---

THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No A66/2015

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

13/3/2017

In the matter between:

Philane Khanye                                                                                                    Appellant

and

The State                                                                                                           Respondent

 

JUDGMENT

 

Carelse J:

[1] The appellant was convicted in the Regional court, Johannesburg on charges of kidnapping (count 1); assault with intent to do grievous bodily harm (count 2); and  contravening section 3 of the Criminal Law ( Sexual  Offences and  Related Matters) Amendment Act 32 of 2007 - Rape(count 3). On count 3 the appellant is alleged to have unlawfully and intentionally committed an act of sexual penetration with the complainant and encouraged a number of male cohorts to engage in non – consensual sexual intercourse with her. The State relied on the provisions of section 51 read with schedule 2 of the Criminal Law Amendment Act 105 of 1997 (The Act) on count 3.The appellant was sentenced in respect of count 1 to four years’ imprisonment; count 2, two years’ imprisonment and count 3 to life imprisonment. The sentences in counts 1, 2 and 3 were ordered to run concurrently.

[2] Because a sentence of life imprisonment was imposed on count 3, the appellant is entitled to an automatic right of appeal. When the matter was initially set down before a full bench on sentence only, the court was unable to reach unanimity. As a result thereof the matter was referred to and set down before the full court on 19 August 2016. The appeal before the full court was against sentence only. However, the appellant’s heads of argument dealt with both conviction and sentence. The respondent was taken by surprise and pursuant to an agreement between the parties the matter was postponed to afford the respondent an opportunity to supplement its heads of argument in respect of both conviction and sentence.

[3] At the outset the appellant applied for condonation for the late filing of the appeal against conviction. This application was not opposed. It is our view that it is in the interest of justice to grant condonation and condonation was accordingly granted. This appeal lies against both conviction and sentence.

[4] It was not in dispute during the trial that the appellant had sexual intercourse with the complainant during the early hours of 17 November 2013 in his flat. The dispute was whether the complainant had consented to sexual intercourse with the appellant, further whether the complainant was kidnapped and assaulted by the appellant and his cohorts and whether she was also raped by the appellant and his cohorts. It was also not in dispute that the complainant, sustained injuries on 17 November 2013.

 

Conviction

[5] The complainant testified that she had drinks at a tavern situated in Fox Street, with her sisters. She consumed alcohol but was not drunk. They left the tavern with her sisters slightly ahead of her, but out of sight.  It was not disputed during cross examination that she was accosted by the appellant and a group of eight men. It was only during the appellant’s evidence in chief when for the first time, he testified that he was the only person with the complainant on the night in question.

[6] The complainant was assaulted with fists, choked and kicked in the stomach. As a result of the assault, she fainted and woke up, naked, in the appellant’s flat, with the appellant and four unknown men. Two of the four men held her legs apart on the bed while one of the men engaged in sexual intercourse with her. All the while the appellant sat next to her saying ‘next, next’ which was an instruction to the other men to have sexual intercourse with her. When the second unknown male person was having sex with her, the appellant hit her on the face with his fists.  It was never disputed during cross examination that the complainant was raped by two other unknown persons on the same night in the appellant’s flat.

[7] She tried to escape but the appellant prevented her attempt.  The appellant assaulted her again, put her on top of the bed and raped her anally without using a condom. It was never disputed during cross examination of the complainant that the appellant had anal intercourse with her nor did he during his evidence in chief deny this fact.  However, during cross examination the appellant for the first time denied that he had anal intercourse with the complainant.  The appellant conceded during cross examination that he did not use a condom, thus contradicting his evidence in chief that he did use a condom.

[8] In cross examination the complainant said that she sustained a swollen black eye.  An unknown tall male came to her rescue, opened the door and told her to leave.  The appellant disputed this claiming that the complainant wanted money and said that he left the flat with her to go to the ATM to draw money. She vehemently denied this. Contradicting this version during cross examination, the appellant said that he left the complainant sleeping in the flat.

[9] She was held against her will for approximately five hours. She ran to another flat where two of her friends lived and told them what happened to her. They took her to the police station. The police took her to a doctor who examined her. She admitted that she had drunk alcohol but was not intoxicated.

