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[2010] ZAGPPHC 257
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Hlotse v S (A857/07) [2010] ZAGPPHC 257 (10 May 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG PRETORIA)
Case
No. A857/07
DATE:10/05/2010
O
M
Hlotse
..................................................................................................................
Appellant
and
The
State
..................................................................................................................
Respondent
JUDGMENT
Jordaan,
J
This
is an appeal against sentence only. The appellant was charged with
rape in the regional court sitting at Potgietersrus. It
was alleged
that he, on 30 September 2003 raped the complainant, a 13 year old
girl. The appellant initially pleaded not guilty
but after the
complainant testified he changed his plea to one of guilty. He was
duly convicted as charged and the matter was then
referred to the
high court for sentence in terms of the
provisions
of act 105 of 1997. The law at the time of conviction required such a
referral to the high court for sentence.
The
matter came before Ismail AJ who sentenced the appellant to life
imprisonment. Ismail AJ then granted the appellant leave to
appeal
against sentence to the full bench of this court.
The
court below was obliged to impose a term of life imprisonment unless
substantial and compelling circumstances were found to
impose a
lesser sentence. Before us it was argued on behalf of the appellant
that substantial and compelling circumstances were
indeed present in
this case and that a lesser sentence should therefore have been
imposed by the court below.
Before
dealing with the personal circumstances of the appellant it is
necessary to summarise the facts of the case.
1.
The appellant and the complainant are related. He is her uncle. At
the time of the incident they stayed in the same house.
2.
The complainant testified that at the time the appellant was the one
who cared for her.
3.
At the time the complainant was a scholar in grade 8. She was 13
years old at the time.
4.
The complainant testified that she and others during the evening of
30 September 2003 watched a show on television. When those
who
watched the show with her left the appellant locked the gate. The
appellant then called her and her sister Minah whereupon
there was an
argument between the appellant and her and Minah. I find it difficult
to determine from the evidence exactly what
the argument was about
but it was apparently about meat. During the argument the appellant
accused them of wasting his money.
5.
During the argument the appellant threatened to assault Minah with a
fist and ordered her to go to bed. After Minah left the
appellant
said to the complainant that he was going to sleep with her. When the
complainant indicated that she was not willing
to do so he said he
will hit her with the buckle of his belt.
6.
He then instructed her to go to the room, to undress and to get on
the bed. He then raped her. During the rape she complained
that he
was hurting her but he said that she must tolerate it.
7.
Thereafter the appellant fell asleep and she "ran out of the
room".
8.
The next morning she washed and went to school.
9.
After she returned from school she told her grand mother about the
rape. She was taken to hospital for a medical examination.
She was
detained at the hospital. I cannot determine from the evidence for
how long. Thereafter she was taken to a social worker.
The
medical doctor who examined the complainant testified that she was
uncooperative during the examination. The examination took
place on 3
October 2003, i.e. 3 days after the event. He said she was "very,
very scared." She would not allow him to
examine her private
parts and would break down in tears and started crying and yelling.
Even after she was sedated this continued
and the doctor could not
examine her. He thus concluded that it was impossible for him to
determine whether she was raped or not.
I find it difficult to
determine on the evidence whether the complainant's refusal to be
examined was because she was in pain,
traumatised or just scared. The
doctor testified, although he could not remember the details, that
the complainant told him that
the appellant was under the influence
of liquor at the time. This aspect was however not explored during
the trial. The appellant
also did not testify and thus could not be
questioned on this aspect. The nature of the argument between the
appellant and the
two girls referred to above will however in my view
fit in with someone who is to some extent intoxicated. The grand
mother of
the complainant corroborated the fact that the complainant
reported to her that she was raped by the appellant. That was at
17:00
on 1 October 2003. She was not crying but started crying while
she made this report to her. Before imposing sentence Ismael J called
the mother of the complainant in order to determine whether she
suffered any psychological effects as a result of the event. She
testified that after the incident her school work deteriorated but
that she passed her end of the year
examinations.
She said the complainant discontinued reading because she thought of
the incident. At times she would just cry. Her
condition has however
improved. She did consult a psychologist but has stopped doing so
because, according to the mother, her condition
has improved.
The
personal circumstances of the appellant are as follows:
1.
He has a previous conviction for theft committed on 4 May a sentence
of R 1000 or 3 months imprisonment, half of which was suspended
on
certain conditions was imposed. He has no previous convictions for
any crime of which violence is an element.
2.
He was 24 years of age at the time he raped the complainant.
3.
He was employed earning R 800 per month.
4.
He went to school up to grade 11.
As
stated above the legislature has enacted that for certain crimes
imprisonment for life is mandatory unless substantial and compelling
circumstances to impose a lesser are found. Rape of a child under the
age of 16 is such a crime.
After
consulting the relevant judgements of the supreme court of appeal and
certain
provincial divisions (such as S v M
2007 (2) SACR 60
(W) I have
concluded that the approach of the supreme court of appeal is
somewhat less legalistic and more pragmatically inclined.
In this
regard I specifically refer to S v Nkomo 2007(2) SACR 204 (SCA) and S
v Sikhipa 2006(2) SACR 439 (SCA).
In
coming to the conclusion I have reached I regarded this court to be
bound
by
the principles laid down by the supreme court of appeal even if our
personal views are at variance therewith.
I
make the following findings:
1.
Rape of a child is an offence to be punished severely. A long term
of imprisonment is as a matter of course called for (unless
the
circumstances of the case dictates otherwise. I do not think that
this such a case.)
2.
The appellant was in a position of trust vis a vi the complainant
which is an aggravating circumstance.
3.
There are indications that the appellant was under the influence of
liquor. (As stated the evidence of the doctor and the nature
of the
argument between the appellant and the complainant and her sister
seems to be indicative thereof.) This was not explored
at the trial
due to the fact that the appellant changed his plea before cross
examination of the complainant.)
4.
From the medical evidence it is not possible to determine what
physical injuries there were. Fact of the matter is that the
complainant went to school the day after the event. There is no
evidence eg. of the grand mother that she was in any physical
discomfort
when she made the report to her'
5.
Of course there were psychological scars but according to the mother
the complainant was improving.
6.
The appellant seems to have been a solid citizen not inclined to
violence. The mere fact that he was entrusted by the parents
to care
for the complainant and her sister seems to be indicative thereof.
7.
Although serious this was not the worst kind of rape that I and
other courts have been confronted with.
8.
I am of the view that there is indeed a chance that the appellant
will be able to rehabilitate. (See Nkomo (supra) at 203 e.
9.
The appellant is relatively young and was in fixed employment.
I
am therefore inclined to find that a period of imprisonment for life
is not an appropriate sentence.
Accordingly
the following order is made:
The
appeal succeeds.
The
sentence imposed by the court a quo is set aside and is replaced with
the following:
The
appellant is sentenced to 15 years imprisonment. The sentence is
antedated to 18 October 2004, being the date the appellant
was
originally sentenced.
E
Jordaan
Judge
of the high court.
I
agree
P
Ebersohn
Acting
Judge of the High Court.
I
agree
M
J Dolamo
Acting
Judge of the High Court