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[2024] ZAFSHC 306
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K.C.N v S (A176/2023) [2024] ZAFSHC 306 (1 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: A176/2023
In
the matter between:
K[…]
C[…] N[…]
APPELLANT
And
THE
STATE
RESPONDENT
Neutral
citation:
K[…] C[…]
N[…] v S (A176/2023)
Coram:
NS DANISO, J & E MAHLANGU, AJ
Heard:
29 JULY 2024
Delivered:
01 OCTOBER 2024
Summary
:
Criminal Law- Appeal: Conviction and sentence. Appellant
convicted of rape involving the
infliction
of grievous bodily harm - Appellant sentenced to life imprisonment in
terms of section 51(1)
Part I (c) of Schedule 2 of Act
105 of 1997 (the CLAA)-Whether the trial court erred in convicting
the Appellant on the evidence
of a single witness –Whether the
rape involved grievous bodily harm as contemplated in the CLAA-
Whether the trial court
erred in not finding substantial and
compelling circumstances warranting a deviation from the prescribed
minimum sentence-Applicable
principles restated.
ORDER
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence succeeds to the extent that the
sentence imposed by the magistrate Bothaville is set aside and
replaced
with a sentence of 15 years’ imprisonment antedated to
3 October 2023.
JUDGMENT
Daniso,
J (Mahlangu, AJ concurring)
[1]
The appellant was tried in the regional court Bothaville
on three
counts, including two counts of rape involving the infliction of
grievous bodily harm (counts1 and 3) in contravention
of
section 3
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
and Kidnapping. On 3 October 2023 he was convicted of the
rape in count 3 after pleading not guilty to all the charges. He was
acquitted in respect of the remaining counts.
[2]
Count 3
pertained to the incident which occurred on 28 November 2022 at the
residence of the appellant’s cousin. The State
alleged that the
appellant grievously assaulted and raped his cousin’s partner,
Ms K[…] P[…] K[…], then 17 years
old. He was subsequently sentenced to life imprisonment in terms of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
read with
item (c) of
Part I
Schedule 2 (“the CLAA”).
[3]
This appeal is directed against both the conviction
and sentence and
it is opposed only in respect of the conviction.
[4]
The appellant was convicted on the testimony of
the complainant and
her mother Ms S[…] L[…] K[…].
[5]
The appellant and her boyfriend are cousins. She
testified that
immediately before the incident she was sleeping alone at her
boyfriend’s residence whilst he was away on
nightshift duty. He
was expected to be home around 2am.
[6]
The appellant came and asked her to open for him
saying he was with
her boyfriend but when she opened the door he was alone. He asked her
to let him in, telling her that her boyfriend
was on the way. She
left him at the dining room and went back to sleep in the bedroom.
When the rain started to fall she offered
the appellant a blanket and
a couch to sleep. Around midnight, the electricity went off and
through the darkness she observed the
appellant standing next to her.
She asked him what is it that he wanted, he responded by saying “give
me the vagina”,
when she refused he assaulted her. He slapped
her with an open hand, hit her with a cup at the back of her head and
also hit her
with a clenched fist on the nose causing her to bleed.
When she cried and screamed he covered her face with a pillow and
placed
a knife on her neck to subdue her. He then tore open her
shorts and undies, forced open her thighs and penetrated her vagina
with
his penis. When he was done raping her he ejaculated on her
thighs, wiped himself off and began to weep begging her not to lay
charges against him. When she tried to leave he prevented her from
leaving by removing the key from the door. Around 5am he left
and she
also went home where she reported the incident to her mother. She
also called the police who came and transported her and
her mother to
the police station where she made a statement and later taken to the
hospital for examination. Under cross-examination,
she stated that
except for the bleeding nose she did not sustain any other injuries
and she also did not report any injuries to
the examining doctor.
When it was put to her that her sexual encounter with the appellant
was consensual, she vehemently denied
that assertion stating that she
would not have had consensual intercourse with the appellant as he
was related to her boyfriend
and she was aware that he was afflicted
with the Human Immuno-deficiency Virus (HIV).
[7]
The gynaecological clinical findings recorded on
the medical report
(J88) handed in by consent as Exhibit “A” indicates the
presence of a yellowish mucus resembling
semen. No physical injuries
were observed.
