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[2013] ZAECBHC 8
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Funeka v S (CA&R 02/2012) [2013] ZAECBHC 8 (1 August 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE HIGH
COURT - BHISHO)
CASE NO. : CA&R
02/2012
Heard on: 23 November
2012
Date delivered: 01
August 2013
In the matter between:
DUMISANI
FUNEKA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
MGXAJI AJ:
[1]
The appellant was convicted in the Regional Court, Mdantsane of armed
robbery involving the hijacking
of a motor vehicle (count 1), rape
(count 2), unlawful possession of a fire-arm (count 3) and the
unlawful possession of
ammunition (count 4).
The appellant was
sentenced as follows:-
(a)
18
years imprisonment for armed robbery;
(b)
15
years imprisonment in respect of rape;
(c)
3
years imprisonment for unlawful possession of a firearm; and
(d)
1
year imprisonment for unlawful possession of ammunition.
Effectively the appellant
was sentenced to thirty three (33) years imprisonment.
[2]
The appellant appealed against his conviction and sentence only in
count 2 which is rape having
applied for Leave to Appeal but was
refused such Leave to Appeal by the court
a quo
.
Following a Petition to this court for leave to appeal, amuzingly
now, against all counts the appellant was granted Leave
to Appeal his
conviction and sentence in respect of only count 2 which was rape.
[3]
The brief factual background is that the appellant and his two
companions on the 29 May 2002 at
about 17h45 were given a lift in a
Toyota Hi-Ace Kombi Taxi, near Potsdam Village outside East London.
Shortly thereafter this
Toyota Hi-Ace Kombi Taxi picked up a female
passenger who took seat in- front along side this appellant and the
driver of that
Toyota Hi-Ace Taxi. Along the way the
appellant’s two companions who sat themselves on the seat
behind the driver’s
seat pulled the Taxi driver from
his drivers seat pointing him with a pistol and forced
him to lie on the
floor behind the front seat with the appellant
appropriating not only the driving duty but also determining
the route
and destination which became a bushy area in Mount Coke
being where the appellant parked the Toyota Hi-Ace Kombi.
[4]
The appellant alighted the Kombi and took away with him into the bush
the female passenger whilst
one of his two companions took the driver
to another direction nearby where the driver was tied to a tree and
the second appellant’s
companion remained inside the Kombi.
[5]
It was in this bushy place that the female passenger (hereinafter
called the complainant) was
allegedly raped by the appellant and left
there tied in her legs and arms until the driver who had earlier been
tied to a tree
and left there, but succeeded in untying himself,
found her and removed her shackles whereafter they inquired at a
nearby locality
for the Mount Coke Police Station from which
Police Station they were transferred to Mdantsane Police Station
where they
reported their ordeal.
[6]
This complainant according to her evidence was taken by Police to a
doctor who instructed her to wait
until 19h00 but still could not be
examined as she was told to come the following day which she did.
Answering a question
by the prosecutor whether she consulted the
doctor on this following day she answered in the affirmative.
No medical report
was produced at court.
[7]
The complainant’s evidence as gleaned from the record of the
proceedings conveys two distinct
dimensions regarding how the alleged
rape was perpetrated on her. Under direct examination by the
Prosecutor she testifies that
the appellant, pointing with a firearm
at her, tripped her into the ground and stripped her down her legs
her trousers as well
as her panty from one leg whereafter the
appellant tied with her trousers both her legs and with her jacket
having tied both her
arms at the back, had sexual intercourse with
her. It was specifically put to her by the Public Prosecutor
“so at the
time he was having sexual intercourse with you, were
you tied, one you saying that you were tied? “ The
complainant
answered “Yes”. In an earlier
request to explain the event she says “He then stripped my
trousers
as well as my panty and I was refusing and I was resisting
what he was doing. He then pulled down my trousers and took it
off and I was left with the panty, “
He then used my pair of
trousers to tie both my legs
”. The Prosecutor asked
“
Did he tie you immediately after he took your panty off
?”.
