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
>>
2019
>>
[2019] ZAFSHC 85
|
|
Fana v S (A257/2018) [2019] ZAFSHC 85 (16 May 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A257/2018
In
the matter between:-
THAMSANQA
FANA
Appellant
and
THE
STATE
Respondent
CORAM
:
NAIDOO, J
et
MOLITSOANE, J
HEARD
:
11 MARCH 2019
JUDGMENT
BY
:
MOLITSOANE,
J
DELIVERED
:
16 MAY 2019
[1]
The appellant was arraigned in the Regional Court sitting in Welkom
on charges of housebreaking with intent to commit an offence
unknown
to the state, assault with intent to do grievous bodily harm as well
as rape. He pleaded guilty to all three counts and
was accordingly
convicted and sentenced. On the first two charges he was sentenced to
5 years imprisonment on each count while
on the last count he was
sentenced to 20 years imprisonment. The court
a
quo
ordered the sentences to run concurrently and the effective term of
imprisonment was 20 years. Leave to appeal was granted for
both the
conviction and sentence by this court after the appellant
successfully petitioned the Judge President. The appellant,
however,
chose to appeal only against the sentence and consequently this
appeal relates to sentence only.
[2]
The facts of this case are briefly as follows:
In
the early hours of the morning the accused knocked at the door of the
house of the complainant, a 69 year old lady. When no one
answered
the knock he broke the door open and entered the house. While in the
house he heard a noise from another room and he hid
himself. The
complainant appeared and found the appellant in her kitchen. A
scuffle then took place as a result of which the appellant
assaulted
the complainant. The accused indicates that he became furious that
the complainant discovered him in her house. He then
decided to rape
her. He strangled, undressed her underwear and in the process
inserted her penis into her vagina without her consent
and thus raped
her. The appellant was later arrested and linked with the offence by
finger prints and DNA.
[3]
The charge sheet indicates that the accused was charged with
contravention of s3 read with the provisions of s51 (1) of the
Criminal Law Amendment Act 51 of 1997(the Act). The charge sheet
makes no reference to the applicable schedules as referred to
in s51
(1) of the Act.
[4]
The charge sheet has been formulated as follows:
“………
.
RAPE (involving assault with
intent to do grievous bodily harm)
IN THAT on or about 01-02-2015 and at
or near Thabong in the district Welkom and within Regional Division
of the Free State, the
said accused did unlawfully and intentionally
commit an act of sexual penetration with the complainant to wit, MMS
(69yrs) by:
penetrating her vagina with his penis without the consent
of the said complainant and thus raped her.”
[5]
The formulation of the heading indicates that the accused is charged
with rape involving assault with grievous bodily harm.
Section 51(1)
of the Act provides as follows:
“
Notwithstanding any other law,
but subject to subsection (3) and (6), a Regional Court or High Court
shall sentence a person it
has convicted of an offence referred to in
Part 1 of Schedule 2 to imprisonment for life.”
Section
(c) of Part 1 of Schedule 2 of the Act on the other contemplates rape
‘
involving the
infliction of grievous bodily harm.’
[6]
The heading of the charge sheet as it stands is misleading in that it
equates the issue of rape where the infliction of grievous
bodily
harm as contemplated in Part 1 Schedule 2 (c) with rape involving
assault with intent to do grievous bodily harm.
[7]
One of the elements of the offence of assault with intent to do
grievous bodily harm is proof of ‘
intent.
’
Jonathan Burchell in
Principles
of Criminal Law
[1]
says the following in the discussion of this element of the offence
of assault with intent to do grievous bodily harm:
“
It
is not necessary that X should actually cause grievous bodily harm:
It is enough that he intends to cause it, for the crime is
not
‘causing grievous bodily harm’. If X intends a grievous
injury, but causes a slight injury or none at all, he may
nevertheless be guilty of assault with intent to do grievous bodily
harm. Conversely, of course, if X inflicts a serious injury
without
intending to cause grievous body harm, this crime is not committed
(my emphasis).”
[8]
In order to secure a conviction on a charge of assault with intent to
cause grievous bodily harm state must, inter alia, prove
that the
accused intended to cause grievous bodily harm. As indicated above it
is enough that such harm is intended even if it
was not achieved.
[9]
On the other hand to trigger the operation of the provisions of
s51(1) Part 1 of Schedule 2 (c) of the Act , the rape must have
been
committed in circumstances where such a rape actually involved
the infliction of bodily harm. Intent as envisaged in
the offence of
assault with intent to cause grievous bodily harm may in certain
circumstances not be enough.
[10]
Molemela AJA (as she then was) dealing with the interpretation of the
provisions of Part 1 Schedule (c) of the Act in
Director
of Public Prosecutions: Gauteng Division, Pretoria v Moabi
[2]
said
the
following:
“
[14] It
is clear…… that the test for ascertaining whether
grievous bodily harm has been inflicted is factual and objective.
The
correct approach to that enquiry necessitates a holistic
consideration of all factors pertaining to the incident, with a view
to ascertaining whether bodily injuries were inflicted and whether
they are of a serious nature.
[15] In my view
the High Court’s reliance on cases where the accused was
charged with the offence of assault with intent to
do grievous bodily
harm was clearly wrong……‘intent’ is
irrelevant in the determination of whether grievous
bodily harm was
inflicted on a complainant in the rape envisaged in Part 1 (c)
of the CLLA[the Act]. Rather, the question
to be answered is whether,
as matter of fact, the victim of such a rape sustained grievous
bodily harm.”
