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Welkom v S (CA265/2016) [2017] ZAECGHC 52 (9 May 2017)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                                CASE NO: CA265/2016

                                                                                                DATE HEARD: 02/05/2017

                                                                                                DATE DELIVERED: 09/05/2017

In the matter between

ELROY WELKOM                                                                                            APPELLANT

and

THE STATE                                                                                                   RESPONDENT


JUDGMENT

ROBERSON J:-

[1] The appellant stood trial in the Grahamstown High Court charged with the offences of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and murder.  He was convicted on each count and sentenced to life imprisonment on each count.  This appeal lies against the sentences only, with the leave of the trial court (Beshe J). 

[2] The victim in both counts was one Ms BD, a 41 year old woman (the deceased).  It was alleged in the indictment that the appellant raped and murdered her on 4 April 2015 near Newlands Farm in the district of Kirkwood.  It was indicated in the indictment that in the event of a conviction on each count, the State would request that the accused be sentenced to life imprisonment as provided for in s 51 (1) of the Criminal Law Amendment Act 105 of 1997 read with part I of Schedule 2.  In respect of the rape count, the specific ground relied on by the State as contained in part I of Schedule 2 was that it was rape “involving the infliction of grievous bodily harm”.  In respect of the murder count, the specific ground was that the death of the deceased was caused by the appellant “in committing or attempting to commit or after having committed or attempted to commit rape”, similarly provided for in part I of Schedule 2.

[3] The appellant pleaded not guilty to rape and guilty to murder.  He submitted a written statement in terms of s 112 (2) and s 115 of the Criminal Procedure Act 51 of 1977.  In the statement he stated that on the night of 4 April 2015 he was intoxicated and, after an acquaintance refused his request to sleep over at his residence, he proceeded on his way home.  On his way he met the deceased.  He stabbed her more than once and thereafter he noticed that she was dead.  He then had intercourse with the deceased per vaginam.  He tried to resuscitate the deceased, even though he knew that she was dead.  He left her at the scene and went home.  He admitted that he knew what was happening around him, although he was heavily intoxicated at the time and had also smoked drugs, namely dagga mixed with a powder.  He accordingly denied raping the deceased but admitted killing her.

[4] The State did not accept the factual basis of the plea statement and proceeded to lead the evidence of three witnesses. 

[5] Sergeant Godfrey Maarman of the South African Police Service attended at the crime scene on 5 April 2015 and found the body of the deceased next to a fence on the grassy verge of the R335 road which runs between Kirkwood and Addo.  With reference to photographs, Maarman described the position and the condition of the deceased.  She was lying on her back and a white vest which she was wearing was pulled up to her neck leaving her upper body naked and exposed.  A jacket was next to her with her right arm partially in the sleeve of the jacket.  She was not wearing any clothing on her lower body but a pair of jeans lay across her right leg.  Two pieces of a pair of panties were found, one near the feet of the deceased and the other on the other side of the fence from where the deceased lay.  A pair of tights and two caps were also found on the other side of the fence from where she lay.

[6] Captain Stephanus Arendse conducted  a pointing out by the appellant after his arrest.  The appellant directed Arendse to a spot on the R335 road and told Arendse that it was the place where he had met the deceased.  He told Arendse that he and the deceased were drunk and had consensual sexual intercourse.  While they were walking to their respective homes he took out his knife and stabbed the deceased without any reason.  He told Arendse that he did not know what came over him because the deceased had done nothing to him, and he was very sorry for what he had done.

[7] Dr Jan de Beer conducted the post mortem examination of the deceased.  The deceased had suffered a 1 cm wound on the left side of the neck which was not a penetrating wound nor did it injure blood vessels; a 1 cm wound on the left chest posterior, the tract of which entered the left chest cavity and ended in the left lung; a 2 cm wound on the central back posterior, the tract of which entered the right chest cavity and ended in the right lung; a wound in each lung; and a small contusion on the top of the head which was observed on dissection and which was caused by blunt force.  Both lungs were partially collapsed.  There was 500 ml of blood in the right and left chest cavities which was caused by bleeding from the wounds to the lungs and bleeding from arteries.  The lungs and some other organs were pale on dissection as a result of loss of blood.  There were no injuries to the external genitalia.  The cause of death was recorded as “stab wounds chest”. 

