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2024
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[2024] ZAECMKHC 77
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Chipps v S (CA&R: 152/2023) [2024] ZAECMKHC 77 (17 July 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CA&R: 152/2023
In the matter between:-
LECHAY
CHIPPS
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
BANDS J:
[1]
On 17 August 2023, the appellant, who was
legally represented at trial, was convicted on both counts that he
faced, namely, rape
in contravention of section 3 of the Criminal Law
(Sexual Offence and Related Matters) Amendment Act 32 of 2007 (count
1) and assault
with intent to cause grievous bodily harm (count 2).
[2]
His attention was drawn to the provisions
of
section 51
of the
Criminal Law Amendment Act, 105 of 1997
, which
enjoined the court to impose a minimum sentence of life imprisonment
in respect of count 1, given that the act of rape involved
the
infliction of grievous bodily harm, unless substantial and compelling
circumstances were found to exist justifying the imposition
of a
lesser sentence. The appellant was sentenced to life and 5 years’
imprisonment respectively.
[3]
The
appellant appeals against his conviction and sentence in respect of
count 1 by way of an automatic appeal in terms of
section 309(1)
of
the
Criminal Procedure Act 51 of 1977
. Accordingly, and
notwithstanding that both charges arose from the same incident and
that the facts underscoring both of his convictions
are inextricably
linked, no appeal lies against the appellant’s conviction
and/or sentence on count 2. Whether or not an
appellant in such
circumstances enjoys an automatic right of appeal in respect of those
counts to which lesser sentences were imposed
is subject to
conflicting judicial decisions.
[1]
However,
for the purposes of this judgment I need not deal with this aspect,
which falls outside of its necessary scope.
[4]
The evidence of the complainant was that
she was raped by the appellant on the afternoon of 9 October 2022
whilst walking home.
En route, she came across the appellant who was
well known to her. At his request, she accompanied him to two
separate locations
for the purposes of selling a cellular telephone.
[5]
Having been unsuccessful, and at the
instance of the appellant, they proceeded to walk in the direction of
the complainant’s
home, via a shortcut through a bushy area.
The appellant informed the complainant of his affection towards her.
When not reciprocated,
he grabbed her from behind; touched her
inappropriately; and commented on his seemingly sudden need for
sexual intercourse. He
threw her to the ground and instructed her to
loosen her pants and pull them down. She obliged to due fear. He
thereafter placed
his hand over her mouth and raped her per vaginum.
He then cautioned her not to tell anyone about what had happened. She
purported
to agree. This she did as she wanted the appellant to allow
her to go home. The appellant put his arm around the complainant’s
neck and throttled her. She attempted to loosen his grip but lost
consciousness and was purportedly left for dead.
[6]
When she regained consciousness, she ran in
the direction of her home. She noticed that she was bleeding from her
nose and face.
She came across several friends and, in an emotional
state, immediately reported the incident to them, identifying the
appellant
as her assailant. This was confirmed by the evidence of the
first report, Tiana Stoffels. After having been assisted home, she
reported the incident and the identity of her rapist to her mother.
They proceeded to the police station whereafter the complainant
was
taken to the hospital and medically examined. The complainant at no
stage waivered in her identification of the appellant as
the person
who had assaulted and raped her.
[7]
The evidence of the complainant’s
mother, insofar as her involvement was concerned, accorded in all
material respects with
that of the complainant. In addition,
she testified that her daughter, who was covered in blood, was
hysterical on her arrival
home. She noted that her top was torn.
[8]
The statement recorded by the doctor who
examined the complainant was consistent with her evidence in court.
Various injuries were
noted, requiring medical attention. The J88
recorded 3 sutured lacerations on the right side of her scalp;
abrasions to her nasal
bridge, between her eyebrows and on the right
side of her nose; bruising and scratches on the anterior aspect and
sides of her
neck; abrasions to the back of her right shoulder and
middle back; and abrasions and scratches to her lower legs. Fresh
vaginal
injuries were identified consistent with recent trauma and
vaginal penetration. Samples were taken from her, which together with
her panties were sent for DNA analysis. The DNA obtained from the
samples matched the DNA of the appellant.
