S v Ntuli

• Judge: Visser AJ
• Judgment Date: 13 March 2003
• Docket Number: CC398/01
• Hearing Date: 13 March 2003
• Court: Transvaal Provincial Division

Visser AJ:

The accused in this matter, Joseph Ndleleni Ntuli, was charged and convicted of the crime of rape in the regional court at Chrissiesmeer. He was founds guilty of having raped the complainant in

2003 JDR 0552 p2

Visser AJ

this case on 22 August 2000 at a place called Holnek in the district of Chrissiesmeer. It was proved at the hearing, and it was confirmed before me today, that the complainant was 14 years old at the time. The complainant testified before the magistrate that she was raped twice by the accused on the said date.

Today the accused appears before me after the regional magistrate referred the case to the High Court for sentencing in terms of section 52 of the Criminal Law Amendment Act, 105 of 1997, the reason being that rape of a female person younger than 16 years old and/or of a female where she was raped more than once, are crimes which are specified in Part I of Schedule 2 of the said Act. In terms of the provisions of section 51 (1) such offences carry a mandatory sentence upon conviction of life imprisonment.

Subsection (3)(a) of section 51 provides:

"If any court referred to in subsection (1) or (2) is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence than the sentence prescribed in those subsections, it shall enter those circumstances on the record of the proceedings and may thereupon impose such lesser sentence."

The facts relating to the offence as testified to by the complainant may briefly be summarised as follows:

2003 JDR 0552 p3

Visser AJ

On the day in question she came from school by bus, and alighted some distance from where she lives. After alighting from the bus, the accused, who was present in the vicinity, called out to her to remain where she was, whereupon she dropped everything she had in her hands, except for her cellular phone, and fled. As she started running, she kicked out her shoes and also left them there. The accused followed and overtook her however. He tripped her, and she fell to the ground. He took hold of her and took her back to where she had dropped her possessions. These possessions consisted of school books, a bread and a school bag. The accused instructed her to pick up the articles which she had dropped, as well as her shoes which she had kicked out, and he then took her to a bush. She told the magistrate that he instructed her to undress, and apparently she obeyed. He also told her to lie down on the ground, which she also apparently did.

He then plugged her mouth with a hat which he had with him, to prevent her from calling out, and tied her left wrist to a tree with apiece of rope, which he also had with him. He got on top of her and he asked her to place his penis into her vagina. Apparently she obeyed. The accused then had full sexual intercourse with the complainant.

She says that after he had had sexual intercourse with her he told her to get up and he took the bread which she had with her and he ate some of it. He untied the rope from the tree and led her away to another

2003 JDR 0552 p4

Visser AJ

spot among trees, where he told her to clean her knees which had been chafed as a result of her falling on the ground, according to her evidence. He again tied her left wrist to a tree, and then took off his clothes and her clothes as well on that occasion. He told her to lie down on the ground, and then she added: "Hy het my laat val en laat lê".

She testified that he again asked her to place his penis into her vagina, and this time she said that she did not wish to do so. According to her he then assaulted her, which led to her placing his penis into her vagina. No description of the assault was given by her, nor was she asked to do so.

After they had had sexual intercourse for the second time, and the accused had "urinated" inside of her, he helped her to her feet and they got dressed. He then gave her books to her, plus the bread which he had not eaten, whereafter he threatened her not to tell anyone of what happened because if she did she "would be in serious trouble".

She testified that she then went home. She was crying. She reported to her mother what had happened to her. The accused was later arrested.

She was examined by a medical doctor on the same day of the incident. The doctor found in his report that there were abrasions to both her knees and to her right elbow. No further injuries were found by the doctor on the complainant. He took vaginal swabs and two slides for

2003 JDR 0552 p5

Visser AJ

semen analysis. These were not forwarded for analysis because it transpired that the accused admitted to having had sexual intercourse with the complainant, and that his defence was that she had consented.

