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[2010] ZAWCHC 44
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Cornelius and Another v S (A350/09) [2010] ZAWCHC 44 (18 March 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
APPEAL
CASE NO.:
A350/09
In
the matter between:
PHILIP
CORNELIUS
First
Appellant
NICOLAS
PLAATJIE
Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ON 18 MARCH 2010
KING
AJ
1.
Two Appelannts were charged in the Wynberg Regional Court with
kidnapping, rape and attempted rape. It was alleged that on or
about
the 22 October 2004 and at or near Ottery the appelants had abcucted
J H (hereinafter referred to as to “as Complainant”),
they had raped her then had attempted to rape her again.
2. Both
appellants had previously been tried on the same charges in the
Regional Court but those proceedings had been set aside
by the Cape
High Court as the accused had not been adequately represented. The
matter was referred back to the Regional Court for
a new trial to be
conducted before another magistrate. That judgment is reported.
3. After
evidence was led before the trial magistrate in the present matter,
both appellants were found not guilty of the offences
of kidnapping
and attempted rape but guilty of the crime of rape, the first
appellant as a perpetrator and the second as an accomplice.
4. First
appellant was sentenced to 8 years imprisonment and second appellant
to 6 years imprisonment of which 3 years was ordered
to run
concurrently with a sentence he was serving in prison at that time.
On the 4 May 2009 the trial magistrate granted leave
to both
appellants to appeal to this court in respect of their conviction and
the sentences imposed on them.
5. The
complainant testified that during the evening of the 22 October 2004
she was at a shebeen in Ottery with her boyfriend. At
about 20h00 she
went across the road from the shebeen to a 'hokkie' that acted as a
toilet for women. The appellants were standing
outside the shebeen.
She knew both of them. They were friends of and in regular contact
with her father. She was forcibly taken
by both appellants to an open
piece of ground. She screamed that she did not want to go with them
and that they must not take her
with them. At the veld second
appellant threw her onto the ground and said to the first appellant
that she, the complainant, "—
het
hom lankal vir n gat gevaf.
The
second appellant took off her jeans and her shoes after which the
first appellant lay on top of her and raped her. She did not
resist
as she had been told that she would be stabbed with a knife. She saw
a knife that was in the second appellant's possession.
Whilst the
first appellant was raping her the second appellant sat at her head
and held her hands.
6. When
the first appellant stood up the second appellant took his place on
top of her. His pants were however on. He said to her
that if she
promised not to tell anyone about the incident he would not have
sexual intercourse with her. She promised not to tell
anybody. The
second appellant then did nothing further to her. She got up, got
dressed and then, accompanied by both appellants,
returned to the
shebeen. The distance from the shebeen to the place where the crime
was committed was approximately 5 to 10 minutes
walk away. She was
away from the shebeen for approximately an hour.
7. Back
at the shebeen she sat next to her boyfriend but told him nothing
about the rape incident as she was too shocked. She however
told her
sister and a friend Angelina about how she had been raped when she
got to their house shortly thereafter. Natasha told
her mother-in-law
who then told the complainant's father. She later followed her father
and Angelina's mother to the first appellant's
home where her father
asked her
"het
hy dit gedoen?"
She
answered yes.
8. The
complainant was taken to the police station and then to a doctor. She
says she had no injuries. The doctor told her that
they had found
semen in her.
9. In
answer to a question if she felt any pain when she was being raped
her answer was "nie
eintlik
nie".
She
was at the time of the trial still negatively affected by the events
of that night.
10. Exhibit
"A", a statement made by the complainant to the police
shortly after the incident was put to her in cross-examination.
In
the statement no mention is made of a knife. According to the
complainant the statement had not been read back to her at the
time
it was taken and she insisted that she had told the police and her
sister about the knife.
11. The
complainant emphatically denied that she had had a relationship with
the first appellant or that the two of them had arranged
to meet that
Friday evening. She denied that she willingly went with the first
appellant and she insisted that the second appellant
was present at
all relevant times and had assisted first appellant in raping her.
