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[2012] ZANCHC 3
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S v Mthembu (CA&R 105/2011) [2012] ZANCHC 3 (16 March 2012)
Reportable:
YES / NO
Circulate
to Judges: YES / NO
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to Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: CA&R
105/2011
Case Heard:
06/02/2012
Date delivered: 16
/03/2012
In
the matter between:
Michael Norman
Mthembu
…..........................................................
APPELLANT
and
The State
…...................................................................................
RESPONDENT
Coram: Olivier J et
Phatshoane J
JUDGMENT
PHATSHOANE J:
The appellant, a 33
year old man at the time of the commission of the offence, stood
accused of robbery
simpliciter
in the Regional Court,
Kimberley, before Acting Regional Magistrate Ms N Mbalo. The state
alleged that on 06 August 2010 at or
near Donkerhoek, Kimberley, he
unlawfully and intentionally assaulted Ms Masego Desiree Kopeledi
and with force took her Sony
Ericsson Cellular Phone valued at
R5000.00.
The appellant pleaded
not guilty to the charge. On 06 July 2011 he was convicted of
robbery with aggravating circumstances. In
terms of s 51(2)(a)(i) of
the Criminal Law Amendment Act, 105 of 1997 (the minimum sentence
legislation), having determined that
there were substantial and
compelling circumstances, the Regional Magistrate imposed a sentence
of 7 years imprisonment. With
leave of this Court the appellant now
appeals against both his conviction and sentence.
The grounds of appeal
are substantially summarized as follows in the appellant’s
heads of argument:
AD CONVICTION
3.1 That the trial
Court erred in finding that the state proved its case against the
appellant beyond a reasonable doubt.
3.2 That the trial
Court erred in rejecting the appellant’s version as not
reasonably possibly true.
3.3 That the trial
Court erred in finding the appellant guilty of robbery with
aggravating circumstances when the charge put to
the appellant was
robbery
simpliciter.
AD SENTENCE
3.4 That the trial
Court erred in overemphasising the seriousness of the offence and the
interest of the community and downplayed
the appellant’s
personal circumstances.
3.5 That the trial
Court erred in applying the provisions of s51(2)(a) of the minimum
sentence legislation when sentencing the appellant.
The following factual
matrix emerged from the state’s case. Around 24h00 on 06
August 2010 in Donkerhoek, Galeshewe, Kimberley,
Ms Kopeledi, the
complainant, was with her relative, Ms Sisinyana Motlhomi, at
Jerry’s Tavern indulging in alcohol. The
appellant, a man
unknown to the two ladies, approached them and affably offered to
escort them home. They succumbed to his approach
and departed the
tavern in his company. The initial plan was to pass at the
appellant’s home in order for him to wear his
jacket. At
appellant’s home the two ladies waited inside his shanty
allowing him to wear his jacket.
Out of the blue the
appellant refused to escort the ladies further and instead wanted to
have sexual intercourse with them. When
they refused he became
aggressive, blocked their way and started fighting them. He
assaulted Motlhomi resulting in her having
scratch marks on her
cheeks and neck but managed to escape. Motlhomi did not report that
she left the complainant behind in a
perilous situation. She says
that she was scared of her sister. She also confessed to have been
very drunk; compared to the complainant
who it is said was ‘not
that drunk’. In the complainant’s words she was more
assertive than Motlhomi. The complainant
and Motlhomi admittedly
drank from 12 noon until midnight.
Back at the
appellant’s shanty, the complainant fought back so as to
escape. She says that her Sony Ericsson contract cellular
phone was
in her breast in the middle of her brassier. In the course of the
fray the appellant grabbed her phone there and informed
her that if
she wanted the phone she would have to engage in sexual intercourse
with him. She managed to flee to Keneilwe’s
place nearby where
she was assisted to summon the police. Around 06h00 in the morning
the police and the complainant went to
the appellant’s home.
The appellant denied that he took the complainant’s phone.
Later that same day the complainant
received her phone from the
police in same condition but its S
ubscriber
Identity Module (SIM
card)
had been removed.
Mr Oageng Duiker
received a telephone call from his home during the morning of
Saturday 07 August 2010. He went home and found
three policemen, the
appellant and a woman. The appellant called him aside and informed
him that the police were looking for
the complainant’s phone.
He requested Duiker to fetch the phone at his (the appellant’s)
home, which his son (Xolani)
would hand over to him. Duiker gave
Xolani the message from his father, who went inside one of the
shanties and came out with
the phone which Duiker took to the police
station.
