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[2013] ZAKZPHC 29
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Klaas v S (AR 587/12) [2013] ZAKZPHC 29 (11 June 2013)
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Appeal Case No: AR 587/12
In
the matter between:
THEMBEKILE KLAAS
.............................................................................
APPELLANT
vs
THE STATE
........................................................................................
RESPONDENT
JUDGMENT
Delivered
on: 11 June 2013
MNGUNI
J
[1] The appellant was convicted of
contravening section 3 read with
sections 1
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
by the Pietermaritzburg Regional Court. The
allegations were that on 16 January 2010 and at or near Cinderella
Park, in the Regional
Division of KwaZulu-Natal, he unlawfully and
intentionally committed an act of sexual penetration with the
complainant by inserting
his genital organ into or beyond her genital
organ without her consent. She was stabbed with a knife during the
incident resulting
in her suffering grievous bodily harm. The charge
sheet was further read with the provisions of
section 51
and schedule
2 of the
Criminal Law Amendment Act 105 of 1997
(‘the Act’).
[2] The appellant pleaded not guilty
to the charge and in his plea explanation denied all the allegations
against him. The Regional
Magistrate found him guilty as charged and
sentenced him to a term of 20 years’ imprisonment. The appeal
is directed against
both conviction and sentence, leave having been
granted by the Court
a quo
.
[3] The evidence before the Court
a
quo
relevant to this appeal is the following:
On 16 January 2010 at about 04h00 the
complainant was walking on foot through Cinderella Park finding her
way back home to Sobantu
Village. She had been drinking with friends
at a tavern, having arrived at 22h00 the previous night. She left her
friends behind
and proceeded home alone. She found herself at
Cinderella Park informal settlement and struggled to find her way
home. She came
across Ms Khumalo who was wearing a uniform which
identified her as an employee of the Spar Supermarket. She approached
Ms Khumalo
and asked her for the directions to Sobantu Village.
Before she came across Ms Khumalo, she had heard a male voice coming
behind
her saying “hela”. She was shocked when she heard
that voice and started to walk fast.
[4] She told Ms Khumalo about a person
who was following her and asked for her assistance. As she was busy
talking to Ms Khumalo,
the appellant joined them. She stood behind Ms
Khumalo. Ms Khumalo asked her where she was coming from. She told Ms
Khumalo that
she had been at a tavern with friends and was going home
to Sobantu Village. She asked Ms Khumalo to show her the direction to
Sobantu Village. Ms Khumalo suggested to the appellant that he should
show her the direction because she was rushing to work. The
place was
lit with streetlights. At that point, the appellant turned to speak
to Ms Khumalo. She observed that they were speaking
to each other as
if ‘they were familiar with each other’. The appellant
then pointed out to her the direction to Sobantu
Village. She left
them talking to each other and proceeded along the direction pointed
out to her by the appellant.
[5] As she was walking along that
direction, she heard the footsteps behind her. She increased her
walking pace and attempted to
run but she slipped and fell down
because it was drizzling and the place was muddy. At that moment she
realised that the appellant
was coming for her with a knife in his
hand. When she tried to pick herself up, the appellant grabbed her on
the shoulder and stabbed
her at the back. He then stabbed her again
on the thigh and forced her into the nearby bushy area.
[6] Upon reaching the bushy area, he
told her to undress but she refused. The appellant tried to stab her
again but she managed
to grab the blade of the knife with the right
hand and she sustained a cut in the process. He resorted into
throttling her with
his left hand until he overpowered her. The
appellant then pulled down her jean trousers and panty to the ankles.
He thereafter
pulled down his trousers, inserted his penis into her
vagina and had penetrative sexual intercourse with her against her
will.
He made sexual movements until he became ‘powerless’.
When the appellant was at that stage, she pushed him away, got
up and
ran away still naked. She only had a T-shirt which was hanging on the
arm that she used to cover the private part. When
she reached home,
she found her brother outside the house at the water tap, who asked
her what had happened. She was crying and
was unable to explain to
him. She was full of blood all over her body. Her brother ran into
the house and came back with a towel
which she wrapped around her
waist to cover herself. The complainant’s mother heard her
crying outside, came to her and took
her into the house. When she
tried to find out what had happened, the complainant was unable to
relate the story to her because
she was still in a state of shock.
Eventually, she managed to compose herself and told her what had
happened. The complainant told
them where the incident occurred and
that she left some of her items of clothing on the scene. Her mother
went to the scene and
found most of her items of clothing except her
shoes. The ambulance was called and she was taken to hospital where
she received
treatment. The matter was reported to the police.
[7] On 17 January 2010 Warrant Officer
Pather fetched her and drove to Cinderella Park with her. On arrival,
he parked the vehicle
a distance away from a certain house, alighted
and proceeded to that house, leaving her behind. He came back to the
vehicle with
the appellant and she identified him as her assailant.
