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[2016] ZAGPJHC 135
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Rakhudu v S (A295/2014) [2016] ZAGPJHC 135 (2 June 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
A295/2014
DATE: 2 JUNE 2016
In
the matter between:
RAKHUDU,
PRINCE
...............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MUDAU
J:
[1]
The appellant, a 29
year old man at the time of the incident, was convicted in the
Johannesburg regional court of the rape of his
13 year old relative.
Acting in terms of s
51(1) of the Criminal Law Amendment Act 105 of 1997 (the CLAA), the
regional magistrate sentenced him to life
imprisonment as ordained,
having found that there were no ‘substantial and compelling
circumstances’ justifying a lesser
sentence, coupled with an
order that he was unfit to possess a firearm in terms of
s103
(1) of
the
Firearms Control Act 60 of 2000
. The present appeal is against
that sentence. In the case of rape the prescribed sentence where the
victim is under the age of
16 years is imprisonment for life. The
CLAA demands the imposition of the prescribed minimum sentences
unless a court is satisfied
in a particular case that there are
‘substantial and compelling circumstances’ that justify
the imposition of a lesser
sentence than that prescribed.
[2]
The salient facts leading to the conviction of the appellant are as
follows. On Friday 31 October 2008, the complainant, her
mother and
two siblings left their home in Soweto for her great grandmother’s
place of residence in Brixton to attend a traditional
family ritual
that was to be held on Saturday, 1 November 2008 consequent upon the
death of her great-grandfather. The complainant’s
great-grandmother is the appellant’s mother. The appellant, who
had his own place of abode, also attended the ritual.
[3]
During the course of the afternoon on the Saturday, the complainant
borrowed a cell phone from the appellant in order to listen
to music.
After some time its battery became flat. She approached her
great-grandmother for a charger, but her great-grandmother
had no
charger. Left without much choice she then approached the appellant
with the same request. The appellant informed her that
the one he had
was in his room at his place and he asked her to accompany him to
fetch it. She obliged and found it unnecessary
to tell anyone where
she was going to as the appellant also stayed in Brixton.
[4]
Upon arrival at the backroom of the property where the appellant
stayed, and after he had unlocked the door, he gave her the
charger
whilst they were inside the room. Thereafter the appellant closed the
door which he then locked from inside. He then picked
up a bread
knife from the table. He went over to the complainant and placed it
sharp edge against her throat after which, he instructed
her to get
undressed threatening to stab her if she refused to cooperate. She
refused to undress. He threw her on the bed as a
result of which she
started screaming. He started to throttle her to prevent from
screaming. He then undressed her clothing, including
her panties and
then raped her without the use of the condom. Once done, after
dressing up they went back to her great-grandmother’s
place.
The appellant had warned her not to mention the incident to anyone.
She was still crying when she arrived back at the house.
[5]
She however reported the incident to the first two relatives she met
and also to her mother. The incident was reported to the
police and
the appellant was arrested. She was subsequently taken to the
Hillbrow Clinic for medical examination. According to
the evidence of
the doctor who attended to the complaint, the complainant’s
hymen had fresh tears and the injuries observed
were consistent with
forced penetration which she noted on a J88 report form.
[6]
The appellant had during the trial testified and refuted the
allegations of rape. Not only was he implicated by the version
of the
complainant but he was also implicated by the DNA evidence presented
by the state. The conviction of the appellant on the
rape charge can
therefore not be faulted.
[7]
It remains to deal with the question of sentence. It is trite that
sentencing falls within the discretionary domain of the sentencing
court. A court on appeal may not simply substitute a sentence by the
sentencing court for its preferred sentence. This court will
therefore only be entitled to interfere if the sentencing court
materially misdirected itself or the disparity between its sentence
and the one which this court would have imposed had it been the trial
court, is ‘shocking’, ‘startling’
or
‘disturbingly inappropriate’.
[8]
It has been often stated in a long line of authorities that rape ‘is
a repulsive crime’ (see for example
Vilakazi
v
S
2012
(6) SA 353
(SCA) at para 1).
In
S
v Chapman
[1997] ZASCA 45
;
1997
(3) SA 341
(SCA)
at 345A-B the SCA called it a ‘humiliating, degrading and
brutal invasion of the privacy, dignity and the person of
the victim’
and went on to say that -
‘
[w]omen
in this country…have a legitimate claim to walk peacefully on
the streets, to enjoy their shopping and their entertainment,
to go
and come from work, and to enjoy the peace and tranquillity of their
homes without the fear, the apprehension and the insecurity
which
constantly diminishes the quality and enjoyment of their lives.’
[9]
In sentencing the appellant, the trial court took into consideration
that he was 34 years of age, still single but a father
to a 10 year
old son. In his favour, the appellant had no records of previous
convictions. Further personal details are gleaned
from the probation
officer’s report showing that the appellant was the second born
of two children. He was raised by his
mother and stepfather. His
biological father died in 2010. His upbringing was good as he was
raised in a stable environment. By
his own account to the probation
officer he was not exposed to any form of abuse or violence. He had a
steady relationship at the
time of the commission of the offence.
After completing grade 12 in the year 2000, he obtained employment as
a general worker in
a bakery store. He maintained his innocence to
the probation officer. The probation officer in conclusion
recommended a custodial
sentence as provided for in section 276 (1)
(b) of the Criminal Procedure Act 51 of 1977 (the CPA) which includes
imprisonment
for life or imprisonment for an indefinite period as
referred to in s286B (1).
