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[2024] ZAECMKHC 73
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A.M v S (CA&R130/2023) [2024] ZAECMKHC 73 (20 June 2024)

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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MAKHANDA]
CASE NO. CA&R130/2023
In the matter between:
A[...]
M[...]

Appellant
and
THE
STATE

Respondent
JUDGMENT
JOLWANA J:
[1] The appellant was
arraigned before the Regional Court in East London on charges of
housebreaking with intent to commit assault,
rape and kidnapping. He
was found guilty and sentenced to twelve months imprisonment, life
imprisonment and twelve months imprisonment
respectively. He has
exercised his automatic right to appeal against both conviction and
sentence in respect of the rape conviction
and the sentence of life
imprisonment. There is no appeal against the conviction and sentence
for housebreaking with intent to
commit assault and kidnapping.
[2] The complainant’s
evidence was that on 06 February 2021 at about 19:30 she was at
Y[...]’s home in Duncan Village.
Y[...] was about to take a
bath when there was a knock at the door. Y[...] enquired as to who
was knocking. The person said he
was A[...]. Y[...] went to enquire
what this person wanted. However, the door was kicked or pushed open
and the appellant who was
her ex-boyfriend barged in. The appellant
started swearing at Y[...] asking her why she was a snitch. The
complainant explained
that apparently at some stage Y[...] and the
appellant had an agreement that when Y[...] saw her she would inform
the appellant,
but Y[...] had changed her mind about that. She became
aware of this when she was chatting with Y[...] before the appellant
arrived.
[3] The appellant grabbed
the complainant by her clothes on the chest and threatened to shoot
her. Y[...] screamed. The appellant
asked the complainant why she had
obtained a protection order against him. She confirmed that she had
applied for a protection
order against him. The appellant pulled her
outside and klapped her and hit her with clenched fists. Y[...] was
outside at this
stage. The complainant noticed A[...] who was known
to her leaving the area. It was dark but the streetlights provided
light. Y[...]
went to look for her parents as the incident took place
in her home.
[4] The appellant took
her to an area called D Section by holding and pulling her. Even in D
Section he klapped her and hit her
with clenched fists. She did not
want to go to D section. The appellant was asking her why she ended
their relationship and why
he set police on her. After the assault at
D section, he took her to Ramaphosa Informal Settlement where he
joined his friends.
He told his friends that she was back with him.
When these events happened, she had been living in fear of the
appellant to an
extent that she would not leave her home.
[5] They then went to
another area in Duncan Village and as they were walking another
girlfriend of the appellant appeared. The
appellant became angry and
assaulted his girlfriend. The three of them walked together to his
shack. However, when they got to
his shack it transpired that he did
not have a key for the gate which was locked. The appellant decided
that they should accompany
his girlfriend to her home. This he
decided on his own. After accompanying his girlfriend, they then went
to Bebelele where they
went to the shack of his friend. The
complainant knew this shack because when they were still in a
relationship they used to spend
the night there sometimes.
[6] They got inside the
shack and he closed the door and locked it. He started showing his
anger again asking why she was ending
their relationship. He asked
who she was going out with. She told him that she did not have a
boyfriend and that she was just sick
and tired of his abusive
behaviour. The appellant told her to undress herself. When she
refused, he then threatened to assault
her. Because she was afraid of
him, she undressed herself and got into the bed. He also undressed
himself. She got into bed because
he was threatening to assault her.
She told him that she could not have sexual intercourse with him
because he had many girlfriends.
[7] Having told him that
she did not want to have sexual intercourse with him he went ahead
and raped her. In the morning, he again
had vaginal sexual
intercourse with her against her will. At some stage that morning one
of his friends knocked at the door. He
then left with his friend and
locked her inside the shack and took the key with him. The appellant
later came back and found her
crying. He asked why she was crying,
and she told him that she wanted to go home. He talked to his friend
who was standing outside
asking if he had seen that the place was
full of people. Her impression was that they were talking about her
home verandah which
had many people. This would be because Y[...]
went to tell people about what happened to her the previous night at
her home.
