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[2021] ZAGPPHC 232
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A.T v S (A20/2019) [2021] ZAGPPHC 232 (2 March 2021)

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Certain
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A20/2019
In
the matter between:
A[...]
T[...]

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[...] K[...](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 007 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[…] M[…] 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 Tsatsong 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]
B[…]’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 Tsetsang 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