South Africa: Western Cape High Court, Cape Town

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Hoofd v S (A494/2011) [2012] ZAWCHC 132 (3 February 2012)

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The child, who was a few years older by the time the matter came to court, testified that on the day in question appellant offered her money to by sweets and she said she would buy some potato chips. He then said that she should buy a packet for him too. She left her friends with whom she was playing in the street and went to the shop. When she returned to appellant's house to give him his share of the chips, she described how he raped her and broke her virginity with his finger.

The magistrate found that the evidence given by the appellant was farfetched, illogical and unconvincing. His explanation did not stand the test of scrutiny and was clearly false. The magistrate found that the complainant was a convincing and reliable witness.

The court gave a detailed judgment and properly applied its mind to the merits and demerits of the witnesses. Mr Theunissen, on behalf of the appellant, suggested that the case had not been proved beyond any reasonable doubt. His submissions in this regard were broadly stated and amount to a general submission that the court should have had a reasonable doubt as to the evidence given by the complainant. He suggested that the complainant had contradicted herself and was confused.

A fair reading of the evidence shows that these criticisms have very little value. He suggested there was a contradiction as to whether complainant had asked for money or whether appellant had offered her money. The reference in the record that he relies on does not support his submissions that the complainant admitted that she had contradicted herself in this regard. His other submissions amount to no more than the general suggestion that complainant was unreliable. What he ignores completely are the probabilities in this matter.

If as the appellant says the child was raped by another person shortly before she came to the house to deliver the chips, it is inconceivable that she would have told appellant this fact and not her own family and her mother. Appellant's evidence that he was wearing a jersey at the time, it was winter, and a very short pair of shorts, which were almost like underpants, does not make any sense and corroborates the police evidence that when they arrested him, he had not even put on his trousers and was walking around in these shorts.

I found appellant's evidence utterly unconvincing, contrived and illogical. He claims that complainant said she was raped by a big boy and yet she went to appellant's house to deliver his share of chips instead of getting some help. He says that she falsely accused him of rape and persisted in this when she saw her mother. Appellant cannot explain how he saw complainant's panties and contradicts himself when explaining what happened when she came "to deliver his share of the chips".

It seems to me that he was obviously lying. It makes no sense that complainant would have shown him her panties and if she did, why he cannot remember whether she was wearing jeans or a dress. It was twilight at the time and he pretends that he was concerned about the child, but does not explain why he did not take her home himself, hand her over to her mother and tell her about the big boy who had raped her daughter. After all, they only live four houses away.

Finally, his attorney did not challenge the arresting officer who
said that when he warned appellant that he was being arrested
on a charge of rape, appellant denies that he was warned as
aforesaid. Generally, appellant was a thoroughly

unsatisfactory witness and his guilt was proved beyond reasonable doubt.

On the question of splitting of charges, it seems to me that all the complaints made against appellant, namely that he kidnapped the child, indecently assaulted her and held her against her will, were acts which were perpetrated with only one intent and that was to rape the child. It seems that this was a continuous criminal transaction and that to separately define every stage of the rape and impose a separate sentence in each case, constitutes a splitting of charges.

I would allow the appeal in respect of the convictions for kidnapping, indecent assault and assault with intent to do grievous bodily harm, because the child came to appellant's house to deliver the chips; was only detained long enough to rape her; was only assaulted to the extent that she was not allowed to look out the window and that appellant first put his finger in her vagina before raping her, all of which were acts with the single intent of raping her. Immediately afterwards he allowed her to go home and did not detain her any further.

It is unfortunate that the court took into account the sentence of five years, which was not ordered to run concurrently with the 20 years imprisonment for the rape and looked at the effective sentence of 25 years, because the sentence of 20 years for rape in a case like this is particularly light. This is a case where I would have imposed 25 years imprisonment for the rape, but I do feel there has been a splitting of charges. The prosecution was incorrect in seeking a separate conviction and sentence for each of the components of the act of rape.

I would accordingly allow the appeal against the convictions for kidnapping, indecent assault and assault with intent to do grievous bodily harm and set aside those sentences. I would confirm the conviction and sentence in respect of the charge of rape.

WEINKOVE, AJ

I agree, and I accordingly allow the appeal against the conviction for kidnapping, indecent assault and assault with intent to do grievous bodily harm and set aside those sentences. I confirm the conviction and sentence in respect of the charge of rape.

SALDANHA, J