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[2014] ZAGPPHC 497
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Nkosi v S (A801/2013) [2014] ZAGPPHC 497; 2014 (2) SACR 525 (GP) (22 May 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: A801/2013
DATE:
22 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THULANI
VUSI
NKOSI
..........................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
JUDGMENT
PIETERSE
AJ
[1]
The Appellant, Mr Vusi Thulani Nkosi, a 29 year old male, appeared in
the Regional Court for the Division of Mpumalanga Held
at Ermelo
(Piet Retief) under Case Number PSH91/12, in front of the learned
magistrate, Mr Hallet. He was charged with sexual assault,
contravening the provision of section 3 read with Section 1, 56(1),
57, 58, 59, 60 and 61 of the Criminal Law Amendment Act 32
of 2007,
read with section 252 of Act 105 of 1997. In the charge sheet it was
alleged that upon or about the 4
th
December 2011 and at or
near RDP Itswepe in the regional division of Mpumalanga, the accused
unlawfully and intentionally sexually
violated the complainant, K[…]
A[…] H[…], a 37 year old female by patting her breast
(the words “touching
her breast” were used in the
Annexure I to the record) and trying to pull her skirt down with an
attempt to have sexual intercourse
with her without her consent.
[2]
Mr Sibanyoni appeared on behalf of the state. The state called two
witnesses, Ms K[…] H[…], the complainant in
the matter
and a second state witness, Ms Nkabinde.
[3]
The accused was represented throughout the trial by Ms Ngwenya from
the Legal Aid Board. The accused applied for discharge in
terms of
section 174 of Act 55 of 1977, which was denied by the Court. The
accused pleaded not guilty on the charge and testified
in his own
defense. On the 9
th
July 2012 he was convicted of
attempted rape and sentenced to 10 (ten) years imprisonment.
[4]
On 9
th
July 2012 the accused applied for leave to appeal
against the conviction as well as the sentence, which was refused by
the trial
court.
[5]
The accused then petitioned to the North Gauteng High Court for Leave
to Appeal, which was granted on the 12
th
September 2013 in
respect of the conviction as well as the sentence.
Summary
of facts of the case
[6]
The complainant, Ms
K[…] A[…] H[…],
testified that on the night of 4th December 2011, she was at home at
Itswepe with her six year old child. The door was open as
she was
cooking and it was hot. It was dark already but the light in her
house was on. An unknown male person came into her house,
asking for
water. The man introduced himself as Vusi, the son of Lenie and said
that he was from Boesman. She told him that she
was afraid of him as
she heard bad things about a man by the name of Vusi. The man
comforted her and asked her to look at him and
showed her his hands,
stating that he will not hurt her. She washed a cup and went outside
to fetch him the water. While she was
outside he turned on the volume
of the radio and the television and broke the light bulb. At her
return into the house with the
water, he grabbed her and throttled
her and hit her on the mouth. Some of her teeth broke as a result of
the blow. He pushed her
outside and she resisted the attack. They
fell on the stones outside. The man had her by her throat and was on
top of her with
his knee on her stomach. He grabbed her breasts and
her left breast was hurt. It had a big mark on it and it was swollen
after
the attack. She could not scream as his hands were around her
throat. He tried to pull down her skirt and it was torn in the
process.
She explained that he tried to pull down her skirt to get
her naked. Another unknown man stepped up to them and kicked her. She
got hold of stones and hit the accused on his hands and both men then
ran away. She then went to an elderly neighbour with her
child and
asked if they did not hear her. The neighbour said she heard the
noise and asked whether it was the complainant who made
the noise.
The complainant made enquiries about a man by the name of Vusi from
the farm Boesman.
[7]
The next morning she ran into the second state witness, Ms Nkabinde,
who testified that she saw the complainant who was holding
her hand
over her jaw. The complainant told her it was Vusi who did that to
her. This witness told the complainant that Vusi also
came to her
house early evening on the night before, which was the night of the
attack and told her he was the son of Lenie, also
called Majeni from
Boesman. She testified that she know the man but did not recognize
him as it was some time since she last saw
him.
[8]
The accused alleged that the complainant made a mistake with his
identity. He said he is Vusi the son of Meni. He denied that
he was
at Itswepe the night of the attack. He alleged that he was visiting
his sister after a football game the Saturday. The court
pointed out
that 4 December 2011 was a Sunday not a Saturday. He was asked by his
legal representative whether he wants to call
his sister as a
witness, but he refused and the defense case was closed.
