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2024
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[2024] ZAFSHC 16
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Raadt v S - Appeal (A82/2023) [2024] ZAFSHC 16 (24 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no.: A82/2023
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
SHARLTON
RAADT
Appellant
and
THE
STATE
Respondent
CORAM:
OPPERMAN J
et
LEKHOABA AJ
JUDGMENT
BY:
LEKHOABA AJ
HEARD
ON:
16
OCTOBER 2023
DELIVERED
ON:
24 JANUARY 2024
JUDGMENT
Introduction
[1]
The appellant was convicted and sentence
d
by the Regional Court on two counts of rape on 12 and 17 May 2016
respectively. The rape charges were brought in terms of section
3 of
the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
Act 32 of 2007, read with the provisions of section
51(1) of the
Criminal Law Amendment Act, Act 105 of 1997 (“the Minimum
Sentences Act”) against the appellant.
[2]
He was sentenced to life imprisonment on each count and
in terms of
section 51(1) of the Minimum Sentences Act.
[3]
The appellant brings the appeal against the convictions
and sentences
based on his automatic right of appeal in terms of section 309(1)(a)
of the Criminal Procedure Act, Act 51 of 1977.
The
grounds of appeal
[4]
Appellant’s grounds of appeal against his convictions
are that
the court
a quo
erred in finding that:
a.
Despite the absence of DNA, appellant is guilty
of the offence;
b.
Despite that no medical expert testified,
the court found him guilty
of rape;
c.
Despite the complainants saying that they
did not know appellant, he
was still convicted; and
d.
The court disregarded the evidence of his
co-accused, who testified
that appellant was not present at the incident of rape.
[5]
Appellant’s grounds of appeal against the sentences
are that
the court a
quo
erred as follows:
a.
Sentencing the appellant to a harsh and inappropriate
sentence;
b.
Disregarding the evidence in mitigation, in
that the appellant is the
father to a minor child and the sole breadwinner of the said child;
c.
Disregarding the period of detention awaiting
trial; being almost 3
years.
The
convictions
[6]
Counsel for the appellant gave a detailed depiction of
the law on the
evaluation of the evidence in cases of this nature. He proceeded to
depict and assess the evidence and concluded
in his heads of argument
dated 26 September 2023 at paragraphs 3.1.6 and 3.2.8 that despite
his instructions to submit that the
convictions should be set aside,
he cannot make such submission. Counsel for the State agreed that the
convictions are in order
and should be confirmed on appeal.
[7]
After careful consideration of the evidence, I cannot
fault the
concessions. The evidence against the appellant on both counts is
strong and the manner in which the presiding officer
adjudicated the
conspectus of evidence is legally sound. The appeal against the
convictions must fail.
The
sentences
[8]
Life
imprisonment is the ultimate penalty that courts can impose and
should not be imposed lightly. In saying this, I am fully aware
of
and acquainted with the judgments in
S
v PB
[1]
and
S
v Matyityi
[2]
wherein the Supreme Court of Appeal in both judgments warned courts
not to depart from prescribed minimum sentences for flimsy
reasons.
[9]
In respect
of the absence of serious physical injuries, the Supreme Court of
Appeal in
S
v SMM
[3]
put its stamp of approval on the interpretation of section 51(3) of
the Minimum Sentences Act by the trial judge in
S
v Nakawu
:
[4]
He [Plasket J] correctly
in my view concluded that the proper interpretation of the provision
does not preclude a court sentencing
for rape to take into
consideration the fact that a rape victim has not suffered serious or
permanent physical injuries, along
with other relevant factors, to
arrive at a just and proportionate sentence.
[10]
In
S
v Tshabalala and Another
[5]
Mathopo AJ, writing for a unanimous Constitutional Court Bench,
remarked as follows:
This scourge has reached
alarming proportions in our country. Joint efforts by the courts,
society and law-enforcement agencies
are required to curb this
pandemic. This court would be failing in its duty if it does not send
out a clear and unequivocal pronouncement
that the South African
judiciary is committed to developing and implementing sound and
robust legal principles that advance the
fight against gender-based
violence in order to safeguard the constitutional values of equality,
human dignity and safety and security.