[8] The appellant’s
friend left, and she and the appellant also left that shack. On the
way he was assaulting her for a reason
she did not know. When she
arrived home, she told her sister and her friends about the incident
via WhatsApp messaging. She had
sustained some injuries as she was
swollen and had a blue eye. She did not go to seek medical attention.
She went to open a case
against the appellant, and she was taken to
Cecilia Makiwane Hospital by the police. She explained that the stab
wound in the palm
of the left hand which was reflected in the medical
report related to an old stab wound inflicted on her by the appellant
in 2020
which had healed and had become a scar.
[9] Under
cross-examination the complainant testified that she had told the
appellant that she was ending their relationship through
facebook. He
had received it because he then said he wanted to see her so that
they could have a discussion. Previously when she
ended their
relationship face to face, he would assault her. It was put to her
that it was A[...] who responded when asked who
was knocking or what
he wanted and Y[...] willingly opened the door. As a result, the
appellant never had to kick the door. She
disputed the appellant’s
version in this regard.
[10] She testified that
she never spoke to A[...], she just saw him walking away. She did not
ask him for help when she was being
forcibly taken away because she
did not see him as someone that could help her. When she was outside
with the appellant, Y[...]
was screaming because the appellant was
threatening to shoot them. When another person tried to intervene,
the appellant told him
to leave him alone and that man left. She did
not shout for people to come and help her or to call the police
because she thought
that people were afraid of the appellant, and she
did not think they would help her. After Y[...] screamed she left
saying that
she was going to look for her mother. She denied
willingly going with the appellant.
[11] She knew L[...] and
that he stayed at the hostel. That night she and the appellant went
to L[...]’s place at the hostel.
On the way, there were people
walking and drinking. They met some women, but she did not scream for
help or tell them that she
was being taken against her will because
she was afraid. When they arrived at the hostel there were about four
people there. At
the time the appellant was not dragging her but he
was holding her. She denied willingly going to L[...]’s place.
[12] She testified that
they met D[...] at the hostel, and she told him what was happening.
However, D[...] said that he did not
want to get involved. He did not
tell the appellant’s friends that she had been forcibly taken
from Y[...]’s place.
However, when the appellant said they were
back together she told them that they were no longer in a
relationship, but he told
them to ignore her. She did not ask them to
help her because she did not think that they would help her, and he
could have assaulted
her in front of them.
[13] She denied that when
they arrived at the appellant’s friend’s shack, she
kissed him or willingly took off her clothes
and had consensual
sexual intercourse with him. She testified that the appellant fell
asleep first after they had sexual intercourse.
She was crying
thinking about what she was going to say at home and after some time
she also fell asleep. She could not escape
because the key was with
him. He had put it under the mattress on the side on which he was
sleeping.
[14] The appellant woke
up at about 05:00 am and had sex with her again. She testified that
it was not the first time that they
slept in that shack although she
could not remember how many times before. Sometimes he would leave
her alone in the shack and
she would wait for him to come back and
accompany her home. Her mother did not approve of their relationship
when they were still
in a relationship. During their facebook chats
with Y[...] she was told by Y[...] that her mother and another lady
went to her
place to report what had happened that night. When she
got home her mother and her sister were at home.
[15] It was put to her
that the appellant left with his friend that morning which was
something he normally did and she would wait
for him to come back and
accompany her home. On the day in question the same thing happened,
she testified that on that day he
locked her inside the shack and
left with the keys whereas during normal occasions he would leave the
keys with her. The appellant’s
friend, Q[...] saw her, but she
did not ask him for help. The appellant accompanied her home with
Q[...], but they did not reach
her home.
[16] The next State
witness was Y[...]. Y[...] testified that on 06 February 2021 at
about 19:30 she was at home with the complainant
together with her
siblings. There was a knock on the door. She was washing her face at
the time about to take a bath. She enquired
who the person was and
the response was it was A[...]. The door was closed but not locked.
Then there was a bang, and the door
was flung opened. The appellant
came in and asked her why she was a snitch. He then asked her why she
was causing a quarrel between
him and the complainant which was why
he called her a snitch. He threatened to kill her and her mother.
[17] Her mother was not
present at the time. When all of this was happening, the complainant
was sitting on a chair inside the house.
