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[2021] ZAGPPHC 116
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Toons v S (A20/2019) [2021] ZAGPPHC 116 (26 February 2021)

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Certain personal/private details
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A20/2019
REPORTABLE:
Y/N
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
DATE:
02/03/2021
In
the matter between:
AK
TOONS

Appellant
and
THE
STATE

Respondent
DATE
OF HEARING: This matter was enrolled for hearing on 10 SEPTEMBER
2020, and dealt with or determined on the basis of the papers
or
record and written argument filed on behalf of the parties, without
appearance and oral argument. DATE OF JUDGMENT: This judgment
was
handed down electronically by circulation to the parties’
representatives by email. The date and time of hand-down is
deemed to
be 02 MARCH 2021.
JUDGMENT
N
V KHUMALO J (NEUKICHER J concurring)
Introduction
[1]
On 20 February 2018 the Appellant was convicted by the Regional
Court,
Obelhozer (court a quo) on 3 counts, that is, kidnapping
(Count 1), assault (Count 2) and rape in terms of s 3 of Act 32 of
2007
(Count 3). Sentences of 3 years and a warning and a discharge
were imposed for Count 1 and 2 respectively. On count 3 a sentence
of
eight (8) years imprisonment was imposed. The sentences were ordered
to run concurrently. The Appellant is with leave of the
court a quo
appealing against both conviction and sentence.
[2]
The offences were according to the charge sheet committed against one
N K[...](“the Complainant”) on 8 December 2016, when she
was deprived of her freedom of movement (kidnapped), by being
pushed
into and locked in a car, driven and taken to a cemetery in
Carletonville without her consent where she was slapped with
open
hands and an act of rape by insertion of a finger into her vagina
without her consent was committed by the Appellant.
[3]
The Appellant denies his involvement in the crime and he pleaded not
guilty
to all the charges. He was legally represented during the
whole trial proceedings. He exercised his right to remain silent and
refused to tender an explanation of his plea. However, he had put to
the witnesses that although he was married and the Complainant
had a
boyfriend they had an affair. He denied that he kidnapped, assaulted
and raped her. At the end of the trial the court found
that the state
had proven the Appellant’s guilt on the three counts beyond
reasonable doubt.
[4]
The salient facts are that on the day of the incident, the Appellant,
whom the Complainant got to know after a few encounters, had found
the Complainant walking in the street on her way to see her
boyfriend. The Appellant instructed the Complainant to get into the
car, drove around with her, making a stop at a petrol station
then at
a nearby B & B or pink house before driving with her to a
cemetery where the Appellant allegedly raped her by inserting
his
finger in her vagina. Afterwards the Appellant left her at a nearby
bridge that is on her way to her boyfriend’s work.
The
Complainant, accompanied by her boyfriend, on the same day reported
the incident to the police. She was examined by a doctor
the
following day.
[5]
The court a quo convicted the Appellant on the evidence of
the
Complainant, her boyfriend P K[...] (P[...]), her sister M [...]
(M[...]) and the medical doctor who examined the Complainant
and
completed the J88 report Dr Moosa (Moosa). The version of the
Appellant and his witness B M[...] (B[...]) was rejected as not
being
reasonably possibly true.
State’s
evidence
[6]
The evidence on behalf of the state was first led by the Complainant.
Her testimony on how she got to know the Appellant was that, she came
across him at a filling station when she was on her way to
P[...].
The Appellant offered her a lift and asked her for her sister’s
numbers. Due to the fact that she had no permission
from the sister
to give the Appellant her number, she gave him her numbers. She knew
the Appellant because he had proposed love
to her sister. The
Appellant passed by the stores and went inside, leaving her in the
car. Whilst the Appellant was still in the
store, she jumped out of
the car and started walking. The Appellant caught up with her and
gave her a lift again. He was not impressed
by what the Complainant
did, alighting from the car and wanted to know why she did it. He
then dropped her off at Kokosi not far
from P[...]’s work
place. She told P[...], about her encounter with the Appellant and
P[...] informed her that the Appellant’s
name is Papi. The
Appellant then send her messages by Whatsapp about that day’s
incident again wanting to know why she left
him at the stores and why
she looked disturbed. She told him it was because she did not know
him that too well and therefore did
not like being in his company. He
wanted to know if the Complainant has anything against him,
suggesting that they should meet
and talk. She asked him what he
wanted to talk about that is when he told her that he was actually
interested in her. According
to the Complainant she was not
interested as she has a boyfriend and the Appellant is a married man.
She told him that meeting
with him will not work.
[7]
One day he sent her a message that his wife is not at home she must
come
and visit him. She declined and went with her sister to BME,
leaving her phone at home. When she came back she found several
messages
sent by the Appellant threatening her saying that as and
when he finds her he was going to show her if she thinks he is a fool
“she does not know who she is dealing with”, using the
word “shit.” The Complainant responded that he cannot