12. Natasha
Hartzenberg, the complainant's sister, gave evidence. She stated that
on the night of the 22 October 2004 the complainant
arrived at her
home crying with her boyfriend William. The complainant called her to
the bedroom and said that she had just been
raped. She confirmed that
the complainant did tell her one of her assailants had a knife with
which she was threatened. The complainant
also told her that after
the first appellant had raped her that the second appellant wanted to
but the first appellant told him
not to.
13. The
next witness was William Wassung. He was the complainant's boyfriend
at the time of the rape but had subsequently married
her. He stated
that he and four of his friends had been drinking at the shebeen when
the complainant joined them. She later left
them to go to the toilet.
She stayed away for some time and he thought she had gone home. The
complainant returned about an half
an hour to an hour later. She was
upset and was crying. She did not tell him why she was upset but told
her sister when they got
to her sister's house shortly thereafter.
14. By
agreement a medical report prepared by Dr Theron who had examined the
complainant on the morning after the incident was handed
in to court
and the contents admitted by the defence. The report shows a tear in
the vagina of the complainant.
15.
Angelina
Adams, the other person to whom the complainant had made a
report
could not be found and that then concluded the evidence for the
State.
16. First
appellant gave evidence under oath and alleged that he and the
complainant had had a
"liefdes
verhouding"
and
that they had arranged to meet that evening. He had arrived at the
shebeen, seen the complainant but had gone and drunk some
beers with
second appellant. He saw the complainant leave. He had called her
back and they then talked about an arrangement. He
suggested that
they had to go to Philippi together. The complainant said that she
had a child who she had to put to bed or look
after and that she
could not stay out late. The two of them then however walked to the
open field under trees where they had consensual
sex. They were
alone. He had taken her home after arranging to meet later at his
room. Later that night the complainant's father
arrived with other
women and asked him what he had done and then assaulted him with an
axe on his head and on his left foot. He
was further assaulted but
managed to escape. He was later arrested.
17. Under
cross-examination first appellant explained that he did not speak to
the complainant when he arrived at the shebeen because
she was busy
with her friends, he did not know that William was her boyfriend, the
complainant was willing to accompany him but
not for long and that
they both knew that they were going to have sex.
18. When
questioned as to why he took the complainant to the open veld when he
had a room not far from the shebeen he stated that
his sister did not
agree with him bringing women to the room even though he is 54 years
of age. For the first time under cross-examination
he alleged that
they had previously had sexual intercourse and that this had happened
in her father's girlfriend's house and outside
in the veld.
19. When
asked as to why the complainant should lay a false charge he stated
that he and her father had had a falling out and that
he suspects
that the father was using his daughter to get at him.
20. The
second appellant also gave evidence and confirmed that he was at the
shebeen that night, confirmed that he had seen the
complainant but
denied that he had ever accompanied the complainant and the first
appellant anywhere that night. He had remained
at the shebeen and
later seen the first appellant at his house and even later had also
been assaulted. When asked why he was pointed
out by the complainant
as being an accomplice he answered that it came about as a result of
his being first appellant's friend.
21. In
his judgment the trial magistrate accepted that the complainant was a
single witness and that her evidence as such should
be approached
with caution. He found that the complainant had made a very good
impression on the court, she had cried when she
gave evidence and
that it was quite clear that after all the years she was still
traumatised by the events of that evening. He
gained the impression
that she could remember the incident of that night very clearly. He
did not get the impression that the complainant
and William were
under the influence of alcohol but accepted that alcohol had been
drunk by these witnesses. He took into account
that there were
discrepancies between the evidence of the complainant and that of
William but after analysing such discrepancies
found them not to be
material or to negatively impact on the State witnesses credibility.
22. The
trial magistrate found that the complainant passed the test for a
single witness with flying colours. Her evidence was more
than
acceptable, it was corroborated in material respects and it bore the
hallmark of the truth.
23. Turning
to the evidence of the appellants the trial magistrate found that
first appellant's evidence was
"onsamehangende
getuienis".