[8]
Ms K[…] corroborated the complainant’s
first report of
the rape incident. She states that the complainant arrived home early
in the morning and woke her up. She was crying
and spontaneously
reported that she was raped by the appellant. The complainant was
wearing a bloodied T-shirt, she also showed
her some marks on her
neck ...being throttled by the appellant. She asked for money to buy
airtime in order to call the police.
When the police arrived,
the complainant relayed the rape incident to the police who took them
to the police station where the
complainant laid the charge.
[9]
On the other side, only the appellant testified in his defence. He
confirmed that he is related
to the complainant’s boyfriend and
that the residence where the complainant’s boyfriend lives is
actually their family
home, it belonged to their late grandfather. He
also admitted that he had sexual intercourse with the complainant on
the date and
place alleged by the State. He however denied having
raped the complainant and averred that he was falsely accused by the
complainant
for refusing to give her money after they had engaged in
consensual sexual intercourse initiated by the complainant.
[10]
It was his testimony that when he arrived at his grandfather’s
place he found the complainant and they
started a smoking crystal and
dagga till 2am. The complainant told him that she was tired and
invited him to sleep with him. They
had consensual sex, slept and
woke up around 4am and smoked drugs again until they ran out. The
complainant wanted more drugs and
when he told her that he had no
money to buy more drugs she told him no one will sleep with her for
free or for drugs, she demanded
money. He promised to go and ask his
sister for money and to then give it to her. The complainant then
left around 6am and 7am.
He told the trial court that it was not the
first time that he had sexual intercourse with the complainant, she
had previously
visited and stayed with him on several occasions where
they would have sexual intercourse. She would also sleep with other
men
including foreign nationals for drugs and he would pretend to be
his brother and go around demanding money from the men who were
sleeping with her.
[11]
After all the evidence had been proffered, the fact that the
appellant and the complainant had
engaged in a sexual intercourse at
her boyfriend’s residence on the date alleged in the charge
sheet was indisputable. The
appellant raised consent in his testimony
and also denied having assaulted the complainant. The only issue
which then remained
for determination by the trial court was whether
the appellant raped the complainant.
[12]
In support of the challenge to the conviction, it was argued on
behalf of the appellant that in convicting
the appellant, the trial
court erred in its conclusion that the State had proved its case
against him beyond a reasonable doubt
despite the fact that the
State’s evidence was unsatisfactory and was riddled with
contradictions and improbabilities. It
is the appellant’s case
that the trial court also failed to exercise caution when evaluating
the complainant’s evidence;
in rejecting the appellant’s
version as being reasonably and possibly true, and by violating his
right to a fair trial when
it insisted that the trial should proceed
despite the fact that the appellant was exhausted after sleeping
uncomfortably thus needed
few days to recuperate.
[13]
The principles applicable in appeals where the findings of a trial
court are attacked, are now
established: the court of appeal will not
interfere with or tamper with the trial court’s judgment or
decision regarding
either conviction or sentence unless it (the court
of appeal) finds that the trial court misdirected itself as regards
its findings
of facts or the law. See
R
v Dhlumayo & Anothe
r
1948
(2) SA 677
(A).
The principle
was
also
restated
in
AM
& Another v MEC Health, Western Cape
2021(3)
SA 337
(SCA)
at paragraph 8
as
follows:
“
It
is trite that an appeal court is reluctant to disturb findings of
that character by a trial judge, who was steeped in the atmosphere
of
a lengthy trial and had the advantage of seeing and hearing the
witnesses. Such findings are only overturned if there is a clear
misdirection or the trial court’s findings are clearly
erroneous. That has consistently been the approach of this court
…
.”
[14]
It is clear from the record of the proceedings
that the trial court undertook a thorough analysis
of the evidence,
and taking into account the complainant’s ability to give a
succinct version of what the appellant did to
her, which remained
intact even after a rigorous cross-examination, and was also
corroborated by her first report, including her
honesty in admitting
her past drug use, justified it in accepting her version as a
trustworthy and reliable account of what had
happened. I cannot fault
the trial court for the manner in which it applied the cautionary
rule to the
evidence proffered by the complainant as a single witness
implicating
the appellant in the rape.
See
S
v Sauls and Others
1981 (3)
SACR 172
(A)
at
173 and S v Mahlangu
2011 (2) SACR
164
(SCA) at 171 B.
