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[2015] ZAWCHC 65
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Fongoqa and Others v S (A317/14) [2015] ZAWCHC 65; 2016 (1) SACR 88 (WCC) (13 May 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE No: A317/14
DATE: 13 MAY 2015
[Reportable paragraphs
64 - 70 only]
In the matter between:
LUBABALO
FONGOQA
................................................................................................
First
Appellant
LWAZI YANGA
MZITO
.............................................................................................
Second
Appellant
DALUXOLO
YABU
.......................................................................................................
Third
Appellant
Vs
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 13 MAY 2015
HENNEY, J:
INTRODUCTION
[1] The three appellants were charged
with two counts of rape each in contravention of section 3 of the
Criminal Law (Sexual Offences
and Related Matters) 32 of 2007
Amendment Act, in the Khayelitsha Regional Court. The state alleged
that the provisions of section
51 and Part 1 of Schedule 2 of the
Criminal Law Amendment Act, 105 of 1997
are applicable to these two
charges.
[2] In respect of both charges the
state alleged that on or about 5 – 6 April 2008 near
Khayelitsha, the appellants unlawfully
and intentionally committed an
act of sexual penetration with the complainant, [T…….]
[S…….], an 18
year old female, by forcing off her
clothes and having sexual intercourse with her.
[3] On 18 March 2011, the appellants
pleaded not guilty but they were subsequently convicted, ostensibly
on one count of rape only.
I will refer to this aspect at a later
stage.
[4] All three appellants were sentenced
to eighteen (18) years’ imprisonment. In respect of the first
and third appellants,
although Leave to Appeal was granted by the
court a quo in respect of conviction and sentence, they abandoned
their appeal against
the conviction and only appeal against the
sentence. The second appellant’s appeal is against conviction
and sentence.
[5] The second appellant maintains that
the evidence of the complainant, a single witness, was not strong
enough for the court to
find that the state has proved its case
beyond a reasonable doubt in order to sustain a conviction against
him.
[6] Regarding sentence, it was argued
on behalf of all the appellants that the court imposed a
disproportionate sentence and that
the court over-emphasized the
seriousness of the offence.
THE APPEAL IN RESPECT OF CONVICTION
IN RESPECT OF THE APPEAL OF THE SECOND APPELLANT
[7] The prosecution presented the
evidence of 7 witnesses.
[8] The complainant, [T……..]
[S………], was the only eye-witness to the
incident. She testified
that she was walking with a friend from
J-section to D-section, Khayelitsha, between 5 – 6 April 2008.
They met one of her
friend’s boyfriends. Suddenly a group of
more than 10 people appeared. One of them, known as 50 cents, whom
she did not
know at the time but whom she later identified as the
first appellant, said to her: “let us go bitch” and “why
are you looking at me bitch, I said come here”. He pushed her
and walked off with her, while saying that she was his girlfriend.
[9] Second appellant’s friend,
[N………..], whom complainant later identified as
the third appellant, intervened
on her behalf. They argued. She
then walked with the third appellant who told her that he was going
to hide her at his house.
She suggested to the third appellant that
he should rather accompany her to her house, whereupon he said that
they (presumably
referring to the earlier group) would catch up with
her in the field or forest and rape her. She kept quiet and walked
with him
to his house. They went into a shack attached to a main
house where a person was sleeping.
[10] The third appellant ordered the
complainant to get undressed. When she refused, he threatened to
stab her. He then undressed
her, ordered her to get onto the bed,
undressed himself and climbed on top of her before raping her, by
inserting his penis into
her vagina.
[11] She did not know the third
appellant or where he stayed, but she had seen him in J-section, a
couple of months before the incident.
[12] After the third appellant raped
her, he told her that he was HIV positive and spat on her mouth. He
got up and woke the person
who was lying on the sofa and requested
him to have sexual intercourse with her as well. The man refused,
but he forced him to
have sexual intercourse with the complainant, by
pulling off the man’s shorts. This man climbed on top of the
complainant
and also had sexual intercourse with her. Someone
knocked on the door, who, according to the complainant, was the first
appellant.
She knew him as the man who had grabbed her earlier that
evening. At about 23h00 the first appellant entered the shack
through
the main house. She assumed that the third appellant’s
mother opened the door of the main house, in order for the first
appellant to enter the shack.
