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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: A04/2010

DATE: 19 MARCH 2010

In the matter between:

SINAKO NDAMASE …........................................................................Appellant
and

THE STATE ….................................................................................Respondent

JUDGMENT

BOZALEK. J:

The appellant was charged with and convicted of two counts of rape and two counts of indecent assault in the Wynberg Magistrate's Court. He was sentenced to 20 years imprisonment on each of the rape counts and ten and five years imprisonment respectively on the indecent assault counts. The magistrate ordered that all the sentences would run concurrently with the result that the appellant's effective sentence was one of 20 years imprisonment. With the leave of the magistrate he now appeals against both conviction and sentence. The appellant pleaded not guilty to the charges and was legally represented throughout his trial. It was admitted on his behalf that he had sexual intercourse twice with the complainant but he said this was with the complainant's consent.

The State's case comprised the evidence of the complainant, Ms Asiphe Gobani, her friend Ms Asemahle Mhlati, a police constable to whom the complainant reported the rape, the complainant's mother and a sexual assault forensic nurse, Sister Faziela Bartlett, who examined the complainant after the incident. The appellant testified on his own behalf and called a witness, Ms Sinuphiso Nklusi.

In short the complainant's evidence was that a friend of the appellant's, one Mabuti, had lured her to a certain house on the pretext that a certain Sisi wanted to see her. There she met the appellant who prevailed upon her to enter the house. Inside he barricaded the door to the room, undressed her and proceeded to have vaginal and anal intercourse with her against her will. During the course thereof, he inserted his finger into her vagina, this being the subject matter of one of the counts of the indecent assault, the other being the anal intercourse. Upon leaving the house, the complainant went directly to her friend, Mhlati, told her that she had been raped by the appellant and asked her to accompany her to the police.

In the result, the complainant proceeded alone directly to the police and reported the rape.

The appellant's version was that he had had a romantic relationship with the complainant for three months and that on the day in question she had sought him out at the house in question, where they had enjoyed voluntary intercourse. He denied having anal intercourse with the complainant or inserting his finger into her vagina. The appellant's witness, Nklusi, testified that she was a friend of the appellant and knew the complainant. Her evidence was that there had been a romantic relationship between the appellant and the complainant who in fact had advised her personally of this fact some time before the incident.

The magistrate approached the complainant's evidence with caution on account of her youth and the fact that she was a single witness as regards the rape. The complainant had just turned 13 at the time of the incident and was 14 when she testified. From the magistrate's analysis of the evidence, furthermore, it appears that she did not simply pay lip service to this cautionary approach. She found that the complainant's evidence was satisfactory in all material respects and that its reliability was vouched safe, amongst other things, by the evidence of Sister Bartlett, who medically examined the complainant some six hours after the incident.

The magistrate also found support for, and consistency in, the complainant's evidence in that of Mhlati who had initially been with the complainant when Mabuti approached her and who had been the recipient of the first report of the rape. By contrast the magistrate found that although the appellant had made a reasonable impression in his evidence in chief he had not fared well in cross-examination when he had been evasive and had not answered questions directly. The magistrate analysed the probabilities and in particular the lack of any explanation as to why the complainant should falsely accuse the appellant of rape. She placed particular reliance on the medical evidence of the injuries to the complainant's genitalia and ultimately rejected the appellant's version as not reasonably possibly true.

On appeal it was contended that the magistrate erred in rejecting the appellant's version as not reasonably possibly true by disregarding:

1. inconsistencies and improbabilities in the evidence of the complainant as to the involuntary nature of the intercourse;

2. that the complainant's evidence was contradicted by that of other State witnesses, particularly as regards the issue of the first report;

3. the evidence of Nklusi regarding the prior relationship between appellant and the complainant;

4. Sister Bartlett's evidence that the injuries to the genitalia could possibly have resulted from consensual intercourse.

It was further contended that the conviction on two counts of rape amount to a splitting of charges and that the State had failed to prove the counts of indecent assault beyond a reasonable doubt.

The major attack on the complainant's credibility concerned her evidence that she had entered the house voluntarily in circumstances where she must have appreciated what the appellant wanted from her. The complainant did not deny that she knew the appellant previously. She was consistent in her account of being tricked by the appellant's friend, Mabuti, into going to the house. Her account was supported by the evidence of Mhlati who confirmed that after school that day Mabuti had called the complainant, at the same time telling her, the witness, to go. The complainant had duly gone off with Mabuti.

The complainant's explanation for going into the house was that when she refused the appellant said that he was going to get angry and she was afraid of him. She also stated that she had been afraid of the appellant because she had heard that he had killed someone. It must be borne in mind that at the time in question the complainant had only just turned 13 years of age whilst the appellant was just short of his 19^th birthday thus, although it seems a little puzzling as to why the complainant did not simply walk off rather than enter the house, the role of the complainant's naivety and youth and the threatening attitude adopted by the appellant should not be underestimated.

