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[2008] ZAWCHC 331
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Jacobs v S (A684/2007) [2008] ZAWCHC 331 (28 November 2008)
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOODHOPE PROVINCIAL
DIVISION)
CASE NUMBER:
A684/2007
DATE:
28 NOVEMBER 2008
In the matter between:
ROLAND
JACOBS
.........................................................................................
1
st
Appellant
LLEWELLYN
MANUEL
.................................................................................
2
nd
Appellant
RICARDO
GROENEWALD
.............................................................................
3
rd
Appellant
and
THE STATE
.......................................................................................................
Respondent
JUDGMENT
YEKISO,
J
:
The appellants, who appeared as
accused 1, 3 and 4 respectively, were charged in the regional court,
Parow, with one count of
abduction, six counts of rape and one count
of indecent assault. In as far as the charge of abduction is
concerned, the state
alleged at the time that on 30 May 1999, and at
Delft, in the regional division Western Cape, the appellants
wrongfully and intentionally
deprived the complainant, one A D, of
her freedom of movement by, amongst other things, assaulting her and
in the course of such
an assault, took her to a derelict dwelling in
Delft, where the appellants held her against her will.
As far as counts 2 to 7 are
concerned, these being the six counts of rape, the state alleged
that on 30 May 1999 and at or near
Delft, in the regional division
Western Cape, the appellants, being male persons, wrongfully and
intentionally had sexual intercourse
with the complainant, A D, who
was 14 years of age at the time, without her consent.
In as far as the indecent assault
charge is concerned, the state alleged that on 30 May 1999 and at
Delft, within the regional
division Western Cape, the appellants
wrongfully and indecently assaulted the complainant, A D, by
inserting their penises into
her mouth, forcing her to suck their
penises, inserting their fingers into her vagina and by having
sexual intercourse with her
per anum.
The appellants, all of whom were
legally represented, pleaded not guilty to all the charges preferred
against them. In a subsequent
plea-explanation in terms of
section
115
of the
Criminal Procedure Act, 51 of 1977
, and in as far as the
abduction charge is concerned, the first appellant denied the
allegation against him, did not make any
admission, thus placing
virtually each element of the offence concerned in dispute. In as
far as the rape counts are concerned,
the first appellant admitted
having had sexual intercourse with the complainant and stated that
same had occurred with the complainant’s
consent. In as far as
the charge of indecent assault is concerned, the first appellant
denied the allegation levelled against
him, making no admission in
as far as this count is concerned as well, thus placing all the
elements of the offence concerned
in dispute.
The second appellant pleaded not
guilty to all the charges levelled against him and elected not to
disclose the basis of his defence.
The third appellant similarly
pleaded not guilty to all the charges levelled against him and in,
as far as the rape charges concerned,
whilst admitting that he was
present in the dwelling where the complainant was allegedly sexually
assaulted, he denied having
had sexual intercourse with the
complainant, nor having indecently assaulted her.
In an attempt to prove its case, and
apart from the evidential material handed in, the state called six
witness, while on the
other hand each one of the appellants
testified in their own defence. After hearing evidence for the state
and the defence, the
magistrate concluded that the state succeeded
to prove its case against first and second appellant on the
abduction charge; that
the state succeeded to prove its case against
all the appellants on only five of the rape charges; acquitted all
the appellants
on the seventh count, it being the last count in the
rape charges and further convicted all the appellants on the eighth
count,
the latter being an indecent assault charge. The third
appellant was acquitted on the abduction charge, as also the seventh
count,
it being the last of the rape charges.
The appellants were subsequently
sentenced as follows. On the abduction charges, the first and second
appellants were sentenced
to seven years imprisonment. On the
conviction on the rape charges, each one of the appellants was
sentenced to 15 years imprisonment,
all charges having been
considered as one for purposes of sentence. On the indecent assault
charge, each one of the appellants
was sentenced to a further 15
years imprisonment, the court ordering that the sentence in respect
of the abduction charge be
served concurrently with the rest of the
sentences, thus effectively rendering the total period of
imprisonment to one of 30
years. The first and second appellants’
appeal is against the sentences so imposed, whilst the third
appellant’s
appeal is against both convictions and sentences
imposed.
It is worth
mentioning at this stage of this judgment that Francois Erskine, who
appeared as accused no 2 at trial, was similarly
convicted and
sentenced in respect of all those charges of which the first and
second appellants were convicted and sentenced.
He was similarly
sentenced to an effective 30 year term of imprisonment. His
subsequent appeal against conviction and sentences
imposed was
partially successful, in that whereas the conviction on all the
charges were confirmed, the sentences imposed were
reduced to an
effective 20 year term of imprisonment. That appeal was before
Veldhuizen
,
J and
Klopper
,
AJ and the judgment was subsequently reported under citation
S
v Erskine
2008 (1) SACR 469
(C).
