Karrim v S (AR 460/07) [2009] ZAKZPHC 37 (6 August 2009)

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[2009] ZAKZPHC 37
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Karrim v S (AR 460/07) [2009] ZAKZPHC 37 (6 August 2009)

IN THE KWAZULU NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 460/07
In the matter between:
JONATHAN KARRIM
APPELLANT
and
THE STATE
RESPONDENT
APPEAL
JUDGMENT
Delivered
on 06 August 2009
_______________________________________________________
SWAIN J
[1] The appellant
appeals against his conviction in the Regional Court on a charge of
rape, with the leave of Pillay J, to whom
the matter was referred in
terms of
Section 52
of the
Criminal Law Amendment Act 105 of 1997
,
for sentencing. Pillay J confirmed the conviction and sentenced the
appellant to eighteen years’ imprisonment.
[2] The sole issue is
whether the Magistrate erred in rejecting the appellant’s defence
that he had consensual sex with the
complainant.
[3] It is clear that
the dispute of fact as to whether the appellant raped the
complainant, or whether he had consensual sex
with her, must be
resolved by the Court applying its mind not only to the merits and
the demerits of the State and defence witnesses,
but also to the
probabilities of the case
S v Singh
1975 (1)
SA 227
(N)
[4] Crucial to a
resolution of this issue is whether the complainant became aware
before or after the incident, that the mother
of the appellant’s
child, had torn some of the complainant’s clothes. It is common
cause that some of the complainant’s
clothes were torn by the
mother of the appellant’s child and that these clothes were left at
the room of the appellant, when
the complainant spent the night with
the appellant, a week before this incident, on 31 December 2004. She
had taken a change of
clothing with her on that occasion, so that she
would have fresh clothes to change into the following day.
[5] The relevance of
this issue is as follows. The complainant’s version was that the
appellant had undertaken to return
these clothes to her at work the
following week, but had failed to do so. She denied the appellant’s
version that these clothes
had been specifically left by her, as she
intended to return to his house the following weekend and they would
then be available
to her as a change of clothing.
[6] In addition the
complainant maintained that she became aware that her clothes had
been torn by the mother of the appellant’s
child during the week
preceding the alleged rape. She stated that the mother of the
appellant’s child had brought them to her
at her work. According
to the appellant however, he only told the complainant about her
clothes being torn after they had consensual
sex.
[7] Consequently, on
the complainant’s version she had ended her relationship with the
appellant before the date of the incident.
She stated that she felt
betrayed by the appellant because he had misled her to believe that
the mother of his child was a quiet
person who was not aggressive,
who had no problem with the relationship between the appellant and
herself. If this was so, then
on the complainant’s version, she
would have no reason to voluntarily accompany the appellant to his
room and she was forced
by the appellant to do so.
[8] On the
appellant’s version however, the relationship was not over, the
complainant was unaware of the fact that her clothes
had
been torn and that the
mother of the appellant’s child was vehemently opposed to their
relationship. Consequently, the complainant
accompanied him
voluntarily to his home, in accordance with their prior arrangement.
[9] In resolving this
conflict of fact certain aspects of the complainant’s evidence are,
in my view, of vital importance.
[10] The first
aspect relates to the complainant’s description of how she was
forced to accompany the appellant to his home.
She only revealed in
cross-examination that they had stopped at a bottle store on the way
so that the appellant could speak to
the owner
“so
that the owner could take me home in his vehicle”.
When
asked why she did not flee whilst the appellant was inside the bottle
store and had left her outside, for a period of some
four minutes,
her response was that she did not know where she was and the
appellant had also said that if he could not get transport
at the
bottle store, he would take her to the police station.
[11] It is quite
obvious that the appellant would not act in this manner if he was
forcing the complainant to accompany him to
his home. In addition,
of telling significance was her response, when asked why she had not
revealed this aspect in her evidence-in-chief,
when she said
“Oh
well it is because that did not help me on what I experienced on that
day”
.
[12] I also find the
complainant’s explanation of why her friend Ivy did not report the
complainant’s abduction at the hands
of the appellant, equally
unconvincing. She said that Ivy had no time to report to the police
station because
“she
was in a hurry to get home”
.
This is particularly improbable when it is recalled that the
complainant testified that the appellant had grabbed her by force
at
the taxi rank, in the presence of Ivy, who had remonstrated with the
appellant. The response of the appellant was simply to
tell Ivy to
leave, which she did without further ado.
[13] Of equal concern
is the complainant’s explanation as to why she was unable to alert
the other tenants where the appellant
lived, of her predicament.
Although the appellant lived in a room in the yard of the main house,
she agreed that there were people
at home, that the appellant had to
unlock a gate to enter the yard and that this caused the dogs to
bark. Her explanation for
not shouting for help was because the
appellant was threatening her and had said that
“I
was going to make him quarrel with the people who were in the main
house because even the dogs were barking”
.
I find this explanation totally illogical, because a quarrel between
the appellant and these people would be precisely what the

