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Arends and Others v S (CC95/2009) [2009] ZAECGHC 91 (11 December 2009)

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12


IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE - GRAHAMSTOWN )


CASE NO: CC95/2009

DATE HEARD: 07/12/09 – 10/12/09

DATE DELIVERED: 11/12/09

NOT REPORTABLE


In the matter between:


THE STATE


and


CLAYTON DONOVAN ARENDS ACCUSED 1

KEVIN CAMPBELL ACCUSED 2

ELVIS NELSON ACCUSED 3



JUDGMENT


PLASKET J


[1] The accused were charged with the offences of rape and of attempted robbery with aggravating circumstances. The State alleges in the indictment, read with the summary of substantial facts, that on 15 February 2009 and at or near Station Hill, Port Alfred, the accused raped the complainant in count 1 in turns and repeatedly. (I shall refer to her simply as the complainant in the rest of this judgment.) It is also alleged that immediately prior to the rape of the complainant the accused attempted to rob one Patrick French. Aggravating circumstances were present as the accused wielded a dangerous weapon in the form of a panga.


[2] Accused 1 and 2 pleaded not guilty to both charges. Accused 3 pleaded not guilty to the charge of rape but guilty to attempted robbery. The State did not accept the plea. A plea of not guilty was therefore entered.


[3] The complainant testified that she and French went to Station Hill at about 02h00 on 15 February 2009 because French wanted to buy cocaine from a drug dealer by the name of Biggy. As he owed Biggy money, he requested the complainant to enter Biggy’s house and purchase the cocaine. She did not have enough money and left to find out from French what he wanted instead of cocaine. While they were outside, three men ran towards them. She ran and hid in a bush and saw the men attack French. He fought with them and then managed to run away.


[4] The men then began to search for her. They found her in the bush and dragged her out. They dragged her towards the SPCA building. At a point, as she was dragged, she tried to sit down. One of the men, whom she identified as accused 2, strangled her in order to overcome her resistance.


[5] The men dragged her down a path into a clearing in thick bush. There one of the men threw a trench coat onto the ground. Accused 2 held her down while accused 3 pulled off her jeans and underwear. Before he commenced to rape her she begged him to wear a condom. She believes that he did so.


[6] Accused 3 then raped her while the other two watched. At one stage, while accused 3 was raping her from behind, accused 2 inserted his penis into her mouth. When accused 3 had finished raping her accused 2 proceeded to rape her. Accused 3 then raped her a second time. While this was happening she was strangled from time to time by accused 2 when she made too much noise. She was also strangled once by accused 3. Finally, accused 1, who was armed with a panga for most of the time, raped her. He first penetrated her vaginally and then anally. While he was raping her, accused 2 and 3 left to investigate the noise of dogs barking, believing that the police may be on their way. Accused 2 returned but left again.


[7] When accused 1 had raped the complaint she dressed herself. Accused 1 apologised for what they had done to her. He attributed what they had done to what he termed ‘the ghetto life’ and said that this was ‘the only way we can get a white bitch’. He started walking out of the clearing and told her to follow him. He said he would show her how to get out of the bush. When she emerged from the bush she ran away.


[8] When she got to a road, she saw a vehicle approaching. It was a police vehicle which stopped for her. She reported to the police personnel in the vehicle that she had been gang raped. She was taken to hospital where she was medically examined. Photographs were also taken of her injuries.


[9] She attended an identification parade eight days later. She said that she found it a traumatic and intimidating experience as she was taken into a courtyard where she was face to face with the men in the line-up. Certain of them pulled faces and smirked at her. She pointed out accused 3 and she also pointed out three men who were pulling faces and smirking at her. She does not appear to have pointed them out as those responsible and, at most, she said that they looked familiar. She did not point out accused 1 and 2 despite them being part of the line up.


[10] French’s evidence dovetails to a large extent with the complainant’s. In particular, he stated that he asked her to enter Biggy’s house to buy cocaine for him. He said, however, that when she came out of the house and reported that she did not have enough money, he asked her to return and buy dagga instead. She did so and was told that they must wait at the SPCA building for the dagga to be fetched and handed over to them. They walked there and it was while there that they were attacked by the accused.


