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[2023] ZAFSHC 387
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Makhubo v S - Appeal (A20/2023) [2023] ZAFSHC 387 (2 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
Number:
A20/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the appeal of:
THEMBA
MAKHUBO
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
DANISO,
J
et
VAN RHYN, J
JUDGMENT
BY: VAN RHYN, J
HEARD
ON:
28 AUGUST 2023
DELIVERED
ON 2 OCTOBER 2023
[1]
The appellant was arraigned in the Regional Court,
Harrismith on three counts namely;
Charge1: Robbery
with Aggravating Circumstances;
Charge 2: One count
of contravening the provisions of Section 3 of the
Criminal
Law (Sexual Offences and Related Matters), Amendment Act
[1]
,
(Rape);
Charge 3: Attempted
Murder.
[2]
It was alleged that the appellant,
on
4 October 2015, at a farm near Harrismith, unlawfully and
intentionally assaulted and forcefully robbed the complainant of the
items listed in Schedule “A” to the charge sheet and
raped her. The charge of rape is read with the provisions of s
51(1),
Schedule 2, of the Criminal Law Amendment Act
[2]
.
[3]
The provisions of section 51(1) of the Criminal Law Amendment Act
were duly explained to the appellant
at the commencement of the
trial. The appellant, who was duly represented during the
trial, pleaded not guilty to the charges
levelled against him. He was
convicted on 17 November 2020 of robbery with aggravating
circumstances and one count of rape. The
appellant was acquitted on
the attempted murder charge.
[4]
Upon conviction the appellant was sentenced to 15 years imprisonment
in respect of robbery charge and
to a term of life imprisonment in
respect of the charge of rape. He enjoys an automatic right of
appeal and filed a Notice
of Appeal against the conviction and
sentence on 28 April 2022. The grounds upon which the appellant’s
appeal rests in respect
of the convictions can concisely be
summarised as follows:
4.1
The court
a quo
erred in accepting that the State had proved
its case against the appellant beyond reasonable doubt despite the
chain of evidence,
regarding the forensic evidence presented by the
respondent, being broken.
4.2
The court
a quo
erred in finding, notwithstanding the
discrepancies regarding the chain of evidence presented by the State,
that no alteration
or substitution of the exhibits occurred.
4.3
The court
a quo
erred in accepting the testimony presented by
Mr L G Khoza who testified that the appellant handed to him a Nokia
Cell Phone as
a gift, despite material contradictions in his
testimony.
[5]
The grounds upon which the appellant’s appeal rests in respect
of the sentences imposed
can concisely be summarised as follows:
5.1 The sentences are
shockingly inappropriate in that the sentences are harsh and severe.
5.2 The court
a quo
over-emphasized the seriousness of the offences committed and the
interests of society, and failed to take into consideration the
personal circumstances of the appellant.
5.3 The court
a quo
erred in not finding substantial and compelling circumstances to be
present to deviate from the prescribed minimum sentence of
life
imprisonment in respect of the rape charge and the prescribed minimum
sentence of 15 years in respect of the charge of robbery.
[6]
Both the convictions and sentences are supported by the respondent.
Mr Bontes, counsel on behalf
of the respondent, contends that there
is no evidence on record laying any basis upon which the court of
appeal could have doubt
regarding the chain of evidence in respect of
the custody of the forensic exhibits. He contends that the chain of
evidence was
properly dealt with taking into consideration the
testimony of the witnesses and the contents of the numerous
affidavits in terms
of the provisions of Section 212 of the Criminal
Procedure Act
[3]
(“CPA”),
submitted as Exhibits I, J,K,L,M, N and O, during the trial.
[7]
During the trial the testimony of ten witnesses were presented by the
prosecution. During her
testimony the complainant, a 61-year old
female farmer, explained how she was ambushed by two unknown men when
she arrived at the
homestead around 16h00 on 4 October 2015. The two
men were wearing masks. She was unable to identify her assailants.
