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Zama v S (A527/2010) [2011] ZAWCHC 152 (18 February 2011)

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She met the first appellant on her way to the Blue Banana Club. He called her to talk to her and walked with her to the club. She said she did not feel unsafe when he spoke to her, as he was a juvenile. During the conversation they discovered that they lived in different sections of the same township, Guguletu. The first appellant asked her if she drank and offered her R50.00 to buy drinks. She chose instead to buy drugs with the R50.00 she received. Upon purchasing the drugs, the complainant informed the first appellant that she intended going to the taxi rank to smoke the drugs. The first appellant said it was too far and persuaded her to smoke on the grass next to the Castle instead She smoked while the first appellant sat with her.

While she was smoking, the second and third appellants joined them. The complainant said the second appellant told her she would be a prostitute that evening, even if she was not one before. He instructed her to take of her pants, which she did, as she was afraid that he would harm her with a knife he had in his hand. The appellants then had sex with her once, starting with the first, then the second and then the third appellant. The third appellant used a condom. Thereafter, the third appellant left and stood on the opposite end of the Castle. The first appellant took her with him to request a blanket from street people in the area and upon receiving the blanket, they returned to the same place where the first appellant raped her a second time. The second appellant also raped her a second time.

The complainant said she was bleeding at this time and informed the first appellant that she was thirsty and needed water The first appellant accompanied her to the City Hall pub to drink water. She said that even though she started bleeding heavily, there was no concern displayed by the appellants. On the way to the City Hall pub, she stalled and was approached by two police officers in private clothing, who inquired whether she was all right. The first appellant held her hand and would not let her go. She conversed with the policemen in Sotho when she heard that they were not Xhosa speaking and explained that she wanted water The officer accompanied her into the City Hall Pub to fetch water. When she was out of sight of the first appellant, she told the police officer that she had been raped and showed him that she was bleeding. The policeman suggested that she returned to the men she alleged raped her, in order to identify them.

They walked behind her and followed at a distance. Upon reaching a group of men standing outside the Blue Banana Club, she pointed to the three appellants. She identified these three appellants from among six men standing in a group.

They were informed of the allegation and arrested. At this point one of the men attempted to run away, alleging that he did nothing wrong. He then explained that he paid the complainant R20.00 to have sex. The grounds of appeal on which the three appellants proceeded are that the complainant was a single witness and that she was under the influence of drugs. This affected her ability to identify the appellants herein. It was further submitted that the rape took place in a poorly lit area, further compromising the complainant's ability to observe the person or persons who raped her. Alternatively it is submitted that the complainant consented to sex and was paid therefore

In Johan Marx v S 2005 (1) ALL SA 267 (SCA) at 325g-h, Nugent, J stated the following:

""What is required is not simply a comparison of the competing evidence, but also an assessment of the veracity and reliability of the evidence in relation to each element of the offence The state is required to prove all elements of the offence beyond reasonable doubt."

During the trial, the first and third appellants testified while the second appellant elected to remain silent The state led evidence which indicated that semen found on the complainant is linked through DNA evidence to the second appellant. The complainant's evidence was that the second appellant was the last person to have sexual intercourse with her. It follows then his semen was found on her and identified. The third appellant used a condom and could not be linked to the rape through DNA evidence. The DNA thus places the second appellant on the scene and confirms that he had sexual intercourse with the complainant. The evidence of the DNA testing was not challenged and the process by which it was realised appears to be without fault. The defence made certain concessions and admissions regarding the calibration and efficiency of the testing process.

The identity of the first appellant is not in issue, having regard to the evidence. The complainant testified that she was not affected by the drug she smoked and spent a fair amount of time with the first appellant. Constable Ngobeni also identified the first appellant who walked with the complainant to the City Hall Pub. Consequently the submission that the complainant is mistaken about the first appellant's identity, does not withstand scrutiny and the evidence indicates the contrary. The alternative ground of the submission of mistaken identity of the first appellant is the submission that he paid the complainant to have sex and that she consented.

Whilst the complainant admitted receiving money from the first appellant, the evidence was not clear that she understood that the first appellant paid her to have sex. Her evidence was that the money was not tendered in exchange for sex, but was offered to her to buy a drink. She chose to buy drugs instead. Nugent. JA noted in S v Vilakazi 2009 (1) SACR 532 at 556a-b. that studies show that a woman's right to give or withhold consent to sexual intercourse is one of the most commonly violated of all human rights in South Africa. It does not follow that the complainant agreed to have sexual intercourse because the first appellant offered her money for drinks. It does not follow that because she was comfortable with having the first appellant in her company, that she consented to sex. The evidence did not establish that the complainant agreed to have sexual intercourse with the first appellant for payment or gratuitously.

