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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION: GRAHAMSTOWN)

CASE NO.: CA & R 306/2014

In the matter between:

LUVUYO KOTSWANA...........................................................................................APPELLANT

and

THE STATE.............................................................................................................RESPONDENT

JUDGMENT

BLOEM, AJ

[1] The appellant was charged in the regional court in Port Elizabeth with kidnapping, assault with intent to do grievous bodily harm and two counts of rape.  In the first charge the appellant was alleged to have unlawfully and intentionally deprived the complainant of her freedom of movement by grabbing her and forcing her to go with him to his home.  In the second charge the appellant was alleged to have stabbed and scratched the complainant referred to in the first charge with an unknown sharp object and slapped her.  In the third and fourth charges the appellant was alleged to have had vaginal sexual intercourse on two occasions with the above complainant without her consent.

[2] He pleaded not guilty to the above charges. After all the evidence was adduced he was convicted of kidnapping, assault and one count of rape.  The magistrate treated the three counts as one for purposes of sentence and sentenced the appellant to eight years’ imprisonment.  He was also declared unfit to possess a firearm.  With the leave of the court a quo the appellant now appeals against the convictions only.

[3] The evidence tendered by the prosecution included that of the complainant and two other persons.  The appellant testified in his own defence.  The complainant testified that on 27 April 2013 she was at a traditional ceremony where she had consumed one cider and three tots of gin.  The evidence does not reveal over what period she consumed that alcohol.   Her friend was sent to a tavern.  She accompanied her friend to a tavern where they arrived at about 22h00.  Upon their arrival at the tavern, the complainant’s friend went to the counter.  The complainant saw the appellant and went to the table where he was sitting.  The complainant knew the appellant as they attended the same school when they were younger.  The appellant shared the table with other people who the complainant did not know.  After a while the complainant wanted to use the bathroom but she did not know where it was.  She went outside the tavern.  While she was outside the appellant emerged and said to her that they should leave.  When she enquired what he meant he said that they should go to his parental house.  She told him that she did not want to leave with him.  He smacked her across the face and held her hand and walked with her.  She described his conduct as dragging her towards the direction of his house.  While she was being dragged she “was trying to cry though there were no tears”.  She thought that he would leave her.

[4] She managed to break loose and run to a house where her sister lived with her boyfriend and his family.  Unfortunately for her she could not open the gate.  The appellant managed to catch up with her.  He became violent, pulled her away from the gate, picked up a rock and told her to walk towards his house.  She obliged because she was scared, she testified.  The appellant walked behind the complainant.  The appellant was in the presence of his friend who did nothing to the complainant.

[5] Upon arrival at his house the appellant was looking for the key to gain entry.  He requested his friend to keep an eye over the complainant.  The appellant found the key, opened the house and he and the complainant entered.  As they were entering she begged the appellant’s friend to speak to him to let her go.  When they were inside she also begged the appellant to let her go.  He locked them in.  They went into a bedroom.  He locked her inside the bedroom and went to his  friend who was outside.  He returned to the bedroom where he told the complainant to undress.  She begged him to let her go.  He would have none of that.  She undressed after he pushed her in her face when she was reluctant to undress.  The appellant had an apparently sharp object in his hand which the complainant did not think was a knife.  He used that object to stab her once on her left thigh.  She sustained a laceration which was bleeding.  The appellant then also undressed.  He then had vaginal sexual intercourse with her on a bed in the bedroom whereafter he went out, leaving her inside the bedroom.  The complainant checked whether or not the bedroom door was locked because she wanted to escape. While she was doing that the appellant entered.  He asked her what she was doing.  Before she could respond he hit her.  He instructed her in a violent manner to sleep with him again.  He then again had sexual intercourse with her. She cried loudly but the music inside the house was also playing loudly. The appellant went outside to his friend.  The complainant locked the bedroom door from the inside and escaped through a window.  She was naked.  She ran to the house where she previously had difficulty opening the gate.  When she arrived there she called her sister and jumped over the fence.  Her sister appeared. She gave her gown to the complainant to cover herself.  The complainant told her sister what had happened to her.  She spent the rest of the night with her sister.  The following morning she and her sister went to the police station to lay charges against the appellant.