Furthermore, as was conceded by appellant's counsel the fact that the complainant voluntarily entered the house did not equate to consent to intercourse. Once inside the bedroom, it appears to me, the position was quite different. On the appellant's own version he placed the sofa against the door with the result that the complainant's chances of leaving without his permission were limited. She testified that in the bedroom the appellant made further threats against her and her family and prior to the rape produced a knife which he placed under the pillow.

The role of the medical evidence as corroboration for the complainant's version was also challenged. It was argued that Sister Bartlett had conceded that the injuries to the complainant's genitals could have been caused by friction during voluntary intercourse and thus the injuries found did not necessarily mean that the complainant was raped. This evidence deserves closer examination. The complainant testified that she was raped both vaginally and anally. By the appellant's account he had intercourse with the complainant vaginally but stopped when she complained of pain. He testified that she then told him that if normal intercourse was too painful he could have anal intercourse with her but he had refused to do so. After a while she invited him to continue with normal intercourse, which he did.

Sister Bartlett found that the complainant's genitalia were tender and swollen with fresh tears in the hymen and she concluded that there was a possible finding of sexual assault. On anal examination she found swelling, redness, bruising and fresh tears at the five and seven o'clock positions as well as abrasions in the perineal area, all of which led to a conclusion of a positive finding of "sodomy". She had noted in her report that the complainant had complained of vaginal and anal rape.

The witness testified further that her findings were consistent with the complainant's allegations of rape. Under cross-examination she stated that it was unlikely that the injuries could have been caused by consensual penetration.

The importance of the medical evidence lay in its confirmation of the complainant's evidence of sexual intercourse having taken place but, much more significantly, that anal intercourse or penetration must have taken place. The appellant denied any anal intercourse but was unable to explain the complainant's injuries in this regard. This fact, coupled with his unlikely evidence that, notwithstanding her complaining of pain on normal intercourse, the complainant nevertheless invited the complainant to have anal intercourse, in my view, deals a severe, if not a fatal blow, to his credibility.

The magistrate was critical of the appellant's evidence, the essence of which was that the complainant had approached him that day saying that she could only spend two hours with him because her mother had not gone to work and was in the vicinity. They had had consensual intercourse and there had been no problems between them as evidenced by the fact that complainant, upon leaving, promised to bring him back a present the next time she saw him. The appellant was at a loss to explain why, in these circumstances, the complainant would immediately go and lay a charge of rape against him. He testified that there were some eight people in the house but called none of them as witnesses to confirm his account. The only witness he called was Nklusi whom he said would testify that the complainant had said, after his arrest, that she did no want to make a case against him and that her mother lay behind it.

He conceded that when the complainant arrived at the house that afternoon she was with Mhlati but he denied that Mabuti was with them. It bears noting that had the appellant called Mabuti as a witness, and he had denied being involved in the incident at all, this evidence could, potentially at least, have strengthened the appellant's version and dealt a blow to the complainant's version. Appellant stated that at the complainant's request the relationship had been kept secret from her mother as the latter disapproved of his friends.

It was further contended on behalf of the appellant that the magistrate had disregarded the fact that the complainant's evidence was contradicted by that of other State witnesses, particularly as regards the issue of the first report. The first report which the complainant made of the rape was to her friend Mhlati. The latter confirmed receiving such a report from complainant who asked her to accompany her to the police station. The only discrepancy which arose between their evidence was the witness' evidence that the complainant was angry as opposed to crying or upset. The only other discrepancy between the State witnesses and the complainant's evidence was that of Constable Nogemane and her testimony that the complainant had told her that she had come straight to the police station from where she had been raped and that she was the first person she told that she was raped.

However, the constable testified in chief that the complainant told her "bits of the story" and she was quite "traumatised" and was not "telling it into detail". In my view, neither of the discrepancies is material, the first being a matter of a subjective impression which the witness formed, the second depending to no small extent on whether the complainant regarded her report to her friend, Mhlati, and request that she accompany her to the police station, as an official complaint, something on which she was not questioned. What is more important in relation to what took place after the alleged rape is that the complainant immediately went to report the incident to the police unaccompanied by any adult and even before speaking to her mother. In my view, this shows at least consistency in her evidence.

A further criticism against the magistrate's rejection of the appellant's version is that she disregarded the evidence of the appellant's witness, Nklusi, to the effect that there had been a prior romantic relationship between the appellant and the complainant. It must first be noted that the witness was a friend of the appellant, who testified that there were bad feelings between her and the complainant who had complained that she and others had threatened her over the incident involving the appellant. Nklusi also stated that she was very friendly with the appellant and did not want to see him imprisoned. She testified that she knew of the romantic relationship because in her presence the complainant had confronted another woman who had a relationship with appellant and in doing so stated that she, the complainant, had a relationship with the appellant. The witness herself had previously only seen the complainant and the appellant standing together on one occasion.

