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1991
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[1991] ZASCA 138
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S v Duma (415/90) [1991] ZASCA 138 (27 September 1991)
Case no 415/90. E du P
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
ERNEST MBONGENI DUMA
Appellant
and
THE STATE
Respondent
Coram:
CORBETT CJ, F H
GROSSKOPF JA et KRIEGLER AJA.
Heard:
Delivered:
30 August 1991 27 September 1991
2
JUDGMENT F H GROSSKOPF JA:
The appellant was convicted in the
Durban and Coast Local Division by Alexander J and assessors on 17 counts. These
counts related
to eight different incidents which occurred during the period 2
August 1988 to 8 December 1988 in the district of Pinetown. The Court
a
quo
found that on each one of these eight occasions the appellant had
committed robbery with aggravating circumstances as well as a sexual
crime. The
sexual crimes of which he was convicted were six instances of rape, one of
attempted rape and one of indecent assault.
In two cases the conviction for
robbery was coupled with a conviction for housebreaking with intent to rob.
There was also a conviction
for common assault committed on a maid-servant. The
victims were women living in the Pinetown area. These crimes were usually
committed
during the morning or early afternoon while the victim was alone at
home. In two instances there were also maid-servants on the premises.
3
The appellant was sentenced to death cn four of the six rape counts, and to
an effective term of imprisonment of 25 years in respect
of all the other
charges. The learned trial Judge granted the appellant leave to appeal against
the convictions on counts 5 and 6
and the sentences of death imposed in respect
of counts 3, 5, 7 and 12.
I shall first deal with the appellant's appeal
against his conviction on counts 5 and 6. The State case was that the appellant
had
raped the complainant at her home in Pinetown on 12 October 1988 (count 5),
and that he robbed her of R30,00 in cash and a wristwatch
on the same occasion
(count 6).
The complainant on these two counts was a divorced woman who was
41 years old. She had taken her children to school early that morning
and when
she returned home she locked the doors. She was alone in the house at the time.
At about 11 o'clock that morning, and while
she was busy sewing in her sewing
room, a man suddenly appeared in the
4
doorway and demanded money. She stabbed him in the cheek with a small sharp
instrument used in sewing; he grabbed her by the neck
and throttled her until
she lost consciousness. As soon as the complainant had regained consciousness
her assailant again demanded
money. She gave him R30,00 from her purse, but he
was not satisf ied and he demanded more money. She told him that she kept money
in the kitchen, but when they got there she could not produce any and he became
very angry. A struggle ensued in which her jacket
came off. He noticed her
wristwatch and removed it. They moved towards the lounge where the complainant
tried to escape through one
of the doors leading into the garden. Her assailant
brought her down and started kicking her in the face and elsewhere on her body.
This attack went on for some time and left her with a broken nose, four
fractured ribs and multiple bruises and abrasions. Thereupon
her assailant raped
her twice in succession in the lounge.
The facts relating to the commission of these two
5
offences were not in dispute. The only issue was the identity of the
assailant. An identification parade was held, but the complainant
failed to
point out the appellant
or anybody else as her assailant.
The appellant admitted in a confession made before
a magistrate that he had committed most of the other crimes
charged in the
indictment, but he made no mention of this
particular incident in his
confession. The appellant also
pointed out the various houses where all the
other crimes had
been committed, but the house in question was not pointed
out
to the police. When the appellant first appeared in the
Magistrates'
Court on 1 February 1989 he was not required to
plead to the rape and robbery
charges now set forth in counts
5 and 6. He did, however, plead guilty on
that occasion to a
number of charges relating to the other incidents.
Charges
in connection with the rape and robbery in question were
first put to him
on 17 February 1989, but he then pleaded not
guilty to those charges.
6
At the trial the appellant testified in the course of a trial within a trial
relating to the admissibility of the confession and the
pointing out. His
evidence was rejected and the disputed evidence was admitted. At the close of
the prosecution case the appellant,
significantly, elected not to give evidence
on the merits.
Counsel for the appellant submitted that the complainant had
ample opportunity to observe her assailant and that she ought to have
been able
to identify the appellant if he had been the rapist. One should not, however,
lose sight of the complainant's evidence
in this regard. She testified that she
was under such emotional strain when she attended the identification parade that
she was unable
to look at the people on the parade or to register any
face.