I shall now proceed to consider third
appellants appeal against conviction on the five counts of rape. In
the light of the conclusion
I reach in as far as the third
appellant’s appeal against conviction on rape and indecent
assault charges is concerned,
it is not necessary for me, for the
purposes of this judgment, to summarise the evidence tendered at
trial in any great detail.
Reference will only be made to the
salient features of the complainant’s evidence and of the two
police officers who were
called to the scene of crime.
It is common cause that the sexual
assaults were perpetrated on the complainant in a derelict house in
Delft. The complainant
said it in so many words in her evidence that
whereas she was a victim of a gang rape, the appellant is not one of
the persons
who forced themselves on her. However, there does not
seem to be clarity, on basis of the evidence as a whole, whether the
third
appellant was present in the dwelling during the complainant’s
sexual ordeal. The complainant states in her evidence, under
cross-examination, that the third appellant was present at some
point in the dwelling in which she was raped and indecently
assaulted.
The third appellant, on the other
hand, states in his evidence that at no stage was he present in the
dwelling whilst the complainant
was being raped and indecently
assaulted. He had not been inside the dwelling, so he states in his
evidence, until the police
arrived at the scene. The complainant
goes so far as to say that at some point during her sexual ordeal,
the third appellant
demanded that she stimulates his genitals with
her hand, whilst in the process of being raped by one of the
perpetrators. She
goes further to say when she refused to accede to
the third appellant’s demand, the latter slapped her on her
face, whereupon
she did what the third appellant had demanded her to
do.
The magistrate accepted the
complainant’s version that the third appellant was present in
the dwelling when the complainant
was sexually assaulted. Although
the magistrate accepted that the appellant did not have sexual
intercourse with the complainant,
he nonetheless concluded that by
his conduct, namely, that of demanding that the complainant
masturbates him whilst in the process
of being raped, the third
appellant actively associated himself with the conduct of those who
had sexually and indecently assaulted
the complainant, more
especially, the fact that the third appellant took out his penis and
demanded that the complainant masturbates
him as being indicative of
his active association with the crimes which were being committed.
The magistrate proceeded to convict
the third appellant of rape on
the basis of common purpose with the other perpetrators.
It was wrong
for the magistrate to impute the conduct of the perpetrators of the
sexual assault on the third appellant. Such imputation
does not
operate in respect of charges which can be committed only through
the instrumentality of a person’s own body,
or part thereof,
or which is generally of such a nature that it cannot be committed
though the instrumentality of another. In
support of this
proposition, see
C R Snyman
,
Criminal Law
,
5
th
Edition, at page 269. See also
S v
Saffier
2003 (2) SACR 141
(SEC) at
page 143, paragraph [9] - [17] and at page 145.
The definition of rape might differ
from one writer to the other, but the essential element of this
offence, namely that of it
being wrongful and intentional sexual
intercourse with a woman without her consent, remains intact. In the
instance of this matter,
there is no evidence to suggest that the
third appellant had sexual intercourse with the complainant. On the
contrary, the complainant
says it explicitly in her evidence that
the third appellant is not one of those who had sexual intercourse
with her. It, therefore,
follows, in my view, that it was wrong for
the magistrate to have convicted the appellant of rape in the manner
he did. Such
evidence as there was, was insufficient to establish
that the third appellant acted as an accomplice to the rapes. It
further
follows, in my view, that the conviction of the third
appellant on the rape charges, cannot be sustained and falls to be
set
aside.
The third appellant was not amongst
those who were arrested at the scene of crime after the police had
arrived to rescue the complainant.
No mention was made of the third
appellant being involved in the commission of any crime when the
three perpetrators were arrested.
The third appellant was arrested
somewhat three to four weeks later, ostensibly on the basis of the
complainant’s statement
to the police to the effect that at
some point, whilst she was being raped by one of the perpetrators,
the third appellant was
seated next to her and demanded that she
masturbates him and when she refused to do so, the third appellant
slapped her on her
face, whereupon she acceded to his demand. The
complainant did not mention this fact at all in her evidence in
chief. It was
only in her evidence under cross-examination that the
matter of the third appellant’s involvement in the commission
of
the crime surfaced.
The third appellant had consistently
denied at trial having indecently assaulted the complainant in any
manner. The third appellant
denies having been inside the dwelling
when the complainant was sexually and indecently assaulted. Third
appellant’s evidence
is that he had not entered the derelict
dwelling on his return to the scene and that he was standing outside
the dwelling and
smoking when the police arrived.
