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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

 

Case No: CA&R40/2018

Heard on: 29/10/2018

Delivered: 25/02/2019

 

In the matter between

THEMBA STEFAANS                                                   Appellant

V

THE STATE                                                                Respondent

 

Coram: Pakati J et Mamosebo J

 

JUDGMENT ON APPEAL

PAKATI J

[1]    This is an appeal by Mr Themba Stefaans, the appellant, against both his conviction and sentence imposed by the Regional Magistrate C Kgopa delivered on 15 December 2017. He was convicted on two counts, Count 1: rape and Count 2 is that of kidnapping. The appellant had pleaded not guilty to both counts, and tendered an explanation that the rape was consensual and denied kidnapping the complainant, Ms H D K.  He was sentenced to life imprisonment in respect of Count 1 and three years’ imprisonment in respect of Count 2. Both sentences were ordered to run concurrently. In terms of section 103 of the Firearms Control Act[1] he was declared unfit to possess a firearm.

        AD CONVICTION AND SENTENCE

[2]    The appellant’s grounds of appeal are that the trial court erred:

        2.1 In finding that the State proved its case beyond reasonable doubt;

2.2 In accepting the evidence of the complainant;

2.3 In finding that the appellant’s version is not reasonably possibly true;

[3]    It was also submitted for the appellant that the complainant and her    boyfriend shared about 3 litres of home-made beer before the incident. Therefore she must have been more under the influence of   alcohol than she was willing to admit that her state of sobriety had    a negative impact upon her credibility as a single witness.  It was         contended that her  version was improbable taking into account that    she was walking behind the appellant while alleging that she was    under threat of harm and did not attempt to run away; that the appellant asked her to make a bed and also carried her on his back.

[4]    It was further argued for the appellant that the court erred in finding that there were no substantial and compelling circumstances which justified the imposition of a lesser sentence. In any event, it was contended that the degree of violence used to subdue the complainant was not extreme in that the complainant did not sustain permanent physical injuries.

[5]    In S v HADEBE AND OTHERS[2] Marais JA expounded on the principle governing the hearing of an appeal as follows:

        ‘Before considering these submissions it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well known that restatement is unnecessary.’  See also R v Dhlumayo and Another[3]. 

        BACKGROUND FACTS

[6]    The complainant shared a home with her boyfriend, Mr N P L also known as M, and five children. On 18 December 2016 she and M were at her cousin’s shanty when an argument between them ensued. The appellant arrived and found them still arguing. M left and the complainant remained with the appellant. The complainant requested the appellant to accompany her to L T’s place, which he did. As they approached the tarred road the appellant grabbed the complainant by her neck from behind and throttled her. The next moment she was on the ground. She struggled with him while on the ground to the extent that she wet herself. He pulled her, dragged her towards certain shanties, and threatened to kill her if she screamed.

[7]    The appellant took the complainant to the veld. At that stage she was bare feet. Her shoes were lost when the appellant throttled her. He ordered her to follow him into the veld. She complied as she was scared of him.

[8]    The appellant stopped under a certain tree and ordered the complainant to undress her panty and bend over, which she did. He ordered her to insert his erect penis into her vagina and had sexual intercourse with her from behind without her consent. After he ejaculated he ordered her to put his t-shirt on the ground and lay on it with her back, which she did. He thereafter inserted his penis into her vagina and had sexual intercourse with her without her consent for the second time. Thereafter they dressed up and he carried her on his back and walked until they got to the other side of the road. As they parted ways the appellant warned her that her family would make a laughing stock of her should she tell anyone about the incident.

[9]    The complainant made the first report to her brother, T A K, who immediately summoned the police. The police took her to the police station where she made a statement. One of the police officers took her to the scene where they found her shoes, her hat, the appellant’s watch, and the knife that he took from her shanty. The police officer only picked up the watch and left the other items behind. The complainant was then transported to hospital where she was examined and later taken to L T’s (her sister also known as M) place.

[10]  As a result of the incident the complainant sustained some scratches and cuts on her back, abrasions on her knees and her neck was swollen. She had difficulty swallowing. Her T-shirt was torn. M corroborated her evidence that the appellant arrived at their shanty while he and the complainant had an argument. He added that the appellant wanted to be accommodated in their shanty for that night and he refused. He went out to his neighbour’s house to ask for a kierie because the appellant insisted on sleeping at his place but when he returned the complainant and the appellant had gone. He later found the complainant at M’s place. He observed that she was bleeding from her mouth, had scratches on her neck and her t-shirt was torn.  She informed him that the appellant had raped her.

