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[2024] ZAECMKHC 70
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Hesi v S (CA&R 196/2023) [2024] ZAECMKHC 70 (20 June 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MAKHANDA]
CASE NO. CA&R196/2023
In the matter between:
UNATHI
HESI
Appellant
and
THE
STATE
Respondent
JUDGMENT
JOLWANA J:
[1] The appellant
appeared before the Regional Court sitting in Tarkastad in the
Eastern Cape on two charges, one of which was a
charge of
housebreaking with intent to rape and rape, and the other being theft
of loose potatoes and vetkoeks with a combined
value of R20.00. He
pleaded not guilty to both charges. He was however convicted on both
charges. He was thereupon sentenced to
life imprisonment in respect
of housebreaking with intent to rape and rape. In respect of the
theft conviction he was sentenced
to 3 months imprisonment. He has
exercised his automatic right of appeal in respect of the rape
conviction and sentence. He appeals
only against conviction in
respect of the theft count.
[2] On 15 September 2019
the complainant was at her great grandmother’s house at M[…]
Street in T[…] at about
21:00 that Sunday night. At that time
the complainant was all by herself. The house was fenced, had seven
rooms and there were
only two exit doors. The kitchen door was closed
and locked. The front door was just closed but it was not locked. The
windows
were closed as well. The gate was closed but it was not
locked. There was electricity in the house which provided light.
[3] The complainant
testified that at the time of the incident she was in her room lying
down on top of the bed, but she was not
underneath the blankets. The
appellant came into her room and immediately switched off the
electric light in the room. Her evidence
was that she did not see the
appellant when he entered through the dining room door but because it
was not locked he would have
used it to gain entry into the house.
When the appellant entered the room, she was in deep sleep. She was
woken up when she heard
her bedroom door opening and it made a sound
as it was being opened. Initially, she thought it was her boyfriend
who was entering.
[4] When the appellant
switched off the light she then woke up. At that stage she did not
know who was entering her bedroom. She
then thought that it was a
stranger because her boyfriend did not switch off the light when he
entered her bedroom. She woke up
in a state of shock and realised
that the person entering was the appellant. She recognised appellant
through his voice. Furthermore,
she had her electric heater on, and
it provided sufficient light. After switching off the light the
appellant came to her bed and
climbed on to the bed where she was
lying.
[5] He took off his pants
and his shirt after which he undressed her of her jeans, trousers,
her tight pants and her black panty
which she was wearing. He
threatened to kill her if she made noise. When all of this was
happening, she was already aware that
it was the appellant. She
screamed in fear. He proceeded to take out his penis and inserted it
into her vagina thus raping her.
She was terrified at the time. After
he inserted his penis in her vagina, he penetrated her two times. He
used a pillow to smother
her to prevent her from screaming. The
complainant explained that after inserting his penis in her vagina he
ejaculated, and this
was the second time in which he inserted his
penis into her vagina.
[6] He then used a pillow
to smother her. This was the third occasion which was when he
penetrated her from the back by inserting
his penis into her anus. He
did the back penetration by turning her around so that her back faced
him and inserted his penis in
her anus. The complainant explained
that on the first occasion when he vaginally penetrated her, he did
not ejaculate. He again
inserted his penis into her vagina which is
when he ejaculated. The third occasion was when he penetrated her
anally. However,
he did not ejaculate on the third occasion. After
the anal penetration he got off her and it was at that stage that he
smothered
her with a pillow saying she was making noise.
[7] She then heard her
mother’s voice coming from the dining room. She could not
respond to it because the appellant had smothered
her. She then heard
the sound of the door closing. The appellant stood up on realising
that her mother had left and went to the
kitchen. Her mother did not
come to the bedroom. At the time the appellant was going to the
kitchen she was getting dressed so
that she could run away and report
what had happened to her. She did not follow him to the kitchen. The
appellant came back to
the bedroom to get his lumber jacket. It was
at that stage that she noticed that he was carrying loose potatoes
and some fat cakes.
