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S v Meinert (70/96) [1996] ZASCA 81 (26 August 1996)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Consent — Appellant convicted of rape, claiming consent; complainant testified to being forcibly assaulted — Trial court found complainant credible, her distress corroborating lack of consent — Appeal against conviction dismissed, evidence supported the finding of guilt — Sentence of 7 years imprisonment confirmed, magistrate properly considered the impact of the crime on the complainant and the need for deterrence.

Comprehensive Summary

Summary of Judgment


1. Introduction


The matter concerned a criminal appeal in the Supreme Court of South Africa (Appellate Division), involving a conviction for rape and a subsequent challenge to both conviction and sentence.


The appellant was Roland Meinert, the accused at trial. The respondent was the State.


The procedural history was atypical. The appellant was convicted of rape in the magistrates’ court. Before sentence, the defence requested that the magistrate obtain a report from a probation officer or correctional official so that correctional supervision under section 276(1)(h) of the Criminal Procedure Act 51 of 1977 could be considered; the magistrate refused on the basis that it was not feasible in the circumstances. The magistrate then sentenced the appellant to seven years’ imprisonment, with three years suspended (an effective four years’ imprisonment).


The appellant appealed to the Cape Provincial Division, which confirmed the conviction but set aside the sentence and remitted the matter with a view to the possible substitution of a correctional supervision order. On remittal, after receiving a correctional officer’s report and further evidence from the complainant on the effects of the rape, the magistrate reimposed the same sentence. A further appeal to the Cape Provincial Division resulted in confirmation of that sentence, with leave granted for a further appeal to the Appellate Division against both conviction and sentence.


The general subject-matter of the dispute was whether the State had proved absence of consent beyond reasonable doubt (conviction), and whether the sentence imposed was vitiated or could be interfered with on appeal, including in light of the earlier remittal for potential correctional supervision (sentence).


2. Material Facts


The court relied on a sequence of largely common-cause contextual facts, coupled with sharply disputed facts concerning what occurred in the complainant’s flat.


It was common cause that the complainant met the appellant at Nauty’s Midnight Grill in Sea Point, where she worked. After socialising there with a couple known to her, she accepted the appellant’s offer of a lift to the Comic Strip Night Club, where her flat-mate worked. At the Comic Strip, the complainant and appellant spent about an hour drinking with the bartenders, including her flat-mate. The appellant became notably intoxicated.


It was also common cause that the complainant and appellant later travelled by car, and that the appellant came to the building where the complainant lived. The complainant’s jacket was retrieved from Nauty’s before they went to her residence. The appellant entered the complainant’s flat.


The central disputed facts related to the sexual encounter. The complainant’s version, accepted by the trial court and upheld on appeal, was that the appellant forced intercourse by grabbing her, twisting her arm, pushing her onto a bed, pulling down her underwear, covering her face with her shirt, holding his hand over her mouth, and threatening to hurt her if she resisted. After the rape, she grabbed the appellant’s car keys, fled, and attempted to drive to the Comic Strip; the appellant intervened by getting into the car and grappling with her, eventually taking over driving and dropping her near the club with a warning to keep quiet and a reference to influential friends.


The appellant’s version was that the complainant had been flirtatious at the Comic Strip, that they went upstairs to her flat, undressed consensually, and had intercourse by consent. He claimed that afterwards she wanted to go back to the Comic Strip, that he instead drove her to Nauty’s (on his way home), and that there was no animosity when he dropped her there.


The court treated as material and reliable the complainant’s subsequent conduct and condition shortly after the incident. On her arrival near the Comic Strip, she was described as distraught and crying, and she immediately told friends she had been raped. Those friends corroborated her distressed state. She went to the police station promptly and participated with police in searching for the appellant that same night, unsuccessfully. These features were treated as inconsistent with consensual intercourse followed by fabrication.


For sentencing, the court relied on uncontroverted evidence of the complainant’s physical and psychological consequences over an extended period, including significant weight loss, nightmares, sleep disturbances, fearfulness, impaired social functioning, difficulty working in her occupation, inability to form intimate relationships, and a decision to leave Cape Town for Johannesburg in an attempt to restart her life. This evidence was accepted at face value.


3. Legal Issues


The appeal raised two principal legal questions.