[11] This explanation appears to me to be more probable than the complainant’s version that she left Biggy’s house having left the money there and that they were then attacked by the accused. In my view, her lapse in this regard, although not creating a material contradiction, is probably explained by the effect of the traumatic and terrifying experience that she underwent.


[12] For the rest, French testified that one of the attackers, whom he identified as accused 1, was armed with a panga. He said that accused 1 tried to intimidate him. Accused 2 and 3 took hold of his arms and threw him to his knees. They demanded to know whether he had any drugs or money. Accused 3 threatened him with death but also said that if he did not give them what they wanted they would cut off his arms.


[13] Accused 1 hit him with the blunt edge of the panga, realised his mistake and turned it around to hit him with the sharp edge. Before he got the chance to do so, French got to his feet, punched accused 1 in the face and ran. As he did so he shouted that he had R600.00 and a cell phone. He in fact had neither but he said this in order to lure the accused away from the complainant. They chased him for a while and accused 1 chopped at him with the panga, grazing his shoulder and cutting a finger on his left hand. It required about 15 stitches. He also had two small scratch marks on his back and abrasions on his knees.


[14] French also attended the identification parade on 23 February 2009. He found the experience a daunting and intimidating one. He pointed out accused 3 but did not point out accused 1 or 2 despite them being part of the line-up.


[15] The investigating officer, Inspector Patrick Du Preez testified that he received information that the panga used by the assailants of the complainant and French was owned by accused 2, who was then in custody. He went to accused 2’s house, obtained permission from his mother to search accused 2’s room, searched the room thoroughly and eventually found the panga hidden under a cupboard. It was put to him by Mr Bhurhwana, who appeared for accused 2, that accused 2 had two pangas. Du Preez stated that he searched the room thoroughly and only found one. French identified the panga as being similar to the one that he saw in the possession of accused 1.


[16] Constable Xolelwa Fundi was patrolling in a police vehicle when she and her colleague heard that French had been attacked and was in hospital. She and her colleague went to hospital and French told them that he had been with the complainant. Constable Fundi and her colleague proceeded to the SPCA building but on the way they saw the complainant in the road. When the car stopped, she told Constable Fundi that she had been gang raped by three men. She was taken to the police station and then to hospital.


[17] The J88 form in respect of the complainant’s medical examination was handed in by consent. The doctor who examined her noted certain injuries and concluded that she had been sexually assaulted both vaginally and anally. The photographs that were taken of the complainant’s injuries show injuries to her face and neck, to her legs and to her back. These are consistent with the findings of the doctor recorded on the diagrams in the J88 form and with the complainant’s evidence.


[18] An affidavit deposed to by Superintendant Charlene Otto and made in terms of s 212 of the Criminal Procedure Act 51 of 1977 was admitted by accused 2. It details the results of DNA analysis conducted on samples taken from the complainant’s body and concludes that the samples matched the DNA of the reference sample of accused 2. Finally, accused 3 admitted that the identity parade at which he was pointed out was properly constituted and conducted.


[19] Accused 1 gave evidence to the effect that on 15 February 2009, accused 3 woke him up and asked him for a screwdriver that he wanted in order to commit a robbery. Accused 1 gave him the screwdriver and followed accused 3 out of curiosity. As he did so, he saw French running past him. He then heard screams. He went in the direction of the noise and saw accused 2 and 3 dragging a woman towards the SPCA building. Accused 2 was armed with a panga.


[20] He followed them to a clearing in the bush and saw accused 2 raping the complainant. When he went closer to the scene, accused 3 saw him. Accused 2 threatened him with a panga and told him that he would hit him with it if he did not have sexual intercourse with the complainant. At this point, vehicle lights lit the area, accused 2 looked away from accused 1 and he ran away. He woke his mother and reported to her what had happened.


[21] Accused 2 testified that on 15 February 2009 the complainant contacted him on his cell phone and asked him to sell her drugs. He arranged to meet her at a sports field in the vicinity of the SPCA. It was about 01h00 when the complainant contacted him telephonically. She had, he said, in the past bought drugs from him. He knew her by the name of Chrissie and she knew him by his nickname, Puppet.


