Maliwa and Another v S (CA&R04/2016) [2017] ZAECMHC 38 (10 October 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CA & R NO: 04/2016

In the matter between:

SIVIWE

MALIWA

FIRST APPELLANT

TUMELO

SETSIPANE

SECOND APPELLANT

And

THE

STATE

RESPONDENT

JUDGMENT

MBENENGE ADJP:

[1] The appellants pleaded not guilty to, but were convicted of, rape[1] for which they were sentenced to undergo life imprisonment by the Regional Court, Sterkspruit. It had been alleged that the appellants

had taken turns in committing acts of sexual penetration (more than once) on the complainant, G. N., without her consent. The appeal is against both the conviction and the sentence.

[2] The facts of the case emerging as they do from the record are uncomplicated. The complainant, aged 19 years at the time, recounted

the events of the fateful day when she and her friends had been to a tavern enjoying themselves with drinks. Whilst there, she was approached by “a guy” she did not know proposing love to her. She spurned the proposal. She and her friends thereafter moved to another spot inside the tavern. At some point she went outside to urinate. Before she could do that there stood in front of her “a young man” who unexpectedly grabbed her. Whilst still trying to contend with the situation and finding out what his captor was up to, the captor was joined by “another male.” Amidst protestations from her, the two captors dragged her away to a spot where there was a communal water tap. She tried raising an alarm with her soft voice but was inaudible because people inside the tavern had been noisy. The captors stripped her off her pants and panty. The one captor caused her to lie on her back and inserted his penis into her vagina; he had unconsented sex with her. Thereafter, the other captor also took his turn committing the same act with her. Both captors used condoms. After that bout his captors took her to a nearby flat apparently belonging to one of her captors, where each one of the captors took turns engaging in unconsented sexual acts with her “for the whole night.” Even inside the flat they used condoms.

[3] The complainant further testified that at dawn she was accompanied to a point “not far” by one of her captors.[2] As she left the scene, she carried a used condom. She went to the police station and reported that she had been raped. Subsequent thereto, she was accompanied by the police to the scenes of the alleged rape, whence condoms with semen and a package of unused condoms were picked up. The appellants were still asleep inside the flat, and were pointed to by the complainant as having been the culprits. When testifying before the court a quo she identified the two appellants as having been the culprits. Asked during examination in chief what her state of sobriety had been she said “[she] was mildly intoxicated; not heavily intoxicated.”

[4] Johannes Mokati, a member of the South African Police Service, was among the police who received the rape report. He testified that he was on duty on the morning in question. The complainant reported that she did now know her assailants but could point them out, and she believed they could still be found at the flat where the rape was said to have taken place. The appellant accompanied them (the police) to the flat in question where they found two young men who were still asleep. They retrieved a used condom on the floor and another together with packages of condoms by the communal water tap. The arrest of the appellants ensued.

[5] The complainant was examined by a doctor who recorded that she bore “a crack and tear skin of labia lip and bruises on posterior fourchette.”

[6] The appellants admitted having been to the tavern as also having had sexual intercourse with the complainant, but contended that such had been consensual.

[7] The first appellant testified that he saw the complainant at the tavern on the day in question and proposed love to her. She accepted the proposal. They went out of the tavern, kissed each other standing next to the wall of the tavern and cuddled. The second appellant appeared in the scene, claiming the complainant as having been his girlfriend. He (the first appellant) also claimed the complainant as having been his girlfriend.

Thereafter, the two appellants stood out “there” and continued drinking. The complainant said she was feeling cold and wanted to sleep. They thereupon proceeded to the second appellant’s place of residence (the flat). On their way there they stopped by the communal water tap where they “drank and kissed.” He and the complainant moved away from the second appellant to a secluded spot where they had sex, to which the complainant consented. When they were done with that they returned to the spot where they initially had been. The second appellant expressed concern that they made love in his presence. They all sat and continued drinking. He thereafter saw the second appellant and the complainant chatting. The two of them (the second appellant and the complainant) also went to the secluded spot where they also had sex. Upon their return they all continued drinking. They eventually proceeded to the second appellant’s homestead. On arrival there, they all slept on the same bed. The second appellant and the complainant had sex, once. They slept the whole of the remainder of the night. On the following morning, he accompanied the complainant homeward, but to a point closer to the tavern, wherafter he returned to the second appellant’s place and resumed his sleep. The appellants were awakened by the arrival of the police in the early hours of the morning.[3] They ended up being arrested.

[8] Zanelizwe Meji was called to testify in support of the first appellant’s version, that the first appellant and the complainant had been lovers. The upshot of Mr Meji’s testimony was that the first appellant had informed him before the incident that he was having a relationship with the complainant.

[9] The second appellant also testified in his defence. He said he had been in a relationship with the complainant prior to the incident. He, too, had been at the tavern during the night in question. When at some point he went out to smoke he saw the complainant standing with the first appellant. He confronted the first appellant claiming the complainant as having been his girlfriend. The second appellant then said “such cannot happen”, at which point the complainant said they (the appellants) had better accompany her to sleep. They all (the three of them) proceeded to the second appellant’s home. When on their way they reached the communal water tap they sat and drank some liquor. Whilst they were drinking, the complainant stood up and went around a tree with the first appellant. The second appellant continued drinking. He further testified that-

“I noticed something was happening, I kept quiet. I did not know what was happening. They later came back to me.”