More significant, however, was what was put to the complainant in cross-examination and what the witness, Nklusi, did not state. In the first place it was not put to the complainant that Nklusi would testify that there was a romantic relationship between her and the appellant or any of the detail upon which she based this evidence. Instead it was simply put to the complainant that Nklusi would say that she, the complainant, had said she was afraid to tell her mother that the appellant was her boyfriend. That was the reason why the complainant had laid a rape charge against the appellant, namely because she did not want her mother to know that the latter was her boyfriend.

Nklusi, however, testified to neither of these matters when she was called. When asked about this by the magistrate, she denied the appellant's evidence that she had told him about the complainant telling her that she did not want to make a case but that her mother had, in effect, forced her to do so. She then testified that this had in fact been said to her by the complainant but that she had not mentioned it in evidence previously because she had not understood the questions directed to her. In summary, the most telling evidence which this witness was called to give was not mentioned by her until the magistrate raised it with her directly. What she did testify to in chief was not put to the complainant for her comment. In my view the overall effect of these omissions was to cast serious doubt on this witness' credibility.

The appellant averred during cross-examination that on the last occasion, before 24 August 2006, when he and the complainant saw each other they agreed that they would have sex when they saw each other again. Having regard to the main issue in question in this matter, namely that of consent, it is strange that this did not form part of the appellant's evidence in chief, or that this averment was never put to the complainant. A further aspect touching on the credibility of the witness Nklusi and/or the appellant relates to her evidence of the complainant allegedly confronting another woman involved with the appellant. From her evidence it would seem that the relationship between appellant and the complainant had lasted longer than a year. This, however, is in conflict with the evidence of the appellant, who testified that the relationship had lasted no longer than three months. The evidence of the appellant's witness thus appears to contradict his version in this regard.

Even if one accepts as a reasonable possibility that there may have been some more extensive or closer pre-existing relationship between the appellant and complainant, this is a far cry from a finding that the intercourse which took place that day was consensual. On the one hand there is the complainant's evidence of rape, both vaginal and anal, and on the other, appellant's insistence that intercourse was consensual, coupled with the denial that there was any anal intercourse. The medical evidence in my view, gives the lie to the appellant's evidence that there was no anal intercourse and thereby strengthens the probabilities that the entire physical encounter was non-consensual.

It is important, furthermore, to have regard to the overall probabilities. On the appellant's version there was no reason why the complainant would immediately lay false charges of rape against him. The most likely explanation put up on behalf of the appellant, namely that the complainant wanted to prevent her mother coming to know of the relationship, does not stand up to closer scrutiny. There is no direct evidence to suggest that the complainant's mother came to know of any relationship or encounter between the appellant and the complainant nor that she suspected the existence of any such relationship. Nor is there any evidence that as a result of what took place that afternoon the complainant's mother would have learnt what had taken place. As the complainant put it, no one knew what took place in that room other than her and the appellant.

The complainant's mother was called by the State and testified that she had not known the appellant prior to the day of his arrest and, furthermore, had first learnt of the rape from the police on the day of the incident and after the incident. She testified furthermore, that on the day in question she had gone to work as normal, returning at five or six o'clock in the evening. It was not even put to her that she had forced her daughter to lay the charge. In my view then, the magistrate did not err in accepting the complainant's evidence of the rape as satisfactory in all material respects and in rejecting the complainant's version as not reasonably possibly true.

The splitting of charges and proof of the indecent assault.

The magistrate found that the normal intercourse, interrupted by anal intercourse, followed by further normal intercourse, amounted to two separate rapes and an indecent assault. The insertion by appellant of his finger into the complainant's vagina during this encounter was similarly found to be an indecent assault. In S v Blaauw 1999(2) SACR 295 (W) 300a-b, it was held that:

"... mere and repeated acts of penetration, cannot without more, be equated with repeated and separate acts of rape. A rapist, during the course of raping his victim, withdraws his penis, positions the victim's body differently and then again penetrates her, will not have committed rape twice. Each case must be determined on its own facts. As a general rule, the more closely connected the separate acts of penetration are in terms of time and place, the less likely a Court will find that a series of separate rapes as occurred."

In the present matter the entire encounter took place on a bed and it appears over a relatively short period of time. On the complainant's evidence she remained in the same position throughout, namely on her back, both during normal and anal intercourse. From her evidence it would appear that the appellant only ejaculated at the end of the second round of normal intercourse. The various forms of intercourse appeared to follow immediately one after the other. In these circumstances I do not consider that the two incidents of normal intercourse can constitute two separate rapes. In my view, to find so would amount to a duplication of charges.

