IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)

								Case No: CA&R 179/18
In the matter between:

RONNIE PETERSON							       Appellant
and
THE STATE								   Respondent

JUDGMENT

TOKOTA J:

[1]	The appellant stood trial on a charge of rape in the regional court sitting at Port Elizabeth.  He pleaded not guilty to the charge and, in his outline of defence, admitted having had sexual intercourse with the complainant, twice, but contended that it had been consensual.  At the conclusion of the trial he was convicted and thereupon sentenced to undergo life imprisonment, the magistrate having applied the provisions of s 51 read with Part 1 of Schedule 2 to the Criminal Law Amendment Act 105 of 1997. The magistrate found that the victim had been raped three times (as charged). The appellant took advantage of the right to an automatic appeal, as provided for in s 309(a)(ii) of the CPA, to challenge both the conviction and sentence imposed on him.

[2]	The facts leading to the conviction, as presented by the State, were not seriously disputed and can be summarised as follows: In the morning of Monday, 25 May 2015, the complainant had alighted from a taxi and was walking to her place of work. She heard footsteps behind her and, suddenly, the appellant was in front of her. He grabbed her, threw her down and threatened to kill her if she became noisy. He dragged her to the bushes where he had sexual intercourse with her three times without her consent. 

[3]	After the appellant had sexual intercourse with the complainant he let go of her. She proceeded to her work place. On her way, as she was not familiar with the surrounding place and having gotten out of the bushes, had difficulty finding her way.  She saw a gardener in the neighbourhood and asked to be shown the way to her work place. At that stage the appellant was about 25 metres away from her. She did not report the incident to the gardener as the appellant was still in the vicinity and within view, scared that if she were to do so he would carry his threats and injure her.

[4]	The complainant arrived at her work place where she found Mr Msutwana, her employer, present. She was crying on her arrival at work. She reported that she had been raped by an unknown person. Mr Msutwana testified that she looked traumatized. She wanted to wash as she was stinking, but Mr Msutwana advised her not to do so. He took her to the police station to report the incident. She was later sent to hospital where she was examined by a doctor, at about 17h30. The doctor confirmed the possibility of sexual assault. The appellant consented to the medical report being handed up from the Bar so as to form part of the record. 

[5]	The appellant was subsequently arrested and the complainant identified him as the culprit in photos she was shown by the police. As pointed out earlier, the State’s evidence was largely common cause, save for the contention that the appellant had consented to the sexual intercourse. The evidence of the complainant and that of Mr Msutwana was never challenged in any material respects.
[6]	The appellant claimed that he had known the complainant approximately six months before the incident and claimed to have had a relationship with her. He testified that on the day of the incident the complainant suggested that they go to the bushes and have sex. It was put to the complainant that the reason why the complainant was making false accusations against the appellant was because he refused to be involved in her relationship with another boyfriend of the complainant. When the appellant testified he advanced a different reason for the false accusations.

[7]	The magistrate rejected the version of the appellant in so far as it conflicted with that of the complainant. I have no reason to fault the magistrate in this regard. The appellant gave conflicting and confusing evidence as to how and when he met the complainant for the first time. Furthermore, it was not possible to have met her in the area where she worked because six months before the day of the incident she was working in Uitenhage and at Motherwell. When he testified he stated that the complainant suggested that they go and have sex in the bushes. Again when he gave evidence he stated the reason for false charges was that she was not honest with him by telling him that she had another boyfriend. This is not only in conflict with what was put to the complainant but is highly improbable.

[8]	One of the grounds of appeal is that the magistrate “erred in finding that the complainant gave satisfactory evidence in all material respects and that she passed the test for the conviction of the appellant based on the evidence of a single witness.”  This submission overlooks the fact that the evidence of the complainant was never challenged in cross-examination. It has been said that: 

“It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved. Once a witness's evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume, in the absence of notice to the contrary, that the witness's testimony is accepted as correct”.

[9]	It is trite that for the court to rely on the evidence of a single witness it must be clear and satisfactory in every material respect. However, in S v Sauls and Others the court held:

“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of   H Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in 1932 [R v Mokoena 1932 OPD 79 at 80] may be a guide to a right decision but it does not mean that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded.”

[10]	There is no magic about the application of a cautionary rule relating to a single witness. It is, of course, permissible in terms of s 208 of the CPA for a court to convict a person on the single evidence of a competent witness. The test formulated by De Villiers JP in Mokoena was that the evidence of such a single witness must be found to be ‘clear and satisfactory in every material respect’. One should bear in mind that Mokoena’s case (supra) has to be seen in the context that it concerned the situation of a single witness claiming to have identified the accused with the aid of light provided by a pocket torch as he ran past in the dark. In those circumstances logic dictates that the witness may not have had sufficient opportunity of observation or that his observation may have been mistaken.

[11]	The ultimate purpose of the court's inquiry is whether the guilt of the accused has been proven beyond a reasonable doubt. Therefore, although there is always a need for caution in such cases, the ultimate requirement is proof beyond reasonable doubt; and courts have to guard against the reasoning which tends to become stifled by formalism. In the words of Diemont JA, the exercise of caution “must not be allowed to displace the exercise of common sense.”

