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Hanekom v S (A 200/2012) [2012] ZAWCHC 216 (24 August 2012)

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J U D G M E N T

YEKISO, J

This is an appeal against conviction only of the appellant on a charge of contravening the provisions of Section 3 of the Sexual Offences and Related Matters Act 32/2007.

The allegation against the appellant was that during the night of the 1^st and the 2^nd January 2010 and this was at or near Kliprug, Lamberts Bay within the Regional Division, Western Cape the appellant wrongfully and intentionally committed an act of sexual penetration with Susanna Linert, the complainant in the court a quo, who was then 33 years of age, by inserting his penis into her vagina and in the process had sexual intercourse with the complainant without her consent.

The appellant, who was legally represented throughout the proceedings in the Regional Court, pleaded not guilty to the charge against him and in his plea-explanation in terms of the provisions of Section 115 of the Criminal Procedure Act, 51 of 1977 the appellant denied having had sexual intercourse with the complainant on the date and place as mentioned in the charge sheet and in so doing placed literally each and every element of the offence with which he was charged in dispute.

In amplification of his denial that he had committed the alleged sexual penetration on the complainant, the appellant indicated in his plea-explanation that one Piet Goeieman is the person who had sexual intercourse with the complainant at the time and place as alleged in the annexure to the charge sheet.

At the conclusion of the ensuing trial, which commenced on 22 June 2011 and concluded on 1 July 2011, the trial court concluded that the state had succeeded to prove the guilt of the appellant beyond reasonable doubt and proceeded to convict the appellant as charged.

This appeal, which is with the leave of the Court a quo is against conviction only. The events which formed the basis and background to the charge subsequently preferred against the appellant occurred at the residence of the complainant at a farm Kliprug, Lamberts Bay during the night of the 1^st and the 2^nd January 2010.

In the light of the appellant’s plea explanation it is apparent, on the basis of the evidence on record, that there are a number of issues and facts that are not in dispute and which could, for all intents and purposes, be regarded as common cause.

These issues form the background on which the issues in dispute in this appeal should be determined and these common cause facts are as follows:

That the appellant and the complainant, at the time of the incident, knew each other very well; that the incident took place at the residence of the complainant during the night of the 1^st and the 2^nd January 2010; that prior to the incident occurring there was excessive alcohol intake that took place and that both the complainant and the appellant were, as a consequence of such alcohol intake, heavily under the influence of intoxicating liquor. In the course of such alcohol consumption the complainant’s husband went to bed where after the complainant similarly went to bed after Piet Goeieman as well as the appellant had already left.

The appellant, who had earlier left the complainant’s residence, returned later and according to the appellant’s version or evidence, gained access to the complainant’s residence whilst the complainant together with her husband, Piet Mapouti, were asleep in their bedroom. It is common cause that whilst the complainant was sleeping on her bed and next to her husband, someone had sexual intercourse with her.

It further appears to be common cause that during the process of the events which occurred in the complainant’s bedroom a person hastily left the complainant’s bedroom and ostensibly went out of the complainant’s residence. There appears to be no dispute that once the complainant had realised that someone was on top of her, having sexual intercourse with her, the complainant pushed off the person who was laying on top of her and immediately thereafter went to switch on the lights.

Once the complainant had switched on the lights, soon after she had pushed off the person who was laying on top of her, she established that the appellant was in her bedroom. It is further common cause that the incident which constitute the basis of the complainant's complaint was subsequently reported to the South African Police Service who conducted a further investigation of the matter.

Now in an attempt to prove its case the state called two witnesses in the person of the complainant, the said Susanna Linert, as well as the complainant’s neighbour one Magrieta Goeieman.

The appellant, in turn, testified in his own defence and did not call any witnesses.

The salient features of the complainant’s evidence are to the effect that during the night in question she, together with her husband, a neighbour of hers, Piet Goeieman, as well as the appellant with a further a female person who is not specifically mentioned in the record of the evidence were enjoying New Year’s Eve festivities at the residence of the complainant.