What is important is that the doctor found the hymen to be absent and that the complainant's vagina admitted of entry of two fingers. It is fair to assume that if the hymen had been ruptured on that day there would have been signs of that having occurred.

Today before me the complainant was again called to testify under oath. I ordered the trial to be held in camera, with only the mother of the complainant being present.

The complainant is a fairly tall, pretty lady and physically well developed.

Before the complainant testified I explained, as best I could, to the accused what the purpose of the present session in this court is. I specifically informed him that the main issue for determination was the question whether there existed substantial and compelling circumstances in this case which would allow me of departing from the minimum statutory sentence. He indicated to me that he fully understood what I told him.

The complainant, Constance Vilakazi was sworn in after she had indicated that she understands what it means to take the oath.

She was immediately asked by Mr Fourie, appearing for the

2003 JDR 0552 p6

Visser AJ

State, whether this had been the first time for her to have sexual intercourse, or whether she had had sexual intercourse before. She replied hesitantly in the negative. I noticed the discomfort which was immediately apparent from her body language upon the question being asked, and I asked for her mother, who was present in court, to leave the courtroom for the purposes of this particular issue only, as I considered that the complainant may not wish her mother to know that she had been previously deflowered.

After the court had been cleared, I explained to the complainant the importance of her telling the truth, and the question was again asked of her whether she had had previous sexual experience. She again denied it, and in fact persisted in that denial to the end. One of the answers which she gave when she pressed on the issue was: "I don't remember".

Thereafter the complainant's mother was asked to come into Court again, and the complainant testified that approximately a week after the rape sores developed on the outside and inside of her vagina. She reported this to her mother, who took her to a Dr Meyer in Vlakfontein, who informed her that "there was something dirty inside her" which caused the sores. He gave her medicine and pills to take. When asked by Mr Fourie she indicated that the problem has not cleared up.

2003 JDR 0552 p7

Visser AJ

Mr Fourie, through her evidence, established that blood was drawn from the complainant for purposes of HIV testing. The tests proved negative.

The complainant testified that she was afraid of men. She had never had a relationship with any boy before and still does not have any such relationship. She indicated that she is afraid of sexual intercourse because she did not like it. She indicated that she has not thus far been interested in boys because she wanted to study first and get that behind her. She is now in Std. 9, and she wants to become a nurse.

She testified that she has suffered no emotional distress or consequence as result of her experience.

In cross-examination by Mr Kekana, representing the accused, the complainant confirmed that she has no evidence that the sores which she had were as a result of the intercourse, although she did say that she got the sores for the first time within a week after such intercourse. After the complainant, her mother, Mavis Vilakazi, gave evidence under oath. In her testimony she stated that she had taken the complainant to the doctor in regard to the sores several weeks after the incident. The prescribed treatment for the sores worked, but the sores did return. Presently there is no problem in that regard any longer, except that she does not know what the condition of the interior of her daughter's vagina is.

2003 JDR 0552 p8

Visser AJ

She confirmed that the complainant suffered no psychological effects because of the rape, and that she was doing well at school and that she behaves normally.

Mrs Vilakazi testified that she has a good relationship with the complainant. She has four children, the eldest being a daughter, the second a son, and then two further daughters, of which the complainant is the youngest. She confirmed that the complainant was born on 1 December 1985.

That was the sum total of the evidence.

At the hearing of the matter the accused indicated to the regional magistrate that he wished to call two witnesses. Today I was told by Mr Kekana that he did not intend to call the two witnesses, being his mother and a sister, but that he would make submissions regarding their evidence to me with the consent of the State.

Mr Kekana commenced to address me on mitigating factors by pointing out that the accused was 26 years old, that he is not married, and that he has no children. He further submitted that the accused, before his arrest, performed piece jobs, that he had passed Std. 6 at school, and that he lives with his mother.

With reference to the previous convictions of the accused, which consists of one conviction of housebreaking with the intent to steal and theft, and one conviction for escaping from...