S v Mzinyane

• Jurisdiction: South Africa
• Judge: B Lekokotla AJ and A Maier-Frawley J
• Judgment Date: 25 January 2022
• Docket Number: A166/2019
• Hearing Date: 23 November 2021
• Court: Gauteng Local Division, Johannesburg
• Citation: 2022 JDR 0185 (GJ)

Lekokotla AJ:

1

The appellant was charged with kidnapping, 4 counts of rape and assault with intent to do grievous bodily harm of Ntombi Mnisi on the morning of 27 April 2008. He appeared before the honourable magistrate Mpofu in the Protea Magistrates Court.

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Lekokotla AJ:

2

He pleaded not guilty to all six (6) charges and made a plea explanation in terms of section 115 of the Criminal Procedure Act, 51 of 1977 by making a statement through his attorney wherein he set out the basis of his defence.

3

At the conclusion of the trial, on 20 April 2009, the appellant was convicted of kidnapping and three counts of rape. He was acquitted on the charge of assault with intent to do grievous bodily harm. He was sentenced to 25 years imprisonment in terms of section 51 of the Criminal Law Amendment Act Sexual Offences and Related Matters Act, Act 32 of 2007 read together with sections 256, 257 and 281 of the Criminal Law Procedure Act, Act 51 of 1977 as well as the Criminal Law Amendment Act, Act 105 of 1997. All counts were taken as one for purposes of sentence.

4

On 25 February 2016 the appellant brought an application for leave to appeal against the sentence imposed by the learned magistrate. This application was granted by the learned magistrate.

5

The appeal against sentence was set down for hearing in 2020. However, the appeal was removed from the roll in order to allow appellant to apply for leave to appeal against conviction as well. Leave to appeal against conviction was granted by the court a quo on 12 October 2021. The present appeal thus lies against conviction and sentence.

6

The complainant's evidence was the following: On 27 April 2008 she had gone with her friends to a street bash or party in Diepkloof, which is near her home in Soweto. She then heard about and personally witnessed the appellant assaulting his girlfriend, A, who is the complainant's friend. The complainant testified that she knew the appellant as the boyfriend of her friend

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Lekokotla AJ:

A and they also stayed in the same street. She took the appellant as a friend as he was A's boyfriend.

7

Arlena escaped from the appellant's assault. Thereafter, the appellant, who was in the company of a male friend and who were both carrying golf sticks, approached the complainant who was with her friend F. The appellant embraced her and he forcibly pulled her to leave the street bash with him. When the complainant resisted, he hit her with a golf club on her knees. The appellant's friend was also pulling F, the second state witness in this case, who was likewise resisting him.

8

The appellant started dragging the complainant on the tar road. People were afraid to assist her, since they knew what kind of the person the appellant was. Simultaneously, the appellant's friend was grabbing F behind them and all of them were going to the same destination.

9

The appellant continued to drag the complainant on the tar road for approximately 50 meters until they reached a corner house that was opposite the garage, which the appellant stated was his maternal house. Throughout that time there were a lot of people at the party or street bash that observed this but none of them would help her because they were afraid of the appellant.

10

When they arrived at the corner house, she was crying and wanted to urinate. She then went to the toilet. The appellant entered inside the toilet before she could complete buckling her belt. When the complainant asked the appellant to leave the toilet, he hit her with his open hand. He told her to undress and she refused. The appellant then undressed her while hitting her and ordered her to climb on top of a toilet seat. She refused to comply.

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Lekokotla AJ:

11

The appellant started hitting her with a golf club and slapped her with an open hand in her face. She sustained injuries to her face and the head; her face was swollen and red with a slightly open injury on her head.

12

The appellant ordered her to climb onto a toilet seat and to face the opposite direction. He then inserted his penis in her vagina and had sexual intercourse with her. When he was finished, he said they must move out of the toilet as he did not 'feel it' properly. She was made to lie down on the lawn after the appellant had dragged her from the toilet to the lawn, as she was resisting. The appellant inserted his penis in her vagina for the second time on the lawn. The appellant appeared to be nervous while doing so and he then said they must move away from the lawn.