speak to her like that as she was not his girlfriend. The Appellant
insisted that she tell him her whereabouts. When she told him
she was
at home he told her to come outside so that he can show her what he
is going to do to her. They never communicated from
that day although
she used to see him when she was with her mother, he would not say
anything.
[8]
On 8 December 2016 Appellant, who was in a Municipality van, came
upon
her walking alone towards Kokosi. He instructed her to get into
the car, as he wanted to talk to her about something. She refused
and
kept on walking. Appellant followed her and kept on asking her to get
into the car as he wanted to discuss something with her.
He
disappeared and reappeared again, when she was walking near the
hostel in Kokosi after passing the bridge. He stopped the van
next to
her and got out. He was very angry and accused her of making a fool
of him. He grabbed her by the hand, took her umbrella
and dragged her
to the passenger door. He took her cellphone, switched it off and put
it in his pocket. He ordered her to get inside
the van and she
refused and told him that there was nothing to talk about. He pushed
her lower body into the van and locked the
door.
He drove with her
to Carletonville
and kept on threatening her warning her that she
does not know who she is dealing with. He briefly stopped at the
[...] garage after
threatening and warning her not to get out. He
then drove to a nearby B & B, asked her if she was on prevention
as they were
going to have sex. She protested. After briefly stopping
there, he drove off
and stopped at a graveyard
. He ordered her
to get out and told her that he was going to punish her for how she
made him feel when she refused to come to him.
He put his hand under
her trousers and touched her private parts. She pulled out his hand
out of her trousers and he slapped her.
He inserted his hand again
trying to feel her vagina and she again pulled his hand out. He again
slapped her on the face, opened
the passenger door, sat inside,
pulled her inside between his legs and then put his hand in her
trousers between her legs penetrating
her vagina with his fingers.
She kept on fingering her whilst she was crying. He afterwards drove
out of town and started apologizing
to her. He stopped the van at a
turn-off to Fochville and gave her back her cellphone after deleting
messages between them. He
drove away and left her by P[...]’s
work. She immediately reported the incident to P[...] who accompanied
her to the police
station on the same day. She was examined by a
Doctor on the following day.
[9]
Dr Moosa a Wits graduate with an MBBCH degree who was working at
Carletonville
Hospital at the time testified that he could not find
any obvious injuries on the gynecological and specula examinations he
conducted
on the Complainant a day after the incident. He however was
not in a position to exclude that she might have been sexually
assaulted.
She confirmed that she has a boyfriend and the last time
she had sexual intercourse was a day before the incident on 7
December
2016. He wrote in his report that:
“
most
of
the
things
were
normal
except
for
the
posterior
fourchette
where we
noted fresh bruises”
[10]
P[...]’s evidence corroborated that of the Complainant
regarding that they had an
arrangement that she would come to visit
him that day. At about 11h00 he tried to get hold of the Complainant,
her cellphone was
off. The Complainant then phoned her between 13h00
and 14h00 reporting the incident to him, especially what happened at
the graveyard
and they reported the matter to the police. He also
reported that the Appellant was not familiar to him even though he
knew his
name.
[11]
The state closed its case.
[12]
The Appellant testified that on the date of the incident he was with
B[...]
Mahlangu when at about 13h15 he received a “please call
me” from the Complainant. He was driving the Municipality
vehicle
and on their way to collect stock from Carletonville. At the
bridge he saw the Complainant he stopped the vehicle and asked her

about the call back message. Complainant told him she wanted to talk
to him in private. He asked her to join them in the vehicle
and she
did. Under cross examination he agreed that the Complainant was on
her way to her boyfriend. They continued to drive to
Carletonville
where he left B[...] at the Municipality offices. He drove with the
Complainant around Carletonville and ended up
at the graveyard. He
parked the car and got out and they started talking. The Complainant
told him to communicate with her by sms
otherwise P[...] will kill
her if he finds the communication as she had told him that the
Appellant is her sister’s boyfriend.
He then asked the
Complainant about her other secret relationships and that is when she
became angry and accused the Appellant
of having spoiled the
relationship between her and her boyfriend. The Complainant then
started talking about his wife whereupon
he decided to stop the
relationship there and then. They drove back to the Municipality
where B[...] was waiting for him. They
drove to Kokosi where they
left the Complainant at [...] Street. He agreed that the Complainant
did not direct him to the pink
guest house. He said he did not answer
her sms because he had no airtime.
[13]
[...]’s testimony was that he was travelling with the Appellant
in a
Municipality vehicle going to Carletonville doing work errands
when they encountered the Complainant at the bridge. The Appellant

