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[2011] ZAECGHC 77
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Hendricks v S (CA&R75/2011) [2011] ZAECGHC 77 (8 December 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
CASE NO: CA&R75/2011
DATE HEARD: 7 December 2011
DATE DELIVERED: 8 December 2011
In the matter between
ANDRIES HENDRICKS …................................................................................Appellant
and
THE STATE …..............................................................................................Respondent
APPEAL JUDGMENT
PICKERING J:
The appellant appeared in the Regional court, Humansdorp, charged with three counts. On count 1 he was charged with rape in that on 26 May 2008 and at or near Vaaldam, Humansdorp he performed an act of sexual penetration upon the 16 year old complainant by inserting his finger into her private parts. On count 2 he was charged with attempted rape in that on the same date and place he attempted to insert his penis into the complainant’s vagina. On count 3 he was charged with having performed an act of sexual penetration upon the same complainant in that he inserted his penis into her anus.
Appellant pleaded not guilty to all the charges against him, his defence as disclosed in his plea explanation being that he had not touched the complainant at all and that the allegations against him were entirely false. Despite his plea of not guilty he was, however, convicted on count 1 of having raped complainant by inserting his penis into her vagina, this conviction ensuing, despite appellant not having been charged with such an offence. On count 2 he was, surprisingly, in the light of his conviction on count 1, convicted of attempted rape as charged. On count 3 he was acquitted. Counts 1 and 2 were taken together for purposes of sentence and appellant was sentenced to undergo 10 years imprisonment.
An application for leave to appeal was dismissed by the regional magistrate. The appellant was granted the requisite leave to appeal against both conviction and sentence on petition to the Judge President of this Division. It is, unfortunately, necessary to pass adverse comment concerning the manner in which the regional magistrate handled the application for leave to appeal. At the hearing of that application there was also an application for condonation of the late filing of the application for leave to appeal. The regional magistrate heard argument as to condonation, and, having done so, granted condonation. Without hearing any argument on the argument for leave to appeal itself, however, she proceeded immediately to deal with that application in her judgment. The following exchange then occurred:
“Ms. Coertzen: Your Worship I do not want to interrupt you, are you going to expect me to address you on the application for leave to appeal? I was waiting for (interrupted)
Court: No, no, everything is on the papers, it is fine.
Ms. Coertzen: As the court pleases.
Court: No, nothing. Everything is self-explanatory on the papers.”
The regional magistrate then dismissed the application for leave to appeal.
In acting as she did, the regional magistrate committed a serious irregularity. If she had intended to grant the application then it was obviously in order for her to have dispensed with oral argument from appellant’s counsel. However, in circumstances where she was clearly of the view that there was no merit in the application, she was obliged to afford appellant’s counsel an opportunity to address her. Had she done so she may well have been persuaded that there was indeed merit in the application.
The complainant, a 16 year old schoolgirl, testified that she knew appellant well. On the day in question she borrowed a dvd remote control from appellant in order to change channels on her television set. A short while thereafter appellant arrived at her house. He entered the house and told her that he loved her. When she tried to get him out of the house he locked the door and took the key.
He then threw her onto the bed and kissed her. He pulled the leg of her panties aside and inserted his fingers into her vagina. Thereafter he undressed himself and attempted to have sexual intercourse with her vaginally. She was struggling with him and he did not succeed. He then opened her legs wider and penetrated her anus with his penis. She started to cry and stopped and he withdrew his penis. She grabbed her cell phone and tried to call her mother but appellant prevented her from doing so. He then left the house. Later her sister and mother arrived. She was still crying. Her mother asked what was wrong. Complainant just said “Nopo”, appellant’s name. Her mother asked what he had done but, because she was crying too much she could not answer. Her mother then asked if he had raped her to which complainant nodded her head and said “yes”.
It is common cause that complainant was taken to hospital where she was medically examined at 19h30. According to the J88 report of that examination complainant had no physical injuries save that her labia and the frenulum of the clitoris were red. According to the report complainant’s vagina was “full of semen”. There was a white discharge. No examination of complainant’s anus was conducted. Strangely enough, despite what on the face of it appeared to be a critical contradiction between the report and complainant’s evidence that her vagina had only been penetrated by fingers the doctor who compiled the report was never called to testify. It was further common cause, however, that a swab which was taken from complainant’s vagina for purposes of DNA analysis revealed that no male DNA whatsoever was present.