[13] When the first appellant saw her
he remarked: “Did I not say you are my girlfriend”. He
wanted to assault her,
but the third appellant intervened and said
they should leave. He was afraid that his mother would wake up. The
reason why she
did not shout to the third appellant’s mother
for help, was because he told her that his mother was going to chase
her away
and these people (with reference to the people who wanted to
harm her earlier) were going to find her in the forest she had to
walk through, and rape her.
[14] The third appellant wanted them
all to leave and told her not to scream because his mother was going
to wake up. They went
outside. The first appellant got hold of her
and they went to another shack situated in the same yard where the
third appellant
stayed.
[15] When they entered the shack there
were 3 other people inside. Third appellant instructed her to get
onto a bed. An electric
globe provided light in the shack. He
ordered her to take off her clothes. The first appellant said the
complainant was his girlfriend
and that he was going to have sexual
intercourse with her first. The third appellant did not agree,
undressed himself and raped
her again. In the meantime the first
appellant was undressing. When the third appellant finished with the
complainant, the first
appellant took a condom and got on top of her.
He slapped her and raped her.
[16] The third appellant then asked his
friends to leave, but a person, known as [B…..], whom the
complainant identified
as the second appellant, said that he also
wanted to have sexual intercourse with her. He was there with other
friends, including
two ladies. The complainant did not know him at
the time. He put on a condom before raping her. The third appellant
chased the
two ladies away. A person by the name of [M……],
who was present, was dissatisfied with the fact that the girls had
been chased away. [M……] said he was also going to have
sexual intercourse with the complainant because the third
appellant
chased his girlfriend away. The third appellant did not want him to
do that and went to knock on his mother’s
window to call the
police. His mother told him to go away. When he returned he agreed
that [M……] could have sexual
intercourse with the
complainant and [M……] also raped her.
[17] The third appellant once again
undressed and raped the complainant, followed by the first appellant,
who also raped her again.
[18] The complainant was eventually
raped by 6 people: [M……] and a person called [L……],
as well as
a person whom she described as someone sitting on a chair,
who raped her once. The three appellants each raped her twice. All
these men then went to sleep on the bed. The third appellant ordered
her to sleep on the floor with him. He ordered her to take
off her
clothes and to sleep facing him. At one stage she said that she saw
something that looked like a baboon. She was scared
and jumped up.
The third appellant’s mother was at the door of the shack at
that stage. All the men jumped up and ran away.
[M……],
however, grabbed her and wanted to run away with her. The third
appellant’s mother shouted and swore
at [M…….]
and wanted to assault him. He then left the complainant. When
everyone had run away the third appellant’s
mother took the
complainant inside the house where they waited for the police to
arrive. Third appellant’s mother accompanied
the police when
they took the complainant home.
[19] The complainant testified that she
did not tell the third appellant’s mother that she had been
raped at that stage, because
she was scared. She further testified
that when they arrived at her house, the third appellant’s
mother said to her grandmother,
“Your grandchild has been raped
by the kids who are known to me and my son is also involved”.
Complainant confirmed
this. She was taken to a doctor. She
sustained injuries to her vagina. She then accompanied the police
in order to point out
the second and first appellants. She had
earlier pointed out to the investigating officer the place where the
incident took place.
They found both the first and second appellant
there.
[20] She was never the girlfriend of
any of these men. There were also no problems between any of the men
and the complainant before
the incident. On the day of the incident
she saw the first, second and third appellants for the first time
ever. She heard the
names of the appellants from the appellants
themselves.
[21] Under cross-examination the
complainant said that when the first appellant initially dragged her,
she did not scream because
she was scared and at that time her
friends were standing nearby. When they walked away, he held her
hand. She did not ask her
friends to help her as she assumed they
were going to assist her. It was only after they were out of sight
that the third appellant
appeared. He told the first appellant to
release her and the two of them argued before the first appellant
eventually released
her. She asked him to take her home, but he said
she must accompany him because the other men might follow them. When
asked why
she went with a stranger to a place that she did not know,
she said when the third appellant was talking to her, he was holding
her hand and pulling her. She did not scream because there was
nobody to assist her.
[22] She did not see the third
appellant carrying any weapon, but he was threatening her. When they
arrived at the shack, the third
appellant left the shack and went out
for 5 minutes before returning but when he left he locked the door
and ordered her to get
undressed.
