South Africa: North West High Court, Mafikeng

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S v Olivier and Another (CC124/04) [2004] ZANWHC 17 (12 August 2004)

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CC124/04


IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)


THE STATE

vs

  1. JAN OLIVIER

  2. COMFORT DINTWE



JUDGMENT



HENDRICKS J:


[1] The two accused persons, Jan Olivier (accused 1) and Comfort Dintwe (accused 2) were each convicted in the Regional Court, Rustenburg, of two counts of rape.

[2] The matter was referred to the High Court for the purpose of sentence by the Regional Court Magistrate in terms of section 52(1) of the Criminal Law Amendment Act, Act 105 of 1997.


[3] It appeared before my brother Gura AJ, who directed a query to the presiding Magistrate, regarding the two counts on which both accused were convicted.


Facts


[4] The two accused persons accompanied the complainant who was en route from a shop. Whilst walking, accused 1 all of a sudden kicked the complainant on her stomach and she fell. He then choked her whilst she laid on her back. Accused 1 then called accused 2 to assist him to undress the complainant of her denim trousers and panty, which he did. Accused 1 then had sexual intercourse with the complainant.


[5] Accused 1 then told accused 2 that he must mount the complainant as soon as he (accused 1) gets off her. Whilst still choking the complainant, accused 1 dismounted her and accused 2 then mounted the complainant and also had sexual intercourse with her.


[6] In his judgment, the Magistrate stated the following:


In wese kom dit daarop neer dat wat beskuldigde 1 aanbetref die hof beskuldigde 1 op een aanklag as dader en op die ander aanklag as medepligtige moet skuldig bevind en dieselfde geld wat beskuldigde 2 aanbetref.”


See: Record page 88.


[7] And also:


Wat betref die getuienis, is dit duidelik dat beskuldigde 1 die eerste dader was en beskuldigde 2 op daardie tydstip ‘n medepligtige was. Daarna het die rolle geruil, beskuldigde 2 was toe die dader en beskuldigde 1 die medepligtige. Beskuldigde 2 se medepligtigheid berus daarop dat hy beskuldigde 1 in staat gestel het om die klaagster te kon verkrag deur haar te ontklee en beskuldigde 1 se medepligtigheid berus daarop dat hy die klaagster nog steeds aan die keel vasgehou het en sodoende as’t ware beskuldigde 2 in staat gestel het om die klaagster ook te kon verkrag.”


See: Record page 95.


[8] Gura AJ directed a query to the Magistrate in order to ascertain why the two accused are convicted on two counts or rape each, whilst each of them only had sexual intercourse with the complainant once, each one assisting the other in achieving their goal.


[9] In response to the query the Magistrate stated:


1. Die beskuldigdes het in die streekhof op twee aanklagte van verkragting tereg gestaan. Na aanhoor van die getuienis, is beide beskuldigdes op beide aanklagte van verkragting skuldig bevind en in terme van die bepalings van artikel 52(1) van die Strafregwysigingswet, 1997, (Wet 105 van 1997), na die Hoggeregshof vir vonnis vewys.


2. Die Hooggeregshof het by monde van Gura Wnd R (voor wie die saak gedien het), egter die volgende navraag gerig:

“On which two counts were the accused convicted?”


  1. Ek weet nie, met die nodige respek ges, wat die betrokke probleem is nie. Die beskuldigdes is, soos reeds vermeld, op twee aanklagte van vekragting skuldig bevind. Dit was hulle ten laste gel dat hulle op die betrokke dag, beide die klaagster verkrag het. Die hof het bevind (a) dat beskuldigde 1 eerste die klaagster verkrag het terwyl beskuldigde 2 hom (beskuldigde 1) behulpsaam was, en (b) dat beskuldigde 2 daarna die klaagster verkrag terwyl beskuldigde 1 hom (beskuldigde 2) behulpsaam was. Wat bevinding (a) aanbetref, het die hof bevind dat beskuldigde 1 ‘n dader en beskuldigde 2 ‘n medepligtige was. Ten aansiens van bevinding (b), het die hof bevind dat beskuldigde 2 ‘n dader en beskuldigde 1 ‘n medepligtige was. Die staat het egter nie in die onderskeie aanklagte aangetoon in watter hoedanigheid (hetsy as dader of medepligtigheid), die beskuldigdes van verkragting beskuldig word. Dit is verkieslik dat dit gedoen behoort te word. Alhoewel die hof dit nie uitdruklik in sy uitspraak vermeld het nie, is dit duidelik dat bevinding (a) betrekking het op aanklag 1 en bevinding (b) betrekking het op aanklag 2. Sien in die verband S v Gaseb and Ohters 2001(1) SASV 438 (NSC) op 452 en 453 wat daderskap en medepligtigheid by verkragting aanbetref.”


[10] In the present matter, the question arises as to whether it is proper to convict an accused person on multiple counts of rape when he is the actual perpetrator as well as an accomplice in one and the same criminal transaction?


[11] For example if 5 male persons embark on raping a female, 4 of them each holding an arm or a leg whilst one penetrates her and thereafter rotate so that each one had a chance of penetrating her whilst the others are holding either a leg or an arm, must each one of them be convicted of 5 counts of rape?


[12] The Magistrate in the present matter based his finding on the decision of S v Gaseb and Others 2001(1) SACR 438 (NSC) in which O’Linn AJA who delivered the full bench judgment of that court states:


It seems logical and in accordance with common sense and fairness, that once the evidence proves these elements of the crime in regard to a perpetrator and the accomplice or accomplices if any, then the crime of rape has been proved in regard to that perpetrator and the accomplice or accomplices if any. Any repetition thereafter, fulfilling the same requirements, constitutes further crimes of rape.”