These were in the kitchen before he took them. He
took his lumber jacket and left with the potatoes and the fat cakes.
[8] Not long thereafter,
her boyfriend arrived. She and her boyfriend had an argument
emanating from their previous quarrel. After
that argument they slept
but they did not engage in sexual intercourse. In the morning, she
did not tell him what had happened
to her. She did not tell him that
the appellant was there but eventually she told him. She explained
that she was initially reluctant
to tell him because she thought he
was not going to believe her. When she eventually told him that the
appellant was there, his
response was that maybe he was looking for
him. She then decided not to tell him the details of what actually
happened because
she knew he was not going to believe her.
[9] She woke up the
following morning after telling him that the appellant was there
leaving him in bed without telling him where
she was going. She went
to her next-door neighbour N[...] M[...] (N[...]) and reported to her
what she was put through by the appellant.
She simply told N[...]
that the appellant came into her house and raped her but did not tell
her the details of how he raped her.
N[...] advised her to go to the
police and report the incident. Indeed, she went to the police and
reported the matter. The police
came to her house as part of the
investigation. They then looked for the appellant. She showed the
police a shirt that was hanging
in the washing line at the
appellant’s home which the appellant was wearing when he came
to her house. However, the appellant
was not at his home. She and the
police looked for him and even went to her boyfriend’s place to
look for the appellant.
They did not find him even there. The police
then brought her home. At the time he went to the police to report
the rape she was
taken to Tarkastad Hospital where the doctor
examined her including in her private parts.
[10] The complainant
explained that the night of the incident was not the first time that
the appellant had come to her place of
residence. He would come
together with her boyfriend but he had never come there alone before.
The appellant had no relationship
with her. She further elaborated
that she told the appellant that as a friend to her boyfriend she
could not be the one raping
her because she trusted him. He
frequented her place of residence and she never thought that he could
sexually assault her. At
some stage she told her boyfriend what the
appellant had done to her.
[11] Under
cross-examination the complainant denied that on the day of the
incident she had been drinking alcohol with the appellant
and her
boyfriend at Mpolweni Tavern. She testified that her boyfriend would
come to her place every night at different times.
Before the incident
the appellant had never come to her place without her boyfriend. When
he entered her bedroom that night, he
did not say anything except at
the time he was climbing onto the bed which is when he told her to
shut her mouth. At that stage
she already knew that the person was
the appellant having recognised him. In her room her four-bar heater
was on which provided
sufficient light for her to be able to identify
him. Save for some immaterial contradictions like at which stage was
a pillow placed
on her face, was it on the second penetration or
third penetration occasion, her evidence in chief and her evidence
under cross
examination remained largely consistent.
[12] The version of the
appellant that was put to the complainant was that the appellant, the
complainant and her boyfriend were
drinking together at Mpolweni
Tavern on the day of the incident. Whilst they were there her
boyfriend told her not to drink any
alcohol. She then asked the
appellant to pour some alcohol for her. She and the appellant then
made plans to meet later at her
place and that her boyfriend must not
know about those arrangements. The appellant agreed to those plans.
The complainant then
whispered to him that she would leave the door
unlocked to allow him to come into her house so that they may sleep
together. Thereafter
she left him with her boyfriend. The
appellant later went to her house leaving her boyfriend at the tavern
and found the
gate locked. He called out to the complainant who then
came to open the gate for him. They both went into the house and had
one
round of consensual vaginal sexual intercourse. After that there
was a knock on the door which was her boyfriend knocking. The
complainant told him to hide and sneak out after her boyfriend would
have come in. He did so and went home. He was shocked the next
day
when he heard that she was saying that he raped her. The complainant
denied the entire version of the appellant as being false
and denied
giving him consent to have sexual intercourse with her.
