Case number: A206/09
In the matter between: 

and

JUDGMENT DELIVERED: 30 APRIL 2010

INTRODUCTION

[2] The "no" of a woman under such circumstances, whether expressly or otherwise conveyed to her paramour, should be construed and acknowledged as a final and definitive response, and not be interpreted as an invitation to employ more persuasive and more amorous measures to melt away the feigned resistance of a woman who, in truth, desires sexual intercourse, but fears to be labeled as "easy" if she without further ado succumbs to the overtures of her paramour.

BACKGROUND

[3] The appellant was convicted in the Parow Regional Court on charges of rape and indecent assault, inflicted upon the same complainant. He pleaded not guilty to both charges.

[6] It is evident from the provisions of the Act that a mandatory life sentence in the absence of substantial and compelling circumstances is only prescribed by the provisions of section 51(1).

[8] The appellant was also found guilty of indecent assault, in that he had fondled the private parts and breasts of the complainant during the course of the same evening when the rape was committed.

[10] The Magistrate found that, on the charge of rape, substantial and compelling circumstances as contemplated above did prevail, and appellant was sentenced to 20 years imprisonment, instead of the prescribed minimum life imprisonment.

[13] I am not convinced that the appeal against either the conviction, or the sentence imposed arising from the charge of indecent assault is properly before the Court. On the generous assumption that it is, and I specifically refrain from making any finding in such regard, I shall nonetheless deal with the submissions on behalf of the appellant relating to the conviction and sentence upon the charge of indecent assault. I shall do so after my findings relating to the conviction and sentence on the charge of rape, and upon the basis that the State did not object to the appeal proceeding also against the conviction and sentence arising from the indecent assault charge. To the extent that certain formalities relating to the presentation of the latter portion of the appeal were not complied with, I am prepared to condone such noncompliance^) in the interests of justice.

THE CONVICTION ON THE RAPE CHARGE

[14] Appellant admitted in his plea that he had had sexual intercourse with the complainant, and that he had fondled her vagina and breasts, on 9 December 2007 in Epping, near Cape Town. He alleged that he did so with her consent.

[15] The common cause facts relating to these allegations are set out below.

[16] The appellant was a 38 year old taxi driver at the time of the incident. He had befriended the complainant shortly (a week or two) before. The nature of this "friendship" can at best be described as superficial.

[17] The complainant was an 18 year old girl who worked as a waitress at a restaurant at Cape Town International Airport.   She worked shifts that required her presence at the restaurant until late in the evenings, sometimes until the early hours of the morning.

[18] On the evening of the incident she arranged that the appellant would provide transport to take her home. The vehicle of the appellant, a minibus, that was supposed to take the complainant home, was driven to another destination where the rape took place. The journey to this destination included various detours and stopovers in between.

[19] The fondling of the complainant eventuated during one of these stopovers, and at the time when the appellant was driving his minibus to the destination where the sexual intercourse took place.

[21] Later that evening, but after the appellant had already picked up the complainant at the airport, he learnt that the bachelors' party had been cancelled, and that some of the male friends of the friend who was to get married planned to go to a strip club. The various detours in the journey to complainant's home occurred after the appellant had learnt of this new development.

[26] The complainant was exhausted and fell asleep. Due to the position of the front seats of the minibus, her head rested on appellant's leg during the journey (whilst she was asleep). From time to time the appellant fondled her vagina, on each such occasion whereupon she woke up and insisted that he should desist from doing so, whereafter she again fell asleep. She finally woke up when the vehicle stopped and she enquired from appellant where they were. He said that they were in Epping. He started kissing her again. Again the complainant did not resist this, did not object to the kissing, and responded "positively" by in turn actively kissing the appellant. The appellant then also fondled her vagina and breasts. She removed his hands from her body and again told him that he had to desist from doing so. He then turned her on her back and placed himself on top of her. When he unfastened the button and zip of her trousers, she protested and asked him what he was doing.

[29] After this event the appellant took complainant to her home. The next morning she phoned a friend, who to her knowledge had been raped before, and confided in her about the events of the night before. The complainant did not immediately inform her mother of the ordeal to which she had been subjected. On a proper interpretation of her evidence, she was too embarrassed, and of the view that her trauma might cause her mother to believe that her daughter had failed her.

[30] Complainant and her friend went to the Karl Bremer Hospital in Bellville the next day, where she was medically examined. The medical examination confirmed the complainant's version that she had been raped, and revealed that she had lacerations to her vagina and anus most likely caused by non-consensual sex.