The first concerned the correctness of the conviction, requiring the appellate court to determine whether the trial court was justified in accepting the complainant’s evidence and rejecting the appellant’s version, bearing in mind the acknowledged need for a cautionary approach to complainant evidence in cases of this nature. This was predominantly an issue of fact and credibility, and the application of the criminal standard of proof to the evidence.


The second concerned the sentence and whether interference on appeal was justified. This involved the proper approach to appellate interference in sentencing, including whether the magistrate misdirected himself, whether the sentence was disturbingly inappropriate, and whether the earlier remittal by the Cape Provincial Division constrained the magistrate to impose correctional supervision. This involved the application of sentencing principles and the scope of judicial discretion in the sentencing process.


4. Court’s Reasoning


On conviction, the court endorsed the trial court’s awareness of the need for caution when evaluating the complainant’s evidence. It nevertheless accepted the trial court’s conclusion that the complainant was a truthful witness. The acceptance of her version was said to be supported by “reliable facts” inconsistent with consent.


A central feature of the reasoning was the absence of a plausible explanation, on a consensual version, for the complainant’s immediate and acute distress and her urgent efforts to seek out assistance. The court treated it as significant that, if intercourse had been consensual, there was no plausible reason for her to leave the flat in the manner described and to present shortly thereafter as genuinely distressed, to report rape to friends, to proceed to the police station, and to join in an immediate search for the appellant. These factors were taken to corroborate the complainant’s account of coercion and to undermine the plausibility of the appellant’s version.


The court further reasoned that the appellant’s evidence created additional improbabilities. In particular, his claim that he dropped her at Nauty’s (several kilometres from the Comic Strip) in the early hours, when she expected to find her flat-mate at the Comic Strip, was treated as lacking a conceivable rationale. The court noted that when these difficulties were raised in cross-examination, the appellant conceded that his version “doesn’t make sense.” That concession was treated as reinforcing the conclusion that his account could not reasonably be true.


The defence suggestion that the complainant might have fabricated a rape because the consensual encounter was disappointing was rejected as speculative and remote, particularly in light of the complainant’s subsequent conduct and the immediate steps taken to report the offence.


On sentence, the court addressed the argument that the magistrate had been effectively directed by the Cape Provincial Division to impose correctional supervision. The court rejected that characterisation. It reasoned that when a sentence is set aside and the matter is remitted, it is implicit that the sentencing court must still exercise the discretion inherent in sentencing. The court also noted that the magistrate himself interpreted the earlier judgment as a recommendation rather than a binding instruction and independently reconsidered sentence after remittal.


In assessing whether the Appellate Division could interfere with the sentence, the court relied on the concession that the magistrate had not misdirected himself when reimposing the sentence after remittal. On that basis, the court framed the test as whether the sentence (effectively four years’ imprisonment) was disturbingly excessive, such that it could be inferred that the sentencing discretion had not been properly exercised. The court was unable to reach that conclusion.


In applying sentencing considerations, the court noted the difficult balance often present in sentencing. It recognised mitigating considerations, including that the appellant was a first offender and that the probation report suggested he was not generally violent, implying that the violent conduct in the offence was out of character. Against that, the court emphasised the seriousness of rape, its prevalence in the metropolitan Cape Town area, and—importantly—the sustained and extensive harm to the complainant, which was accepted and uncontroverted over a period extending at least a year after the incident.


The court also observed that if a sentence of correctional supervision under section 276(1)(h) were substituted, it would be limited in duration to three years and would constitute a far more lenient sentence than that regarded as appropriate by the trial court, reinforcing the refusal to interfere.


5. Outcome and Relief


The appeal was dismissed.


The Appellate Division confirmed the conviction for rape and confirmed the sentence of seven years’ imprisonment with three years suspended.


No separate or specific costs order is reflected in the judgment.


Cases Cited


None reflected in the text of the judgment.


Legislation Cited


Criminal Procedure Act 51 of 1977, section 276(1)(h).


Rules of Court Cited


None reflected in the text of the judgment.


Held


The court held that the conviction was sound because the complainant’s evidence was accepted as truthful and was supported by objective surrounding circumstances inconsistent with consent, including her immediate distressed condition, prompt report to friends, immediate reporting to the police, and participation in an attempt to locate the appellant that same night. The appellant’s version was treated as improbable, including his inability to provide a coherent explanation for dropping the complainant at a different venue than the one she said she wanted to reach, a difficulty he conceded did not make sense.