[8]
The complainant was stabbed in her left shoulder, assaulted, and
threatened by the two men who
demanded money and guns from her. She
was tied with her hands behind her back and taken to her bedroom. She
was severely assaulted,
burned with an iron on her breasts, upper
body and legs and raped by both men. She testified that both men used
a household, yellow
plastic glove, modified and cut to serve as a
condom, while raping her. She confirmed that the items listed
in Schedule “A”
to the charge sheet were robbed during
her ordeal, one of those items being her black Nokia cell phone. She
was left in the house
while the perpetrators fled with her motor
vehicle.
[9]
Sergeant S I Malinga of the South African Police Services stationed
at Harrismith and his colleague
arrived at the crime scene during the
night of 4 October 2015. They secured the scene. Nothing was removed
or touched while they
waited for the members of the Local Criminal
Record Centre investigate the crime scene and search for forensic
evidence.
[10]
Warrant Officer T N Teepa, stationed at the Local Criminal Record
Centre at Bethlehem testified that on 4
October 2015, at around
22h00, he was summoned to the crime scene by Sergeant Malinga. He
took photographs of the crime scene and
compiled a photo album,
Exhibit 1. Depicted on photo 22, photo 23, and photo 25 is a yellow
plastic glove. He noticed the glove
on the bed in the main bedroom.
He removed the duvet cover from the bed. On the next
photograph, the plastic glove
can be seen lying on the floor in the
bedroom. Warrant Officer Teepa packed and sealed the duvet
cover in a forensic bag
marked PA3000709119. He also removed the
bedspread which was packed and sealed in a forensic bag marked PA
3000709097.
[11]
Approximately three days after the incident the
complainant returned to the farm where she found a yellow plastic
glove provided to her by her employees at the farm. She handed the
plastic glove to Captain Mokoena, the Investigating Officer
assigned
to the case. On 6 November 2015 the complainant identified her
cell phone, a black Nokia shown to her by Warrant
Officer M J Senje.
[12]
Warrant Officer Teepa testified that he received a
yellow plastic glove from Captain Mokoena at the Harrismith
Police
Station on 7 October 20215. The glove was in a forensic bag marked
PA6001140333D. On 9 October 2015 he accompanied Warrant
Officer
Mokoena to collect buccal swabs from the complainant. The DNA
Reference Sample Collection Kit (swabs) was sealed and marked
PA4002441784.
[13]
All the exhibits collected at the crime scene as well as the buccal
swabs taken from the complainant were
kept under register number
224/2015 at the SAP13 strong room at the Harrismith Police Station.
On 12 October Warrant Officer
Teepa typed the covering letter
addressed to the Forensic Science Laboratory, Pretoria. According
to him, Warrant Officer
Clarke took the mentioned exhibits as well as
several other exhibits to the laboratory at Pretoria on the 15
th
of October 2015.
[14]
The State presented the testimony of Dr L E Mabaso, a medical
practitioner, employed at the Provincial Hospital
at Ladysmith, who
took 3 swabs from the complainant during the medical examination
performed on 5 October 2015. These swabs
were packed, sealed
and numbered 14D1AB9071TF (Adult sexual assault Evidence Collection
Kit), with two separate evidence sealing
bags with bar code
PA4002232178 and bar code PAD001304257. Dr Mabaso’s findings
were recorded on the J88 form subsequent
to the completion of the
medico legal examination which was handed in as Exhibit “B”
during the trial. The forensic
evidence was handed to Captain A L
Morajane, who confirmed the testimony of Dr Mabaso. Captain
Morajane took the sealed bags
and entered same as exhibits in the SAP
13 register under the reference number SAP1026/2015 with numbers PA
5002169657 and PAD
001304257. A copy of the SAP 13 Register was
handed in as Exhibit “D”.
