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[2009] ZAGPPHC 140
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Mbuyane v S (A382/09) [2009] ZAGPPHC 140 (6 November 2009)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Date: 2009-11-06
UNREPORTABLE
Case Number: A382/09
In the matter between:
VUYANI MBUYANE
Appellant
and
THE STATE
Respondent
JUDGMENT
SOUTHWOOD
J
[1] On 8 September 2008 the appellant
was found guilty of rape in the Kabokweni regional court and
sentenced to 15 years imprisonment.
With the leave of this court the
appellant appeals against both the conviction and the sentence.
[2] The appellant pleaded not guilty.
His defence was that intercourse had taken place with the consent of
the complainant. The
appellant formally admitted that on 26 March
2006 and at Zwelisha he had intercourse on 3 occasions with the
complainant.
[3] The state tendered the evidence of
the complainant, S M, and her friend Eunice Malaza. The state also
tendered the J88 (the
report of the medico legal examination) in
respect of the complainant and the appellant admitted the contents of
the report and
the conclusion of the doctor. The report reflects
that at 03h00 on 27 March 2006 Dr. A.P. van den Heever examined the
complainant
and recorded the following:
‘RELEVANT MEDICAL HISTORY AND
MEDICATION:
Allegedly raped on evening of 26
March, 06. Pt reports being assaulted and strangulated and then
forced into intercourse –
she reports man using a condom.
CLINICAL FINDINGS: In every case the
nature, position and extent of the abrasions, wound or other injury
must be described and
noted together with its probable date and
manner of causation. The position of all injuries and wounds must
also be noted on the
sketches.
(1) Subconjunctival bleeding ®
right eye lateral.
(2) Tenderness
around neck and at back + left flank.
(3) No
vaginal pathology noted.
6. MENTAL
HEALTH AND EMOTIONAL STATUS: Good
7. CLINICAL
EVIDENCE OF DRUGS OR ALCOHOL: None
8. CONCLUSIONS
Injuries
in keeping with history.’
The relevant sketch reflects
subconjuctival bleeding around the right eye and painful areas
covering the whole of both forearms
and hands, the whole of the front
of both thighs, and on both sides of the front of the neck as well as
swollen soft issue over
the area between the waist and shoulder blade
on the left side.
[4] The appellant testified and also
tendered the evidence of Simpiwe Radebe and Sipho Mashele. Sipho
Mashele and the appellant
are brothers.
[5] It
is common cause that:
(1) the incident took place just after
midnight on 26 March 2006 at the home of Sipho Mashele after Sipho
and Eunice had gone to
sleep in an outside room;
(2) the complainant, Eunice, the
appellant, Sipho, Simpiwe Radebe and his girlfriend, Promise, spent
some hours in the sitting room
of Sipho’s home, talking,
listening to music, drinking beer and cider and cold drinks, until
Sipho and Eunice decided to
go to sleep and Simpiwe and Promise left;
(3) when Sipho and Eunice and Simpiwe
and Promise left the complainant and the appellant were left alone in
the sitting room;
(4) the
appellant had already shown interest in the complainant;
(5) the complainant and the appellant
then had intercourse on three occasions (according to the appellant)
and one prolonged occasion
(according to the complainant). The
appellant used three condoms during the intercourse;
(6) early in the morning on 26 March
2006 the complainant and Eunice left the house and the complainant
returned to her home;
(7) the complainant went to the
hospital on 26 March 2006 where she had to wait until midnight before
Dr. Van den Heever examined
her;
(8) Dr. Van den Heever recorded his
findings in the J88 at about 03h00 on 27 March 2006.
[6] The complainant testified that she
had gone to Sipho’s house in the company of Eunice who was
Sipho’s girlfriend.
She had met the appellant for the first
time at about 13h30 on the afternoon of 25 March 2006. She had not
previously met or
even seen him. She and Eunice attempted to go home
on at least two occasions but were prevented by the appellant and
Sipho. From
about 20h00 she and Eunice and the appellant and Sipho
sat and talked and the men drank beer. They were joined during the
evening
by Simpiwe and Promise who spent some hours at the house.
After Sipho and Eunice went to sleep and Simpiwe and Promise left the
house the appellant indicated that he wanted to have intercourse with
her and she refused. The appellant persisted and when she
resisted
he assaulted her. During the assault the appellant put his hands
around her throat and strangled her. During the struggle
the
complainant cried and screamed. Eventually the appellant overcame
her resistance and had intercourse with her against her
will. He had
intercourse with her for some time and used three condoms.
Afterwards they slept and she stayed there until early
morning when
she left with Eunice. She told Eunice that the appellant had
assaulted her by striking her and strangling her and
that he had had
intercourse with her against her will and that throughout he had used
a condom. She went to hospital on 26 March
2006 but had to wait
until midnight to see the doctor. She reported the rape to the
police the next day.
[7] The appellant testified that he
met the complainant for the first time at about 13h30 on 25 March
2006. They had gone to a
café where he had proposed love to
the complainant who, he said, had accepted. At Sipho’s house
he had had intercourse
with the complainant with her consent. They
had intercourse on 3 separate occasions. On each occasion he used a
condom. After
each act of intercourse he and the complainant lay
together and talked. He did not strike or strangle the complainant
and she
did not sustain any injuries while in his company. In his
evidence in chief he could not explain when or how she sustained the
injuries found by the doctor and he could not explain why the
complainant should lay a charge of rape against him if she had
consented
to the intercourse other than to say that she had
quarrelled with her boyfriend. Only in cross-examination did he
suggest that
her boyfriend had told him, the appellant, that he had
assaulted the appellant. This was not put to the complainant in
cross-examination.
