Rabako v S (A234/2006) [2007] ZAFSHC 47; 2010 (1) SACR 310 (O) (7 June 2007)

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[2007] ZAFSHC 47
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Rabako v S (A234/2006) [2007] ZAFSHC 47; 2010 (1) SACR 310 (O) (7 June 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No: A234/2006
In
the case between:
TSAPELLO
RABAKO
Appellant
en
THE
STATE
Respondent
_____________________________________________________
CORAM:
MALHERBE,
JP
et
C.J. MUSI, J
et
MILTON, AJ
JUDGMENT BY:
C.J.
MUSI, J
_____________________________________________________
DATE HEARD:
07
MAY 2007
_____________________________________________________
DATE DELIVERED:
07
JUNE 2007
[1] I have had the
privilege of reading the judgment prepared, in this matter, by
Malherbe JP. I agree with the facts
1
as set out by him and
his finding that no irregularity that resulted in the appellant’s
right to a fair trial being affected occurred
in this matter.
_____________________________________________________
1. The
salient facts are that on 29 May 1999, late at night, the appellant
was requested to accompany the complainant to her home.
En route, he
threw her to the ground and raped her. Whilst raping her he stabbed
her several times with a knife. She sustained
three stab wounds on
her chest which were superficial; three deep lacerations on her right
hand. She also had a stab wound on the
back of her neck and two
lacerations on her left elbow. She
I have only one
substantive disagreement with his judgment and that relates to
whether this rape involved the infliction of grievous
bodily harm.
That difference of opinion means that I have to regrettably and
respectfully dissent for the reasons stated hereunder.
[2]
Section 52 (1)
of the Criminal Law Amendment Act
, No 105 of 1997 (the Act)
reads as follows:
“
If a regional court, following on:
a plea of guilty; or
a plea of not guilty,
has convicted an accused of an offence
referred to in –
Part 1 of Schedule 2; or
…
The court shall stop the proceedings
and commit the accused for sentence as contemplated in section 51 (1)
or (2) as the case may
be, by a High Court having jurisdiction.”
2
_____________________________________________________
received
medical treatment, the next morning, and the wounds on her chest,
hand and neck were sutured.
2. Section
51 (1) reads as follows:
“
Minimum
sentences for certain serious offences. – (1) Notwithstanding any
other law but subject to subsections (3) and (6), a High
Court Shall
–
if
it has convicted a person of an offence referred to in Part 1 of
schedule 2; or
if
the matter has been referred to it under section 52 (1) for
sentence after the person concerned has been convicted of an offence
referred to in Part 1 of Schedule 2,
sentence
the person to imprisonment for life”
[3] The regional
magistrate was of the view that the appellant committed rape
“involving the infliction of grievous bodily harm”
3
as
mentioned in Part 1 of Schedule 2 and referred the matter to this
court for sentencing. Knoetze AJ, without requesting the regional
magistrate for reasons for her findings,
4
was of the view
that the rape did not involve the infliction of grievous bodily harm
and proceeded to sentence the appellant to 20
years imprisonment.
Knoetze AJ’s reasoning is set out in Malherbe JP’s judgment.
[4] Grievous bodily harm
is not defined in the Act. I could not find any South African
authority in which the words grievous bodily
harm, as used in this
schedule, have been interpreted. In
R v Jacobs
1961
(1) AD 475
at 478 Hoexter JA succinctly and correctly distinguishes
between intent to do grievous bodily harm and inflicting grievous
bodily
harm. He states it thus:
3. See
Schedule 2 part 1(c) of the Act.
4. Contrary
to section 52 (3) b) which provides that:
“The
High Court shall, after considering the record of the proceedings in
the regional court, sentence the accused as contemplated
in section
51 (1) or (2), as the case may be, and the judgment of the regional
court shall stand for this purpose and be sufficient
for the High
Court to pass such sentence: Provided that if the judge is of the
opinion that the proceedings are not in accordance
with justice, he
or she shall, without sentencing the accused, obtain from the
“
The question whether grievous
bodily harm has been inflicted depends entirely upon the nature,
position and extent of the actual wounds
or injuries, and the
intention of the accused is irrelevant in answering that question.”
