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[2011] ZAWCHC 63
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Boer v S (A533/2010) [2011] ZAWCHC 63 (5 March 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER:
A533/2010
DATE:
4
MARCH 2011
In
the matter between:
CHARLES
BOER
…..............................................................................
Appellant
and
THE
STATE
…
.........................................................................................
Respondent
JUDGMENT
LOUW,
J
:
The
appellant, who was legally represented throughout, pleaded not guilty
in the Regional Court. Worcester, on 24 January 2006 to
two charges,
namely that of kidnapping and thereafter indecently assaulting the
complainant, V C, on 27 October 2004 in Riverview,
Worcester. The
appellant provided no plea-explanation. On 3 March 2009, the
appellant was convicted on both counts and was thereafter,
on the
same day, sentenced to five years and 10 years imprisonment
respectively on the two counts.
The
appellant's application for leave to appeal against his conviction
and sentence was refused on 16 February 2010. However, the
appellant
now appeals, with leave given by this court on petition on 11 August
2010, against both his conviction and sentence.
Complainant,
who was born on 8 April 1988, was 16 years old at the time of the
incident and on 24 January when she gave evidence,
she was 17 years
old. She testified that on the night in question at approximately
half past nine, she and three of her girlfriends,
Rozelle, Grizelda
and Hildegard were sent to a shop by her mother to buy sugar. At the
shop they saw the appellant, whom they
knew from sight and by his
nickname, Maleita. The appellant had previously shown an interest in
the complainant and she was afraid
of him. The appellant was in the
company of a friend, one Clayton.
The
appellant called out to the complainant, using her name. She wanted
to turn away, but he shouted at her and came to her and
took her by
the arm and told her to tell her friends, in a rude way, to go away
It was at this time that the friends saw Hildegard's
father. He did
not see them, but the complainant's friends were afraid of him and
they then left. The complainant also wanted
to leave, but the
appellant took out a knife, which was folded in a piece of paper and
he hit her over the finger with the knife.
The appellant then took
her with him along Buitenkant Street towards a field near Shortle
Street. While they were walking, the
appellant's phone rang and he
had a short conversation. They then proceeded to an abandoned
building in Shortle Street, which
the complainant said was used by
gangsters who smoked dagga and to gather.
The
appellant took her into an empty room where he proceeded to sexually
assault the complainant in a disgusting and humiliating
manner.
Details of his assault appear from the record and amounts to this
that he held her by the hair and put his penis in her
mouth and
eventually ejaculated ail over her. After the assault, the appellant
asked whether he could see her again and insisted
that they leave
the building together and told the complainant not to tell anyone
about what had happened to her After a while
the appellant left the
complainant and soon thereafter she saw her mother and friends, who
were out looking for her. She told
her mother what had happened and
she told the police, who had been contacted earlier by her mother
and also appeared on the scene.
Apart from the injury to her finger,
the complainant says she did not suffer any further physical
injuries.
Ms
Fatiema Cloete, the complainant's mother, testified that the
complainant's three friends came to her house on the night in
question and told her that the complainant had been taken away by
the appellant. The complainant's mother immediately contacted
the
police and they all went out looking for the complainant. After
about 30 minutes they saw the complainant in the street.
She started
crying when they saw her and she told her mother what had happened.
The police also arrived and the complainant told
the police what the
appellant had done and in which direction he had gone. The mother
testified as to the condition in which
the complainant was. that is
that she was shocked, she was crying and that her hair was full of
semen. According to her the complainant
had an injury to her hand
and also her shoulder where the appellant had nicked her with a
knife. She also stated that she knew
the appellant and explained
that sometime previously when her older son was in Standard 8, the
appellant and others had surrounded
her son with knives.
Grizelda
Carolis was one of the complainant's friends who were with her on
the night of the incident. She also knows the appellant
by his name
and his nickname. She confirmed the complainant's evidence that the
appellant called the complainant and when she
did not want to go
with him, he came and pulled her with him to where his friend,
Clayton, was standing. He had a piece of paper
in his hand, which he
opened to reveal a knife with which he hit the complainant.
She
explained that the friends then ran to the complainant's mother and
told her what had happened and they went out looking for
the
complainant.
She
says that the appellant was angry with the complainant when she did
not want to go to him when he first called her and that
although she
resisted, the appellant pulled her away by the arm. She also
confirmed that they found the complainant in the street
about 30
minutes after she had been taken away and that the complainant was
crying and she confirms the state in which the complainant
was when
they first found her.
The
appellant testified that although he had been at the shop in
question on the night with his friend, Clayton, this was much
earlier at approximately 7 p.m. He then went home and it was later
that night that the police came to arrest him. He denies that
he was
present at the shop when the incident took place and according to
him, he had no knowledge of the assault on the complainant.
According to the appellant, the complainant came to see him after
the charges had been laid against him and apologised to him
for the
charges being laid, saying that her mother had insisted that he be
charged and had forced her to lay the charges against
him, because
he had earlier robbed her brother. He denied that he had robbed the
complainant's brother and stated that alt he
can say is that for
some unknown reason, the complainant's mother did not like him.
This
version of why the charges were laid was not put to any of the state
witnesses. In fact another version was put, namely that
it was the
complainant who was after the appellant and that because he did not
want to have anything to do with her, she laid
false charges against
him. The magistrate found the complainant, her mother and the state
witness Grizelda Carolis to be credible
and reliable witnesses. They
corroborated one another and there is objective confirmation of the
complainant's version of what
had happened to her in the emotional
state in which she was when her mother and friends found her and in
the condition of her
hair and the injuries sustained by her. A
perusal of the appellant's evidence, shows him to be an untruthful
witness and the
magistrate's finding in this regard is completely
justified. The evidence against the appellant was overwhelming and
his version
is clearly not the truth.