[15]
In the appellant’s heads of argument, a number of
improbabilities and contradictions are
raised in the State’s
evidence, namely that: it is improbable that the complainant would
let the appellant stay over in the
middle of the night whereas she
realized that her boyfriend was not coming and also that the
appellant had said to her that her
boyfriend was on the way but she
knew that her boyfriend was working nightshift. The contradictions in
the complainant’s
evidence pertain to her testimony that the
appellant did not use a condom during rape whereas in her statement
to the police she
said he used a condom. In her statement she also
mentioned that her boyfriend had knocked on the window around 1:30am
whilst she
did not mention this fact in her testimony. Her evidence
of being assaulted with a fist on the nose and with a mug on the head
was not confirmed by the medical report. Her mother’s evidence
was also contradictory in that she testified that when the
police
arrived the complainant was still narrating the incident to her
whereas under cross-examination revealed that she only became
aware
of what happened to her daughter after the police had arrived.
[16]
I am in agreement with the trial court’s conclusion that the
contradictions and improbabilities referred
to by the appellant are
immaterial for the determination of whether the appellant raped the
complainant having regard to his defence
of consensual intercourse.
[17]
The contradictions are indeed insignificant to the question of the
accused’s guilt and they are to
be expected from an honest but
imperfect recollection, observation and reconstruction of the
evidence.
[1]
The improbabilities
raised by the appellant are also unsound. They actually militate
against his version that the complainant initiated
the sexual
intercourse during a drug fuelled binge throughout the night at her
boyfriend’s home when he was expected to return
in the early
hours of the morning.
[18]
There is nothing improbable about the complainant allowing the
appellant to stay over at night,
the appellant was family, on his own
version that house belonged to his late grandfather.
[19]
The trial court correctly rejected as false the evidence of the
appellant by pointing out the discrepancies
in his version namely
that: he knew the complainant as his cousin’s girlfriend, then
he said she was also visiting and sleeping
with him for a few months
prior to the incident, he further said he was also pimping out her
out to some men including foreign
nationals where the complainant
would sleep with them and he would collect the money. With regard to
the alleged false implication,
the trial court took into account that
on his own version there was no bad blood between him and the
complainant therefore no reason
to falsely implicate him in the rape.
The complainant’s version that she would never have sexual
intercourse with him due
to him being her boyfriend’s cousin
and because of his HIV status.
[20]
There is also no merit to the appellant’s cryptic complaint
that his right to a fair trial was violated
when the trial court
ordered that he should proceed with his testimony despite his
complaint that he was exhausted. As correctly
pointed out by the
trial court, the defence’s request to postpone the matter was
solely based on a speculation that the appellant’s
concentration and ability to defend himself may be hampered. Section
35(3)(d) of the Constitution places a duty on a court to ensure
that
the proceedings before it, are fair by ensuring that the trial begin
and conclude without unreasonable delay. The appellant’s
contention that his right to fair trial was infringed by having to
testify despite being exhausted is contradictory to his assertion
that in convicting him, the trial court erred in rejecting his
version as false as he “
testified well and he stuck to his
version, there were no inherent contradictions in his testimony.
..”
I detect no
irregularity in the conduct of the proceedings.
[21]
Having regard to the facts of this matter and the available evidence,
I am satisfied that the trial court
correctly found that the State
proved the guilt of the appellant beyond a reasonable doubt. The
appellant was correctly convicted.
[22]
As regards the sentence, it is trite that punishment is pre-eminently
a matter for the discretion of the
trial court. The court of appeal
must approach an appeal against sentence with due deference to the
trial court and may only interfere
where it is clear that the trial
court misdirected itself or imposed a sentence that is disturbingly
inappropriate.
[2]
[23]
In the court
a quo
it was common cause that section 51(1) of
the CLAA prescribes a minimum sentence of life imprisonment for rape
involving the infliction
of grievous bodily harm unless there are
substantial and compelling circumstances warranting a deviation from
the prescribed sentence.
[24]
It is the appellant’s case that life imprisonment is strikingly
inappropriate and induces a sense of
shock, the trial court should
have found that there were substantial and compelling circumstances
warranting a deviation for the
sentence of life imprisonment instead
it over-emphasized the seriousness of the offence and did not take
into consideration the
appellant’s personal circumstances, that
the complainant did not sustain injuries and that this was not the
worst rape case
ever encountered. The sentence must thus be set aside
and replaced with a sentence of 20 years’ imprisonment.