[22] She and French arrived at the sports field at about 02h00. Both were intoxicated. French was heavily intoxicated. When accused 2 told the complainant the prices of the drugs he sold, she was not able to pay. He and the complainant then talked about her buying drugs on credit. After the conversation had gone on for about ten minutes, French passed out. The complainant begged him to give her drugs and agreed to have sexual intercourse with him in return. He agreed and they had sexual intercourse. Thereafter, he gave her the drugs she wanted. French woke up and the two of them left.


[23] Accused 2 stated that he had no knowledge of the attempt to rob French as he was not present when it was committed. He also had no knowledge of the complainant having been raped, which must have occurred after she and French left the sports field. He admitted that the panga found in his room was his but said that he had not carried it on 15 February 2009.


[24] Accused 3’s defence to the charge of rape is an alibi. He stated that when the rape occurred he was asleep at home. He admitted to having attempted to rob French. He testified that on 15 February 2009 he was in the company of accused 1. He had been to a wedding and they were looking for a shebeen that was still open. They saw a man standing next to Biggy’s house. A woman emerged from the house, joined the man and the couple went and stood under a tree near the SPCA building. They decided to rob the couple. He and accused 1 approached them and took hold of French, while the woman ran away. Accused 1 reached for French’s pocket but accused 3 did not know whether he found anything to steal. French broke loose and ran away. He and accused 1 left the scene in different directions. He went home to sleep. He accordingly had no knowledge of the complainant being raped.


[25] The identity of the persons who raped the complainant and attempted to rob French is not really in issue. I say this because the accused all put themselves on the scene to a greater or lesser extent. It is clear from the evidence of both the complainant and French that the men who attacked French were the same men who raped the complainant. The principal issue to be decided therefore is the credibility of the competing witnesses and the probabilities of their versions.


[26] I am well aware that the complainant was a single witness in respect of the rape and that her evidence must be approached with caution for that reason. In my view, however, the cautionary rule is satisfied because she was a witness whose evidence was satisfactory in all material respects and it finds corroboration in: the evidence of French in the lead up to the rape; in the admission of accused 1 that he, accused 2 and accused 3 were on the scene and his evidence that accused 2 and 3 raped her; the admission by accused 2 that he had sexual intercourse with her; the admission of accused 3 that he attempted to rob French and was, accordingly, on the scene; the evidence contained in the J88 form that establishes that she was penetrated both vaginally and anally; the further evidence in the J88 form of the injuries to her face, neck, back and legs; and the photographs that depict these injuries. The medical evidence and the photographs taken together gainsay any suggestion of consensual sexual intercourse and the medical finding that the complainant was penetrated anally cannot be reconciled with the version of accused 2.


[27] I have said that the complainant’s evidence was satisfactory in all material respects. It is so that her evidence can be criticised in certain minor respects but it was agreed by all of the counsel who appeared for the accused that she was a very good witness indeed. I agree with that assessment of her. She gave evidence in a clear and consistent manner. She gave a detailed account of what happened to her and was able to attribute words and deeds to each or her attackers. As I have said, her evidence is consistent with, and corroborated by, the objective evidence contained in the J88 and the photographs, not to mention the s 212 affidavit of Superintendant Otto that links accused 2 to the offence. She experienced no difficulties in cross examination.


[28] It is clear too that her identification of accused 3 was accurate because he placed himself on the scene of the attempted robbery and, as I have said, it is clear from the evidence that the men involved in that offence then raped her. Her dock identifications of accused 1 and 2 have also, and for the same reason, been shown to have been reliable: accused 1 was, on his own version, on the scene of the rape and the only issue is what he did there; and accused 2, on his own version, had sexual intercourse with her and the only issue is whether it was with her consent and at the sports field or without her consent and in the clearing in the bush. I accept the complainant’s evidence.


[29] French also impressed me as a witness. His account of why he went to Station Hill with the complainant in the early hours of the morning was frank. He gave a detailed account of what happened in the lead up to the attempted robbery and during it. In so doing, he attributed acts to each of the accused and he also recounted what each had said to him. Once again, his identification of accused 3 was reliable in the light of accused 3’s admission that he was one of French’s assailants. If the complainant’s evidence is accepted and that of accused 1 and 2 rejected then his dock identifications of accused 1 and 2 will be confirmed by the evidence that they, shortly after attempting to rob him, dragged the complainant out of the bush where she hid, dragged her to the clearing and raped her. I accept his evidence too, and I also accept the evidence of Inspector Du Preez and Constable Fundi.


