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2011
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[2011] ZANCHC 24
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S v Jobo (CA&R44/2011) [2011] ZANCHC 24 (21 October 2011)
11
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Yes / No
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE NO: CA&R44/2011
HEARD: 26/09/2011
DELIVERED: 21/10/2011
In the matter
between:
QUINTON JOBO
…...............................................................
APPELLANT
and
THE STATE
…...................................................................
RESPONDENT
CORAM: WILLIAM, J et
HUGHES-MADONDO, AJ
JUDGMENT
HUGHES-MADONDO, AJ
The appellant, Quinton
Jobo, was charged with count one- assault, count two- kidnapping,
count three -assault with the intent
to do grievous bodily harm and
count four- rape. On 14 April 2008 he was convicted, in the Regional
court of Kimberley, and was
subsequently sentenced on 15 April 2008
to twenty five years imprisonment. Leave to appeal was granted by
the court below against
conviction and sentence.
On 1 December 2006 at
about 22h00 the complainant, M M a 16 year old female, was returning
to her home having visited with her
friend Grace Phutang. Whilst her
and Grace walked towards Koos Street, where she lived, they heard
the appellant call out to
the complainant.
They pretended as if
they had not heard him and ignored his calls. The appellant then
proceeded towards them. He grabbed the complainant
by the arm and
enquired why she was not responding to his call.
The complainant
replied that she had not heard him. He then requested her to
accompany him half way to his home. She said that
he should rather
accompany her half way instead. He agreed to do so, however as they
turned a corner he threatened and forced
her in the direction of his
home. Grace who was not far noticed this and she proceeded to the
complainant’s home to seek
assistance.
On route to his home
with the complainant the appellant assaulted her by slapping her. He
also had in his possession a broken
bottle with which he threatened
to stab her if she did not comply.
On arrival at his home
they proceeded to his outside room which was situated at the back of
the main house. He demanded that the
complainant sleep with him.
During his quest to have sexual intercourse with her, he injured her
on the left side of her face
with the broken bottle.
He forced her to
undress and pushed her on the bed. He climbed on top of her and had
sexual intercourse with her without her consent.
After having his
way with her, he lay next to each other on the bed.
Whilst they were lying
there complainant’s mother arrived. She was accompanied by
Grace. She forced open the door to the
appellant’s room and on
entering the complainant got up from the bed and proceeded to get
dressed. She reprimanded the
complainant and even slapped her. She
also reprimanded the appellant for keeping her daughter and making
her his “wife”.
The three of them then
left proceeding homewards leaving the appellant behind. The
complainants’ mother’s testimony
is that she had warned
her daughter on a number of occasions to refrain from walking about
at night.
Both the mother of the
complainant and Grace noticed that the complainant had been bleeding
around the area of her left ear. Grace
even assisted the complainant
in trying to stop the bleeding by putting paraffin on the wound.
Grace’s evidence
is that she had gone to seek the assistance of the complainant’s
mother when she noticed the appellant
force the complainant to
accompany him.
Both the complainant
and Grace confirmed that they had known the appellant before the
incident. He regularly visited the owner
of the yard within which
they had lived. They further confirmed that the complainant had
never been in a relationship with the
appellant.
Magdaleen Olivier, a
registered nurse, conducted an examination of the complainant one
day following the incident. She observed
a fresh wound on the side
of the complainant’s face which she said was possibly caused
by a sharp object.
When she examined the
complainant, she noted that there were signs that the complainant
had had sexual intercourse less than seventy
two hours before.
The appellant
testified in his defence. He confirmed that he was with the
complainant on the day in question. However he denied
having had
sexual intercourse with her.
He stated that by the
time that the incident took place he and the complainant had been
involved in a relationship for the past
six months. Further, that by
the time that this particular incident took place, he and the
complainant had already had sexual
intercourse on two occasions.
He testified that
Grace was a friend his and he knew her well. As regards the
complainant’s mother he said that she had
never approved of
his relationship with the complainant.
His evidence was that
on the day of the incident at around 20h30/21h00, he was seated with
a friend in his room when the complainant
came by to visit.
On her arrival his
friend left, leaving them on their own. He said he went to buy two
beers for him and the complainant. As they
sat and drank the beer,
Grace arrived. She informed the complainant that her mother was
looking for her. Grace then left after
being advised by the
complainant that she would return home shortly.
After a while Grace
returned, this time with the complainant’s mother. He
confirmed that the complainant’s mother
shouted and slapped
her in his presence. He went on further to say that she threatened
him by saying that he would see what was
going to happen to him. The
females then all left, leaving him behind in his room.
During his testimony
it emerged that he even recalls the exact days when he had had
sexual intercourse with the complainant. The
said that the first
time that they had sexual intercourse was October 2006 and the last
was 24 or 25 November 2006.
The issue in this
appeal is whether on the day in question the appellant had sexual
intercourse with the complainant without her
consent.
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 a better position to draw inferences
than the appeal court. The
trial judge has an advantage in determining 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.