[5] In
Matzukis v
The King
1940 SR 76 at 78 – 79 Lewis J although dealing
with assault with intent to do grievous bodily harm said the
following:
“
The
crime of assault with intent to do grievous bodily harm is one which
is peculiar to South African jurisprudence and is recognised
in the
penal code of this Colony as an indictable offence distinct from
other types of assault. Though it has not its exact counterpart
in
the systems of Roman Dutch or English Law, it bears a closer affinity
to the statutory offence in English than to anything in
Roman Dutch
law, and in fact the whole conception of the crime of assault in
South African jurisprudence as was pointed out in the
case of Rex v
Jolly and Others
(1923, A.D. 184
, KOTZE, J.
A
.)
appears to have developed in imitation of the nomenclature and
principles of the English system.
The English Act 24 and 25 (Vict. C.
100, s. 18) creates the offence of unlawfully and maliciously causing
grievous bodily harm or
discharging firearms with the intent.
_____________________________________________________
regional
magistrate who presided at the trial a statement setting forth his or
her reasons for convicting the accused.”
It thus differs from the crime as it
exists under our system in that it is confined to the actual
causation of grievous bodily harm,
and to a limited species of
assault (namely by the use of firearms) in so far as the intent to
do grievous bodily harm is concerned.
Nevertheless the English
decisions upon the questions as to what constitutes bodily harm and
the intent within the meaning of the
stature afford useful guidance.
They are referred to in RUSSEL on Crimes (8
th
Ed., Vol. 1,
at pp. 812, 813). In Rex v Ashman (1 F. & F. 88) the following
instruction was given by WILLIES, J., to the jury:
“You must be
satisfied that the prisoner had an intent to do grievous bodily harm:
it is not necessary that such harm should
have been actually done or
that it should be either permanent or dangerous: if it be such as
seriously to interfere with comfort
or health it is sufficient.”
5
Lewis J accepted the
approach in
Rex v Ashman
that for harm to constitute
grievous bodily harm it must be such as seriously to interfere with
comfort or health. In fact the
Rex v Ashman
definition
became the
locus classicus
in the United Kingdom.
_____________________________________________________
5. Historically,
the words grievous bodily harm antedates the United Kingdom’s
Offences Against The Person Act of 1861. R v Ashman
is a matter that
was decided in 1858.
[6] The
Ashman
definition was reconsidered and overturned by the House of Lords in
the matter of
DPP v Smith
1961 (A.C.) 290.
Viscount Kilmuir L.C. with the agreement of all members of the House
came to the following conclusion:
“
My
Lords, I confess that whether one is considering the crime of murder
or the statutory offence, I can find no warrant for giving
the words
“grievous bodily harm” a meaning other than that which the words
convey in their ordinary and natural meaning. “Bodily
Harm”
needs no explanation, and “grievous” means no more and no less
than “really serious.” In this connection your Lordships
were
referred to the judgment of the Supreme Court of Victoria in the case
of Rex v. Miller(1951)V.L.R 346, 357. In giving the judgment
of the
court, Martin J., having expressed the view that the direction of
Willes J. could only be justified, if at all, in the case
of the
statutory offence, said: It is not a question of statutory
construction but a question of the intent required at common law
to
constitute the crime of murder and there does not appear to be any
justification for treating the expression ‘grievous bodily
harm’
or the other similar expressions used in the authorities upon this
common law question which are cited above as bearing any
other than
their ordinary and natural meaning.” In my opinion, the view of the
law thus expressed by Martin J. is correct, and
I would only add that
I can see no ground for giving the words a wider meaning when
considering the statutory offence. It was, however,
contended before
your Lordships on behalf of the respondent that the words ought to be
given a more restricted meaning in considering
the intent necessary
to establish malice in a murder case. It was said that the intent
must be to do an act “obviously dangerous
to life” or “likely
to kill.” It is true that in many of the cases the likelihood of
death resulting has been incorporated
into the definition of grievous
bodily harm, but this was done, no doubt, merely to emphasise that
the bodily harm must be really
serious, and it is unnecessary, and I
would add inadvisable, to add anything to the expression “grievous
bodily harm” in its
ordinary and natural meaning.”