The appellant arrived at the complainant’s residence whilst they were busy having a braai and simultaneously consuming alcoholic beverages. The appellant who came to the complainant’s residence barefoot (he had apparently been robbed earlier in the day) was given a pair of shoes to put on by Piet Mapouti, the complainant’s husband. The appellant was also given food. In the process the complainant admonished the appellant that she regarded him as a son and that it would only be on that occasion that she would share a drink with him and that as from the following day onwards matters would revert to normality.

The complainant's husband was the first to go to bed having been sufficiently under the influence of intoxicating liquor, to put it in mild terms. Once Piet Goeieman and the appellant had left her residence, the complainant closed the door and went to sleep with her clothes on next to her husband. She points out in her evidence that she had on a short sleeve T- shirt as well as a short pair of trousers and a panty.

In the course of her sleep she established that a person was on top of her and having sexual intercourse with her. She also realised that her husband was still sleeping next to her. When she realised what was happening she pushed the person who was on top of her off the bed and shortly thereafter switched the lights on.

Once the lights were on, the complainant saw that the appellant was in the bedroom and standing next to the bed. She had in the meantime also observed a person who hastily left the bedroom.

The appellant was also known to her as Twaksak. Once she had seen the appellant standing next to the bed, she then confronted him asking: “Twaksak, hoekom doen jy dit aan my?” According to her version the appellant then responded: “P/ef Goeieman het vir my gese ek moet dit doen. ”

At that stage she was completely naked. She thereupon dressed herself and proceeded to go to the residence of Piet Goeieman. Once she reached the residence of Piet Goeieman, she knocked at the front door. Magrieta Goeieman, who is Piet Goeieman’s spouse, who had been sleeping at the time went to open the door for the complainant. Once she had opened the door, she went back to her bed and the complainant followed her into the bedroom. Once in the bedroom the complainant reported to Magrieta that the appellant had sexually molested her and that the appellant said to her it is her husband, Piet Goeieman, who instructed the appellant to do it.

The response Magrieta Goeieman gave was that she should decide herself what to do under those circumstances. She did not see Piet Goeieman in his residence whilst she was there. She thereafter left the residence of Magrieta Goeieman and proceeded to the residence of one Diana Nel from where she telephoned the police and later laid the charge of rape against the appellant.

In the course of her evidence under cross-examination she referred to an instance where the appellant had stood next to the bed with his underpants as well as his pair of trousers, lowered down to the knees, with his penis hanging outside or with his genitals hanging outside, or being exposed.

On being confronted of this omission of the evidence in her evidence-in-chief, her response was that she had forgotten about it and also attributed it to nervousness whilst testifying.

Magrieta Goeieman confirms in her evidence that whilst sleeping she heard a knock on the front door and that when she opened the door she saw the complainant at the door. She further confirms in her evidence that the complainant reported the sexual assault on her by the appellant and further that the appellant had said to her that her husband, Piet Goeieman, had suggested to the appellant that: “hy moet dit doen.”

She further states in her evidence that although the complainant was under the influence of intoxicating liquor she clearly knew what she was saying and was very well aware of the circumstances around her.

As has already been pointed out, the appellant also testified in his own defence. The evidence of the appellant is simply this: he confirms that he had earlier in the night been to the complainant’s residence. He confirms that he had been given food, liquor and meat. After he had been to the complainant’s residence he had visited a number of friends.

When he later walked past the complainant’s residence he saw Piet Goeieman knocking on the complainant’s bedroom window. Thereupon Piet Goeieman called him and, in a threatening manner, instructed him to open the complainant’s bedroom window. Once he had managed to have the window opened the appellant jumped in through the window into the complainant’s bedroom. He confirms that it was dark inside the complainant’s bedroom and that once inside he proceeded to the main door to open the door for Piet Goeieman to come in.

The appellant had felt that he needed more liquor even before he got inside the residence through the window in the complainant’s room. Once Piet Goeieman had entered the complainant’s residence he (Piet Goeieman) proceeded to the complainant’s bedroom whilst the appellant looked around the kitchen whether he could find any liquor. According to his evidence he found a half full five litres wine container which he put on a sink cabinet. He then decided to look around for money.