Counsel further pointed out that unlike other counts where the
appellant initially had admitted his identity, he denied his involvement
in
these two crimes. The
7
inference which counsel asked the Court to draw is that the appellant was
indeed truthful when he denied any knowledge of this particular
incident. There
is the possibility, however, that when the appellant was first confronted on 17
February 1989 with these two additional
charges he had already reconsidered his
position and decided to deny his involvement in any of the crimes. At the trial
he actually
pleaded not guilty to all counts.
The Court
a guo
considered the complainant's inability to identify the appellant, and the
appellant's earlier admissions regarding the other crimes,
but found that the
appellant's identity in respect of counts 5 and 6 had nevertheless been clearly
established. In coming to this
conclusion the Court
a guo
relied on two
aspects in particular: the appellant's use of the words "sleep down", and the
appellant's possession of the complainant's
keys.
The complainant on counts 5
and 6 testified that her assailant had told her to "sleep down" before he
raped
8
her. He used the same words again at a later stage when he required her to
lie down. It is common cause that these same words were
also used by the
appellant about six weeks later when he raped the complainant on count 12. The
learned trial Judge held that these
words were so distinctive as to be
receivable as similar fact evidence tending to establish the appellant's
identity. The expression
"sleep down" may be distinctive to an English speaking
person, but there is no evidence to suggest that it is equally distinctive
to
Zulu speaking people. The expression "sleep down" was otherwise proved to have
been used by the appellant on one occasion only.
The complainants on the other
rape counts made no mention of hearing any such expression. If this had been the
appellant's peculiar
way of expressing himself in English one would have
expected him to have used these words on at least some of the other occasions
as
well. In my opinion the evidence of the appellant's use of the words "sleep
down" in the case of count 12 is of insufficient weight
by itself
9
to provide material confirmation of the appellant's identity
as the rapist
on count 5. This evidence will, however,
acguire some probative value once it
is considered in
conjunction with the other similar fact evidence referred
to
hereinafter.
Evidence of offences other than those with which
an accused had been charged was admitted as similar fact
evidence in the
case of
Director of Public Prosecutions v
Boardman
[1975] A C
421
(H L). The following passage
appears in the speech of Lord Wilberforce at
444 D-E:
"The basic principle must be that the admission of similar fact evidence (of the
kind now in question) is exceptional and requires
a strong degree of probative
force. This probative force is derived, if at all, from the circumstance that
the facts testified to
by the several witnesses bear to each other such a
striking similarity that they must, when judged by experience and common sense,
either all be true, or have arisen from a cause common to the witnesses or from
pure coincidence. The jury may, therefore, properly
be asked to judge whether
the right conclusion is that all are true, so that each story is supported by
the other(s)."
(See also
R v Kalkiwich and
Kruger
1942 AD 79
, at 86/87; S
v M
1985(1) SA 1 (A), at 4B-F).
10
The facts surrounding the rapes and robberies proved to have been committed
by the appellant in the present case bear such a "striking
similarity" to the
facts of the rape and robbery committed by the unidentified assailant, that
evidence of the former should in my
opinion by admissible as similar fact
evidence. A comparison between the offences charged in counts 5 and 6 on the one
hand, and
the offences committed by the appellant on the other hand, in my view
reveals a clear connection between these various offences and
provides
confirmation of the identity of the assailant on counts 5 and 6. It is in this
connection that some weight can also be attached
to the expression "sleep down"
which was used by the appellant on one occasion and by the unidentified
assailant on the occasion
in question.
The appellant committed a series of
rapes and robberies in a particular area and within a period of about four
months. The crimes
referred to in counts 5 and 6 were committed in the same area
and in the middle of this series
11
of similar crimes. The same pattern of conduct which was followed by the
appellant in all the other cases was also followed by the
assailant in the case
of counts 5 and 6. These crimes were all committed during the morning or early
afternoon when the victims would
likely be alone. The appellant would enter a
particular house surreptitiously and confront the unsuspecting victim. He would
first
demand money and then rape the victim. The same pattern was followed by
the assailant on counts 5 and 6. The appellant appeared to
have a predilection
for wristwatches. In almost every instance he removed the complainant's
wristwatch, or at least asked for her
watch. It is of some significance in my
view that the assailant on counts 5 and 6 also robbed the complainant of her
wristwatch.
