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1993
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[1993] ZASCA 67
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S v Williams (311/92) [1993] ZASCA 67 (24 May 1993)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION)
In the matter between:
DENNIS WILLIAMS
Appellant
AND
THE STATE
..
Respondent
Coram
: MILNE, EKSTEEN, JJ A et VAN COLLER,
AJA
Heard
: 7 May 1993
Delivered:
24 May 1993
J U D G M E N T
EKSTEEN
, JA :
The appellant was convicted in the South East Cape Local Division on
three counts of rape and one of robbery. In the light of the
seriousness of the
offences and the appellant's previous convictions he was sentenced to death on
each of the three counts of rape.
On the robbery count he was sentenced to five
years imprisonment. The present appeal is brought in terms of section 316 A of
the
Criminal Procedure Act (No 51 of 1977) ("the Act") against the convictions
and sentences on the three counts of rape.
The complainant, a 44 year old woman,
../2
2
went riding on her horse at about 11 am on Saturday 19 October 1991. From
the aerial photographs handed in at the trial her home appears
to have been
situated near the end of a tarred road on the outskirts of an extensive area of
indigenous scrub and lowish trees. Various
footpaths wind their way through this
scrub and it was along one of these that the complainant rode. When she was some
considerable
distance from her home she came across the appellant walking
towards her on the same path she was following. He could not have presented
a
particularly prepossessing picture at the time, as, on his own evidence, he had
been involved in a fight at a bottle store earlier
that
.../3
3
morning and, on the evidence of the district surgeon who examined him
that same morning, his mouth and his lips were bleeding. He
accosted the
complainant and said something to her which she did not hear clearly. So she
stopped her horse in order to speak to
him. He then came up to her and asked her
whether the horse could bite. At the same time he caught hold of her arm and her
leg and
pulled her off the horse. She shouted and attempted to defend herself
with her riding crop. The appellant, however, soon overpowered
her and dragged
her into the bushes where he raped her. Any attempt at resistance was met by him
banging her head against the
../4
4
ground and threatening to kill her. Having raped her there he dragged her
off to another place where he again raped her. He then got
up and ordered her to
get up too. While he was busy adjusting his clothes she attempted to run away.
Appellant, however, ran after
her and caught her. He picked up a brick and
threatened to kill her. He then dragged her back into the bushes, threw her down
onto
the ground and sat astride her while he took off her necklace, her earrings
and her watch. He then raped her a third time before
telling her to go. She ran
off in the direction of her home naked from the waist down. The upper part of
her body was
../5
5
still clothed, and her riding jacket or "wind-cheater" came down well
below her waist and covered her private parts. She describes
it as something
like "a very mini skirt".
When the appellant pulled her off her
horse, the horse turned round and ran back home. On its arrival there her
husband immediately
realized that something was amiss. He mounted the horse and
set off to find her. As he left his home he came across his neighbour
in a
"bakkie". with a two-way radio. The neighbour followed him to the end of the
tarred road, after which the husband rode along
one of the footpaths. As he came
to a clearing in the bush he saw complainant
.... / 6
6
running towards him. She was visibly upset and
almost incoherent. Her face showed scratches and contusions. She kept repeating
that
she had been raped. He asked her to get onto the horse, but she declined
"due to the nature of what had happened to her", and because
she hoped that her
husband might yet be able to catch up with her assailant if he went on. He then
told her that their neighbour
was waiting in his "bakkie" at the end of the
tarred road. She went off in that direction while he rode further along the path
in
the hope of being able to apprehend his wife's assailant. In this he was
unsuccessful and so he returned home to where she was. The
police were informed
and soon
../7
7
thereafter, with the help of a helicopter, the appellant was arrested.
The complainant's watch was found in his possession but her
necklace and
earrings were not recovered. At about 3 pm the police brought the appellant to
complainant's home and she immediately
identified him as being her assailant.