Sergeant Carmen Jordaan, a female
police officer, who was part of the team of police officers who were
called to the crime scene,
tends to confirm the third appellant’s
version that he was outside the dwelling when the police arrived on
the scene. Sergeant
Jordaan’s evidence is that on their
arrival on the scene, only three of the perpetrators were inside the
dwelling and that
the third appellant was taken into the dwelling
from outside only after the police had arrived. This evidence is
corroborated
by Inspector Brian Daniels, who confirms that on their
arrival on the scene, the third appellant was outside the dwelling
in
which the crimes were being committed.
The fact that the third appellant was
outside the dwelling when the police arrived at the scene, the fact
that the third appellant
was not arrested shortly afterwards, the
fact that the complainant omitted to mention the third appellant’s
involvement
in the commission of any crime in her evidence in chief,
tends to create doubt in my mind if the third appellant was involved
in the commission of the crime of indecent assault in the manner
suggested by the complainant. That the third appellant was not
inside the dwelling when the crimes were being committed, is not
only being a matter of the complainant’s word against
that of
the third appellant. The third appellant’s version is
corroborated by the two police officers in the persons of
Sergeant
Jordaan and Inspector Daniels.
I have already pointed out that there
is doubt in my mind if the third appellant committed the crime of
indecent assault as suggested
by the complainant. It, therefore,
follows that the third appellant is entitled to the benefit of such
a doubt. In this regard,
the magistrate should have found at trial
that there is doubt if the third appellant did commit indecent
assault as the complainant
had testified; that the third appellant
is entitled to the benefit of such a doubt and should accordingly
have ordered his acquittal.
It, therefore, follows that third
appellant’s appeal against conviction on indecent assault,
should be upheld.
As regards sentence. Whilst a matter
of punishment, is a matter which inherently is within the discretion
of the presiding judicial
officer, a court of appeal will rarely, if
ever, interfere with the exercise of such a discretion. A court of
appeal will only
interfere with the exercise of such a discretion in
those rare instances where such discretion has not been exercised
judiciously,
including those instances where the sentence imposed is
exceedingly inappropriate.
Whilst the magistrate appears to have
adopted a balanced approach in considering relevant factors in the
determination of what
he viewed as appropriate sentences, in my view
the magistrate does not appear to have properly considered the
cumulative effect
of these sentences imposed. Although the offences
of which the first and second appellants were convicted are serious,
particularly
those relating to the rape charges, a total period of
30 years imprisonment is too severe in the circumstances of this
matter,
particularly in view of the fact that both the first and
second appellants are first offenders. It is on the basis of this
latter
fact and the
cumulative effect of the sentences
imposed, that I feel interference with the magistrate’s
discretion in the circumstances
of this matter is justified.
In my view,
interference with the magistrate’s exercise of his discretion
in the instance of this matter, is justified.
I would, therefore, in
the instance of this matter and in line with the approach adopted by
my brother
Veldhuizen
,
J in
S v Erskine
supra, interfere with the magistrate’s exercise of his
discretion to the extent that the effective 30 year term of
imprisonment
be reduced to an effective 20 years imprisonment.
However, I am constrained to differ
from the sentence imposed in respect of the rape charges. In view of
the heinous nature of
the crimes, there is, in my view, no reason to
reduce the sentence imposed by the regional magistrate for those
offences. The
sentences in respect of the other counts, can be
adjusted so as to ensure that the cumulative effect of the sentences
will still
be 20 years imprisonment, and in the result the three
appellants will be treated equally.
All factors taken into account, I
would, in the circumstances of this matter, propose the following
order:
1. That the conviction of third
appellant, that is Ricardo Groenewald on the charge of rape and
indecent assault, be set aside.
2. That the sentences imposed on the
first and second appellants, that is Ronald Jacobs and Llewellyn
Manuel respectively, be
set aside and be substituted with the
following sentences:
(i) As regards
count 1, which is the count of abduction, first and second
appellants are sentenced to
FIVE
(5) YEARS IMPRISONMENT
.
(ii) Counts 2
to 6, being counts relating to rape, all charges being considered as
one for the purposes of sentence, each one
of the appellants is
sentenced to
15 (FIFTEEN) YEARS
IMPRISONMENT
.
(iii) Count 8,
indecent assault, each one of the appellants is sentenced to
EIGHT
(8) YEARS
IMPRISONMENT
.
3. The sentence of five years
imprisonment on the abduction charge and three years of the sentence
on the indecent assault charges,
are to be served concurrently with
the 15 years sentence imposed on the rape charges, these being
counts 2 to 6.
4. The effective term of
imprisonment, therefore, is accordingly 20 years and the sentences
are antedated to 14 August 2002.
YEKISO, J
I
agree and it is so ordered:
CLEAVER,
J