[6] The next witness was the complainant’s sister.  She testified that late during the evening of 27 April 2013 her sister called her.  She also heard the noice of a stone which was thrown on top of the roof of her boyfriend’s house.  She put on her gown and went outside.  She saw her sister who was naked. She gave her gown to the complainant to cover herself.  They went into the house where the complainant told her sister what had happened to her.

[7] The next prosecution witness was the complainant’s friend who was sent to the tavern.    She testified that there was a traditional ceremony at her house.  She was sent to the tavern to purchase liquor. When she and the complainant arrived at the tavern she went straight to the counter while the complainant went to sit inside the tavern.  The complainant approached her and informed her that she would be going to the bathroom.  The complainant went outside and did not return.

[8] By agreement between the parties the report of Dr Mhlaba, who examined the complainant on 30 April 2013, was admitted as evidence.  In it he noted a superficial scratch of about 10cm on the complainant’s left thigh.  Dr Mhlaba concluded that there were “no signs of forced vaginal penetration as evidenced by genital injuries but that does not exclude rape.”  The prosecution then closed its case.

[9] The appellant commenced his evidence by making reference to an affidavit of Lieutenant Magwa of the South African Police Service who interviewed the appellant on 29 April 2013 regarding the alleged rape.  Lieutenant Magwa noted in his affidavit that the appellant had stab wounds on his head and left shoulder and complained of pain on his left leg. When he enquired he was informed by the appellant “that he was assaulted by the community after the alleged rape”.  That affidavit was admitted as evidence, by agreement.

[10] The appellant testified that he was consuming beer at the tavern when he saw the complainant and her friend entering.  Since he knew the complainant he called her.  She heeded that call and her friend walked towards the counter.  When the complainant was at his table the appellant enquired how she was doing and whether she did not want to sit down to share his beer.  She declined to sit or to have a beer because, so she told him, they were sent to the tavern and would return to the house where the traditional ceremony was being held.  He suggested to her to return because he was looking for a drinking partner.  She agreed.  When the complainant and her friend left the tavern, he also left with them.  When they were outside he told the complainant that he was alone at home and suggested that she accompany him there.  As they were walking the complainant asked him where his girlfriend was.  Upon their arrival at his parental home he took a key from his pocket and opened the front door of the house.  They entered and he locked the door behind him.  He took the complainant to his bedroom where they had sexual intercourse on a bed.  They then had another conversation when the complainant enquired as to what would happen if his girlfriend arrived or found out about their fling.  During that conversation he fell asleep.  When he woke up the following morning there was no sign of the complainant or her clothing. That concluded the evidence.

[11] Mr Renaud, the appellant’s counsel submitted that there was a duplication of convictions on the charges of kidnapping and rape.  The starting point would be the definitions of those two offences in regard to which a possible duplication might have taken place.  (S v Whitehead and Others 2008 (1) SACR 431 (SCA) at f-g).  Kidnapping is defined as the unlawful and intentional deprivation of liberty or of custody of a person.  To secure a conviction on a charge of kidnapping the state must show beyond reasonable doubt that the accused person unlawfully (without consent or lawful justification) and intentionally deprived the complainant of his or her liberty or caused him or her to be placed in custody.  Rape in terms of the common law was defined as the unlawful and intentional sexual intercourse with a woman without her consent.  Rape is now a statutory offence.  It is committed when a person unlawfully and intentionally commits an act of sexual penetration with a complainant without the latter’s consent. (Section 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007).