The complainant replied “
Yes
” he tied me
immediately with the trousers.” “
He then tied
both my arms with an over jacket he was wearing
”, “
He
then had sexual intercourse
”. “
How were you
lying?
”, asked the Public Prosecutor, “I was lying on
my back”. “
He thereafter left me
”.
Probingly the Public Prosecutor asked “
How were you tied
before he had sexual intercourse with you? Can you demonstrate
”.
The record refers to indistinct recording her answer was “
Your
Worship, he put both my legs together and tied my trousers..8…
Inaudible on my legs very tight
”.
[8]
Let it be interposed to indicate that the Toyota Hi-Ace Kombi driver
confirms that he found this
complainant with her trousers pulled down
her legs and both her hands tied behind her back. The Toyota
Hi-Ace Kombi driver
then untied her whereupon she “
then
dragged herself up and we went away
”. He was not told
anything by this complainant but was just crying. When the
Toyota Hi-Ace Taxi driver asked
her the question whether anything was
done to her she said “
No
” but was crying.
[9]
The complainant when under cross examination by the defence attorney
testified “
When he finished raping me he bound my legs
together with the pair of trousers I was wearing and he then
bound both my arms
at my back with the lumber jacket I’m
wearing
”.
[10]
The court
a quo
in assessing her evidence concludes that “
It
is in any event not in dispute that she got raped on the night in
question
”.
[11]
The appellant noted an appeal against the finding of rape against him
on the grounds that the evidence of
the woman as a witness had
discrepancies which are:-
(i) That it was not
possible for the appellant to sexually penetrate her
when
she was firmly tied below her knees by the appellant.
(ii)
That
she did not report to the police the rape as had she done so she
would have been taken immediately to hospital for examination.
(iii)
Her
evidence should have been approached with caution.
[12]
Dealing with the last ground that the cautionary rule should have
been applied by the court
a quo
in dealing with the evidence
of the woman relative to her rape complaint as she was a single
witness on the rape charge.
The Magistrate based his
conclusion for conviction on the count of rape on her erroneous view
that for the complainant to
have been sexually penetrated her legs
did not have to be “apart and a normal finding on a
medial report does not rule
out penetration either.”
[13]
Not only was this view by the Magistrate erroneous because the
complainant could not explain in the record
how the sexual
act was performed when she was specifically invited to do so when her
legs as she testified in chief
were ‘
tightly tied
together
’, only under cross examination was she able to
tender an explanation that she was tied after the rape on her, it was
also
bizarre to refer to a medical report as not ruling ‘out
penetration either’ when there was no medical report of
a rape
on her.
[14]
The complainant’s contradictory evidence on this crucial aspect
of whether something was done on her
by the rapist when asked by the
first state witness who untied her legs to which question she
replied “
No
”, as also her failure to
actually report the rape to him but instead thought the first state
witness would do so on her behalf
at Mount Coke Police Station where
the first state witness reported the armed robbery renders her
evidence incredible on
whether actual rape did take place. This
seems to be compounded by her failure to produce a medical report
when she testifies
having been examined at the hospital to which she
was taken to by Mdantsane Police Officers, as also her testimony that
she had
no injuries when she was resisting the rape on her.
[15]
The appellant’s ground that the complainant did not report
immediately the rape so that she would be
taken to hospital is
legally misconceived and misplaced. Whilst reporting
immediately speaks to consistency with the
sexual act alleged it is
but just one aspect in the consideration and evaluation of the total
evidence but can never be a singular
material issue advanced as the
appellant herein does, to refute the commission or non-commission of
the sexual act allegedly perpetrated.
See
:
S v Trainor
2003 (1) SACR 35
SCA
1 AllSA 435
at 41
b-c
“
A
conspectus of all evidence is required. Evidence that is
reliable should be weighed alongside such as may be found to be
false. ………… . In considering
whether evidence is reliable, the quality of the evidence
must of
necessity be evaluated, as must corroborative evidence, if any.
Evidence, of course, must be evaluated against the
onus on any
particular issue as in respect of the case in its entirety
.”
