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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case Number: A372/09

In the matter between:

Johannes Van Wyk …..............................................................................................................Appellant

and

The State …...........................................................................................................................Respondent

JUDGMENT DELIVERED ON 30 AUGUST 2010

BAARTMAN, J

[1] I handed down this judgment on 20 August 2010. Later that same day it came to my attention that I had erroneously, in some instances, referred to the appellant as accused 2 in the court a quo rather than accused 3 and made some related errors referring to accused 2. I have herein corrected those mistakes, and what follows is the corrected judgment.

[2] On 17 February 2006, the regional magistrate at Cape Town convicted the appellant and two others of three counts of rape against the same complainant. This is an appeal against that conviction after the appellant successfully petitioned the Supreme Court of Appeal.

[3] The regional magistrate referred the matter for sentence to the High Court in terms of section 52(1 )(i) of the Criminal Law Amendment Act 105 of 1997 (the Act). On 6 August 2007, Meer J confirmed the convictions in respect of the appellant, accused 3 in the court a quo, and one of his co-accused, accused 2 in the court a quo, and sentenced the appellant to 9 years direct imprisonment and accused 2 to 10 years direct imprisonment. In respect of accused 1 in the court a quo, Meer J altered his conviction and convicted him as an accomplice to the rapes and sentenced him to 8 years direct imprisonment.

BACKGROUND

The state's version

[4] The complainant was a single witness to the events surrounding the rapes. She was also intoxicated at the time of the rapes. The circumstances that led to the conviction appear from the record to be the following:

1. The state charged the appellant and his 2 co-accused with 3 counts of rape perpetrated against the same complainant.

2. The complainant and the accused worked on the same farm in Velddrift, in the Western Cape. The complainant knew the appellant and his co-accused

3. On the evening of 14 February 2004, the complainant spent the night drinking with friends. She had an arrangement with one Lena Casper (Casper) to meet her at 11 hOO the morning following their drinking party of 14 February 2004. On 15 February, the complainant arrived as per their arrangement at Casper's home; however, Casper was still in a drunken sleep. The complainant herself was intoxicated both from the night before and from some alcohol she had consumed shortly before arriving at Casper's home.

En route from Casper's home, the complainant met accused 2, whom she knew as Mantas. He wanted to walk with her but according to her evidence she refused and continued on her way to the farm, Rietfontein (a neigbouring farm), where she intended to consume more alcohol.

4. The road to Rietfontein took the complainant along a path through the bushes. While walking through the bushes, accused 2 came from behind and threw her to the ground. She then noticed accused 1 and the appellant in the company of accused 2.

5. Accused 2 obtained a knife from the appellant, whom she called Kobus. It appeared that the appellant was known as Kobus. Accused 2 cut the complainant's panties and trousers from her body. She tried to hold her legs closed but accused 2 cut her thighs with the knife and stabbed her in the hand, thereby managing to overcome her resistance, whereupon he raped her.

The complainant said that accused 2 held the knife to her throat while he raped her. The appellant raped her after accused 2 had finished raping her. Thereafter, accused 1 attempted to rape her but was not able to get an erection.

(h) After the rape, the complainant's bottom was bare and she walked
without covering herself to Magrieta Afrikaner's (Afrikaner) house. The
latter also lived on the same farm as the accused and not far from
where the incident took place. The complainant reported the rape to
Afrikaner who testified that she gave the complaint a skirt and panties
to wear.

(i) On 16 February (the Monday), the owner of the farm took the
complainant to the police where she laid a charge that led to the
proceedings against the appellant and his co-accused.

(j) The complainant took the police to the scene of the rape where they retrieved her cut clothes and three condoms.

The defence version

[5] The accuseds' version was that the complainant had consensual intercourse with accused 2. While they were having intercourse, accused 1 and the appellant walked by. They stopped and accused 2 offered them some alcohol. Apparently, the alcohol was lying close to the couple. When accused 2 and the complainant had finished having intercourse, the 3 men left and the complainant followed with an uncovered bottom. Accused 2 offered her his underpants but she refused them. According to the accused, accused 2 had consensual intercourse with the complainant and his co-accused did not have intercourse with her.

