Williams v S (A290/2008) [2008] ZAWCHC 77 (12 December 2008)

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[2008] ZAWCHC 77
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Williams v S (A290/2008) [2008] ZAWCHC 77 (12 December 2008)

IN
THE CAPE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
REPORTABLE
CASE
NO: A290/2008
In the matter
between:
ACHMAT
WILLIAMS
Appellant
and
THE
STATE
Respondent
_____________________________________________________________
JUDGMENT
BY : JAMIE, AJ
(ZONDI, J
Agrees and it is so ordered)
Snr Judge
For
the Appellant(s) : Adv. JC LOUW
Instructed
by : Zirk MacKay Attorneys
11
Manatoka Avenue
Amandelrug
KUILS
RIVER
(Ref:
Zirk MacKay)
For
the Respondent(s) : Adv. CJ DE JONGH
Instructed
by : The Director of Public Prosecutions
Date(s) of
hearing : Friday 21 NOVEMBER 2008
Judgment
delivered : Friday, 12 DECEMBER 2008
[REPORTABLE]
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO.: A290/08
In
the matter between:
ACHMAT
WILLIAMS
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON 12
DECEMBER 2008
JAMIE
AJ:
The Appellant was convicted on
14 April 2008 on one count of rape and one count of assault, in the
Regional Court for the Cape held
at Parow. He was sentenced in
respect of these offences, on 14 April 2008, to life imprisonment in
respect of the rape and to
six months imprisonment in respect of the
assault. The Appellant now appeals, as he is entitled to do, as of
right to this Court
against both his conviction and sentence in
relation to these offences.
Prior to the commencement of
the appeal hearing, the Court requested counsel to submit further
argument to it in relation to the
effect of the
Criminal Law
(Sentencing) Amendment Act 38 of 2007
, which came into operation on
31 December 2007. This Act,
inter
alia
, empowered
Regional Courts to impose a sentence of imprisonment for life for
offences referred to in Part 1 of Schedule 2 of Act
105 of 1997 and,
which sentence had been beyond its jurisdiction prior to 31 December
2007. I should mention that the offences
were allegedly committed
on 2 September 2005 and that Appellant’s trial commenced on 3
November 2006.
In response to the Court’s
request, Mr Louw, who appeared for the Appellant, submitted
additional written argument. In such argument
Mr Louw contended,
inter alia
,
that Act 38 of 2007 should not be given retrospective effect and
that, accordingly, the Regional Court had erred in imposing the
increased sentence, and that the maximum sentence that should have
been imposed under the circumstances, was the maximum sentence
that
was available to the Regional Court before 31 December 2007, viz a
sentence of a maximum of 15 years.
To the extent that the
Appellant’s argument is premised upon the principle that
legislation does not have retrospective or retroactive
application,
and that a penalty cannot be increased after the commission of an
offence, these principles are inapplicable.
Firstly, the aforementioned
principles are always subject to the express wording of the amending
act. In this case, section 53A(b)
provides unequivocally-
“
If a Regional Court has,
prior to the date of commencement of the Criminal Law (Sentencing)
Amendment Act, 2007-
(a) . . . ;
(b) not committed an accused
for sentence by a High Court under this Act, then the Regional Court
must dispose of the matter in terms
of this Act, as amended by the
Criminal Law (Sentencing) Amendment Act, 2007
.”
Inasmuch as the Regional Court
had not reached the stage of committing the Appellant for sentence
by a High Court at the time that
Act 38 of 2007 came into effect,
it was bound to itself dispose of the matter and to sentence the
accused in terms of its increased
jurisdiction.
As pointed out to Mr Louw
during argument, Act 38 of 2007 is quite unambiguous in its intent.
In the absence of any constitutional
challenge to the provision,
which it is not for a moment suggested would have any merit, the
clear wording of the Act must be complied
with. Accordingly, the
Regional Court clearly had the increased jurisdiction to impose
imprisonment for life upon convicting the
Appellant, as it did on 14
March 2008. The sentence of imprisonment for life was accordingly a
competent one when the Regional
Court sentenced the Appellant on 14
April 2008.
The second argument advanced by
Mr Louw is that the Appellant’s fair trial rights were breached
because he was not given adequate
or proper notification of the fact
that he would be essentially convicted of and sentenced for two
rapes. The argument appeared
to be that he should have been
specifically charged with separate counts of rape.
As pointed out by Mr De Jongh,
who appeared for the State, the charge sheet specifically referred
to sections 51 and 52 of Act 105
of 1997 and further indicated in
bold letters that the minimum sentence that was applicable was that
of imprisonment for life.