[15]
Captain Mokoena, explained that the cell phone of the complainant
linked the appellant to the crime. Evidently
the appellant gave
the cell phone to one of the witnesses who testified during the
trial, Lindokhule Goodluck Khoza. The
said Mr Khoza testified
that he received the cell phone from the appellant during October
2015.
[16]
Subsequent to the arrest of four (4) suspects, one of them being the
appellant, Warrant Officer Matile obtained
buccal swabs,
inter
alia
, from the appellant while in custody. The affidavit
deposed to by Warrant Officer Matile was received as Exhibit “H”
during the trial. From the affidavit and his testimony, it is evident
that Warrant Officer Matile took a DNA reference sample 13DBAA2948TF
from the appellant on 14 November 1015 which was placed in a forensic
bag and sealed with number PA 5002112160.
[17]
The buccal swabs obtained from the appellant was kept in the SAP 13
strong room as is evident from the SAP13
register, serial number
1196
CAS 35/10/2015.
One transparent and blue SAPS plastic, containing
exhibits 13DBAA2948EP was received and booked into the SAP13. Captain
Mokoena
testified, with reference to the original SAP13 register,
that he took the forensic evidence to the Forensic Science Laboratory
at Pretoria.
[18]
Captain Mokoena received and signed for a receipt, Exhibit “F”,
subsequent to delivering the
exhibits to officials at the laboratory
at Pretoria. Evidence bag PAD 000790369 and PAD 001304257 were
received at the laboratory
on 27 November 2015 without being tampered
with.
[19]
Although Captain Mokoena initially testified that he did not receive
any plastic gloves during his investigation,
he subsequently
confirmed that a yellow plastic glove was found by the complainant
after she returned to the farm. She brought
the plastic glove, with
other exhibits, to the police station.
[20]
By agreement between the defence and the prosecution the following
exhibits pertaining to the chain of evidence
were accepted as
evidence during the trial:
20.1
An affidavit in terms of the provisions of S
ection
212 (8) (a) of CPA
deposed to by Selina Khelina
Ntuli (Exhibit “K”) stating that she received two sealed
evidence bags, one with reference
number PAD001304257 and another
with reference number PAD000790369 from Captain Mokoena on 2 November
2015. The seal was still
intact and the sealed evidence bags
with contents, in the same condition it was received, were handed
over to the
Administration component of the Biology Section at the
laboratory.
20.2
An affidavit in terms of the provisions of S
ection 212 (4)(a),
(6)(b) and (8)(a) of CPA
deposed by
Warrant
Officer M van Heerden (Exhibit “L”) who, on 11 January
2016, received evidence bag PAD001304257 from the administration
component containing
inter alia
the forensic evidence
collected by Dr Mabaso, being, one swab guard box protector
containing one sealed swab box with reference
number 14D1AB9071 and
marked “Cervix”. During the course of her official
duties and examination of the exhibits
she discovered and detected
possible semen on 3 of the swabs collected by Dr Mabaso.
20.3
An
affidavit in terms of the provisions of S
ection 212 (8)(a) of
the CPA
deposed to by the a
dministration
clerk, R L Booysen (Exhibit “M”)
, who
on
15 October 2015 received a sealed evidence bag with
reference number PAB 000167818 marked Harrismith CAS 35/10/2015 from
Warrant
Officer Clarke. The sealed bag was handed over to the
administration component at the laboratory. No breaking of the
seal
or examination of the contents of the sealed bag was carried out
by Booysen.
20.4
An
affidavit in terms of the provisions of S
ection 212 (4)(a),
(6)(a) and(b) and (8)(a) of the CPA
deposed to by
Warrant Officer Willie Mbombo (Exhibit “N”), who
on 23 November 2015 received sealed evidence bag with ref number PAB
000167818 from the administration component of the laboratory. This
bag contained several exhibits,
inter alia,
a duvet cover “A”
with reference number PA3000709119, a bedspread marked “C”,
reference number PA3000709097
and a sealed bag with ref number
PA6001140333D marked “Harrismith CAS 35/10/2015”
containing a yellow coloured latex
glove. The exhibits were examined
and semen were detected,
inter alia
on the Duvet Cover “A”
and the Bedspread “C”.
