About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 290
|
|
T.E.Z and Another v S (A70/2020) [2022] ZAFSHC 290 (21 October 2022)
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 DIVISION, BLOEMFONTEIN
Case
No: A70/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the Appeal of:
T[....]
E[....] Z[....]
FIRST
APPELLANT
NTHIBANE
JOHN MAKHETHA
SECOND
APPELLANT
And
THE
STATE
RESPONDENT
CORAM
:
MBHELE,
DJP et REINDERS, J
HEARD
ON: 10
OCTOBER 2022
DELIVERED
ON: 21 OCTOBER 2022
JUDGMENT
BY: MBHELE, DJP
[1]
The appellants were convicted by the Regional Magistrate, Botshabelo,
of raping a
16-year-old complainant more than once. They were each
sentenced to life imprisonment on 12 November 2015. Aggrieved by the
sentence,
the appellants exercised their right to automatic appeal,
due to the sentence of life imprisonment imposed, and approached this
court on appeal.
[2]
The offence took place on 28 December 2013. The two appellants gained
entry, through
the window, into the room where the complainant was
sleeping at night and interchangeably had sexual intercourse with her
without
her consent. After they each had sex with her in the house
the first appellant dragged her outside to some rocky place in the
veld
and continued to penetrate her vaginally with his penis without
her consent. The second appellant threatened other occupants of
the
house with a knife resulting in them running out of the house to seek
help from the neighbours. Amongst those that fled the
house was a
mother and her little baby who had to escape the house through her
bedroom window while the appellants were in the
complainant’s
bedroom.
[3]
In their notice of appeal, the appellants contended that the sentence
imposed by the
trial court is shockingly harsh and inappropriate.
They submitted, further, that the trial court over emphasized the
seriousness
of the offence and the interests of society at the
expense of their personal circumstances and further that it erred in
finding
that there were no substantial and compelling circumstances
warranting deviation from the prescribed minimum sentences.
[4]
The personal circumstances of the appellants were set out as follows:
The first
appellant was 23 years of age at the time of
sentencing, single with one minor child, he went to school up to
grade 9 and does
odd jobs from time to time. He has one previous
conviction of assault common wherein he paid an admission of guilt
fine in 05 July
2010. The second appellant was 25 years of age
at the time of sentencing, single with a minor child who was less
than 2 years
old. He passed grade 10 and was employed earning a
monthly salary of R5 500.00.
[5]
The issue in this appeal is whether the trial court erred in imposing
a prison term
of life for each of the appellants after concluding
that there were no substantial and compelling circumstances present
that justified
the imposition of a lesser sentence than the
prescribed minimum sentence of life imprisonment for the rape of the
complainant more
than once.
[6]
Before us Mr. Van der Merwe submitted that he is unable to
convincingly argue that
the court a quo erred in imposing a sentence
of life imprisonment for each of the appellants.
[7]
The sentencing powers are pre-eminently within the judicial
discretion of the trial
court; the court of appeal should be careful
not to erode such discretion. The court sitting on appeal will
interfere if the sentencing
court exercised its discretion
unreasonably or in circumstances where the sentence is adversely
disproportionate.
[1]
[8]
The offence committed by the appellants is a serious one. They
violated a 16-year-old
complainant 16 in the most despicable manner.
In
S
v
Chapman
[2]
Mahomed CJ said the
following on the brutality of rape.
‘
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.
The
rights to dignity, to privacy, and the integrity of every person are
basic to the ethos of the Constitution and to any
defensible
civilization.’
[9]
Sexual violence is endemic in this country. We live in a society
where there are angry
men lurking at every corner who are in constant
search for victims on whom they can vent their anger. Nothing
explains why the
two appellants who had women in their lives would go
out of their way to break into the complainant’s house and
violate her
in the manner that they did. This is an indication that
women are not safe anywhere they find themselves. Women are told to
be
extra cautious at all times. They are told to scan people’s
faces when in lifts, to stay away from dark places, not to be
in the
streets at night, to always look over their shoulders but all these
are not enough to make them feel safe. It doesn’t
matter
whether women keep their doors and windows locked in sweltering
summer, if rapists want to find them nothing can stop them.
In the
current matter the complainant had ticked all the boxes to feel safe
but the appellants pursued and violated her in the
comfort of her
home sleeping.
[10]
Rapists are audacious and stop at nothing to get their way. The
appellants broke into the complainant’s
home armed with a knife
and attacked her while sleeping knowing very well that she was at her
most vulnerable and would not manage
to retaliate or raise a finger
at them. What is even more difficult is that rapists do not have a
particular profile through which
they can be easily identified, they
are lurking everywhere and can pounce anytime.
There is absolutely nothing
that women can do to thwart being
the next victim of sexual assault.
[11]
It
has been generally accepted that rape is not about sexual pleasure
but it is used as a tool to exert power over the victim with
the ob.