The appellant grabbed the
complainant and klapped her. He started swearing at her and told her
to go with him. The complainant
asked where she was being taken to,
and whether he had forgotten that she had obtained a protection order
against him. The appellant
grabbed the complainant with her clothing,
pulled her and left with her.
[18] They returned about
30 minutes later. She heard her shouting her name and asking her to
come out. She then went to her. She
observed that the complainant was
crying and said the appellant wanted to talk to her. He then shouted
at her asking her why she
was a snitch. The appellant had a pouch
around his waist from which he drew a knife. He held it in a stabbing
position. She screamed
and went away to look for her mother. However,
she could not find her. Her mother arrived at about 02:00 am and she
told her what
had happened. They slept and woke up at about 07:00 am
and went to the complainant’s home where they found the
complainant’s
mother, her sister and her child. She told the
complainant’s mother what happened to the complainant the
previous night.
[19] Under
cross-examination Y[...] confirmed that she had an arrangement with
the appellant that when she saw the complainant she
would tell the
appellant, but she did not do so. The knock at the door at her place
was a normal knock and then she invited the
person who was knocking
to come in. Then there was a bang on the door and the appellant came
in after the door was flung open.
She was behind the door at the time
as she was taking a bath.
[20] Y[...] denied that
the door opened normally and said that the appellant was intoxicated.
When the appellant grabbed the complainant,
the complainant was
sobbing. She did not ask for help from anyone as there was no one
there and the elderly people were sleeping.
The appellant left with
her, and she followed them, and looked for them but she could not
find them. At no stage did the complainant
ask her to call the police
or to go and report the incident at her home. She woke up on her own
in the morning with her mother
and reported the incident at the
complainant’s home. She denied that the appellant never
brandished a knife and insisted
that he was carrying a knife. After
Y[...]’s evidence the State closed its case with the
documentary evidence like the medico-legal
examination report having
been handed in by agreement between the prosecutor and the
appellant’s legal representative.
[21] The appellant opened
his case and testified in his defence. His evidence was that he
together with A[...] went to Y[...]’s
place. A[...] knocked
because he did not want to knock himself as he would be seen to be
disrespecting that homestead. When A[...]
knocked the response from
inside was who was knocking and A[...] said it was himself. Y[...]
then opened the door. When the door
was opened the complainant was
sitting in line with the door. The appellant then said he was asking
for her and the complainant
stood up and came to him. They left
together and stopped next to SokhA[...]’s shack. He described
as lies the evidence that
when he entered Y[...]’s home he
called her a snitch. He denied that he kicked the door as testified
to by the complainant.
The appellant disputed Y[...]’s evidence
that there was a bang on the door which was then flung open, and he
entered. He
denied threatening to kill Y[...]. He denied assaulting
the complainant in the shack of his friend saying he never lifted a
finger
on her. He further described as lies Y[...]’s evidence
that he assaulted the complainant with an open hand, grabbed her by

her clothing and took her out of Y[...]’s home by force.
[22] He testified that
when they were next to the complainant’s shack, he told her
that he heard that she was looking for
him and wanted to know what
was going on. At that stage his relationship with the complainant was
okay. He disputed that the complainant
had broken up with him via
facebook and that he was aware that she had ended their relationship.
The complainant told him that
she tried to locate him from SokhA[...]
and A[...]. He asked her what was the problem and she said that her
problem was that she
was stressed and she wanted to go out and drink
alcohol. He told her that he did not have money. She then suggested
that they should
go to L[...] and D[...] and the other people for
whom he normally bought alcohol when he had money.
[23] They then left for
Ramaphosa Informal Settlement and went to Yamkela’s place. He
described as lies the complainant’s
evidence that he forced her
to go to the Ramaphosa area or Yamkela’s place saying she went
there on her own free will. They
found Yamkela smoking occa pipe with
D[...] and other young men. They stayed there for some time,
approximately 30 minutes. The
complainant never indicated to Yamkela
and others who were there that she had been forced to be there. The
complainant then said
they should go to the hostel. He disputed
telling his friends that the complainant was back with him and that
she disputed that.