20.5
An
affidavit in terms of the provisions of S
ection 212 (8)(a) of
the CPA
deposed to by
Werner Kemp, a Senior
Administration Clerk at the laboratory who, on 1 June 2016, received
a sealed evidence bag with reference
number PA5002112160, marked”
Harrismith CAS 35/10/2015” from a Warrant Officer MOKONE
(Exhibit “I”). No
breaking of the seal was carried out by
Werner Kemp.
20.6
An
affidavit in terms of the provisions of S
ection 212 (4)(a),
(6)(a) and (b) and (8)(a) of the CPA
deposed to by
Warrant Officer S I Manzini (Exhibit “J”) who, on 14
August 2016, received a sealed evidence bag with reference number
PA5002112160 from the administration component containing a sealed
reference sample with reference number 13DBAA2948EP.
[21]
During her testimony Captain R C Janse van Rensburg, a senior
Forensic Analyst and Reporting Officer of South
African Police
Service stationed at the Forensic Science Laboratory at Pretoria
testified that the DNA results from the following
exhibits:
1. Cervix swab “Oats”
14D1AB9071 (PAD001304257)
2. Duvet “A”
semen PA3000709119; and
3. Bed spread “C”
semen PA3000709097
matches the DNA results
from the reference sample [13DBAA2948] (PA5002112160) She concluded
that the most conservative occurrence
from the DNA results from the
exhibits as mentioned above is 1 in 160 million trillion people.
[22]
Captain Janse van Rensburg testified that the DNA results of the
reference sample [13DBAA2948] (PA5002112160)
is read into the DNA
mixture result obtained from the glove (PA600114033D). The most
conservative occurrence for the DNA result
from the glove for all
possible contributors to the mixture DNA result is 1 in 80 trillion
people.
[23]
The State closed its case. The accused elected not to testify. He did
not call any witnesses to testify on
his behalf and closed his case.
[24]
The argument raised on behalf of the appellant is the
discrepancy in the testimony of Captain Mokoena that he delivered the
sealed
forensic evidence bags at the laboratory at Pretoria, whereas
Warrant Officer Teepa testified that he handed the forensic evidence
collected at the crime scene, packed and contained in sealed evidence
bag PAB 000167818 to Warrant Officer Clarke who delivered
same to the
laboratory.
[25]
The admission of forensic evidence in the form of a section 212
affidavit is subject to the provisions and
prerequisites of
sub-sections 212(4)(a), 212(6) and 212(8)(a) of the CPA. In respect
of the section 212 affidavit deposed to by
R L Booysen the applicable
provisions of subsection 212(8)(a) provide as follows:
"In criminal
proceedings in which the receipt, custody, packing, marking, delivery
or despatch of any fingerprint or palm-print,
article of clothing,
specimen, specimen (as defined in section 1 of the Anatomical
Donations and Post-Mortem Examinations Act,
1970 (Act 24 of 1970), or
any object of whatever nature is relevant to the issue, a document
purporting to be an affidavit made
by a person who in that affidavit
alleges —
(i) That he is in the
service of the State or is in the service of or is attached to the
South African Institute for Medical Research,
any university in the
Republic or anybody designated by the Minister under subsection (4);
(ii) That he in the
performance of his duties –
(aa) received from any
person, institute, State department or body specified in the
affidavit, a fingerprint or palm-print, article
of clothing,
specimen, tissue or object described in the affidavit, which was
packed or marked or, as the case may be, which he
packed and marked
in the manner described in the affidavit;
(bb) delivered or
despatched to any person, institute, State department or body
specified in the affidavit, a fingerprint or palm-print,
article of
clothing, specimen, tissue or object described in the affidavit,
which was packed or marked or, as the case may be,
which he packed or
marked in the manner described in the affidavit-fee) during a period
specified in the affidavit, had a fingerprint
or palm-print, article
of clothing, specimen, tissue or object described in the affidavit in
his custody, which was packed or marked
in the manner described in
the affidavit, Shall upon the mere production thereof at such
proceedings, be prima facie proof of the
matter so alleged:"
[26]
It is evident from R L Booysens’s section 212 affidavit that he
is in the service of the State, attached
to the Biology section, at
the case reception section of the Forensic Science Laboratory and
that he received one sealed evidence
sealing bag with reference
number PAB000167818 marked “Harrismith CAS 35/10/2015”
from Warrant Officer L B Clarke on
15 October 2015. The bag was
sealed and no breaking of the seal occurred while he handled the bag.