Later that afternoon her husband went to the police station where he saw the
appellant sitting
in the back of a police car. The appellant, he says, was "like
a wild animal" and said to him "Ek sal haar kry, ek weet waar jy bly."
The appellant's defence in the court a
quo
was that he had a
previous liason with the
.... / 8
8
complainant and that they had arranged to meet each other again in the
bushes on this particular Saturday. Complainant kept his appointment
and was a
consenting party to the intercourse which ensued. The fact that her horse had
broken loose from the branch to which she
had tethered it and ran home while
they were having intercourse prompted her falsely to trump up a charge of rape
in order to placate
her husband. The injuries to her face, he suggested, were
caused by her running into a tree on her way home.
This highly improbable story was re-jected by the court a
quo
. The
appellant was
../9
9
described as a "shocking" witness. On the other
hand the trial court found that -
"the complainant's demeanour in the witness box was beyond reproach and she
made an excellent impression on us."
She was
corroborated by her husband who was found
to have given his evidence "extremely well."
The complainant's evidence was
also
supported by that of the district
surgeon who
examined her and the appellant on the afternoon
of the crime, and also certain other features
in the evidence which I find unnecessary to deal
with in the judgment. On a mere reading of the
record the findings of credibility of the trial
../10
10
court are amply born out, and there seems to be no reason to differ from
them.
Mr
Daubermann
who appeared for the appellant, without
abandoning the appeal against the conviction, chose not to address any argument
to us on
this issue. - This decision was in my view a wise one as no valid
argument can be advanced against the conclusion to which the trial
court came.
The appeal against the conviction cannot be sustained.
Mr
Daubermann
limited his argument before us to the appeal against
the sentence. His main argument was that owing to a so-called "moratorium"
which,
the executive authority seems
../11
11
at present to be applying to the execution of death sentences imposed by
the courts, that sentence has lost all its deterrent and
retributive effect, and
that consequently courts of law should no longer impose such sentences as they
served no purpose.
However cogent this argument may be from a political platform or in an
academic debate, it is not one which can be entertained by
this Court. In the
first place this "moratorium" is not contained in any law or proclamation, and
so its nature and ambit - whether
it contains any provision for exceptional
circumstances, or how long it is to be applied -
.... / 12
12
cannot be ascertained. In any event, and even if
we were to assume that some general "moratorium" existed as a matter of
government
policy in respect of all death sentences imposed by the courts, it
could still not serve to deter this Court from carrying out its
duty in terms of
the law. Sec 277(2) of the Act provides that :
"(2) The sentence of death shall be imposed
-
(a)
....
(b)
if
the presiding judge ....
is satisfied that
the sentence of death is the proper sentence."
In
S v Nkwanyana and Others
1990 (4) 5A 735 (A)
at 745 F this Court, in considering the above-
../13
13
mentioned section, held that
"the imposition of the death sentence will be confined to exceptionally
serious cases; where ... 'it is imperatively called
for'."
Where the presiding judge, after considering all
the mitigating and aggravating factors, is satisfied that it is so imperatively
called
for, then he is enjoined to give effect to the law and impose the death
sentence. (
S v Nkambule
1993 (1) SACR 136
(A) at 146 f.)
That this whole argument was one very much ad
hoc
became apparent
by Mr
Daubermann
's ready concession that should the "moratorium" be
terminated forthwith, his whole argument would fall away. Nothing more need
therefore
../ 14
14
be said on this score.
Although the appellant was properly
convicted on three separate counts of rape it appears from the evidence that
they were all committed
within a comparatively short period of time. The
complainant's husband deposed to her having been away from home for
approximately
45 minutes before her riderless horse returned. He thereupon
immediately set out in search of her. The three offences would therefore
probably have been committed within the space of 30 or 40 minutes. Although they
properly form three separate offences they may,
for purposes of sentence
be
../15
15
regarded as one continuous transaction as it were. Without seeking in any
way to detract from the extremely serious nature of the
crimes, they do not seem
to have been committed with such undue or extreme brutality as has occurred in
other matters that have come
before us. The complainant sustained no serious
physical injuries. She also appears from the evidence to have a strong
well-integrated
personality - "very strong emotionally" is how her husband
described her. She undoubtedly endured considerable mental anguish as
a result
of her experience, but she does not seem to have sustained any serious
psychological harm of a permanent nature, and
.../16
16
her marriage-relationship with her husband has not been impaired. She no
longer feels safe in riding alone along lonely paths in the
bush and limits her
riding to the more frequented roads in the vicinity of her home. This would seem
to be a salutary- precaution
for any woman to take in the times in which we
live.