[23] She further stated that she was
scared to scream as she did not want to attract the attention of the
third appellant’s
mother. The third appellant kept on saying
that he was going to stab her. When she was asked why she did not
scream when they
were walking through the main house, she answered
that she thought that if she screamed, the third appellant’s
mother would
come out and chase her away and the group the third
appellant spoke about earlier, would follow her.
[24] She further testified that, after
she and the third appellant entered the shack at the back of the
yard, the first appellant
followed them. At that stage he was
looking for condoms. After she entered the room, the third appellant
said she should get
onto the bed, where after he got onto the bed.
He took off both their clothes and raped her again. She did not
struggle as she
was scared. While this was happening the first
appellant was standing in front of them on the side of the bed.
Thereafter the
first appellant proceeded to rape her. During the
time the first and third appellant had sexual intercourse with her,
the lights
in the shack were on. She did not leave at that stage
because she was scared. She did not tell the third appellant’s
mother
when she later came to the shack in the yard that she had been
raped.
[25] It emerged during
cross-examination that complainant made two statements to the police;
one to a police officer, Khanyile,
immediately after she was raped
and one to a police officer, Ndlela. She testified that with respect
to the first statement, to
Khanyile, immediately after the incident,
she could not recall whether the statement was read back to her.
Regarding the second
statement, made on 9 November 2008, to police
officer Ndlela, she testified that she could not recall making it or
whether this
officer read the statement back to her.
[26] Complainant denied that she said
to the police, during her first statement, that the first appellant,
when he saw her for the
first time while they were walking in the
road, said to her, “Come here bitch and if you don’t
come, I will kill you.”
She denied that she told the police
that when she was taken to the shack in the yard they switched the
lights off and she denied
that she told the police in her statement
that she told the third appellant’s mother that she had been
raped. She also denied
that, in her first statement she made to the
police, she did not name any of the persons who raped her.
[27] She explained under
cross-examination that the reason why there are differences between
the contents of her statements and
her evidence in court, was because
the police did not record what she told them correctly.
[28] At the time when the three
appellants took her from the shack attached to the main house,
through the house, she rather chose
to go with them, than complain to
the mother of the third appellant, who she thought would have chased
her away. She further testified
when the second appellant raped her,
he at all times wore a condom.
[29] The next important witness is
[S……] [Y…..], the mother of the third appellant.
She testified that all
the appellants are known to her. The first
appellant is her neighbour. The second appellant, who is also known
to her, is a friend
of the first and third appellant. At the time of
the incident, she was at home. She heard what she described as a
child screaming
from a shack at the back of the yard. As she
approached the shack, she saw this child, who was the complainant.
The complainant
told her that “they are raping me Mamma”.
Mrs [Y……] testified that she immediately called the
police.
[30] She took the complainant into the
main house where she lived, before going outside, to the shack, where
she shouted at the
three appellants. The other boys who were also in
the shack with the appellants, ran away, jumping over a vibracrete
fence. The
three appellants wanted to follow them. The police
arrived and she accompanied the police when they were taking the
complainant
home. When they arrived at the home of the complainant,
she told the complainant’s grandmother: “Your child has
been
raped”. She told her that her own son (the third
appellant) was also involved. She further testified that the third
appellant
and other men were involved.
[31] In cross-examination she stated
that when she went outside, after she heard the screams, she found
the complainant. She denied
that the first appellant knocked on her
door that evening. The incident allegedly happened between 1h30 and
2h00 am in the morning.
She did not see what happened in the shack
or anyone raping the complainant. She also did not see the
complainant earlier in
her house and denied that the third appellant
was in her house earlier that evening. She could not remember that
she said in her
police statement that after she heard a lady scream,
she went outside, everybody was still in the shack and she shouted
through
the window to the people inside.
[32] [J……] [S……],
the complainant’s grandmother, confirms the complainant’s
testimony that
she arrived home one morning on an unknown date, with
a woman who later became known to her as the mother of the third
appellant,
accompanied by a police officer. This lady told her that
her child (referring to the complainant) had been raped in her shack
by boys, including her own son.