[11]  Ms Maria Cornelia Zwiegelaar, a Warrant Officer in the South African Police Services, took the statement from the complainant. She testified that when the complainant arrived at the charge office with her family her clothes were soiled and dusty. She was very emotional. She further observed that her elbow, feet and legs were covered in scratch marks. The complainant showed her that her buttocks also had scratch marks. Her lower lip was torn inside. She had difficulty in speaking due to her sore throat.

[12]  A Sergeant in the South African Police Services attached in the Family Violence and Child Protection and Sexual Offences, Kimberley and the investigating officer, Moses Morris, stated that when he first saw the complainant she had dry blood on her lips and she was bare feet. He corroborated the evidence of the other witnesses regarding the scratch marks on her body. He added that he took her to Thuthuzela Care Centre. His evidence went unchallenged.

[13]  The DNA test result, handed up in evidence as Exhibit “B” by consent, reads in part:

        ‘4.1 The DNA result from the “Vulva” Swab (16D1AA6870) (PAD001920247) matches the DNA result from the reference sample (16DBAY3771) (PA4002963824).

          4.2 The most conservative occurrence for the DNA result from the “VULVA” Swab (16D1AA6870) (PAD001920247) is 1 in 47 million trillion people.’

[14] The appellant testified in his defence and did not call witnesses to corroborate his version.  He intimated that on the day of the incident he, one S (surname unknown), the complainant and two of his friends whose names were undisclosed were at Sunrise Tavern drinking liquor. The complainant asked him to accompany her to her shanty. She left first and he followed later. He found the complainant and M in their shanty arguing and he intervened. The complainant wanted him to sleep at her shanty but M refused. He testified further that the complainant told M to return to Free State, his home, because she did not want him anymore. A fight ensued between them after M threw the     mattress out of the shanty and pushed the appellant. The appellant armed himself with a knife in a quest to stab M but the complainant disarmed him. M then walked out of the shanty to the neighbour’s house. At that stage he and the complainant left. 

[15]  The appellant alleged that he and the complainant went to another shanty where they had consensual sexual intercourse. Thereafter they left. He helped the complainant jump over a fence but she fell on the other side of the fence and landed on her stomach. As they walked the complainant suddenly ran away saying that M was following them. He assured her that he would not let M harm her. They walked at the back streets of the shanties on a road leading to the field proceeding to the complainant’s sister’s place. She asked him to carry her on his back because it was thorny and she was bare feet. He left her at the gate at her sister’s place and he went to Sunrise Tavern.

[16]  The appellant denied that he was related to the complainant. He explained that the intercourse in issue was not their first sexual encounter.  He said he went to the complainant’s shanty because he once had a love relationship with her.  He denied either raping or kidnapping the complainant.

[17]  The issue that had to be determined by the trial Court was whether the complainant and the appellant had consensual sexual intercourse or not. The Court a quo also had to consider whether the conviction of kidnapping constituted duplication of convictions.

[18]  In convicting the appellant the Magistrate was of the view that the appellant adjusted his version as the case proceeded and was very evasive in answering questions. She mentioned that the appellant did not dispute that he had sexual intercourse with the complainant twice thereby confirming the version of the complainant. The Magistrate remarked:

‘He avoided questions in cross-examination he did not want to answer questions and kept extending and changing his version to the extent that he presented more than one version before court.

…

[The] accused’s version was full of illogical improbable explanations and contradictions and extensions. It cannot therefore be found to be reasonably possibly true in the light of the total evidence presented. From the evidence in total [the] complainant was injured and threatened to be killed if [she] screamed and was dragged or pulled into the veld to be raped and therefore it cannot be said [that] she was with [the] accused freely in the circumstances as she was kept and taken [to] where [she did not want] to go and had asked [the] accused [where] to take her to.  From these threats of violence that led and resulted in the injuries she sustained it cannot also be said she consented to the sexual intercourse with the accused and more than once. She testified accused ejaculated and then changed the positions and had sexual intercourse with her again. That did not seem or appeal to be a single act as per defence’s argument. In the evidence in total I therefore find that the state was able to prove the case against [the] accused beyond a reasonable doubt. Accused’s version is rejected as not reasonably possibly true.’   