The
question is whether the appellant is guilty of both kidnapping and
indecent assault in this case. Kidnapping is the unlawful
and
intentional depravation of a person's freedom of movement. See
Snvman
.
Criminal
Law
.
5
lh
Edition,
page 479. In this case the appellant clearly deprived the
complainant of her freedom of movement for a comparatively
short
time. He did so with the use of force and threats of force. The
depravation of the complainant's freedom of movement was,
however,
clearly done by the appellant with the intention to sexually assault
the complainant. The question is, therefore, whether
this is not a
case where a duplication of convictions has occurred. Although the
time over which the person is deprived of his
or her freedom of
movement, is not material to the question whether the crime of
kidnapping was committed,
Snyman
.
at 482, points out that:
"The
time factor may have relevance in distinguishing kidnapping from
some case of assault involving only a transient and
incidental
seizure of a person for a short period."
In
other words the question is whether the grabbing hold of the
complainant, the assault with the knife and the threats were not
all
conduct incidental to the indecent assault which took place soon
thereafter. Our courts have over the years formulated a
number of
tests to determine whether there has been an unjustified duplication
of convictions. The two principle tests are, firstly,
the so called
same evidence test, which asks whether the evidence which is
necessary to establish one charge, also establishes
another charge.
If this is the case, only one offence has been committed. However,
if one charge does not contain the same elements
as the other
charge, there are two offences. The magistrate, in his judgment,
appearfito have applied this test and came to the
conclusion that
two separate crimes were committed and that two separate convictions
were justified.
The
second test is the so called single intent test. This arises when
there are two acts, each of which would constitute an independent
offence, but only one intent and both acts are necessary to realise
this intent. In such a case there is only one offence, because
there
is one continuous criminal transaction. Alternately it has been held
the court must determine this issue by asking whether
all the
culpable facts in the conduct of the accused can be formulated in
one charge. If that is the case, there is only one
charge to be
formulated In arriving at a conclusion, it is a matter of sound
judgment to be applied to the facts.
In
my view this is a case where the conduct of the appellant, although
it consisted of at least two acts, namely the grabbing
hold and
taking away of the complainant with force and threats of force which
culminated in the indecent assault, were committed
with one object
in mind, namely to indecently assault the complainant. The detention
of the complainant was not for such a period
of time as to
justifiably be called a separate offence, on the facts of this case.
In my view, therefore, an unjustified duplication,
as a matter of
common sense and sound judgment, occurred in this case. It follows
that the appeal against conviction on the charge
of kidnapping must
be successful and the conviction on that count be set aside.
I
turn to the question of sentence. The magistrate imposed the
sentences of five years on count 1, that is the kidnapping. This
must fall away. The sentence of 10 years imprisonment imposed in
respect of the second charge of indecent assault, must be considered
on its own. There is very little that can be said for the appellant.
At the time of the commission of the offence he was 26 years
old. At
the time of sentence he was already 30 years old.
He
had previous convictions which date back to 1995 when he was found
guilty of robbery and given a sentence of four months imprisonment,
which was suspended for five years. In 1997 he was convicted of the
possession of dagga and given a fine of R80,00 or 40 days
imprisonment. In 2001 he was again convicted of robbery and
sentenced to two years imprisonment of which one year was suspended
for five years. He passed Standard 4 at school, is unmarried, but he
has a one year old who is supported by him. He also says
he supports
the mother of the child He has a paralysed hand and receives a
disability grant from the state. According to the
complainant,
however, the paralysis of his hand did not in any way disable him
from taking her away, holding her and also using
the knife in the
other hand.
Turning
to the crime, this is a serious crime. The assault on the
complainant commenced at the shop where she was about her business
with her friends. The appellant, in a brazen way in view of at least
the complainant's friends, called her to him and when she
did not
want to come to him, came across, took hold of her by force,
threatened her with a knife and, used the knife on her,
although she
only received a minor injury at this stage. He then took her away.
All of this he did with the sole purpose to use
her as a sex object
for his own gratification. He took her to a secluded place, a place
frequented by gangsters and he used the
knife which he had
previously used to inflict a minor wound, to further threaten the
appellant during the indecent assault.
The
magistrate, in my view, correctly stated that this was a very
emotional and traumatic experience for the complainant and that
she
will have to live with the emotional psychological scars probably
for the rest of her life. The complainant's mother testified
to the
consequences for the complainant in this regard. The magistrate
said, correctly in my view, that the appellant humiliated,
degraded
and dehumanised the young complainant and treated her as an object.
He violated her right to dignity and showed no respect
for her as an
individual. The magistrate correctly stated that the sentence must
reflect the community's sense of revulsion and
disgust of this type
of offence. The appellant, it is quite apparent, has shown no
remorse for what he has done.
The
sentence imposed, 10 years imprisonment, is a heavy sentence for
this offence. However, in my view the magistrate approached
the
issue of sentence on the indecent assault charge in the correct way.
He looked at the appellant, but in a case like this,
the interest of
the victim and of society is important and although as I have said
this is a heavy sentence, in my view this
is not a shockingly
inappropriate sentence and there is no basis, in my view, for
interfering with the sentence imposed by the
magistrate. I would,
therefore, make the following order:
1.
The appeal against the conviction on count 1 i.e. of kidnapping
succeeds
2.
The conviction and sentence of five years imprisonment
on
count 1 are set aside.
3.
The appeal against the conviction and sentence on count 2, indecent
assault, is turned down.
4.
The conviction on count 2, indecent assault and the sentence of 10
years imprisonment on count 2, are confirmed.
VAN
HEERDEN. AJ
:
I agree.
VAN HEERDEN, AJ
LOUW.
J
:
It is so ordered.
LOUW, J