IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape Division)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape Division) Case no: K/S 69/05 Date Heard: 06/12/2005 Date delivered: 07/12/2005 In the matter between: THE STATE and VICTOR NTLAENG Accused 1 SILAS REENMAKER Accused 2 JUDGMENT TLALETSI, J: [1] The two accused who were legally represented pleaded not guilty to the charges of Rape as well as alternative charges of contravention of Section 14(1)(a), read with Section 22 of the Act 23 of 1957. The allegations against them were that they on 5 July 2003 at Warrenton had non consensual sexual intercourse with K.M., a 13 year old girl as well as N.M. a 12 year old girl, alternatively that

they had sexual intercourse with the two girls who were under the age of 16 years. [2] They were on 31 May 2005 convicted by the Regional Magistrate on the main counts as charged. The regional Magistrate thereafter stopped the proceedings and referred their trial to this court for sentence in terms of Section 52(1) of Act 105 of 1997. The accused initially appeared before my sister, Molwantwa AJ. On this occasion she had doubt as to whether each accused have been properly convicted of the two counts of rape. She requested the regional Magistrate to furnish reasons for the conviction and how the common purpose doctrine was applied in their case. Molwantwa AJ recused herself from these proceedings and I took over the matter. [3] The record of the proceedings in the regional court has been certified by both counsel as a true record and the correct reflection of the proceedings before the regional court. The record therefore now forms part of the proceedings in this court. [4] It appears from the record of the proceedings that the regional Magistrate, in convicting the two accused of rape of the two complainants each by

3 both accused, relied on the fact that they assisted each other, acting on common purpose to rape the two girls. At page 180 of the record, the following is reflected in the judgment of the regional Magistrate:- Ek is van mening dat die Beskuldigdes inderdaad gemeenskaplike opset gehad het ten opsigte van beide hierdie klaagsters, om met hulle gemenskap te hou sonder toestemming. [5] In the subsequent reasons supplied, the regional Magistrate has conceded that the conviction cannot stand, and states that he has come to realize that the common purpose doctrine is not applicable to crimes that can only be committed through a person s own body as in the case of rape. There is no evidence to show that accused number 1 had sexual intercourse with the second complainant and that accused number 2 had sexual intercourse with the first complainant. I am therefore of the view that the conviction, having read the record, and the reasons supplied by the regional Magistrate, is not in order or borne out by the evidence and must be set aside. See also the decision of the Supreme Court of Appeal in S v Sithembiso Kimberley, case number: 519/2004, delivered on 19/09/2005,

as yet unreported at paragraphs 9,10 and 11 thereof. The Supreme Court of Appeal in this case overruled the decision in S v Kimberley and Another, 2004(2) SACR 39(E). See also the unreported decision of this court in The State v Johannes Hendriks case number: K/S 50/2004 delivered on 10/11/2004 the judgment of Kgomo JP with which Williams et Tlaletsi JJ concurred. [6] Having reached this conclusion what need to be decided, is what course should now be followed. This court is empowered by Section 52(3)(c)(ii) to alter the conviction to a conviction of an offence referred to in Schedule 2 and thereupon impose a sentence as contemplated in Section 51(1) (e)(ii), as the case may be. This court may also where appropriate in terms of Section 52(3)(e)(iii) alter the conviction to a conviction of an offence other than an offence referred to in Schedule 2 and thereupon impose the sentence the court may deem fit. [7] Mr Nel who appeared on behalf of the accused in this court, argued at length and correctly demonstrated the undesirability of the decision by the prosecution, to cause the accused to stand trial in the regional Court, when it was abundantly clear

5 that because the complainants aged 12 and 13 years respectively, that the regional Court will not have jurisdiction to sentence the accused. In that event after conviction the matter would have to be referred to the High Court for sentence, at which court they will appear before a single judge, who before imposing sentence, should be of the opinion that the proceedings in the regional court were in accordance with justice. By this move the state took the risk of exposing itself to a lighter test in which doubt should only exist that the proceedings were not in accordance with justice for the decision of the regional Magistrate. I am in agreement with this argument as well as the authorities referred to such as S v Snyder 2000(2) SACR 125 (NC); S v Mkhondo 2001(1) SACR 49 (W) and S v Njikelana 2003(2) SACR 166 (C) to name but a few. [8] The first doubt that existed when the reasons of the Magistrate were requested which related to common purpose has now been cleared. Mr Nel raised a number of contradictions from the state case to demonstrate that doubt should exist that the proceedings in the regional court were in accordance with justice. Before I deal with these aspects it is necessary to outline the evidence

presented before the regional court. The state case was based on the evidence of the two complainants, viz K.M. and N.M.; E.K., who is the aunt to the complainant on count 1, Dr Kruger being the practitioner who examined the complainants a day after the incident, and Ms Damon, a forensic analyst from the forensic laboratory who conducted an analysis of specimens provided to her for DNA purposes. Both accused testified on their behalf. [9] The two complainants in a nutshell testified that it was in the evening at about 8pm when they were from a party and proceeding to K. s grandmother s house for her to wear a pair of pants. On the way they were confronted by the two accused. It was dark as the street lamps were not on. Accused number 2 grabbed K.. They were without their consent, forcefully taken to a shanty belonging to accused number 1. The latter took her victim to the bedroom and the other two remained in the kitchen. It is a one roomed shanty partitioned with a curtain to convert it into a two roomed house. According to K., accused number 1 took off his clothes and he also forcefully undressed her. He remained with a skipper. She was crying. As she offered resistance accused number 2 came and helped accused number 1 to throw her on to the bed. Accused