Taken together these similarities are sufficiently striking in my judgment to
corroborate the other circumstantial evidence pointing
to the appellant as the
culprit, i.e. the evidence with regard to the appellant's
12
possession of the complainant's keys.
The complainant on counts 5 and 6 testified that her assailant took her bunch
of keys on 12 October 1988 when he left the house. The
police subsequently found
these keys in the appellant's possession when they arrested him on 25 January
1989. There was some dispute
in the Court
a quo
about the identity of
these keys, but counsel for the appellant has now conceded, quite properly in my
view, that the keys which were
found in the appellant's possession were the same
keys which had been removed by the assailant from the complainant's house on the
day of the incident. The fact that these keys were only found in the appellant's
possession some three and a half months after their
removal from the
complainant's home cannot in my view assist the appellant. The appellant's
version, as put to Captain Dutton, the
investigating officer in this matter, was
that he had picked up these keys in the street in Pinetown on some unspecified
date. The
appellant, however, failed to confirm this
13
"version" under oath and the Court
a quo
in my respectful
view
rightly rejected such a proposition on the following
grounds:
"If, in truth, and without hearing any evidence to that effect, the accused had
picked up those keys, then we are asked to believe
that one man who is a rapist
has picked up a bunch of keys abandoned by another rapist. Apart from the fact
that the area is the
same area where the accused lives, it is remarkable that if
the keys recovered by the police were not stolen from the complainant's
house by
the accused, but by a man who had raped her, that they should come into the
possession of another man who is a proved rapist.
We think such a proposition
would be stretching the bounds of coincidence beyond any possible
limits."
One may also ask why the appellant would
have retained a
bunch of keys which had been picked up in the street
and
could be of no apparent use to him. The appellant's silence
with
regard to the keys leaves one without any plausible
explanation for his
possession thereof. The only reasonable
inference to my mind is that the appellant is indeed the
rapist who
removed the bunch of keys from the complainant's
home on 12 October 1988.
This conclusion is confirmed by the
14
similar fact evidence referred to above.
Counsel for the appellant
submitted, however, that such a conclusion fails to take account of the fact
that the appellant was suffering
from gonorrhea at the time when the complainant
cm count 5 was raped, and that she would most probably have contracted this
venereal
disease if the appellant had been the rapist. There is indeed no
evidence that she suffered from any sexual infection after having
been raped on
12 October 1988.
It appears from an affidavit handed in at the trial, and
made by the medical superintendent of the KwaDabeka Clinic, that the appellant
was treated at the clinic on 21 October 1988 for gonorrhea, and that he had been
suffering from this condition for at least a month.
The complainant on count 3,
who had been raped by the appellant on 30 August 1988, was subsequently treated
for an unidentified sexual
infection, and so were the complainants on counts 7
and 12, who had been raped by the appellant on 3
15
and 28 November 1988 respectively. The other victims who had
been raped
after 28 November 1988 gave no evidence of
having contracted any sexual
disease. The medical
superintendent of the clinic also gave oral evidence. He
was
asked whether intercourse with a person suffering from a
sexually
transmitted disease would necessarily infect the
other party, and he gave the
following answer:
"I have heard there is a remote chance that the other party may not, may
escape."
This evidence appears to me to be
inconclusive, and certainly not of such a cogent nature that it should create a
reasonable doubt
as to the appellant's identity. I am, therefore, in respectful
agreement with the finding of the Court
a quo
that the identity of the
appellant has been properly established in the case of counts 5 and 6. The
appellant's appeal against his
conviction on counts 5 and 6 must accordingly
fail.
There is the further appeal against the death
16
sentences imposed in respect of the four rape charges set out in counts 3, 5,
7 and 12. It should be borne in mind that the appellant
was also sentenced to 15
years' imprisonment on each of two further rape charges.