One such way in which we can
do this is to dispose of the misguided and misinformed view that rape
is a crime purely about sex.
Continuing on this misguided trajectory
would implicate this court and courts around this country in the
perpetuation of patriarchy
and rape culture.
[11]
No doubt,
due to the seriousness of the offences in
casu
,
it is required that the elements of retribution and deterrence should
come to the fore and that the rehabilitation of the appellant
should
be accorded a smaller part as emphasised by the Supreme Court of
Appeal in
S
v Kekana.
[6]
The appellant’s personal circumstances have to bow to the
interest of society.
[12]
In
S
v De Beer
[7]
the Supreme Court of Appeal held as follows:
This court has pointed
out on many occasions that injustices may occur if the prescribed
minimum sentences are imposed without
a proper consideration of the
existence of substantial and compelling circumstances, including the
question whether the prescribed
sentence will be disproportionate to
the offence, in the wide sense, in other words, including all
the circumstances of not
only the offence itself, but also the
circumstances of the parties involved.
[13]
The
sentence of life imprisonment must be imposed unless, as subsections
(3) and (6) provide that there are substantial and compelling
circumstances which justify the imposition of a lesser sentence.
[8]
The test of what constitutes substantial and compelling circumstances
was articulated in
S
v Malgas.
[9]
The trite triad of factors as set out in
S
v Zinn
[10]
also prevails.
[14]
The trial court took into consideration the appellant’s
personal circumstances
that he was
31 years old,
passed grade 10 at school, was unmarried with two children (5 and 7
years old), working and earning R600.00 per week
as well as his
extensive previous convictions.
[15]
The courts have in several cases stated that
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.
[16]
The court when sentencing correctly ruled that no compelling and
substantial
circumstances exist. The argument in mitigation that the
appellant was incarcerated awaiting trial for a substantial period of
time; 2 years and 5 months does not hold water as compelling and
substantial. Due to his previous convictions, it was inevitable,
and
he was the architect of his own fate here. It is also a reality that
the appellant is the father of two minor children. There
is however
not any evidence that he was the primary caregiver nor the primary
breadwinner of these children at the time of the
sentencing. This
factor may also not be elevated to compelling and substantial on the
evidence before court.
Conclusion
[17]
From the evidence adduced in the court below and the factors pointed
out in
the appeal, there is nothing that indicates that the presiding
magistrate did not apply his mind judiciously and with due care.
He
did not misdirect himself. The convictions and sentences are in
accordance with the prevailing legislation and law. There is
not any
issue that dictates for the interference of this court.
[18]
In result the following is ordered:
ORDER
The
appeal is dismissed, and the convictions and sentences imposed by the
court
a quo
are confirmed.
LEKHOABA
AJ
I
concur.
OPPERMAN
J
Counsel
for the appellant:
Mr.
JD Reyneke
Legal
Aid South Africa
BLOEMFONTEIN
Counsel
for the respondent:
Mr D.
Pretorius
Office
of the Director of Public Prosecutions: Free
State
BLOEMFONTEIN
[1]
2013
(2) SACR 533
(SCA) para 20.
[2]
2011
(1) SACR 40
(SCA) para 23.
[3]
2013
(2) SACR 292
(SCA) at para 26.
[4]
2009
(2) SACR 402
(ECG) at para 15.
[5]
2020
(2) SACR 38
(CC) para 63.
[6]
2019
(1) SACR 1
(SCA) at paras 39 & 40.
[7]
2018 (1) SACR 229
(SCA) at para 17.
[8]
Section
51 (3) of Act 105 of 1997 provides that in the absence of any
physical injuries that shall not constitute substantial
and
compelling circumstances.
[9]
2001
(1) SACR 469
(SCA) at 482 c.
[10]
1969
(2) SA 537
(A).