Subsequent to the rapes the complainant developed a somewhat persistent
vaginal in-fection, which required prolonged anti-biotic treatment.
What caused
the infection does not appear from the evidence. There may well be a suspicion
that it resulted from the rape, but this
has not been shown with any degree
of
../17
17
certainty on the
evidence.
The appellant, on the other hand, showed no remorse for
his deed. On the contrary, when he saw her husband at the police station he
threatened to "get" the complainant at some future time. This certainly serves
to aggravate his offence. The most serious aggravation
however lies in his
shocking list of previous convictions. On 29 June 1979 he was convicted on eight
counts of housebreaking with
intent to steal and theft for which he was
sentenced to a total of 10 years imprisonment of which 6 /2 years was
conditionally suspended.
In July of the same year he
../ 18
18
was again convicted to one count of theft and one of robbery for which he
was sentenced to corporal punishment. Then on 30 October
of that year he was
sentenced to 15 years imprisonment for murder, and on 7 February 1990 to 10
years for another murder and 3 years
for robbery. These latter two sentences
were ordered to run concurrently with the sentence of 15 years in respect of the
first murder.
He was released from prison on 28 May 1990 and some 18 months
later he committed the present offence.
Not only is the appellant a recidivist as appears from this record, but
he is a
../19
19
man given to the commission of the most serious crimes of violence. The
present convictions of rape fall clearly within that category.
He has become a
menace to society and the courts are called upon to protect it against his
persistent depredations.. This can be
achieved in one of two ways viz by the
imposition of the death sentence or by the imposition of a sentence of life
imprisonment.
The death sentence in this case was, in my view, an appropriate
sentence, and had this Court not been vested with an independent
discretion of
its own in terms of sec 322(2A)(b) of the Act, I would not have interfered with
the sentence imposed by the
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trial judge in the exercise of his discretion. Sec 277(2), however,
requires the presiding-judge -and therefore also this Court in
the exercise of
its discretion - to be satisfied that the death sentence is not only an
appropriate sentence, but that it is the
"proper sentence". This has been held
to mean "the only proper sentence" (
S v Nkwanyana
(
supra
) at 745 E
- F). Had the appellant been a first offender the possibility of a death
sentence being imposed in the circumstances would
not, in my view, have arisen
for consideration at all. What makes it a real possibility and an appropriate
sentence is the list of
previous con-
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victions to which I have referred.
In
S v Mdau
[1990] ZASCA 126
;
1991
(1) SA 169
(A) at 177 C this Court held that life imprisonment, i e the
imprisonment of the appellant for the rest of his natural life, is a
sentence
which should be considered as an alternative to the death sentence where the
protection of society is a compelling consideration.
It complies with the
deterrent, retributive, and preventive objectives of punishment. - In imposing
such a sentence the Court clearly
intends the appellant, in the interest of
society, to be kept in prison for the rest of his life.
On mature reflection, and without
in
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22
any way seeking to detract from the seriousness of the offences of which
the appellant has been convicted, I have come to the conclusion
that it cannot
be said that the death sentence is the only proper sentence in this case, but
that life imprisonment can also, be
regarded as a proper and appropriate
sentence.
The appeal against the conviction is therefore dismissed, but the
sentence of death is set aside and for it is substituted a sentence
of life
imprisonment.
J.P.G. EKSTEEN, JA
MILNE, JA )
concur VAN COLLER, AJA )