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2011
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[2011] ZANCHC 20
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S v Olifant (CA&R 42/2011) [2011] ZANCHC 20 (2 September 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE HIGH COURT, KIMBERLEY
CASE
NO: CA&R 42/2011
HEARD:
22/08/2011
DELIVERED:
2/09/2011
Reportable:
Yes / No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/No
In
the matter between:
ABIE
OLIFANT
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
LACOCK, AJP et HUGHES-MADONDO, AJ
JUDGEMENT
HUGHES-MADONDO,
AJ
[1]
The appellant, Abie Olifant, was charged
with assault with intent to do grievous bodily harm, kidnapping,
three (3) counts of rape
and indecent assault. On 15 April 2011
he was convicted, in the Regional court of Kimberley, and was
subsequently sentenced
on 7 May 2011 to life imprisonment. Leave to
appeal was granted by the court below against conviction.
[2]
On 28 January 2011 the complainant,
Charmaine Mdingwane met the appellant at Chivo’s Tavern in
Galeshewe, Kimberley. Since
as far back as 1996, the appellant was
known to her as “Man”. The appellant entertained her with
liquor and food. After
Chivo’s tavern they moved on to Parks
tavern.
[3]
The appellant confirms that he was with the
complainant at these various taverns. The complainant’s
evidence is that,
as they left Parks tavern the appellant requested
her to obtain a cigarette and a match from a certain house. On her
return she
was grabbed from behind. She could not see who it was but
later realised it had been the appellant.
[4]
The appellant throttled her with one hand,
a struggle ensued and he proceeded to use both his hands. During the
struggle the complainant
ran away. As she was running, he tripped her
and she fell on her face. He pounced on her, pulled her up by her
hair and eventually
led her to a nearby stadium. The appellant denied
that he tripped the complainant and said that she fell whilst they
were walking.
[5]
The complainant’s evidence is that
the appellant raped her on the steps of the stadium. The appellant on
the other hand states
that an arrangement had been reached between
them to have sexual intercourse at complainant’s home. However
he was taken
by surprise, when, on their way to her home, the
complainant, having just urinated in the street, suggested they have
sex there
and then.
[6]
The complainant said that she requested the
appellant to use a condom as she was aware that he was ill with “the
sickness”.
She explained that he took out a condom and threw it
at her. He raped her three times and whilst doing so he throttled her
and
threatened her. At one stage he instructed her to put his penis
between her hands and stroke it, which she did.
[7]
The appellant denied that he had had
sex with the complainant more than once. He did however
confirm that
he had three condoms on his person and used one with the complainant.
He said that he personally put the condom on.
After the sexual
assault at the stadium the complainant suggested they proceed to her
house to have sex there instead.
[8]
They proceeded in the direction of her
house which was part of a compound. On their arrival the
complainant
did not go to her home but proceeded to her neighbour, Nehang
Mothibi. Whilst the appellant waited outside she told
her neighbour
that she was raped by “Man”. The appellant, whilst
still outside, heard the accusations levelled
against him and denied
that he had had sexual intercourse with the complainant.
[9]
The neighbour, Nehang, confirmed that the
complainant looked emotional and terrified when she arrived at her
home on the day in
question.
[10]
The appellant was told to leave which
he did, however he return later seeking the complainant. This was
confirmed by both the complainant
and Nehang.
[11]
The issue is whether the events that transpired took place with the
complainan’ts consent.
[12]
A court of Appeal is very reluctant to upset the findings of the
trial court, as the trial judge
has the advantage of seeing and
hearing the witnesses and observing their personalities and
demeanour. The trial court is in the
best position to even draw
inferences than the appeal court. The trial judge has an advantage to
determine what is probable and
what is improbable having observed the
witnesses in the course of the trial. See
R v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A) at 705.
[13]
Ironically in this case the appellant’s
version corroborates the complainant’s version as regards
material aspects.
