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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: SS18/2005

PATE: 5 DECEMBER 2005

In the matter between:

THE STATE

and

DENVER JASON LAWRENCE

JUDGMENT

NDITA. AJ:

Mr Lawrence, the matter is before Court for judgment. You were charged before the regional court with two offences, namely, indecent assault and rape. The allegation by the prosecution was that on or about July 2002 to December 2002, you assaulted Anastasia Horst in circumstances of physical indecency, by forcing her to suck your penis. The second count was rape. With regard to rape, the State alleged that between October to December of the same year 2002, you had sexual intercourse with Anastasia Horst, a female person below the age of 16 years without her consent. This matter was referred to this Court in terms of section 52 of the Criminal Law Amendment Act.

The procedure that this Court must follow is contained in section 53(b), which provides that the Court should look at the whole record from the regional court and if it is satisfied that the proceedings are in accordance with justice, it will confirm the conviction, but if there is some doubt as to whether it should confirm the conviction or not, then the Court has to refer the matter back to the trial court with a request for reasons for judgment. I therefore referred the matter back to the regional magistrate court, requesting him to furnish reasons for the conviction. The reasons were duly furnished and I am grateful to the magistrate. Throughout the trial in the court a quo, the accused was legally represented.

When the matter came before this Court, the conviction was challenged on both counts on the following grounds: Firstly, it was alleged that there were contradictions and inconsistencies in the evidence of the complainant and the Court was referred to specific pages of the record. I will not burden this judgment with the references, but I will just cite what was submitted on your behalf It was alleged, firstly, that the medical report does not assist the State case any further, as the complainant was examined a month after the incident. Secondly, that your defence of an alibi could reasonably possibly be true. Thirdly, the complainant's version cannot be relied upon because she freely gave blow-jobs to whoever asked. Fourthly, that the complainant had a motive for falsely implicating you because you had terminated the relationship you had with her, and lastly that sexual intercourse with the complainant was consensual.

With regard to inconsistencies, it was further argued that the trial court erred in accepting the version of the complainant, a single witness.

It is necessary to refer to the essential facts of this case. According to the complainant, over the years 2002/2003, you had sexual intercourse with her without her consent and you further assaulted her in circumstances of physical indecency, by forcing her to suck your penis.

At some stage during this period of sexual abuse you forced her to suck your companion's penis. In your version you denied this assertion and stated that:

"I was alone with her and she was walking from her house."

The complainant testified that you threatened her with a big dog when she refused to enter your home. Once she entered you had sexual intercourse with her without her consent. When you realised that she was bleeding, you stopped having sexual intercourse with her and then she left the house.

There are many other incidents that are cited, including the Guy Fawkes Day incident, but according to the complainant she lost it after a while when she could not take the abuse any longer. She testified that she just broke down and told her father that you and your companion had indecently assaulted and raped her on a number of occasions.

The procedure that one needs to follow in matters of this nature is set out in the judgment, (unreported at the time the judgment was given) in S v Taljaard 2005 Vol 1 SACR 370 at 374(a) by my learned brother, Davis, J, summarises as follows:

"However, were the phrase 'in accordance with justice' as employed in s52(3)(b) to be given the meaning of compliance with legal rules of procedure only, it would mean that a Court would have to accept as its own judgment that of another court with which it might have serious qualms in respect of the merits of the conviction. That can never be in accordance with justice because the express confirmation of such a judgment as that of the High Court would so profoundly conflict with the presiding Judge's own conception of justice as to make a mockery of the very word itself."

This means that the judge presiding over the minimum sentence proceedings must be satisfied that indeed the proceedings are in accordance with justice and that they do not conflict with his/her own conception of justice. In order to determine whether proceedings are in accordance with justice, there should be an examination of both the procedural aspects and the merits of the case. I have already touched on the merits by referring to the essential facts of the case. In the instant matter, I am satisfied that the procedural requirements have been fulfilled. With regard to the merits, I have already given a summary of the complainant's evidence as well as the accused defence. Suffice to say that her evidence is not corroborated by anyone else. She made the first report to her father.

One of the issues that were raised in argument on your behalf is that the complainant took such a long time to report the matter. In my view, this argument does not hold water. In Van

Zijl v Hoggenhout (then unreported) 2005 Vol 2 SA 93 the Supreme Court of Appeal was asked to consider whether a claim by a survivor of child abuse and sexual molestation against a perpetrator had prescribed given that she had taken too long to report the conduct. It considered and accepted evidence from a psychologist that indeed with victims of abuse, particularly sexual abuse sometimes take time or even years to report such conduct. The Court stated at 108 H:

"The plaintiff obviously knew at all material times that the defendant was the physical agent of the abuse. Her expert witness expressly disavowed any possibility of suppression of her memory of the events That, of course, does not mean that, in adult life, she was able to confront them willingly or with adequate comprehension. Nor does it prove that she knew or accepted that responsibility for the abuse lay with the defendant. The incidents in adulthood which counsel has cited are consistent with the plaintiff's knowledge that the defendant had abused her, but they were visceral reactions falling short of rational appreciation that he, rather than herself, was the culpable party. It is more likely that the plaintiff developed insight and, with it, the meaningful knowledge of the wrong that sets the prescriptive process in motion, only when the progressive course of self-discovery finally removed the blindfold she had worn since the malign influences which I have described took over her psyche."

So, therefore, it is a fallacy to argue that the complainant must report instantly.

This was the first case of this kind in South Africa and the Supreme Court of Appeal, for the first time, recognised and accepted that in matters of sexual assault, it may take time for the victim to report because of the trauma she/he may have suffered. And indeed in the instant matter, it is clear that after a while the complainant broke down and decided to report the matter to her father As in all sexual offences, one has to follow the procedure set out in S v Gentle 2005(1) SACR (SCA) providing that:

"Where sexual intercourse is common cause, what is required, is credible evidence which renders the State's version more likely that sexual intercourse took place without the complainant's consent, thereby rendering appellant's version less likely."

In the instant case, obviously sexual intercourse took place, but the question is whether there is credible evidence that renders the State's version more likely that the sexual intercourse took place without the consent of the complainant Anastasia Horst.

The trial court made credibility findings in respect of the complainant. The magistrate was impressed by the complainant's demeanour and the manner in which she gave her testimony. The magistrate confirms that she observed the nuances right throughout the complainant's evidence and had no qualms in stating that her evidence was acceptable and that the complainant was indeed a credible witness. The trial court also had to consider whether the accused's version of consensual intercourse was reasonably possibly true, and if indeed the court was satisfied that such version was true, then the accused must receive the benefit of doubt and be acquitted.

The magistrate remarked that the accused seemed unsure of his own testimony and came to the conclusion that his version that sexual intercourse was with the complainant's consent could not be reasonably possibly true. I have also gone through the record and I have pondered whether indeed your version could reasonably possibly be true. I see no basis why the complainant would go through the agony of coming to court to testify and falsely implicate you. simply because she was jealous of your new girlfriend that you had, when it is obvious that she was traumatised by the incident. From the complainant's father's testimony, it is clear that when she broke down, she was traumatised and it can be accepted that nothing had particularly triggered her breakdown at that time, besides the fact that three days earlier you and John were at her home and she felt threatened.

What is clear to me is that whatever kind of power you had over the complainant, caused her to comply with your humiliating demands. You forced her to go to the field with you and whilst there she had to suck your penis once again Not only that you urinated on her. I cannot see how any right thinking person would agree to being treated in the manner in which you treated the complainant on this day.

I have no qualms with accepting the decision of the trial court on both counts of indecent assault and rape. I, therefore, confirm the conviction on both counts.

NDITA, AJ

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