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[2012] ZAGPPHC 25
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Jim v S (A179/2011) [2012] ZAGPPHC 25 (2 March 2012)
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Certain
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REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
Number: A179/2011
Date:02/03/2012
In
the matter between:
DAVID
DANISILE
JIM
.............................................................................................
APPELLANT
And
THE
STATE
.........................................................................................................
RESPONDENT
CORAM:
POTTERILL,
J
et
KUBUSHI, AJ
HEARD
ON:1 MARCH 2012
DELIVERED
ON:2 MARCH 2012
KUBUSHI,
AJ
[1]
This is an appeal from the Regional Court, Potchefstroom. The
appellant was charged and convicted of the rape of a
seventeen-year-old
woman. On 28 April 2010 he was sentenced to life
imprisonment. The appellant had an automatic right of appeal and this
appeal is
therefore against both conviction and sentence.
[2]
The state's evidence is that on the night of the 16 February 2007,
between 19h30 and 20h30, the complainant M M, was accosted
in the
street by the appellant and another man unknown to the complainant.
The complainant was in the company of two other persons,
M M (M) and
O M (M), her niece. The appellant and the man grabbed the
complainant, dragged her and forcibly took her with them
to a place
next to the Sarafina hall. At the hall they threatened her with a
knife, forced her to lie down and instructed her to
remove her
trousers where they then interchangeably, twice each, had
non-consensual intercourse with her. M and M wanted to assist
the
complainant but were afraid.
[3]
At the time of this incident the complainant did not know the
appellant. M did not see the appellant's face because it was dark
and
could therefore not identify him. The appellant was however
identified by M. Neither of the two witnessed the rape scene and
could therefore not testify about it.
[4]
Another person who saw the complainant being dragged away, was pastor
Timothy Songezo Majola (the pastor). He testified that
at the time he
saw the complainant being dragged away by the two men he did not
recognise the two men nor did he recognise the
women being dragged
away. He was only told later by M that the women being dragged away
was the complainant. He assisted in a search
for the complainant.
[5]
Elisa Nokandela, a neighbour, saw the complainant after the incident.
She testified that the complainant was crying, her hair
was
dishevelled and had grass on it and her trousers were dirty. The
witness is the first person to whom the complainant reported
the
rape. The complainant reported the incident to the police and was
taken for medical examination.
[6]
The appellant in his defence, admitted that he had sexual intercourse
with the complainant on that day but contended that it
was with her
consent and that he had known the complainant for two years before
that incident.
AD
CONVICTION
[7]
In respect of the conviction, the appellant's ground of appeal was
that the magistrate erred in finding that the state had proved
the
guilt of the appellant beyond a reasonable doubt. According to the
appellant the court does not have to believe his version
as truthful
but as reasonably possibly true. It was submitted that the court had
no reason to reject the appellant's version as
it did not have any
inherent improbabilities and had no material contradictions.
[8]
The respondent is opposing the appeal and submitted that the court a
quo did not err in finding that the state had proved its
case beyond
reasonable doubt. I agree.
[9]
My view is that the trial court was correct in rejecting the
appellant's version as not being reasonably possibly true. Firstly,
because of the contradictions in his evidence. He testified in chief
that he met with the complainant for the first time at a shopping
complex - this was also the version that was put to the complainant -
but under cross-examination he said he met her for the first
time at
the market. He also testified that at the time Christina came into
the room where they were relaxing they were lying on
the bed but
under cross-examination he was adamant that they were sitting on the
bed. Again in his evidence in chief he did not
mention that he had to
run after the complainant to give her the shoes she had forgotten at
his place, he had to be reminded of
this fact under
cross-examination. He also testified that the complainant was there
when he was arrested, which fact the complainant
denied, but it was
not put to her by his attorney. He further contradicted himself in
respect of how they met with the complainant
to carry on their secret
affair. He first said they met at the market but when it was put to
him that it was improbable that they
could meet at a public place
like a market, he adapted his story and said they met behind one of
the shacks.
