About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2022
>>
[2022] ZAECMKHC 29
|
|
Tyhobeka v S (C.A. & R 158/2020) [2022] ZAECMKHC 29 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Case
No: C.A. & R 158/2020
In
the matter between:
TIMOTHY
TYHOBEKA
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
RAWJEE
AJ :
[1]
The appellant was convicted in the regional
court, Cradock, for the rape of a 12 year old boy child
in
contravention of
s 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007
.
He
was sentenced to life imprisonment.
[2]
The appellant faced
financial challenges in prosecuting the appeal. The lack of
adequate financial resources resulted in the
appellant’s Heads
of Argument being filed outside the prescribed time periods.
The State accordingly filed a notice
to strike the appeal off the
roll. The State withdrew its notice to strike the appeal off
the roll after considering the
appellant’s reasons for the
delay in complying with the prescribed time periods. This
Court, in the interests of justice,
condoned the non-compliance with
the prescribed time periods and entertained the appeal.
[3]
The grounds of appeal
raised by the appellant are that the trial court erred in finding
that the State proved its case beyond reasonable
doubt and erred in
finding that there were no substantial and compelling circumstances
to deviate from the imposition of a life
sentence.
[4]
On 31 December 2017, the
complainant was playing outside in the street in front of the
appellant’s yard with his cousin and
two other friends.
The appellant, who was sitting on the porch, called the complainant
to go and buy him cigarettes.
Indeed the complainant went and
returned with ten cigarettes. This much is common cause.
The complainant testified
that when he went to give the appellant the
cigarettes, the appellant pulled him inside his house and locked the
door. The
appellant told him to go and sit in the bedroom.
The appellant then went to the toilet. When he came back he
told the
complainant to sleep with him. The complainant refused
and he was then thrown on the bed by the appellant. The
complainant
was lying on his back. The appellant then took off
the complainant’s shorts and underwear and then proceeded to
take
off his own long pants, shorts and underwear. He inserted his
penis into his buttocks. He lifted the complainant’s legs
up to do this. The complainant cried and kicked the appellant.
The complainant’s cousin then came to knock on
the door of the
appellant’s home and called the complainant’s name out.
The appellant did not open the door at
that stage. A short
while later, the complainant’s mother knocked and kicked at the
door to the appellant’s home.
The appellant gave the key
to the complainant to go and unlock the door. The complainant’s
mother entered the appellant’s
home and found him in the
bedroom with his belt loose. She asked him why he locked her
son up in the house with him.
He did not answer her question.
They went home and the complainant’s mother and granny went to
the appellant’s
mother’s home to report to her that the
appellant had locked the complainant up in his house. The
complainant’s
evidence is that he was scared to tell his mother
that he was raped as she had warned him about it. The next day
he was nauseous
and had a headache and could not stand up. The
complainant’s mother asked him to tell her the truth and he
then reported
the rape to her. She went to the appellant’s
home to confront him and without explaining in any particularity, he
asked
her to forgive him. The neighbours witnessed the complainant’s
mother’s confrontation with the appellant and that she
was
assaulting him. She then took him to the hospital with the help of a
friend.
[5]
At the hospital the
complainant was attended to by Dr Ratyana. The complainant’s
mother reported that he had been sodomised.
Dr Ratyana
completed a medical examination and reported that there was anal
penetration. No condom was used and the complainant
had
to be submitted to a HIV test. This medical evidence was not
contested by the appellant at the trial.
[6]
The appellant’s
version at the trial was that the complainant wanted to watch TV and
he had refused as he was waiting for
his girlfriend. Absent how
and when he had a change of heart and decided to allow the
complainant to watch TV, he then tweaked
his version to state that
the complainant was in his house to watch TV. It is the
uncontested evidence of the complainant’s
mother that the TV
was not on. I find his version to be false. His
explanation for locking the door was that it was
late. This was
not accepted as true as he was sitting outside on the porch a few
minutes ago and the complainant’s
cousin and other children
were still playing on the street just outside his house and his
girlfriend was also about to visit.
Having considered the
evidence as a whole, including the objective, uncontested medical
evidence, I find that the court
a
quo
correctly
convicted the appellant of rape.