He handed the sealed bag to
the administration component at the said
laboratory.
[27]
The contents of the section 212 affidavit deposed to by Willie Mbombo
furthermore complies with the provisions
of the subsection 212(4)(a)
which reads as follows:
"Whenever any fact
established by any examination or process requiring any skill -(i) In
biology, chemistry, physics, geography
or geology; is or may become
relevant to the issue at criminal proceedings, a document purporting
to be an affidavit made by a
person who in that affidavit alleges
that he or she is in the service of the State..., and that he or she
has established such
fact by means of such examination or process,
shall, upon its mere production at such proceedings be prima facie
proof of such
fact:"
[28]
Sub-section 212 (8)(a)(ii)(aa) deal with the receipt of the exhibits
by the deponent to the statement. Sub-section
212(8)(a)(ii)(bb) deals
with the delivery or dispatch of the exhibits by the deponent.
Custody of the exhibits by the deponent
to the statement is dealt
with in sub-section 212(8)(a)(ii)(cc). From the contents of the
section 212 affidavit deposed to by Willie
Mbombo it is evident that
same complies with the provisions of the above sub-sections.
[29]
I am satisfied that the prosecution presented
prima facie
evidence regarding the custody of the relevant exhibits referred to
in the section 212 affidavit deposed to by Willie Mbombo.
The
State presented the evidence of Warrant Officer Teepa regarding the
gathering, packing and safe keeping of the exhibits in
the strong
room at the police station and delivery of the forensic evidence to
Warrant Officer Clarke. From the contents of the
section 212
affidavits deposed to by Booysen and Willie Mbombo, who broke the
sealed evidence bag with reference number PAB 000167818,
it is
evident that the sealed an untampered evidence bag arrived and was
received from Warrant Officer Clarke at the laboratory
on 15 October
2015. The appellant failed to adduce evidence to rebut the
prima
facie
proof.
[30]
The further point raised by the appellant is the chain of evidence
pertaining to the DNA reference sample
obtained from the appellant,
marked 13DBAA2948TF. The State presented the evidence of Warrant
Officer Matile who accompanied Captain
Mokoena on 14 November 2015
when the buccal swabs of the appellant was obtained and sealed.
Captain Mokoena confirmed Warrant Officer
Matile’s testimony.
The evidence presented in this regard was challenged by the appellant
during the trial in that
the sample was taken by Captain Mokoena and
not by Warrant Officer Matile and not that no swabs were taken.
[31]
The sample taken from the appellant was kept in the strong room at
the police station at Harrismith under
entry number 1196 in the SAP
13 register on 14 November 2015. The point taken on behalf of the
appellant is that the State failed
to present evidence regarding the
delivery of the sample taken from the appellant to the laboratory at
Pretoria. Captain Mokoena
testified that he delivered the forensic
exhibits to the receptionist at the laboratory. However, from the
contents of the section
212 affidavit of Werner Kemp the specific
sealed evidence bag with reference number PA5002112166 was received
on 1 June 2016 from
Warrant Officer Mokone. The prosecution did not
present any evidence in this regard.