[10] A week after her ordeal while she was walking in a park in Jeppestown she saw the appellant who laughed and pointed at her.  The police were patrolling the area at the time. She reported the rape to the police and the appellant was arrested. At the time of his arrest the appellant said that it was not him who had raped the complainant, it was the other eight people. He admitted to assaulting her and offered to pay her. During cross examination of the complainant the appellant denied that he raped and assaulted the complainant but did not deny that he offered to pay her.

[11] During cross examination the complainant said that she was at Bob’s tavern on the night in question. It was put to the complainant that she met the appellant at Fox tavern where they walked to Ngobane’s tavern. She responded as follows: ‘He is lying, we never went to Ngobane’s tavern. I went alone and then we met at Main Street.’ However the appellant during his evidence in chief confirmed that he met the complainant at Fox tavern. He did not confirm that they had walked to Ngobane’s tavern.

[12] The appellant’s evidence in chief was that he met the complainant for the first time on the night in question. She slept over and left the following morning. It is the appellant’s version that the complainant laid charges against him because he did not give her R100, 00 for transport fees. During cross examination the appellant was adamant that the nature of the sexual intercourse they engaged in would not have caused her injuries. He was however, unable to explain the cause of the complainant’s injuries.  It bears mentioning that the appellant’s co-perpetrators were never arrested.

[13] Dr Marokka who examined the complainant and compiled the medical report (‘J88’) observed that the complainant’s face was slightly swollen and she had abrasions on both the upper sides of her arms. She opined that the injuries were consistent with physical assault. There were no gynaecological injuries, save for a yellowish discharge. Though no gynaecological injuries were noted, she found that  forceful penetration could not be excluded. The complainant had given birth to five children which could have explained the absence of gynaecological injuries. She further stated that she conducted an anal examination on the complainant which was normal. The complainant’s clothes were clean.

[14] The testimony of Ms Ntombi Ngobane, the first report witness, was not challenged by the appellant. She testified that the complainant arrived at her place at 05h30 and she was crying. The complainant told her that she had been raped by several men at Dugatole flats.  She mentioned eight men but said not all eight had raped her. The complainant’s face was swollen. She however said that the complainant’s clothes were dirty. The state finally led the evidence of the arresting officer, Mr Sithari. His evidence was not challenged.

[15] The appeal against conviction concerns the court a quo’s assessment and findings on the evidence as a whole and the complainant’s evidence in particular. The appellant submitted that the complainant’s evidence was not only marred with material contradictions, it was also unclear and inconsistent. The approach by an appeal court in the consideration of  the court a quo’s assessment of the evidence has been laid out in S v Bailey:[1]

‘If there has been no misdirection on the facts, there is a presumption that the trial court’s evaluation of the evidence as to the facts is correct, and that a court of appeal will interfere therewith only if it is convinced that that evaluation is wrong. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court’s evaluation of oral testimony. In order to succeed on appeal the appellant must therefore convince us on adequate grounds that the trial court was wrong in accepting the evidence of the State witnesses – a reasonable doubt will not suffice to justify interference with their findings.’

[16] Rape, Lord Hale observed, ‘is an accusation easily made and hard to be proved and harder to be defended by the party accused, tho [ugh] never so innocent’.[2]  Because of the nature of the crime special cautionary rules regarding the treatment of the evidence of the complainant have been adopted. An accused person may be convicted of any offence on the single evidence of a competent witness.[3]

[17] The trial court found that the complainant was a good witness. The appellant challenged the findings on the following grounds: Firstly that the complainant materially contradicted herself as to where she first met the appellant on the night in question. The complainant was adamant that she met the appellant on the street after leaving the tavern situated in Fox Street, whereas the appellant initially put to the complainant that he met her at Fox tavern, and they went together to Ngobane’s tavern. This was denied by the complainant. During the appellant’s evidence in chief he testified that he met the complainant at Fox Street tavern. No mention was made of meeting the complainant at Ngobane’s tavern. The appellant materially contradicted himself. In my view the complainant’s evidence on this aspect cannot be faulted in any way.  