[13] It is clear that the actual perpetrator and the accomplice or accomplices who assist can be convicted of rape, if it is one and the same criminal transaction. If thereafter, any one of them penetrates the victim again as a separate and distinct action, that constitute a separate criminal transaction and it amounts to a distinct separate crime of rape altogether. For example, if two male persons, acting in concert with one another, embark on the rape of a female person, one penetrating and the other assisting by holding the hands of the victim, both can be convicted of rape, (one as the actual perpetrator and the other as an accomplice). If the perpetrator takes the victim away and afterwards again has sexual intercourse with her without her consent, he commits a further crime of rape. The same applies to the accomplice, who after assisting the actual perpetrator, embarks on raping the victim, in a different criminal transaction, that constitutes a different crime of rape.


[14] I am of the view that if it is one and the same criminal transaction, the actual perpetrator and his accomplice or accomplices should each be found guilty on one count of rape, whether as actual perpetrator(s) or accomplice(s). If any of the accomplices, fail to be a perpetrator, (in himself penetrating the victim), he is still guilty of rape as an accomplice. Should however, any one of them, as a distinct different transaction, penetrate the victim, that would constitute a separate act of rape and he can be convicted on another charge of rape.


[15] O’Linn AJA further states on page 453 d-f the following:


Gang rape is not a distinct crime under our common law or statute. The concept should not become a substitute for charging and convicting a number of gangsters for one crime, where each of them has in fact and in law committed several crimes or offences.


Should the number of accused participating then be charged and convicted of multiple counts of rape based on the number of times one of them had intercourse with the victim and one or more of them had switched his role deliberately, each of them only has himself to blame for continuing with a series of rapes or allowing it to continue or assisting in its continuation.


In my respectful view, the concept of fairness will be prostituted, if an accused is allowed to escape conviction and punishment for a series of voluntary, deliberate and separate criminal acts, on the pretext of ‘fairness to the accused’. The application of common sense does not lead to a different conclusion.”

[16] With due respect, I cannot agree. If different accused persons in a gang rape conducted different acts in furtherance of the common goal of raping a victim each one of them is guilty of one count of rape whether it be as an accomplice or as a perpetrator. Where an accused person is convicted of a multiplicity of rape counts stemming from one criminal transaction where he played different roles as an accomplice and as a perpetrator, it amounts, in my view, to a duplication of convictions.


[17] In the decision of S v Blaauw 1999(2) SACR 295 (W), Borchers J gives a good example of how the court should proceed to decide whether there was one or more rapes. The headnote reads as follows:


Mere and repeated acts of penetration cannot without more be equated with repeated and separate acts of rape. A rapist who in the course of raping his victim withdraws his penis, positions the victim’s body differently and then again penetrates her, will not have committed rape twice. Each case must be determined on its own facts. As a general rule the more closely connected the separate acts of penetration are in terms of time (ie the intervals between them) and place, the less likely a court will be to find that a series of separate rapes has occurred. But where the accused has ejaculated and withdrawn his penis from the victim, and he again penetrates her thereafter, it should be inferred that he has formed the intent to rape again, even if the second rape takes place soon after the first and at the same place.”


[18] In this particular case, the accused was convicted of two rapes. The trial Judge explained as follows on page 300 d-f:


The complainant was asked to explain how a simple act of rape took about two hours and she then proceeded to supply the details I have quoted above. She was describing, in my view, at least two separate acts of rape. The first was at the bridge and it was terminated by the accused’s ejaculation and withdrawal. The second took place some undefined time later about 12 paces away and a different position was initially adopted by the accused. In my view, the difference in time, place and position between these two incidents is sufficient for them to constitute two separate acts of sexual intercourse and hence, two separate acts of rape.”

[19] It follows from the above that if the accused was charged on two counts of rape the court would also have found that the accused was guilty of two counts of rape.


[20] What constitutes a single criminal transaction will therefore depend on various factors and considerations. For example, the time lapse between the different rape occasions; the place, etc.


[21] I am of the view that the convictions of both accused persons on both counts cannot stand as it was one and the same criminal transaction.


[22] Furthermore, the wording of the two charges which the accused faced are verbatim the same. None of the accused were informed with any particularity that as far as either of the charges are concerned, he is charged as an accomplice, and not as a perpetrator.


[23] Section 35(3)(a) of The Constitution of The Republic of South Africa, Act 108 of 1996 states:


Every accused person has a right to a fair trial, which includes the right –

  1. to be informed of the charge with sufficient detail to answer to it: ………”


[24] The Magistrate, in response to the query states:


Die Staat het egter nie in die onderskeie aanklagte aangetoon in watter hoedanigheid (hetsy as dader of medepligtigheid) [“it should be medepligtige”] die beskuldigdes van verkragting beskuldig word. Dit is verkieslik dat dit gedoen behoort te word.”


[25] I am in agreement with the Magistrate that the accused should have been informed with sufficient particularity or detail about the charges they had to meet. It was obviously not done, to the prejudice of the accused, especially the first accused who was not legally represented.


[26] I am of the view that it is of prime importance that an accused person’s rights must be respected and that non-compliance with the Constitutional provisions cannot be condoned.


[27] Consequently, I am inclined to set aside the convictions of the accused on the charges upon which they were not informed with sufficient detail about the case they had to meet as accomplices, but because it is not indicated on the charge sheet on which of the two counts each one of the accused is convicted as an accomplice, I am of the view that one of the counts, without specific reference to any one of them, should be set aside.


Conclusion:

Therefore, it is ordered that the accused are each convicted of one count of rape only, and that the other count of rape is set aside.








R D HENDRICKS

JUDGE OF THE HIGH COURT


12 AUGUST 2004