Mrs Mkhize is the mother of the complainant. In the morning on 16
January
2010 she was asleep when she was woken up by the voice of the
complainant who was crying outside the house. She went outside to
see
what was happening. She found her with her brother and she had
already covered herself with a towel around her waist. She was
bleeding on her thighs and knees. She asked her what had happened,
and she told her that she was accosted and raped on the way
back
home. She gave a detailed account of what the complainant told her
had happened. The complainant also informed her that she
left some of
her items of clothing at the scene. She went to the scene with
Warrant Officer Pather and found some of her clothing.
[8] Warrant Officer Pather received
information about the appellant on 17 January 2010. On receipt of the
information, he fetched
the complainant and drove with her to
Cinderella Park. He arrested the appellant who was identified by the
complainant as the person
that assailed her on 16 January 2010.
[9] Dr Vanker conducted examination on
the complainant on 16 January 2010. During the examination, he took
the vaginal swab and
the surrounding areas. The examination revealed
that the complainant sustained a stab wound on the left thigh, some
abrasions on
the right thigh above the knee and a cut on the right
hand little finger. The vaginal examination did not reveal any
visible injuries
but he emphasised that that conclusion did not rule
out the forceful penetration of the vagina. His findings and
conclusion were
recorded in a form J88 which was received into
evidence as exhibit “A”.
[10] In his testimony the appellant
denied that he had raped the complainant. He testified that he
resided at Cinderella Park at
the time of the incident. On 16 January
2010 he woke up early in the morning and went to Funeka’s
residence to give money
to his relative who was going to buy the
grocery for him on the way back from work. On his way back home, he
came across the complainant
walking on the road to his opposite
direction. Before they could meet, Ms Khumalo came out of her house
and approached the complainant
who was crying. Upon reaching them, Ms
Khumalo asked him “Uncle, what have you done to this child”,
referring to the
complainant. In response he asked Ms Khumalo “What
does she say I am doing”. At that moment the complainant
immediately
said to Ms Khumalo “No, it is not him” she
thereafter asked them for the direction to Sobantu Village. She told
them
that she resided at Sobantu Village. Ms Khumalo showed her the
direction. She then proceeded along the direction shown to her,
leaving him and Ms Khumalo speaking to each other. After few seconds,
Ms Khumalo left and proceeded to her work place. He also went
home.
He observed that her clothes were wet and her pair of trousers was
muddy, and she had blood on her face and on her shirt.
The
complainant had told Ms Khumalo that she was coming from Lucky’s
Tavern where she and her friends were consuming liquor.
She also told
her that she had slept in the bush.
[11] Ms Khumalo was working at Spar
Supermarket and resided at House 8444 Cinderella Park at the time of
the incident. The appellant
is her uncle. On 16 January 2010 at about
05h20 she was on her way to work when she came across the
complainant. She was walking
on the road when the complainant
suddenly appeared walking and wobbling from side to side. The
complainant first walked around
her and thereafter stood next to her.
At that moment the appellant was approaching three houses away from
where they stood coming
towards them. The complainant said to her “Oh
please just tell this man off for me” referring to the
appellant. Ms
Khumalo then said to her “okay, let me wait for
him to come - to get closer”. When the appellant reached them,
Ms Khumalo
asked him “what did you do to the child?” but
before he could respond, the complainant said “No, he did not
do
anything to me”. The appellant went away and she was left
with the complainant. The complainant told her that she resides
at
Sobantu Village and she asked for the direction to Sobantu Village.
She asked the appellant who, at the time, was standing outside
the
house to show her the direction but he refused. When he refused, she
showed her the direction by pointing it out to her. She
asked the
complainant where she was coming from. She reported to her that she
had been partying with her friends and had slept
in the bush. She
thereafter took the direction pointed out to her and she waited until
the complainant disappeared from her sight.
She testified that the
complainant was strongly under the influence of liquor and the zip to
her trousers was open exposing her
private parts. She testified
further that the complainant was carrying a pair of brown panties in
one hand. She observed that she
had blood on the hand and near her
mouth. The thrust of her evidence was simply that the complainant was
already injured when she
approached her for the directions.
[14] The main thrust of the
appellant’s attack against the conviction before us concerned
the question whether the state had
proved beyond a reasonable doubt
that the appellant committed the offence he was convicted of. The
court
a quo
was mindful of the fact that the complainant was a
single witness in respect of the rape incident itself.
Section 208
of
the Act provides that a single witness’ evidence is adequate to
sustain a conviction, provided that it is satisfactory
in all
material respects. The evidence reveals that the complainant was
attacked on the day in question. This finding is supported
by the
injuries and the state of her dress as described by the witnesses.
The court
a quo
, correctly found that the motive for the
attack was sexual assault because at the time when she arrived at
home she had been substantially
undressed.
[15] Counsel for the appellant
submitted that the court
a quo
failed to consider that the
medical evidence did not substantiate the complainant’s
version. In this regard, Dr Vanker’s
evidence was that the
complainant was 22 years of age, she had one child and a number of
pregnancies. From this, he concluded that
she was sexually active. He
testified that in his experience, these factors will militate against
any vaginal or vulval injuries
on the complainant.
[16] It is common cause that the
complainant had started consuming liquor with her friends from 22h00
the previous night until at
least 04h00 the following morning. The
court
a quo
pertinently dealt with this issue and concluded
that even though she had consumed liquor, she was able to see what
was happening.