They went to Ponponi who was at L[...]’s
place in the hostel. He asked Ponponi about the whereabouts of
L[...]. Ponponi said
L[...] was there. They then went to D[...]’s
place to look for him and found him there with Nqandezi and Chopa.
They came
out carrying wine in a box. The complainant took a glass
from D[...] and got herself some wine. At some point Nqandezi said
that
the wine was getting finished. They proceeded to Bongani’s
Tavern which they found closed.
[24] They went to another
liquor outlet in the hostel. The complainant had remained behind with
Chopa and others. They then went
to Nqadezi and the complainant
suggested that they should go to Makhomba at Duncan Village. They all
boarded a vehicle including
the complainant. The complainant stayed
at Ntangazele Street in Ziphunzana. The complainant’s house was
the fourth house
from Makhomba’s place. Makhomba’s place
was in the same street in which the complainant stayed and she knew
that they
were at her street. They got some liquor at Makhomba’s
place.
[25] At some point he and
the complainant went to his friend’s shack where they spent the
night together. At no stage since
they left Y[...]’s place
together did the complainant make it known that she did not wish to
be with him. When they got to
Kisto’s shack who was one of his
friends, they found one L[...] there who was 19 years old. The
complainant told L[...] that
he could not sleep there with them and
that he must go and sleep at the appellant’s shack. He did not
deny having sexual
intercourse with the complainant at Kisto’s
shack. He said that the complainant lied when she said that she did
not consent
to having sexual intercourse with him. When L[...] left
he and the complainant sat and had a chat. The complainant even said
that
she had been missing him for a while and that he should stop
womanising.
[26] She undressed
herself and they kissed and engaged in consensual sexual intercourse.
He denied that on arrival at Kisto’s
shack he locked the door,
confronted her asking her why she dumped him and asking who she was
having a romantic relationship with.
He testified that it was also
lies that he told her to undress herself and threatened to assault
her when she refused. He further
disputed that she undressed herself
and got into bed because she was scared of him. He denied being told
by the complainant that
she did not want to have sexual intercourse
with him because he had many girlfriends. He disputed that when he
was having sexual
intercourse with the complainant, she was asking
him to get off her. He denied having sexual intercourse with her
again in the
morning.
[27] The appellant denied
locking the complainant inside the shack when he left with Q[...]
that morning. He testified that when
Q[...] knocked and asked if he
was still asleep, he told him that he had just woken up. Q[..] asked
him to accompany him and he
then left with Q[...] for about 20
minutes. When he left with Q[...] the complainant asked him where he
was going, and he told
her that he was accompanying Q[...]. She then
said he must not be gone for too long and asked him to bring her a
score energy drink.
He testified that Kisto’s shack had no key
at all. It just had a burglar gate at the door, but it did not have a
padlock.
When he and Q[...] returned he gave her the score energy
drink she had asked for. She drank it, got dressed and asked them to
accompany
her and they agreed. They all left and when they reached
the area of his home, they could see her home.
[28] The complainant
noticed that there were some people at her home and wondered why so
many people were present. She suggested
that they should change
direction because her mother did not approve of her relationship with
him. At some point they parted ways.
The appellant testified that
when he parted ways with her, she did not have any injuries. He
testified that she told him that her
mother did not approve of their
relationship which was the reason she said that he assaulted her.
When he was with the complainant,
she did not have injuries. It was
her mother’s disapproval of their relationship that caused her
to falsely accuse him of
having assaulted, raped and kidnapped her.
He explained that he knew why Y[...] testified that he assaulted the
complainant at
her house, grabbed her with her clothes and forcibly
took her away. This was because Y[...] accused him of organising a
girlfriend
for Q[...] with whom she had a secret love relationship.
He further testified that three days after they parted ways with the
complainant,
he and Q[...] met her stepfather. The complainant’s
stepfather told him that people were complaining about him. He
further
told him that a hitman might be organised by the
complainant’s mother to get rid of him.