[32]
Sealed evidence bag PA50021166 was not opened by Werner Kemp and
merely received and handed over to the administration
component at
the laboratory. It is evident that either Captain Mokoena delivered
the bag himself and that a misnomer occurred when
Werner Kemp
compiled his affidavit or that Captain Mokoena made a
bona fide
mistake when he testified during 2020, approximately 5 years after
the incident, and that the evidence bag was indeed delivered
by a
certain Warrant Officer Mokone. I further take cognisance of the
evidence presented during the trial that the rank of Captain
Mokoena
at the time of the incident, was that of a Warrant Officer.
[33]
The Appellate Division held in
S
v Veldthuizen
[4]
and
R v
Chizah
[5]
that
the mere challenging of the evidence will not be sufficient to affect
the evidential value of
prima
facie
proof. An accused challenging
prima
facie
proof will be obliged to lay a basis for contesting such evidence.
There is no proof that the buccal samples obtained from the
appellant
or any of the other evidential forensic samples and exhibits had been
tampered with. The State presented
prima
facie
evidence pertaining to the gathering of the buccal samples from the
appellant, the gathering, packing, marking, sealing and storing
of
the exhibits from the crime scene. The same applies in respect of the
forensic evidence obtained during the medico legal examination
of the
complainant by Dr Mabaso. The
prima
facie
evidence presented during the trial is that the forensic
evidence and exhibits were received by Werner Kemp, Selina Ntuli
as well as Booysen, sealed and bore the same seal number as that
which had been placed on it by the police officers who collected
the
evidential material and by the medical doctor.
[6]
[34]
I agree with the submission by Mr Bontes that no foundation was laid
by the appellant that the evidential
material may have been
contaminated. The section 212 affidavits submitted are
conclusive proof of the lack of any interference
or contamination.
The evidence by Mr Khoza furthermore links the appellant to the
crime. The appellant gave the complainant’s
cell phone to
Mr Khoza during the same month, October 2015, when the crime was
committed. Where an accused is faced with
credible evidence and
he decides not to testify, he leaves the
prima
facie
case to speak for itself. In
S
v Chabalala
[7]
the Supreme Court of Appeal held as follows:
“
The appellant was
faced with direct and apparently credible evidence which made him
prime mover in the offence. He was also
called on to answer
evidence of a similar nature relating to the parade … To
have remained silent in the face of the
evidence was damning.
He thereby left the prima facie case to speak for itself. One
is bound to conclude that the totality
of the evidence taken in
conjunction with his silence excluded any reasonable doubt about his
guilt”.
[35]
No explanation was given how it was possible that
the appellant’s DNA was found on the swab taken from the cervix
of the complainant,
the duvet and bed spread from her bed and also on
the yellow plastic glove which was used as a condom when she was
raped. Accordingly,
a very heavy burden was created against the
appellant by the evidence presented by the State. This heavy
burden was not relieved
in any way by the silence of the appellant.
[36]
On a conspectus of all the evidence presented, a
prima
facie
case has been made out against the appellant. In the absence of an
explanation by the appellant, the evidence presented by the
State
became proof beyond reasonable doubt.
The
conviction of the appellant was based on the factual findings of the
trial court. In
Mkhize
v S
,
[8]
Mocumie AJA held:
“
The
approach to be adopted by a court of appeal when it deals with the
factual findings of a trial court is trite. A court of appeal
will
not disturb the factual findings of a trial court unless the latter
had committed a material misdirection. Where there has
been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct. The appeal court will only
reverse it where it
is convinced that it is wrong. In such a case, if the appeal court is
merely left in doubt as to the correctness
of the conclusion, then it
will uphold it. This court in S v Naidoo & others
[9]
reiterated this principle as follows: ‘In the final analysis, a
Court of appeal does not overturn a trial Court's findings
of fact
unless they are shown to be vitiated by material misdirection or are
shown by the record to be wrong."'
[37]
There was no material misdirection and the findings of fact were
correct. I am convinced that the appeal
against each of the
convictions should fail.