The court further held that the magistrate was not bound by the earlier remittal to impose correctional supervision, and that sentencing remained a discretionary function. As there was no misdirection in the reimposed sentence and it was not shown to be disturbingly excessive, appellate interference was not justified. Both conviction and sentence were therefore confirmed.


LEGAL PRINCIPLES


A criminal conviction for rape may be sustained where the complainant is found to be credible and where surrounding, reliable facts are inconsistent with consent, including immediate distress, prompt complaint, and conduct consistent with reporting and seeking assistance shortly after the incident.


A speculative suggestion that a complainant fabricated a rape allegation, without a plausible factual basis and in the face of conduct consistent with genuine distress and prompt reporting, does not provide a reasonable foundation to displace an accepted version.


When a sentence is set aside and the matter remitted, it is implicit that the sentencing court must exercise its sentencing discretion afresh; remittal does not, without clear terms, eliminate the sentencing court’s discretion by dictating a particular sentence.


Where there is no misdirection in sentencing, a higher court will interfere only if the sentence is shown to be disturbingly excessive or otherwise indicative that the discretion was not properly exercised; the mere existence of an alternative sentencing option (including correctional supervision) does not on its own justify substitution.

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[1996] ZASCA 81
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S v Meinert (70/96) [1996] ZASCA 81 (26 August 1996)