He asked them what they had been doing and they said they had been kissing. The complainant thereupon dragged him (the second appellant)

aside and thereupon kissed him. They undressed each other and had sex. After they finished they all sat by the tap and continued

drinking beer. All the while the first appellant was standing next to the tap. After they had consumed the liquor the complainant said she was feeling cold. They took her to his house. When they got to the house he kissed the complainant and, once again, had sex with her. He then dozed off, and was woken up by the police in the morning.

[10] It is as well to quote the following excerpt from the record capturing the answers proffered by the first appellant when he was being cross examined by the prosecutor:

“You said she was also your girlfriend? --- Yes.

But you never quarrelled over her? --- No we never fought.

Complainant said she was cold and went to accused 2’s home. --- Yes.

Why when she was cold you went to accused No 2’s home? --- She said she wanted to sleep.

If she wanted to sleep why did you go to accused No 2’s place? --- She said we should accompany her.

To where? --- She wanted to sleep at accused No 2’s place.

Though you claim she was your girlfriend, you had no problem to go to accused No 2’s place? --- No, I did not have a problem.

According to your plans, it was to take complainant to Tumelo and would the two of you do so? --- She said we must accompany her.

Were you also going to sleep at Tumelo’s? --- No Tumelo’s homestead is not far from mine.

You were going to go home and sleep? --- I was going to go to my homestead.

And let your girlfriend sleep with another man? --- I was not going to leave her, I was going to sleep with her.

Were you going to sleep at Tumelo’s place? --- No.

Were you going to let your girlfriend sleep with another man? --- No.

What were you going to do? --- I would take her to my homestead to sleep.

When were you going to tell her? --- When we leave there, as we were drinking.

You have just told Court you were asked by complainant to go to Tumelo’s place and you had no problem. --- I had no problem as we were drinking together.

Even then he was not your friend. --- He is not really my friend. He stays a bit far from my home, we would meet and drink.

You had no problem walking with someone who wanted your girlfriend. --- No, as he used to give me liquor.

Your girlfriend had no value to you? --- I don’t know.

You don’t care whether she can sleep with another man. --- No I was not going to allow that.

How were you to prevent it? --- Was going to tell that person to leave my girlfriend and proceed to my homestead.

Accused had sexual intercourse with your girlfriend in front of you. --- Yes

Why did you not ask your girlfriend to go with you? --- I was talking to her but she was not taking heed.

When you say that you must go together and not go to Tumelo’s? --- When we were seated at the water pump.

Before or after having sex? --- After.

Why have sex with your girlfriend in front of another who claims also your girlfriend? --- We were just kissing.

Why did you not go to your home? --- Were still drinking.

Even when your girlfriend had sexual intercourse you did? --- No, there’s nothing that I did.

After you had sex with complainant why did you go to accused 2’s place? --- I was drowsy, seemingly I had too much to drink and it was close for me to sleep.

After complainant had sexual intercourse with Tumelo, you also took your turn? --- Yes.

Did you ask accused 2 if he did not have a problem having sexual intercourse with his girlfriend? --- No, I never asked”

[11] In its erudite judgment the court a quo, after analysing the evidence against the background of the applicable legal principles, became satisfied that the appellants had been proven with the requisite degree to have repeatedly raped the complainant “in contravention of section 3 of act 32 of 2007, read with the provisions of section 51 (1) of act 105 if 1997 as amended.” That conclusion was arrived at after the court a quo had said:

“The ultimate analysis depends upon the reliability and the veracity of the various witnesses for the State. The demeanour of the complainant was quite impressive. Even though the incident took place five years ago, her memory was quite profound and she recalled and recounted the events clearly. Her verbal expression and facial gestures were clear evidence of how incensed and angered she was and is over the whole ordeal. She spoke with a raised voice which rose even much at suggestions that she knew accused before the incident. She repeatedly shouted “they are lying” in a clearly angry manner. She showed signs of distrusting the court system when pressed with more questions saying the matter should be withdrawn because it had “disappeared” before. I concluded that the matter was previously withdrawn.

She dismissed the defence version with vigorous annoyance stating that she would never have reported the accused if she had anything to do with them. She recalls that accused 1 had been proposing to her inside the tavern but she was annoyed and dismissed his advances. She is adamant that she did not know the accused. Not even their names. She heard afterwards when people referred to that house as the home of Tumelo, accused 2. She is still clearly traumatised and disgusted over what happened to her. The police officer corroborated the fact that she arrived at the police station that morning and reported that she had been raped. Her version is somewhat strengthened by accused’s version on the aspect of going first to the tap and later to accused 2’s homestead. This is because condoms were retrieved in these scenes.