He proceeded to the complainant’s bedroom. Once inside the complainant’s bedroom he saw Piet Goeieman whispering into the complainant’s ear. In the process the complainant turned around and Piet Goeieman then had sexual intercourse with the complainant. He formed the view that Piet Goeieman was there because of an earlier arrangement between him and the complainant. While scratching around in the bedroom for money Piet Goeieman hastily left the bedroom whereafter the complainant switched on the light.

Once the complainant had switched on the light the latter asked the appellant why he raped her. His response was he, (the appellant) could not do such a thing to her when he (the appellant) regarded the complainant as his mother. Shortly thereafter the complainant left the room and said to the appellant that she was going to telephone the police.

What have been stated in the preceding paragraphs are then salient features of the evidence on the basis of which the magistrate found the state to have succeeded to prove the appellant’s guilt beyond reasonable doubt and convicted the appellant of rape as charged.

The appellant attacks his conviction on the basis that another Court could conclude that the evidence of the complainant who was a single witness was not approached with sufficient caution; that the evidence of the complainant was uncertain and on occasions confusing; that in those instances where the evidence against the appellant is circumstantial, the trial court erred in finding that the only reasonable inference was that the appellant is the person who committed an act of sexual penetration on the complainant; that the appellant’s denial of sexual penetration is reasonably possibly true; that at the very least the trial court ought to have found that a reasonable doubt exists and that, if indeed a reasonable doubt existed, the appellant would have been entitled to the benefit thereof and that, in any event, there is a reasonable possibility that another court may come to a different conclusion to that arrived at by the trial court.

As has already been pointed out elsewhere in this judgment, it is common cause that someone had sexual intercourse with the complainant whilst she was asleep next to her husband in the bedroom. It is further common cause that it was dark in the bedroom when the sexual assault on the complainant was committed. The complainant does say in her evidence she did not see the person who was on top of her and busy having sexual intercourse with her. She even conceded as much in her evidence under cross-examination for that matter that because she had not seen the person who was on top of her when she woke up, that under those circumstances, it could have been Piet Goeieman but on the other hand the complainant is adamant in her evidence that once she had switched on the lights she saw the appellant standing next to her bed with his pair of trousers as well as his underpants lowered down to the knee length with his penis hanging outside.

She is adamant in her evidence that once she had switched on the lights she saw a person hastily leaving the bedroom. According to her evidence once she had seen the appellant standing next to the bed with his pair of trousers half lowered to the knee length, she confronted the appellant and asked him: “hoekom doen jy dit aan my.”

She furthermore is adamant that the appellant’s response was that it is Piet Goeieman who instructed him to commit the act of sexual penetration on her. The appellant also concedes in his evidence that once the complainant had confronted him about the allegation of sexual assault the complainant had dressed up and shortly thereafter left her room, telling the appellant that she was going to have the matter reported to the police.

The complainant is consistent in her evidence that once she had confronted the appellant about the sexual assault on her, the appellant responded that it was Piet Goeieman who had instructed him to do it. This is how she reported the matter to Magrieta Goeieman, namely, that the appellant had said to her, that the appellant had committed the sexual act on her on instructions by Piet Goeieman.

The content of her statement made to the police during the course of the day on the 2^nd January 2010 affirms this consistency. This is what the complainant stated in paragraph 4 of her statement to the police made on the 2^nd January 2010 and I quote:

“Later die aand toe ek wakker skrik, toe voel ek iemand le bo-op my en is besig om vir my te seks.

Ek het ook gehoor dat my man langs my le en snork. Ek het toe die man afgestoot en die ligte aangesit.”

In paragraph 5 of her statement made to the police on the same day the complainant has this to say:

“Toe sien ek dat dit Patrick Hanekom is wat bo-op my gele het.”

And in paragraph 6 of the same statement this is what the complainant had to say:

“Patrick het voor die kas gestaan en ek het gesien dat sy kortbroek en sy onderbroek halfpad afgetrek is. Sy penis het nog buite gehang.”