In
Masiya
v Director of Public Prosecutions Pretoria and Another
[3]
the
following was said:
'Today
rape is recognized as being less about sex and more about the
expression of power through degradation and the concurrent
violation
of the victim's dignity, bodily integrity and privacy. In the words
of the
International
Criminal Tribunal for Rwanda the "essence of rape is not the
particular details of the body parts and objects
involved, but rather
the aggression that is expressed in a sexual manner under conditions
of coercion.’
[12]
Section 51 (1) and (3) of the Criminal Law
Amendment Act 105 of 1997 (CLAA) prescribes that the court can
depart
from the prescribed minimum sentence of life imprisonment only if the
court is satisfied that substantial and compelling
circumstances
exist warranting imposition of a sentence lesser than life
imprisonment. In
S
v Malgas
[4]
it
was held that courts are required to regard the prescribed
sentences as “being
generally
appropriate’
for
crimes of the kind specified and enjoined not to depart from them for
flimsy reasons. Malgas tells us that courts have to provide
sound
reasons for departing from prescribed sentences.
[13]
As stated above the harm suffered by victims of rape cannot be
understated. When the legislature
enacted Section 51 of the CLAA and
prescribed life imprisonment for gang rape on any victim and rape of
a minor child it was sending
a message that rape, especially of the
category I mentioned above, must be viewed in a serious light by all.
It placed a
duty on our courts to send a clear and unambiguous
message to the community and would be offenders that failure to treat
women
and children with respect has dire consequences. The one way
through which the violence of this nature can be curbed is by
imposing
harsh sentences on the offenders.
[14]
It is widely accepted that the statistics of rape in this country are
escalating at an alarming
proportion. The Minister of Police reported
on 19 August 2022 that 9516 people were raped in a period of 3 months
spanning between
1 April 2022 and 30 June 2022
[5]
.
Although this shows a reduction of 500 cases for the same period in
2021 it is still a shocking figure. Courts are called
upon to ensure
that women and children enjoy the human rights guaranteed in the
constitution and are given some sense of security
that the
perpetrators of violent crimes against them shall be brought to book.
[15]
When sentencing, the court must consider the main
objectives of punishment, being
the prevention of crime, retribution,
the deterrence of criminals, and the reformation of the offender.
Simultaneously, the court
must strike a balance between the crime,
the offender and the interest of society. The court should also take
into consideration
the provisions of Section 51 of CLAA where
applicable. The sentence imposed must be proportionate to the
offence.
[16]
In
Masuku v S
the court said the following when dealing with
departure from prescribed minimum sentences:
“
In
my judgment, the fundamental approach in a case such as this has to
be one that accepts that the mandatory sentence of life imprisonment
should only be departed from where there is a weighty justification
for doing so. And the extent of the departure must be proportionate.
It cannot be so lenient that it loses altogether the importance of
giving effect to the Legislature's concern about the severity
of the
crime, and the interests of
society to put an end to
it by at the very least making it clear to
all perpetrators and would be perpetrators that "it is no longer
business as usual".
[17]
The victim impact report and the evidence presented by the
complainant indicate that the complainant’s
life has been
altered to the worst. She suffered depression, anxiety and mistrust
towards men including her own male family members.
She suffers from
nightmares and insomnia which contribute to her lack of focus in
class because she is always tired and drowsy
during the day.
She is unable to cope academically, she repeated grade 9 and 10 after
the incident. She has become
forgetful and struggles to reproduce
information passed to her.
[18]
When weighing mitigating factors, the offence and interest of
society, I am unable to find that
the sentence imposed by the trial
court is out of proportion with the offence committed. There is
nothing exceptional about the
appellants’ personal
circumstances and as such do not call for a departure from the
prescribed minimum sentence of life imprisonment.
The offence
justifies a lengthy period of imprisonment. The appeal ought to
fail.
[19]
In the circumstances I make the following order:
[20]
The appeal against the sentence is dismissed
The
sentence is confirmed.
N.M.
MBHELE, DJP
I
concur
C.
REINDERS , J
On
behalf of the applicants: Mr.
Van der Merwe
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv
Straus
Instructed
by: NDPP
BLOEMFONTEIN
[1]
S v Rabie
1975 (4) SA 855
(A) AT 857 D-E see also S v De Jager and
Another 1965 (2) SA 616 (A)
[2]
S v Chapman 1997 (3) SA 341 (SCA); [1997] 3 All SA 277 (A)
[3]
Masiya
v
Director of Public Prosecutions Pretoria and Another CCT54/06)
[2007] ZACC 9
;
2007 (5) SA 30
(CC);
2007 (8) BCLR 827
(10 May 2007)
13
[4]
S
v Malgas
2001 (1) SACR 469
SCA
[5]
https://www.gov.za/speeches/minister-bheki-cele-quarter-one-crime-statistics-20222023-19-aug20220000#:~:text=9%20516%20rape%20cases%20were,increases%20in%20this%20crime%20category
.