[10]
Secondly the appellant's version is to me inherently improbable. His
testimony that he had sexual intercourse with the complainant
whilst
the door was closed but not locked is highly improbable. He testified
that C knocked on the door and walked in. In my mind,
it is highly
improbable that they could have had sexual intercourse with the door
unlocked. Of crucial importance is the time at
which he said the
complainant was with him. There are four witnesses who testified that
at the time the appellant alleged the complainant
was with him, she
was in fact with them. The trial magistrate, found correctly so, that
when considering the times involved, it
is not possible that the
complainant could have been with the appellant in his shack or that
the complainant had been at both places.
What also militates against
the appellant's version is that when he parted with the complainant
they were on good terms. This does
not explain why the complainant
would then lay a charge of rape against him. To my mind, this story
cannot be regarded as reasonably
possibly true and the trial
magistrate was correct in rejecting it.
[11]
With his defence the appellant had placed two issues in dispute,
which the state had to prove, namely, his identity and the
sexual
intercourse without the consent of the complainant. To prove these
two issues, the state relied on the evidence of two cardinal
witnesses, namely, the complainant in respect of the commission of
the offence and M in respect of the identity of the appellant.
[12]
The other three witnesses could not identify the appellant nor did
they see when the complainant was raped. However, the evidence
of the
pastor and that of M confirmed that at the time in question the
complainant was not with the appellant in his shack but
was at the
scene where she was allegedly raped. The testimony of Elisa Nokandela
confirmed the state in which the complainant was
when she arrived
home, which showed that she had been attacked.
[13]
As regards the commission of the offence. I agree with the trial
magistrate on this point. The evidence does prove that the
complainant was raped. When she arrived home, her hair was tousled
and had grass on it. Her clothes were dirty and she had injuries
on
her back. The doctor also found grass on her private parts. The J88
medical report showed that the complainant suffered injuries
to her
vagina - there were tears of the forsa navicularis and the hymen was
torn at 02:00, 10:00 and 8;00 positions. The doctor
stated that
vaginal penetration appeared to be by a blunt object. All these, to
me, are indications that sexual intercourse was
not by consent.
[14]
The evidence showed that at the time of the commission of the offence
the complainant did not know the appellant. The appellant
was,
however, identified by M. The trial court, rightly so, accepted the
evidence of M in having correctly identified the appellant.
M's
testimony was that he knew the appellant before this incident. He had
always seen him at a shebeen where he (M) played a machine
and the
appellant always came to drink liquor there. He also knows him by his
nickname - he referred to him as Mtanzane, which
is a name, which
according to M, the appellant responds to when other people call him.
On the night in question it was not really
dark and he (M) was able
to see the clothes the appellant was wearing. The appellant was
wearing an orange T-shirt, a khaki trousers
and a blue spottie hat-
the complainant also confirmed this. He could positively identify the
appellant because he saw his face
when they went passed each other in
the footpath. When he later met with the appellant he was still
wearing the same clothing.
When the appellant spoke to M asking for
dagga he (M) was standing about 2 metres from them. I am therefore
satisfied that M could
have not mistakenly identified the appellant.
[15]
I am, therefore, satisfied that the state has proved its case beyond
reasonable doubt.
AD
SENTENCE
[16]
The appellant's grounds of appeal as regards the sentence was that
the sentence imposed was inappropriate and that the trial
court ought
to have made a finding that there were substantial and compelling
circumstances which would have persuaded the trial
court to impose a
lesser sentence. The respondent on the other hand submitted that the
sentence imposed by the trial court must
be confirmed because it
cannot be said that the trial court erred in any material respect and
neither can it be said that the sentence
of life imprisonment in this
case was shockingly severe in the circumstances.
[17]
At the hearing of the appeal, counsel for the appellant submitted
that the trial magistrate had erred in sentencing the appellant
in
terms of
section 51
of the
Criminal Law Amendment Act, 105 of 1997
as
amended ("the Act") because the appellant was not made
aware at the outset of the trial that he will be sentenced
in terms
of the Act. The respondent's counsel conceded to this submission.