stopped the vehicle and enquired from the Complainant why she sent
him a sms. The Complainant wanted to speak to the Appellant
in
private and asked if she can join them. She sat between them and they
drove back and the Appellant left him at the Municipality
offices. He
was requested by the Appellant to take a certain book to the manager
for signature
.
It took about 15 minutes, the Appellant and the
Complainant were back to collect him and they drove to [...] Street
where they left
the Complainant. He testified that when the Appellant
came back to collect him he did not notice anything strange in the
behaviour
of the Complainant. Under cross examination he denied that
they picked up any stock that day because when they left the store
was
already closed. He also indicated that he was not there to
testify but to listen to the Appellant’s case.
[14]
M K[...] who is the sister of the Complainant was called by the court
to testify.
Her version was that the Appellant was known to her as he
has given her a lift twice when she was in the company of her friend.

They used to call the Appellant “Yaris.” The bulk of her
evidence was hearsay as pointed out by the court.
APPEAL:
AD CONVICTION
[15]
The Appellant has submitted that the onus of proof in a criminal case
is discharged
by the state if the evidence establishes the guilt of
the Accused beyond reasonable doubt. The corollary is that he is
acquitted
if it is reasonably possible that he might be innocent. The
Appellant’s appeal must thus be upheld if it is found that the

trial court erred in finding that the guilt of the Appellant has been
established beyond reasonable doubt, in the light of the
explanation
that has been put forward by the Appellant during his trial. Further
that:
[15.1]
The court a quo erred in finding that, as it is satisfied as to the
credibility of the state’s witnesses, therefore
the evidence of
the defence witness including that of the Appellant must be rejected.
[15.2]
The court also erred in finding that the evidence of the
Complainant’s version is more probable than that of the
Appellant
and therefore Appellant’s version must be rejected.
When the Appellant’s version as corroborated by his witness is
just as probable, if not more probable, than that of the Complainant.
[15.3]
There were minor discrepancies and no material differences between
the evidence of the Appellant and that of B[...]. Therefore,
the
court erred in rejecting the version of B[...] on the balance of
probabilities, the court must be able to find as a matter
of
probability,
that
the Appellant’s version is simply not reasonably possibly true
referring to
S v Shakel
2001 (2) SACR at 194 (SCA). It also
argued that B[...]’s evidence was not properly evaluated,
referring to
S v Van Aswegen
(327/2000)
[2001] ZASCA 61
(17
May 2001) at par [8]
“
A
court does not base its conclusion, whether it be to convict or
acquit on only part of the evidence. The conclusion that it arrives

at must account for all of the evidence.”
[16]
Finally the court is alleged to have erred in not evaluating the
evidence of
the Complainant, mindful of the cautionary rule
applicable on a single witness taking into consideration that the
Complainant had
a motive to incriminate the Appellant. She had a
boyfriend but had given the Appellant her cellphone number. She was
also on the
day of the incident supposed to meet with her boyfriend.
The further allegation is that there is a material contradiction
between
the Complainant and P[...]’s evidence as she testified
that P[...] told her the name of the Appellant but P[...] denies
knowing
the Appellant or telling the Complainant the Appellant’s
name.
[17]
It is trite that if an appeal is directed against a
court a quo
’s
findings of fact, the court of appeal must be mindful that the
court
a quo
was in a better placed position than itself to form a
judgment. When inferences from proven facts are in issue, the court
a
quo
may also be in a better placed position than the court of
appeal, because it is better able to judge what is probable in the
light
of its observation of witnesses who have testified before it.
Therefore, where there has been no misdirection of fact, a court of

