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2023
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[2023] ZAFSHC 399
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S.B.A.M v S - Appeal (A68/2023) [2023] ZAFSHC 399 (19 October 2023)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case No.: A68/2023
In
the matter between:
S[…]
B[…] A[…] M[…]
Appellant
and
THE
STATE
Respondent
Coram:
Opperman, J
et
Lekhoaba, AJ
Date
of hearing:
16
October 2023
Delivered:
19 October 2023.
The judgment
was handed down in court and electronically by circulation to the
parties’ legal representatives by email and
release to SAFLII
on 19 October 2023. The date and time for hand-down is deemed to be
19 October 2023 at 15h00
Judgment
by:
Opperman, J
Summary:
Appeal – sentence – rape &
sexual assault – 12-year-old child
JUDGMENT
[1]
Appellant appeals against the sentence handed down in the Regional
Court on 18 November 2022.
[2]
He was convicted of one count of sexual assault and one count of
rape. He was sentenced to 5 years
direct imprisonment in terms of
section 276(1)(b)
of the
Criminal Procedure Act 51 of 1977
and life
imprisonment in terms of
section 51(1)
of the
Criminal Law Amendment
Act 105 of 1997
; respectively. The sentences were ordered to run
concurrently.
[3]
The offences were perpetrated against the stepdaughter of the
appellant and over a period of time.
Counsel for the respondent is
correct when he stated in his address to this court that the
appellant groomed the complainant with
premeditation and then went
forth and raped her.
“
It is alleged that
in respect of Count 1 the incident happened on or about 2014, the
year 2014 to the same complainant, EW, who
was 12 or 13 years old at
the time. And the second Count is that of rape where it is alleged
that the complainant was raped in
2014 as well by accused by
inserting his finger and also his penis inside her vagina on
different occasions.”
[1]
[4]
The appellant has an automatic right to appeal.
[5]
The plea of the appellant cannot be regarded as one of guilty from
the onset. He clearly waited
to see where the evidence turned and
only then changed his tune. He put the complainant through the agony
of testimony in
court. The record shows that Mr Marema
initially pleaded guilty to count 1; that was on 4 March 2020. The
proceedings were then
adjourned; the then accused alleged that there
was a misunderstanding between him and his attorney. On 24 October
2022 accused,
at the request of the defence, pleaded once more to
both counts and pleaded not guilty to both counts. The accused then
denied
all allegations against him. The state led the evidence of the
complainant who was then 21 years; that was on 24 October 2022. The
case was adjourned for the complainant to be cross-examined
whereafter the defence prepared a statement in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
. The accused made admissions
which were tantamount to admission of all the elements of the crimes
proffered against him.
[2]
There
was not any cross examination on his behalf of the evidence of the
complainant.
[6]
The report on the
medico
- legal examination and the results
of the DNA secured the case for the State beyond any doubt. The
matter was finalised after
the accused closed his case without
tendering any further evidence and the appellant sentenced as above.
[7]
This is the case for the appellant:
1.
That the sentence of life imprisonment on
count 2 is
disproportionate, excessive and induces a sense of shock.
2.
The court
a quo
erred in finding that there were no
substantial and compelling circumstances to deviate from the
prescribed sentence having regard
to the personal circumstances of
the appellant, that he pleaded guilty and showed remorse and, the
rehabilitative element.
3.
That the court
a quo
over-emphasized the seriousness of the
crime and the interest of the community, the deterrent and
retributive elements over the
personal circumstances of the
appellant.
4.
The mitigating circumstances of the appellant
were argued to be that
the appellant was about 47 years old at the time of sentence and 38
years old at the time of the commission
of the offences, the
appellant have a minor child aged 8 years old, the appellant was
employed until his incarceration, on 25 August
2022, the appellant
showed remorse and took responsibility for his actions, the appellant
is a first offender and the appellant
have prospects for
rehabilitation.
5.
The appellant acknowledges that gender violence
is rife in South
Africa, the appellant caused the case to be before court and the
complainant was traumatised by the actions of
the appellant. The
complainant, her mother and her siblings are suffering because of the
appellant's actions, rape and sexual assault
are serious offence and
the appellant abused the trust of the complainant.
6.
The appellant maintains that the court
a quo
merely mentioned
the personal circumstances of the appellant but did not give effect
thereto. Punishment must fit the criminal
as well as the crime, be
fair to society and be blended with a measure of mercy. The court
a
quo
overemphasized the retributive element of punishment. No
consideration was given to the rehabilitative element of punishment.
7.
Counsel for the appellant reiterated that
the appellant is a first
offender, the appellant had a dependent minor child that he
supported, the appellant admitted to the offences
and did not waste
the court's time further, he took responsibility for his actions; and
that he was of an advanced age.
[8]
The case for the respondent is that:
1.
The complainant was
12 years old and the appellant about 39 years at the time of the
incident. The appellant betrayed, abused and
misused the trust
relationship with the complainant.
2.
Violence against any
human being is taking on epidemic proportions in this country.
3.
The appellant is
unremorseful. He initially pleaded not guilty. The appellant stalled
the matter for several years. The complainant
was subjected to
secondary trauma and forced to testify. Only after the DNA results
became available did he change his plea. His
remorse can be regarded
as lip service and not true and genuine.
4.
The complainant
suffered severe emotional trauma. She was effectively alienated from
her family due to the conduct of the appellant.
5.
Counsel for the
respondent submitted that the appellant's personal circumstances are
not so exceptional that it must weigh more
than the interests of
society. The emphasis is on this type of offence that must be harshly
punished. The court
a
quo
, in
his submission, also, correctly found that no compelling and
substantial circumstances exists in this matter and
that
the minimum sentence should therefore be imposed. He referred the
court to
S
v Matyityi
2011(1) SACR 40 (SCA).
[9]
it is trite that a sentence imposed by a trial court should only be
altered if an irregularity
took place during the trial or sentencing
stage, the court
a
quo
misdirected itself in respect of the imposition of sentence and, the
sentence imposed by the Court
a
quo
could be described as disturbingly or shockingly inappropriate.
[3]
[10]
From the evidence adduced in the court below and the factors pointed
out in the appeal, there is nothing
that indicates that the court
below did not apply her mind judiciously and with due care. She did
not misdirect herself. Her sentence
is in accordance with the
prevailing legislation and law. There is not any issue that dictates
for the interference of this court.
The sentences were apt and
appropriate in the circumstances.
[11]
ORDER
The appeal is dismissed.
OPPERMAN, J
I concur.
LEKHOABA, AJ
APPEARANCES
Counsel
for appellant
ADVOCATE
V ABRAHAMS
LEGAL
AID: SOUTH AFRICA
BLOEMFONTEIN
Counsel
for respondent
ADVOCATE
D PRETORIUS
OFFICE
OF THE DIRECTOR:
PUBLIC
PROSECUTIONS,
FREE
STATE
BLOEMFONTEIN
[1]
Pages 208 and 209 of the record.
[2]
Exhibit
B.
[3]
S
v Rabie
1975(4) SA 855 (A).