Case No 70/96
/mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter of:
ROLAND MEINERT
APPELLANT
and
THE STATE
RESPONDENT
CORAM: KUMLEBEN, HARMS et SCOTT JJA
HEARD
: 19 AUGUST 1996
DELIVERED
: 26 AUGUST 1996
JUDGMENT
KUMLEBEN JA/..
2
KUMLEBEN JA:
The proceedings in this case have taken a somewhat unusual course.
The appellant stood trial on a charge of rape. He pleaded not guilty on the ground that the complainant had consented to having intercourse
with him. He was found guilty as charged. Before sentence was passed the magistrate was asked to call for a report of a probation
officer or a correctional official in order that correctional supervision in terms of
s 276(l)(h)
of the
Criminal Procedure Act, 51 of 1977
could be considered. This request was refused as the magistrate did not regard this form of punishment to be a feasible option in
the circumstances of this case. After the complainant had given evidence on the extent to which the rape had affected her, both physically
and emotionally at the time and subsequently, a sentence of 7 years imprisonment was imposed, three years
3
of which were suspended.
An appeal to the Cape Provincial Division of the Supreme Court followed. The court (Van Deventer J and Griesel AJ) confirmed the conviction.
It, however, set aside the sentence and remitted the case with a view to a correctional supervision order being substituted. At the
further hearing a correctional officer handed in his report. He was examined on its contents and the manner in which any such order
would be supervised. The magistrate, in the light of the complainant's evidence of how she had been affected by the rape, arranged
for her to give further evidence in this regard. Having considered her testimony and reassessed the question of a proper sentence
on all the facts, he again imposed his previous prison sentence. This was the subject of further appeal before Conradie and Hlophe
JJ. The sentence was confirmed but leave was granted for a further appeal to this court against both the conviction and the sentence.
4
The evidence of the complainant was that she met the appellant at Nauty's Midnight Grill ("Nauty's") in Sea Point where
she worked as a waitress. At about 12:30 am, after she had finished her work there but was still on the premises, a couple she knew
introduced her to the appellant. The foursome chatted there for a while. She had one Hunters Gold, a brand of cider, and he was drinking
beer. She decided to leave and take a taxi to meet her flat-mate, Natasha Otto, at another place of entertainment, the Comic Strip
Night Club (the "Comic Strip"). The appellant said it was on his way home and offered to give her a lift there. She accepted.
On arrival at the night club he suggested that he might join her for a drink and she agreed. Natasha was one of two bartenders there
and the complainant and appellant joined them. They were there for about an hour during the course of which the complainant had two
Springboks and the appellant about six Black Sambuccas. The ingredients of a
5
Springbok are peppermint liqueur and "Black Velvet". Those of a Black Sambucca are not stated and must be left to the imagination.
At a certain stage the complainant wished to return to Nauty's where she had left her jacket. The appellant again offered to convey
her. He was at this stage intoxicated to the extent that he fell over a chair as they left the Comic Strip. She suggested that she
should drive and he agreed to let her. After retrieving her jacket at Nauty's, he invited her to come to his place for a cup of coffee.
She declined. She drove the car to the flat where she lived and parked outside the building. He offered to come upstairs with her
to check that everything was in order since the building was not well lit. When she opened the door he offered to inspect within
the flat and entered it with her. She thanked him for being so polite and expected him to leave. Instead he grabbed her, twisted
her arm behind her back, pushed her onto a bed, pulled down her "panties" and raped her. He did so by pulling her
6
shirt over her face and arms, holding his hand over her mouth and threatening to hurt her if she did not keep quiet and acquiesce.
He had only removed his trousers. Afterwards, when he released her, she grabbed his car keys and rushed out with a view to driving
his car to her friend at the Comic Strip. As she took off in his car he managed to jump in. Inside he grappled with her and interfered
with her as she drove. He agreed to desist and take to her the Comic Strip if she allowed him to drive. She settled for that and
he took her there. He dropped her off - literally, as she fell in the road - at a place called Browns next to the Comic Strip. His
parting words to her were "keep your mouth shut, I've got influential friends". She was in a state of acute distress as
a result of the rape. She attempted to note the registration number of the appellant's car as he left in haste but did not manage
to do so. She entered the night club expecting to find her flat-mate Natasha and another acquaintance, Craig Quin, there but
7
they had already gone off duty. As she came from this night club she saw them entering the street from another public bar. (Both Craig
Quin and Natasha gave evidence and confirmed that the complainant was distraught and crying when they met her.) On being question
by them she said that she had been raped and promptly agreed to go with them to a police station. With the police they then went
in search of the appellant that night but without success.
Apart from his denial that he had committed the offence, appellant's evidence differed from hers in a number of respects. While they
were drinking at the Comic Strip with her seated next to him he said that she placed her leg over his. He was not certain whether
she suggested that he should come upstairs or whether he offered to do so to check that all was well in her flat. There they both
undressed and, as he put it, "we started getting intimate, and we had sex". When asked what happened after
8
they were finished he said:
"Well it wasn't actually we were finished, but we sort of, we stopped, and I was just lying on the bed, and she suddenly said
to me, 'Let's go back to the Comic Strip.' So I said to her, 'No', I didn't say no, I said, 'Why do you want to go back to the Comic
Strip?' She didn't give me a, (sic) she just said she wants to go back to the Comic Strip. So I said to her, 'No, let's rather just
stay here, let's just stay here.' So she said, no, she wants to go to the Comic Strip. So I said, 'Look, it's already late, I'm not
going back to the Comic Strip, I'll take you back to Nauty's, because it's on my way home.' We got dressed and went down to the car
again, I got, as I wanted to get into the car, she said to me she wants to drive, and I said, 'No, I'm, driving.' I got into the