appeal must assume that the
court a quo
’s findings are
correct and will accept these findings, unless it is convinced that
they are wrong; see
S v Dlumayo
1948 (2) SA 677
(A) at
705-706.
[18]
In order to succeed on appeal, the appellant must therefore convince
the court of appeal
on adequate grounds that the trial court was
wrong in accepting the witness’ evidence - a reasonable doubt
will not suffice
to justify interference with its findings. Bearing
in mind the advantage which a trial court has of seeing, hearing and
appraising
a witness, it is only in exceptional circumstances that
the court of appeal will be entitled to interfere with a trial
court's
evaluation of oral testimony; see
Dlumayo supra.
[19]
Furthermore, in the absence of demonstrable and material misdirection
by the trial court,
its findings of fact are presumed to be correct
and will only be disregarded if the recorded evidence shows them to
be clearly
wrong.
[20]
It is not the duty of this court to re-evaluate the evidence afresh
as if it is the trial
court, but to decide whether patently wrong
findings and or misdirection by a magistrate led to a failure of
justice; see
S v Francis
1991 (1) SACR 198
(A) at 198J- 199A.
[21]
The meaning of the criminal standard of proof, that is proof beyond
reasonable doubt, is articulated by the courts
in a number of
different ways. Nugent J and Schwartzman J in
S v Sithole
1999
(1) SACR 585
(W) stated that:
“
There
is only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond a reasonable
doubt. The
corollary is that the accused is entitled to be acquitted
if there
is a reasonable
possibility that an innocent
explanation which he has proffered might be
true…”
(my emphasis).
[22]
In
S v Van der Meyden
1999 (1) SACR 44
(W) 448 Nugent J
elaborated on the above mentioned test by stating that:
“
In
order to convict, the evidence must establish the guilt of the
accused beyond a reasonable doubt, which will be so only if there
is
at the same time no reasonable possibility that an innocent
explanation which has been put forward may be true. The two are

inseparable, each being the logical corollary of the other. In
whichever form the test is expressed, it must be satisfied upon

consideration of all the evidence. A court does not look at the
evidence implicating the accused in isolation in order to determine

whether there is proof beyond a reasonable doubt and so too does it
not look at the exculpatory evidence in isolation in order
to
determine whether it is reasonably possible that it might be true.”
[23]
The contention raised about the court having assessed the facts
incorrectly, regarding the testimony
of the defence witnesses,
alleging that there were no material differences but only minor
contradictions between their testimony
or that it was assessed in
isolation, has no merit. Considering the fact that the Complainant
never mentioned the presence of B[...],
whilst the Appellant alleged
to have been with B[...] driving to Carletonville to fetch stock, and
B[...]’s testimony that
it was late, the shops were already
closed when they drove to Carltonville, disputing that they were
going to fetch any stock,
moreover that at the Municipality the
Appellant sent him to get a book signed by a manager and when
Appellant spoke about picking
B[...] from the Municipality he did not
mention anything about the stock they were supposed to collect, the
court was right in
rejecting the defence’s version as being not
reasonably possible true.
[24]
Furthermore when B[...] was cross examined on his version that he
told the court (in his
evidence in chief) that the Complainant wanted
to speak to the Appellant in private, he could not repeat the
allegations or respond
to the interrogation related to that. It also
does not make sense that whilst Complainant wanted to speak to the
Appellant in private
she would jump in the vehicle when B[...] was in
the vehicle. B[...] also pointed out that he came to court not to
testify but
to listen to the proceedings and ended up being called to
testify. It is apparent that the allegation that B[...] was with the
Appellant on that day is fabricated. The allegation was rightly and
seriously considered and rejected by the court a quo for being
not
reasonably possibly true, accepting the version of the Complainant
that B[...] was not in the picture to be reasonably possible
true.
[25]
The Appellant, further, to justify his strange conduct of driving
around with the Complainant
alleged that she said they needed to
speak in private. He therefore after he dropped B[...] at the
Municipality, drove around looking
for a place where they can talk.
It does not make sense as they were in the vehicle alone and any
conversation between them would
have been private. Whereas the
Complainant’s version is that they have been alone in the car,
when he stopped at the garage,
pink lodge and the graveyard. There
was no talking privately but Appellant was intent on having sex with
her asking her about prevention
measures she was taking, and when
they were at the graveyard that is exactly what he did, by inserting
his fingers in her vagina.
The court had rightly surmised that if she
wanted to be nasty or vindictive she would have alleged that the
Appellant penetrated
her with his penis. Her evidence even though of
a single witness was clear and satisfactory with no contradiction in
any material
respect.
[26]
Additionally, on the issue of a single witness, the fact that the
court a quo did not mention
or set out in its judgment that her
evidence was assessed as that of a single witness, it does not mean
that the court was not
aware of that fact or cautious in arriving at
a conclusion on its reliability and her credibility. It mattered most
that it was
satisfied beyond reasonable doubt that her evidence is
true. As it was the approach of the court in
R v Abdoorham
1954
(3) SA 163
(N) at 165 E-F that:
“
The
court is entitled to convict on the evidence of a single witness if
it is satisfied beyond reasonable doubt that such evidence
is true.
The court may be satisfied that the witness is speaking the truth
notwithstanding that in some respects he is an unsatisfactory