[18] In view of the findings of Dr Marokka that the anal examination of the complainant was normal, the appellant submitted that this amounts to corroboration that he did not rape the complainant anally and further that  the record as a whole clearly shows that the complainant’s evidence is so inconsistent and contradictory that it must be rejected. I disagree. The first time that the appellant denied that he raped the complainant anally was during his evidence in chief. This denial was not put to the complainant. It is salutary to remind ourselves of the well-known case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others:[4]

‘… [61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness’s attention to the fact by questions put in cross- examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct. This rule was enunciated by the House of Lords in Brown v Dunn and has been adopted and consistently followed by our courts.

…

[63] The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies on inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.

…

[65] These rules relating to the duty to cross-examine must obviously not be applied in a mechanical way, but always with due regard to all the facts and circumstances of each case. But their object must not be lost sight of. Its proper observance is owed to pauper and prince alike. In the case of the President of this country there is an added dimension. Not only are his personal honour and dignity at stake. He, as head of state, is representative of all people. That being so, the rule needs to be observed scrupulously.’

[19] The appellant has failed to proffer any explanation for the independent and corroborative evidence of the complainant’s injuries by both Dr Marokka and Ms Ngobane. Ms Ngobane’s evidence to the extent that she is the first report is not corroborative evidence to the rape but is consistent to negate a defence of consent. What adds weight to the veracity of the complainant’s evidence is that she reported the rape at the first available opportunity she was able to do so. 

[20] There is undisputed evidence that the complainant was injured. The complainant explained that her injuries were as a result of the assault by the appellant and his co-perpetrators. The appellant offered no explanation for the injuries and wishes to rely on the opinion evidence of Dr Morokka on how the complainant was assaulted to support his version that the complainant was not telling the truth. This at the very least, is disingenuous. The complainant gave an explanation which was not disputed. The only reasonable inference that can be drawn from the injuries sustained is that the complainant did not consent to sexual intercourse with the appellant and his co-perpetrators. In my view the court a quo approached the evidence with the requisite caution required when assessing the evidence of the complainant as a single witness. I can find no basis to upset the factual findings of the court a quo.

[21] The factual finding that the complainant was raped by three men was borne out by the evidence of the complainant. She consistently testified that she was accosted by a group of men and raped by three men which included the appellant. Throughout the testimony of the complainant and in particular during cross examination she was not challenged on this aspect of her evidence. The first time the appellant disputed this was in his evidence. Therefore this evidence remains unchallenged.[5]

[22] The ordeal lasted for almost five hours. She was viciously assaulted with intent to cause her grievous bodily harm and was raped by the appellant and his co-perpetrators more than once. For all these reasons I am satisfied that the court a quo correctly convicted the appellant as charged

 

Sentence

[23] Turning to the life sentence imposed on the appellant in respect of the rape count - count 3. Section 51(1) of the Act provides:

‘Notwithstanding any other law, but subject to subsections (3) and (6),a regional court or a High Court shall sentence a person it has convicted of an offence referred to in Part 1 of Schedule 2 to imprisonment for life.’

Part 1 of Schedule 2 refers to:

‘Rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act , 2007-

(a) when committed -

(i) In circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii) by more than one person, where such persons acted in the execution of furtherance  of a common purpose or conspiracy…’

[24] The appellant relied on the Supreme Court of Appeal case of S v Mahlase[6]  to support his submission that the court a quo misdirected itself in imposing the life sentence on the appellant. In Mahlase the court held:

‘The learned judge however overlooked the fact that because the [co- perpetrators], who were implicated … were not before the trial court and had not yet been convicted of rape, it cannot be held that the rape fell within the provisions of Part 1 of Schedule 2 of the Criminal Law Amendment Act (where a victim is raped more than once) as the high court found that it did.’

