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[2013] ZAGPPHC 104
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Booysen v S (A875/12) [2013] ZAGPPHC 104 (18 April 2013)
REPORTABLE
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE NUMBER:
A875/12
DATE:18/04/2013
In the matter between:
VANDILE IGNATION
BOOYSEN
...........................................................
APPELLANT
V
THE
STATE
..............................................................................................
RESPONDENT
JUDGMENT
RATSHIBVUMO (AJ):
1. The appellant, a male person aged
22, was convicted of rape by the Regional Court, Sebokeng. Following
that conviction, he was
sentenced to 15 years imprisonment on the 9th
May 2008. He appeals against the conviction and the sentence with
leave of this court.
2. The State alleged that on the 26th
May 2007 in Van der Bijl Park, the appellant had sexual intercourse
with the complainant;
a female person aged 20, without her consent.
The appellant pleaded not guilty and offered a plea explanation that
the sexual intercourse
with the complainant was consensual.
3. A total of four witnesses testified
during trial, two for the State and two for the defence, including
the appellant. The complainant
testified that she and her sister were
drinking liquor at a party. She indicated to her sister she was both
tired and drunk, and
needed some rest. Her sister gave her a key to a
room rented by her boyfriend in nearby premises for the complainant
to use. She
requested the complainant not to lock the door so as to
not wake her up on her arrival later. She did as advised and went
straight
to the room, passing the appellant and another person
sitting under a tree. She entered the room and slept. When she woke
up, her
sister, the appellant and the police were in the room.
4. She could not testify as to whether
the appellant had sexual intercourse with her or not, as she was too
drunk, and asleep, to
feel anything. All she knew about the
intercourse was is what her sister told her. She could only testify
about the events after
she woke up. She denied that the appellant had
proposed love to her. Indeed it was common cause that there was no
love relationship
between them.
5. The complainant’s sister
testified that the complainant was very drunk when she left the
party, and staggered her way to
the room. Later she followed the
complainant and found the door to the room closed. The men seated
under a tree in that yard enquired
from her as to what she was
looking for. This made her curious. She used a drum tin to peep
through the room’s window. She
observed the appellant having
sex with the complainant. The complainant appeared to be asleep, and
one leg of her jeans had been
pulled out. She was still wearing her
sunglasses.
6. She rebuked the appellant for
having sexual intercourse with the complainant in that state. The
appellant opened the door. The
complainant was still asleep and only
woke up after the police had arrived, upon which she started crying.
The police took her
for medical examination.
7. The appellant testified that the
complainant was sober when she arrived at the premises. He was seated
with his friends under
a tree. The complainant approached him and
expressed disappointment that they did not have sex the previous
night when they were
together. She offered to have sex with him,
using suggestive and crude language. She walked to a room where he
followed her. Once
inside the room they had consensual sexual
intercourse, ‘twice’. They were interrupted by the
presence of the complainant
at the door. He held the door closed for
him and the complainant to get dressed, after which he opened.
8. On entering the room, the
complainant’s sister saw a R20 note on the floor, and angrily
enquired from him whether he thought
that the complainant was worth
R20 to have sex with. When he indicated that he did not pay the
complainant for sex, she accused
him of having sex with the
complainant for free. The sister summoned the police. By then he (the
appellant) was outside and the
complainant was still inside. The
door was locked from inside when the sister slammed it closed when
she left. Before the police
arrived a man said to be the
complainant’s boyfriend, arrived. In order to gain entry, the
man entered through a window.
9. Galela, a friend of the appellant
confirmed the appellant’s version about the alleged
conversation between the appellant
and the complainant referred to
above. He further testified that he is the one who closed the door
since the appellant and the
complainant had left it open during their
sexual intercourse.
10. The medical report (the so called
J88) completed by a doctor who examined the complainant was handed in
by agreement. Under
gynaecological findings, the doctor noted “fresh
tears” next to fossa navicularis, “whitish discharge”
and reached the conclusion that there was “evidence of recent
forceful penetration.” These findings were not disputed.