witness.”
[27]
The
issue of whether or not certain things were left out from the police
statement should be weighed against what the parties agreed
upon that
it also
depends
on the person asking the questions as to what a witness will testify
about as well as the fact that the police statement
is taken for the
purpose of reporting an offence and for investigative purposes. At
common law the previous statement, if inconsistent,
is only
admissible to discredit the witness, but not as the evidence of the
facts stated therein; see
Hoskisson
v Rex
1906
TS 502
at
504.
[28]
The Appellant has not proven any discrepancies in any material
respect or on any material
aspect of the state’s evidence that
entitles the court of appeal to consider an acquittal of the
Appellant. Also given the
totality of the evidence presented, we
could find no misdirection with the evaluation of the evidence by the
court a quo or its
findings
.
Accordingly, the appeal on the
conviction must fail.
AD
SENTENCE
[29]
It is the Appellant’s contention that the court a quo in
sentencing him erred in
that:
[29.1]
it overemphasized the seriousness of the offence and the interest of
society and under emphasized his personal circumstances
which was
that he was 39 years old, married and with two children, his wife was
divorcing him, employed as a caretaker at the Municipality
and
currently studying B. Com Accounting with Unisa.
[29.2]
It never considered other available sentencing options such as
correctional supervision in terms of s 276 (1) (i) Act 51
of 1977.
[29.3]
It imposed a sentence in respect of count 3 (rape) which is under the
circumstances disturbingly or shockingly inappropriate.
[30]
It is indeed trite that in an appeal against sentence a court of
appeal should be guided
by the principle that punishment is
preeminently a matter within the trial court’s province and
guard against the erosion
of that discretion. Therefore the power of
an appeal court to interfere with the sentencing courts discretion is
limited unless
the sentencing court’s discretion was exercised
improperly. The essential inquiry in an appeal against sentence is
not whether
the sentence was right or wrong, but whether the
sentencing court exercised its discretion properly and judicially. If
the discretion
was exercised improperly, the appeal court will
interfere with the sentenced imposed; see
S v Malgas
2001 (1)
SACR 469
(SCA);
S v De Jager and Another
1965 (2) SA 616
(A)
at 628H-629B.
[31]
In order to ascertain that an appropriate sentence is imposed, the
courts are guided by
the
Zinn
triad (
S v Zinn
1969 (2)
SA 537
(A) that refers to the offender, the offence committed and the
interest of society being the factors to be considered in determining

a proper sentence. The court looks at the circumstances surrounding
the nature and extent or degree of each of these three factors,

keeping in mind the purpose for sentencing that is retribution
deterrence, prevention and rehabilitation.
[32]
Countered to this is what was submitted by the Appellant: he also had
a previous conviction
of assault with intent to do bodily grievous
harm on 23 November 2010 for which he was sentenced to a fine for R6
000.00 or four
months. Also that of common assault in 2017 for which
he was sentenced to a wholly suspended sentence.
[33]
The court
a quo
in its judgment on sentence weighed all the
circumstances presented including the presentencing report which
covered both the victim
and the perpetrator’s circumstances
through the social worker’s perspective and took into
consideration as mitigating
factors (constituting substantial and
compelling circumstances for deviating from the prescribed minimum
sentence) that there were
no serious injuries, the offence was
committed with a finger not a penis even though it still amounts to
rape and that there are
other two counts, that of assault and that of
kidnapping. It as a result, deviated from the prescribed sentence and
also ordered
that the sentences run concurrently. We therefore cannot
find that in passing sentence court’s exercising of its
discretion
fell short, since the offence committed, the offender and
the interest of society were extensively and properly deliberated
upon
and clearly influenced the court’s decision.
[34]
It should not escape our minds that we are dealing with an unabated
continuous violation of women’s dignity
and right to be free.
Effective sentencing therefore forms the core of legal endeavours to
eradicate the scourge of the violations.
In
Carmichele v Minister
of Safety and Security (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
(2002 (1) SACR 79)
para 45, the court
pronounced that:
“
Sexual
violence and the threat of sexual violence goes to the core of
women’s subordination in society. It is the single greatest