car, she got in next to me, down to the road, Main Road, along the road to Nauty's Moonlight Grill, where I stopped outside, she
got out, there was no animosity, none at all, she got out and she walked towards the door of Nauty's and I went up the road home."
The trial court was aware of the need for a cautionary approach
to the evidence of a complainant in a case of this nature. He found her to
be a truthful witness. His acceptance of her evidence was principally based
on reliable facts wholly inconsistent with her being a consenting party. Had
that been the case, there can be no plausible reason for her leaving the flat
9
to go to the Comic Strip or for her being in such a state of genuine and acute distress when she reached her friends there. The fact
that she said that she had been raped, went straight to a police station and searched for the appellant is further confirmation of
her account of what took place. In his evidence the appellant agreed that she wanted to go to the Comic Strip but said that he was
only prepared to drive her to Nauty's, which was on his way home. After he dropped her there, he drove off without waiting to see
whether Nauty's was still open or whether she had gone in. Nauty's is 4 to 5 kilometres from Comic Strip. There is no conceivable
reason why she should have wished to go to Nauty's in the early hours of the morning rather than the Comic Strip where she expected
or hoped to see her flat-mate. When these difficulties in the way of his version were put to him in cross-examination he was obliged
to frankly concede: "It doesn't make sense".
10
Mr Cloete, who appeared for the appellant, sought to explain her conduct and distress on the ground that a sexual encounter with consent
might for her have proved disappointing: that for this reason she may have fabricated a rape. Such a possibility in the light of
her and his subsequent conduct is wholly speculative and too remote for words. Counsel also drew attention to the fact that she was
prepared to go on a drinking round with a stranger, accept a lift from him and allow him to enter her Gat. She explained that he
was twice her age, they were 20 and 40 years old respectively, and that she regarded these offers as avuncular acts of courtesy.
Even if - I stress if - one has some reservations about her evidence in this regard, I cannot see how they can relate to the issue
whether once in the flat he proceeded to sexually assault her.
The conviction must stand.
As regards sentence, Mr Cloete in the first place based an
11
argument on the submission that Van Deventer J had instructed and ordered the magistrate to make a correctional supervision order
provided only that the probation report did not preclude him from doing so. A preference for this form of punishment was keenly expressed
in the judgment but such a construction of his remarks and order is in my view not warranted. It is implicit in the setting aside
of any sentence and remittal to a magistrate that the
magistrate
is to exercise the discretion inherent in the sentencing process. One must readily assume that the court of appeal was mindful of
this. It is moreover of some significance that the magistrate thus interpreted the order, explicitly referred to it as a "recommendation"
and independently reconsidered the question of sentence. The reasons furnished by Van Deventer J in support of correctional supervision
are, with due respect, open to criticism in certain respects. It is, however, unnecessary to discuss them since they were not relied
upon in argument before us.
12
In deciding upon the sentence the magistrate comprehensively weighed up all the relevant facts. As is regrettably often the case,
these turn out to be largely irreconcilable when applied to the precepts of punishment. The appellant is a first offender and, according
to the probation report, not given to violence even during his occasional bouts of excessive drinking. His misconduct, which certainly
did evidence a degree of violence, would seem to have been out of character. On the other hand, the seriousness of the offence, its
prevalence in the metropolitan Cape Town area and the effect it has had on the complainant were validly taken into account.
I need to refer to this last-mentioned consideration in more detail. When the complainant testified after judgment at the trial on
15 March 1994, some 5 months after the occurrence, she was half-way through a 4 months Rape Crisis counselling course. She was suffering
from
13
nightmares, had lost 12 kilograms in weight, suffered from sleeplessness and had been booked off work by her doctor for 10 days due
to stress. When the case was remitted for sentence she again gave evidence. She was reluctant to come to court to gave this evidence
and it was a strain for her to do so. This was on 10 March 1995, a year later. Her sleeping problems persisted, so much so that she
would wake up crying and find her flat-mates trying to console her. Her weight loss was now 16 kilograms. She was scared of the dark,
unable to drive on her own and was perpetually concerned that she might meet up with the appellant. This caused her to leave Cape
Town for Johannesburg in an attempt to make a fresh start in life. As a waitress if she had to serve a male patron on his own at
a table she could not face him and would have to ask someone else to take the order. She had not been able to form any relationship
with a man: her one attempt failed through lack of trust on her part. Her having to come to
14
court and testify contributed to this. This evidence of hers stands uncontroverted, was accepted, and must be taken at face value.
One does not know whether or for how long it persisted after the case was finally concluded but it is plain that her suffering was
extensive.
Mr Cloete quite correctly conceded that the magistrate had not misdirected himself in any respect when passing sentence after the
case had been remitted to him for that purpose. His sentence may therefore be altered only if it (essentially one of an effective
period of 4 years imprisonment) can be said to be disturbing excessive: that on that account it can be said that the magistrate failed
to exercise a proper judicial discretion. I am unable to thus conclude and the sentence must also be confirmed. I should add that
were this court to substitute a sentence of correctional supervision in terms of
s 276(l)(h)
, as requested by counsel, its operation would be restricted to a period of three years and it would
15
prove to be a far more lenient sentence than the one the trial court regarded as appropriate.
The appeal is dismissed: the conviction and sentence are confirmed.
M E KUMLEBEN JUDGE OF APPEAL
HARMS JA)
- Concur SCOTT JA)

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