[9]
The testimony of the witnesses were carefully analyzed by the court
in respect of the identity of the accused and the court
came to the
conclusion that the complainant had enough time to get a good look at
the person as she was invited by the accused
to look at him. The
second state witness also saw the same man earlier on the night of
the attack as he came to her house and introduced
himself as Vusi the
child of Lenie or Majeni. The two women incidentally ran into each
other and spoke to each other on the Monday
morning about the
presence of the man, Vusi, the son of Lenie from Boesman, on
the night before and the attack on the complainant.
The court
accepted the testimony of the two state witnesses as being proof of
the identity of the accused.
[10]
The court further found that the state has proved the intention of
the accused to rape the complainant, as the only inference
that the
court can make on the facts, being that of the accused attacking a
woman, who did nothing to him, in the way as testified
by the
complainant, was that the accused had the intention to rape the
complainant and found him guilty of the offence of attempted
rape.
[11]
The state did not prove any previous convictions of the accused.
[12]
The charge
[12.1]
According to the charge sheet attached to the J15 which forms part of
the record, the accused was charged with contravening
the provision
of section 3 read with section 1, 56(1), 57, 58, 59, 60, 61 and 68(2)
of Act 32 of 2007 and read with section 51
and 52 of Act 105 of 1997.
“
Deurdat
die beskuldigde op of omtrent 4 Desember 2011 en te of naby 1436 RDP
Iswepe/Piet Retief in die streekafdeling van Mpumalanga
wederegtelik
en opsetlik gepoog het om ‘n daad van seksuele penetrasie te
pleeg met die klaagster, te wete K[…] A[…]
H[…],
‘n 37 jarige vrou, deurdat die beskuldigde gepoog het om
vleeslike gemeenskap te hou met die klaagster sonder
haar
toestemming.”
[12.2]
The charge read to the accused in court states that the accused is
guilty of contravening the provision of section 3 read
with Section
1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law Amendment Act 32
of 2007 and read with section 252 of Act 105
of 1997. “In that
upon or about the 4
th
day of December 2011 and at or near
RDP Itswepe in the regional division of Mpumalanga, the accused did
unlawfully and intentionally
sexually violated the complainant, K[…]
A[…] H[…], a 37 year old female by patting her breast
and trying to
pull her skirt down with an attempt to have sexual
intercourse with her without her consent. (The words “touching
her breast”
were used in the Annexure I to the record.)
[12.3]
Both charges referred to above, refer to the contravention of
section
3 of Act 32 of 2007.
The difference between the two lies in the
use of the words “
sexual penetration
” and “
sexual
violation”
In
section 1 of Act 32 of 2007, the definition of
sexual penetration
is as follows -
‘
Sexual
penetration’
includes any act which causes
penetration to any extent whatsoever by-
(a)
the genital organs of one person into or beyond the genital organs,
anus, or mouth of another person;
(b)
any other part of the body of one person or, any object, including
any part of the body of an animal, into or beyond the genital
organs
or anus of another person; or
(c)
the genital organs of an animal, into or beyond the mouth of another
person.
In
section 1 of Act 32 of 2007
, the definition of
sexual
violation
is as follows –
‘
Sexual
violation”
includes any act which causes
(a)
Direct or indirect contact between the –
(i)
Genital organs or anus of one person or, in the case of a female, her
breast, and any part of the body of another person or
an animal, or
any object, including any
(ii)
object resembling or representing the gintalorgans or anus of a
person or an animal;
(iii)
mouth of one person and –
(aa)
the genital organs or anus of another pseon or , in the case of a
female, her breast;
(bb)
the mouth of another person;
(cc)
any other part of the body of another person, other than the genital
organ or anus of that person or, in the case of a female,
her
breasts, which could –
(aaa)
be used in an act of sexual penetration;
(bbb)
cause sexual arousal or stimulation, or
(dd)
any object resembling the genital organ or anus of a per son and in
the case of a female, her breast, or an animal; or
(iii)
mouth of the complainant and the genital organ or anus of an animal;
(b)
the masturbation of one person by another person; or
(c)
the insertion of any object resembling or representing the genital
organ of a per son or animal into or beyond the mouth of
another
person.
Conviction
[13]
The court
a quo
considered whether the State has proved that
the accused had the intention to rape the complainant and came to the
conclusion that
the only inference that the Court can make on the
evidence, is that the accused had the intention to rape the
complainant. The
evidence was that of a woman, bringing water for a
man, he grabs her, hit her on the mouth and breaks some of her teeth,
throws
her on the ground, throttles her, while she has done nothing
to him. He pins her to the ground with his knee on her stomach and
tries to pull of her skirt. The Court is satisfied that the state has
proven that the accused had the intention to rape the complainant
and
found the accused guilty of
attempted rape.