threat to the self determination of South African Women.”
[36]
CMV Clarkson’s Understanding Criminal Law 2001 at 208 expanded

on the observation stating that ‘
The intimate and personal
nature of this act makes this a particularly reprehensible form of
assault, involving not only the application
of force to the body of
the victim but, by ignoring the woman’s unwillingness to engage
in sexual intercourse, also a serious
invasion of a woman’s
privacy and autonomy.’
[37]
In
casu
it is of concern that the Complainant was treated with
contempt by alluding to the fact that she had a lot of boyfriends as
if that
automatically disentitles her to any form of dignified
treatment or right to choose as to whom does she form relationships
with
and or to be intimate with. It also displays the absence of any
remorse and an arrogance of entitlement but most of all the intention

to humiliate the victim. This cannot be perpetuated by our courts, by
imposing sentences that are more sympathetic or informed
by the
personal circumstances of the perpetrator that effectively tramples
on the victims’ right to be efficiently protected
by the law.
[38]
The Supreme Court of Appeal in the words of Ponnan
AJ in
S v
Matyityi
2011 (1) SACR 40
SCA at par 23 remarked as follows:
“
[23]
Despite certain limited successes there has been no real let up in
the crime pandemic that engulfs our country. The situation
continues
to be alarming. It flows that, to borrow from
Malgas
, it still
no longer business as usual.” And yet one notices all too
frequently a willingness on the part of sentencing courts
to deviate
from the minimum sentence prescribed by the Legislature for the
flimsiest of reasons – reasons as here that do
not survive
scrutiny. As Malgas makes plain, courts have a duty despite any
personal doubts about efficacy of the policy or personal
aversion to
it, to implement those sentences. Our courts derive their power from
the Constitution and, like other arms of the State,
owe their fealty
to it. Our Constitution can hardly survive, if courts fail to
properly patrol the boundaries of their own power
by showing due
deference to the legitimate domains of power of the other arms of
state. Here Parliament has spoken, it has ordained
minimum sentences
for certain specified offences. Courts are obliged to impose those
sentences unless there are truly convincing
reasons for departing
from them. Court are not free to subvert the will of the legislature
by resort to vague, ill-defined concepts
such as “relative
youthfulness” or other equally vague and ill- founded
hypothesis that appear to fit the particular
sentencing officers’
personal notion of fairness. Predictable outcomes, not outcomes based
on the whim of an individual judicial
officer, is foundational to the
rule of law which lies at the heart of our Constitutional order.”
[39]
In
S v Vilakazi
2009 (1) SACR 552
at p 554 f-g it was stated
that:
"Once
clear that substantial jail term appropriate, questions of whether or
not accused married, or employed or of how many
children he had,
largely immaterial. However, they remain relevant in assessing
whether the accused was likely to offend again."
[40]
The mere fact that the Appellant suggests that
the court should have
considered sentencing options such as correctional supervision in
terms of s276 (1) (i) Act 51 of 1977 notwithstanding
that the
legislature had ordained prescribed minimum sentences to be imposed
for these specific crimes indicates further how much
he trivializes
the offence he has committed and the low esteem in which he holds the
Complainant. Interfering with the sentence
of the court a quo already
way lower than the prescribed sentence would be setting a dangerous
precedent to the would be perpetrators
who may have the same attitude
towards women.
[41]
The court had due regard to the object of punishment, namely;
retribution,
rehabilitation and deterrence and set to find a balance
when it imposed the eight years’ imprisonment sentence, which
is
accordingly appropriate. Having regard to the transcribed record,
the sentencing court did not over-emphasised one part of the triad

over another.
[42]
For the reasons alluded to above, we conclude that the appeal on

sentence must also fail.
[43]
It is therefore ordered that:
1.
The appeal against conviction and sentence is dismissed;
N V
KHUMALO
JUDGE
OF THE HIGH COURT
I
agree
B
NEUKICHER
JUDGE
OF THE HIGH COURT
Appearances:
For
the Appellant: J G STRYDOM SC
strydomjj@gmail.com
Instructed
by:
Cass Pieterse Ing/Inc.
Tel.:
(018) 787 5134/5
Faks/Fax.:
(018) 787 5863
For
the Respondent:   S SCHEEPERS
Instructed
by:
Director of Public Prosecutions
Pretoria
084
520 0593
email:
sscheepers@npa.gov.za