[7] There is nothing in
the Act or Schedule that indicates that the words should be
interpreted restrictively or widely. In my judgment
the words should
be given their ordinary, natural meaning. I agree with the words of
Viscount Kilmuir L.C. that they only mean really
serious. The words
“really serious” should be illuminated lest it leads to confusion
or overemphasis. The
New Shorter Oxford English Dictionary:
Lesley Brown (Ed)
1993 defines the word
“really” as
“In a real manner; in reality; actually
.
Used to emphasise
the truth or correctness of an epithet or statement: positively,
decidedly’ assuredly.”
The word therefore does not indicate
degree of seriousness. In this context it only serves to emphasize
that the harm inflicted
must actually be serious. In essence then if
the injury inflicted by the accused on the body of the rape survivor
is serious then
it involves the infliction of grievous bodily harm.
A serious injury at one extreme may mean an injury so serious as to
endanger
life, necessitate hospitalisation or to result in permanent
loss of bodily or mental faculty at the other; it may include a wound
that heals rapidly. It should not be a trivial or insignificant
injury. A serious injury therefore need not necessarily be an injury
that is permanent, life threatening, dangerous, or disabling.
Whether the injuries were life-threatening, necessitated
hospitalisation
or immediate medical attention will generally be
relevant to determine the degree of seriousness but not necessarily
the seriousness
itself. Whether an injury is serious will depend on
the facts and circumstances of every case.
[8] In
S v Ferreira
1961 (3) SA 724
(E) at 725 F – G Cloete AJ albeit in another
context opined that:
“
One
must assess the question of whether the injuries are serious or not
directly with reference to the particular victim who has suffered
them and not some arbitrarily defined average human being.”
6
I
agree.
[9] In
R v Jacobs
supra
Van Winsen AJA, as he then was, stated, at 485 B – D:
“
In
deciding whether the Crown has proved the infliction of grievous
bodily harm by the accused, the jury would, in my opinion, be
entitled to have regard to the whole complex of objective factors
involved in the appellant’s assault upon the deceased. It could
take into consideration the shock which would inevitably result to
the deceased by reason of the fact that the accused directed two
blows at his face with a knife. It could have regard to the wounds
resulting from the stabs in the face, their number nature and
seriousness, as well as to the blows directed to the accused’s
(sic) stomach, their severity and the results which flowed from
their
infliction.”
_____________________________________________________
6. In
S v Ferreira supra Cloete AJ had to determine what is meant by
“serious bodily injury” In Section 116 (a) of Ordinance 19
of
1955 which reads as follows:
“
116. Notwithstanding
the provisions of sec. 115, a court convicting a person-
(a) of
an offence under para. (a) of sub-sec. (1) of sec. 107 shall, if such
person’s recklessness or negligence resulted in serious
bodily
injury to any other person, suspend the driver’s licence of the
person so convicted for a specified period or cancel such
licence, or
if he does not hold a driver’s licence, declare him to be
disqualified, permanently or for a specified period, from
obtaining a
driver’s licence;”
[10] It seems to me that
in order to determine whether the injuries in a particular case are
serious one has to have regard to the
actual injuries sustained, the
instrument or object used, the number of the wounds – if any -
inflicted their nature, their position
on the body, their seriousness
and the results which flowed from their infliction. It must be
remembered that an injury can be serious
without there, necessarily,
being an open wound. In order to determine this, the judicial
officer will be guided by medical evidence.