[11]
In the case before us after the charges were put to the accused the
following transpired:
“
COURT:
Count 3 its rape involving assault or assault with intention to do
grievous bodily harm, as per count 2?
PROSECUTOR:
Grievous bodily harm.
COURT: Just add
that there. Then it brings it in the provisions of s51 (1). Yes Mr
Fana, do you understand the charges against you?”
Clearly
the court was of the mistaken view that rape involving assault with
intent to cause grievous bodily harm brought the offence
within the
provisions of s51(1) of the Act. It is so that in some cases it may
be so that where an accused is charged with rape
and he actually as a
matter of fact caused grievous bodily injury to the complainant
the provisions of s51(1) may be triggered.
It is ,however, not
correct to assume that where the accused is charged with rape
involving assault with intent to cause grievous
bodily harm would as
a matter of cause bring the rape within the meaning of s51(1)(c ) of
the Act.
[12]
The evidence before us reveal that the appellant strangled the
complainant with his bare hands. There is no indication from
the
record as to the force exerted by the accused to strangle the
complainant. There is also no evidence as to how long this
strangulation
endured. The clinical findings in the medico legal
report indicate that the complainant sustained scratch marks on the
right side
of the neck and cheek. She also sustained a swollen right
upper lip. These injuries could hardly be described as serious.
[13]
In view of the injuries sustained, I am of the considered view that
this rape does not involve the infliction of grievous bodily
harm. I
consequently find that the court
a
quo
erred in finding that this rape fell to be dealt with in terms of s51
(1) of the Act.
[14]
It is now settled that a court sitting in appeal will not interfere
with the sentence imposed by the trial court unless the
trial court
misdirected itself in the imposition of the sentence and thus imposed
a sentence which is so inappropriate and induces
a sense of shock or
outrage, or the court failed to exercise its judicial discretion
properly. [See
Sv
Rabie
[3]
]
[15]
The trial court approached the sentence in the matter on the basis
that the rape fell within the provisions of s51 (1) of the
court. We
now know that such a premise was wrong as the rape fell to be dealt
with in terms of s51(2) of the Act which prescribes
a minimum
sentence of 10 years imprisonment for a first offender on a charge of
rape. The trial court found that compelling
and substantial
circumstances were present which warranted that court to impose a
lesser sentence. I do not agree.
[16]
In this case the trial court took into account the personal
circumstances of the accused. That at the time of the commission
of
the offences the accused was 25 years of age. That although not a
first offender, the trial court took the view that his previous
convictions were irrelevant to the matters at hand and the court
decided to treat him as a first offender. That he
pleaded
guilty the charges and thus shown remorse for his actions. I
have doubt that the appellant was remorseful. The accused
was linked
with these offences by fingerprints and DNA. It appears that the case
was strong against the accused.
[17]
Against this background it must be noted that the accused was
convicted of very serious offences. Housebreaking with intent
to
commit any kind of an offence remains serious in that it also
infringes upon the complainant’s right to privacy. The
complainant expected to feel safe in her home and not to be attacked
in the way that the appellant attacked her. She was an elderly
woman,
69 years of age at the time. She was so old to be the grandmother of
the appellant. Rape has been described as humiliating,
degrading and
brutal invasion of the privacy, dignity and the person of the
victim
[4]
.
[18]
Taking into account the mitigating factors and weighing them against
the aggravating factors I am of the view that no substantial
and
compelling circumstances exist that warrants the imposition of a
lesser sentence in respect of the charge of rape.
[19]
With regard to the offence of housebreaking and assault with intent
to steal and theft I am of the view that 5 years imprisonment
is not
appropriate. The appellant was found in the hose of the complainant.
At that stage it is unknown what his intention was.
Save for breaking
in it cannot be said with certainty what he intended to do. In my
view 5 years imprisonment is excessive.
[20]
With regard to the offence of assault with intent to cause grievous
bodily harm I already alluded above that the injuries were
not
serious and 5 years imprisonment is in my view disproportionate to
the crime and the personal circumstances of the appellant.
[21]
Taking into account the triad of the seriousness of the case, the
personal circumstances of the accused and the interest of
the
community I am of the view that there are no substantial and
compelling circumstances warranting the imposition of a lesser
sentence. I accordingly make the following order:
[22]
ORDER:
1.
The appeal
against the sentence is upheld and the sentence imposed by the trial
court is set aside and it is substituted with the
following:
i.
Count 1: 2
years imprisonment;
ii.
Count 2: 2
years imprisonment;
iii.
Count 3: 10
years imprisonment;
iv.
It is
ordered that the sentence in count 1 is to run concurrently with the
sentence in count 2.
v.
The order
in terms of
s103
(1) of the
Firearms Control Act 60 of 2000
is
confirmed.
__________________
P.E.
MOLITSOANE, J
I
agree.
____________
S.
NAIDOO, J
On
behalf of the appellant: Ms S. Kruger
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the respondent: Adv.
XXX
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
3
rd
ed Juta at 690.
[2]
2017(2) SACR 384.
[3]
1975(4) SA 855(A).
[4]
S v Chapman 1997(2) SACR 3(SCA).