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[1991] ZASCA 101
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S v Van Rooyen and Another (8/91, 325/91) [1991] ZASCA 101 (10 September 1991)
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Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
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CASE NO. 8/91 325/91
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
JOSEPH VAN ROOYEN
................
FIRST
APPELLANT
BENJAMIN LUKAS
................
SECOND
APPELLANT
and
THE STATE
................
RESPONDENT
CORAM
: JOUBERT, NESTADT JJA
et VAN COLLER AJA
DATE HEARD
: 22 August 1991
DATE DELIVERED:
10
September 1991
JUDGMENT NESTADT, JA
:
The two appellants were convicted
of rape. They were sentenced to death. This appeal is against
sentence.
The proven facts of the crime are,
in
2/
2.
summary, the following. At about
6:30 pm on Monday 20 June 1988 the complainant, a Mrs B, parked her
car outside a cafe in Camps
Bay, Cape Town. She, a married woman with
three children, was aged 59 at the time. Having purchased a loaf of
bread she returned
to her vehicle. She was on her way home. It was
dark and raining. Unbeknown to her, two coloured men were lurking in
the vicinity.
They were appellants. They were lying in wait for her.
As she was getting into her car first appellant (Joseph van Rooyen),
having
suddenly approached her, pushed her into the car. He and
second appellant (Benjamin Lukas) jumped in after her. First
appellant
sat in the driver's seat and second appellant in the
passenger's seat. Complainant was now (in her words) "in the
middle sitting
on the hand brake virtually with a man on either
side". This was the beginning of an ordeal
3/
3.
that was to last some four hours.
Second appellant was armed with a knife. He told complainant he would
kill her if she screamed.
He removed her watch and the rings she had
on. He also took possession of her purse. It contained a small amount
of cash and a
credit card. At this stage the car was still stationary
in its parked position. First appellant having obtained the key from
complainant,
then started the car and drove off. Complainant tried to
draw the attention of a nearby motorist to her plight but was
unsuccessful.
First appellant proceeded in the direction of Hout Bay.
It was already clear to complainant that appellants intended to rape
her.
She gathered this from their conversation with each other. There
was talk of them "having sex with a white woman". And
they
used "filthy language" with a sexual connotation. The
journey continued. They reached
4/
4.
Hout Bay. First appellant drove
the car along a side road. He halced at an isolated spot amongst some
bushes. A strap was placed
round complainant's neck. She was forced
to lie on the passenger's seat. Second appellant, having ripped her
slacks off then "punched
me hard in my face" and had sexual
intercourse with her. Whilst he did this first appellant, still in
the driver's seat, held
the strap around complainant's neck. Each
time she made a sound or screamed he tightened it. This
notwithstanding, complainant
does not believe that she lost
consciousness. After second appellant had finished, he moved to the
back of the car whilst first
appellant raped her. He too (ie second
appellant) held and tightened the strap round her neck when she
uttered any sound.
The remaining events of that night
can be briefly recounted. During the following couple of
5/
5.
hours or so, appellants continued
to hold complainant captive in the car whilst they attempted to
withdraw cash at various so-called
auto-banks by means of the credit
card which they had taken from her. Complainant was made to lie on
the back seat of the car.
Second appellant sat "virtually"
on top of her. First appellant drove. the car to a number of these
auto-banks in Hout
Bay and certain suburbs of Cape Town. However, he
was unsuccessful in extracting any money with the card. Eventually he
drove to
and stopped off the road in the vicinity of the airport.
Complainant's hands and feet were bound. She was convinced she was
going
to be killed. The trial judge doubted whether this was so.
Fortunately the issue was not put to the test. No sooner had first
appellant
stopped the car, than the police were on the scene. They
were fortuitously present in the area and
6/
6.
on seeing the car decided to
investigate. Appellants were arrested and complainant freed. She was
taken to Tygerberg hospital where
she was admitted. It was now
midnight. She was very shocked. She was concerned that she may have
been infected by appellants with
some disease. She was found to have
sustained various injuries. Her left eye was swollen to such an
extent that it was closed.
There were lacerations on the inside of
her lips and tongue. Her nose and neck were bruised. As regards her
genitals, the labia
minora were bruised and contained blood. There
were about six small tears in the vestibule. The vagina also
contained blood. It
was the opinion of the district surgeon who
examined complainant that the intercourse had been accompanied by an
abnormal degree
of violence (though he conceded the possibility that
the injuries were caused by an unusually large male organ). It is
7/
7.
not clear what treatment
complainant received save that she was given pain-killers. She
remained in hospital for five days. It would
seem that by then she
had recovered from her physical injuries save for what she describes
as a "frozen shoulder". This
was only diagnosed later. It
gave her a great deal of pain and discomfort for almost a year.
During this period she was obliged
to undergo a number of
manipulations of the shoulder under general anaesthetic as well as
intensive physiotherapy. Finally there
are the psychological sequelae
that must be referred to. Complainant did not escape unscathed in
this regard. Already in hospital
she received psychiatric treatment.
Thereafter, however, she did not seek any further treatment of this
kind. It would seem that
the support she received from her family
made this unnecessary. But she still bears certain
8/
8.
mental scars. Even at the time of
the trial (some eleven months later) she continued to have nightmares
of the incident.
Those then were
the events of the night in question which led to appellants' trial in
the Cape Provincial Division before MUNNIK
JP sitting with assessors.