[19]  The Court a quo dealt with the fact that the complainant was a single witness and that her evidence should be treated with caution. It relied on section 208 of the CPA which provides that a court may convict an accused of any offence on the evidence of a single and competent witness. The trial Court found that the complainant’s evidence as corroborated by her boyfriend, M, and T K was consistent with the sequence of events as reported to the police. To this end, the complainant’s evidence clearly showed that the sexual intercourse could never have been consensual. The Magistrate was further of the view that the complainant’s evidence was satisfactory in all material respects. The Magistrate cannot be faulted in concluding as she did. The injuries observed on the complainant coupled with her appearance at the time when she was found as well as her emotional state do not support the version of the appellant that sexual intercourse took place in a shack and was consensual.  

[20]  The Magistrate gave a well-reasoned judgment in convicting the appellant of rape. It follows that the appeal on this conviction must fail. 

[21]  There is generally, no infallible formula to determine whether there is a duplication of convictions or not.[4] Regarding the question whether the conviction on kidnapping constitutes duplication of convictions regard should be given to section 83 of the CPA which provides guidance in terms of instances where doubt may exist when charging an accused with several offences to avoid a duplication of convictions.  In S v BM[5] Wallis JA set out the rule of practice thus:

        ‘[3] It is apparent that charging Mr BM with two separate counts, arising out of what was clearly one and the same incident, involved an improper duplication (splitting) of charges. It has been a rule of practice in our criminal courts since at least 1887 that ‘where the accused has committed only one offence in substance, it should not be split up and charged against him in one and the same trial as several offences’. The test is whether, taking a common sense view of matters in the light of fairness to the accused, a single offence or more than one has been committed. The purpose of the rule is to prevent a duplication of convictions on what is essentially a single offence and, consequently, the duplication of punishment.’

          Also see S v DLAMINI[6]

[22]  An offence of rape would inevitably require a perpetrator to deprive his victim of freedom with the intention of committing rape. Likewise, in this case, for the appellant to rape the complainant he had to deprive her of her freedom of movement in order to rape her. That act cannot be separated from the rape itself. In my view therefore the conviction of kidnapping is indeed a duplication of convictions. The Magistrate misdirected herself in this regard.

 

        SENTENCE

[23]  The following factors as well as mitigating factors of the appellant were placed on record for consideration by the court a quo:

23.1 The appellant was born on 14 November 1985 and when the matter was finalised he was 32 years. He has two younger siblings;

23.2 He is unmarried;

23.3 The highest standard he passed at school was Standard 8, Grade 6 in today’s terms;

23.4 Before his arrest he was employed at [….] in Petrusburg for six months and earned R900-00 weekly;

23.5 He had an eight year old child. The six year old child he claimed was his was actually not his as he was in custody at the time. The mother of the eight year old did odd jobs. When he was arrested he was staying with his girlfriend.

23.6 His mother passed away in 2008 and his father is currently married to his step-mother; and he owned no property.

[24]  The prosecutor proved the following previous convictions:

24.1 On 28 December 2001 the appellant was convicted of theft and was sentenced to pay fine of R100-00;

24.2 On 23 February 2009 he was convicted of rape and was sentenced to seven years imprisonment in terms of section 276 (1) (B) of the CPA and in terms of section 103 (2) of the Firearms Control Act, 60 of 2000, he was declared unfit to possess a firearm. On 23 July 2012 he was released on parole supervision until 22 August 2015.

24.3 On 29 November 2012 he was convicted for theft and was sentenced to undergo six months imprisonment which was wholly suspended for six months on certain conditions. He was declared unfit to possess a firearm.

[25]  The appellant’s previous convictions show that he has not learnt from his previous brushes with the law. Most importantly, the fact that he is not a first offender, as far as rape is concerned, aggravates his case.

[26]  The prescribed sentence for rape in the circumstances of this case is life imprisonment unless the Court       finds substantial and compelling circumstances which would warrant a deviation from the imposition of the prescribed sentence.[7] As articulated by Marais JA in S v MALGAS[8] the prescribed sentences are not to be departed from lightly and for flimsy reasons.