The appellant’s
account of events is dichotomous to the state’s version. He
portrayed the complainant as his acquaintance.
In exculpating
himself he says that on 06 August 2010 he received information from
Xolani that the complainant and Motlhomi were
looking for him. He
went in search of them at a certain Mbatha’s Store where he
found them. They informed him that they
were looking for him because
they wanted someone to accompany them to a tavern. He went with them
to his house to wear a jersey
and all proceeded to Jerry’s
Tavern. Along the way they were joined by a boy from the Mbatha’s
Store. They whiled
away time at the tavern and the ladies bought
beers and drank. He did not drink.
The Mbatha’s
Store boy left the tavern. The appellant enquired from the ladies if
he could take them halfway home. They
opted to sleep at his home.
They left the tavern for his home. The two ladies shared his bed
whereas he put up with his son.
In the middle of the night Motlhomi
wanted to relieve herself. He opened the door for her to go outside
but she never returned.
In the morning the complainant informed him
that she had lost her phone and requested him to assist her to look
for it. It could
not be found. The complainant left at around 07h00
in the morning but later returned accompanied by the police. The
police enquired
from the appellant where the phone was. He informed
them that he did not know. The Police requested him to accompany
them to
the police station.
In answer to Duiker’s
evidence the appellant intimates that he took the police to Duiker
because he wanted to borrow money
from him so that he could buy a
replacement phone. In his evidence-in-chief the appellant stated
that Duiker informed him that
he was going to the appellant’s
home to enquire from his son whether he knew the people who were in
the company of the
two ladies at the time that they were looking for
the appellant at his home. Strangely, under cross- examination the
appellant
testified that he was not aware that Duiker was going to
his home. He thought that Duiker was going to a bank to withdraw the
money he loaned. The appellant states that he does not know the
circumstances under which the phone was recovered.
Mr Xolani Nkosi, the
appellant’s son, gave a rehearsed version almost similar to
that of his father. In addition he intimated
that when Duiker
arrived he (Xolani) informed him that certain boys at Mbatha’s
Store told him that the complainant left
her phone with them. Duiker
then requested him to obtain the phone from these boys which he did.
The defence wishes to
exploit the following apparent conflicts in the complainant’s
version. Under cross-examination she
stated that the appellant
pulled the phone from her breast causing the sweater she wore to
stretch. She also alleged that she
saw it when the appellant grabbed
the phone where she kept it. In her words
“
that
is why I believe there is no way it fell down, because I saw him
take it. That is why I asked him please give me my phone”
.
She could not recall whether she was on her feet or
lying down when the phone was seized. The following is further
recorded:
“
Mr
Mabaso: I am saying from the statement that you’ve just given,
it sounds as if you are not even aware as to at what stage
did the
accused remove the cell-phone. You said in the process of you freeing
yourself that is when he managed to remove the cell-phone?
Complainant: Yes
when we were still fighting, I wouldn’t know exactly which time
specifically or before or after what- after
what was happening, but I
know it was during the incident whereas I was trying to leave that he
took my cell- phone.
Mr Mabaso: so it
is possible that in the- in this tussle, that this phone could have
fell down. Am I correct?
Complainant:
There is no way sir. He grabbed the phone.”
The complainant could
not give the exact position she was in when she was dispossessed of
her phone. In her unsophisticated fashion
she tried to explain that
the snatching of the phone could have been at any given moment
regard being had to the fact the scene
was in motion. She remained
resolute that the appellant grabbed her phone.
In
S v Yolelo
1981 (1) SA 1002
(A)
the Court held that robbery can also be
committed if violence follows on the completion of the theft in a
juridical sense. In
each case an investigation will have to be made
into whether, in the light of all the circumstances, and especially
the time
and place of the (accused's) acts, there is such a close
link between the theft and the commission of violence that they can
be regarded as connecting components of substantially one action.
This is also applicable to a threat of violence insofar as it
can be
an element of robbery.
If the complainant’s
statement is that the appellant wanted to extort sexual intercourse
from her using the cellular phone
as a bargaining chip it did not
matter, in my view, how he got hold of the phone. The fact of the
matter is that the appellant
refused to hand over the phone using
threats of violence. Having sexual intercourse with another without
consent is rape and
therefore a violent crime.
I am satisfied that
the magistrate was correct in holding that the apparent
contradictions in the complainant’s version were
not material.
The erstwhile counsel
for the defence in the court
a quo
took issue with the fact
that the complainant’s evidence in Court differed with what
she told the police.