[14]
On behalf of the Appellant it is submitted that-
The
trial court misdirected itself in convicting the Appellant of the
attempt of contravening
section 3 of Act 32 of 2007;
the
charge that was read to the Appellant in the trial court was a
combination of
section 3 and section 5 of Act 32 of 2007;
the
accused was not charged with contravening the provisions of
section
5
; and the Appellant did not contravene the provisions of
section
5,
as the complainant testified that she did not know what the
Appellant’s intention was. It was argued that the State merely
proved assault, which is a competent verdict for contravening
section
3 or 5 of Act 32 of 2007.
[15]
To establish whether the learned magistrate’s erred or
misdirected himself in convicting the accused of attempted rape,
the
evidence lead by the State has to be scrutinized to establish whether
all the elements of the offence with which the accused
was charged
were proven.
Rape
According
to
Section 3 of Act 32 of 2007
–
“
Any
person (‘A’) who
unlawfully and
intentionally
commits an act of
sexual penetration
with
complainant (‘B’),
without the consent
of B, is guilty of the offence of
rape.”
From
the evidence of the complainant it is clear that penetration did not
take place in any manner as provided for in
section 3
read
with
section 1 of Act 32 of 2007
.
However,
section 261(1) of Act 51 of 1977
, provides that –
(
the
relevant parts are underlined
)
1)
if the evidence on a charge of rape
or compelled rape, as
contemplated in
section 3
and
4
of the
Criminal Law (Sexual Offences
and Related Matters) Amendment Act, 2007
, respectively,
or any attempt to commit any of those offences,
does not
prove any such offence or an attempt to commit any such offence, but
the offence of
(a)
assault with intent to do grievous bodily harm;
(b)
common assault;
(c)
sexual assault
as contemplated in
section 5
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, 2007
; ....
the
accused may be found guilty of the offence so proved.
Sexual
Assault
Section
5 of Act 32 of 2007
reads as follows –
“
(1)
A person (‘A’) who unlawfully and intentionally
sexually
violates
a complainant (‘B’) without the
consent of B , is guilty of the
offence of sexual assault.
(2)
A person (‘A’) who
unlawfully and intentionally
inspires the belief in a complainant
(‘B’)
that B will be sexually violated
, is
guilty
of the offence of sexual assault
.”
Sexual
violation
In
terms of
section 1 of Act 32 of 2007,
with specific relation
to the underlined parts thereof,
‘
Sexual
violation”
includes any act which causes
(a)
Direct or indirect contact between the –
(i)
Genital organs or anus of one person or,
in the case of a
female, her breast, and any part of the body of another person
or an animal, or any object, ...
The
contention of the Appellant’s legal representative that the
skirt of the complainant was torn during the wrestling between
the
accused and the complainant and that the State has merely proven
assault is incorrect, as the different elements of the assault
should
not be analyzed in isolation. It all forms part of one single event
and the accused had one single intention with the violent
attack on
the complainant.
It
is contended that the accused not only physically assaulted the
complainant, but that he
sexually violated
her. The
evidence by the complainant was that while she was fetching the water
for the accused from outside, the accused turned
on the radio and the
television and broke the light bulb. These actions by the accused
clearly indicated that he wanted to muffle
the sounds of the attack
which he was planning on the complainant and that he wanted to darken
the area by breaking the light.
At her return with the water, the
accused threw her to the ground, throttled her, hit her so hard on
the mouth that some of her
teeth were broken, he grabbed her breasts,
leaving a big mark on her left breast and that her breast was swollen
afterwards. He
pinned her to the ground with his knee on her stomach
and tried to pull her skirt down in an attempt to get her naked. No
doubt
can be cast on the Appellant’s intentions with the
complainant, which were experienced and understood by the complainant
that he wanted to get her naked. Looking at the trail of events as
described above, the only inference that could possibly be made,
is
that the accused wanted to rape the complainant and for that reason
he wanted to over-power her and tried to pull down her skirt,
tearing
it in the process. Every element of the offence of
sexual
assault
as contemplated in
section 5 of Act 32 of
2007
read with
section 1 of Act 32 of 2007
, quoted here
above, is proved by the complainant’s evidence.
[16]
After hearing arguments for both the Appellant and the State, it was
conceded that the identity of the Appellant is no longer
in dispute.
[17]
I am satisfied that the court
a quo
misdirected itself by
finding the Appellant guilty on the offence of attempted rape and
that a contravention of section 5 of Act
32 of 2007 is a competent
verdict on the attempt to contravene section 3 of Act 32 of 2007.
