S v Gubuza

• Jurisdiction: South Africa
• Judge: T Ndita J and N P Boqwana J
• Judgment Date: 04 March 2014
• Docket Number: A511/2013
• Court: Western Cape High Court, Cape Town
• Hearing Date: 21 February 2014
• Citation: 2014 JDR 0625 (WCC)

Boqwana J

Introduction

[1]

The appellant was arraigned before the Wynberg Regional Court for the following charges:

1.1

Rape of A D ('first complainant' ) – Counts 1 and 2;

1.2

Rape of N T ('second complainant') – Counts 3 and 4

1.3

Robbery with aggravating circumstances – Counts 5, 6 and 7.

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[2]

He was legally represented and pleaded not guilty to all the charges. On 28 February 2013 he was convicted of counts 1, 5, 6 and 7 with counts 1 and 2 combined as count 1 and acquitted of counts 3 and 4.

[3]

On 24 April 2013 he was sentenced to 15 years imprisonment in respect of count 1 and 15 years imprisonment for counts 5, 6 and 7. The magistrate ordered 12 years of the sentence imposed on count 5 to run concurrently with count 1 and sentences for counts 6 and 7 to run concurrently with the sentence on count 1. The appellant was therefore sentenced to an effective period of 18 years imprisonment. The appellant appeals against both his conviction and sentence with the leave of the Regional Court.

Background Facts

[4]

Charges levelled against the appellant emanate from an incident which occurred on 03 October 2011 at approximately 2:00 to 3:00 am , at Samora Machel involving two young girls, a 15 year old first complainant, a 22 year old second complainant and their 20 year old male friend, Y T ('third complainant'). The three were walking together from a shebeen in Samora Machel. They testified that they had consumed alcohol but were not drunk. As they were in the vicinity of Spar they saw a group of four men approaching them. According to the first and second complainants, three of these men had scarves covering their faces, such that they could not be identified whilst the fourth man, whom they identified as the appellant, had no scarf on. The third complainant did not notice if all four men had scarves on, as he was frightened and only focused on the one who came to him. That one according to him had a scarf on.

[5]

It is common cause that the complainants were threatened with knives and a screwdriver. The first and second complainants testified that the appellant threatened them with a screw driver whilst others threatened them with knives. The appellant however places his identity in dispute. One of the

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unidentified men took the first complainant's cap whilst the other two robbed the second and third complainants of their cell phones and also took R10 cash which belonged to the second complainant. The appellant took nothing and there was no communication between the men whilst this occurred. The men then chased the third complainant away and walked the first and the second complainants to a nearby vegetable or fruit stall.

[6]

According to the first and second complainants the appellant took the first complainant to one side of the stall and two other men took the second complainant inside the stall. The appellant raped the first complainant by inserting his penis twice in her vagina.

[7]

Inside the stall the second complainant was raped by two of the men who had scarves on their faces, one after the other. After the ordeal the two young complainants went to the police to report the incident. They also went to the hospital for medical examination. Dr Ntoi, who examined the first complainant, testified that there was evidence of penetration, being redness, tenderness and weakened skin in the first complainant's posterior fourchette and a white discharge which was consistent with her version that she was raped. Dr Bagasa, who examined the second complainant, also noticed a white discharge from the second complainant's genitalia which could be possibly semen. No further injuries were noted in the second complainant's vagina but penetration could not be excluded. Swelling and redness was however noticed in the anal area of the second complainant which was compatible with forceful penetration (although the second complainant did not allege anal rape). Both doctors took swabs from the complainants' bodies for DNA testing. It is not clear what happened to those swabs as no DNA evidence was presented before the trial court.

[8]

The appellant denied that he raped the first complainant and was involved in their robbery. He raised an alibi stating that on the day in question he

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was sleeping at his home having been there since 8 o'clock in the evening and never left. He testified that he knew the complainants and had in fact seen them drunk at the shop earlier in the day.

[9]

The magistrate found the appellant guilty of the rape of the first complainant. Applying the principles of complicity and liability the magistrate found that there was no action on the part of the appellant in respect of the second complainant's rape...