S v Segole and Another

• Jurisdiction: South Africa
• Judge: Jordaan AJ
• Judgment Date: 06 May 1999
• Citation: 1999 (2) SACR 115 (W)
• Hearing Date: 06 May 1999
• Counsel: M Omarjee for the accused A van der Colff for the State
• Court: Witwatersrand Local Division

Jordaan AJ:

The accused have to be sentenced. They were convicted on the following counts:

In respect of accused 1: F

(1)

kidnapping;

(2)

robbery with aggravating circumstances;

(3)

robbery with aggravating circumstances;

(4)

rape;

(5)

contravention of s 2 of the Arms and Ammunition Act 75 of 1969, the illegal G possession of a firearm;

(6)

contravention of s 36 of Act 75 of 1969, the unlawful possession of ammunition.

Accused 2 was convicted of:

(1)

kidnapping; H

(2)

robbery with aggravating circumstances;

(3)

robbery with aggravating circumstances;

(4)

rape.

They pleaded guilty to the crimes mentioned and therefore most of the facts in this case are common cause. The common cause facts in this case can be summarised as follows: I

1.

At 06:15 on 19 May 1998 the complainant in this matter, a 24-year-old woman, reversed her motor vehicle out of her Westdene property and then alighted to close her garage. When she returned to her vehicle, which was parked on the pavement, she was accosted by the two accused. J

Jordaan AJ

2.

A They ordered her at gunpoint to climb into the boot of her vehicle. It was accused 1 who pointed the firearm at her. She complied whereafter accused 1 drove her vehicle, a Honda Ballade, in the direction of Orange Farm. Accused 2 followed in another vehicle.

3.

On their way to Orange Farm the complainant managed to phone her sister with a B cellphone and informed her family that she was hijacked. Apparently someone phoned back on her cellphone and accused 1, who was the driver of the vehicle, the Honda, heard the phone ringing. He had a cellphone in his possession himself and so did accused 2 in the vehicle following the Honda Ballade. Accused 1 then phoned C accused 2 and told him that the complainant had a cellphone. They then stopped, opened the boot and took the cellphone and the handbag of the complainant from her. Thereafter they proceeded to Orange Farm where she was ordered to get out of the boot of the car. At this stage she was also robbed of her jewellery and certain other items mentioned in exh D.

4.

D The complainant was then ordered to go into a ruined house and it is common cause that both the accused raped her there. First of all accused 1 raped her from behind and then accused 2 also had sexual intercourse with her against her will.

5.

After this took place the accused, and that was accused 2, tied her hands at her back E with her own stockings. They then left the scene with the two vehicles.

6.

The complainant managed to untie herself and stumbled through mud and swamps and occasionally fell down until she met people who directed her to a nearby factory. She managed to phone for help from this factory.

7.

F It is common cause that exhibits were found in the possession of both the accused belonging to the complainant. In particular the vehicle, the Honda Ballade, was found at the parental home of accused 2.

As I say, both of them pleaded guilty and in their respective plea explanations they admit that at all relevant times they were acting in concert and acted in common purpose to commit the crimes in question.

G Both the accused testified in mitigation of sentence. Accused 1 said that he is 27 years of age, not married but he has a three-year-old child. The child stays with her mother and although there is no maintenance order he from time to time supplies them with food. He passed Std 10 and after he had passed Std 10 he studied for a diploma at Technikon RSA in Management Accounting. I am not quite clear how far he proceeded with these studies because although the H initial impression was that he was still a student, it later transpired that he completed his first year in 1994, did not study in 1995 due to, as he called it, financial difficulties, and then started his second year in 1996 but that was only in some subjects. His father died when he was still young and his mother supported him through school. At the time of the commission of these crimes he did temporary work or part-time work at Checkers and/or the OK Bazaars as a shelf I packer. In doing so he earned approximately R160 per weekend. That was his evidence-in-chief.

He was cross-examined by Ms Van der Colff on behalf of the State and from this it transpired J that the plan to hijack a vehicle started the previous

Jordaan AJ

day, ie the 18th. On the 19th accused 2, who stays at Orange Farm, came to his house in A Soweto. The reason therefor was to go and hijack a vehicle. They drove to Westdene and saw the complainant's vehicle. They saw that the complainant was unlocking her vehicle. They approached her and accused 1 had a firearm in his possession. This firearm was loaded. He says that he bought this firearm from a person living in a hostel for R600 plus-minus a week B before this incident. Accused 1 then said that accused 2 said that they must put the complainant in the boot of the car because there was the danger that she would phone the police or make alarm. Accused 1 further says that while they were on their way to Orange Farm he drove the complainant's vehicle, the Honda Ballade, and while he was so travelling he heard a cellphone ringing. He phoned accused 2 and told him about it. The vehicle was stopped and C the handbag and the cellphone were taken from the complainant. He says that the reason the complainant was taken with was that she would be left in an open veld. He again said that it was the plan of accused 2 that the complainant be left in an open veld. They were not wearing balaclavas at all. D

When they arrived at Orange Farm the boot was opened with the intention to let the complainant get out of the boot. A vehicle however passed and the complainant was ordered to get back into the boot. After this vehicle had passed the boot was opened again and the complainant was ordered out of the boot. At this stage the complainant was robbed by both the appellants of, inter alia, her jewellery including a wristwatch, bangles, etc. Exhibit C is a E photo-album depicting the dilapidated ruined house into which the complainant was taken. The complainant was taken into a room of this dilapidated house. The question was asked when they decided to rape the complainant. According to accused 1, accused 2 came up with the plan to rape the complainant there in the house. He says that he did not want to do so. He says F that there was an argument between him and accused 2. He was eventually convinced by accused 2 and thereupon he was the first person to rape the complainant. She was ordered to take off her underclothes. He then proceeded to rape her from behind. He said that when he raped the complainant accused 2 was not present. A different version was given by accused 2. G He says he was present when accused 1 raped the complainant. The complainant was then tied up with her stockings. They left the scene and took the Honda to the house of accused 2's parents. It was later discovered there by the police.

On 27 May 1998 he was arrested by the police and he was in possession of the keys of the Honda Ballade. Also a chequebook and a purse belonging to the complainant was found in his H possession. He some time, a day or two thereafter, made a confession before a magistrate in which he admitted his share in these different crimes.

It was put to him that in the light of the strong case against him he was obliged to plead guilty. It appears...