13

They subsequently moved to the stoep where he again inserted his penis into her vagina for the third time. He did not use a condom in any of those instances.

14

Thereafter, the appellant ordered the complainant to put on her clothes and ordered her to leave the house with him. The complainant managed to put on her trousers but carried her panties and belt in her hands. They arrived at another house.

15

When they got to the second house (appellant's father's house) there was an elderly man, who was either the appellant's father or uncle who opened the door for them. This man saw the appellant crying but he said nothing. The appellant then pushed the complainant towards the bedroom.

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Lekokotla AJ:

16

Inside the bedroom at the appellant's father's house, the appellant ordered the complainant to put her panties and belt that she had been carrying in her hands down on the table and to take off her trouser. She put down the panties and belt but refused to take off her trouser at which stage the appellant hit her twice with a golf club in her head and she started bleeding from her head.

17

The appellant inserted his penis into her vagina and had sexual intercourse with her inside the bedroom. After that, the appellant informed the complainant that he had ejaculated. He never got off her after saying he had ejaculated. Instead, he ordered the complainant to stop making noise as she was crying at that stage. He then proceeded to have sexual intercourse with her for the fifth time, as the appellant did not take out his penis from her vagina. He eventually stopped. He allowed her to go to urinate and that is when she got a chance to run away from the house through the kitchen door and into the street. She was still naked, but kept running. She ran to her home. When she got there, she found her younger sister, who was 12 years old at the house. She could not tell her what had happened to her as she was too young.

18

At no stage did the complainant consent to sexual intercourse with the appellant.

19

The following morning, around 7h30, the complainant's friend L came to her home to check on her. She told L about her rape the previous night after L enquired from her what was wrong after seeing that she was crying. L advised her to go to the police station. Even though she was reluctant at the beginning because of the identity of the appellant, she eventually went to report the matter to the police, accompanied by her friend

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Lekokotla AJ:

L.

She was then taken to the doctor at Nthabiseng Centre for examination. She testified that she had reported her injuries to the doctor, including an open wound injury on her head, sustained as a result of being hit by the golf stick by the appellant.

20

After her examination, the police officer drove her home and informed her family about her rape and that she had attended the street bash the previous night. Her family never approved of her going to bashes. They never would have consented to her going to the street bash or party the previous night.

21

The complainant could not say whether the appellant ejaculated in any of the sexual encounters, except for the one occasion, after having sexual intercourse with the appellant inside the bedroom of his father's house, whereafter he had informed her that he had ejaculated. She testified that she could not say whether the appellant had ejaculated on the other occasions, as she did not know. .

22

The complainant testified that this incident had been her first sexual encounter. Her testimony in this regard was questioned in light of the fact that the doctor who had examined her after the rape had recorded in the J88, as confirmed by him during oral evidence, that during his examination of her in the afternoon of 27 April 2008, she had informed him that she had had a previous sexual encounter six months prior, on which occasion her partner had used a condom. The complainant denied having given this information to the doctor and stated that she did not know where the doctor got this information from.

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Lekokotla AJ:

23

Immediately after her testimony, the court, prosecutor and the defence observed that the complainant was well developed for her age and appeared slightly older than 16 years old.

24

She testified that she was 15 years old at the time the offences were committed, and that she was 16 years old at the time of giving evidence in court.

25

The state's second witness was Funani Matshikiri, who was with the complainant at the street bash or party on the day of the incident. She was 16 years old when she testified. Her testimony was that she knew the appellant through his girlfriend A, who was also her friend. She therefore also considered the appellant her friend as a result. But she had not known the appellant for a long time prior to 27 April 2008. In fact, she had known him since the previous year (2007) because A only started attending her school in 2007.

26

She confirmed a lot of the complainant's testimony, which is that on 27 April 2008, she together with the complainant and other friends attended a street bash or party when they saw the appellant assault his girlfriend A, in full view of the people who attended the party and who did...