[29] Under
cross-examination the appellant testified that his relationship with
the complainant had its own hiccups as one month
they would be fine
and the next month they would be quarrelling. He confirmed that the
complainant had obtained a protection order
against him, but he
denied abusing her. He testified that he was related to L[...] and
that it was the complainant who told him
to leave the shack they were
sleeping in. He confirmed that during that night they came across his
other girlfriend, L[...] at
the hostel. He denied forcefully taking
the complainant to all the various places they went to. He found out
that the complainant
was at Y[...]’s home when A[...] and
SokhA[...] told him that she was looking for him and that if he
needed her, she would
be at Y[...]’s place that night.
[30] He explained that
after A[...] had knocked at the door at Y[...]’s place he was
invited to come in and Y[...] opened
the door. He then saw the
complainant who was sitting in line with the door which was open by
then. He denied that Y[...] did not
open the door for him and that he
pushed or kicked the door open. The reason he went to Y[...]’s
place with A[...] was that
A[...] was studying with Y[...]. When
Y[...] invited A[...] to come in and opened the door he then saw the
complainant. He said
Y[...] opened for him because they had agreed
that when she saw the complainant she would tell him. He denied
assaulting the complainant
inside Y[...]’s house. He denied
forcing the complainant to have sex with him that night. He testified
that during that night
the complainant was never assaulted, and she
did not have any injuries.
[31] When they
accompanied her home the following morning she had no injuries. They
accompanied her to her home and turned back
at her street a distance
from her home. He denied assaulting her as a result of which she
suffered contusions on her eyes. He further
denied locking the
complainant in the shack from the 6 February 2021 until the 7
February 2021 in the morning. He denied asking
the complainant to go
with him and testified that it was the complainant who said she
wanted to have some drinks and then they
decided to go and have
drinks with his friends. On being asked some questions by the court
he testified that he never phoned the
complainant, and he did not
have her phone number. He testified that they had a fairly stable
relationship even though they had
disagreements sometimes. Their
problem was the complainant’s mother who did not approve of
their relationship.
[32] The next witness for
the appellant was S[...] M[…]. He testified that his nickname
was Q[...]. He and the appellant
were as good as brothers as they had
been friends for a long time. He also knew the complainant and he
went to the same school
with her at K[...]. She was the appellant’s
girlfriend. On 6 February 2021 the complainant came to his shack with
the appellant
and D[...]. The appellant was standing next to a Tazz
vehicle which they were travelling in. The complainant came and
knocked at
his shack and asked him to come out which he did. She was
drinking liquor and said she wanted to go and drink some more. He
came
out and saw that drinking was taking place. He went out and got
into the Tazz vehicle and they drove towards the hostel. The
complainant
was drinking alcohol. The appellant never drank on that
day because he did not want to drink. When they got to the hostel a
child
called L[...] arrived shortly after they had arrived. L[...]
called the appellant and had a conversation with him, and they ended

up all going together, that is the appellant, the complainant and
L[...]. He however, remained in the hostel. He then went to wake
up
the appellant in the morning and asked him to accompany him to his
mother’s sister. The appellant came out of the shack
leaving
the complainant in the shack. When they left the complainant asked
them to bring her a score energy drink. The complainant
closed the
door and locked herself inside the shack by locking the burglar gate.
They later returned with her drink, and she opened
for them.
[33] The complainant
asked the appellant what she should say to her mother as she was not
happy with their relationship. The appellant
told her that she should
tell her that she was enjoying herself with him. From the shack she
could see her mother standing in front
of the verandah at her home.
They then accompanied her home. He denied that on the way home the
complainant was assaulted by the
appellant. He did not see any
injuries on the complainant when they accompanied her home.
[34] Under
cross-examination Q[...] testified that the complainant was drinking
old buck gin. During the 30 minutes that he was
present the appellant
was always present, and they were sitting together throughout. At the
hostel the complainant was sitting
next to the appellant, and she was
enjoying herself, drinking. The appellant never left at any stage. He
insisted that the complainant’s
face was not swollen. The case
for the appellant was closed after Q[...]’s evidence.
[35] The court a quo
rejected the appellant's evidence that his relationship with the
complainant was a normal relationship with
some hiccups here and
there. It further rejected the appellant’s evidence that it was
in the context of a normal relationship
that they spent the night
together and had sexual intercourse which was initiated by the
complainant who even undressed herself.