[6] Their version was further that the complainant had intercourse with accused 2 again later that same day at his home. However, when the accused refused the complainant dagga, she threatened them. According to the accused, their refusal to give the complainant dagga led to her crying rape. According to accused 2, the complainant was with him the Saturday night when she gave him condoms.

Criticism of the complainant as witness

[7] The complainant said that she had been intoxicated and that she could not remember all the details of the rape. It appears clearly from the record that the complainant was unable to remember all the aspects of the rape. I deal with some of that detail below:

(a) In cross-examination, the legal representative for the accused put it to the complaint that she had fallen close to the windmill en route to Afrikaner's home. The complainant admitted that to due to her alcohol intoxication she could not remember whether she fell as alleged.

(b) The complainant, in cross-examination, said that the appellant and accused 2 had both raped her twice. She indicated that she had forgotten that they had raped her twice. She attributed her memory loss to her alcohol intake.

(c) Initially, the complainant said that accused 1 had had intercourse with her. She later corrected herself and explained that because he could not achieve an erection he had merely moved his penis between her legs. When the court clarified her evidence, she said that she was not sure whether accused 1 had penetrated her. However, she said that after accused 1 had finished, he held her down to facilitate the second rape on her by accused 2.

Corroboration of the complainant's version

[8] The following witnesses corroborated the complainant:

(a) Afrikaner confirmed that the complainant was bare bottomed when she arrived at her home and that the complaint reported that the accused had raped her.

(b) Afrikaner confirmed that she gave the complainant a skirt and panties to wear. She further said that the complainant had a wound on her hand.

(c) Inspector Voogt (Voogt) said that she interviewed the complainant on 16 February 2006. The complainant was nervous and complained that her thighs and hands were sore. Voogt took the complainant to the doctor.

(d) Inspector Barlow (Barlow) said that he was the investigation officer in the rape investigation. On 16 February 2006, the complainant took him to the scene of the alleged rape. He found 3 used condoms at the scene as well as a piece of black cloth which the complainant identified as part of her panties. Barlow also found a pair of green trousers on the scene and said that the items of clothing had been cut and not torn. That evidence was not contradicted.

GROUNDS OF APPEAL

[9] I deal below with the grounds of appeal in turn.

[10] The appellant alleged that the complainant had not been able to give a clear account of the rape and the role each accused was alleged to have played.

(a) It is so that the complainant was intoxicated when the incident occurred. She said as much from the start. It is further correct that she was not able to give a full account of the events due to her state of intoxication. However, she knew the accused before the incident and gave a sufficiently clear account of each one's involvement. She was able to recall that accused 1 could not achieve an erection and that accused 2 got the knife from the appellant. She indicated that accused 2 cut her panties and trousers. Barlow's evidence that the panties and trousers found at the scene were cut was not contradicted.

(b) The complainant further said that accused 2 had cut her thighs and hand to overcome her resistance to the rape. Afrikaner saw the wound on her hand. The complainant complained to Voogt about her thighs and hand and Voogt took her to the doctor.

(c) The doctor's report does not form part of the record nor did she testify. The state advocate was not able to explain the failure on the part of the prosecution to have placed the medical evidence before the trial court. It is unfortunate that the prosecution failed in this respect. Clearly, the written report of the medical examination alone contained necessary evidence that would have assisted the trial court and this court.

(d) Rape is a serious offence and the state can be expected to ensure that its prosecutors comply with the minimum standards for such prosecutions. Sadly, in this instance the absence of any explanation for the failure to have placed the medical evidence before the trial court indicates that the prosecution of this matter did not receive the attention needed in matters such as this. During argument members of the bench requested the state advocate to bring the matter to the attention of advocate De Kock, the Director of Public Prosecutions for the Western Cape. That request is repeated and for the Director of Public Prosecutions to reassess the measures in place in this regard in rural areas such as Velddrift.

(e) In my view, although it is correct that the complainant was intoxicated and that it affected her memory, she gave a satisfactory account of the circumstances surrounding the rape and the role played by each of the accused.