The
record of the proceedings certainly confirms this finding. He found
that it is inherently unlikely that the complainant would
have made
up this rape charge. This was not a case where a
bona
fide
mistake
was made but it was a case where either the accused had raped the
complainant as she says or the complainant was telling
a lie.
24. The
trial magistrate further found that the probabilities accorded with
the complainant's evidence, and accordingly, that the
denial by the
appellant of guilt was so unlikely that it could not reasonably
possibly be true.
25. The
trial magistrate found that this was not a case of kidnapping nor of
attempted rape but one of rape and assisted rape (as
an accomplice by
the second appellant) and convicted the appellants of this latter
charge accordingly.
26. The
trial magistrate was faced with two opposing versions. After weighing
up the evidence of the State and Defence he looked
at the overall
probabilities and evidence and, together with the serious flaws in
especially first appellant's evidence, came to
the conclusion that
the evidence of both the appellants could not reasonably possibly be
true. I can find no fault with such reasoning.
I can also find no
fault with the reasons advanced by the trial magistrate as to his
acceptance of the evidence for the State,
his findings regarding the
probabilities and his rejection of the evidence for the Defence.
27. Although
Natasha gave a slightly different reason why second appellant did not
proceed to rape the complainant, the remainder
of her evidence
supports the complainant's evidence in material aspects. Her
perception of what the complainant related must be
seen against the
clearly distressed condition of the complainant at the time.
28. The
conflict between William Wassung's evidence concerning where the
complainant was when she returned to the shebeen and his
allegation
that she was crying and the evidence of the complainant that she
satquietly in the shebeen and tried not to reveal her
distress must
be evaluated against the distressed state of the complainant who
cannot be expected to recall clearly the minute
detail of the
impression that she left with William when she was clearly more
focused on returning home and reporting the offence
to people she
knew better than William.
29. Support
for the State's case existed in the consequential conduct of the
complainant by making report of the incident shortly
after it had
happened, her obvious distressed state at that time and by
substantial support in the version of her sister Natasha.
The first
report that the complainant in a sexual offence makes and its terms
are admissible as establishing consistency in the
complainant's
evidence and therefore supporting her credibility.
30. It
is trite law that a Court of Appeal would be slow to interfere with
the findings of the trial court on matters of credibility,
as the
trial court has the advantages of seeing and hearing the witnesses
and being steeped in the atmosphere of the trial, which
the appellate
court cannot have.
The decision in
S
v M,
however
counterbalances the aforegoing and, as was pointed out by Nugent JA,
"The
demeanour
of a witness is no substitute for evaluating the context of the
evidence, taking into account the widerprobabilities."
Nugent
J (as he then was) in
Sv
Van Der Maiden
1
commented
on the approach to be adopted in evaluating and weighing the evidence
adduced by the State and by the Defence as follows:
"The
proper
test is that an accused is bound to be convicted if the evidence
established his guilt beyond reasonable doubt, and the logical
corollary is that he must be acquitted if it is reasonably possible
that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the Court has
before
it. What must be borne in mind, however, is that the conclusion which
I reached (whether it be to convict or to acquit)
must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be unreliable;
but none of it may simply
be ignored."
31. I
am satisfied that the trial magistrate properly evaluated the
evidence and applied correct reasoning in reaching his verdict.
32. Turning
to the sentences imposed sight can never be lost of the fact that
rape is a particularly brutal offence. Not only is
the victim
physically assaulted but the psychological damage caused to the
victim is enormous. The sentence imposed on the appellants
is to my
mind accordingly somewhat on the light side, notwithstanding the
mitigatory facts placed before the trial court. Counsel
for the
appellants, correctly so, did not pursue this ground of appeal with
any vigor. I can in any event find no reason for this
court to
interfere in the decision of the trial magistrate regarding the
sentences he imposed.
33.
In the result the appeal is dismissed. The conviction and
sentence of both appellants are confirmed.
W
A KING, AJ
I
agree and it is so ordered
R.
ALLIE, J
1
1990
(1) SACR 447
(W), at 449 J - 450 B. (See further
S
v Trainor 2003 (1) SA35 (SCA),
at
50I- 41I.