To illustrate but a few: the appellant
confirms having enjoyed himself at the various taverns with the
complainant; he admits
that the complainant sustained injuries in his
presence; he admits having had sexual intercourse with the
complainant; he confirms
that he used a condom that was in his
possession; that he was in possession of three condoms and lastly he
does not deny that they
were to proceed to the complainant’s
house after having had intercourse with the complainant and he does
not deny the encounter
with the neighbour.
[14]
On examination of the evidence in its totality I find that the
evidence of the appellant which
corroborates that of the complainant
is further corroborated by the neighbour’s testimony as well.
[15]
The complainant was a single witness and as
such the court is always mindful of the cases dealing with a single
witness. To this
end I refer to the dictum which is found in
R
V MOKONYA
1932 OPD 79
at 80
where the
court held; “
the uncorroborated
evidence of a single, competent and credible witness is no doubt
declared to be sufficient for a conviction ...,
but in my opinion
...should only be relied on where the evidence of the single witness
is clear and satisfactory in every material
respect.
”
[16]
The evidence of the appellant as to how
sexual intercourse between him and the complainant took place is
highly improbable. He expects
this court to believe that the
complainant wanted sex there and then in the street having just
finished urinating. This does not
have a ring of truth to it at all.
[17]
There is also the uncontested evidence of
the complainant that she was not HIV positive prior to the rape.
After the incident she
was tested and the results were negative.
However, it’s been confirmed having had a second test that her
status is now positive.
[18]
It was never disputed that the appellant
was HIV positive. This further corroborates the complainant’s
version of the events
that at some stage the appellant did not use a
condom. On his version he used a condom, in fact he even put it on.
Therefore in
light of this evidence only one conclusion can be drawn
and that is, that the appellant had sexual intercourse with the
complainant
more than once, as stated by the complainant.
[19]
This court accepts the evidence of the
complainant as what indeed transpired on the day in question and
being the truth. The appellant’s
evidence is therefore rejected
as being improbable and false.
[20]
Turning to deal with the three counts of
rape, I refer to the case of
S v BLAAUW
1999(2) SACR 295
, from the head note
“Mere
and repeated acts of
penetration cannot without more 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
have committed rape twice.
Each case must be determined on its own facts. As a general rule the
more closely connected the separate
acts of penetration are in terms
of time (i.e. the intervals between them) and place, the less likely
a court will be to find that
a series of separate rapes has occurred.
But where the accused has
ejaculated and withdrawn his penis from the victim, and he again
penetrates her thereafter, it should
be inferred that he has formed
the intent to rape her again, even if the second rape takes place
soon after the first and at the
same place”.
[21]
In this matter the evidence is that after
each sexual act the appellant took a break, at one stage he even sat
next to her and drank
cape velvet. The urge arose again and he raped
the complainant yet again. The last time he asked the complainant to
put his penis
between her hands and once he had an erection he raped
her again. The complainant’s evidence is that he said he
intended
to have sex with her until he ejaculated.
[22]
In light of the above I am confident that
the appellant committed three separate acts of rape entwine with an
act of indecent assault.
He also took the complainant by force
to the stadium, tripped her so that she fell and injured herself and
he throttled her whilst
he was raping her.
[23]
The court below was correct in convicting
the appellant of the charges preferred against him.
In
the result the appeal against conviction is dismissed.
In
the circumstances the following order is made:
1.
The appeal against conviction
is dismissed.
___________________________________
W
HUGHES-MADONDO
ACTING
JUDGE
NORTHERN
CAPE HIGH COURT, KIMBERLEY
(i)
osts of such procee
(ii)
I
concur
_________________________________
H
J LACOCK
ACTING
JUDGE-PRESIDENT
NORTHERN
CAPE HIGH COURT, KIMBERLEY
On
behalf of the Appellant
:
Adv P J Cloete (Legal Aid Board)
On
behalf of the Respondent
:
Adv N B Mabilietse (DPP)