[11] Counsel for the appellant argued that the trial court erred in finding that the cut clothes supported the complainant's claim that she was raped.

(a) The complainant testified that accused 2 had cut her panties and trousers from her body. Barlow said that the items of clothing found on the scene had been cut and torn. In my view, that evidence supports the complainant's claim of rape as opposed to the accuseds' claim of consensual sex between the complainant and accused 2.

[12] Counsel further argued that the police finding of 3 condoms at the scene contradicted the complainant's version that the appellant and accused 2 raped her twice.

(a) In my view, the submission by counsel that one would expect more condoms on the scene if the complainant had been raped twice by both the appellant and accused 2 are mere speculation. The fact that the police found 3 condoms should be viewed as part of all the evidence and not in isolation.

(b) Rather than contradicting the complainant, the recovery of 3 condoms at the scene supports her version. The evidence must be seen against the version by the accused that accused 1 and the appellant did not have sexual intercourse with the complainant and the complainant reporting to Afrikaner that "Jannie hulle" raped her. It is so that one person using all 3 condoms in the short space of time is improbable.

[13] Counsel further argued that the complainant was a single witness and that there were contradictions in her evidence. I agree. Counsel relied on the judgment of S v Gentle 2005 (1) SACR 420. Cloete JA at 431 at a-c said:

"...If the evidence of the complainant differs in significant detail from the evidence of the other State witnesses, the Court must critically examine the differences with a view to establishing whether the complainant's evidence is reliable. But the fact that the complainant's evidence accords with the evidence of other State witnesses on issues not in dispute does not provide corroboration. ...What is required is credible evidence which renders the complainant's version more likely that sexual intercourse took place without her consent, and the appellant's version less likely that it did not."

[14] I agree that there are similarities between the two matters. However, applying the principles set out by Cloete JA to the present matter the following appears:

(a) The complainant arrived at Afrikaner's home with a naked bottom and claimed that "Jannie hulle" raped her (accused 1 in the court a quo). She alleged that accused 2 cut her clothes with a knife which he got from Kobus(the appellant). In cross-examination, it was put to her that

"En Kobus (the appellant) het soos u getuig het Kobus het toe nou vir Mantas (accused 2) 'n mes gegee."

(b) The complainant said that accused 2 cut her clothes off her body. She took the police to the scene of the rape where they recovered her cut clothes. Barlow's un-contradicted evidence was that the clothes were cut rather than torn.

(c) The complainant said that accused 2 stabbed her on the hand and thighs. Afrikaner saw the wound on her hand. The complainant complained to Voogt about sore thighs and a sore hand.

[15] In this matter, there is thus credible evidence that corroborated the complainant's version. In addition to those aspects dealt with above, the following corroborated her version:

(a) The complainant testified that she left Afrikaner's home at approximately 17h00 and went home with her sister. Afrikaner confirmed this evidence. This contradicted the accuseds' version that she was with accused 2 later that same evening.

(b) Accused 2 confirmed that the complainant refused the underpants that he offered her. It is true that that refusal could be a consequence of her state of intoxication. However, seen as part of the totality of credible evidence it is unlikely that this was the sole reason and not indicative of her outrage at being raped. Afrikaner testified that the complainant was upset when she made the first report of the rape and accepted the clothes she offered.

[16] It is the duty of the court of appeal to reject the conclusion of the trial court on a factual question if the appeal court is convinced that such conclusion is wrong. An appeal court will not easily upset the credibility findings of the trial court that had the opportunity of seeing and hearing the witnesses. In this matter because the complainant was a single witness and was intoxicated at the time of the offence, her evidence must be approached with caution. (See Fletcher v S and Another 2010 (2) All SA 205 (SCA))

[17] However, in my view, the trial court correctly accepted the complainant's evidence. On the facts of this matter, I agree with the trial court's rejection of the appellant's and his co-accuseds' versions.

Sentence

[18] The appellant, correctly in my view, did not appeal the sentence imposed. CONCLUSION

[19] I, for the reasons stated above, propose that the appeal against conviction be dismissed.

Baartman J

I agree

Bozalek, J

I agree, it is so ordered

Cleaver, J

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