[8] Dr de Beer was of the opinion that the deceased would have remained alive for between 5 to 30 minutes after the second wound to the lung was inflicted.  She would have been able to breathe after the injuries were inflicted but her body would gradually have been deprived of oxygen because of the incapacity of the lungs.  A person injured in the manner in which the deceased was injured usually becomes anxious and restless and gasps in order to keep breathing, but loses consciousness after about 3 to 5 minutes.  With regard to the lack of injuries to the genitalia, Dr de Beer said that this fact did not exclude intercourse prior to or after death.

[9] The appellant did not testify.

[10] In her judgment, Beshe J found that the condition of the deceased as she was found and the pieces of clothing found in different places were consistent with a struggle and inconsistent with intercourse taking place when the deceased was already dead.  She further found that the only inference to be drawn from the proven facts was that the appellant “stabbed the deceased in order for her not to offer any resistance when he rapes her, or not to be able to identify him so as to report him to the police”.

[11] In her judgment on sentence the learned judge found that s 51 (1) of Act 105 of 1997 applied to both offences.  In respect of the rape charge, she said:

In my judgment on the merits I found that the accused stabbed the deceased with a view to prevent deceased from resisting the rape or to avoid detection.  In my view, however, whatever the motive, the infliction of grievous bodily harm by the accused was connected to the rape.  In my considered view the rape also falls to be dealt with in accordance with section 51 (1), namely attracts imprisonment for life.”

[12] It was accepted on behalf of the appellant that s 51 (1) of Act 105 of 1997 applied to the murder charge.  However it was submitted that the State had failed to prove beyond a reasonable doubt that the rape involved the infliction of grievous bodily harm, and that s 51 (2) of Act 105 of 1997 read with part III of Schedule 2 was the applicable sentencing provision.  Section 51 (2) read with part III of Schedule 2 provides, inter alia, for a minimum sentence of 10 years’ imprisonment for rape other than the categories of rape contained in part I of Schedule 2.

[13] The substance of the appellant’s argument was that it was not certain at what stage the appellant had stabbed the deceased.  It was accepted that if he had stabbed her prior to or during the rape, life imprisonment was the prescribed minimum sentence.  If however the appellant had formed the intention to kill the deceased after the rape, then the murder of the deceased was separate from the rape, and the rape consequently did not involve the infliction of grievous bodily harm.  Because of the uncertainty, so it was submitted, the appellant should have been given the benefit of the lesser sentencing provision.

[14] Reliance was placed on the judgment in S v Thole 2012 (2) SACR 306 (FB).  In that matter the appellant had pleaded guilty to rape and murder.  The factual basis of the guilty pleas was to the effect that after the appellant had raped the deceased, he then stabbed her twice.  The court concluded from the plea explanation that the appellant formed the intention to rape, concluded the rape, and thereafter formed the intention to murder the deceased.  The court had regard to the dictionary meaning of the word “involved”, namely “to include something as a necessary part of an activity, event or situation”.  Given that meaning, so the court reasoned, there was no room for finding that the stabbing that occurred after the rape was a necessary part thereof.  The applicable minimum sentence was therefore 10 years’ imprisonment, as provided for in s 51 (2) of Act 105 of 1997 read with part III of Schedule 2. 

[15] However, in S v Tuswa 2013 (2) SACR 269 (KZP) Stretch AJ (as she then was), with regard to the dictionary meaning of “involved” relied upon in Thole, said the following:

That quotation seems to be incomplete, as the Oxford English Dictionary repeats it but also includes the word ‘result’.  In other words, the quotation reads:

‘ …. include something as a necessary part or result of an activity….’”

[16] Counsel for the appellant also very properly referred to the judgment of Goosen J in this division in the matter of S v September [2014] ZAECGHC 38 (23 May 2014)In that matter the rape of the victim was followed by her murder.  Goosen J said the following at paragraphs [5] to [7]:

[5] [Schedule 2] also refers to the crime of rape involving the infliction of grievous bodily harm. It is not immediately apparent whether what is contemplated is the infliction of grievous bodily harm in the commission of the rape as a circumstance wholly distinct from that contemplated as an aggravating feature in relation to murder.