[33] Constable Brenda Ndlela testified
that she was the second investigating officer in this case. She took
down a statement from
the complainant. The method she followed was
that the complainant would tell her something of what happened, and
then she would
first confirm what the complainant told her, before
writing it down. The complainant would then go on with her
statement, and
she would repeat the process. She took down the
statement in this manner because it was very lengthy. She did not
read back the
whole statement to complainant after she had taken it
down for a second time. Accordingly the complainant would not be
wrong in
telling the court that she (investigating officer) never
read the statement back to her.
[34] According to Ms [N…….]
the reason why the complainant did not mention the names of any of
the appellants in her
first statement was because she was confused
and traumatised at that time to the extent that she could not
continue taking a statement
from her.
[35] [T…….] [S……]
testified that on the evening of 5 April 2008 at 19h00, she was in
the company of
the complainant. They were walking from D-section to
F-section, when they encountered a group of people. One of them was
known
to her as [M……], who said to the complainant,
“Hey prostitute come here”. She refused and he grabbed
her by the arm and pulled her to one side. She could not hear what
they were talking about. They pulled her away against her
will and
moved out of sight. She did not see the complainant again.
According to this witness they thereafter went to the house
of this
person that was pulling the complainant and when they arrived there,
the lights were off.
[36] Dr Kathleen Murie testified about
her experience of examining victims of sexual violence. She examined
the complainant on
6 April 2008 at 9h15 am and found that the
complainant had a lot of tenderness around her vaginal area, with
injuries in and around
her vaginal area. She could not perform an
internal examination because of complainant’s tenderness and
nervousness. Her
findings were consistent with a history of sexual
intercourse within the last 24 to 48 hours, judging by fresh tears.
[37] Dr Murie further testified that
the complainant told her that each of the persons who were present
took turns to rape her and
mentioned that she was raped 5 times in
the missionary position and twice while she was on her knees. After
being told that the
complainant testified that she had been raped on
12 occasions, Dr Murie said that the clinical picture after examining
the complainant
was consistent with such testimony
THE EVIDENCE OF THE SECOND APPELLANT
[38] The second appellant testified
that earlier on 6 April 2008 he was with the first and third
Appellant. He, together with some
friends, took a taxi to the first
appellant’s house. Thereafter they went to a tavern where they
started drinking. Third
appellant later joined them. The atmosphere
became unpleasant and the third appellant suggested, just before
midnight, that they
go to F-section in Khayelitsha. In their company
were 3 ladies. Altogether they were 8 people. They left the tavern
as a group.
The third appellant, whilst walking with the first
appellant, disappeared around a corner. Outside the house of the
third appellant
the first appellant joined them again. After a while
the third appellant arrived with the complainant and he told the
complainant,
in the presence of the third appellant that she was
beautiful. The girls that were in their company wanted to go to
J-section.
The second appellant, a person with the name of [L……],
who was also part of the group, and the first appellant accompanied
them. When they left, the third appellant and the complainant went
into the yard of the house of the third appellant. After 25-30
minutes, the second appellant and the first appellant returned to the
third appellant’s place where, in a shack at the back
of the
yard, they found two of their friends [B……] and [S……],
busy drinking.
[39] The third appellant and the
complainant were not present. The others were informed that they
were in the main house. After
a while the first appellant went to
join the third appellant in the main house. Thereafter the first and
third appellants returned
to the shack. The third appellant then
told them he would return to the shack with his girlfriend (referring
to the complainant)
which he did. Later they all sat together
drinking. He did not notice anything wrong with the complainant,
when she joined them.
There were no girls in the room besides the
complainant. The men started to mock the third appellant about the
complainant and
the fact that he finally found a girlfriend. He
became angry and broke a window. The first and second appellants
calmed him down.
[40] First appellant and their friend,
[L……], then left. According to the second appellant,
they left the place of
the third appellant between midnight and
1h00 am in the morning. The third appellant, their friend [S……]
and
the complainant remained behind. When they were in the yard the
mother of the third appellant came out of the house and started
shouting at those persons who remained behind. Second and first
appellants went to their girlfriends. He slept at his girlfriend’s
place and the next morning, a Sunday, he met up with the first
appellant in Elitha Park. Thereafter they went to the house of
the
third appellant. A Golf vehicle arrived and the third appellant
left, saying that he would be back. A person in the Golf
vehicle
asked them their names and explained that he was a detective.