According to complainant her anus was painful the following day and she was then taken by her mother to another doctor for examination. Whatever the outcome of that examination may have been, no report thereof was placed before the Court.
During the course of complainant’s evidence she was closely questioned by both the prosecutor and the defence counsel as to the manner in which she had been raped. In this regard complainant stated, under questioning by the prosecutor, inter alia,:
“A He wanted to put his penis inside in front of me but he struggled...and then he put it in from behind.
Q Put what in?
A His penis.
Q If you say from behind what do you mean?
A He opened up my legs wider and he put it in, he inserted it on the back.
Q You said in your anus.
A Yes, in my anus.
Q So he penetrated your anus with his penis?
A That is correct.”
Under cross-examination the following exchange occurred:
“Q U vagina was geondersoek, een vinger toegelaat, dan was daar ‘n snaakse ding, ‘full of semen’ was u vagina ‘n man se saad. Het u met iemand seks gehad in u vagina?
A No.”
Complainant’s mother, actually her guardian, one Letitia Tanda, confirmed the report made to her by complainant.
The investigating officer, Inspector Bessinger, confirmed that he had taken a warning statement from the appellant after the latter’s arrest. In the course of this statement appellant stated that complainant had in fact unzipped his trousers and had taken out his penis whereafter he had inserted his penis in her vagina. Whilst he was in the process of having sexual intercourse with her with her consent he realised that what he was doing was wrong and he withdrew his penis and then left.
The appellant testified in his defence.
Although he had initially indicated in his plea explanation that he had not touched the complainant at all and that the charges had been fabricated by complainant and her mother he testified that in fact not only had he and complainant kissed but that the complainant had unzipped his trousers, taken out his penis and guided it between her legs whereafter she herself had used her hand to pull her panty to one side. He in fact did not insert it in her vagina because he then realised that this was wrong and moved away from the complainant. Although he initially testified that he had kissed complainant on the forehead he later testified that he in fact had kissed her on the mouth and that she had returned this kiss. He then said that his evidence that he had kissed her on the mouth was in fact a mistake on his part. With regard to the statement made by him to Bessinger he denied having told him that he had actually had sexual intercourse with the complainant. He had not read the statement containing this untrue averment. He had nevertheless signed it because, so he said “my aandag was nie much by hierdie ding gewees want ek wou dit net oor en klaar kry” and he was suffering pains and wanted bail. He could not explain why Bessinger’s evidence that the statement had been read back to him had not been disputed under cross-examination.
The regional magistrate was fully alive to the fact that the complainant was a single witness as to the incident. Save in respect of one aspect of her evidence to which I will return hereunder, she found that the complainant was a satisfactory and credible witness. She found, on the other hand, that appellant was an unsatisfactory and lying witness who had contradicted the explanations tendered by him not only in his plea explanation but also in the warning statement made by him to Inspector Bessinger.
In my view the regional magistrate’s conclusions as to the credibility of the respective witnesses cannot be faulted. It is entirely clear from a reading of appellant’s evidence that he was not a credible witness. Having correctly accepted the evidence of the complainant the regional magistrate then proceeded to reason as follows:
“Upon the totality of the evidence it is the complainant’s lack of experience in matters of this nature that she maintained her version that she was raped anally and not vaginally despite the evidence of the doctor. She is clearly inexperienced. Having accepted the State’s version as to the occurrence of events, the Court must determined whether an inference can be drawn from the facts that the accused had sexual intercourse with the complainant, without her consent. The Court takes the following factors into consideration. Firstly, the J88, the complainant where the accused had placed his finger in her vagina and the fact that the J88 indicated that there was semen in the vagina and the complainant’s reaction after the incident. The only inference that the Court can draw from these facts is that it was the accused person that had sexual intercourse with the complainant, vaginally, without her consent.”
There are, in my view, a number of problems with the above reasoning. Firstly, the complainant’s evidence that she was not raped vaginally but anally was entirely clear. As set out above she was pertinently questioned on this aspect and her answers were entirely consistent to the effect that she had not been raped vaginally. In my view the regional magistrate erred in concluding that the complainant was inexperienced and must have made a mistake. This proposition was never put to her at all either by the State or by the defence. Although the complainant was only sixteen years old at the time it is, in my view, entirely improbable that she could have been mistaken as to which part of her body was penetrated by the appellant.