[6] The grievous bodily harm upon which the prosecution relies is the strangulation and death of the deceased.

[7] Whatever the ambit of the provisions may be, the effect, it seems to me, is to bring about a situation where in every instance in which the crime of rape is committed and the victim of the rape is murdered, either during or after the commission of the rape, an accused person convicted of both the rape and the murder faces life imprisonment on account of each of the offences.”

[17] In my view even if the deceased was stabbed by the appellant after he had raped her, the rape involved the infliction of grievous bodily harm.  As Beshe J found, the condition of the deceased and the pieces of clothing found scattered at the scene were consistent with a struggle.  Besides the fatal stab wounds, the deceased suffered an injury to her neck and a contusion on her head which was caused by blunt force.  The stabbing of the deceased, even if it occurred after the rape, was part of a continuous course of violent conduct on the part of the appellant which was linked to the rape and was a result of the rape.  In my view that link would not be broken even if the appellant had formed the intention to kill the deceased after he raped her.  In Thole the court alluded to the fact that in his plea statement, which was the only evidence of the commission of the crimes, the appellant had not given his reason for killing the deceased.  In the present matter Beshe J made specific findings with regard to the appellant’s reason for killing the deceased, either of which linked the murder to the rape.  Mr Engelbrecht, who appeared for the State, appropriately expressed the position in his heads of argument as follows:

A nexus, link or sufficient degree of connection between the harm and the rape is sufficient and is all that is required.  Harm inflicted after the rape is not excluded.”

[18] It is so that, as Mr Engelbrecht submitted, there may be instances where because of the particular facts there is an insufficient nexus between the rape and the infliction of grievous bodily harm.  However the facts in the present case establish such a nexus.  

[19] It follows that Beshe J was correct in finding that the provisions of s 51 (1) of Act 105 of 1997 applied to the rape charge.

[20] It remains to be considered whether there are grounds for interfering with the sentences.  It is trite that an appellate court will not interfere with a sentencing court’s discretion unless that court has committed a material misdirection or the sentence is markedly different from the sentence which the appellate court would have imposed. 

[21] The appellant was 35 years old when the offences were committed.  He left school after completing grade 5 and worked as a farm labourer.  He is unmarried and has no children.  He has previous convictions for culpable homicide, murder, and attempted rape.  He was convicted of these offences on 25 October 1999 and was sentenced to an effective 24 years’ imprisonment.  His criminal record reflected that on 26 September 2011 he was released on parole supervision until 25 April 2023 and that on 27 April 2012 he was released on special remission of sentence until 25 October 2022.  He therefore committed the offences in this matter while on parole.

[22] It was submitted on behalf of the appellant that his intoxication and the lack of planning of the offences amounted to substantial and compelling circumstances.  It was however conceded that there was no direct evidence of the effect which the alcohol had on the appellant’s judgment. 

[23] In her judgment on sentence the learned judge was of the view that the appellant’s personal circumstances, the fact that he pleaded guilty to murder and the probability that he was under the influence of alcohol when he committed the offences did not amount to substantial and compelling circumstances.  I am in respectful agreement with such a view.  These were two brutal offences committed against a defenceless woman.  As Beshe J remarked in her judgment, the deceased would have suffered before she died.  She was treated without any regard for her humanity and left at the side of the road like an object which no longer has any use.  These two offences and the appellant’s previous convictions demonstrate that he is a violent and dangerous person who should be removed from society.  A sentence of life imprisonment on each count was entirely appropriate.

[24] The appeal is dismissed.


_____________

J M ROBERSON

JUDGE OF THE HIGH COURT


BLOEM J:-


I agree


_________

G H BLOEM

JUDGE OF THE HIGH COURT


MALUSI J:-


I agree


________

T MALUSI

JUDGE OF THE HIGH COURT

 

Appearances:

 

For the Appellant: Adv H L McCallum, Grahamstown Justice Centre

For the Respondent: Adv J P J Engelbrecht, Director of Public Prosecutions, Grahamstown