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 been in the company of the complainant on
the day in question; he admitted
that the complainant’s mother
accompanied by Grace came to his room; that they found him and the
complainant lying on his
bed in his room; he admits that the
complainant was slapped and reprimanded by her mother in his
presence; he said that he knew
Grace well as she was his friend; he
confirmed that the complainant, her mother and Grace left his room
together.
[25] 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 her mother and Grace’s testimony.
The complainant in
this case was a single witness and as such this court is mindful of
the danger inherent in relying on the evidence
of 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.
”
In
casu
the
evidence of the complainant is corroborated in several material
respects. Her version that she was forcefully taken to the
appellant’s home is corroborated by the evidence of Grace. Her
evidence that she was in a state of undress when found in
the
appellant’s room is corroborated by her mother as well as
Grace.
Her evidence that the
appellant subdued her by injuring her with the broken bottle is
corroborated by the evidence of her mother
and Grace that she had
been bleeding in the vicinity of the left ear when they found her at
the appellant’s home. This
injury is confirmed by the
registered nurse who examined the complainant the following day. The
nurses finding of signs of intercourse
within seventy two hours of
the examination further corroborates the complainant’s
version.
In light of the above
and having regard to the totality of the evidence, the appellant’s
version that the complainant had
of her own free will visited him
that night, that all they did was kiss, that the last time he had
sexual intercourse with the
complainant was at least a week before
the relevant time and that she must have inflicted the injury to her
face herself in order
to implicate him can safely be rejected as
false.
Certain minor
contradictions existed in the evidence of the state witnesses but
these in my opinion were not material and damning
to the states
evidence in totality. It is expected that with the passage of time,
witnesses will not have a perfect memory of
every detail pertaining
to the incident concerned. In fact alarm bells should ring if indeed
they have a perfect memory of events
or their memories of the events
are exactly the same. In the latter instance it could be said that
the witnesses collaborated
with each other before giving their
evidence.
In light of the
evidence, only one conclusion can be drawn and that is, that the
appellant had sexual intercourse with the complainant
on the day in
question without her consent.
This court accepts the
evidence of the complainant as being reliable of what indeed
transpired on that day. The appellant’s
evidence is therefore
rejected as being improbable and false.
It was correctly
conceded by the state that by setting out four different charges as
was done in this case there appears to have
occurred a splitting of
charges. The other charges preferred against the appellant and his
actions related thereto were all part
and parcel of achieving this
objective of raping the complainant.
The appellant
committed the act of rape and in doing so he took the complainant
threatened her, took her against her will and
had sexual intercourse
with her without her consent. These entire acts were entwined within
his quest to commit the act of rape.
The correct charge
that was supposed to be preferred against the appellant is only that
of rape. The appellant was correctly convicted
of the charge of rape
in the court below and the convictions relating to the other charges
should be set aside.
Turning to deal with
sentence, I am mindful of the principles set out in
S v PILLAY
1977 (4) SA 531
(A) at 535E-G
, “
As the essential
inquiry in an appeal against sentence, however, is not whether the
sentence was right or wrong, but whether the
Court in the imposing
it exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to
entitle the Appeal Court
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. Such misdirection
is usually and
conveniently termed one that vitiates the Court’s decision on
sentence”.
The appellant was a
second offender and therefore the minimum sentence applicable in
terms of section 51 Part II of Schedule 2
(ii) of the Criminal
Procedure Act 105 of 1997 is that of twenty years.
Mr Hollander
representing the state argued that if one considered the
circumstances as to how the rape occurred, these had to
be
considered as aggravating and as such the court is entitled to
impose more than the minimum sentence.
Further that the
sentence of twenty five years imposed by the presiding officer in
the court below was appropriate in the circumstances.
I am mindful of the
judgment of
Holmes JA
,
S v Rabie 1975(4) SA 855 (A) at
paragraph 2.6(1)
“
[the] punitive sanction should be
proportionate in severity to the degree of blameworthiness
(seriousness) of the conduct.”
In addition the principle
set out by
Chaskalson P
in
S v Makwanyane
[1995] ZACC 3
;
1995 (2) SACR 1
(CC) at paragraph 129
“
punishment must to some extent
be commensurate with the offence.”
Taking the above into
consideration I am not of the view that the circumstances of this
rape warrant deviating from the minimum
sentence. In saying so I am
not convinced that the circumstances fall within the category of
“
the worst category of rape” -
See
S v
Abrahams
2002 (1) SACR 116
SCA.
Having concluded that
the circumstance surrounding the rape does not warrant a deviation
from the minimum, the sentence that I
then impose would be antedated
to 15 April 2008 being the date upon which the appellant was
sentenced.
In the circumstances
the following order is made:
The appeal against
the convictions is successful to the extent that the convictions on
counts one, two and three are set aside.
The appeal against
the conviction on count four (rape) is dismissed.
The sentence of
twenty five years imprisonment is set aside and is replaced with a
sentence of twenty years imprisonment.
The sentence is
antedated to 15 April 2008.
___________________________________
W
HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
osts of such procee
I concur
_________________________________
WILLIAMS
JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
On behalf of the Appellant
:
Mr. A Van Tonder (Legal Aid Board)
On behalf of the Respondent
:
Adv Q Hollander (Office of the DPP)