[12] Various tests over the years have been developed and applied to determine whether or not there is a duplication of convictions.  In the “evidence test” the enquiry is whether the evidence necessary to establish the commission of one offence involves the commission of another offence.  In terms of the “intention test”, if a person commits sexual acts, each one of which could be a separate offence on its own, but they constituted a continuous transaction that is carried out with a single intent, the person’s conduct would constitute only a single offence.  In S v Whitehead and Others (supra) it was held at par 35 of the majority judgment that there is no infallible formula to determine whether or not, in a particular case, there has been a duplication of convictions.  The above tests, it was held, are not rules of law, nor are they exhaustive.  They are simply useful practical guides and in the ultimate instance, if these tests fail to provide a satisfactory answer, the matter is correctly left to the common sense, wisdom, experience and sense of fairness of the court.  Wallis JA shared that sentiment in S v BM 2014 (2) SACR 23 (SCA) when he said at 26c that 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.

[13] In this case and on the acceptance of the evidence adduced by the prosecution (an aspect to which I shall revert later), the appellant dragged or pulled the complainant to his house.  It was against her consent.  They walked some distance between the tavern and his house.  He would not let her go.  She could, for instance, not go to her sister.  She was obviously deprived of her liberty.  Furthermore the appellant physically moved the complainant from the tavern to his house.  In my view the above facts show that the appellant unlawfully and intentionally deprived the complainant of her liberty.  The offence of kidnapping was completed even before they entered the appellant’s house.  He could not have been convicted of rape at that stage because there was no penetration.

[14] It was only after they had entered the house that the appellant committed the act of sexual penetration with the complainant without her consent.  He accordingly committed rape in terms of the Criminal Law (Sexual Offences and Related Matters) Amendment Act.  These are two separate offences committed at different times.  As pointed out above, if the appellant was interrupted with his plan to rape the complainant shortly before or after they had entered the house, he nevertheless would have been convicted of kidnapping because that offence had been completed.  But, as the common cause facts show, he did not stop there.  He committed an act of sexual penetration with her without consent, according to the complainant (and with consent, according to him).  In my view common sense dictates that, on the above facts, the appellant committed two separate offences, first kidnapping and thereafter rape.  In the circumstances, the submission that there was an improper duplication of charges cannot be upheld.

[15] Mr Renaud submitted that, even if I were to find that there was no duplication of charges, the state in any event did not prove that the appellant unlawfully deprived the complainant of her liberty.  He submitted that, because of the absence of medical evidence to show that the complainant was dragged or pulled by the appellant and because she failed to call for help outside the tavern, when she had ample time to do so, the only reasonable conclusion that can be drawn is that the complainant willingly accompanied the appellant to his house.

[16] To deal with the above submission it would be apposite to first deal with the probabilities of the two versions in respect of all the offences.  It is common cause that the complainant’s friend was sent to the tavern and the complainant accompanied her.  The appellant testified that that is what the complainant had told him.  He invited her to sit and have a drink with him.  It is furthermore common cause that she declined the invitation because she told him that “we have been sent” and must obviously return to the person who sent them to the tavern.  The complainant’s evidence was that after she had declined the appellant’s offer to her, she needed to use the bathroom.  She went outside.  The appellant must have followed her because both of them testified that they met outside the tavern. 

[17] The appellant’s evidence was that, once outside, he told the complainant that he had a house to himself and invited her to go with him to the house.  Without any protest she accompanied him to the house. He knew that the complainant and her friend wanted to return to the house where the traditional ceremony was held.  Nothing happened for her to have changed her mind between the time that she declined his initial invitation when he offered her a beer and the time that she was outside when she, according to him, agreed or certainly did not resist accompanying him other that advising her of the available house.  It is furthermore pointed out that, when the complainant was cross-examined, the appellant’s attorney put to her that she was the one who suggested that they sleep together.  That turned out not to be the appellant’s evidence.  His evidence was that he suggested to her to accompany him to his house.  The appellant’s version regarding the complainant’s conduct outside the tavern is, in my view, so improbable that it must be rejected.