Given that the Appellant was
legally represented, there is, in my view, no merit in the
contention that his fair trial rights were
breached as he was at all
times aware that the minimum sentence legislation was applicable to
the charge that he faced. (See
S
v Ndlovu 2003(1) SACR 331 (SCA) 227 A-C
).
In any event, the relevant
section of Part 1 of the Second Schedule to Act 105 of 1997 does not
refer to separate charges or convictions
in respect of rape but to
“
circumstances
where the victim was raped more than once.”
This wording is to be contrasted with that in paragraph (a)(iii)
which refers to rape by “
a
person who has been convicted of two or more offences of rape.”
In other words,
where the Legislature envisaged separate charges or convictions of
rape, it made this clear.
Inasmuch as it was permissible
for the State to charge the Appellant in one charge with multiple
counts of rape, the conviction
is, in my view, one contemplated by
paragraph (a)(i) of Part 1 of Schedule 2 to Act 105 of 1997, and
accordingly the prescribed
minimum sentence of imprisonment for life
was applicable. (See
S
v Blaauw 1999(2) SACR 295(W) at 300 A-B
).
This brings me to the merits of
the appeal. The essentials of the State’s case were:
The complainant and her
cousins and friend were at a club in Goodwood;
During the course of the
evening the Appellant introduced himself to the complainant and
complimented her;
At a later stage, he followed
her to the womens’ bathroom and said that he wished her to have
sex with him. He also showed
her what appeared to be a firearm
that was stuck in his pants. She only saw the handle of the
firearm. He asked her why she
was not afraid of him and told her
not to try any tricks. They then left the bathroom;
She and her friends continued
to socialise with Appellant and his friends. The Appellant bought
the females drinks and they danced;
On a number of occasions, she
tried to pull away from him during the course of the evening when
Appellant’s attentions became
too overbearing;
Later they decided to go to a
shop to buy cigarettes. On her return, her cousin, Kurt, got out
of Appellant’s vehicle, while
the complainant, at Appellant’s
request, remained behind so that they could talk;
Instead of talking, Appellant
drove away. He wanted the complainant to masturbate him and when
she refused he hit her in the
face so that her head struck the
window of the vehicle;
She had no idea where they
were going but eventually they ended up in a secluded area,
apparently near Oudekraal along the Atlantic
seaboard;
Appellant tore off her
clothes, continued to hit her in the face in order to subdue her,
then raped her. When he was done, he
attempted to turn her over in
order to rape her anally. She resisted. He threatened to kill
her;
She located a bottle of beer
in the car and hit him in the face with it. She also stabbed him
in the stomach with a piece of
the bottle. The Appellant again
threatened to kill her as she was leaving evidence in his car,
referring presumably to the blood
from his head wound;
She begged him not to kill her
and smaid that he could do anything, even rape her and even take
her anally, provided that he did
not kill her. She then allowed
him to rape her again;
While he was busy, she managed
to get the door open. She kicked him off her and tried to get out.
He grabbed her arm and threatened
to break it if she did not get
back into the car. She kicked him again, spat in his face and then
ran away;
He caught up with her and
while lying on top of her, he hit her in the face on a number of
occasions with an empty cooldrink can.
She managed to escape again
and then fell into a ditch and played dead. Appellant eventually
left. The complainant was left
alone in the dark, naked except for
her socks;
She managed to flag down a
passing delivery vehicle and was taken to the police station and
then to hospital.
Viewed as a whole, I agree with
the Magistrate that the complainant testified in a coherent and
satisfactory manner and provided
a credible and convincing account
of events that, moreover coincided with the objective facts. The
major issue on which she was
criticised was the incident in the
bathroom.
While I agree that it is
unlikely that Appellant could have had a firearm in the club, the
fact of the matter is that there is no
direct evidence, save for
that of the Appellant himself, that he was in fact searched that
evening. Certainly, the complainant
and the other females in her
party were not searched that evening. In the absence of such
evidence, it cannot be ruled out that,
for whatever reason, the
Appellant was not searched that evening, and that he was able to
take a firearm into the club.
The complainant was also
criticised for her conduct in the club before she left with the
Appellant and Kurt. In particular, she
was criticised for not
informing her friends of the Appellant’s threats and the fact that
he had a firearm. Seen in context,
however, I consider the
complainant’s conduct to be such that it does not detract from the
reliability of her overall account
of events. While it is so that
she acted irrationally, even foolishly, in remaining in his company,
going with the Appellant to
the shop in his vehicle, and even more
so, in remaining behind in the vehicle after Kurt had left, this
must be seen in the context
of her evidence that she was scared of
him, although she did not think that he would actually carry out his
threats with reference
to the firearm.