Sentence
[18]
Ms Ngwenya on behalf of the accused stated in mitigation that the
accused was 29 years old, unmarried, with two children, 17
and 6
years old and is also financially responsible for his mother. He was
employed at Shosalosa Timber Company for the past 10
years, earning
an amount of R600.00 per month. He is relatively young and a first
offender. According to the testimony it appears
as if he was under
the influence of alcohol. She left the matter in the hands of the
court with regards to the fitness of the accused
to possess a
firearm.
[19]
The prosecutor requested the court to find the accused unfit to
possess a firearm as he was convicted of a serious crime which
involved an element of violence. Violence against women is a common
occurrence and should be stopped. Direct imprisonment
of 8
(eight) years was recommended by the prosecution as being an
appropriate sentence to send a clear message that this kind of
offence cannot be tolerated.
[20]
The court took everything into consideration as stated. The court
found that the accused must have planned the offence. He
went to a
house not far from the complainant’s house and found the
circumstances unfavourable. He then moved to the complainant’s
house. He found a woman alone with a young child and misleads her to
believe that he has no intentions to harm her and then attacked
her.
Another person who was with him also kicked the complainant. They
both ran away after she fiercely resisted and hit the accused
with
stones. The accused was clearly guilty when he was questioned about
the Saturday and Sunday in question. Violence against
women cannot be
tolerated. The complainant testified that he smelled of liquor and
fortunately did not succeed to rape her. The
court found that the
accused cannot hide behind the fact that he consumed alcohol and that
he knew exactly what he was doing. The
accused had no remorse
whatsoever and alleged that the complainant was confused about his
identity. The court informed the accused
that the only suitable
sentence is direct imprisonment and if he had succeeded to complete
the offence of rape by penetrating the
complainant, the court would
have been compelled to sentence him to a minimum of 10 (ten) years
imprisonment. The court informed
him that what the accused had done
is just as serious and that he was clearly on the outlook for a woman
to rape. The court sentenced
the accused to direct imprisonment of 10
(ten) years in terms of section 276(1)(B) of the Criminal Procedure
Act.
[21]
The court further found that the accused unnecessarily hurt the
complainant and declared him unfit in terms of section 103
of Act 60
of 2000 to possess a firearm.
[22]
It was decided in
S v Mokela
2012 (1) SACR 431
(SCA)
at page
439
that a court of appeal will only be justified to
interfere in the sentencing court’s discretion where it is
satisfied that
the sentencing court misdirected itself, or did not
exercise its discretion properly or judicially. In the present case
the court
found the Appellant guilty of the offence of rape and
sentenced him to the minimum sentence applicable.
[23]
On a conviction of sexual assault the minimum sentence for rape does
not apply. A suitable and just sentence must be concluded
taking into
account the seriousness of the crime, the interest of the community
and the personal circumstances of the offender
which must be weighed
against the personal circumstances of the appellant in mitigation and
also the aggravating circumstances.
The
Appellant’s personal circumstances as stated by Ms Nwenya are
that he was 29 years old at the time of the conviction;
unmarried,
with two children and a mother who are financially depending on him;
he was working and earning R600.00 per month and
he is a first
offender.
Aggravating
circumstances
are that the Appellant showed no remorse for the
sexual assault on the complainant and alleged that she was mistaken
about his
identity. He misled a vulnerable woman to trust him
and then assaulted her. The assault was her in front of her six
year old child. He planned the assault on the victim and found
himself a woman alone after experiencing unfavourable circumstances
at another house. He tried to overpower a woman by throttling
her, preventing her to scream, muffling the sounds of the attack
by
turning on the sound of the radio and television. He did not
come alone and his friend also hurt the victim by kicking
her.
The
amount of violence used on the victim was so severe that he broke
some of her teeth and left a big mark on her breast and tore
her
skirt in an attempt to pull it down;
This
kind of offence against vulnerable victims such as women is a common
occurrence and has to be stopped by imposing a sentence
that sends a
clear message to society that such offences will not be tolerated.
[24]
The following order is made:
1.
That the appeal against sentence is upheld and the sentence is set
aside and replaced with the following order –
“
The
accused is sentenced to 5 (five) years imprisonment ante-dated to 9
July 2012”;
2.
That the Appellant is declared to be unfit in terms of section 103 of
Act 60 of 2000 to possess a firearm.
__________________
A.C.M.
PIETERSE
ACTING
JUDGE OF THE HIGH COURT
I
agree
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: A801/2013
HEARD
ON: 19 May 2014
FOR
THE APPELLANT: ADV. L.A. VAN WYK
INSTRUCTED
BY: Legal Aid Board
FOR
THE RESPONDENT: ADV. A. ROOS
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 22 May 2014