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IN THE HIGH COURT OF SOUTH AFRICA (NORTHERN CAPE HIGH COURT, KIMBERLEY)

In the Appeal of:

CASE NO.: CA&R 70116
Matter heard: 06-02-2017
Delivered:  05-05-2017

JOHNNY GOUWS	Appellant

and

THE STATE	Respondent

WILLIAMS J et LEVER  AJ
1 1	JUDGMENT 	11

WILLIAMS J:
1.	The appellant was convicted in the Regional Court held at Douglas on a count of rape and was sentenced to life imprisonment. He now appeals against both the conviction and the sentence imposed.

2.	The  grounds   of  appeal  relating  to   the  conviction	can  be summarised as follows:
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2.1	The court a quo erred in not treating the complainant's evidence, as a youthful, single witness with the necessary caution;

2.2	The court a quo erred in finding that the state witnesses T. Baartman and P. Tallies were credible and reliable witnesses;

2.3	The complainant's version of events is not corroborated by the medical evidence;  and

2.4	The court a quo erred by rejecting the appellant's version as not reasonably possible true.

3.	The complainant who was 12 years old at the time of the incident, testified that she was in the company of her  two friends T. and P. on the night in issue. They had been drinking beer on the soccer field of the local school and were just about to buy more beer from a nearby tavern when the appellant, who is known to all three of them, approached the group, grabbed the complainant and dragged her off into a copse of trees. The appellant then removed her pants and panties and vaginally raped her. The appellant thereafter made the complainant sit with him on a rock until family members of the complainant, who had been alerted by her two friends, approached the scene and the appellant ran away.
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4.	The complainant testified that she was ashamed to tell her grandmother that she had been raped but when one K. asked her she replied in the affirmative. A report was made to the police that same night and the next morning the complainant was examined by a doctor.

5.	T. testified that she, the complainant and P. were sitting on the soccer field when the appellant approached and grabbed the complainant. P. tried to intervene but the appellant kicked him in the stomach. T. ran away while the appellant pelted her with stones. She alerted the complainant's family and on their return to the field they encountered P., who then joined the group in looking for the complainant. They saw the appellant and complainant sitting on a rock. The appellant ran away when he saw them. When asked what the appellant had done to her the complainant replied that the appellant had raped her.

6.	P.'s evidence was that he and the two girls were on their way to the soccer field with two beers which they had bought at the tavern when the appellant approached them. He grabbed the complainant and when P. intervened he was kicked in the stomach. T. ran off. P. later met up with T.  and the people she had called but did not go back with them to the complainant.

7.	The contradictions in the evidence of the complainant, T. and   P.   relate   mainly   to   where   the   appellant    had
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approached them. This contradiction is in my view not material  in light of the fact that the appellant placed himself  on  the scene. The appellant, who was  legally  represented,  did  not give a plea explanation but during cross-examination of  the three above-mentioned witnesses it was put to them that the appellant had been out looking for P. who had earlier taken a box of wine belonging to the appellant. The appellant had  then found the three witnesses on the soccer field with the box  of wine. T. and P. ran away with the wine while the complainant walked across the road to a cafe. The appellant then left to spend the rest of the night with his girlfriend Hanna Witbooi.

8.	The complainant, T. and P. denied the version of the appellant as put to them. Hanna Witbooi who was called by the state as a witness and later recalled by the defence, also  denied that the appellant spent the night with her and that she was his girlfriend.

9.	The state witnesses R. P, S. J. (the complainant's grandmother) and K. S. (K.) confirmed that they were awakened that particular night by T. who informed them that the appellant had dragged the complainant away. S. also testified that she saw the appellant sitting with the complainant on the rock before he ran away. Jansen and S. however both testified that the complainant had told Jansen that she had been raped by the appellant, contrary  to  the  complainant's  version  that  she had
1.	
told S.. Not much turns on this however since it  appears that S. and Jansen were together when the complainant made the report.

10.	The complainant, as mentioned, was only seen by a medical practitioner, Dr Morolong the morning after the incident. Dr Morolong who completed a J88 medical form also testified. His evidence was that he could find no injuries on the complainant. According to the doctor this factor could point to either consensual intercourse or the fact that the complainant  had been sexually active prior to the incident.

11.	The doctor collected samples from the complainant -  her panties, an intra-vaginal swab, and swabs of the vulva and vestibule - which together with a reference sample of the appellant's blood, were sent for DNA testing. The DNA result of the samples collected from the complainant matched the DNA result of the appellant's blood sample.

12.	In these circumstances, the appellant's version that he had no sexual or even physical contact with the complainant and that he was falsely implicated in the matter for reasons not very clear, was in my view correctly rejected by the court a quo. Mr Fourie who appeared for the appellant wisely conceded during argument that the conviction was unassailable.

13.	As far as the sentence is concerned, the appellant, who was 37 years at the time of the incident, has numerous precious convictions.  Most telling of these is a conviction of rape during
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..

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2001 and for which he was sentenced to 10 years imprisonment. The appellant could clearly not be rehabilitated since the offence in casu was committed 8% years later, after an apparent early release.

14.	The present conviction - that of rape of a person under the age of 16 years - attracts a sentence of life imprisonment in terms of  the  minimum  sentence  provisions,  unless  substantial  and compelling circumstances exist which justify the imposition of a lesser sentence. The court a quo considered all the relevant factors and found no substantial and compelling circumstances to exist. Here too the court a quo cannot be faulted. The appellant shows no remorse for his actions and is clearly a danger to society.

In the circumstances the following order is made.

a) The appeal against both conviction and sentence  is  dismissed.

CC WILLIAMS JUDGE

7

I concur

 		
L LEVER
ACTING JUDGE

For Appellant:	Mr PJ Fourie
Kimberley Justice Centre

For Respondent:	Adv KF llanga
Office of the OPP