The magistrate found that there was a financial arrangement between the complainant and the first appellant initially to have intercourse, but that that initial negotiation changed when appellants 1, 2 and 3 sought to have sex with the complainant opportunistically, based on the first appellant's alleged transaction with the complainant. If the magistrate's supposition is correct that it was a financial transaction, it does not explain the first appellant's persistence in seeking the complainant's company after they left the area around the Castle, when the complainant sought a drink of water. It also does not explain why the first appellant told Constable Ngobeni that the complainant was his wife.

Even if the circumstances were such that the complainant and the first appellant negotiated some transaction, it is clear that the appellants sought to take with force more than they negotiated for. The presence of the knife supports the complainant's version that it was not a consensual engagement. Constable Ngobeni testified that the third appellant tried to run away and that he said he paid the complainant R20.00 to have intercourse. During his evidence in chief, the third appellant testified that he did not know the first and second appellants and that he spoke to them in the cells and asked them whether they knew about this case, as he did not know about it.

The third appellant did not confirm in evidence in chief that he paid R20.00 for sex with the complainant nor did he challenge Constable Ngobeni's evidence that he tried to run or that he paid R20,00 for sex. When challenged, he said that he did not recall saying this. His version is improbable in view of his evidence in chief that he did not know the first and second appellants and that he did nothing wrong as compared to the evidence of Constable Ngobeni, which was before the magistrate that he alleged that he paid R20.00 for sex. He cannot at this stage recant and seem to rely on this version on appeal to overturn the conviction. His evidence with regard to the payment of sex was not confirmed under oath and was not tested under cross-examination and cannot enjoy consideration now.

Having regard to the evidence, the complainant testified that the second and third appellants approached her and the first appellant, and that the second appellant held a knife and instructed her to take off her pants, whereafter alt three had sex with her without consent. The second appellant did not refute this and neither did the first and the third appellants. The complainant's testimony that she was raped and was forced at knife point to have sexual intercourse with the three appellants, was relayed to Constable Ngobeni shortly after the incident occurred. It was evident that she bled as a result of the forced sexual intercourse.

The evidence of the district surgeon that she was in a menstrual cycle was clarified by his evidence that she could have commenced bleeding due to the trauma. This further supports the complainant's version of forced sexual trauma being experienced. The appellants submit that it is problematic that the magistrate made negative observations about the complainant's evidence, but accepted her eyewitness identification in a sexual case and ought not to have done so. I had found no authority for this view and I have not been referred to any authority.

Constable Ngobeni's evidence is that he saw the first appellant with the complainant earlier that evening outside of the City Hall. When they arrested the appellants, he approached the first appellant initially as he remembered him. This corroborates the complainants identification of the first appellant. In the event that any portion be applied when considering the evidence of the state, such portion should be applied as a result of the particular evidence in the matter, rather than due to the case being one involving sexual intercourse or rape. In this regard I have been referred to s v Jackson 1998 (1) SACR 470 (SCA) and S v Van der Ross 2002 (2) SACR 362 (C). In S v Vilakazi 2009 (1) SACR 552 at 560e-g, Nugent. JA emphasised that the determinative test when a prescribed sentence should be departed from as expressed in S v Malqas 2001 (1) SACR 469 (SCA) is as follows;

"If the sentencing court, on consideration on the circumstances of the particular case, is satisfied that they rendered the prescribed sentence unjust, in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence."

Nugent. JA states further at 561a-b that:

"If a court is indeed satisfied that a lesser sentence is called for in a particular case, just justifying the departure from the prescribed sentence, then it hardly needs saying that the court is bound to impose that lesser sentence."

That was also made clear in Malgas which said that the relevant provision in the Act vests the sentencing court with power, indeed the obligation to consider whether the particular circumstances of the case require a different sentence to be imposed and a different sentence must be imposed if the court is satisfied that substantial and compelling circumstances exist which justify it. Even though the legislature prescribed minimum sentences resulting in life imprisonment in circumstances such as the present where the appellants had intercourse with the complainant more than once or in a group, which amounts to gang rape, the magistrate had regard to all the relevant factors before him when considering an appropriate sentence.

The court in the present matter deviated from the prescribed sentence and found that the young age of the appellants was a factor which necessitated a deviation from the minimum sentence. In addition, he considered the appellants spent three years in custody awaiting trial. These factors combined, caused the court to deviate from the prescribed sentence in relation to the first and second appellants. The third appellant had prior convictions for rape and robbery, both of which were relevant.

Having regard to the factors placed before the magistrate, the sentence meted out to any of the appellants, is not shockingly inappropriate and does not warrant interference. For the reasons above, I PROPOSE THAT THE APPEAL IN RESPECT OF ALL THREE APPELLANTS BE DISMISSED.

MIA, AJ

ERASMUS. J: I agree. The appeal Is dismissed. The convictions and sentence of all three the appellants are confirmed.

ERASMUS. J