complainant would desire in order to reveal her plight. In addition,
it appears that these factors did not deter her from screaming
at a
later stage, when she alleged that the appellant threatened her with
a knife in his room and she said
“I
screamed because I wanted the people at the residential house to hear
me but nobody heard me because it was raining”
.
[14] As regards the
force the complainant said she was subjected to by the appellant in
order to rape her, she stated she was
throttled by the appellant on
four separate occasions. She said that on one of the occasions the
appellant throttled her
“until
my eyes turned white”
.
The complainant said there were however no visible marks or injuries
on her neck, but her neck was so painful she could not turn
her head.
Her throat area was however swollen and when she was examined by the
doctor who completed the J88 Form, he could not
find any marks on her
neck. She however told the doctor that she could not turn her neck.
Surprisingly however, the doctor recorded
that there were no signs of
assault. I find it incomprehensible that the doctor, being told by
the complainant that her neck was
so painful she could not turn it,
as a result of being throttled by her assailant, would make no note
of this.
[15] A further aspect
of the complainant’s evidence which I regard as grossly improbable,
is her allegation that after the
appellant had raped her
“he
then said I must go with him to the police station so that I could
charge him for raping me”
and
later she said that the
“police
said the accused came and reported himself that he had committed a
rape and they then locked him up”
.
No evidence was lead by the State to prove the latter allegation.
The appellant advanced a far more plausible reason why he
visited the
police station the following day, namely that he wanted certain
documents certified by the police, at which stage he
was arrested.
When he asked why he was being arrested, he was informed that the
complainant had laid a charge of rape against
him.
[16] All of the above
evidence leads me to the conclusion that it is grossly improbable
that the appellant forced the complainant
to accompany him to his
room and to then submit to his sexual desires. The shortcomings in
the complainant’s version also lends
credence to the appellant’s
version that the complainant only became aware of the incident
involving the tearing of her clothes,
after she had spent the night
with the appellant for the second time.
[17] This would also
explain why the complainant was angry and upset, causing her to
falsely implicate the appellant. She had
just found out that the
mother of the appellant’s child was not, as the appellant had led
her to believe, a quiet person who
would not oppose the relationship,
but on the contrary was violently opposed to her to the extent of
tearing her clothes. In her
own words the complainant felt betrayed
by the appellant and realised there was no future for her in a
relationship with the appellant.
In addition, she was fearful that
her father, who was very strict, would assault her for not coming
home. The following evidence
of the complainant is particularly
revealing
“Yes he was
angry when he realised that I was not coming back but on the
following day, when he heard my problem, the story he
then understood
my problem”
.
[18] There was
therefore, in my view, sufficient grounds for the complainant to
falsely implicate the appellant in answer to the
question why she
would behave in such a manner after apparently spending a pleasant
evening with the appellant.
[19] In my view
therefore, the defence of the appellant that the complainant had
consensual sex with him, was reasonably possibly
true and the
Magistrate erred in convicting the appellant. I would therefore
propose the following order:
The appeal succeeds, the
conviction and sentence of the appellant is set aside.
………………
Swain J
I agree
………………
.
Van Zyl J
I agree and it is so
ordered
………………
..
Levinsohn D J P
Appearances/…
Appearances:
Counsel for the
Appellant :
Adv.
P. Marimuthu
Instructed
by : Pietermaritzburg Justice Centre.
Pietermaritzburg
Counsel for the
Respondent : Adv. J. Du Toit
Instructed
by : Director of Public Prosecutions
Pietermaritzburg
Date of Hearing of
Appeal
: 31
July 2009
Date of Judgment
06
August 2009