[25] I am mindful that this court is bound by the decisions of the Supreme Court of Appeal. This court is bound by the decision in Mahlase. I am however of the respectful view that the interpretation of Part 1 of Schedule 2 of the Criminal Law Amendment Act in Mahlase, loses sight of previous authority from the Supreme Court of Appeal in the case of S v Legoa[7]  which remains as binding authority, an exigency I later address herein. For different reasons regarding the interpretation of Part 1 of schedule 2 of the Act, I am in partial agreement with Pickering J in Cock v S[8] and Thompson AJ in the unreported judgment of S v Nkosinathi Standford Mejeni[9] who took issue with para [9] of Mahlase. Thompson AJ held that:

‘ …[8] The fact that the Legislature did not intend such absurd consequences is to be found in the ordinary grammatical meaning of Part 1 of Schedule 2 of the Minimum Sentence Act. The Legislature used words such as “co – perpetrator,” “accomplice” and rather instructive “by more than one person” and “where such persons acted . . . in a common purpose.”

[9] A perpetrator is defined in the online dictionary of Dictionary.com as someone who commits a crime. The ordinary meaning is to be found in statements by police officials and ministers who often states that “the perpetrators must be found and punished to the fullest extent of the law.” Being a co-perpetrator merely means that there were more than one perpetrator who acted in concert with one another. A perpetrator does not envisage a convicted co-accused.

[10] An accomplice is defined in the aforesaid dictionary as someone who knowingly helps another in a crime. To have an accomplice does not envisage that such accomplice must be a convicted co-accused…’

[26] Both Pickering J and Thompson AJ were of the view that notwithstanding their view that Part 1 of Schedule 2 was incorrectly interpreted, they were nevertheless bound by Mahlase because ‘a deviation from a Supreme Court of Appeal decision can only be justified on one of three possible grounds. Firstly, where the case before the Judge is on the facts so distinguishable that the rationes decidendi of the Supreme Court of Appeal does not find application, however this requires a careful factual anaylsis and [is] a ground that must be ventured into carefully so as not [to] undermine the principle of stare decisis on perceived differences that are more contrived than real. Secondly a decision of the Supreme Court of Appeal can be deviated from if it is rendered per incuriam. Per incuriam does not refer to an instance where a lower court deems the Supreme Court of Appeal to have erroneously interpreted the law. It refers to the situation where the Supreme Court of Appeal overlooked legislation governing the case. Thirdly, a decision of the Supreme Court of Appeal is rendered nugatory or obsolete due [to] subsequent legislative development.’[10]

[27] The doctrine of stare decisis was dealt with fully by the Constitutional Court in Camps Bay Ratepayers’ and Residents’ Association & Another v Harrison & Another:[11]

‘Observance of the doctrine has been insisted upon, both by this court and by the Supreme Court of Appeal. And I believe rightly so. The doctrine of precedent not only binds lower courts, but also binds courts of final jurisdiction to their own decisions. These courts can depart from a previous decision of their own only when satisfied that that decision is clearly wrong. Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution. To deviate from this rule is to invite legal chaos.’

[28] Although Mahlase binds this court, S v Legoa[12] equally binds this court and and continues to be referred to with approval by the Supreme Court of Appeal. S v Legoa was never considered by Pickering J in Cock v S, Thompson AJ in S v Nkosinathi Standford Mejeni and the Supreme Court of Appeal in S v Mahlase.I have no doubt that had Legoa been considered,it may have resulted in a different finding.

[29] In Legoa, the appellant pleaded guilty to dealing in dagga. In his plea explanation the appellant admitted having dealt in 216.3 kg of dagga but did not admit the value of the dagga. The appellant was found guilty pursuant to his plea. The state led evidence after conviction, on the value of the dagga. The court held:

…

‘[13] The 1997 minimum sentencing legislation requires for its application that an accused must have been “convicted of an offence referred to” in the Schedule. In this case the offence “referred to” in the Schedule is that of dealing in a dangerous dependence-producing substance “if it is proved that – (a) the value of the dependence-producing substance in question is more than R 50 000.”  The question is whether the High Court’s conclusion that the value of the substance in question relates solely to the question of sentence and is irrelevant before conviction, is correct.

. . .