The accused fared poorly on the witness stand. They both gave a long-winded version which was so far-fetched no reasonable person

would believe. Their evidence was tailored to corroborate their story but it came apart during cross-examination. They became evasive and clearly contradicted each other in material respects. The most glaring contradiction is their cooperation upon discovering they have the same girlfriend despite accused 2 saying he was protesting. The Court finds their version not only highly improbable but false beyond doubt.

The complainant’s conduct immediately after the incident, taking proof with her and reporting immediately, is indicative of lack of consent. Even her demeanour in the witness stand, five years after the incident, shows that she never consented. The Court finds her to be a reliable and credible witness and accepts her version.”

[12] The findings and the conclusion of the court a quo derive support from the record. It is indeed hard to believe why competing claims, involving the two appellants to possess the complainant, would all of a sudden culminate in the complainant sleeping with the contestants in one bed. I say no more regarding the conviction of the appellants, as doing so would be tantamount to reinventing the wheel. It suffices only to mention that none of the grounds of appeal against such conviction has merit.

[13] This brings me to the question of sentence. The sentence is attacked primarily on the ground that it is shocking and

inappropriate and that the Court a quo erred in finding that there were no substantial and compelling circumstances justifying the imposition of a lesser sentence.

[14] As a starting point one needs to acknowledge that sentencing appropriately is one of the more difficult tasks which faces courts

and it is not surprising that honest differences of opinion will frequently exist.[4]

[15] The appellants were 20 years of age respectively when the offence was committed. No previous convictions were proven against them. The first appellant has two dependants.

[16] The complainant was 21 years old when the offence was committed, she having been born on [...]1989. The absence of physical injuries on her does not mean that she was not traumatised by the event.

[17] Even though the court a quo in so many words acknowledged that the appellants were, by reason of their age, candidates for rehabilitation, it nonetheless imposed the minimum sentence on the basis that no substantial and compelling circumstances justifying the imposition of a lesser sentence had been shown to exist, having been of the view that correctional centres have facilities and programs that would help the appellants rehabilitate. In this regard, the court a quo misdirected itself. “Rehabilitation” refers to the action of restoring someone to normal life through training and therapy after imprisonment. Implicit in this definition is the notion that offenders are rehabilitated so that they return to the society from which they came not hardened and desensitised to living amongst law abiding citizens, and having undergone programmes aimed at changing their behaviour, in the case of rape, towards women. It is hard to believe how life imprisonment can be said to be rehabilitative.

[18] In hoc casu it is regrettable that a victim impact report was not obtained to aid the court a quo understand the impact the rape had on the complainant, leaving both the court a quo and this court to assume that the complainant suffered some trauma. It is incumbent on the prosecution to secure such evidence to assist the court to access the seriousness and impact of the offence on the victim.[5]

[19] It is further regrettable that the court a quo did not obtain a pre-sentencing report on the appellants. Trial courts have been cautioned not to proceed to sentence youthful

persons unless it has all the facts relevant to sentencing before it to enable it to decide on an appropriate sentence.[6]

[20] It has been held that even in the case of a serious and multiple rape a sentence of life imprisonment need not necessarily be imposed. If there are compelling and substantial circumstances the appropriate sentence is within the court’s discretion.[7]

[21] In my view, regard being had to the youthfulness of the appellants, their chance of being rehabilitated and the fact that they are first offenders, the sentence of life imprisonment is disproportionate to the offence. Add to this the fact that the complainant was not shown to have experienced psychological trauma that was out of the ordinary and that cannot be treated. These factors, taken cumulatively, amount to substantial and compelling circumstances justifying the imposition of a sentence lesser than life imprisonment.

[22] However, taking into account that rape is a serious offence, the complainant having been abducted by the appellants who took turns in raping her for the better part of the night and, during the trial, depicted her as the one who initiated the sexual intercourse, the appellants are deserving of a long term of imprisonment.

[23] In the result –

(a) The appeal in respect of the conviction is dismissed.

(b) The appeal in respect of the sentence is set aside and substituted with the following:

“The accused are each sentenced to undergo 20 years’ imprisonment.”

________

S

M MBENENGE

ACTING DEPUTY JUDGE PRESIDENT,

HIGH COURT, MTHATHA

I agree:

M

S JOLWANA

ACTING

JUDGE OF THE HIGH COURT

Counsel for the appellants: N J G Dreyer

Bahlekazi Attorneys

Bloemfontein

c/o S Booi Attorneys

MTHATHA

Counsel for the respondent: E Van Wyk

Office of the DPP

Heard on:

01 September 2017

Delivered on:

10 October 2017

[1] In contravention of, inter alia, section 2 read with sections 55, 56 (1), 57,58,59,60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 further read with section 256, 257 and 261 of the Criminal Procedure Act 51 of 1977 and section 51 (1) of the Criminal Law Amendment Act 105 of 1997

[2] She identified the first appellant as having been the one who accompanied her

[3] “06:00 or 07:00,” according to the testimony

[4] S v Sadler 2000 (1) SACR 331 (SCA) para [10]

[5] Ravele v S (20079/14) [2014] ZASC 118 (19 September 2014)

[6] S v Siebert 1998 (1) SACR 554 (A) at 558i-559a

[7] S v Mahomotsa 2002 (2) SACR 435 (SCA)