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[2012] ZAWCHC 259
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George v S (A72/2012) [2012] ZAWCHC 259 (20 April 2012)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
: A72/2012
DATE
: 20
APRIL 2012
In
the matter between:
BONGANI
GEORGE
Appellant
and
THE
STATE
Respondent
JUDGMENT
STEYN,
J
In
this matter the accused is a 30 year old male and he was charged with
a multiple rape, three times, of a 23 year old woman, committed
during the night of 3 February 2008. The offences attract a minimum
sentence of life imprisonment, which aspect was explained to
the
appellant.
The
appellant was represented during the trial, pleaded not guilty and
chose to remain silent in regards to his defence. In due
course it
became clear that he admitted having had consensual sex with the
complainant on two occasions. The appellant was convicted
of two
counts of rape. The counts were taken together for purposes of
sentence and he was sentenced to 13 years direct imprisonment.
At
the stage when the appellant applied for leave to appeal, the trial
court commented that the possibility of another court coming
to a
different conclusion was very slight and that the court had actually
been very lenient towards the appellant with regards
to sentence, and
in finding that the complainant was raped twice instead of three
times. The court noted that another court may
wish to increase the
sentence imposed. The state, however, did not counter-appeal.
After
perusing the record, this court forwarded a note to the legal
representatives in this matter, requesting the representative
of the
appellant to address the court on the following: whether the trial
court was correct to find that the complainant was raped
twice and
not three times; and whether in the event that the conviction is
confirmed, a sentence of 13 years imprisonment is not
too lenient in
the circumstances, and whether the sentence should not be increased
by the court hearing the appeal.
During
the trial the complainant testified that the appellant was a friend
of an ex-boyfriend, who called her on her cell phone
one Sunday
afternoon and invited her to accompany him to another friend and the
friend’s girlfriend in the appellant’s
car. They bought
some Savanna’s at one stage, of which she had one. They stopped
at the appellant's home. There the appellant
forcefully pulled the
complainant into his shack. He closed and locked the door of the
shack and assaulted her. She cried and screamed.
A
lady spoke to the appellant through the window and told him to let
the complainant leave, but he refused to do so. The appellant
undressed her and had intercourse with her on three occasions. She
gave a description of how the appellant went about three rapesand
how
he continued assaulting her by hitting her in the face. He raped her,
stopped and started again. After the second time, he
removed his
boxer shorts that he had put on and raped her a third time. After the
third occasion, the appellant went to the to
escaped. It was in the
early hours of the morning.
The
complainant cried when she was cross-examined and from the record it
appears that she was traumatised by the incident, as she
must have
been. The complainant went to the home of a friend nearby, where she
slept. The next morning she reported the rape at
the police station
and she was taken tothe hospital. Later she was dropped at the home
of another friend, whom she told what had
happened. She told the
police where the appellant stayed and he was later arrested. As far
as I can gather he was only in custody
from the date of sentence.
Complainant
had a blue eye and her body was sore. Her friend noted bruises on her
body. The J88, medico-legal report that was handed
in by agreement,
was completed by the chief nurse, Sister Bartlett. She examined the
complainant on 4 February 2008 and found no
injuries, save for
bruising on the left side of her left eye. She did comment that the
lack of injuries did not exclude a sexual
assault. From this J88, it
is apparent that the complainant was sexually active at the time of
the alleged assault, which may account
for the fact that no vaginal
injuries were observed.
It
is interesting to note that during cross-examination it was put to
the complainant that somebody would have heard if she
cried
or made a noise. She confirmed that somebody did hear and came to
inquire. She was then asked why this information was not
contained in
her statement and her reply was that it was because she was "not
right” when she made the statement. I
will refer to this aspect
when I deal with the testimony of the appellant.
Nobele
Nkladzala confirmed that the complainant came to her during the late
afternoon in February 2008. She could see that something
was wrong.
The complainant had tears in her eyes. She held her hands as the
complainant told her that the appellant had raped her.
The witness
noticed the complainant’s face was swollen on one side and that
she had a blue eye and bruises on her body. She
confirmed that the
complainant mentioned rape on three occasions, an aspect that was
also recorded in the witness’ statement.
The
app ellant was n ot a go od witness, a s correct I y po i nted out by
the magistrate. His version of events was highly improbable.