Importantly, the evidence reveals that the complainant
observed even the minute detail during the incident such as the fact
that
the appellant and Ms Khumalo “spoke to each other as if
they were familiar to each other”. Indeed the evidence
demonstrates
that the appellant is the uncle of Ms Khumalo. In my
view, this observation speaks to the fact that the complainant was
aware and
in control of her faculties when she was sexually
assaulted. Importantly, she was able to direct her mother to the
place where
sexual assault was perpetrated on her.
[17] Counsel for the appellant raised
the identification as an issue in her heads of argument. The evidence
reveals that the complainant
first saw the appellant after he had
uttered the word “hela”. At that time the appellant was
walking behind her. The
complainant’s evidence is that she
turned and looked at him. When the complainant approached Ms Khumalo
for the direction
to Sobantu Village, the complainant came and joined
them. She was also able to see him when he approached and attacked
her. In
any event, the appellant and Ms Khumalo are not disputing
that they were at the scene and had come across the complainant at
some
point during that morning, albeit their version being that she
had already been assailed at the time. I am therefore satisfied with
the reliability and dependability of her observation on the issue of
the identification. In my view, the court
a quo
, correctly
found that the appellant was the person who sexually assaulted the
complainant on 16 January 2010.
[18] The Regional Magistrate was
mindful of the fact that in order to establish whether the state had
succeeded to prove the guilt
of the appellant beyond a reasonable
doubt, he was required to evaluate the evidence of each of the
witnesses in the light of the
totality of the evidence having due
regard to the probabilities.
[19] It seems to me that before
convicting him, the Regional Magistrate satisfied himself not merely
that his exculpatory evidence
and that of his witness was not true
but also that every element of the offence was established by
evidence that was truthful and
reliable beyond a reasonable doubt. In
my view, the reasons and findings of the Regional Magistrate in
convicting him are unassailable
and he was correctly convicted.
[20] The appeal also lies against the
sentence of 20 years’ imprisonment imposed by the court
a
quo
. It is trite that the sentencing court has a wide discretion
in imposing what it considers to be an appropriate sentence and that
each case depends upon its own particular facts. It is so that the
determination of an appropriate sentence requires that proper
regard
be had to the triad of the crime, the criminal, and interests of
society.
[21] Importantly, a sentence must
also, in fitting cases, be tempered with mercy. Circumstances,
however, vary and the punishment
must ultimately fit the nature and
seriousness of the crime. The interests of society are not best
served by too harsh a sentence,
but equally so they are not properly
served by one that is too lenient. One must always strive for a
proper balance. In doing so
due regard must be had to objects of
punishment (see
S v Ingram
1995 (1) SACR 1
(A) at 8i-9b and
S
v Samuels
2011 (1) SACR 9
(SCA) para 9).
[22] The crime of rape is an extremely
serious and prevalent offence. In
S v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA)at 5 a-b Mohamed CJ aptly described it as:
“…
.a
humiliating, degrading and brutal invasion of the privacy, the
dignity and the person of the victim.
At 5b-d he stated further:
“
Women
in this country are entitled to the protection of these rights. They
have a legitimate claim to walk peacefully on the streets,
to enjoy
their shopping and their entertainment, to go and come from work, and
to enjoy the peace and tranquillity of their homes
without the fear,
the apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives.”
[23] It, therefore, can be gleaned
from these remarks that even if the court finds that there are
substantial and compelling circumstances
justifying the imposition of
a lesser sentence than that prescribed by the Legislature, a court
should take into account the fact
that crime of that particular kind
has been singled out for severe punishment and that the sentence to
be imposed in lieu of the
prescribed sentence should be assessed
paying due regard to the bench mark which the Legislature has
provided.(see
S v Malgas
2001 (1) SACR 469
(SCA) at 482 f-g)
[24] It follows that it is incumbent
upon the judiciary to always keep the said bench mark in mind when
deciding on appropriate
sentences for the crimes contained in the
said schedule and in so doing, send a message to the community that
rape will be visited
with severe punishment.
[25] Having carefully considered the
judgment of the court a quo on sentence, I am satisfied that it
comprehensively considered
and weighed all the competing interests on
sentence and made findings that were well grounded in the record. I
can find no error
in its analysis of the evidence on sentence and I
am satisfied that it took all the factors enumerated by the
appellant’s
counsel in mitigation of sentence. In the
circumstances of this case, the sentence of 20 years’
imprisonment is just and
proportionate to the crime, the appellant
and the needs of the society, and no injustice has resulted in
imposing of same.
In the result, I propose the following
order:
The appeal against both conviction
and sentence is dismissed and that the conviction and sentence are
confirmed.
________
Mnguni J
________
Gorven
J
: I agree, it is so ordered.
Date of Hearing : 29 May 2013
Date of Judgment : 11 June 2013
Counsel for the Appellant : Adv. S
Jasat
Instructed by : PMB Justice Centre
Counsel for the Respondent : Adv. R
Sepeng
Instructed by : Director of Public
Prosecutions,
Pietermaritzburg