THE FINDINGS OF THE MAGISTRATE

[31] The purported exculpatory evidence of the appellant was found by the Magistrate, for good reasons and on good grounds, not to be persuasive or credible. The Magistrate also found the complainant to be a reliable and credible witness, despite being a single witness. Without enumerating all the relevant aspects that supported the magistrate's findings, the following considerations cumulatively pointed to the credibility and reliability of the complainant's evidence, notwithstanding the fact that she was a single witness:

(d) Such evidence was totally irreconcilable with the admitted rejection of the appellant's amorous overtures and approaches at the Grand Parade;

(h) It was common cause that the sexual intercourse between appellant and complainant had taken place on the front seats of the minibus, whilst the complainant was prostrate over and hurt by the seatbelt devices between the front seats. There is no reason why, if she had been a party to consensual sex, she would not have requested to perform the act on the more comfortable back seats of the minibus;

(j) The location where the intercourse took place, i.e. across the uncomfortable front seats of the minibus, and the bodily position of the complainant during the course thereof, i.e. with her trousers and panty only partially pulled down and with her upper legs against her chest, further strongly suggested that complainant was subjected to non-consensual sex, and that she did not willingly expose herself to the extreme discomfort and pain occasioned by the manner in which the intercourse took place;

(m) The medical evidence confirmed that the lacerations sustained by the complainant was most likely caused by non-consensual sex, or put otherwise, an incident of rape;

(n) Her actions during the course of the next morning, with her friend and at the Karl Bremer hospital, had every appearance of being genuine, and not "staged" for purposes of later supporting a contrived charge of rape.

[32] In view of the above considerations the appellant was, in my view, correctly convicted of rape. The question is however if such conviction could have attracted the sentence imposed by the Magistrate.

[33] As stated at the outset in this judgment, the Magistrate was of the view that the conviction of the appellant resorted under the provisions of section 51(1) of the Act that enjoined her to impose a term of life imprisonment, unless substantial and compelling circumstances justified a lesser sentence. Such finding postulated a conviction upon a charge of more than one rape. The charge sheet however specifically directed the attention of the appellant to the fact that the charge had to be read with the provisions of section 51(2), that did not postulate a conviction upon a charge of more than one rape, and that did not provide for a minimum sentence of the above kind. The charge sheet also gave no other indication that the charges against the appellant may involve one of a multiple rape.

[34] I am of the view that it is not desirable, to say the least, to make an accused believe that he is to stand trial on a charge of a single rape, and that the minimum sentence that he faces in terms of section 51(2)(b) of the Act is a period of 10 years, only to ultimate convict him of a multiple rape and then to apply the provisions of section 51(1) by approaching the question of sentence from the starting point that the minimum sentence is life imprisonment, unless substantial and compelling circumstances justify a lesser sentence.

[35] An accused should be apprised what the case is that he has to meet, and what any minimum sentence is that the Court may impose. An accused may for example wish to be represented by senior counsel, as opposed to only an attorney, if the sentence that he faces is a minimum term of life imprisonment. He in such case may wish to procure the evidence of additional witnesses, or additional medical experts to consider and gainsay the medical evidence presented by the State. In short, his whole approach to conducting both the cross-examination of state witnesses and conducting his defence may differ dramatically if he knows he faces a possible term of life imprisonment, as opposed to a minimum sentence of 10 years.

[42] Although the above principles were laid down in relation to the cross-examination of a witness in a civil matter, there is no reason why similar requirements aimed at facilitating a fair trial, should not apply to an accused person in a criminal trial. After all, an accused person faces, in most cases, a possible jail sentence if his evidence were to be rejected, whereas a witness in a civil trial may only have to live with the fact that he was found to be an unreliable witness if he testifies unpersuasively.

[47] The appellant also bitterly complained to the Magistrate about the manner in which his attorney had conducted his defence, suggesting that the communications between the attorney and his client had not always been a model of clarity. It can therefore not be accepted or assumed, without further ado, that the appellant had fully appreciated the exact nature of the charges against him, or the minimum sentence that he faced, when the presentation of the State's case commenced.

SENTENCE

[51] The Magistrate thus erred in her approach to the sentence that she imposed on the charge of rape, in that she viewed herself to be bound to impose a minimum term of life imprisonment, as point of departure, unless compelling and substantial circumstances justified a lesser sentence. This incorrect approach clearly influenced the extent to which she felt she could depart from the minimum sentence.

[52] In my view she should have approached the sentencing of the appellant from the premise that the minimum applicable sentence was 10 years, as provided for by section 51(2)(b)(i) of the Act. In this context, she should have then considered aggravating and mitigating circumstances, weighed up against one another, for purposes of deciding what an appropriate sentence had to be.