7 number 2 left the room and went to the room where N. was. Accused number 1 called accused number 2 to provide him with condoms. The latter brought the condoms which they shared. As they were sharing the condoms, she testified, she got off the bed. She screamed, and threatened to call the police. Accused number 2 helped accused number 1 for the second time to put her onto the bed. As she screamed, accused number 2 burnt her fingers with a lighter. Accused number 2 remarked that N. was busy at the door and he left the bedroom. Accused number 1 ordered her to open her thighs. She refused. He hit her with his hands on the face. Accused number 2 came into the bedroom and told her that sy moet nou nie sy bra laat sukkel nie, sy moet sy bra gee. Accused number 1 forcefully opened her thighs and mounted her, and had non consensual intercourse with her. Accused number 1 wiped her private parts with a washing rag. She at a later stage after some incidents relating to being told to use a bucket when she asked to go to the toilet, and that she was sent to empty the bucket after accused number 2 used it, she managed to escape. Accused number 1 chased her and caught her after she returned to fetch her shoe that she lost in the yard. Accused number 1 accompanied her. Along the way as they were

walking towards the shop, he made an attempt to rape her for the second time. He threw her on the ground, pulled her panty down, mounted her and pressed his private parts onto hers. A motor vehicle came and lit them and he stood up. He accompanied her to her aunt s place where he waited outside. She made a report to E. who did not take her serious. [10] N. testified that inside the shack accused number 2 went to the bedroom and fetched blankets. He made a bed with these blankets on the floor. She refused to sleep with him. He tripped her, took off her pants despite her resistance. She cried. He smeared her private parts with Vaseline and tried to penetrate her. She screamed. He throttled and slapped her. He requested accused number 1 to give them a chance to use the bed as he can t properly penetrate her on the floor. After accused number 1 left with K., accused number 2 took her to the bed. He again mounted her and pressed his private parts onto hers. After some time accused number 1 returned and told him to leave her. After she went out to throw out urine that was in the bucket, accused number 2 followed her as she left. He threatened to repeat her on the veld and she ran away. Because she was afraid of the accused she

9 did not report the rape. She only made a report the following day after K. s mother came to their home pursuant to a report she received from K.. [11] Dr Lodewyk testified that when she examined K. he could not find any traces of assault. The reason could be attributed to the fact that it is difficult to find red marks on a dark skin. He found that the labia majora and minora were both swollen, the hymen was swollen and had two fresh tears and some bruising on the dematoma. He also found semen in her vagina. From what the complainant told her and his observation he was convinced that the complainant was a virgin. [12] In respect of N. he found 3 impressions of a finger mark on her neck. The labia majora and minora were both swollen and bruised. The hymen was swollen with fresh tears. He found semen present in her private parts and was convinced that penetration and ejaculation took place. He was also convinced that she was still a virgin. [13] Hugh-Marie Damon s evidence in short was that in her analysis she found that the DNA found in the complainant (K.) and that from accused number 1 did not exclude him as the depositor. If not him, it

can rather be his identical twin that deposited that semen in K.. With regard to the second test, she could not find the specimen to confirm if accused number 2 s DNA could not be excluded. The fluid taken form her did not have spermatozoa. This could be due to a number of reasons which do not deserve repetition in this judgment for present purposes. [14] E.K. in short confirm that she was under the influence of liquor when a report was made to her and that K. only told her that she escaped from a shanty where N. is locked in and sleeping with the men. [15] Accusseds version is that they were at accused number 2 s brother s tavern or shebeen when a boy came and told accused number 1 that K. was calling him. They were in a garage drinking liquor. Immediately the two complainants came in. K. spoke to accused number 1 and asked him for R 30-00. He invited accused number 2 to accompany them to fetch the money at the shanty. He entered with K. into the bedroom and took the R 30-00 and gave to her. The other two remained in the kitchen. They left. According to accused number 2 he parted company with them at the gate and took a different