[25]
The sentence of life imprisonment is also not supported by the State
albeit on other grounds. It is the State’s
case that the
complainant did not sustain serious injuries therefore, the trial
court
erred by invoking the provisions of section
51 (1) of the CLAA when sentencing the appellant
as the
assault did not involve the infliction of grievous bodily harm to
bring it within the purview of section 51(1) of the CLAA.
For that
reason, the appellant should not have been
sentenced
to life imprisonment.
The State contends that the trial court
should have imposed a sentence in terms of section 51(2) of the CLAA
and having regard to
the appellant’s personal circumstances and
the aggravating factors, there are no substantial and compelling
reasons to warrant
a deviation from the minimum sentence prescribed
by section 51(2) of the CLAA. The sentence that would be appropriate
is 15 years’
imprisonment.
[26]
Accordingly, the question that arises in this matter is whether the
trial court misdirected itself in its
finding that there were no
substantial and compelling circumstances warranting a deviation from
the sentence prescribed by section
51(1) of the CLAA and by treating
the offence as rape involving grievous bodily harm thereby sentencing
the appellant to life imprisonment
as contemplated in section 51(1)
of the CLAA.
[27]
It is
recorded that at the time of sentencing, the appellant was 37 years
old, unmarried and had one 18 year- old daughter. He dropped
out of
school in Grade 11 in order to provide for his family with the income
he earned from doing odd jobs. He was previously
convicted of
housebreaking with intention to steal and theft and malicious damage
to property in 2005.
[28]
It was argued that the previous convictions were unrelated to the
offence he was convicted of
and they were over 10 years therefore
they should not be taken into account when the sentence was
considered. Having regard to
his young age, the appellant could still
be rehabilitated.
[29]
It is trite that the
traditional mitigating factors
such as an accused’s personal circumstances, that he is a first
offender including his incarceration
pending trial may be taken into
account as substantial and compelling reasons warranting the
imposition of a lesser sentence than
the one prescribed.
[30]
T
he
fact that the appellant is a first offender on its own does not
constitute a substantial and compelling reason to justify a deviation
from the prescribed minimum sentence.
[3]
Similarly,
the lack of serious physical injuries does not make this rape less
heinous. Rape leaves the victims with life-long emotional
and
psychological scars.
[31]
The emotional and psychological effects resulting
from the appellant’s actions are set out in the complainant’s
victim impact statement, Exhibit “G” admitted by
mutual concurrence and it states that the complainant is now scared
to walk alone in the street at night, she does not trust men anymore
including her own father and she is constantly embarrassed
when
people ask her about the rape.
[32]
The Supreme Court of Appeal in
Maila
v The State
[4]
quoting A
manda
Spies ‘Perpetuating Harm: Sentencing of Rape Offenders Under
South African Law’
(2016)
(2)
SALJ
389
at 399
pointed
out that:
“
[47]
Counsel
for the appellant submitted that the trial court did not take into
account the appellant’s personal circumstances.
It also,
according to counsel, did not take into account that this was not one
of the ‘brutal cases’, as the complainant
was not
physically injured. Counsel was taken to task during the exchange
with the members of the bench on this submission, but
he could not
take the argument further. Correctly so, because apart from this
minimising the traumatic effects of rape on any victim
and more so a
child, it is well documented that ‘irrespective of the presence
of physical injuries or lack thereof, rape
always causes its victims
severe harm.”
[48] The
Legislature has specifically amended the
Criminal Law Amendment Act
to
provide categorically that the fact that a complainant was not
injured during a rape cannot be considered as compelling or
substantial.
In terms of
s 51(3)
(a A) of Act 105 of 1997, which
came into operation in December 2007:
‘
When imposing a
sentence in respect of the offence of rape the following shall not
constitute substantial and compelling circumstances
justifying the
imposition of a lesser sentence:
…
.
(ii)
an apparent lack of physical injury to the complainant;
…
.
(iv)
any relationship between the accused person and the complainant prior
to the offence being
committed.”