The appellant’s
evidence flew in the face of the evidence of the complainant
corroborated by that of Y[...] about his arrival
and assault on the
complainant at Y[...]’s place and the complainant being taken
against her will by the appellant. The court
a quo also considered
the evidence of the appellant that when they were closer to the
complainant’s home the following morning,
they observed that
there were many people there which the court a quo regarded as
confirming Y[...]’s evidence that the following
morning she
went to the complainant’s home and reported what happened in
her place the previous might when the complainant
was forcibly taken
away.
[36] I pause now to point
out that there was no appeal against the conviction and sentence in
respect of assault and kidnapping
convictions and sentences. The
appeal was only against the rape conviction and sentence. This is
important for many reasons. Firstly,
it means that the appellant
accepted that he was correctly convicted and sentenced in respect of
housebreaking with intent to commit
assault and kidnapping. Secondly,
it means that he was not challenging the court a quo’s findings
in respect of the credibility
of the State’s witnesses and the
assessment of the entire evidence in respect of those counts.
Naturally this has a bearing
to a lesser or greater extent on the
appeal in respect of rape as all these offences arose out of the same
incident and in the
same factual matrix involving the same witnesses.
[37] In respect of the
rape conviction the complainant, as is normally the case, was a
single witness. The court a quo was well
aware of this fact when it
rejected the appellant’s evidence of a normal relationship and
a normal sexual intercourse in
which the complainant was a willing
participant.  It further rejected the appellant’s version
that she was the one who
told the appellant that she missed him and
that she initiated the kissing at K[...]’s shack and told
L[...] to leave and
then undressed herself. All of this version of
the appellant ignored their history of an abusive relationship which
in 2020 resulted
in the complainant having a scar on her hand which
was never disputed by the appellant. It also ignored the fact that
the complainant
obtained a protection order against the appellant and
told him via facebook that she was ending their relationship.
[38] I am of the view
that the appellant’s entire version was so improbable that it
was false beyond reasonable doubt, punctuated
with a number of
contradictions and as a result, inconsistent. It was, in my view a
concoction of events put together as the case
went along. The
evidence of Q[...] was similarly false. I am in no way suggesting
that the evidence of the complainant and Y[...]
was perfect. I am
saying that even such inconsistences being considered and factored
in, these two State witnesses told the truth,
this even on the
application of the cautionary rules. The evidence of the complainant
and that of Y[...] was clear, credible and
consistent in all material
respects. Notwithstanding the minor contradictions in their evidence,
of which I am mindful, together
with the necessary exercise of
caution, to which I have referred, I am satisfied that the sexual
intercourse took place without
the complainant’s consent.
[39]
In
Ximba
[1]
Nicholls
JA said:
“
Invariably,
in any rape matter, the complainant will be a single witness. There
is no formula for assessing the credibility of a
single witness. A
trial court should consider the evidence in its totally and should
determine whether the truth has been told,
despite any shortcomings
and contradictions. As has been repeatedly stated by this Court, the
correct approach is to weigh up all
the elements which point towards
the guilt of the accused against all those which are indicative of
his innocence, taking proper
account of inherent strength and
weaknesses, probabilities and improbabilities on both sides and
having done so, decide whether
the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about the
accused’s guilt. In other
words, what is required is credible
evidence which renders the complainant’s version more likely
that the sexual intercourse
took place without her consent, and the
appellant’s version less likely that it did not.”
[40] The facts which were
either common cause or were not disputed with even the bare minimum
of cogency reveal the following. On
the night in question the
complainant was at Y[...]’s place when A[...] knocked at the
door and was invited in. However,
and suddenly the door was forcibly
flung or kicked open. The appellant, who had not knocked barged in
and A[...] who had knocked
and was invited to come in did not come
in.  On the complainant’s and Y[...]’s version the
appellant swore at
Y[...] calling her a snitch apparently for failing
to inform the appellant that the complainant was at her home, or that
she had
seen her as they had agreed. The appellant himself confirmed
this arrangement with Y[...] in his evidence. It was further common

cause that the complainant had obtained a protection order against
the appellant.