[38]
The appellant’s personal circumstances were placed on record
during his legal representative’s
address on sentencing.
He was 27 years of age at the time of sentencing. He was not
married and has one minor child,
aged 6 at the time of sentencing.
His highest scholastic qualification is Grade 9. Prior to his arrest
he received a total monthly
income of R3 000, 00. He
admitted one previous conviction, that of assault with the intent to
do grievous bodily harm
and was sentenced to 12 months’
imprisonment. He was sentenced to 15 years imprisonment in
respect of the robbery charge
and life imprisonment in respect of the
rape charge.
[39]
On behalf of the respondent it was argued that the sentencing court
considered all the relevant mitigating
factors of the appellant in
assessing the appropriate sentence. There is nothing compelling and
substantial about the appellant’s
personal circumstances
whether taken individually or cumulatively.
[40]
Before
it imposes a prescribed sentence,
it
is
incumbent upon a court in every case, to assess, upon a consideration
of all the circumstances of the particular case, whether
the
prescribed sentence is indeed proportionate to the particular
offence.
[10]
T
he
determinative test set out in
S
v Malgas,
[11]
is whether or not when the circumstances of a particular matter are
considered, "the prescribed sentence would be rendered
unjust in
that it would be disproportionate to the crime, the criminal and the
needs of society, so that an injustice will be done
by imposing that
sentence".
[12]
[41]
The complainant testified in aggravation of
sentence and placed on record the financial damages sustained due to
the loss of her
property as a result of the robbery. She furthermore
explained the immense trauma suffered as a result of the attack,
assault and
rape by the two perpetrators. She testified that she
believed that death was immanent at every stage during the horrific
ordeal
and that she was confused for a period of two months
subsequent to the attack perpetrated upon her during October 2015.
[42]
The complainant testified that she realised that she had been watched
by her attackers prior to the incident
and since the incident she
struggled to feel safe and secure notwithstanding several endeavours
to improve security measures on
the farm. She feels vulnerable and
received specialist treatment from a psychologist while also taking
antidepressants.
[43]
Fr
om the J88, handed in as an exhibit during the trial, it is
evident that there were numerous serious injuries and burn wounds to
her face, left breast, her torso and legs as well as a stab wound to
her left shoulder. The complainant did not suffer from injuries
to
the vaginal area. There is no doubt that the offence forming the
subject of this appeal is a serious and appalling crime inflicting
severe suffering on the complainant.
[44]
I am therefore not persuaded that the appellant’s personal
circumstances meet the threshold of substantial
and compelling
circumstances as provided for in Section 51(3)(a) of the Act.
The appeal ought to be dismissed. I accordingly
propose the
following order:
ORDER:
1.
The appeal against the convictions and sentences is dismissed.
I VAN RHYN. J
I
concur and it is so ordered
:
N S DANISO, J
On
behalf of the appellant:
Ms. V
Abrahams
Instructed
by:
Legal
Aid SA
Bloemfontein
On
behalf of the respondent:
Adv.
D. W. Bontes
Instructed
by:
Director:
Public Prosecutions
Bloemfontein
[1]
Act
32 of 2007.
[2]
Act
105
of 1997.
[3]
Act 51 of 1977.
[4]
1982 (3) SA 413 (A).
[5]
1960(1) SA 435 AD (at 442 C-G).
[6]
S v Boyce
1990 (1) SACR 13
(T).
[7]
2003 (1) SACR 134
(SCA) at para 21.
[8]
Mkhize v S (16/2013)
[2014] ZASCA 52
(14 April 2014) at para 14
(Maya, Shongwe, Willis and Saldulker JJA concurring).
[9]
S v Naidoo & Others
2003 (1) SACR 347
para 26.
[10]
S v Vilakazi
2009 (1) SACR 552
(SCA) at [15].
[11]
2001 (1) SACR 469
(SCA).
[12]
See S v MM: S v .JS: S v JV
2011 (1) SACR 510
(GNP) at [18].