[7]
Insofar as the appeal
regarding the sentence of life imprisonment is concerned this Court
has to decide whether the sentence imposed
is appropriate having
regard to the evidence before the magistrate as a whole. When a
court determines an appropriate sentence
it must balance the
seriousness of the offence, the interests of society and the personal
circumstances of the accused person,
without over emphasising any of
those factors. It is appreciated that the magistrate
frowned upon the deed as the victim
was a minor child, however, there
are mechanisms of addressing the interests of victims in the
sentencing process without failing
to consider and balance those with
the interests of the accused person. The Supreme Court of Appeal when
dealing with an appeal
against sentence lodged by the Director of
Public Prosecutions in
DPP
v Thabethe ( 619/10) [ 2011] ZASCA 186 ( 30 September
2011 )
at
paragraph 21 referred to
S
v Matyityi
2011 (1) SACR 40
(SCA) paras 16 -17
where
Ponnan JA addressed the sentencing process involving victims and
stated :
”
An
enlightened and just penal policy requires consideration of a broad
range of sentencing options, from which an appropriate option
can be
selected that best fits the unique circumstances of the case before
court. To that should be added, it also needs to be
victim- centred.
Internationally the concerns of victims have been recognised and
sought to be addressed through a number of declarations,
the most
important of which is the UN Declaration of the Basic Principles of
Justice for Victims of Crime and Abuse of Power. The
declaration is
based on the philosophy that adequate recognition should be given to
victims, and that they should be treated with
respect in the criminal
justice system. In South Africa victim empowerment is based on
restorative justice. Restorative justice
seeks to emphasise that a
crime is more than the breaking of the law or offending against the
State- it is an injury or wrong done
to another person. The Service
Charter for Victims of Crime in South Africa seeks to accommodate
victims more effectively in the
criminal justice system. As in any
true participatory democracy its underlying philosophy is to give
meaningful content to the
rights of all citizens, particularly
victims of sexual abuse, by reaffirming one of our founding
democratic values, namely human
dignity. It enables us, as well, to
vindicate our collective sense of humanity and humanness. The charter
seeks to give to victims
the right to participate in and proffer
information during the sentencing phase. The victim is thus
afforded a more prominent
role in the sentencing process by providing
the court with a description of the physical and psychological harm
suffered, as also
the social and economic effect that the crime had
and, in future, is likely to have. By giving the victim a voice the
court will
have an opportunity to truly recognise the wrong done to
the individual victim (See generally Karen Muller & Annette van
der
Merwe ‘Recognising the Victim in the Sentencing Phase : The
Use of Victim Impact Statements in Court.’)..”
[8]
Ms Teko correctly submitted
that this court will only interfere with a sentence if there is a
material misdirection committed by
the court
a
quo
. Ms
Teko referred to the
Zinn
triad
and
submitted that the sentence is shocking and disproportionate. I find
that there are indeed substantial and compelling circumstances
which
should have influenced the trial court to deviate from the minimum
sentence. In my view, those circumstances would include,
but not
limited to, the fact that the appellant is a first offender and that
he is a bread winner supporting three minor children.
[9]
Mr Kgatwe
representing the State conceded that the sentence of life
imprisonment was shocking and disproportionate in this case
for the
same reasons advanced by Ms Teko. He submitted that considering
the personal circumstances of the appellant, a sentence
between 10 to
15 years would be appropriate.
[10]
I find that by imposing a
life sentence in the circumstances of this case, the trial court
erred. For that reason, this Court is
at large to interfere with the
sentence imposed by the trial court. I would uphold the appeal
against the sentence.
ORDER
I
would accordingly make the following Order:
6.1
The appeal against the conviction is dismissed.
6.2
The appeal against the sentence is upheld.
6.3
The sentence of the court
a quo
is set aside and substituted
with the following:
“
The accused is
sentenced to undergo fifteen (15) years’ imprisonment for the
rape of a minor boy child.”
6.4
The sentence is antedated to 11
June 2019.
A
RAWJEE
ACTING
JUDGE OF THE HIGH COURT
I
agree. It is so ordered.
T.
V NORMAN
JUDGE
OF THE HIGH COURT
Appearances:
For
Appellant:
Adv Teko instructed by Legal
Aid Centre, Makhanda
For
Respondent: Adv K M Kgatwe instructed
by National Director of Public
Prosecutions, Makhanda
Date
Heard: 11
May 2022
Date
Delivered: 31
May 2022