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[2019] ZAFSHC 228
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Sempe v S (A72/2019) [2019] ZAFSHC 228 (28 November 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case number:
A72/2019
In the
matter between:
THABISO
DANIEL SEMPE
Appellant
and
THE
STATE
Respondent
CORAM:
MHLAMBI J, et MURRAY, AJ
HEARD
ON:
07 OCTOBER 2019
DELIVERED
ON: 28 November 2
019
MHLAMBI,
J
[1]
The appellant was convicted of rape in the regional court on 8 August
2018 for having contravened
the provisions of section 3 of Act 32 of
2007 read with section 51(1) of Act 105 of 1997 and sentenced to life
imprisonment. The
appeal is against both conviction and sentence.
[2]
The appellant’s grounds of appeal against both conviction and
sentence were stated
as follows:
1. The
state failed to prove its case beyond a reasonable doubt; and that
the appellant’s version was reasonably
possibly true;
2. The
complainant was not a reliable witness. There were contradictions
between her evidence, that of her witness
and the J88 medical report;
3. The
trial court erred in not finding that substantial and compelling
circumstances were present to deviate
from the prescribed sentence of
life imprisonment.
[3] It
was submitted on behalf of the appellant that the trial court erred,
despite the contradictions
in the state case, that the complainant
was a reliable witness whose evidence, as a single witness, should
have been approached
with caution. The contradictions presented and
highlighted by the applicant were, in my view, cosmetic in nature as
they referred
to the differences of how the parties travelled to
D[....]’s place (where the rape took place) and how the
complainant ended
up with the police. There were no contradictions as
to the act of the rape itself. The obvious contradiction was between
the complainant
and her witness, L[....]. The complainant testified
that the appellant did not stab her with the broken bottles whereas
her witness,
L[....], suggested that the injuries to her body were
caused by broken bottles.
[4] The
appellant’s version is that he had consensual sex with the
complainant at the house on
the morning of 14 February 2015. It is
common cause that she was penetrated twice. Her version is that she
was penetrated both
vaginally and through the anus by the appellant.
The appellant, on the other hand, did not mention anal penetration,
but that they
had sexual intercourse in two sessions, ten minutes
apart. What is in issue, is whether the complainant gave consent to
the appellant
to have sexual relations with her.
[5] The
complainant’s evidence is, in a nutshell, that she and the
appellant were neither
friends nor acquaintances on the day in
question. She, her witness, L[....] M[….], D[....], who was
the accused’s
sister, and two unknown male persons, were at
D[....]’s house on the morning of the incident. The appellant
was asleep on
their arrival. A short while after their arrival, the
others drove to town to buy food. She sat in the dining room when the
appellant
emerged from the bedroom, invited her to join and sleep
with him. She declined. He instructed her to undress but she refused.
He
then broke two beer bottles on the floor, threatening to stab her
if she refused to undress. She undressed.
[6] He
refused her invitation to wear a condom and penetrated her vaginally
without her consent.
She testified that she knew that he was sick,
hence her request that he should wear a condom. During the
intercourse he was still
holding the broken bottle necks. He then
instructed her to sweep the dining room floor and pick up the broken
bottles. She did
that while naked as the appellant said he wanted to
see her body.
[7] She
was taken to another room where she was penetrated through the anus
as she was made to
bend on her knees on the floor. On hearing the
sound of an approaching vehicle, she was instructed to put her
clothes on and told
not to tell anybody of what took place, otherwise
the appellant would kill her. L[....]hang found her in the bedroom
where she
was crying and she, the accused, suggested to L[....]gang
that they should go back home. The same people drove her back home
where
she told L[....] what had happened. The matter was then
reported to the police. Save for the contradiction in the nature of
the
injuries sustained by the complainant, L[....] corroborated the
complainant’s evidence in all material respects.
[8] The
appellant’s version corroborated the complainant’s in
relation to the presence
of the bottles in the house which he alleged
to have brought from the visitor’s car and put them on top of
the wardrobe in
the bedroom. His version is not supported by L[....]
that the previous night they were together at the tavern, where after
he slept
with the complainant in his bedroom. During
cross-examination he started adding to his evidence when he alleged
that the complainant
was a prostitute and that his girlfriend had
confronted her because of her loose behaviour.