Inter alia
, she is said to have informed
the police that the appellant was pressing her down on the bed while
in Court she intimated that
the appellant was dragging her in the
direction of the bed and in the course of the commotion he had easy
access to her phone.
As was said in
S V XABA
1983 (3) SA 717
(A)
at 730 B-C:
“
Police
statements are as a matter of common experience, frequently not taken
with a degree of care, accuracy and completeness which
is desirable…”
See also
S
v Mafaladiso en andere 2003(1)SACR 583 (SCA)
at
593-e -594-h.
A further apparent
contradiction in the state’s version relates to the spot where
the fight took place. According to the
complainant it was inside the
appellant’s shanty whereas Motlhomi testified that the attack
on them or the fight with them
started inside the house and
continued outside the premises. This may well have been so
considering the fluid nature of the scene.
In my view this
discrepancy is similarly not material.
In
Union
Spinning Mills (Pty) Ltd v Paltex Dye House and Another
2002 (4) SA
408
(SCA)
at 416 par 24, the following dictum appears:
“
A
trial Court has obvious and important advantage of seeing and hearing
the witnesses and of being steeped in the atmosphere of
the trial.
These advantages were not possessed by the Full Court and indeed this
Court. Although Courts of appeal are slow to disturb
findings of
credibility they generally have greater liberty to do so where a
finding of fact does not essentially depend on the
personal
impression made by a witness' demeanour but predominantly upon
inferences from other facts and upon probabilities. In
such a case a
Court of appeal with the benefit of an overall conspectus of the full
record may often be in a better position to
draw inferences,
particularly in regard to secondary facts”.
The magistrate
approached the evidence of the complainant with the necessary
caution in view of the fact that she was a single
witness on certain
aspects of her testimony and had also consumed alcohol. She found
her evidence to have been probable in that
her responses to the
questions were credible and plausible for reasons set out in her
judgment. What needs to be taken into account
is that Motlhomi, the
complainant’s friend, escaped with an injury from the
appellant’s home where they were held
hostage. This is a
factor that reduces any risk of a wrong conviction.
The magistrate
criticized the appellant’s evidence as lacking credibility.
What remains remarkable is that when Duiker went
to the appellant’s
home the latter’s son (Xolani) was able to hand over the
cellular phone to him. The appellant
and Duiker are acquaintances.
There is nothing remotely suggesting that Duiker would falsely
implicate the appellant. What is
important is that the appellant
clearly had knowledge of where the complainant’s phone was and
it was through his act that
it was discovered. According to the
appellant everything said in Court by Duiker was the truth on the
one hand but on the other
he denied that he asked Duiker to collect
the phone from his son. This contradiction is certainly material.
The appellant’s
s 115 of the Criminal procedure Act, 51 of 1977 (CPA), statement
differs materially with his oral testimony
in the following
respects. In the statement he stated that he left Mbatha’s
Store with the two ladies for his home because
they decided to
continue with their alcohol indulgence at his home. When he
testified he intimated that the reason they left
Mbatha’s
Store was so that he could wear his jersey and proceed to Jerry’s
tavern.
The appellant further
states in his 115 plea-explanation that his brother confronted the
gentlemen who sat with the complainant
and Motlhomi at Mbatha’s
Store about the phone on the day of the incident. This interrogation
resulted in the phone re-surfacing
from the gentlemen. This
statement differs completely with his evidence before Court already
highlighted.
I am satisfied that
the magistrate did not err in rejecting the appellant’s version
as not reasonably possibly true.
Mr Cloete, for the
appellant, contended that the Magistrate misdirected herself in
finding the appellant guilty of robbery with
aggravating
circumstances. In any event, the argument went, the charge put to
the appellant was robbery
simpliciter
and nothing more. This
much was conceded by Mr Mokone, for the state. Ultimately the crisp
issue which remains to be determined
is whether the conviction on
the count of robbery with aggravating circumstances is sustainable.
Section 1
of the
Criminal Procedure Act, 51 of 1977
, provides that the aggravating
circumstances in relation to robbery means the wielding of a
fire-arm or any other dangerous weapon;
the infliction of grievous
bodily harm; or a threat to inflict grievous bodily harm, by the
offender or an accomplice on the
occasion when the offence was
committed, whether before or during or after the commission of the
offence.
The magistrate
concluded that a threat to inflict grievous bodily harm was forever
present and that this justified her verdict
on the count of robbery
with aggravating circumstances. This is because, she reasoned, the
complainant testified that she had
to fight to defend herself; was
dragged in the direction of the bed while Motlhomi had fled the
scene after the appellant had
inflicted injuries on her. The
magistrate substantiates her finding further in her judgment on the
application for leave to appeal.