[33]
The age of the appellant would count in his favour as an indicator
that he is a good candidate for rehabilitation
however, there
is
nothing in the record of the proceedings which points to some
contrition for this heinous crime instead there is an attempt to
denigrate the complainant by characterizing her as a woman who slept
around for drugs and money. Without remorse, an appreciation
and
acknowledgement of his actions rehabilitation is unlikely.
[34]
Rape
is
“
a
repulsive crime, an invasion of the most private and intimate zone of
a woman and strikes at the core of her personhood and dignity.”
[5]
The
prevalence and depravity of rape causes an outrage in the society
which looks up to the courts to impose sentences which speak
to their
plight.
[35]
When measured against the aggravating factors namely
that,
the complainant was violated by someone she
regarded as a brother and trusted enough to let inside her residence
in the still of
the night. It is equally aggravating that the
appellant raped the complainant well aware of his HIV status thereby
exposing her
to the virus including his lack of remorse. His personal
circumstances ought to recede to the background and
the
elements of retribution and deterrence must come to the fore
.
Accordingly,
I am
not persuaded that
the appellant’s personal factors together with the factors
alluded to by the appellant cumulatively as
well as individually are
sufficient to constitute substantial and compelling circumstances
justifying the imposition of a lesser
sentence.
[36]
Turning to whether the injury sustained by the complainant
constitutes grievous bodily harm to bring the
rape within the purview
of section 51(1) of the CLAA. It is trite that in the CLAA,
there is no definition of what constitutes
grievous bodily harm in
the context of rape.
In
S
v Raboko
[6]
Musi
J explained the meaning of the words as follows:
“
[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
.”
[10]
...
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.
”
[37]
In the instant case, except to fleetingly remark that in terms of
section 51(3) of the CLAA the absence of
injuries does not constitute
substantial and compelling circumstances to warrant a deviation from
the prescribed sentence, the
magistrate made no mention of injuries
inflicted on the complainant to subdue her. On the complainant’s
own version, she
sustained no injuries and the only effect of the
assault was a bleeding nose resulting from being hit with a fist.
[7]
Her version in this regard is confirmed by the J88 medical report
Exhibit “A” compiled on the day of the incident.
In that
report, the clinical findings regarding the nature, position and
extent of injuries and causation indicates no injuries
except that
the complainant was threatened with a knife. I am thus
persuaded by the State’s contention that the complainant
did
not sustain an injury which constitutes grievous bodily harm.
[38]
In conclusion, the infliction of grievous bodily harm is not one of
the elements of rape but a jurisdictional
requirement to trigger the
applicable sentence in that, rape involving grievous bodily harm
attracts a minimum sentence prescribed
by section 51(1) of the CLAA
and rape where grievous bodily harm is absent brings the sentence
under the purview of section 51(2)
of the CLAA.
[8]
In the circumstances, the conviction on rape stands. The sentence
thus qualifies to be imposed in terms of section 51(2) of the
CLAA.
[39]
Having found
no
substantial and compelling circumstances warranting a deviation from
the prescribed minimum sentence (see para 35 above), I make
the
following order:
ORDER
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence succeeds to the extent that the sentence
imposed by the magistrate Bothaville
is set aside and replaced with a
sentence of 15 years’ imprisonment antedated to 3 October 2023.
NS
DANISO, J
I
concur
E
MAHLANGU, AJ
APPEARANCES
On
behalf of appellant:
Ms V.
Abrahams
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of respondent:
Adv.
A. Bester
Instructed
by:
The
Director of Public Prosecutions
BLOEMFONTEIN
[1]
See S v
Oosthuizen
1982
(3) SA 571
(T)
at page 576 para G-H.
[2]
S
v Kgosimore
1999
(2) SACR 238
SCA.
[3]
S
v Muller
[2006]
ZAGPHC 51
(23
May 2006) paras 55 & 59.
[4]
(
429/2022)
[2023]
ZASCA
3
delivered on 23 January 2023.
[5]
S
v Vilakazi
2009
(1) SACR 552
(SCA)
.
[6]
2010
(1) SACR 320
(O)
para 10.
[7]
Unpaginated record of the proceedings page 8 to 14.
[8]
Section 51(1) item (c) Part I of schedule 2 prescribes a minimum
sentence of life imprisonment for a first offender convicted
of rape
involving grievous bodily harm whereas section 52(2) Part II of
schedule 2 prescribes a minimum sentence of not less
than 15 years’
imprisonment for rape without grievous bodily harm.