[41] The appellant pulled
the complainant outside at Y[...]’s place, klapped her and hit
her with clenched fists. The medico-legal
examination report reveals
swelling and contusions on both cheeks which could only have been
caused through violence. Early the
following morning Y[...] went to
the complainant’s home and reported what had happened. It is
common cause that the appellant
took the complainant around the
informal settlement to his friend’s places or where some liquor
was consumed. They ended
up at K[...]’s shack who was the
appellant’s friend. This was where on both versions, sexual
intercourse took place.
However, according to the complainant the
sexual intercourse was without her consent. The appellant’s
version that their
sexual encounter was consensual is clearly
improbable, far-fetched and false beyond reasonable doubt. This is
inter alia
so because their relationship had, on complainant’s
version, been ended and the appellant had been informed of this via
facebook.
This aligns very well with the appellant having probably
used A[...] to knock for him at Y[...]’s place where the
appellant
had been told by A[...] that the complainant was on the
appellant’s version. If their relationship was anywhere near
normal
and had not been ended, the appellant would not have needed to
get A[...] to knock for him.
[42] The evidence of
violence that preceded what, on appellant’s version, was the
complainant’s initiative of them going
around the informal
settlement, drinking and ending up having consensual sexual
intercourse was just one of the many problems with
his version.  This
is besides the objective evidence of the medico-legal report
confirming the complainant’s version
of having been assaulted
by the appellant. The appellant denied having raped the complainant
twice, first on their arrival at K[...]’s
shack and the
following morning before Q[...] arrived. On complainant’s
version the first sexual encounter with the appellant
was preceded by
him asking why she had ended their relationship and asking for the
name of the person she had a romantic relationship
with. She told him
that she was not going out with anyone. She was just tired of
appellant’s abusive behaviour. It surely
was the abusive
behaviour that would have resulted in the complainant obtaining a
protection order against him.
[43] The complainant’s
evidence was that he then told her to undress herself. When she
refused, he threatened to assault her.
Because she was afraid of him
she indeed undressed herself. The complainant had every reason to be
afraid of further assault as
she had been assaulted before being
kidnapped at Y[...]’s place. Her refusal to have sexual
intercourse with him because
of his promiscuous behaviour was ignored
and he went ahead to have sexual intercourse with her against her
will. They then slept
and in the morning, he again had vaginal sexual
intercourse with her which was the second non-consensual sexual
intercourse. She
explained that even in this instance she did not
consent to have sexual intercourse with him. At some stage that
morning a friend
of the appellant, Q[...] knocked at the door and
they left locking her inside the shack. The findings of the court a
quo on this
evidence of the complainant having been locked in that
shack when the appellant and Q[...] left that morning is not being
challenged
on appeal there being no appeal against the kidnapping
conviction and sentence.
[44] The evidence of
Y[...] also revealed that she went to the complainant’s home
the following morning with her mother to
report the incident. The
complainant’s home is, on the undisputed evidence, very far
from Y[...]’s home. It escapes
me why Y[...] would go to the
complainant’s home to report what happened at her home the
previous night if the evidence of
the appellant about how all the
events unfolded was true. She had also reported the kidnapping to the
complainant’s family
via facebook. The evidence of Y[...]
reporting the incident at the complainant’s home makes the
picture of a normal relationship
in which there was no violence at
Y[...]’s home against the complainant so improbable as to be
false. In addition to that
it was the evidence of the complainant
that she reported to her sister that she was raped by the
complainant. The evidence of the
appellant and his friend Q[...] also
shows that there were some people at the complainant’s home’s
verandah that morning.
[45] The court a quo
found that that gathering could only be because, as Y[...] testified,
she had gone there with her mother that
morning to report the
complainant’s kidnapping. That kidnapping and assault of the
complainant could not, in my view, possibly
lead to consensual sexual
intercourse with the complainant whose evidence was that she had
broken up with the appellant. She had
even obtained a protection
order against him which was common cause. She had not only been
assaulted at Y[...]’s place but
was also forcibly taken away
and ended up spending the night with the appellant at one of his
friend’s shack. For her to
then be spending a happy night,
moving around the informal settlement with the complainant all at her
initiative including her
initiating the kissing, cuddling and having
consensual sexual intercourse points to the version of the appellant
being false beyond
reasonable doubt. It makes matters worse that the
appellant denied having assaulted the complainant and the complainant
having
no injuries when they parted ways all of which flew in the
face of the medical evidence of contusions on her cheeks.