The complainant concedes in her evidence that earlier in the night she was heavily under the influence of intoxicating liquor but then at the stage she discovered the sexual assault being perpetrated on her, she had relatively recovered from her drunken state and was very well aware of what was happening around her.

The appellant on the other hand denies that he had committed the sexual assault on the complainant. The appellant had maintained this stance from a plea stage up to and including his evidence when he testified in his own defence but what the appellant wants us to believe is the following:

That despite the earlier act of generosity in terms of which the appellant was given food, braai meat and liquor to consume, he had none the less, whilst busy opening the window on the complainant’s bedroom at that stage formulated an intention of searching for liquor and money to steal from the complainant;

that whilst Piet Goeieman was busy having sexual intercourse with the complainant he continued scratching around the complainant’s bedroom, in complete darkness, in an attempt to find money. Once the complainant had switched on the lights and on being confronted by the complainant on the sexual assault, that his response was: how could he do it to the complainant as he regarded the complainant as his mother.

On being confronted about the alleged sexual molestation by the complainant, the appellant does not tell the complainant that it was in fact Piet Goeieman who had raped her and not the appellant. Furthermore, the appellant does not in any way pursue the complainant when the latter stated that she was going to have the matter reported to the police to assure the complainant that it is in fact Piet Goeieman who had committed the sexual assault on her. As a matter of fact evidence suggest that when the complainant confronted the appellant about the sexual assault on her, the appellant thereafter simply vanished into thin air.

In my view the appellant’s version of events which occurred in the complainant’s bedroom during the night of the 1^st and 2^nd January 2010 does not in any way make any sense at all.

Much criticism is levelled against the complainant in the appellant’s submissions in the manner in which the complainant tendered her evidence. It is suggested that, in the course of her evidence, the complainant was confused and there are a lot of uncertainties arising from her evidence.

The magistrate does refer to the complainant’s demeanour whilst giving evidence in his judgment. The magistrate does state in his judgment that the complainant appeared nervous in the course of her testimony and that the omission by the complainant of certain facts in her evidence could be attributed to the lapse of time between the time the complainant tendered her evidence and the time the events occurred.

It is apparent on the basis of the judgment of the trial court that not only did the magistrate take into account the complainant’s demeanour but had regard to all other relevant factors such as the probabilities, the objective facts and the consistency of the complainant’s version of the events.

In my view, the criticism levelled against the complainant’s evidence based on the alleged uncertainties and confusion is not in the circumstances of this matter justified.

To sum it up: The complainant is asleep next to her husband in her bedroom after having consumed intoxicating liquor earlier in the night. In the course of her sleep she discovers that a person is on top of her and having sexual intercourse with her. She pushes this person off her and, whilst in her naked state, switches the lights on only to see the appellant standing next to her bed with his pants pulled down to his knees and with his genitals hanging outside. She confronts the appellant and the appellant’s response is that he was instructed by Piet Goeieman to commit the dastardly deed perpetrated on the complainant. She goes to the residence of Piet Goeieman and tells his spouse, Magrieta Goeieman, of the instructions given by her husband to the appellant that the latter should rape her.

When confronted by the complainant about the sexual deed, the appellant does not say to the complainant but it is Piet Goeieman who has just had sexual intercourse with you. Whilst the complainant did not actually see the person who perpetrated the sexual act on her, it is common cause that it was dark in the bedroom when the sexual act was committed, the only inference to be drawn on the basis of the facts of this matter is that the appellant is the person who perpetrated the sexual assault on the complainant and that the magistrate was correct in drawing such an inference.

In arriving at this conclusion I have carefully considered the submissions made on behalf of the appellant but despite such detailed submissions and argument before us, I am not persuaded that the conclusion and the inference drawn by the trial court, based on the facts of this matter, is incorrect or not justified.

It therefore follows, in my view, that the appellant’s appeal against his conviction ought to fail. In the result I would propose the following order namely:

That the appeal be DISMISSED and the conviction and sentence be confirmed

YEKISO, J

I agree and it is so ordered

STELZNER, AJ