Besides being convicted of rape, appellants were also charged with
and convicted of the kidnapping of
complainant, robbery (of her
personal effects and car) with aggravating circumstances and
attempted theft (of the auto-bank money).
On these counts they were
sentenced to an effective period of eleven and nine years'
imprisonment respectively. As
I
have
indicated, however, only the death sentences for rape are in issue.
There can be no question that
there are a number of aggravating features about this crime.
9/
9.
Complainant was subjected to a
humiliating, indeed harrowing, experience. It was one which she had
to endure over a lengthy period
of time. From an early stage she knew
what her f ate was to be. It was not found that appellants intended,
when complainant was
first accosted, to rape her. Even so, it is
clear that soon after taking her captive, they had decided to have
intercourse with
her. They therefore had ample time for reflection.
As MUNNIK JP found "dit (was) nie a verkragting wat skielik op
die ingewing
van die oomblik gepleeg is nie, soos so dikwels die
geval is wanneer persone by 'n huis inbreek en h vroulike persoon
daar vind
of miskien op 'n vroumens afkom wat langs die strand loop
of in die bos wandel nie". They were, moreover, sober.
Appellants'
version that they were intoxicated was rejected. Before
us this finding was not attacked. So
10/
10.
appellants
(respectively aged 35 and 26 and therefore mature men) knew f ull
well what they were about. Each of them assisted the
other in
subduing complainant whilst she was raped.
I
refer in this regard to the cruel use of a
strap around her neck. And, in addition, second appellant struck her
at the time. She
sustained both physical injuries and adverse
psychological consequences. Appellants have shown no genuine remorse.
Finally, there
are their personal circumstances. They both have
previous convictions. Those of first appellant are particularly bad.
They start
in 1971. They inciude three of housebreaking, two of
malicious damage to property, two for assault with intent to do
grievous bodily
harm, one for robbery, two of theft and one (in 1978)
for sodomy. First appellant was sentenced
inter
alia
to various terms of imprisonment.
The last one was in 1985. It was one of five years for theft.
11/
11.
He was released in April 1988, ie
about two months before the attack on complainant. Second appellant
has two previous convictions;
one in 1985 for attempted rape (a
sentence of three years' imprisonment was imposed) and one for
housebreaking. Both appellants
have therefore committed sexual
offences before.
What has been
stated makes this a particularly serious case of rape. Indeed,
I
do not think
I
would have interferred with the exercise of
the trial judge's discretion to impose the death sentence. MUNNIK JP
rightly took into
account the interests of society. He expressed
himself as follows:
"Dan is daar die kwessie van
die belang van die publiek. Hier is h klaagster wat ewe onskuldig in
h beboude gebied om 6:30,
vroeë aand, soos talle mense daagliks
doen, by 'n kafee stilgehou het om 'n brood te koop. Met haar
terugkeer na haar motor
het met haar
12/
12.
gebeur wat ek alreeds beskryf het.
Die publiek het h reg om vrylik en sonder vrees in die loop van hulle
daaglikse lewensaktiwiteite
hulle gang te gaan en om teen optredes
soos dié van die twee beskuldigdes beskerm te word. Daar is by
talle geleenthede
in die Appelhof en elders gewag gemaak van die reg
om rustig en sonder vrese in jou eie huis te verkeer sonder die vrees
van inbraak
en die feit dat die verkragting deur 'n inbreker gepleeg
word is as erg verswarend beskou.
Na my mening is daar geen
wesentlike verskil tussen daardie tipe sake en die huidige nie. Die
klaagster het 'n reg gehad om haar
pligte as huisvrou ongesteurd en
sonder vrees uit te voer en om in haar eie motor te ry en veilig
daarin te voel."
No fault can be
found with these views. However, by reason of the Criminal Law
Amendment Act, 107 of 1990, we have now to exercise
an independent
discretion. In doing so, the test, unlike previously, is whether the
death sentence is the only proper sentence.
Only if it is, can the
death sentence be imposed. Applying this test,
I
have come to the conclusion, not without
hesitation, that it is not the only proper sentence.
13/
13.
I
cannot
confidently say that the evil of appellants' deed is such that
society would demand their destruction. As
I
have said, appellants did not lie in wait
for complainant in order to rape her. She has not suffered any
lasting serious effects.
Physically she has recovered.
I
do not have the impression that the
nightmares which she experiences are particularly worrying. Obviously
each case must be decided
on its own facts. And comparisons with
sentences imposed in other similar matters must be made with extreme
caution. Nevertheless,
I
cannot
overlook certain recent cases in which this Court, in respect of
rapes which in my judgment were at least as serious as the
present
one, did not impose the death sentence.
I
am referring to
S
vs P
1991(1) SA 517(A),
S
vs S
1991(2) SA 93(A) and the
unreported case of
Michael Matlala vs
S,
case no 233/90, decided on 28 March 1991.
The remaining question is, what
period of imprisonment should be substituted? There is no
14/
14.
warrant for
distinguishing between the two appellants. On a conspectus of all the
relevant considerations,
I
have
decided that it should be life imprisonment. This serves to reflect
the gravity of the offence and the indignation that it
would
naturally cause in the minds of the public. And, it is to be hoped,
it will also achieve the retributive, preventative and
deterrent
purposes of punishment.
The appeal succeeds. The death
sentences in respect of appellants' convictions for rape (count 3)
are set aside. There is substituted
in the case of each appellant a
sentence of life imprisonment.
NESTADT, JA
JOUBERT, JA )
)CONCUR
VAN COLLER, ÁJA )