[41] The detective asked second
appellant about his whereabouts the previous day, whereupon he
explained that he was at [B…….’s]
place,
whereafter he went to sleep in Elitha Park. Second and first
appellants were arrested in the presence of the complainant
and her
grandmother by the detective, whose name was [K…...] the
latter also enquired about the whereabouts of [M…...]
[42] In cross-examination second
appellant denied an allegation made by the third Appellant that he
and the first Appellant were
already in the company of the
complainant before they went to the third appellant’s house and
that it was at the same place
the complainant said she met the first
appellant, before she was taken to the house of the third appellant.
He denied that the
third appellant took the complainant away from
him.
[43] Second appellant denied that at
the time when the third appellant and the complainant came from the
main house, there were
three girls in the shack with him. He also
denied that he and the first appellant returned and were present when
the complainant
screamed and that the complainant said at the time
that everybody was having sex with her. It was pointed out to the
second appellant
that the first appellant said he never went inside
the shack when they mocked or ridiculed the third appellant about him
having
a girlfriend. This they did while they were outside the
shack.
[44] It was pointed out to the second
appellant that his version differed in certain respects from that of
the first appellant and
the differences were pointed out to him. The
second appellant could not explain why the first and second
appellants’ testimony
differed from his own in several material
respects.
[45] He denied the evidence of the
mother of the third appellant that he was seen running away from the
shack when the police arrived
and testified that the complainant was
not known to him prior to the incident and that she is lying if she
says that he was present
and/or that he raped her.
EVALUATION: CONVICTION OF THE
SECOND APPELLANT
[46] Mr Paries, who appeared for second
defendant in this court, argued that the Regional Magistrate did not
sufficiently consider
that the complainant was a single witness whose
evidence stands uncorroborated. He further argued that in such a
case the Regional
Magistrate should have applied the cautionary rule
before it could safely rely on the evidence of the complainant. He
argued that
this was especially so in this case where the
complainant’s version was riddled with discrepancies and
contradictions. He
argued that her testimony could not be relied
upon.
[47] Mr Paries pointed out that the
complainant made contradictory statements and the version as given in
court differs from that
which she gave in her two statements. It was
also pointed out that her evidence in court is contradicted in
certain respects by
what she told the doctor during the physical
examination. Complainant was further criticised that she did not
scream when the first
appellant initially dragged her and also when
she walked through the house of the third appellant, while his mother
was present.
[48] The (rather insignificant)
contradictions in complainant’s statements and testimony in
court were pointed out, including
that in court she denied that that
when she made her first statement to the police she did not name any
of the persons who raped
her. She further said that she could not
recall making a second statement.
[49] It was pointed out that the
complainant’s evidence is contradicted by the evidence of [S……]
[Y…..],
the mother of the third appellant, who said the
complainant told her that she was raped, whereas the complainant said
she did not
tell her. I will not repeat the main aspects of
criticism levelled against the evidence of the complainant, as I do
not deem these
aspects material.
[50] Regrettably, the Regional
Magistrate did not sufficiently deal with the shortcomings of the
complainant’s evidence in
coming to a conclusion that her
evidence should be accepted to prove the case against the appellants.
He further did not say why
he was convinced that the single evidence
of the complainant complied with the cautionary rule before accepting
her evidence.
[51] That does not mean that this
court, on a conspectus of the totality of the evidence, should reject
the evidence of the complainant.
I say this for the following
reasons: Du Toit, De Jager, Paizes, Skeen and Van Der Merwe in
Commentary on Criminal Procedure Act
at ch 30 – 40 say the
following on this point:
“If the trial judge or trial
magistrate does not take advantage of the favourable position in
which he finds himself, as far
as considering the witnesses and the
evidence is concerned, the court of appeal will be free to come to
its own findings instead
of those of the trial court. Then the entire
case is retried in the sense that the court of appeal will attempt to
establish whether
the appellant is actually guilty beyond reasonable
doubt, particularly in the light of the record of the evidence and
the impression
that the witnesses made upon the trial judge (R v
Tusini & another
1953 (4) SA 406
(A) 412C–F).”