In any event, I do not consider
the complainant’s evidence in relation to events at the club, and
whatever criticism might be
directed in that regard, as detracting
from the reliability of her evidence as to what transpired in the
vehicle while she and
the Appellant were alone.
In the premises, and regard
being had to the so-called cautionary rule in relation to single
witnesses in sexual offence cases,
I am satisfied that the
complainant’s evidence as to events in the motor vehicle is
satisfactory and reliable in all material
respects.
In contradistinction hereto,
the Appellant’s evidence was unsatisfactory and not reasonably
possibly true. In this regard:
His entire account of going to
the shop, or the
“tik
stop”
on his
version, is unconvincing. On his version, the shop next to the
club was open and sold cigarettes. Yet he, the complainant
and
Kurt went in search of another shop. Furthermore they did not go
to a shop at all but to an unknown part of a residential
area. The
Appellant, considerably older than the others, allows himself to be
directed as to where he should go by two young
strangers. He
merely goes along with them and neither before nor after the stop
at this unknown house does he ask them what
they were doing or
where they were going or for what purpose. Finally, and fatally
for his version, Kurt testified that he took
the cigarettes which
they purchased at the shop into the club and left them with one of
the girls. On Appellant’s version
however, there were no
cigarettes at all;
Secondly, the circumstances
under which complainant was left in Oudekraal, namely naked
alongside the road, is consistent with
her version, but not his.
The suggestion by the Appellant that complainant had taken off her
clothes in order to remove evidence
of her assault on him is
preposterous and not reasonably possibly true. Thus, it makes no
sense that she would have undressed
herself in order to hide
evidence of her assault on the Appellant. If she had indeed
unlawfully assaulted the Appellant, and
was now intent upon crying
rape in order to disguise her own crime, the logical and obvious
thing to do would have been to retain
the bloodied clothing, not
get rid of it. She would then be able to indicate to the police
how she had been bloodied during
the course of her defending
herself against the supposed rapist. To unclothe herself in these
circumstances makes no sense;
Furthermore, the idea that a
19 year old girl would, under the circumstances then prevailing,
undress herself leaving only her
socks on, for the far-fetched
reason that she wanted to get rid of the evidence of her assault of
the Appellant, is so unlikely
and in fact incredible, that it can
be dismissed out of hand;
The complainant’s account of
events is further borne out by the medical evidence and also the
evidence of Ronel Coetzee, the
woman who stopped for her, and who
described the complainant’s emotional state. Unless the
complainant was an accomplished
actor, her conduct is entirely
consistent with her version of events, and not consistent with that
of the Appellant.
For the aforesaid reasons I am
satisfied that there is no merit in the appeal against the
conviction of rape and that of assault,
and the appeals in this
respect are dismissed and the convictions confirmed.
SENTENCE
The Appellant is not a first
offender and has a previous conviction for rape for which he was
sentenced to seven years imprisonment.
This obviously counts against
him.
The Regional Magistrate appears
to have found that the amended section 51(3) (aA) was of application
and that he accordingly could
not take into account,
inter
alia
, the fact that
complainant was not physically injured as a substantial and
compelling circumstance. To the extent that the Magistrate
did take
this factor into account, he erred, as the change to the
substantive, as opposed to procedural, law does not find application
because of section 12(2)(e) of the Interpretation Act which
provides:
“
12(2) Where a law repeals
any other law, then unless the contrary intention appears, the repeal
shall not –
(e) affect any investigation,
legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, forfeiture
or punishment as is in this
sub-section mentioned,
and any such investigation,
legal proceeding or remedy may be instituted, continued or enforced,
and any such penalty, forfeiture
or punishment may be imposed, as if
the repealing law had not been passed.”
No contrary intention as
contemplated in section 12(2) of the Interpretation Act appears from
Act 38 of 2007, and accordingly the
amendments do not, otherwise
then as already dealt with, affect this matter.
I have accordingly considered
all the relevant facts, including the Appellant’s personal
circumstances, the lack of physical injuries,
or at least any severe
physical injuries, the circumstances of the crime, and the fact that
Appellant effectively abducted the
complainant in order to carry out
his intentions. On a conspectus of all these factors, I am of the
view that the Magistrate was
correct in finding no substantial and
compelling circumstances to depart from the prescribed minimum
sentence in respect of the
conviction for rape.
In relation to the conviction
of assault, the Appellant was sentenced to a relatively light 6
months’ imprisonment, which is,
in all the circumstances,
unobjectionable.
Accordingly, the appeal against
sentence is, similarly, dismissed.
_______________________________
JAMIE
AJ
I
agree, and it is so ordered.
_______________________________
ZONDI
J