S v Swartz and Another

• Jurisdiction: South Africa
• Judge: Davis J
• Judgment Date: 21 June 1999
• Counsel: Ms N Nel for the accused Ms A de Lange for the State
• Court: Cape Provincial Division

Davis J:

The accused were brought before the Springbok regional court on two charges; one of rape and another of indecent assault. Both pleaded not guilty to both charges. B

The facts on which the regional court relied to convict both accused on both charges can be summarised briefly as follows.

On 17 May 1998, the complainant went to a house in Donkerhoek, Nababeep, where she met some of her friends. There was only a limited quantity of wine at the C house and accused No 1 suggested that he would purchase more wine and that the complainant should accompany him. En route they met up with accused No 2. When they arrived at the house where wine could be purchased, accused No 2 and the complainant waited while accused No 1 went inside to purchase the wine. D Both accused No 2 and complainant testified that they were anxious because there were people in the house and in the environment of whom they did not approve. They walked to a nearby 'koppie' to wait for accused No 1. When E accused No 1 returned they drank from the bottle of wine he had bought. At this point accused No 2 grabbed the complainant, hurled her to the ground, and forced F her to have sex with him. While this was happening, accused No 1 pinned her down, put his hand over her mouth to prevent her from crying for help. When accused No 2 had completed his sexual attack, accused No 1 raped her whilst accused No 2 performed a similar 'restraining' role. At this point there appeared to be some wrestling between accused No 2 and the complainant. Accused No 2 threatened complainant with a knife, but she managed to escape to her father's house where she arrived wearing only a brassière. The entire episode had taken some 20 minutes and according to the testimony of the complainant the sexual attack had lasted for at least 15 minutes. In essence this constitutes a truncated version of the complainant's testimony which was accepted by the regional court.

Both accused admitted having sex with the complainant, but they insisted that G there had been consent. These versions were rejected by the court and both accused were convicted on both counts. The magistrate, in justifying his acceptance of the complainant's version, said as follows:

'Die klaagster het as 'n baie stewige en sterk getuie deurgekom, dit is so. Sy gee toe, sy is 'n drinker sy was ook dié aand gedrink, haar eie pa sê dit, maar sy onthou die gebeure goed. Beskuldigde 1 H sê selfs sy sal nog geweet het wat om haar aangaan. Sy was, soos reeds gesê, intensief, ekstensief gekruisverhoor, sy bly staan by haar getuienis. Sy is baie seker omtrent die feite wat sy voorlê, soos ek sê dit is 'n redelike simplistiese stel feite en daarteenoor het ons die beskuldigdes wie uiters kleitrap met hulle weergawes.'

In terms of s 51(1) read together with Schedule 2 of the Criminal Law Amendment I Act 105 of 1997 ('the Act'), rape, when committed in circumstances where the victim was raped by more than one person acting in the execution of a common purpose or conspiracy, carries an obligatory life sentence subject to the provisions of s 51(3)(a) of the Act, which provides: J

Davis J

'If any Court referred to in ss (1) or (2) is satisfied that substantial and compelling circumstances A 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 provisions are appallingly drafted. It was no surprise that the magistrate B encountered great difficulty in deciding whether the proceedings as a whole should be heard in the High Court. Correctly, in the light of the decision in S v Ebrahim (case No 98006373), a decision of the Full Bench of this Division, the regional court heard the matter and, having convicted the accused, referred the question of sentence to this Court as it did not have the jurisdiction to impose the prescribed life sentence. C

This Court now finds itself in the position of a chain novelist. The first chapter has been written by another court and this Court is now expected to complete the work on the basis of a framework determined by another author. It is a most unsatisfactory system. I well understand that in the lower courts this has occurred previously, but that does not militate against my conclusion. As a result of this D chain novel system of criminal justice which has been chosen by the Legislature, much of the evidence led in this Court appeared to go more to conviction than to sentence in order to reduce the impact of the offence on which the accused had been convicted. In other words evidence was led which seemed less about mitigation and more about highlighting ambiguities in the evidence which led to the conviction of both accused. E

Wisely Ms Nel, who appeared on behalf of the accused, conceded that this Court was required to sentence on the basis of the facts as determined by the regional court. Ms Nel attacked the constitutionality of...