[12]	The complainant further testified that she was struck on her upper left thigh by means of a stick twice. The medical report reveals that she sustained a bruise on her left thigh. As pointed out above Mr Msutwana confirmed that a report was made to him. Her evidence was therefore supported in some way by the medical evidence and that of his employer.

[13]	Furthermore, in cases involving sexual offences there will invariably always be the single evidence of the complainant. If the cautionary rule is applied in a straight jacketed manner the complainant would be unfairly disadvantaged and her inherent right to dignity and the right to have such dignity respected and protected would be unduly strained and limited. In such cases any piece of evidence which tends to support the complainant’s version should be treated as sufficient corroboration especially where the version of the accused is improbable

[14]	The Legislature has now passed legislation which accords with current views of the society. Section 60 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 provides: 

“Notwithstanding any other law, a court may not treat the evidence of a complainant in criminal proceedings involving the alleged commission of a sexual offence pending before that court, with caution, on account of the nature of the offence.” 

In light of this legislation there is no rational for treating the evidence of a single witness in rape cases differently from other cases.

[15]	It has been argued on behalf of the appellant that the complainant did not report the incident at her earliest available opportunity. What this amounts to is that there was a delay in reporting the incident. In my view there is not merit in this argument. First, the complainant explained that at the time she saw the gardener the appellant was 25 metres away from her and she was scared of him. Second, the gardener was a stranger to her. Third, s 59 of the Sexual Offences Act provides that in criminal proceedings involving the alleged commission of a sexual offence, the court may not draw any inference only from the length of any delay between the alleged commission of such offence and the reporting thereof. The report that was made to Mr Msutwana established consistency in the complainant's evidence and therefore supported her credibility.

[16]	It has further been argued that the complainant’s evidence was at odds with that of her employer in that she told him that she had been assaulted with a plank whereas in her testimony she said she was hit with a stick. In my view it is immaterial what instrument was used to assault the complainant. The appellant was not charged with assault. The fact of the matter is that the complainant was assaulted, which clearly had the effect of negating the existence of consent.

[17]	On the other hand, the appellant’s version was so improbable that the magistrate correctly rejected it. It is inconceivable that the complainant would ask for sex from a stranger and then go and report rape crying. No motive could be inferred from facts before court for this conduct. The uncontroverted evidence of the complainant was that she never saw the appellant before as she got employment in that area three weeks before the incident. The allegation by the appellant that she had seen her in that area six months before the incident was correctly rejected as false. 

[18]	In all the circumstances I am of the view that the State proved its case beyond reasonable doubt and that there is no reason to interfere with the magistrate’s findings.
[19]	I now come to the aspect of sentence. It cannot be disputed that rape is a very serious heinous crime, constituting as it does, a humiliating, degrading and brutal invasion of the privacy, the dignity of the person of the victim.  The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the Constitution and to any defensible civilisation. Women in this country are often vulnerable victims of this crime and are therefore entitled to the protection of these rights. It is the duty of courts to ensure that women can walk peacefully on the streets, to enjoy their freedom of movement to go and come from work in peace without the fear, the apprehension and the insecurity which constantly diminishes the quality and enjoyment of their lives. The appellant’s conduct was disgraceful and trampled on these rights.

[20]	The appellant kept the complainant in fear of her life having informed her that he was a murderer. There was a measure of violence and threats of violence. At no stage did he show the slightest remorse.

[21]	The Courts are under a duty to send a clear message that they are determined to protect the equality, dignity and freedom of all women, and should show no mercy to those who seek to invade those rights. In S v Bogaards it was said:

“Ordinarily, sentencing is within the discretion of the trial court. An appellate court's power to interfere with sentences imposed by courts below is circumscribed. It can only do so where there has been an irregularity that results in a failure of justice; the court below misdirected itself to such an extent that its decision on sentence is vitiated; or the sentence is so disproportionate or shocking that no reasonable court could have imposed it.”

[22]	Once the trial court has exercised its discretion on sentence the appellant must show that the sentence is so disproportionate that it warrants interference.

[23]	The magistrate took into account the personal circumstances of the appellant, the seriousness of the crime and the interests of the society. The magistrate having found that the rape took place three times he was obliged to impose the minimum sentence of life imprisonment unless there were substantial and compelling circumstances justifying a lesser sentence. The legal representative of the appellant was constrained to concede that there were no such circumstances. The following personal circumstance were considered: The appellant was on parole at the time of the commission of the offence. He maintained his innocence throughout the trial. He has a string of previous convictions including that of murder and rape. He is 42 years old. He has one child. He is uneducated. He is unemployed. In my view, the appellant’s personal circumstances should pave way for society’s interests.

[24]	In the premises, I am of the view that the appeal against both conviction and sentence should be dismissed, and it so ordered.

B R TOKOTA  
JUDGE OF THE HIGH COURT	

I agree:

________________________
S M MBENENGE 
JUDGE PRESIDENT OF THE HIGH COURT

Appearances
For the applicant			:	D P Geldenhuys 		
Instructed by                             :      	The Legal Aid of South Africa
		Grahamstown   
For the respondent	:	L W Sinclair 
Instructed by		: 	Office of the Director of Public 
			Prosecutions, Grahamstown
Date heard                	:       	06 February 2019 	
Date delivered 		:	12 February 2019