It was not contended
by counsel for the appellant that the learned trial Judge had misdirected
himself in imposing the four death
sentences, or that he had failed to exercise
a proper discretion. Counsel for the appellant based his argument mainly on the
new
section 277
of the
Criminal Procedure Act 51 of 1977
("the
Act"), which
was
substituted by Act 107 of 1990, and submitted that the sentence of death was not
the only proper sentence in respect of each
of these four rape charges.
The
circumstances surrounding the rape charge in count 5 have been set out above.
What follows is a summary of the facts relating
to the rape charges in counts 3,
7 and 12 respectively.
The complainant on count 3 was a married woman of
17
35 years who was robbed and raped by the appellant. She was alone at home
during the morning of 30 August 1988. The appellant apparently
effected an entry
into the house by forcing open the burglar guards in front of the bathroom
window. He confronted the complainant
in the lounge where she was reading a book
and drinking coffee. He immediately demanded money. The complainant's husband
had given
her R400,00 for groceries. She handed this money to the appellant and
then threw the coffee in his face. This made him very angry
and he hit her in
the face with his open hand. The appellant took the complainant to the bedroom.
There she tried to spray him with
a marking dye. He forced the bottle out of her
hand and hit her in the face once again. He tried to tie her hands, but she
stuck
her fingers in his eyes. The appellant got hold of a small wooden chair
and broke it upon her shoulder. She grabbed a piece of wood
to defend herself
while the appellant was hitting her in the face with his fist. He also kicked
her repeatedly in her stomach. He
18
forced her to undress and then raped her. Thereafter he took her wristwatch
and left. The complainant suffered from shock and was
treated in hospital for
severe bruising and for a sexual infection. She was detained in hospital for
seven days. This experience
had a detrimental effect on her sense of security
and she complained that she always felt scared.
The complainant in the case
of count 7 was a 31 year old married woman who was 35 weeks pregnant at the
time. She was also robbed
and raped by the appellant. She and her small son, who
was about two years old, were alone at home during the early afternoon when
there was a knock at the front door. It was the appellant who was professedly
seeking work. When the complainant opened the door
he forced his way into the
house and started hitting her over the head with a truncheon. The appellant put
his hands round her neck,
threw her on the floor, dragged her to the bedroom and
threatened to kill her. He asked her for a gun, but she told him she did not
have one. He also demanded money and she gave him a
19
purse with R50,00 to R60,00 in it. It was obvious that she was pregnant, and
she also told him that she was expecting a baby. That
did not deter him from
raping her, and he proceeded to do so in front of her two year old son. Before
he left he tied her wrists
with an electric cord and took her wristwatch. The
doctor who examined her later that day in hospital found two lumps on the back
of her head which were probably caused by the blows with the truncheon. This
complainant was also treated for a sexual infection.
The child she had been
expecting was fortunately born normal a few weeks later. Her evidence was that
she had been very scared of
black men since this incident. Her two year old son,
who had always been a sensitive child, had also been adversely affected by this
experience.
The complainant on count 12 was a married woman aged 51 . She too
was robbed and raped by the appellant in the privacy of her home.
It happened
during the latter part of the morning on 28 November 1988. She had been working
in
20
the garden and when she went inside to prepare lunch she encountered the
appellant in the house. He had a knife in his hand and demanded
money. The
complainant informed him that she had only R30,00 in the house. He was not
satisfied, and he showed it by hitting the
complainant on the head with his
hand. He then proceeded to drag her from room to room. He kept on asking for
money while calling
her a "white bitch". She was unable to produce more money
and he hit her hard across the face. He also kneed her in the stomach with
such
force that she collapsed into a chair. He pulled her out of the chair and
punched her on her breasts. He also threatened to
kill her. There was a maid
servant on the premises who suddenly appeared on the scene. The complainant told
the maid to go and get
help, but the appellant threatened to kill the
complainant if the maid were to do so. The appellant then pulled the complainant
into
the lounge and told her to "sleep down". She refused at first, but he
treatened once more to kill her. The complainant, who had
21
suffered a heart attack some months before, told him that she had a bad
heart. She even pretended to have a heart attack, but this
did not prevent the
appellant from raping her twice in succession. The complainant later managed to
escape, and when she returned
home she discovered that the appellant had taken
the R30,00 as well as her watch.