[30] I turn now to an assessment of the evidence of the accused. It was fairly conceded by Mr Joubert, who appeared for accused 1, that he was not a good witness. He was evasive in many respects and his version made little sense. In my view, it is highly improbable that accused 3 would have woken him in his house in the early hours of the morning to borrow a screw driver with which to commit a robbery. The version becomes more improbable, even if it is accepted that he got up, dressed and followed accused 3, if it is considered that on his version accused 2 already had a panga and he never saw the screw driver being wielded during the robbery or thereafter. No other witness saw the screw driver either. It is, furthermore, even more improbable that, when accused 2 and 3 were raping the complainant, they would, on seeing him, threaten him and order him to rape the complainant too. For these reasons, I am satisfied that the version of accused 1 is false beyond reasonable doubt. To the extent that it is in conflict with the evidence of the complainant and French, I reject it.


[31] Accused 2’s version suffers from the same inherent defect. It is improbable in the extreme that the complainant would, as it were, trade sex for drugs in the early hours of the morning on the side of a sports field in the presence of French who is her fiance’s brother: she must have been acutely aware that he could have woken at any moment. Accused 2’s version suffers from other problems too. It was never put to the complainant that she bought drugs from accused 2 on a regular basis, that she used the name Chrissie in her dealings with him and that she knew him by the nick name of Puppet. When I asked Mr Bhurhwana, who appeared for accused 2, about this, he stated that the accused had not informed him of these alleged facts. It was similarly never put to French that he had been party to a conversation between accused 2 and the complainant about her obtaining drugs which had lasted about ten minutes before he passed out. Accused 2’s suggestion that the complainant must have been raped by others after she left him is fanciful. His attempt to explain why she would falsely accuse him of rape when she had had consensual sex with him and then been viciously assaulted and raped by three other men was nonsensical. Accused 2 admitted that the panga, which French identified as having been used in the attack on him, belonged to him. The only reasonable inference to draw from this admission and the fact that the panga was used against French is that accused 2 must have been one of French’s attackers. Accused 2, although he attempted to evoke a sense of confidence when he testified, was an extremely poor witness and his version does not, as I have shown, withstand scrutiny. I am satisfied that his version is false beyond reasonable doubt and I reject it.


[32] Accused 3’s version of the attempted robbery cannot account for the injury to French’s finger: that version was premised on there being no weapon used in the attempted robbery and certainly no panga. Accused 3 did not impress me as a witness. He was evasive and persisted in his version irrespective of the improbabilities that he was confronted with. He was, in addition, identified by both the complainant and French in the identification parade and by French before that when he was shown a number of photographs. The case against accused 3 on both counts is, as it is with the other two accused, overwhelming: it is based on unshaken, detailed, evidence that is consistent with the objective evidence and the probabilities. When accused 3’s alibi in respect of the rape charge is considered in the light of the totality of the evidence, as it must be, it stands to be rejected as false beyond reasonable doubt. To the extent that his evidence is in conflict with the evidence of the complainant and French, I reject.


[33] To sum up, I have found that the State has proved its case against the accused, on both counts, beyond reasonable doubt. I have found that the accused were all poor witnesses. Their versions, to the extent that they were inconsistent with the evidence adduced by the State, I have rejected as false beyond reasonable doubt. What emerges from the evidence I have accepted is that, in respect of both counts, the accused acted in the furtherance of a common purpose and that in respect of the rape count they, in the furtherance of that common purpose, each raped the complainant.


[34] In the result:

(a) accused 1, 2 and 3 are convicted of rape; and

(b) accused 1, 2 and 3 are convicted of attempted robbery with aggravating circumstances.




_________________

C. PLASKET

JUDGE OF THE HIGH COURT



APPEARANCES:

For the State: Ms H. Obermeyer of the office of the Director of Public Prosecutions, Grahamstown

For accused 1: Mr G. Joubert, instructed by Legal Aid South Africa

For accused 2: Mr S. Bhurhwana, instructed by Legal Aid South Africa

For accused 3: Mr M. Xozwa, instructed by Legal Aid South Africa