[13] The next State
witness was Nolubabalo who confirmed that the complainant arrived at
her house in the morning on 16 September
2019. She was shivering and
in a state of shock and told her that something happened to her and
said that she was raped and started
crying. When she asked her who
raped her, she said she was scared to name the person as he
threatened to kill her if she mentioned
his name. She then told
her to report the matter to the police. She later came back with the
police and told her that she
had been to hospital as well. After she
came back with the police, she told her that she had been raped by
the appellant. After
her evidence a medico-legal examination report
was admitted into the evidence by agreement with the legal
representative of the
appellant. It showed bruises inside the vagina,
a 6 o’clock tear in the lower vagina and multiple anal
circumferential tears.
After that the State closed its case.
[14] The appellant’s
evidence was that he was 26 years old and resided at Z[…]
L[…], Extension […] in
T[…] where he stayed with
his mother. He was born there. On 15 September 2019 he met the
complainant at Mpolweni Tavern
and they drank together. The
complainant was with her boyfriend. He went to the tavern at about
22:00. As the three of them were
drinking together the complainant’s
boyfriend told her not to drink alcohol. The complainant came to him
and asked him to
pour her a drink and he poured her a glass. They
were sitting at different tables. The appellant was sitting with the
complainant’s
boyfriend while she was sitting with her friends
at another table.
[15] He gave the
complainant a glass of wine. She later came to him and said that he
should visit her at her place, but he should
not tell her boyfriend.
She then left him at the tavern. At about 23:30 he also left
proceeding to her place. When the complainant
came to him asking him
to come to her place her boyfriend was present. He went to her place
and found the gate locked. He called
out her name and she came to
open the gate for him. They went inside the house. They then had
consensual sexual intercourse. There
was a knock at the door while
she was on top of her. It was her boyfriend calling out her name. She
got up and told him that their
sexual encounter must be kept secret
and that he must not tell her boyfriend or her mother. She told him
to hide in another room
after which she went to open the door for her
boyfriend. Her boyfriend came into the house while he was still in
the house. The
complainant then came to the room in which he was
hiding and told him to sneak out, which he did and went home to
sleep. He was
arrested a week later. He denied penetrating her more
than once or penetrating her anally. He denied putting a pillow on
her face
to stop her from screaming saying there was no pillow there.
He did not recall going to the kitchen and taking the items he was
accused of stealing.
[16] Under
cross-examination the appellant testified that the complainant was
drunk. When the complainant told him that he must
come to her house
she did not tell him what he would be going there to do. That was the
first invitation he ever got from the complainant.
He never thought
that he and the complainant would have sexual intercourse. At 21:00
on 16 September 2019 he was still at work
where he was doing his odd
jobs. This was the same time that the complainant was being
raped. When he was at the complainant’s
place the complainant
was clad in a heart dotted gown which was black. When they got to her
bedroom, she took off the gown and
placed it on the floor and asked
to have sexual intercourse with him. When she took off her gown, she
was completely naked. He
denied putting a pillow on her face and said
that he never smothered her. He testified that the complainant never
screamed. After
his evidence the appellant’s case was closed.
[17]
The court a quo was mindful of the fact that the State relied on the
evidence of a single witness and the cautionary rules
that apply in
assessing and evaluating that evidence. It went on to say that whilst
it was so that there is no rule of thumb or
formula for the
consideration of the credibility of the evidence of a single witness
it was required to weigh all the evidence,
consider the merits and
demerits of the case, and decide whether that evidence was
trustworthy despite its shortcoming, defects
or contradictions.
Having done so it must satisfy itself that the truth has been
told
[1]
.
[18] In this matter the
objective evidence reveals the following. The complainant was alone
in her home at the time of the incident.
The appellant was a
frequenter to that home as he often went there with his friend who
was the complainant’s boyfriend. He
would have been aware of
the ways to enter that homestead and the fact that the main door was
often closed and unlocked to allow
the complainant’s boyfriend
to come in at some point during the night. The appellant left the
Mpolweni Tavern leaving the
complainant’s boyfriend there in
circumstances in which he would have known that the complainant would
be alone. He went
to the complainant’s house and found her
alone. His version was that he went there by arrangement with the
complainant that
he should go there and not tell the boyfriend of the
complainant that he had been invited to go there.