[18]  It is correct that, in specifying an enhanced penal jurisdiction for particular forms of an existing offence, the Legislature does not create a new type of offence. Thus, ‘robbery with aggravating circumstances’ is not a new offence. The offences scheduled in the minimum sentencing legislation are likewise not new offences. They are but specific forms of existing offences, and when their commission is proved in the form specified in the Schedule, the sentencing court acquires an enhanced penalty jurisdiction. It acquires that jurisdiction, however, only if the evidence regarding all the elements of the form of the scheduled offence is led before verdict on guilt or innocence, and the trial court finds that all the elements specified in the Schedule are present. (As pointed out earlier, it is different when the element specified in the Schedule relates not to the offence, but to the person of the accused such as rape when committed “(iii) by a person who has been convicted of two or more offences of rape, but has not been sentenced in respect of such convictions”.)’

[30] The Criminal Law Amendment Act does not create new offences but creates jurisdictional factors which will trigger the provisions of section 51(1) or (2) read with Parts 1 or 2 of Schedule 2.Consequently if a court upon a proper evaluation of the evidence is satisfied that the State has proven the jurisdictional fact which is required to trigger the provisions of section 51(1) or (2) of the Criminal Law Amendment Act, that finding sets the bias for the approach to sentencing. In Jaga v Dönges No and Another; Bhana v Donges NO and Another[13] Schreiner JA remarked as follows at 662G: ‘Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context’. This approach has been confirmed by the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of Home Affairs and Others.[14] In my view section 51(1) read with Part 1 of schedule 2 properly construed does not mean that more than one person must be convicted to trigger the provisions of section 51(1) of the Act. The approach in Mahlase, with respect, reads words into the section which are not there, in conflict with the principles of contextual interpretation

[31] The appeal at hand is further distinguishable from Mahlase on the basis that the latter dealt only with the issue of sentence whereas the conviction and sentence is challenged in this appeal. An anomaly arises in Mahlase, viz that the appellant was convicted by the court a quo of rape by more than one person in terms of section 51(1) of the Act, but the sentence  that was imposed  was in terms of section 51(2) of the Act. In the present matter the conviction includes the finding by the court a quo that the complainant was raped more than once by three men, including the appellant which was based on the evidence led at the trial.

[32] The ratio of Legoa is that once the jurisdictional facts have been proved, a court is obliged to impose the prescribed sentence unless substantial and compelling circumstances are found to exist. Once it is proved at the trial that an accused is guilty of an offence in terms of which the complainant was raped more than once whether by the accused or  by more than one person, the application of the minimum sentencing provisions is triggered. 

[33] The court a quo found that the rape of the complainant was a particularly heinous one.  She was accosted by a group of men, assaulted and choked which resulted in her losing consciousness. The appellant appeared to have been the ring leader who instructed his cohorts to take turns to rape the complainant. She was raped three times by three different men over a period of hours and assaulted. A victim impact report was handed in at the trial indicating that the complainant not only sustained physical injuries but also psychological harm. Since the rape she is afraid to go out and she experiences nightmares.

[34] The appellant is a first offender. At the time of the offence he was 27 years old and a father of two children. The appellant drank alcohol on the night in question, but there is no evidence that the appellant committed these offences because he was intoxicated or his ability to distinguish right from wrong and to act in accordance with this judgment was impaired. He was in custody for approximately ten months awaiting trial. The court a quo found that no substantial and compelling circumstances exist warranting a reduced sentence. In my view the court a quo correctly held that ‘the aggravating factors relating to the serious nature of the offence, and the prevalence of the offence as well as the effect of the crime on the victim, far outweighs the mitigating factors’.  I am satisfied that there is a clear absence of substantial and compelling circumstances warranting a reduced sentence. On the assumption that the present case may not be distinguishable from Mahlase, this is such a ghastly case of rape that it would justify a life sentence. Therefore the appeal against sentence for rape (count 3) must fail.

[35] In the result I make the following order.

1. The appeal against conviction and sentence in respect of count 3 is dismissed.

__________________

 

Carelse J

 

Judge of the High Court of South Africa, Gauteng Local Division

 

 

 

I agree

 

 

__________________

 

Twala J

 

Judge of the High Court of South Africa, Gauteng Local Division

 

Appearances:

Counsel for Applicant: Adv W Robertse

Instructed by: Legal Aid South Africa

Counsel for Respondents: Adv E Le Roux

Instructed by: Office of the Director of Public Prosecutions

 

---