[53] The following factors are, in my view, aggravating circumstances, justifying the imposition of a sentence of more than 10 years:

(a) The appellant was in a position of trust in relation to the complainant, as the latter could expect from him (a person acquainted to her) not to abuse the fact that she was prepared to place herself under his control in the vehicle with which she was to be conveyed to her home;
(b) The complainant sustained injuries in the rape;

(d) The appellant was 38 years of age, and the complainant 18 years of age, in effect no more than a child;
(e) The appellant contrived an extensive exculpatory story, and persisted therewith throughout his trial, demonstrating no remorse for the fact that he had subjected a young and slightly built girl to the most abominable and degrading behaviour that a woman can suffer;

(g) The appellant not only penetrated the appellant vaginally, but also anally, compounding the humiliation that she suffered.

[54] Weighed up against these aggravating factors, are the following mitigating considerations:
(a) Appellant did not use any weapon, or violence that inflicted injuries other than those caused by the penetrations, upon the complainant;
(b) He at least did not leave her behind at the scene of the rape, and gave her a lift home;
(c) He was a first offender, and at the age of 38, did not have any record of any other skirmishes with the law.

[55] Under the circumstances I am of the opinion that a sentence of 12 years imprisonment would be appropriate.

THE CONVICTION ON THE CHARGE OF INDECENT ASSAULT

[57] Regrettably for the appellant, his allegations that were intended to be exculpatory in the context of the charge of indecent assault, formed part of an overall patently contrived and untruthful story intended to refute the complainant's evidence against him in the context of the rape charge. The question whether there was any basis for the appellant upon which to believe that his acts of fondling were permitted therefore predominantly falls to be decided upon the basis of the complainant's evidence, and evidence that was not in dispute.

[59] The first fondling of the complainant took place at the Grand Parade. Can such fondling constitute the basis for the conviction upon the charge of indecent assault?

[61] It can be accepted that, in situations where a man and woman are involved in amorous embracing and kissing, the man may seek to establish whether the woman is amenable to intimate fondling, not with a formal verbal question to such effect, but by a tentative and probing act of fondling. Only once this tentative endeavour is rejected by the woman, the absence of consent is established. To hold that a tentative and probing act of fondling during amorous embracing and kissing for the purposes set out above would amount to an indecent assault, would be unrealistic. Such approach might place substantial numbers of single sexually active males at risk of being imprisoned for indecent assault at almost every occasion where their amorous activities take place.

[63] I draw the distinction between the above first act of fondling, and the later subsequent actions of such nature, to demonstrate that the subsequent fondlings cannot enjoy the same charitable approach from this Court, given the indisputable knowledge of the appellant, at such later stages, that the complainant was not amenable to his overtures.

[68] The fact of the matter remains that, upon the clear evidence of the appellant, she expressly conveyed to the appellant, on every occasion (subsequent to the events at the Grand Parade) when he fondled her, that he should not do so. The complainant had every right to draw a line as to how far the amorous interaction between herself and the appellant could go. She was entitled to kiss the appellant, but to say "no" to his more intimate amorous overtures. I am accordingly satisfied that the conviction on the charge of indecent assault was properly founded.

THE CRIMINAL LAW (SEXUAL OFFENCES AND RELATED MATTERS) AMENDMENT ACT, 32 OF 2007

[71] The date of commencement of the Act was stipulated to be 16 December 2007. As from such date, both the common law offences of rape and indecent assault were repealed and replaced with new statutory offences. The question therefore arises whether the appellant was correctly convicted of the respective common law offences of rape and indecent assault, given the fact that his conviction was pronounced on 26 November 2008, a juncture at which such common law offences no longer existed.

"69   Transitional provisions
(1) All criminal proceedings relating to the common law crimes referred to in section 68 (1) (b) which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act must be continued and concluded in all respects as if this Act had not been passed.

CONCLUSION

[77]  Under the circumstances I make the following order:

2. The appeal against the conviction and sentence on count two, indecent assault is dismissed and the conviction and sentence on count 2 is confirmed.
3. The appeal against the sentence on count 1 succeeds in part and the sentence imposed by the court a quo is set aside and is substituted with a sentence of 12 years imprisonment which sentence commences on 12 December 2008, the date of sentence in the court a quo.
4.       The order by the court a quo that the sentence on count 2 run concurrently with the sentence on count 1 remains in force.

					Acting Judge of the High Court

I agree. It is so ordered.

						Judge of the High Court