[18]
It is now established law that where the state intends relying upon
the sentencing regime created by the Act a fair trial will
generally
demand that its intention be brought pertinently to the attention of
the accused person at the outset of the trial. Where
the trial would
be unfair if the provisions of the Act are used, it stands to reason
that the court will have to impose sentence
in terms of its standard
sentencing powers. See S v LEGOA
2003 (1) SACR 13
(SCA) at par 22 and
S v SHABALALA
2006 (1) SACR 328
(N) at 331d.
[19]
The record does show that the appellant, in this instance, was indeed
not informed that the minimum sentence Act would be applied
during
sentencing. There was therefore a material misdirection by the trial
court in sentencing the appellant in terms of the Act
and this court
has to look at sentence afresh.
[20]
In terms of the Zinn triad an appropriate sentence should reflect the
severity of the crime, while at the same time giving
full
consideration of all the mitigating and aggravating factors
surrounding the person of the offender and should also have regard
to
or serve the interests of society. In addition the purposes of
sentencing, namely, retribution, prevention, deterrence and
rehabilitation, must also be taken into account when considering
sentence. See S v ZINN
1969 (2) SA 537
(A) at 540G.
[21]
One can never over emphasise the gravity of the offence of rape. In
this instance the complainant was physically injured, in
that he was
made to lie on a tin of fish which grazed her. She also had tears to
her hymen and the vagina was swollen. She was
dragged against her
will and threatened with a knife by two men. These may not be serious
injuries but she was humiliated and degraded.
As it is said rape
constitutes a humiliating, degrading and brutal invasion of the
privacy, dignity and the person of the victim.
Even though in this
instance, it was not proved that the complainant suffered any
psychological trauma, this can however not be
ruled out.
[22]
The interests of society where such crimes have been committed must
come first. The incidence of rape where a woman is randomly
abducted
from the streets by her assailants and then raped is becoming
prevalent. This is shown by the alarming increase of this
type of
cases in our courts and also as reported in the media. It is my view
that sentencing officers must take cognizance of this
trend so that
they must pass sentences that will have a deterrent effect.
[23]
I considered the following personal circumstances of the appellant:
the appellant is a man of 28 years, he has spent three
years in
custody awaiting trial, he is a first offender, and he attained only
grade 9 at school.
[24]
In aggravation of sentence I also had to consider the fact that the
complainant was seventeen years old at the time of the
rape and she
was raped four times by the appellant and the unknown person he was
with. The complainant suffered injuries. The appellant
showed no
remorse.
[25]
Having considered all of the above I must pass a sentence that will
prevent the commission of similar crimes and deter the
appellant and
other would be offenders. As is trite, an appropriate sentence must
fit the crime, the offender and be in the interest
of society. The
appellant was found guilty of two counts of rape and in terms of the
standard sentencing powers, a sentence must
be passed for each count.
As to the time you spent in prison awaiting trial, I have taken due
cognisance of the sentiments expressed
in BROFFI AND ANOTHER
2007 (2)
SACR 56
(WLD).
[26]
Accordingly I would make the following order:
26.1
The appeal against the conviction is dismissed.
26.2
The appeal against the sentence succeeds.
26.3
The sentence imposed by the trial court is set aside and replaced by
the following:"a. 10 years imprisonment in respect
of count1;
b.
10 years imprisonment in respect of count 2;
both
sentences to be antedated to the 28
April 2010; and
d.
the sentences shall run concurrently in such a manner that the
cumulative effect thereof is FIFTEEN (15) YEARS."
E.
M. KUBUSHI, AJ
It
is so ordered.
S.
POTTERILL, J
On
behalf of the appellant: Adv. Van As
Instructed
by: Pretoria Justice Centre PRETORIA
On
behalf of the respondent: Adv. P. Vorster
Instructed
by:
The
Director: Public Prosecutions PRETORIA