The regional magistrate’s conclusion is based entirely on the statement on the J88 that complainant’s vagina was “full of semen”. The doctor who examined the complainant and compiled that report was, however, not called to testify as to this conclusion. If indeed the complainant’s vagina was full of semen then the DNA finding to the effect that no male DNA whatsoever was found on the swab taken from complainant’s vagina is inexplicable. In this regard the regional magistrate stated that “clearly, the DNA results were negative.”
The State was required to prove its case against the appellant beyond reasonable doubt. In the light of complainant’s clear evidence as well as the DNA results, the regional magistrate erred, in my view, in finding without anything more and in the absence of medical evidence that the substance found by the doctor in the complainant’s vagina was indeed semen.
In convicting the appellant of having raped the complainant vaginally on count 1 the regional magistrate also overlooked the fact that the appellant was not charged therewith. He was charged with having performed a sexual act upon the complainant in that he inserted a finger into the complainant’s vagina. Furthermore, in the light of the conviction on count 1 it is inexplicable as to the basis upon which the appellant was then convicted of attempted rape on count 2. All that the regional magistrate says in that regard is the following:
“With respect to Count 1, the Court upon the totality of the evidence is satisfied that the State has proved a case beyond a reasonable doubt, with respect to Count 1, Count 2.”
It appears that in convicting the appellant upon count 2 the regional magistrate must have done so upon an acceptance of complainant’s evidence that appellant attempted to rape her vaginally but was unable to do so. This evidence, of course, flies in the face of the conviction on count 1. Complainant’s evidence establishes beyond reasonable doubt that the accused did in fact rape her anally and the regional magistrate erred in acquitting the appellant on this count.
In my view therefore the conviction of the appellant on count 1 must be set aside and substituted by a conviction of rape as charged by the insertion of a finger into the complainant’s vagina. The conviction on count 2 is in order.
I turn then to consider the question of sentence.
The regional magistrate, taking both counts as one, sentenced appellant to 10 years imprisonment. That sentence followed her finding that no substantial and compelling circumstances were present justifying a lesser sentence than the 10 years imprisonment prescribed by the Legislature in respect of count 1.
In view of the fact that the conviction of appellant has now been altered to a conviction as charged on count 1 we are at large to consider the question of sentence afresh. In terms of Act 105 of 1997 we are obliged to impose a sentence of 10 years imprisonment unless we are satisfied of the existence of substantial and compelling circumstances justifying the imposition of a lesser sentence.
In considering this issue I have had regard to the well known authorities including S v Malgas 2001 (1) SACR 469 (SCA). Nothing that Mr. Geldenhuys has urged upon us has persuaded me of the existence of substantial and compelling circumstances.
Appellant is 39 years of age. He is divorced with 6 children. He is employed by Komga Municipality earning R2500 per month. He has a number of previous convictions, for assault common; assault with intent to do grievous bodily harm; malicious injury to property and crimen injuria. Clearly he has very little respect for the physical integrity of other persons. His actions in this case were a gross violation of the complainant’s physical integrity. As was found by the regional magistrate complainant has been traumatised by this incident. She trusted appellant. He betrayed that trust in the worst possible way.
In my view the minimum sentence of 10 years imprisonment on count 1 is entirely appropriate.
The attempted rape of complainant on count 2 was also very serious and must have been a frightening and humiliating experience for complainant. I am of the view that a sentence of 5 years imprisonment would be appropriate.
Accordingly the following order is made:
The conviction on count 1 is set aside and substituted by a conviction of rape as charged.
The conviction on count 2 is confirmed.
The sentences imposed upon appellant are set aside and substituted by the following sentences, ante-dated to 4 June 2010:
On count 1 the accused is sentenced to undergo 10 years imprisonment.
On count 2 the accused is sentenced to undergo 5 years imprisonment.
The sentenced imposed on count 2 will run concurrently with that imposed on count 1.
___________________
J.D. PICKERING
JUDGE OF THE HIGH COURT
I agree,
______________________
E. REVELAS
JUDGE OF THE HIGH COURT
Appearing on behalf of Appellant: Adv. Geldenhuys
Instructed by: Legal Aid Centre
Appearing on behalf of Respondent: Adv. Hendricks
Instructed by: The Director of Public Prosecutions