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[2010] ZAWCHC 447
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Keet v S (A166/2010) [2010] ZAWCHC 447 (20 August 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER:
A166/2010
DATE:
20
AUGUST 2010
In
the matter between:
DANIEL
KEET
…................................................................................
Appellant
and
THE
STATE
…...............................................................................
Respondent
JUDGMENT
STEENKAMP.
AJ
:
The appellant was
convicted in the Paarl Regional Court of two counts of rape and one
of indecent assault and sentenced to life
imprisonment on a count of
rape of Bernadine Heyns (count 1) to two years imprisonment for the
count of indecent assault on Gurt
Alkaster (count 2) and ten years
imprisonment on the count of rape of Lorraine Alkaster (count 3).
This appeal is in respect
of conviction and sentence. The main
grounds of appeal raised in respect of conviction in the appellant's
heads of argument are
the following:
1.
That the court a
quo
failed
properly to take into account that the complainants were single
witnesses and should have exercised caution when evaluating
their
evidence.
That Bernadine Heyns
was not properly sworn in and that her evidence should be
disregarded, but that in any event Bernadine
was not a competent
witness.
That the learned
magistrate erred in various other respects by rejecting the
appellant's evidence in favour of accepting the
evidence of the
complainants.
We have carefully
considered each of these grounds and have come to the conclusion
that the learned magistrate's convictions cannot
be faulted for
certain reasons. Firstly, the magistrate was careful to consider
that the complainants were single witnesses of
the events to which
they testified as and of themselves, however she did correctly have
regard to the fact that in respect of
all three charges, there were
strong cross-corroborating evidence. Such corroborating evidence was
to be found in the evidence
of the complainant's mother, the pastor
and the complainant's younger brother, that is in respect of the
first charge; in the
complainant's mother and the appellant's own
evidence under cross-examination in respect of the second charge and
in the complainant's
emotional state and circumstances in respect of
the third charge.
In our view there was,
in the circumstances, no reason to disbelieve or detract from the
reliability of the three complainants
in respect of their evidence.
The evidence of the
appellant on the other hand cannot reasonably possibly be true in
our view. Besides that, none of the complainants
were challenged or
really tested under cross-examination. The appellant's version was
never properly or coherently put to any
one of them, besides for
which the appellant, on his own evidence, made an inconsistent and
unreliable witness. He conceded in
his evidence that he may have
touched the complainant, Gurt Alkaster, near his penis and that he
admitted to the pastor that
he had sex with Bernadine Heyns, albeit
once, and his explanation for that was properly rejected by the
magistrate.
We
find that the appellant's evidence falls to be rejected and pursuant
to which we are satisfied that it was established beyond
a
reasonable doubt that the accused had committed the offences of
which he had been charged. We also agree with the submission
made on
behalf of the respondent in respect of
section 164
of the
Criminal
Procedure Act 51 of 1977
and in respect of the case of
S
v B
2003(1)
SACR 52 (SCA) that insofar as this may be relevant, a formal inquiry
into Bernadine's ability to understand an oath or
affirmation was
unnecessary.
Upon a perusal of the
record it is quite clear that the learned magistrate went to some
length to establish and confirm that the
social worker who assisted
Bernadine in her evidence, Janine Hundemark, was properly sworn in,
as well as Bernadine herself.
(See record page 130, lines 9 to 11
and page 135, lines 3 to 6.) Besides for the aforegoing, the
evidence of Bernadine in and
of itself was of sufficient consistency
and coherence, both verbally as well as demonstratively by way of
the anatomically correct
dolls that were utilised to confirm the
charge of rape against the appellant in respect of her. For these
reasons the conviction
stands.
In
respect of sentence on the other hand, we are of the view that the
learned magistrate erred in finding that there were no substantial
and compelling reasons for warranting a lesser sentence than life
imprisonment. It is so that the appellant was in a position
of trust
vis-a-vis
the
complainants and that the offences are serious, particularly the
rape which carried the life sentence. However, in view of
the
personal circumstances of the appellant and the fact that life
imprisonment is the most serious sentence that can be imposed,
we
are of the view that a lesser sentence would have been more
appropriate and that we are entitled, in the circumstances, to
interfere with that sentence.
The appellant did not
indicate in his heads of argument what an appropriate alternative
sentence to life imprisonment would be.
Before us it was suggested
in argument that it would be between 15 years optimistically and 20
years pessimistically. We are
of the view that in light of the
seriousness of the charge, a sentence of 25 years would be
appropriate. We do not believe that
the sentences made in respect of
the second and third charges ought to be interfered with, even
bearing in mind that the appellant
was in custody for almost two
years.
In
the circumstances we find that the appeal succeeds in respect of
count 1 and that the sentence falls to be reduced to one of
25
years. The sentence in respect of charges 2 and 3, however, falls to
be confirmed and we direct that all three sentences run
concurrently. We also direct that the appellant be compelled to
undergo counselling in respect of all of the offences
before
being
considered for parole. It is so ordered.
STEENKAMP. AJ
SALDANHA.
J
:
I agree. It is so ordered
SALDANHA.
J