[52] The fact that the evidence of the
complainant in court differs in some respects from her allegations in
her statements, is
in my view not a sufficient reason to reject her
evidence. It is not difficult to conceive that a young person in the
position
of the complainant, who had gone through an ordeal of being
raped continuously by about 6 persons throughout the night, would be
unable to give an accurate statement of what happened to her. It is
in fact difficult to imagine a person who has been raped in
such a
horrendous manner, ever in her life being able to give an accurate
and entirely correct recollection of what happened to
her, especially
as it must be an experience a person is likely to want to forget.
[53] Our courts have in the past warned
of placing undue weight and emphasis on differences between the
evidence given by a witness
in court and his or her previous
statements made to the police. In S v Mafaladiso en Andere 2003(1)
SACR 583 (SCA), quoting from
the headnote, the court said that a
juridical approach should be followed:
“The juridical approach to
contradictions between two witnesses and contradictions between the
versions of the same witness
(such as, inter alia, between her or his
viva voce evidence and a previous statement) is, in principle (even
if not in degree),
identical. Indeed, in neither case is the aim to
prove which of the versions is correct, but to satisfy oneself that
the witness
could err, either because of a defective recollection or
because of dishonesty. The mere fact that it is evident that there
are
self-contradictions must be approached with caution by a court.
Firstly, it must be carefully determined what the witnesses actually
meant to say on each occasion, in order to determine whether there is
an actual contradiction and what is the precise nature thereof.
In
this regard the adjudicator of fact must keep in mind that a previous
statement is not taken down by means of cross-examination,
that there
may be language and cultural differences between the witness and the
person taking down the statement which can stand
in the way of what
precisely was meant, and that the person giving the statement is
seldom, if ever, asked by the police officer
to explain their
statement in detail. Secondly, it must be kept in mind that not every
error by a witness and not every contradiction
or deviation affects
the credibility of a witness. Non-material deviations are not
necessarily relevant. Thirdly, the contradictory
versions must be
considered and evaluated on a holistic basis. The circumstances under
which the versions were made, the proven
reasons for the
contradictions, the actual effect of the contradictions with regard
to the reliability and credibility of the witness,
the question
whether the witness was given a sufficient opportunity to explain the
contradictions - and the quality of the explanations
- and the
connection between the contradictions and the rest of the witness'
evidence, amongst other factors, to be taken into
consideration and
weighed up. Lastly, there is the final task of the trial Judge,
namely to weigh up the previous statement against
the viva voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth
has been told,
despite any shortcomings.
See also S v Bruiners
1998 (2) SACR 432
(SE).
[54] I am not convinced that it was
unreasonable for the complainant not to have screamed or shouted for
help by calling out to
the mother of the third appellant when she was
raped. In fact, unbeknown to her, the mother of the third appellant
heard her crying
and suspected that something was wrong. The
complainant emerged as a good witness despite being subjected to
gruelling cross-examination
by three experienced counsel over a
number of days, and steadfastly and convincingly repeated her
version.
[55] The strongest evidence that
supports the complainant’s reliability is that of the mother of
the third appellant, who
places the second appellant on the scene and
said that when the complainant cried, the second appellant was still
in the shack.
She also testified that he was one of the persons that
ran away. This supports the version of the complainant, to that
extent.
[56] The complainant’s version
regarding the presence of the second appellant in the shack during
which time she alleges that
he (second appellant) also raped her, is
also supported by the third appellant, although he (third appellant)
did not testify that
he saw the second appellant rape her. The third
appellant also confirms the version of the complainant that the first
appellant
came to the shack attached to the house.
[57] The third appellant further
confirmed the evidence of the complainant that the first appellant
referred to her as his girlfriend,
that the first appellant was
aggressive towards her, that when the two of them appeared in the
shack at the back of the yard they
found the second appellant there,
and that the first and second appellant ran away when the third
appellant’s mother came
out of the house.
[58] Mr Paries was constrained to
concede that it was not the case of the second appellant that the
complainant was not raped.
The second appellant therefore does not
dispute complainant’s evidence that she was raped by the other
appellants and or
individuals that were present in the shack. He
however denied that the second appellant was involved in the rape.
This fact further
strengthens the version of the complainant. The
above aspects of the evidence of the complainant do not serve as
direct corroboration
that she was raped by the second appellant, but
are so-called pointers to the truth of her version and are indicators
of trustworthiness,
while supporting the reliability of her version.
