 of Act 105 of 1997 explained at length and understood.”
Precisely what was explained and what was understood is not clear. In
particular, it is not clear whether at that stage, it was
explained
to the appellants that they faced the prospect of a sentence of life
imprisonment if convicted. While it is correct that
when the State
intends to rely on the sentencing regime created by s 51 that this
intention be brought to an accused’s attention
at the outset so
that the accused is properly forewarned of the possible consequences,
it ought to be recalled that in the present
matter, both appellants
were legally represented throughout the trial, in circumstances where
the it must have been clear to them
and their representatives that
despite the single charge of rape that each of them faced, the
State’s case was that the complainant
had been raped by four
men, two of whom were allegedly the accused. It follows that the
State’s case was clearly one in which
it would be contended
ultimately that the rape had occurred in circumstances where the
complainant had been raped more than once,
thus attracting the
prospect of a life sentence. In these circumstances, the sentence of
life imprisonment imposed on the appellants
does not stand to be set
aside on the ground that they were denied a fair trial on account
only of any failure to advise them of
the potential consequences
posed by s 51.
[13]
In so far as the appellants contend that their sentence is
disproportionate to their offences and the interests of society,
I
now turn to the evidence led by the appellants in mitigation of
sentence. At the time of the commission of the crime, the 1
st
and 2
nd
appellants were 27 and 26 years old respectively. Both appellants
were gainfully employed. Both are married each with 2 children.
Both
are first offenders. The appellants spent 2 years and 3 months in
prison awaiting the finalisation of this matter. Likewise
I must take
into account those factors which aggravate the offence. It is clear
from the accepted evidence that this was a gang
rape and each of the
4 men concerned, the appellants included, penetrated the complainant
three times. The complainant was pregnant
at the time of the rape
ordeal. The appellants have shown no sign of remorse during the
hearing proceedings. Rape of women and
children is rife and should
not only be deplored but also severely punished. Women and children
who are vulnerable require protection
from these callous perpetrators
of rape. In S
v
Dladla
2013
(1) SACR 288
(GSJ), a sentence of life imprisonment was imposed on
two young appellants who were part of a gang of eight that gang raped
and
assaulted a 14 year-old complainant. Similarly, in S
v
Mosia
2012
(2) SACR 537
(FB), a sentence of life imprisonment was upheld in
circumstances where the court had found that the gravity of the rape
incident
and the callous disregard for the victim’s bodily
integrity and emotional feelings outweighed any circumstances
favourable
to the appellants. In my view, the sentence imposed by the
trial court is not vitiated by any irregularity or misdirection, nor
is it disturbingly inappropriate.
[14]
It follows that the appeal stands to be dismissed, and the
convictions and sentences confirmed.
The
following order is made:
The
appeal is dismissed.
S.S.
MPHAHLELE
JUDGE
OF THE HIGH COURT
I
agree
A
VAN NIEKERK
ACTING
JUDGE OF THE HIGH COURT