[19] He got there and had
sexual intercourse with the complainant which he said it was
consensual. The first thing she did the following
morning was to tell
her neighbour Nolubabalo that she had been raped. Nolubabalo
encouraged her to report the matter to the police.
The police took
her to hospital and the J88 report revealed some injuries in her
vagina and she also had some anal injuries. The
complainant’s
version was that not only was she penetrated by the appellant more
than once but also on the third occasion
she was anally penetrated.
The vaginal and anal injuries support the complainant’s version
in some important respects in
this regard.
[20] The evidence of the
complainant, while very credible, was by no means perfect or without
discrepancies. However, it was corroborated
in some important respect
by that of the appellant himself. It was also corroborated by that of
Nolubabalo whose evidence was essentially
that the complainant
reported to her that she had been raped by the appellant. The
appellant placed himself at the complainant’s
home that night
and confirmed that he had sexual intercourse with her which he said
was consensual. It is clear that the version
of the appellant about
consensual sexual intercourse with the complainant was fabricated,
improbable and false beyond reasonable
doubt as was most of his
evidence. In the result the appeal against conviction in respect of
the rape count must fail.
[21] The appeal against
the sentence of life imprisonment is based on the court a quo being
said to have failed to properly consider
the personal circumstances
of the appellant. Even on a cursory reading of the sentence judgment
it is clear that the court a quo
engaged with the personal
circumstances of the appellant quite extensively. It however, also
considered the fact that the appellant
has previous convictions. One
conviction was in 2015 for housebreaking with intent to steal and
theft for which he was given a
suspended sentence of eighteen months.
In 2016 the appellant was convicted of a sexual offence and assault
with intent to do grievous
bodily harm. Both offences were taken
together for purposes of the sentence. He was thereupon sentenced to
five years imprisonment.
[22] The court then
considered the seriousness of the rape offence and what it does to
its victims. The prevalence of this offence
against the vulnerable
members of our society which are largely women and children was also
a weighty consideration to the court
a quo. The fact that the offence
was well planned by someone who knew the living circumstances of the
complainant, who also knew
the complainant and her boyfriend very
well was a very relevant consideration. It then concluded, having
regard to all sentencing
considerations that there were no
substantial and compelling circumstances as would justify a departure
from the ordained minimum
sentence of life imprisonment in respect of
the rape offence. I am of the view that there is no basis for this
Court to interfere
with the sentencing discretion exercised by the
court a quo. The trial court cannot, on the facts of this case be
faulted for not
departing from the prescribed minimum sentence.
Therefore, the appeal against the sentence of life imprisonment must
fail.
[23] The appellant also
appealed against the theft conviction. In appealing to this Court
against the conviction and sentence in
respect of the rape offence
the appellant exercised his right to an automatic appeal having been
sentenced to life imprisonment.
However, the appellant failed to
apply for leave to appeal against conviction for the count of theft.
I am of the view that he
should have done so. However, and in any
event, having been sentenced to life imprisonment, the sentence of
three months’
imprisonment in respect of the theft conviction
is not going to affect the amount of time he spends in prison. The
relevant sentence
for which he is not appealing will run concurrently
with the life sentence in terms of the Correctional Services Act. He
still
retains the right to approach the court a quo and apply for
leave to appeal if he is so minded. This court has no jurisdiction to
entertain the appeal against conviction absent leave to appeal being
sought and granted.
[24] In the result the
following order shall issues:
1. The appeal against
conviction and sentence in respect of count 1, housebreaking with
intent to rape and rape is dismissed.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
I agree:
I. BANDS
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
appellant: V.M.
Sojada
Instructed by
:
Legal Aid South Africa
Makhanda
Counsel for the
respondent: H. Obermeyer
Instructed by
:
Director of Public Prosecutions
Makhanda
Date
heard:
08 May 2024
Date
delivered:
20 June 2024
[1]
Ximba
v S (957/2022)
[2024] ZASCA 6
(19 January 2024 para 26.