She relies on the view expressed by
the learned authors Du Toit
et al
in their
Commentary on
the
Criminal Procedure Act
in
the notes in the definition
section to say that the state does not carry any onus to prove the
aggravating circumstances nor
the accused to show the absence
thereof.
In
S v Isaacs
and another
2007 (1) SACR 43
(C)
at 53 para 37 Yekiso J
held:
“
Du
Toit et al Commentary on the
Criminal Procedure Act, in
their
commentary under the heading 'definitions', observe that there is no
onus in establishing the existence or otherwise of aggravating
circumstances. They go on to comment, at DEF2A [Service 32, 2004]
that the State does not carry an onus to prove aggravating
circumstances,
nor the accused to show the absence thereof. After a
conviction, so the learned authors conclude, the court will examine
the facts
before it and will determine on the facts whether there was
an occurrence which can be described as an aggravating circumstance.
I have grave reservations with this proposition particularly in the
light of the guaranteed right of presumption of innocence
contemplated in s 35(3) of the Constitution of the Republic of South
Africa, 1996. My view is that the onus is on the State throughout,
including proof of presence or otherwise of aggravating
circumstances”.
Unless the facts
alleged to constitute aggravating circumstances are formally
admitted they must be proved, and it is, naturally,
essential that
the exact extent of the admissions should be ascertained. See
R
v Zonele and others 1959(3) SA 319(A)
at 323E-F. More
fundamentally, there is no reference to robbery with aggravating
circumstances in the charge sheet nor does the
charge sheet reflect
the relevant statutory provision upon which the appellant was
convicted. See para 2 above. Therefore even
if the state proved
robbery with aggravating circumstances the appellant could not be so
convicted because he was not
timeously
or
at all apprised that he was in jeopardy of being so convicted. He
was seriously prejudiced because he was not afforded an
opportunity
or ample opportunity to mount a defence against such a serious
allegation.
In
Moloi and
others v Minister for Justice and Constitutional Development and
others
2010 (2) SACR 78
(CC)
at 90 para 28 the following
dictum appears:
“
In
S v Hugo
[1976 (4) SA 536
(A)] it was held that, where the State
elects to make representations on the charge-sheet upon which it
relies, the accused is
entitled to regard these as exhaustive and to
prepare his defence in respect of these representations, and no
other. In R v Alexander
and Others
[1936 AD 445
at 457], with
approval in S v Pillay
[1975 (1) SA 919
(N) at 922A], the purpose of
the charge-sheet was found to be -
'to inform the
accused in clear and unmistakable language what the charge is or what
the charges are which he has to meet. It must
not be framed in such a
way that an accused person has to guess or puzzle out by piecing
sections of the indictment or portions
of sections together what the
real charge is which the Crown intends to lay against him.”
There is no evidence
pointing to the existence of aggravating circumstances. Nothing in
complainant’s evidence suggests
that there was a threat to
inflict grievous bodily harm on her. Similarly there is no evidence
that the robbery was perpetrated
by way of the wielding of a
fire-arm or any other dangerous weapon and/or the infliction of
grievous bodily harm on the complainant.
The suggestion by
counsel for the
defence
at the Court
a
quo
that complainant could not say at what stage she was
dispossessed of the phone led to Mr Cloete’s alternative
submission
to the effect that at best for the state the appellant
should have been convicted of theft. A person commits theft if he
unlawfully
and intentionally appropriates movable, corporeal
property which belongs to, and is in the possession of another;
belongs to
another but is in the perpetrator’s own possession;
or belongs to the perpetrator but in another’s possession and
such other person has a right to possess it which legally prevails
against the perpetrator’s own right of possession: provided
that the intention to appropriate the property includes an intention
to deprive the person entitled to the possession of the
property.
See CR Snyman
Criminal Law
fifth Edition, at 483.
I have already
concluded that there was some form of violence involved in the
perpetration of the offence. This simply puts theft
out of the
equation because it does not have as one of its elements, violence.
Robbery on the other hand consists in theft of
property by unlawful
and intentional using of violence or threats of violence to induce
submission to the taking of it from the
person of another or in
his/her presence. See
S v Benjamin en Ander 1980(1) SA 950 (A)
958H.