[8] On appeal the appellant’s
attorney has subjected the state’s evidence to minute scrutiny
and referred to all the
contradictions between the complainant’s
and Eunice’s evidence and to the alleged improbabilities in the
state’s
evidence.
[9] Whatever the contradictions and
whatever the improbabilities (in my view there are none that are
material) the evidence must
be tested against the objective evidence
of the medical examination which is common cause. This evidence
shows that within hours
of the incident the complainant reported to
the doctor that on the evening of 26 March 2006 she was assaulted and
strangled and
then forced to have intercourse with a man who used a
condom; that the doctor found subconjunctival bleeding around the
right
eye and tenderness around the neck, back and left flank and
that there were a number of painful areas around her throat and on
her forearms and thighs. All these objective findings are consistent
with the complainant’s description of the assault in
her
evidence and what she reported to Eunice the morning after the
incident. The complainant’s evidence that she cried and
screamed during the assault is corroborated by Eunice. In the light
of this evidence the appellant’s evidence that he did
not
assault the complainant and did not see any injuries simply cannot be
believed. The appellant clearly could not explain how
the
complainant had sustained the injuries or why she would bring a
charge of assault against him. It was only when he was pressed
in
cross-examination that he suggested that the appellant’s
boyfriend had assaulted her – clearly an afterthought –
and gave a number of unconvincing and clearly contrived reasons why
the complainant laid the charge of rape. In addition the appellant’s
evidence is inconsistent with the following probabilities:
(1) If the complainant consented and
they had intercourse in the circumstances described by the appellant
- clearly congenial -
it is highly improbable that shortly after the
incident she would report that she had been assaulted and raped to
Eunice, Dr. Van
den Heever and the South African Police Service;
(2) If
the complainant consented to have intercourse with the appellant it
is highly improbable that he would assault her;
(3) If the complainant consented to
have intercourse with the appellant she would have simply had
intercourse and not cried and
screamed. If the story was a
fabrication it would be highly improbable that the evidence of the
complainant and Eunice would be
so similar with regard to the
incident itself;
(4) It
is highly improbable that the complainant would lay a false charge of
rape if she did not have a strong motive to do so.
On the record
there is none.
With regard to the complainant’s
evidence it is also significant that no attempt was made to discredit
her on the strength
of her statement and that the appellant’s
version was not put to her in any detail.
[10] The appellant could not deal with
these probabilities and in my view his evidence and that of his
witnesses was correctly rejected
by the regional court in the face of
the objective evidence and the probabilities. The appeal against
conviction therefore cannot
succeed.
[11] The appellant’s attorney
also argued that the appellant did not receive a fair trial as
required by the Constitution.
He contended that the presiding
magistrate descended into the arena, led evidence on behalf of the
state and interrupted the defendant’s
cross-examination by
asking questions at inappropriate times. It is significant that this
point was not raised during argument
before the court
a
quo
and that the
appellant’s legal representative did not object to the nature
or duration of the magistrate’s questioning
and point out that
he was being hampered in the presentation of the appellant’s
defence. It is obvious that a presiding
officer is entitled to ask
questions particularly in order to clarify matters arising from the
evidence. It is also well-established
that the questioning should be
conducted in such a way that the presiding officer does not lose his
objectivity or demonstrate
partiality. While it is true that the
presiding magistrate did ask a number of questions, perhaps more than
is desirable, the
content of the questions shows that he did this
primarily, if not exclusively, to clarify the evidence. On a reading
of the record
I am not satisfied that the presiding magistrate lost
his objectivity or showed that he was not impartial. In my view the
argument
is not borne out by the record and it cannot be upheld.
[12] As far as sentence is concerned
the appellant’s attorney argues that the sentence is excessive
and that the court did
not consider a number of relevant matters
properly or sufficiently. It is not necessary to consider all the
matters raised. The
court overemphasised the seriousness of the
offence. It stated that the complainant was severely beaten, which
is not borne out
by the record, and it was influenced by the fact
that there were three acts of intercourse (which ordinarily attracts
a life sentence)
despite finding that there was ‘one continued
sexual action of one rape’ (which attracts the minimum sentence
of 10
years imprisonment). The court also did not sufficiently take
into account the role of alcohol. It is clear that the appellant
consumed a great deal of alcohol during the course of the day and the
evening. As a result the court imposed a sentence which
is excessive
and differs to such an extent from the sentence which this court
would have imposed that interference is justified.
In my view a
sentence of 12 years imprisonment was the appropriate sentence.
Order
[13] 1. The appeal against the
conviction is dismissed;
2. The appeal against the sentence is
upheld and the sentence of 15 years imprisonment is set aside and
replaced with a sentence
of 12 years imprisonment;
3. In terms of section 282 of Act 51
of 1977 it is ordered that the substituted sentence be deemed to
have been imposed on 8
September 2008.
______________________
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
I
agree
______________________
S.S.
OMAR
ACTING
JUDGE OF THE HIGH COURT
CASE NO: A382/09
HEARD
ON: 2 November 2009
FOR
THE APPELLANT: MR. C. JORDAAN
INSTRUCTED
BY: Coert Jordaan Inc Attorneys
FOR
THE RESPONDENT: ADV. G.J.C. MARITZ
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 6 November 2009