[9]
The appellant’s defence was a denial
of the assault and rape. Instead, he contended that the act of sexual
intercourse between
him and the complainant on the day in question
was consensual. According to the appellant, he and the complainant
had an arrangement
whereby they engaged in casual sexual relations
with each other. This was never put to the complainant in evidence.
They met up
at a tavern and agreed to go back to the appellant’s
home. There they drank; chatted; and had consensual sexual
intercourse.
At the complainant’s request, he thereafter
accompanied her to a friend’s house, where he left her in an
uninjured
state. He did not see her thereafter.
[10]
As for her motive to falsely implicate him,
the appellant stated that the complainant was offered R10,000.00 to
lay a false charge
of rape against him. He does not allege that she
was raped by any other person nor, for reasons which are apparent,
was it suggested
that she may have been mistaken in her
identification of the appellant. Whilst the appellant was unable to
explain how the complainant
sustained her physical and gynaecological
injuries during examination in chief, he thereafter suggested in
cross-examination that
she sustained them voluntarily as part and
parcel of the plan to frame him.
[11]
By parity of reasoning, on the appellant’s
version, the complainant had consensual sexual intercourse with him
on the day
in question with the sole purpose of falsely implicating
him. She thereafter, in collusion with another unnamed person, was
voluntarily
assaulted and injured, including gynecologically, before
running through the bushes to cry rape. All this, for payment of the
sum
of R10,000.00. Let me say at this point that this version is so
improbable that it cannot be reasonably possibly true.
[12]
The trial court, in its judgment on
conviction, recognised that the complainant was a single witness.
Notwithstanding the application
of the requisite caution to the
complainant’s evidence, the trial court had no hesitation in
accepting her evidence as credible,
probable, and reliable in all
material respects. On the contrary, the appellant failed to impress
the trial court as a witness.
Whilst he consistently raised objection
in relation to the commission of the offences, his evidence was found
to be inconsistent,
contradictory, improbable, and tailored to suit
his version. On a general examination of the evidence, giving due
consideration
to the contradictions and inconsistencies in his
evidence and the patently inherent probabilities in respect thereof,
the trial
court rejected the appellant’s version as to the
events in question as being wholly improbable and not reasonably
possibly
true. This being so and having found that the state had
proven its case beyond reasonable doubt, the appellant was convicted
on
both counts.
[13]
In respect of conviction, the appellant
contends that the trial court failed to prove its case beyond
reasonable doubt for the following
two reasons. Firstly, by finding
that the only reasonable inference that could be drawn from the
medical evidence is that the complainant
was raped in circumstances
where the doctor testified that the injuries could have been
sustained during consensual intercourse;
and secondly, by finding
that the complainant was a credible witness whilst it was established
during cross-examination that she
withheld information of
communication between her and the appellant from court.
[14]
There is no merit in either of these two
grounds.
[15]
In dealing with the latter aspect first,
there exists nothing in the record to justify a finding that the
complainant in any manner
withheld or attempted to withhold
communication between her and the appellant from court. She readily
conceded that the appellant
had contacted her via social media
following his arrest, which she reported to her mother. Her mother,
in turn, reported this fact
to the investigating officer. This was
confirmed by her mother as well as the appellant in their respective
evidence. The complainant’s
reason for not having disclosed
this fact when initially questioned as to whether she had been in
contact with the appellant following
the incident was fully and
satisfactorily explained by her and in no manner detracts from her
evidence as to the events which led
up to and including the rape.
[16]
Insofar as the complainant’s
gynecological injuries are concerned, the trial court properly
considered the opinion of the
examining doctor that such injuries
could be incurred during consensual sexual intercourse; this of
course being dependent upon
several factors. Having acknowledged this
fact, the trial court went on to analyse the appellant’s
evidence in respect of
the incident. Penetration of the complainant’s
vagina was consensual and unrushed. She was well lubricated, and he
had no
difficulty in penetrating her. These features considered, the
trial court cannot be faulted in concluding that on the
probabilities,
the complainant sustained the gynecological injuries
due to forced sexual penetration. In any event, this was but one of
an overwhelming
number of factors considered by the trial court in
arriving at its ultimate conclusion.