Section 59 of the
Criminal (Sexual Offences and Related Matters) Amendment Act 32 of
2007 is to the effect that the court may not
draw any inference only
from the length of any delay between the alleged commission of such
offence and the reporting thereof.
[16]
This appeal raises only one issue for consideration and that is
whether the court
a quo
had any basis to find the appellant
guilty of actual rape. Put in another way did the state prove
the rape count upon which
the court
a quo’s
finding was
based.
Section 3
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007
provides “
Any person
“
(A)
” who
unlawfully and intentionally commits an act of sexual penetration
with a complainant (“B”) without the consent
of B is
guilty of the offence of rape. The key words upon which this
definition is predicated is sexual penetration without
consent.
Section 8
defines sexual penetration as including “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, and sexually penetrates has a corresponding meaning.
The court
a quo
has not on the record considered this crucial aspect before it
arrives in its finding on count 2. It just convicted on the
basis that there was no dispute that rape took place and only
identity of the assailants. On this basis nothing further
was considered. This is where the Magistrate completely
misdirected himself.
[17]
Actual rape was never inquired into nor probed at all and therefore
not proved.
[18]
That however is not the end of the issue, the witness is
corroborated on the issue of having
been tied on the
legs, with her trousers down by the evidence of the first state
witness who after finding her tied on the
legs with her trousers down
he further corroborates this witness on the aspect that the appellant
was the driver who dislodged
him and took over as driver of the
Toyota Hi-Ace Kombi after having been pointed at by the appellant’s
companions with
a firearm and pulled to lie on the floor in the
Toyota Hi-Ace Kombi and as the men who alighted with the complainant
into
the bushy place where he subsequently rescued her.
[19]
The Magistrate should have, where actual rape is not proved,
convicted the appellant of attempted rape in
terms of Section 261(1)
of the Criminal Procedure Act. From the aforegoing paragraph it
has been demonstrated that corroborated
evidence was led before the
court
a quo
on the basis of which conviction could be
sustained for attempt to commit the section 3 of the Criminal (Sexual
Offences and Related
Matters) Amendment Act 2007 offence had this
Section 261(1) been applicable as the offence which is the subject of
this Appeal
was committed in 2002.
The Regional Court
Magistrate is entitled to consider competent verdict in a sexual
offences should the commission of the offence
charged not be proved
but proves attempt to commit rape. The Magistrate has discretion to
apply the competent verdict legislation
as an unavoidable
consequence. Section 256 of the Criminal Procedure Act 51
of 1977 vests this residual procedure to
the Magistrate should
evidence not prove the commission of the rape charge but proves
attempt to commit rape. The judicial
decisions of the
Magistrate and their basis must be founded within the factual
evidence led before her or him. His or her
findings on facts
must be fully set out as also his or her conclusions of the law with
the evidence led evaluated and considered
sustaining his finding.
The rational basis must be fully canvassed and the finding be not
have been arrived at without the
factual evidential grounds.
See: S
v Maake
2011 (1) SACR 263
SCA
.
From the record, however, it does not appear that the
appellant was properly informed of the competent verdicts to the
charge before
he pleaded. For that reason this Court will
not follow that aspect.
I find the Regional
Magistrate to have erred to convict the appellant for actual rape
when sexual penetration has not been proved.
Had Section 261 of
the Criminal Procedure Act 51 of 1977 come into operation at the
commission of the offence the appellant would
have been convicted of
attempt to commit rape in terms of Section 261(1) of Act 51 of 1977.
Accordingly the
conviction for rape is set aside.
S MGXAJI
ACTING JUDGE OF THE
HIGH COURT
I agree: DUKADA,
J
D Z DUKADA
JUDGE OF THE HIGH
COURT
Counsel
for the Appellant:
Adv
Maseti
Instructed
by:
Malusi
& Company
EAST
LONDON
Counsel
for the Respondent:
Adv
Lande
Instructed
by:
The
Director of Public Prosecutions
BHISHO