The complainant was examined by her doctor
who found her to be badly bruised and in a shocked and hysterical condition. She
was taken
to hospital and then transferred to a psychiatric unit where she was
detained for a week. She received further psychiatric treatment
for about
another two months. She too contracted a sexual infection. This incident
affected the complainant and her family also in
other respects. As a result of
what happened to her she could not stand a black man walking behind her. She was
further obliged to
go and work to help pay for additional security installations
at the house.
The appellant was sentenced by the trial Court
22
before the 1990 amendment of the Act came into operation. The position with
regard to the imposition of the death sentence has since
changed. The Court must
now be satisfied that the death sentence is the only proper sentence to impose.
(
S v Senonohi
1990(4) SA 727(A), at 734F-H;
S v Nkwanyana and
Others
1990(4) SA 735(A), at 745A-G;
S v P
1991(1) SA 517(A), at
524G-H;
S v S
1991(2) SA 93(A), at 107I and 108B-E.)
This is no doubt
a very serious case. There are indeed a number of aggravating features which
have to be taken into account in considering
the proper sentence. Each one of
the individual cases of rape under consideration was serious in itself. They
were all committed
in the privacy of the victims' own homes. (
S v S
1988(1) SA 120(A), at 124D;
S v G
1989(3) SA 695(A), at 705G). In some
cases there was more violence than in others, and some of the victims were more
detrimentally
affected than others. On the other hand, none of the victims
appears to have suffered serious physical
23
injuries. This also applies to the victim who was 35 weeks pregnant at the
time, and the other victim who had previously suffered
from a heart attack. The
sexual infection contracted by three of the victims has subseguently been cured.
Some of the victims had
been psychologically affected and suffered from a
feeling of insecurity, but the psychological effect does not appear to have been
all that serious or prolonged. The victims in these four cases were not young
children; they were all women who were either married
or previously married and
who seem to have been able to cope with the crisis with which they were
confronted.
The most aggravating feature to my mind is the fact that the
appellant committed a series of sexual offences within a relatively short
period
of time. The learned trial Judge described it as "a rampage of rape and
robbery". Yet the evidence shows that the appellant
is neither a psychopath nor
a person who committed these sexual offences to gratify a sexual lust. This is
further borne out, to
some extent, by
24
the fact that he has no previous convictions for sexual offences or offences
involving violence. His two previous convictions are
for crimes which were not
serious at all and which were committed during 1983 and 1984 respectively.
Otherwise the appellant appears
to have been a law abiding citizen. This is
certainly a mitigating factor. One does not know what gave rise to this bizarre
conduct
on his part; it seems completely out of pattern. Having regard to all
the facts and circumstances of this case I cannot find that
this young man of 24
years is beyond reform and rehabilitation. The learned trial Judge considered
the main purposes of sentence
and emphasised the importance of protecting
society against rapists such as the appellant. Society certainly needs to be
protected,
but in my judgment that can also be achieved by a sentence of life
imprisonment. (
S v Mdau
1991(1) SA 169(A) at 177A-C.) In my opinion
neither deterrence nor retribution demands the ultimate
25
penalty in this case. The same conclusion was reachcd by this Court in
S v
P
1991(1) SA 517(A), a case very similar to the present one. The appellant
in that case had committed four separate acts of rape within
a relatively short
period of time. The trial Court sentenced him to death on three of the four rape
counts. On appeal this Court
substituted a sentence of life imprisonment for the
three death sentences. Having regard to all the facts and circumstances of the
present case I am not satisf ied that the sentence of death is the only proper
sentence on counts 3, 5, 7 and 12. In my judgment
a sentence of life
imprisonment would be a proper sentence in respect of these four counts. The
appeal against sentence therefore
succeeds. The following order is made:
1. The appeal against the conviction on counts 5 and 6 is dismissed.
2. The appeal against the four death sentences is allowed. The death sentences
are set aside and a
26
sentence of life imprisonment is substituted therefor in respect of counts 3,
5, 7 and 12. 3. The sentences of imprisonment imposed
by the Court
a quo
in respect of all the other counts shall run concurrently with the sentence of
life imprisonment.
F H GROSSKOPF JA CORBETT CJ KRIEGLER AJA Concur.