[17]
To
borrow from the court’s phraseology in
Songoni
v S,
[2]
in
dealing with “
moral
certainty
”
in the manner discussed by the Supreme Court of Appeal in
S
v Mavinini
,
[3]
the appellant’s conviction “
on
the application of the rules of evidence, interpreted within the
precepts of the Bill of Rights, was properly attained through
a
proper application of the rules of the system.
”
There is accordingly no doubt in my mind that such “
moral
certainty
”
exists as to the guilt of the appellant in the present matter.
[18]
In respect of the sentence imposed, the
appellant contends that the sentence induces a sense of shock and
disbelief and that the
sentencing court overemphasised the interest
of society and the crime committed at the cost of the personal
circumstances of the
appellant. As stated, the prescribed
discretionary sentence of life was imposed in respect of count 1, the
sentencing court having
found no substantial and compelling
circumstances to exist justifying the imposition of a lesser
sentence.
[19]
The appellant was 38 years of age at the
date of trial. His highest level of education is grade 9. He is the
biological father of
two minor children, both of which are in the
primary care of their biological mother. He is married. Prior to his
arrest, he was
gainfully employed as a builder, receiving
approximately R1,500.00 every fortnight. He has one previous
conviction for robbery,
having been convicted in August 2010 and
sentenced to 15 years’ imprisonment. It is unclear which of the
appellant’s
personal circumstances or which circumstances,
taken cumulatively, is alleged by the appellant to amount to
substantial and compelling.
[20]
T
he
offence, as conceded by the appellant’s legal representative at
trial, is very serious. I do not agree that the trial court
overemphasised the interest of society and the seriousness of the
offence at the cost of the appellant’s personal circumstances,
to which the trial court consciously and properly considered. The
appellant showed no sign of remorse, nor was any such remorse
contended for by his legal representative. As for his prospect for
rehabilitation, no such evidence was advanced. To draw any other
conclusion in such circumstances, would amount to a speculative
hypothesis in favour of the appellant as cautioned against in
Malgas
.
[4]
[21]
Regard
being had to what I have set out above, and with particular reference
to the facts of this matter viewed collectively with
the high levels
of violence against woman and children (inclusive of the legitimate
expectations and legal interests of the community),
which are widely
reported on and have been referred to as “
a
pandemic of sexual violence against woman and children
”
by the Supreme Court of Appeal,
[5]
life imprisonment neither induces a sense of shock and disbelief nor
is it unjust.
[22]
In the result, the following order is
issued:
1. The appeal against
conviction and sentence is dismissed.
I BANDS
JUDGE OF THE HIGH
COURT
JOLWANA J:
I
agree.
M JOLWANA
JUDGE OF THE HIGH
COURT
For
the appellant:
Mr
H Charles
Instructed
by:
Legal
Aid South Africa Makhanda Local Office 69 High Street Makhanda
For
the respondent:
Ms
H Obermeyer
Instructed
by:
Office
of Director of Public Prosecutions Makhanda
Date
heard:
8
May 2024
Judgment
granted:
17
July 2024
This judgment was
handed down electronically by circulation to the parties' legal
representatives by email on 17 July 2024. The
date and time for
delivery is deemed to be 10h00 on 17 July 2024.
[1]
Appolis
v S
(A91/2021)
[2021] ZAWCHC 105
(1 June 2021); and
N.A.N
v S
(A150/2012)
[2023] ZAGPJHC 1338 (17
November 2023).
[2]
2023
(1) SACR 290
(WCC) (18 July 2022).
[3]
[2009]
2 All SA 277
(SCA) at paragraph 26.
[4]
[2001]
3 All SA 220 (A).
[5]
Director
of Public Prosecutions, Grahamstown v TM
(131/2019)
[2020] ZASCA 5
(12 March 2020).