That
concluded the evidence.
11. The trial court preferred the
State’s version over the appellant’s, and convicted him.
Before us it is submitted
on his behalf that the State had not proved
his guilt beyond a reasonable doubt, and that the accused’s
version was reasonably
possibly true which entitled him to an
acquittal. The State supports the conviction.
12. Before I consider the submissions
in this regard, it is helpful to restate the approach to be adopted
by a court of appeal when
it deals with the factual findings of a
trial court. The proper approach is found in the following collective
principles laid down
in R v Dhlumayo
1948 (2) SA 677
(A). A court of
appeal will not disturb the factual finding of a trial court unless
the latter had committed misdirection. Where
there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct. The appeal court
will only reverse it where it
is convinced that it is wrong. In such a case, if the appeal court is
merely left in doubt as to
the correctness of the conclusion, then it
will uphold it. See also DPP v S
2000 (2) SA 711
(T); S v Leve
2011
(1) SACR 87
(ECG); and Minister of Safety and Security and Others v
Graig and Another NNO
2011 (1) SACR 469
(SCA);
S v
Selebi
2012 (1) SA 487
(SCA).
13. It is
common
course that the appellant had sexual intercourse with the
complainant. The reason for the complainant’s presence on
the
premises is also not disputed. The only dispute is whether the sexual
intercourse was consensual. Corollary to that is whether
the
complainant was drunk or not.
14. The trial court found both the
complainant and her sister to have been reliable and credible
witnesses. On the other hand, it
found the defence version to be
self-contradictory and lacking corroboration where it should have
been corroborated by the established
facts. The court found it
improbable, for example, that appellant would not have used his own
room on the premises, had the intercourse
been consensual. I cannot
find any misdirection on the part of the trial court in any respect.
The defence’ version was in
my view correctly rejected as being
improbable in the circumstances. There is more reason why the
appellant’s version is
not reasonably possibly true. The fact
that, save for the one leg of her jeans pulled out, the complainant
was fully dressed,
even with the sunglasses, points away from
consensual sexual intercourse.
15. What is clear from the established
facts is that no consent was given by the complainant or at least,
when she was sober. The
record is replete with sufficient indications
of the complainant being drunk. The appellant clearly took advantage
of that. Even
if it were to be accepted that the appellant had sought
her consent, such consent would still be vitiated by her state of
drunkenness.
In R v K 1958 [3] All SA 323 (A), the following was
said:
“The position is more difficult
in cases where the woman has been defrauded into consenting and more
difficult still when
her mind is affected not by the accused’s
threats or fraud but by a pre-existent disability, such as that
produced by mental
disease, hypnosis, drugs or intoxicating liquor.
In such cases there may be, and in the case of intoxication there
certainly is,
a wide range of degrees of disability. At the one end
of the scale, if the woman is insensible from any cause she clearly
cannot
be a consenting party, nor is it easy to see how the
impression could arise that she was consenting.”
See also S v Swartbooi
[2006] JOL 16530
(C).
16. For these reasons, I conclude the
appellant was rightly convicted and the appeal against conviction
should fail.
17. I turn now to the sentence. As a
general rule, an appeal court may not interfere with a sentence
unless there is a material
misdirection by the trial court or unless
the sentence is startlingly inappropriate with there being a striking
disparity between
it and the sentence the appeal court would have
imposed – S v Michele and Another
2010 (1) SACR 131
(SCA). The
question therefore is whether the sentencing court properly exercised
its discretion. The mere reason that the sentence
imposed is
different from the one the appeal court could have imposed is not
sufficient ground to interfere with the sentence.
18. From the annexure completed by the
public prosecutor, attached to the J15, the appellant was charged
with rape read with the
provisions of section 51 (2) of the Criminal
Law Amendment Act 105 of 1997 (the Act) which provides among others,
for a sentence
of 10 years’ imprisonment for a first offender.
