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[2014] ZAGPJHC 5
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Ndebele v S (A287/2013) [2014] ZAGPJHC 5 (6 February 2014)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION JOHANNESBURG)
CASE
NO: A287/2013
6
FEBRUARY 2014
Not
Reportable
Not
of interest to other judges
In
the matter between
SIMPHIWE
NDEBELE
..................................................................
APPELLANT
and
THE
STATE
…..........................................................................
RESPONDENT
Appeal
- against sentence of 18 years’ imprisonment effectively on two
charges of rape - seriousness of the crime of rape
- personal
circumstances of appellant - nothing out of the ordinary – 5
previous convictions - no misdirections by trial
court – no
grounds for interference on appeal - appeal dismissed
J
U D G M E N T
VAN
OOSTEN J:
[1]
On 10 September 2012 t
he
appellant was convicted in the Randfontein regional court on two
charges of rape. The charges were taken together for purpose
of
sentence and he was sentenced to 18 years’ imprisonment. The
appellant applied for leave to appeal against sentence only
which was
refused by the court a quo. On petition to this court by the
appellant in person for leave to appeal against the sentence
only he
was granted leave to appeal against conviction and sentence. Although
I doubt the competency to grant leave to appeal against
conviction
where this was not sought in the petition, I have decided in the
interests of justice to also deal with the conviction.
[2] The evidence against
the appellant was overwhelming. The appellant admitted having had
sexual intercourse with the complainant.
His defence was consent. The
complainant testified as well as her boyfriend, F[…] M[…],
to whom she had made the
first report of having been raped. Her
evidence briefly was that the appellant, who was unknown to her and
armed with a knife,
on 11 September 2011, shortly after midnight,
forcefully took her to an open veldt behind a filling station,
threatened to kill
her and proceeded to rape her twice. The medical
report (J88) handed in by consent recorded that the complainant
sustained gynaecological
injuries “suggestive of vaginal
penetration beyond the hymen”. The injuries she sustained are
consistent with her version.
The evidence of M[…] corroborated
her version in all material aspects. DNA results obtained from swabs
taken from the complainant
positively implicated the appellant.
[3] The appellant
testified that he had met the complainant at Mohlape’s tavern.
The appellant proposed sexual intercourse
to her. They proceeded to
another
shebeen
but realising it was already closed, instead
went to a ‘certain corner house’ (shack) in Sandile
street to have sexual
intercourse there. The complainant agreed to
sexual intercourse for money. The appellant did not mention the
amount that was agreed
on although the amount of R250 was put to the
complainant in cross-examination. The appellant however testified
that he had no
money on him but that did not discourage her from
continuing. He handed her an expired post office card as security for
payment,
which was agreed would be made on 1 October, at Motlani’s
place. They then had sexual intercourse, but only once. He
subsequently,
on the agreed date, attended Motlani’s place to
honour his undertaking to pay but the complainant failed to turn up.
The
reason for the complainant laying an alleged false charge of
rape, he maintained, was that she had not been paid. The appellant’s
version was seemingly improbable and palpably false: the complainant
clearly did not know him except that he, at her request, after
the
incident, gave her his first name and informed her that he resided in
Rakala. She relayed this information to the police who
requested her
to draw an identikit of the appellant which she did. The complainant
testified that she was, prior to the incident,
on her way home which
was some 200 meters away from where it had occurred. Had she agreed
to sexual intercourse, as the appellant
would have it, it is
unthinkable, as indeed the complainant explained, that she would have
preferred an open veldt at that time
of the morning to the comfort of
her own home or some unknown shack as the appellant testified. The
appellant falsely denied having
had sexual intercourse twice. The
complainant’s version that sexual intercourse occurred twice
was not challenged in cross-examination.
There was moreover, on the
appellant’s version, no reason for her to have reported the
incident to the police later that
morning and moreover to subject
herself to a medical examination. Lastly, the appellant’s
version cannot be reconciled with
the medical evidence. It was
correctly rejected as false by the court a quo. It follows that the
appellant was correctly convicted.
[4] As to sentence the appellant in
terms of the minimum sentence legislation faced a sentence of life
imprisonment. He was
37 years old at the time and the father of
two teenagers, aged 12 and 13 years. His personal circumstances
reveal nothing out of
the ordinary. No less than 5 previous
convictions ranging from theft and robbery to murder, in the period
from 1988 to 2001, are
recorded in the SAP 69. An aggregate of 22 and
a half years’ direct imprisonment was imposed. The regional
magistrate found
substantial and compelling circumstances warranting
a lesser sentence than life imprisonment in firstly, the fact that
the appellant
suffered from epilepsy and, secondly, that the
complainant had not suffered serious physical injuries. The last
mentioned circumstance
being regarded as substantial and compelling
within the meaning of the minimum sentence regime has quite rightly
been the subject
of much controversy.
The
offence of rape is considered by our courts as one of the most
serious crimes that should attract severe punishment. In
State
v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) 344 the Court remarked:
‘
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
and to any defensible civilization.’
More recently,
in
DPP,
North Gauteng v Thabethe
2011
(2) SACR 567
(SCA)
577
g-i
the
Court stated:
‘
Rape
of women and young children has become cancerous in our society. It
is a crime which threatens the very foundation of our recent
democracy which is founded on protection and promotion of the values
of human dignity, equality and the advancement of human rights
and
freedoms. It is such a serious crime that it evokes strong feelings
of revulsion and outrage amongst all right thinking and
self-respecting members of society.’
The sentence imposed can
only be described as lenient. No misdirections were alluded to, none
exist and there are accordingly no
reasons for this court to
interfere with the sentence. It follows that the appeal must fail.
[5] In the result the
appeal is dismissed.
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
I
agree.
R
MONAMA
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE APPELLANT: ADV (MS) M BOTHA
COUNSEL
FOR THE RESPONDENT: ADV G MARKET
DATE
OF HEARING
....................................
6
FEBRUARY 2014
DATE
OF JUDGMENT
.................................
6
FEBRUARY 2014