It is therefore
advisable that in all such cases – where a finding in relation to
infliction of grievous bodily harm is considered
– medical evidence
should be presented. The absence of medical evidence however is not
fatal. In this matter we have the benefit
of the undisputed evidence
of the complainant in relation to the injuries that she sustained as
well as a medical report (J88) the
contents of which was admitted by
the defence. Although the J88 form that was completed by the medical
practitioner who examined
the complainant was not before us, it was
before the regional magistrate. She read the doctor’s relevant
findings into the record.
From those findings, the doctor does not
make mention of a wound on the complainant’s neck. The complainant
pertinently testified
that she sustained an open wound at the back of
her neck which was sutured. The doctor did not testify. The
correctness of what
he recorded was not tested. Her evidence in this
regard ought to be accepted.
[11] Knoetze
AJ, in reaching the conclusion that he did, followed an
uncontextualised and fallacious approach. He states that
“
Die beserings het nie die klaagster
daarvan weerhou om self,
soos dit in die rekord staan, ‘n
hele ent na die polisiestasie toe te loop nie.”
This reasoning is
fallacious on two grounds. Firstly, it presupposes that the
complainant had a choice. She had no choice but to
walk to the
police station to seek refuge and assistance. Secondly it looses
sight of the fact that a serious injury need not be
a disabling
injury.
[12] He
argues that
“
Die
beserings toe die klaagster by die polisiestasie aankom, was nie so
ernstig dat die polisie dit nodig geag het om haar dadelik
mediese
hulp te gee nie.”
This argument does not
factor in the context of this matter as well as the situation that
was foisted on the complainant. Extracts
from the complainant’s
evidence clearly reveal a total lack of sensitivity and probably a
dereliction of duty on the part of the
policeman – who was the only
police officer at the police station on that evening. She testified
as follows:
“
Dit maak nie saak of dit ‘n
polisiebeampte of ‘n siviele persoon nie. Ek wil weet wie is die
heel eerste persoon aan wie u vertel
u is verkrag?-- Dit is daardie
polisiebeampte by die polisiestasie nadat ek daar… (onduidelik)
Het
u vir hom vertel u is verkrag? – Ja.
Was
u liggaam vol bloed al dan nie en u klere in watter toestand was dit?
– My liggaam sowel as my klere was vol bloed gewees.
U sê u slaap toe daar die aand by die
polisiestasie? –Ja.”
[13] During cross
examination she testified as follows:
“
Ek
sien, mevrou is dit nie so dat u vir die polisiebeampte gesê het dat
u aangerand is nie? – Ek het vir hom gesê dat hierdie
persoon het
my verkrag.
En
selfs nadat u gesê het u is verkrag, wou die polisiebeampte nie u
saak neem nie? – Ja want daarna het hy gesê ek moet loop.
Mevrou
ek stel dit aan u dat die polisiebeampte het vir u gesê u moet loop,
hy wou nie u klagte vat nie, want u was erg onder die
invloed van
drank gewees. – Nee ek was nie dronk gewees nie.”
The theme about her
state of intoxication is later put to her:
“
U
sien mevrou dit maak nie vir my sin nie. Ek stel dit aan u, u het so
sterk onder die invloed van drank by die polisiestasie aangekom
dat
die polisie u maar summier in ‘n sel gesit het om u roes te laat
afslaap, hulle sou die volgende dag hoor wat u klagte is.
– Nee dit
is nie die geval nie, ek het vroeër in my getuienis gesê dat omdat
ek die persoon bang was en bang was om alleen daardie
nag te loop,
het ek vir die polisie gevra om my toe te laat om die nag daar by
hulle deur te bring.”
It is clear that the
police did not render her any assistance. She received no service
from the South African Police Services on
that evening. It was not
for the police officer to assess whether she needed medical
intervention. The fact of the matter is that
she was a rape survivor
who presented obvious injuries. The police officer had a duty to see
to it that she receives medical treatment.