[27]  It was submitted on behalf of the appellant that the trial Court had erred in not finding substantial and compelling circumstances present because the amount of violence used was not high; the complainant only sustained superficial injuries with no lasting physical trauma; that she did not sustain any lasting emotional or psychological trauma and the rape committed on her was not the worst kind of rape imaginable.  Bosielo JA had this to say regarding the approach on appeal in respect of findings regarding substantial and compelling circumstances in S v PB[9]:

        ‘[20] ….The approach to an appeal on sentence imposed in terms of the Act should, in my view, be different to an approach to other sentences imposed under the ordinary sentencing regime. This, in my view, is so because the minimum sentences to be imposed are ordained by the Act. They cannot be departed from lightly or for flimsy reasons. It follows therefore that a proper enquiry on appeal is whether the facts which were considered by the sentencing court are substantial and compelling, or not.’

[28]  The instructive remarks by Ponnan JA in S v MATYITYI[10] bear mentioning:

        ‘But, with respect, to restrict the enquiry to permanent physical injuries, as the learned judge appears to have done, is to fundamentally misconstrue the act of rape itself and its profound psychological, emotional and symbolic significance for the victim.’

[29]  The Supreme Court of Appeal said the following in DIRECTOR OF PUBLIC PROSECUTIONS, WESTERN CAPE V PRINS AND OTHERS[11]:

        ‘[1] No judicial officer sitting in South Africa today is unaware of the extent of sexual violence in this country and the way in which it deprives so many women and children of their right to dignity and bodily integrity and, in the case of children, the right to be children; to grow up in innocence and, as they grow older, to awaken to the maturity and joy of full humanity. The rights to dignity and bodily integrity are fundamental to our humanity and should be respected for that reason alone. It is a sad reflection on our world, and societies such as our own, that women and children have been abused and that such abuse continues, so that their rights require legal protection by way of international conventions and domestic laws, as South Africa has done in various provisions of our Constitution and in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act).’

[30]  The following pronouncements by Ponnan AJA (as he then was) in the unreported judgment of S V DE BEER[12] are insightful and further adds impetus to the view expressed by the Supreme Court of Appeal regarding the offence of rape:

        ‘[18]   Rape is a topic that abounds with myths and misconceptions. It is a serious social problem about which, fortunately, we are least becoming concerned. The increasing attention given to it has raised our national consciousness about what is       always and foremost an aggressive act. It is a violation that is invasive and dehumanising. The consequences for the rape victim are severe and permanent. For many rape victims the process of investigation and prosecution is almost as traumatic as the rape itself.’

[31]  The trial Court had considered the appellant’s personal circumstances, which were nothing out of the ordinary, the seriousness of the offences, and the interests of the community. The complainant trusted the appellant who breached that trust. She was related to the appellant and never expected him to rape her. She took him as her brother. She spent time in the company of the appellant and M, her boyfriend. On the day of the incident the appellant took advantage of the situation between them. She testified that she hated him and requested that he be sentenced to a long term of imprisonment.

[32]  For reasons advanced herein before I am of the view that the Magistrate correctly found no substantial and compelling circumstances in the personal circumstances of the appellant justifying a deviation from the imposition of sentence of life imprisonment.

[33]  Regard being had to the facts and circumstances in this case, I am satisfied that there was no misdirection by trial Court with regards to the sentence imposed for the offence of rape, which would warrant any interference by this Court.  It follows that the appeal against sentence in respect of this offence must also fail.     

 

        In the circumstances I make the following order:

1.   The appeal against conviction and sentence in Count 1 of rape is dismissed.

2.   The appeal against conviction and sentence in respect of Count 2 of kidnapping is upheld. 

 

 

 

BM PAKATI

JUDGE-NORTHERN CAPE DIVISION, KIMBERLEY

 

 

 

 

I concur

 

 

MC MAMOSEBO

JUDGE-NORTHERN CAPE DIVISION, KIMBERLEY

 

 

 

On behalf of the Appellant:                 Adv A Van Tonder

Instructed by:                                  Legal Aid South Africa, Kimberley Office

 

 

On behalf of the Respondent:              Adv A Stellenberg

Instructed by:                                  Director of Public Prosecutions, Kimberley Office       

 

 

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