[18] When they were still outside the tavern the complainant told the appellant that she did not want to accompany him.  He grabbed her.  She thought he was joking and that he would, at some stage, leave her.  When she realised that he was serious she ran away to the house in which her sister was, but he caught up with her because she failed to open the gate.   He became violent.  He swore at her and instructed her to go to his house.  She relented.  The appellant’s version is that, after he had informed the complainant of the available house, she willingly accompanied him to it.

[19] What happened inside that bedroom is, with respect, immaterial for present purposes save to point out that it is common cause that, after they had entered the house, the appellant locked the door behind him.  The complainant’s version that she jumped through the window to run away from the appellant in a naked state could not be disputed by him.  It happened while he was outside the house after he had sexual intercourse with her, on the complainant’s version and while he was asleep, on his version.  I must therefore accept that the complainant, in the middle of the night, jumped through a window and presented herself to her elder sister in a naked state.  The suggestion that the complainant felt guilty after the sexual intercourse and that she had cheated on her boyfriend and therefore cried wolf must be rejected.  I find it highly improbable that a young lady would risk her own safety and humiliate herself by walking at that time of the evening in that state, simply because she felt guilty.  If indeed she felt guilty because she had cheated on her boyfriend, one would have expected her to dress herself and leave the  appellant’s house hoping that no one would see her, or if she was terrified of the appellant, grab her clothes, jump through the window and get dressed when it was safe to do so.  The complainant’s above conduct is, in any view, consistent with a person who wanted to get away from a traumatic experience and a dangerous situation.  How she presented herself to the public, particularly her sister, was the least of her concerns.  She wanted to get away from the appellant who had sexual intercourse with her without her consent.  In the circumstances, I find that the appellant was correctly convicted of rape.

[20] The appellant was charged with two counts of rape.  The complainant’s evidence, that the appellant sexually penetrated her twice, was at no stage challenged.  It must be stated that the appellant’s evidence was that he had sexual intercourse with the complainant once.  Despite the rejection of the appellant’s version as a fabrication and despite the fact that he accepted the complainant’s version as to what happened inside the house, the magistrate found that he was “not convinced that there was a second rape because the complainant said after this rape the accused went out to his friend and she was then able to lock him out and jumped through the window”.  He was, with respect, wrong in that regard.  The complainant’s version, which the magistrate accepted, was that the appellant raped her.  He then went outside while the complainant was checking whether or not the door was locked.  The appellant returned.  He assaulted her.  He then raped her a second time.   He once again went outside.  That was the time when the complainant escaped. The appellant is fortunate that he was wrongly acquitted on the second count of rape.  Unfortunately there is, as the law stands, nothing that the state can do to remedy the situation.

[21] Regarding the charge of assault with intent to do grievous bodily harm, the appellant testified that when she was undressed inside the bedroom and before the first rape, the appellant stabbed her with an object that she did not see. It caused a scratch on her left thigh.  Her version of a scratch on her thigh is corroborated by the medical report compiled by Dr Mhlaba wherein he noted a superficial scratch mark of approximately 10cm on her thigh.  The appellant denied that he stabbed the complainant and suggested that she might have sustained that injury when she jumped over the fence to get to her sister, a suggestion which was denied by the complainant.  Since the complainant’s direct evidence as to how she sustained the injuries on her left thigh was met by a bare denial on the part of the appellant and since I have already found that the magistrate correctly rejected his version of what happened before they entered the house and what happened inside the house, I am of the view that the state proved that the appellant assaulted the complainant.  He was accordingly correctly convicted of assault.

[21] In the result the appeal is dismissed.

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G BLOEM

ACTING JUDGE OF THE HIGH COURT

I agree. It is so ordered.

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F DAWOOD

JUDGE OF THE HIGH COURT

For the Appellant     Adv C Renaud, instructed by the Legal Aid, South Africa

For the State             Adv D Els

Date of hearing        4 February 2015

Date of delivery        17 February 2015

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