He
testified how the complainant came with him willingly and how they
kissed, an aspect not put to the complainant. He informed
her he
wanted to sleep. Under the b I a n kets, th ey had sex twice. He then
added “the third time her phone rang and she
picked up the
phone”, and informed the caller that she was coming, but she
was locked up. She then opened the window and
wanted to leave, but he
refused to let her go since it was not safe. This information was
never put to the complainant. She started
to cry and a family member
arrived, whom she told that he had raped her, information that he had
apparently not related to his
representative, considering the
cross-examination about the arrival of the third person. The
appellant then started to assault
her, because she had “cried
rape”. He went to sleep with her still crying and when he later
woke up, she was gone.
During
cross-examination of the appellant, he alleged that the complainant
was his girlfriend at the time of the incident, an aspect
that was
not raised with the complainant and, which considering his evidence
on this aspect, was not only unlikely, but untrue.
The appellant’s
explanation that the complainant cried because he would not let her
go home as he was worried about her safety,
was contradictory to his
previous evidence and was a blatant lie in my view. The appellant
could not explain why the complainant
would falsely accuse him of
rape. He could also not explain why he did not let the complainant
leave when his family member arrived
to inquire through the window
about what was happening. The evidence of the appellant was by no
means clear that sex did not occur
three times, in fact at the end of
his evidence he said “no, I didn’t like it the third time
round”.
The
witness called on behalf of the appellant, did not take his case any
further. He did not appear to know that the complainant
was a
girlfriend of the appellant as the appellant had testified.
There
was no misdirection by the trial court in the court’s summary
of, and evaluation, of the evidence. The court was aware
of and
applied applicable legal principles such as the cautionary approach
to the evidence of a single witness on material aspects.
The court
correctly accepted the evidence of the complainant and took note that
in certain respects there was corroboration for
her version.
The
court also correctly came to the conclusion that the accused was a
poor witness, who fabricated evidence and whose evidence
was not
reasonably possibly true. It was unclear why the magistrate found
that she would favour the appellant by finding that intercourse
only
took place twice and not three times. However, since there is no
cross-appeal on this aspect, this court cannot interfere
with this
finding. The conviction of the accused on two counts of rape is
confirmed.
As
regards sentence, the court correctly evaluated the evidence and
applied applicable legal principles when considering an appropriate
sentence in this matter. As commented by the court, rape is regarded
as serious offences that attract heavy sentences and in this
case,
due to the multiplicity of the offences, life imprisonment is the
prescribed minimum sentence, unless substantial and compelling
circumstances persuade the court to deviate from the prescribed
sentence.
The
courts have been warned not to deviate from these prescribed
sentences for flimsy, insubstantial reasons. The magistrate did
not
overemphasise the seriousness of the offence or the interests of the
community. In finding substantial and compelling circumstances,
the
court took account of the fact that liquor was consumed, that the
appellant was a first offender and a breadwinner and that
the rapes
were committed during one evening. The court concluded, correctly in
my view, that life imprisonment was not an appropriate
sentence in
this matter.
However,
this is a vfery serious offence, during the course of which the
complainant was assaulted over a period of time, stubbornly
kept
captive, regardless of an attempted intervention by a third party and
raped more than once. There are members of our community
who
seemingly have to be educated that it is not acceptable to insist on
sexual intercourse when another person refuses consent.
Vulnerable
members of our community need to be protected from those who
disregard their unwillingness to be sexual partners. I
agree that the
two counts of rape that the appellant was convicted of that took
place during the course of the evening, will be
taken together for
sentencing purposes.
I
accept that the circumstances mentioned by the
magistrate,
justify
a lesser sentence than the minimum prescribed sentence of life
imprisonment. However, I believe the imposed sentence of
13 years
direct imprisonment is unduly
and
inappropriately
lenient in the circumstances of the matter. In my view, the
appropriate sentence in this matter would be
18
(EIGHTEEN)
YEARS IMPRISONMENT
,
of
which
FIVE
(5)
YEARS
IS SUSPENDED
for
FIVE
(S-j YEARS
,
on
condition that the appellant is not convicted of any sexual offence,
or an offence where violence is an element, during the period
of
suspension.
Hopefully
such a sentence will serve as a deterrent to the appellant and
others, who are callous about the violation of a woman’s
body
and privacy. The sentence will commence on the date of sentence in
the Magistrate’s Court, namely
23
October
2009.
I would accordingly dismiss the appeal on conviction and sentence,
and increase the sentence as set out above.
I
concur:
DOLAMO,
AJ
I
n
the
circumstances, it is so ordered:
STEYN,
J