However, for unexplained reasons, the public prosecutor did not read
into
the record what was drafted in the charge sheet at the
commencement of the trial. The transcribed record reflects that the
appellant
was charged with rape read with section 51 (1) of the Act,
which prescribes life imprisonment in the event of conviction on a
rape
charge in circumstances where the victim was raped more than
once, whether by the accused or by any co-perpetrator or accomplice.
The basis on which the State would rely on section 51 (1) was not
stated, either on the charge sheet or on record. However, it
later
appeared that the learned regional magistrate relied on the
provisions of section 51 (1).
19. It is imperative for the State to
indicate in the charge sheet the basis on which it would rely on the
provisions of section
51 (1) of the Act on a rape charge. This
affords the accused an opportunity to plead accordingly and prepare
for the case he has
to meet. The explanation of the prescribed
sentences should not be a mere lip service but should be meant to
assist the accused
to prepare his defence properly.
20. In the present case, the appellant
was not charged with raping the complainant more than once. The
charge sheet (both drafted
and transcribed) reflects one count of
rape. No evidence was led to trigger the provisions of section 51 (1)
for the court to impose
life imprisonment. It seems that the learned
regional magistrate relied on the evidence of the appellant that he
had “two
rounds” of sexual intercourse with the
complainant. He was not asked to elaborate what he meant by ‘rounds’,
the duration, positions and places where the same was done.
21. In S v Blaauw
1999 (2) SACR 295
(W), the court had to impose a sentence after a referral by the
Regional Court for sentence. The accused had been convicted of
raping the complainant three times. At page 300, the court held:
“[m]ere 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.”
22. In S v Mavundla
2012 (1) SACR 548
(GNP), the accused ejaculated thrice in the process of raping the
complainant. Asked about the durations and intervals she had
testified that they were on bed and off the bed without real
intervals but just continuous sexual intercourse, lasting about 2
hours. The regional court had found that the complainant was raped
more than once. On appeal, this court held that, that was no
basis to
find that such were several counts of rape. The appellant was found
to have raped the complainant once. Accordingly, the
sentence of life
imprisonment imposed by the regional court was set aside.
23. For these reasons, section 51 (1)
of the Act was not applicable to the facts of the present case, but
section 51 (2) was. The
minimum sentence provided for in the relevant
section is 10 years imprisonment for a first offender, which the
appellant is. The
learned regional magistrate clearly misdirected
himself in this regard. We are therefore at large to interfere with
the sentence
and impose the sentence we deem appropriate in the
circumstances. While I appreciate the magistrate’s reasoning in
finding
substantial and compelling circumstances justifying a lesser
sentence than the sentence he perceived to be applicable, the
reasoning
was based on a wrong premise that life imprisonment was
applicable. I am of the view that had this been approached correctly,
the
prescribed sentence of 10 years imprisonment would not have be
deemed to be disproportionate.
24. To sum up, the appeal against the
conviction should fail, while the appeal against the sentence should
succeed.
25. In the result, the following order
is made:
The appeal against the conviction is
dismissed;
The appeal against the sentence is
upheld;
The sentence of 15 years imprisonment
is set aside and replaced with the following: ‘The accused is
sentenced to 10 years
imprisonment.’
The substituted sentence is antedated
to 9 May 2008 in terms of
section 282
of the
Criminal Procedure Act
51 of 1977
_____________________
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
I agree,
_______________________
T.M. MAKGOKA
JUDGE OF THE HIGH COURT
DATE HEARD : 8 APRIL 2013
JUDGMENT DELIVERED : 18 APRIL 2013
FOR THE APPELLANT : ADV CPJ STRYDOM
INSTRUCTED BY : MILLS &
GROENEWALD,
VEREENIGING
FOR THE STATE : ADV KM
MASHILE
INSTRUCTED BY : DIRECTOR OF PUBLIC
PROSECUTIONS, PRETORIA