In
S v Salmans
2006 (1) SACR 333
(C)
at 340d-e Foxcroft J pronounced that
the physical grabbing of a bag or a cellular phone out of a
complainant's hand constitutes
a physical intervention necessary for
the dispossession, and whether one calls it force or violence, one
has a physical act committed
against the person of another which
complies with the definition of robbery.
It therefore follows
that a conviction on robbery with aggravating circumstances cannot be
sustained and has to be altered to robbery
simpliciter
.
On the question of
sentence. In imposing seven years imprisonment the magistrate was
motivated,
inter alia
, by the aggravating circumstances she
considered to have been present in the commission of the robbery. In
addition she applied
the provisions of s 51(2)(a) of the minimum
sentence legislation in circumstances where they should not have
been invoked, leading
to a material misdirection.
It is trite that the
determination of a sentence is pre-eminently a matter for the
discretion of the trial Court. Equally settled
is that a mere
misdirection is not by itself sufficient to entitle a Court of
appeal to interfere with the sentence; it must
be of such a nature,
degree, or seriousness that it shows, directly or inferentially,
that the Court did not exercise its discretion
at all or exercised
it improperly or unreasonably. Where the material misdirection by
the trial court vitiates its exercise of
that discretion an
appellate Court is at large to consider the question of sentence de
novo, as we hereby do. See
S v Kibido
1998 (2) SACR 213
(SCA)
at 216g-I;
S v Malgas
2001 (1) SACR 469
(SCA)
at 478d.
The appellant passed
standard 6 (grade 8 in today’s terms) at school. He worked at
Reagile as a technician earning R1 100.00
per month. He also
repaired vehicles over the weekends. He has two children aged 14 and
2 years that he maintained. His partner
is unemployed. It counted in
the appellant’s
favour
that the
complainant’s cellular phone was recovered and returned to her
albeit without its SIM card. As the magistrate
observed, the
complainant and Motlhomi were not seriously injured. She also
observed that the crime committed was prevalent in
the region.
The appellant is not a
first offender. When he gave his evidence in mitigation he expressed
regret for what he did. I am not persuaded
that he showed any
contrition regard being had to his conduct throughout the trial. On
31 July 2002 he was convicted of rape
and sentenced to 10 years
imprisonment. Two years of this term was suspended for a period of
five years on condition that the
appellant was not found guilty of
rape during the period of suspension. The fact that the appellant
demanded sexual intercourse
from the complainant by using her
cellular phone as a bargaining instrument is an aggravating factor.
The complainant and Motlhomi
trusted him but he took advantage of
their gullibility and state of sobriety. Courts should send out a
strong message of its
condemnation of crimes involving violence.
This Court should
impose a sentence that will strike a proper balance between the
serious nature of the offence, the interests
of the community and
the personal circumstances of the appellant. Also trite is that the
punishment must fit the criminal, the
crime, taking into account the
interest of society, as well as the need to blend the sentence with
a measure of mercy according
to the circumstances. See
S v
Rabie
1975 (4) SA 855
(A) at 861A-862F
.
In
S v Isaacs
and another
supra although the facts are distinguishable the
Court had substituted the conviction of robbery with aggravating
circumstances
with robbery
simpliciter
. Having considered the
appellants' personal circumstances and the gravity of the offence,
it found the sentence of four years'
imprisonment to have been
fitting. All things considered a custodial sentence is justifiable.
I am of a view that a sentence
of 3 years imprisonment would be
appropriate.
In the result the
following order is made:
ORDER
The appeal is
partly successful to the extent set out below:
The conviction on
robbery with aggravating circumstances is set aside and the
following is substituted in its place:
“
The
accused is found guilty of robbery simpliciter”
The sentence of 7
years imprisonment is set aside and the following is substituted in
its place:
“
The
accused is sentenced to three years imprisonment”
In terms of
s 282
of the
Criminal Procedure Act, 51 of 1977
, the sentence is antedated
to 06 July 2011.
____________________________
MV PHATSHOANE
JUDGE
NORTHERN CAPE HIGH
COURT
Olivier J:
I have read the
judgment of my sister Phatshoane J in this matter. I agree with her
finding that the appellant had committed robbery
when he grabbed or
snatched the cellphone. There is no basis for interfering with the
regional magistrate’s factual findings
in this regard.
I also agree that the
regional magistrate’s erred in convicting the appellant of
robbery with aggravating circumstances.
The conviction should have
been one of robbery
simpliciter
. I also have no problem with
the sentence proposed by my sister. It follows, therefore, that I
concur in the result and orders
under paragraph 39 of her judgment.