When she eventually
received medical intervention the doctor deemed the wounds
sufficiently serious to have them sutured. She did
not receive
immediate medical attention because the police officer – whatever
his reasons where – did not give her immediate
access to medical
treatment. She had no say in the matter. She had Hobson’s choice.
In deciding whether she had serious injuries
the police officer’s
judgment is in my view totally irrelevant. He did not testify.
There is no reason, on record, why he did
not give her access to
medical treatment. It is therefore mere speculation to say he did
not deem the injuries serious enough to
give her immediate access to
medical treatment.
[14] The complainant in
this matter sustained various wounds and injuries. She was stabbed
no less than eight times with a knife.
Seemingly the three deep
lacerations on her hand were the most serious. The hand is part of
the body. The wounds bled to the extent
that her clothes and body
was full of blood. When she received medical intervention the wounds
were sutured. Even without the
viva voce
evidence of the
doctor, I am of the view that those injuries were indeed actually
serious to constitute grievous bodily harm. A
careful reading of
Knoetze AJ’s judgment shows that he, at worst erroneously
interpreted the words restrictively, at best, he unnecessarily
adopted a restrictive approach. In my view, Knoetze AJ was wrong in
his finding that the injuries did not constitute grievous bodily
harm. He misdirected himself in coming to that conclusion. In my
judgment, the magistrate was correct in finding that this was
a rape
involving infliction of grievous bodily harm. We are therefore at
large to interfere with the sentence imposed.
[15] The
only personal circumstances of the appellant, on record, is that he
is a 31 year old first offender.
[16] I agree with Knoetze
AJ that the crime that the appellant committed is a very serious
crime and that it was committed in a cowardly
manner by someone who
was supposed to protect the complainant. The appellant was requested
to make sure that the complainant arrives
home safe but instead he
did the very thing and worse that he was supposed to protect her
from. He sadistically stabbed her whilst
he was busy raping her.
[17] Mr Nkhahle, on
behalf of the appellant argued that there are substantial and
compelling circumstances in this matter. Mr Botha
conceded,
rightfully so, that there are substantial and compelling
circumstances.
[18] The following are in
my view substantial and compelling circumstances. The appellant is a
first offender. He spent 2 years
and 3 months in custody awaiting
trial. He pleaded guilty –
albeit
after evidence linking
him with the crime was led. This is in my view a sign of contrition.
Although the rape and the injuries
are serious, this rape does not
fall within the worst category of rape.
S v Mahomotsa
2002 (2) SACR 435
(SCA);
Rammoko v Director of Public
Prosecutions
2003 (1) SACR 200
(SCA) paragraphs 12 and 13.
One can easily imagine worst injuries being inflicted on a survivor.
There is no evidence in relation
to the psychiatric effects of this
crime on the survivor. In my view this crime calls for long term
direct imprisonment. Twenty
years imprisonment is not shockingly
inappropriate. The court a quo however did not take into
consideration the period that the
appellant was incarcerated while
awaiting the finalisation of this matter. That period ought to have
been taken into consideration.
S v Nkomonde
1993 (2)
SACR 597
(W) at 598 b – c;
S v Stephen and Another
1994
(2) SACR 163
(W) at 168. The period of twenty years should therefore
be reduced by two years.
[19]
I would
accordingly make the following order:
(a) The conviction of
the regional magistrate, i.e. rape involving the infliction of
grievous bodily harm, is confirmed.
(b) The sentence of 20
years imprisonment imposed by Knoetze AJ is set aside and replaced by
18 years imprisonment.
(c) The sentence is
antedated to 20 August 2001.
_________________
C.J.
MUSI, J
I
concur.
________________
MILTON, AJ
On
behalf of Appellant: Mr. J. Nkhahle
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the Respondent: Adv. D. Botha
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN
ms