[46]
Recently the Supreme Court of Appeal confirmed that mere submission
or acquiescence or lack of resistance do not convey a willingness
to
engage in a penetrative sexual act in
Coko
.
It went on to say that such behaviour would not constitute
consent
[2]
. This is how this
principle was articulated by that court:
“
[56]
As this Court made plain in
Mugridge v
S
, mere submission, or acquiescence, or
lack of resistance does not convey a willingness to engage in a
penetrative sexual act. Thus,
none of these would constitute consent.
The court had this to say:
‘
The
law requires further that consent be active, and therefore mere
submission is not sufficient. In
Rex v
Swiggelaar
, Murray AJA commented as
follows:
“
The
authorities are clear upon the point that though the consent of a
woman may be gathered from her conduct, apart from her words,
it is
fallacious to take the absence of resistance as per se proof of
consent. Submission by itself is no grant of consent, and
if a man so
intimidates a woman as to induce her to abandon resistance and submit
to intercourse to which she is unwilling, he
commits the crime of
rape. All the circumstances must be taken into account to determine
whether passivity is proof of implied
consent or whether it is merely
the abandonment of outward resistance which the woman, while
persisting in her objection to intercourse,
is afraid to display or
realises is useless.”
[47]
Therefore, on the totality of all the evidence, the State proved its
case beyond reasonable doubt
[3]
.
In the circumstances the court a quo was correct in concluding that
the complainant was raped on two occasions between the 6 and
7
February 2021. Therefore, the appeal against conviction must fail.
This brings me to the appeal against the sentence of life

imprisonment.
[48] The appellant was
sentenced to life imprisonment in respect of the rape conviction. His
appeal against that sentence is on
the basis that the trial court did
not properly consider his personal circumstances. Furthermore, it
over-emphasised the seriousness
of the offence and the interests of
society which led to the court imposing a grossly disproportionate
sentence. The personal circumstances
of the appellant are simply that
there was a pre-sentence incarceration of about a year as an awaiting
trial detainee. He was thirty
two years old, unmarried with no
children. It was submitted, without elaboration, that he could still
be rehabilitated.
[49]
The submission about the appellant’s prospects of
rehabilitation ignored the fact that on 30 August 2011 the appellant

was convicted of rape and was, on 15 December 2011 sentenced to 10
years imprisonment. When he committed this offence on 6 February
2021
he had not even finished serving his sentence in respect of the said
prior rape conviction. He would have used the freedom
made available
to him by being placed on parole to commit another rape. This he did
by kidnapping his jilted lover, taking her
to his friend’s
shack where he raped her twice. It is very clear that the period he
spent in prison serving his sentence
for his prior rape conviction
did not lead to a changed behaviour. Therefore, the submission about
good rehabilitative prospects
is difficult to understand. The reasons
cited for the submission that there were substantial and compelling
circumstances are the
sort of reasons that in my view were defined as
flimsy reasons for departing from a minimum sentence in
Malgas
[4]
.
In the result the appeal against sentence must also fail as there is
no reason in this matter for interfering with the sentencing

discretion exercised by the trial court which was in any event
correctly exercised in my view.
[50] In the result the
following order is made:
1. The appeal against
conviction for rape is dismissed.
2. The appeal against the
imposition of the sentence of life imprisonment in respect of the
rape conviction 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:   L. Vena
Instructed
by

: Director of Public Prosecutions
Makhanda
Date
heard

: 08 May 2024
Date
delivered

: 20 June 2024
[1]
Ximba
v The State (957/22)
[2023] ZASCA 6
(19 January 2024) para 26
[2]
Director
of Public Prosecutions Eastern Cape, Makhanda v Coko (248/2022)
[2024] ZASCA 59
(24 April 2024).
[3]
S
v Van der Meyden 1997 (2) SA 79 (WLD).
[4]
S
v Malgas
2001 (2) SA 1222
at 1234 para 22.