[9] He was a
single witness. He failed to call witnesses who were present either
at the tavern or the house to corroborate
his version. I am satisfied
that his unsubstantiated version can safely be rejected as false in
as far as it contradicted that
of the state. I am furthermore
satisfied that on that day, the appellant threatened the complainant,
intimidated her with the broken
bottles and had carnal relations with
her against her will. It is interesting to note that the evidence
surrounding the wearing
of the condom and that the complainant knew
that the appellant was sick, remained unchallenged. It is equally
striking that in
mitigation of sentence, it was submitted on behalf
of the appellant that he had a chronic disease which he did not want
to disclose.
I am satisfied that the state succeeded to prove its
case beyond reasonable doubt and that this appeal must fail.
[10] The
accused’s personal circumstances are that he was 37 years old
at the time of sentencing. His
scholastic qualification is grade 11.
He was employed at the time of sentencing as a general worker and
earned an income of R 3 390.00
per month. He has two children,
aged 18 and 16 years old who resided with their mothers. He
maintained them. He was unmarried and
had a chronic illness, the
nature of which he declined to disclose. He has previous convictions,
two of which were assault with
the intent to do grievous bodily harm
during 2003 and 2005. He was sentenced to a fine of R500.00 or three
months’ imprisonment
for the first conviction and three years’
imprisonment wholly suspended for a period of four years on the
second.
[11]
The trial court took into account that the appellant was not a first
offender and that the rape of
another person was a very serious
offence. In mitigation it accepted that he had health problems,
was employed and had dependants.
The court found that the appellant
raped the complainant more than once. The offence was perpetrated in
circumstances described
in Part 1 of Schedule 2, item (a) (i), as the
victim was penetrated by the appellant twice, with a short
intervening interval of
time. The conviction attracts the imposition
of life imprisonment
[1]
. In
S
v Maxabaniso
[2]
the following was said:
“
[25] In
my view, the legislature envisaged an accused being charged with one
charge of rape if, in the course of his encounter
with his victim, he
penetrates her more than once. The repeated penetration of his victim
is what aggravates the perpetration of
the rape and renders him
liable for life imprisonment in respect of his entire course of
conduct: it is, in other words, the multiple
acts of penetration that
attract the life sentence, as would be the case in a so-called gang
rape. One does not require item a(i)
to meet the concern that when an
accused rapes the same victim twice with the acts of penetration
separated by, say, a week, he
may be deserving of a sentence of life
imprisonment (for at least the second rape): even when the prescribed
minimum sentence for
a rape is ten years imprisonment, courts have
common law powers to impose harsher sentences, including life
imprisonment, if that
is called for in the circumstances.
[3]
”
[12] The
trial court found, and correctly so in my view, that there were no
substantial and compelling circumstances
which would justify a
deviation from the prescribed minimum sentence of life imprisonment.
Minimum sentences cannot be departed
from lightly or for flimsy
reasons as they are ordained by the Act
[4]
.
I am satisfied that the trial court had a balanced regard to the
nature and seriousness of the crime, the appellant’s personal
circumstances and the legitimate interests of society. Consequently,
the appeal against both conviction and sentence must fail.
[13] I therefore make the
following order:
Order
The
appeal against both conviction and sentence is dismissed.
MHLAMBI, J
I
concur,
MURRAY, J
Counsel
for the Appellant: Ms S Kruger
Instructed
by:
Legal Aid South Africa
Southern
Life Plaza Building
1
st
Floor, South Wing
41
Charlotte Maxeke Street
Bloemfontein
Counsel
for Respondents: Adv. E Van Rensburg
Instructed
by:
The
Director of Public Prosecutions
Ground
Floor
Waterfall
Building
C/O
Aliwal & St Andrew Street
Bloemfontein
[1]
S v MM 2010(2) SACR 543 (GNP)
[2]
2015 (2) SACR 553 (ECP)
[3]
See
S
v Cock; S v Manuel
ECG 3
February 2015 (case no. CA108/2013) unreported, para 36.
[4]
S v PB
2013 (2) SACR 533
SCA para 20