11 direction home. Accused number 1 testified that he left N. with accused number 2 and left with K. to the party, where he waited outside. Seeing that K. was not returning he left for home. They both denied sexual intercourse. [16] Mr Nel argued that there is no doubt that the state has proven that accused number 1 had sexual intercourse with K.. This aspect, given the circumstances, also points to the fact that accused number 2 also had sexual intercourse with N.. Because of the improbabilities and contradictions, he argued, I must find that there was indeed sexual intercourse, and because of the ages of the complainants, the accused decided to tell a lie and stick to the fact that there was no sexual intercourse at all. [17] About the contradictions the regional Magistrate in his judgment had the following to say at page 177 line 20 p 178 line 15 of the record supplied to me. I quote:- Added to these contradictions is the fact that K. stated in her statement that she was raped for the second time on the floor in the kitchen, and when confronted with the difference she said accused number 1 only made an attempt to rape her in the

kitchen. A further contradiction is that K. testified that she saw accused number 2 kiss N. in the shanty and N. denied this. I must state that the question that was put to N. was that her companion said herself and accused number 2 were kissing each other and she denied. This question was not accurate and it misled the witness. Although a complete answer could still have been that it is only the accused who kissed her, the answer she gave, given her age is not inappropriate. [18] I am in agreement with the regional Magistrate that most of the contradictions are not of a material nature. The contradiction in this case may be an indication that the complainants did not conspire to falsely implicate the accused. Because they left the shanty at different times, and in the morning met with the parents, they did not have time to meet first and work out jointly a story to present to the police. There is sufficient corroboration from the medical evidence that in broad outline what the two young girls say, is what happened. Their evidence viewed on the basis of the facts proven, negative any form of consent. The fact that finger marks were found by the Doctor on N. s neck is an indication that there was some physical force at play. Her innocent belief that there was merely an

13 attempt on three occasions by accused number 2 to penetrate her without success, is an indication of lack of bias on her part. proved by medical evidence. Penetration was only [19] In order for me to draw an inference that there was consent on both counts to sexual intercourse will in my view amount to speculation and to seek defences for the accused which has never been their case from the beginning. None of the accused have so far placed any evidence before court that there was consent. Furthermore an inference that I need to draw should be based on objective facts which have been proven. In casu I could not find any positive proven facts from which the version of the complainants, as well as that of the accused persons, can be rejected and find that the adult accused persons had consensual intercourse with the children, and they are all hiding it. Had there been consent, there is no reason why K. had to voluntarily tell about the incident at the shanty, and when not believed repeat it the following morning. The fact that E. denies that she reported to her that evening that she was also raped, should be weighed against the fact that E. in her own evidence testified that she was under the influence of liquor when a report was made to her.

[20] To infer that there was consent, one must also establish how they met. It means I have to find that they met at the tavern, which is denied by the girls. The accuseds version on the events at the tavern is contradictory and not satisfactory. Accused number 1 testified that when the two girls arrived, K. entered the tavern and N. waited outside. When he got out of the tavern with K. they found accused number 2 and N. standing together talking and called them to accompany them. However accused number 2 denied all this and insisted that the two girls entered the garage and they both spoke to accused number 1. It was only when they left that he was invited to join them, and accused number 1 who claims to have a relationship with K., never told him of any love relationship between him and the child. From their movement from the tavern and up until they parted company does not make room for any form of consent to be inferred. Accused number 2 left the trio at the gate of accused number 1 without any reason. However accused number 1 says he left accused number 2 with N. when he left with K.. The fact that accused number 2 s version contradict that of accused number 1, and in turn that of the girls suggests further that to infer consent would be far fetched.

15 [21] In his judgment, the regional Magistrate does not deal with the evidence of the rape by accused number 1 on the way towards the shop. The only evidence on record relating to this incident is that of the complainant. This makes her a single witness on this aspect. I am of the view that this evidence should be approached with some measure of caution. It has to be noted that this incident was not disclosed in K. s statement to the police. In the statement she gives the impression that the second encounter took place in the kitchen. When confronted with this during cross examination she explains that in the kitchen accused number 1 only wanted to rape her but did not do so. These two incidents, in my view create some doubt that the second rape took place. I therefore give accused number 1 the benefit of the doubt. [22] In his reasons the Magistrate indicates that K. testified that accused number 2 assisted accused number 1 to restrain her when rape started. This happened at least on two occasions when he assisted to throw her onto the bed. He also supplied the condoms that were used in the commission of the offence. I am convinced that he associated himself with the action of accused

number 1 by also persuading or warning K. to not cause his bro meaning brother to struggle. When K. was to leave he asked accused number 1 if he is now full by allowing her to go. Her finger was also burnt with a lighter. Accused number 2 therefore made possible for accused number 1 to commit the crime of rape and must be found guilty on an accomplice to the first charge. [23] The same cannot be said by accused number 1 who according to the evidence wanted accused number 2 to leave N.. [24] From the evidence of N. it would appear that accused number 2 had on 3 occasions made separate sexual attempts to penetrate her. It is not clear from the evidence if these were independent attempt or continuation of a single intent to rape and merely constituted a change of positions. I will there give the accused number 2 the benefit of the doubt and rule it to be a single act of sexual intercourse. [25] There is sufficient evidence of record, and the regional Magistrate has also given reasons for his finding. The evidence of the complainant is fully recorded and in my view it is not necessary to call

17 the main witnesses to testify. In the result I find as follows:- 1. The conviction made by the Regional Magistrate is set aside and altered as hereunder: Accused number 1: Guilty of Rape in charge number 1 (K.M.) Accused number 2: (1) Guilty of Rape in charge number 2 (N.M.) (2) Guilty as an accomplice to the rape in count 1. L P TLALETSI JUDGE (Northern Cape Division)