I am, however, unable
to agree with the reasoning in paragraph 15 of that judgment. My
sister finds (apparently as an alternative
to the finding that the
cellphone was grabbed from the complainant) that, when the appellant
subsequently offered to return it
if the complainant would agree to
have sex with him, that conduct in itself constituted violence or a
threat thereof, which violence
would have been so closely linked to
the taking of the cellphone that it would in itself have constituted
robbery.
It
is trite that for robbery to be committed “
The
property must be obtained
as
a result
of
… violence or threat of violence
”
1
.
Even though it is not necessary that the violence or threat should
precede the taking of the property, it should nevertheless
be so
closely related to the taking that it can be regarded as part
thereof and as causally linked to the taking of the property
2
.
The
appellant’s “
offer
”
that
the complainant could get her cellphone back if she agreed to have
sex with him, did not constitute violence or a threat
of violence.
It could in no way have led the complainant to believe that there
was going to be immediate violence to her person
3
.
It would seem as
though the reasoning of my learned colleague is that, if the
complainant had agreed to have sexual intercourse
with the appellant
in order to recover her property, there would not have been valid
consent, that the subsequent sexual intercourse
would therefore then
have constituted the crime of rape, that rape is “
a violent
crime
” and that, on this basis, the attempt to “
extort
sexual intercourse
” constituted a threat of violence.
The fact of the matter
is, however, that the complainant did not agree to have sexual
intercourse with the appellant and that
no sexual intercourse took
place. The enquiry into whether there had been a threat of violence
after the taking of the cellphone
can surely not be premised upon a
hypothesis.
The appellant’s
“
offer
” left the complainant with a choice. She
could either agree or not agree to have sexual intercourse with the
appellant.
Agreeing to have sexual intercourse with the appellant
would result in the retrieval of her cellphone. The result of not
agreeing
to have sexual intercourse with him, on the other hand,
would mean that the appellant would not return the complainant’s
cellphone; not that she would be raped or otherwise physically
harmed. The “
offer
” contained no element of a
threat of physical violence to the person of the complainant, not
even implicit. It follows
that, in my view, my colleague’s
statement that the appellant had “
refused to hand over the
phone using threats of violence
” is incorrect.
It
is completely unnecessary to speculate about whether agreeing to
sexual intercourse under such circumstances would have constituted
valid consent. Even if not, it would not, however, follow that the
sexual intercourse would have been a violent act. I cannot
agree
that in all circumstances “
rape
…
(is)
a
violent crime
”
.
It has long been recognised in our law that rape is not necessarily
an act or species of violence
4
.
The emphasis is on the lack of consent, which can be the result of
violence or a threat thereof, but it can also be the result
of
something that has nothing at all to do with violence. One need only
think of examples like sexual intercourse with a sleeping
or
intoxicated woman and, in certain instances, “
consent
”
by
fraud
5
.
An
act of violence or a threat thereof is also not an element of rape
as it is now defined in section 3 of the Criminal Law (Sexual
Offences and Related Matters) Amended Act.
6
To
sum up, even if the appellant’s offer may have constituted
extortion or an attempted extortion
7
;
it did not constitute a threat of violence. The appellant did not
threaten the complainant with intercourse; non-consensual
or
otherwise. His offer clearly implied that it was up to the
complainant to decide whether she was prepared to have sexual
intercourse with him. If not, she would not be subjected to sexual
intercourse. She would only forfeit an opportunity of retrieving
the
cellphone which had by then already been robbed.
There was no causal
link between the appellant’s refusal to return the cellphone
without sexual intercourse and the taking
of the cellphone. It had
already been taken prior to that refusal, by force, and the
subsequent refusal had clearly not been
necessary to enable the
appellant to deprive the complainant of her property or to get away
with it.
______________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
On
behalf of the Appellant
Adv
P.J. Cloete
Instructed
by
Legal
Aid Board
On
behalf of the Respondent
Adv
U. Mokone
Instructed
by
Director
of Public Prosecutions
1
Criminal
Law
, Snyman, 4
th
edition, p507
2
S
v Yolelo
1981 (1) SA 1002
(AA) at 1015
3
S
v Mtimunye
1994 (2) SASV 482 (T) at
4084;
Crminal Law, supra
,
pp 430 & 432
4
Criminal
Law, supra
, pp445-446;
R
v K
1958 (3) SA 420
(A) at 423B
5
R
v C
1952 (4) SA 117
(O)
6
32
of 2007
7
Criminal
Law, Supra
, p448