[59] The Regional Magistrate also,
rightly in my view, rejected the version of the second appellant
which made much of the fact
that no DNA evidence was found to link
him to the crime. This argument in my view is of no moment, for the
very reason that the
complainant said that every time he had raped
her he wore protection.
[60] The garbled version of the second
appellant, as the Regional Magistrate correctly pointed out, is not
convincing. His evidence
as to his presence in the shack is
contradicted by the third appellant, whose version supports that of
the complainant about his
presence in the shack. He also failed to
show why the mother of the third appellant, who also implicated her
own son in the rape
of the complainant, would place him in the shack
while the complainant was there crying. This is a further indicator
of the trustworthiness
of the complainant’s version as
mentioned earlier.
[61] The version of the second
appellant is contradicted in certain respects by the first appellant.
The court a quo rightly found
that the version of the second
appellant was not reasonably possibly true and accepted the
complainant’s evidence that he
was one of the persons who raped
her. I am therefore of the view that the court, in relying on the
evidence of the complainant,
together with all the other evidence as
presented, was correct in finding him guilty of rape.
THE ABSENCE OF A VERDICT ON ONE OF
THE CHARGES TO WHICH THE APPELLANTS PLEADED
[62] Before dealing with the appeal
against sentence, I think it would be appropriate to deal with an
important procedural aspect
of this case, which the court a quo
omitted to deal with. It is trite that this court has an inherent
power to correct proceedings
of an inferior court at any stage if it
appears in the interest of justice in doing so. Especially where a
lower court committed
a patent error, which if left unattended, would
create an impression that a court on appeal would condone such an
error. This
is especially so where such error relates to an
important procedural aspect which has to be complied with in terms of
the law.
In this regard, see S v Lubisi 1980(1) SA 187(T); Wahlhaus &
Others v Additional Magistrate, Johannesburg and Another
1959 (3) SA
113
(A). In this particular case, as referred to earlier, the
appellants were asked to plead on two charges of rape but a verdict
was ostensibly only delivered on one of those charges.
[63] The prosecutor chose to formulate
only two charges of rape against the appellants, although, on the
accepted evidence of the
complainant, they together with another man
had committed multiple acts of rape. The reason why the prosecutor
made this decision
is not known and not important at this stage.
What is of concern to this court is that, despite the appellants
having been asked
to plead to two charges, the court a quo only gave
a verdict on one of those charges.
[64]
Section 106(4)
of the
Criminal
Procedure Act 51 of 1977
deals with the procedure a court has to
follow after an accused person has pleaded. It reads as follows:
“An accused who pleads to a
charge, other than a plea that the court has no jurisdiction to try
the offence, or an accused
on behalf of whom a plea of not guilty is
entered by the court, shall, save as is otherwise expressly provided
by this Act or any
other law, be entitled to demand that he be
acquitted or be convicted.”
[65]
Section 81(1)
of the
Criminal
Procedure Act permits
that a number of charges may be joined in the
same proceedings against an accused person at any time before
evidence is led. Where
several charges are so joined, each charge
shall be numbered consecutively (own emphasis). The piece-meal
adjudication and disposition
of each charge on which an accused
pleaded would amount to a gross irregularity. The court a quo, by
omission, only convicted
the appellants on one charge. It is not
clear whether such conviction was given on the first or second
charge. The overwhelming
evidence would justify a conviction on both
charges. This appeal however, only deals with conviction and
sentence on one charge
of rape. The court is therefore bound to
assess the appeal on the charge the appellants were convicted on.
[66] The appellants must be given the
benefit of this omission and this court in correcting the error and
after having regard to
the provisions of
Section 106(4)
can therefore
only acquit the appellants on the other charge they have not been
convicted on.
[67] In S v Sithole and Others
1999 (1)
SACR 227
TPD at 229h – j, it was held by Jordaan AJ, referring
to
section 106(4)
, that:
“The language used in the section
is clearly peremptory. It therefore follows that all the accused who
had pleaded to certain
charges but in respect of which no judgment
was given by the magistrate should be acquitted on all those
charges.”
Jordaan AJ specifically states that
where an accused pleaded to certain charges, but no judgment is given
in respect of such charges,
the accused should be acquitted on such
charges. In my view, this can only happen where such an accused
pleaded not guilty in
respect of such charges and contested the
allegations to which he had pleaded not guilty, and where a court did
not deal with those
allegations and failed to pronounce a verdict.