[10]
The report by the Correctional Service Officer depicted that the
appellant did not take responsibility for the offence committed
and
that he was not remorseful. Furthermore that he had escaped from
custody in respect of the same offence and was a risk to other
children and women. The Correctional Service Officer found the
appellant as an unsuitable candidate for a correctional supervision
sentence as intended in s 276 (1) (h) of the CPA.
[11]
It was contended on behalf of the appellant that as the complainant
did not sustain other visible external body injuries, was
not
performing badly at school, and further that the appellant was a
first offender and had been in custody for about two years
before
being sentenced, the magistrate ought to have considered these
factors and other personal circumstances and not impose the
ultimate
sentence of life imprisonment. As authority for this approach,
reference was made to
Vilakazi v S
referred to above. It was
contended on behalf of the respondent in the court below and also
before this court for a number of reasons
that life imprisonment was
justified.
[12]
The facts in
Vilakazi
were as follows as extracted from the
SCA judgment: The child victim had no formal schooling and lived in
poor circumstances. On
the day in question she had been visiting at a
nearby mine and she was walking home in the late afternoon. The
appellant came driving
by in what appears to have been a tanker-truck
that is used for spraying water onto gravel roads and he stopped to
give her a lift.
After traveling for a while the appellant turned the
truck off the road into a plantation where he stopped and the rape
took place.
The complainant was 15 when she gave evidence, which
places her age at between 14 and 16 when the offence was committed
(footnote
omitted).
[13]
The appellant in
Vilakazi
was
convicted in the regional court at Volksrust and was committed to the
High Court for sentence as required by s 52 of the
CLAA which at
the time required a regional court, if it has convicted an accused
person of an offence for which life imprisonment
is prescribed, to
stop the proceedings and commit the accused for sentence by a high
court. The High Court at Pretoria (per Els
J) found that no
substantial and compelling circumstances existed and sentenced the
appellant accordingly. The SCA held that “to
take account of
the fact that she was 11 when in fact she was at least 14 and might
have been over 15 was a misdirection
”
(at
para 26).
[14]
The SCA also found at para 55 that
“
There
was also no threat of extraneous violence of any kind. The appellant
at least minimized the risk of pregnancy and the transmission
of
disease by using a condom
”
as opposed to the
facts in this case where none was used.
The Court also found
it “unfortunate
”
that
no attempt was made to establish “the emotional impact of the
crime
”
on
the child (at para 57).
[15]
In this case however, the respondent had before sentence was imposed
introduced ‘a victim impact report’ by a probation
officer which therefore distinguishes this matter from the Vilakazi
case in many ways than one. According to this report, the complainant
had developed “aggressive” behaviour and “abnormally
high appetite’’ since the rape. Predictably
the child
became socially withdrawn immediately after the incident and avoided
playing with other children. She also developed
a low self-esteem.
She expressed discomfort to be around male persons other than her
father as she feared being raped.
[16]
According to the probation officer, the child’s trust in men in
general, was “reduced to near zero level”.
The rape
incident had affected her negatively as she cried during the
interview. Although the child attended counselling, she had
not
recovered from the trauma. The appellant had according to the report,
left “a physical and psychological scar which will
remain with
the child for the rest of her life”. The probation officer, in
conclusion, recommended further counselling for
both the child and
her mother as they were still affected by the rape incident.
[17]
The negative impact of the rape on the child in this case is mirrored
in all the pre-sentence reports. The Correctional Service
Officer
also echoed what was expressed in the other reports that the child
cried during the interview and that the appellant “left
psychological, emotional and physical scars to the child
”
.
[18]
As the sentencing court also found, there are serious aggravating
circumstances present in this matter. The crime committed
by the
appellant was worsened by the fact that his child victim is a close
blood relative whom he had an additional duty to protect.
She was
still a virgin who lost her purity in this appalling and outrageous
manner.
The
Legislature has ordained life imprisonment as the sentence that
should ordinarily, and in the absence of weighty justification,
be
imposed for the offence committed by the appellant.
The courts are obliged to respect and not
pay mere lip service to that approach (see
S
v Malgas
2001
(2) SA 1222
(SCA)
at
para 25)
.
I am not persuaded
that the sentencing court misdirected itself in any material respect.
[19]
The courts have a responsibility to protect the equality, dignity and
freedom of the most vulnerable amongst us, and in particular
women
and children. I do not find the sentence imposed by the trial court
‘
shocking’, ‘startling’
or ‘disturbingly inappropriate’ in any way. There is no
disparity between the
sentence passed by the court below and the
sentence, which this court given the facts of this matter, would have
imposed. The appeal
against sentence must, therefore, fail.
[20]
For all these reasons, the appeal against
sentence is dismissed.
MUDAU
J
JUDGE
OF THE HIGH COURT
I
agree.
SWARTZ
AJ
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 2 June 2016
Judgment
Delivered: 2 June 2016
APPEARANCES
On
Behalf of the Appellant: Adv. T Mpanza
Instructed
By: Legal Aid South Africa
Johannesburg
On
Behalf of the Respondent: Adv. N Naidoo
Instructed
By: Director Public Prosecutions
Johannesburg