Similarly, the alleged indecent assault involving the insertion of a finger into the complainant's vagina forms part of the rape. To render it the subject of a separate conviction would again, in my view, amount to a duplication of charges. This incident took place in the middle of the rape. In my view the State failed to prove a separate intent on the part of the appellant to indecently assault the complainant. The anal intercourse falls, however, into a separate category. Had the incident occurred today, it would be subject to the provisions of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and would qualify as a rape. That offence now encompasses any act of sexual penetration performed without consent and includes penetration by the genital organs of one person into the genitals organs, anus or mouth of another person.

In May 2007 in Masiva v DPP Pretoria & Another 2007(2) SACR 435 (CC), the Constitutional Court held that, with prospective effect, the definition of rape had to be extended to include anal penetration of a female. The offences charged in this matter took place in August 2006, however, and the ruling can accordingly not apply. The anal penetration which took place in this case, notwithstanding that it was sandwiched between two bouts of normal intercourse, must be seen as a separate indecent assault on the complainant which merits a separate conviction.

In the result, I am of the view that the magistrate erred in convicting the appellant on the second count of rape and on count 4, the indecent assault involving the insertion of his finger into her vagina.

As regards sentence, it was contended that all the sentences imposed were disproportionately harsh and warranted interference. It was also submitted that the magistrate had disregarded evidence that the appellant had no reason to suspect that the complainant was younger than 16 years of age. It must immediately be said that no authority was cited, nor am I aware of any, to the effect that the State bears an onus of showing that the accused was aware, or must have been aware, that the rape victim fell within a class specified by the minimum sentence legislation, thereby attracting a minimum sentence. This is not an element of the offence, only a prerequisite for the operation of the sentencing regime and, therefore, I consider that proof of prior knowledge of this fact on the part of the appellant is unnecessary.

The appellant was sentenced to 20 years imprisonment on count 1 and ten years imprisonment on the indecent assault charge under count 3. The magistrate found that the accused's youth and his status as a first offender constituted substantial and compelling circumstances justifying a sentence less than the prescribed sentence of life imprisonment for which the appellant qualified by reason of the fact that the complainant was less than 16 years old at the time of the rape.

Notwithstanding this finding, it was contended on behalf of the appellant that both sentences were disproportionately harsh and unduly severe. These submissions were based on the appellant's youth and the fact that it was his first conviction as well as the fact that no violence was used in the commission of the offence and the "relatively insignificant injuries suffered by the complainant". This last submission is not well founded, regard being had to the fact that the complainant suffered tears both to her hymen and her anus. Furthermore the physical injuries are but part of the impact upon the complainant. As the social worker's report indicates, the entire incident had a profound and negative psychological impact on her.

In S v Vilakazi 2009(1) SACR 552 (SCA), the Court, per Nugent. JA stated that the

"essence of Malgas and of Dodo is that disproportionate sentences are not to be imposed and that courts are not a vehicle for injustice."

"Whether a sentence is proportionate cannot be determined in the abstract but only upon a consideration of all material circumstances of the particular case, bearing in mind what the legislature had ordained and the other strictures referred to in Malgas."

In the present matter the magistrate sentenced on a different basis, namely that two rapes were committed, to the picture facing this Court. That entitles us to approach sentence afresh. In any event, in my view, the sentences imposed both for the rapes and the indecent assault involving anal intercourse were, in all the circumstances, startlingly disproportionate and, therefore, warrant interference on that ground. The Court gave insufficient weight in the present matter to the appellant's youth and the fact that he was a first offender. At the time that the offence was committed the appellant was 19 years of age. His personal circumstances were favourable and the rape, although serious, was not accompanied by overt violence, other than the implicit threat constituted by the presence of the knife. The sentence of 20 years is, in all the circumstances, in my view, startlingly disproportionate.

Taking all factors into account, both aggravating and mitigating, I consider that an appropriate sentence for the rape would be one of ten years imprisonment. As far as the indecent assault is concerned similar considerations apply and, in my view, an appropriate sentence would be one of four years imprisonment. Taking into account the close relationship in time and place between the commission of this indecent assault and the rape itself as well as the overall effect of both sentences, in my view it would be appropriate to order that part of such sentence run concurrently with the sentence on count 1.

In the result I would uphold the appeal against the convictions on count 2 and 4, as well as the appeal against sentence on counts 1 and 3. I would replace the sentence of 20 years on count 1 with a sentence of ten years imprisonment and the sentence of ten years on count 3 with a sentence of four years imprisonment. In terms of section 280 of Act 51 of 1977, I would order that two years of the sentence on count 3 run concurrently with the sentence imposed on count 1, with the result that the appellant's effective sentence will be one of TWELVE (12) YEARS IMPRISONMENT-

BOZALEK, J

MURRAY. AJ: I agree.

MURRAY, AJ

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