In my view, however, the correct approach on appeal would be that the
court determines
whether an accused’s right to a fair trial was
infringed where he or she pleaded on a charge, but no verdict was
delivered
on that charge.
[68] It may well be that an accused
pleaded guilty to a charge in terms of
Section 112(2)
or
112
(1)(b) of
the
Criminal Procedure Act or
admitted all the allegations in terms
of the provisions of
Section 220
of the
Criminal Procedure Act and
the court may have omitted for some reason or another to arrive at a
verdict under such circumstances. It would in my view not
be in the
interests of justice to acquit such a person, unless such plea of
guilty or admissions were improperly made.
[69] In this case, however, the state
asked the appellants to plead to a second charge. The appellants
pleaded not guilty and disputed
the allegations levelled against
them. No cross-appeal by the state was lodged based on the fact that
on the available evidence
the appellants should have been convicted
on both charges. They were entitled to a verdict in terms of the
provisions of
Section 106(4)
of the Criminal Procedure Act. No
verdict was given on that charge, and there are no good reasons
emanating from the record why
their plea of not guilty should not be
upheld.
[70] In the case of the second
appellant, he launched an appeal against the (one) conviction and the
sentence imposed. In the case
of the first and third appellants,
their appeals were against sentence upon conviction on the one
charge. The appellants did not
direct their opposition to this appeal
against this issue raised. In this particular case it would
therefore be appropriate to
grant an order which would benefit the
appellants, given the circumstances of this case. It would be
appropriate to correct the
proceedings and hand down an order that
the appellants be acquitted on the charge upon which no verdict was
pronounced, as the
court a quo should have done in terms of the
provisions of
Section 106(4)
of the Act.
SENTENCE
[71] The appellants argued that the
sentence imposed by the court a quo was disproportionate to the
offender, the crime and interests
of society. The first appellant
was 19 years old at the time of the commission of the offence and was
22 years of age when sentenced.
He is not married and has no
children. He left school during Grade 10 in 2007. He has no
previous convictions. The second appellant
was also 19 years of age
at the time of the commission of the offence and he was 21 years of
age at the time of sentence. He is
not married and has no children.
He was unemployed, but was busy with a certificate course in
carpentry at the Cape College in
2007. He has no previous
convictions.
[72] The third appellant was 27 years
of age at the time of the commission of the offence and 27 years of
age at the time of sentence.
He is not married but has one child who
was 9 years old at the time of sentence. He was employed during the
time of arrest and
earned R520,00 per week. He left school in Grade
10. He also has no previous convictions.
[73] It is not disputed that the
appellants were convicted on a serious charge. Although each
appellant was convicted on one count
only, the complainant was
brutally and savagely raped by more than one person during the course
of the evening. She was threatened
and humiliated by especially the
first and third appellants.
[74] This is one of the most serious
rape cases this court has dealt with. It was a rape as contemplated
in Schedule 2
Part 1
where the victim was raped more than once,
whether by the accused or by any co-perpetrator or accomplice or by
more than one person,
where such person acted in the execution or
furtherance of a common purpose. In such a case the legislature, in
terms of the provisions
of Act 105 of 1997, prescribed a sentence of
life imprisonment, unless the court finds that there are substantial
and compelling
circumstances to deviate from such a sentence.
[75] The court a quo, correctly in my
view, found that there were substantial and compelling circumstances
to deviate from the prescribed
sentence. These include that the
appellants were relatively young, had no previous convictions, their
low level of education and
the poor socio-economic conditions they
lived in.
[76] Given the serious nature of the
offence and the manner in which the appellants conducted themselves,
the prevalence of the
offence and the interests of society, I am
unable to agree that the sentence imposed was disproportionate or
unduly severe. On
the contrary, the appellants are fortunate that
the sentence imposed was only 18 years. I do not believe that this
court is at
liberty to interfere with the sentence.
[77] I would therefore make the
following order:
1. That the second appellant’s
appeal against conviction is dismissed.
2. That the three appellants are
acquitted on the charge of rape on which the Magistrate pronounced no
verdict;
3. That the appeal against sentence is
dismissed.
HENNEY, J
Judge of the High Court
I agree, it is so ordered.
STEYN, J
Judge of the High Court