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[2018] ZAFSHC 108
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Ncango v S (A277/2017) [2018] ZAFSHC 108 (14 June 2018)
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
Appeal
Number: A277/2017
In
the matter between
V
NCANGO
Appellant
and
THE
STATE
Respondent
CORAM
:
REINDERS, J et NULLIAH AJ
HEARD
ON
:
5 FEBRUARY 2018
DELIVERED
ON
:
14 JUNE 2018
JUDGMENT
BY
:
NULLIAH, AJ
INTRODUCTION
[1]
This is an appeal against both conviction and sentence on a charge of
rape read with the provisions of
section 51(2)
of the
Criminal Law
Amendment Act 105 of 1997
. The accused, now the appellant in this
matter, was initially arraigned on a charge of rape in the Welkom
Regional Court and was
ultimately convicted on the veracity of the
testimony of the complainant. A custodial sentence of ten (10) years
was subsequently
imposed in terms of the minimum sentence legislation
as embodied in
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
. Leave to appeal against both conviction and sentence was
granted on the 15 September 2016.
[2]
The appeal as against conviction has as its premise, the following:
·
The court
erred in finding that the State had proved its case beyond reasonable
doubt;
·
The court
erred in finding that the complainant was a credible witness in light
of the contradictions in her testimony;
·
The court
erred in not accepting the version of the appellant and making a
negative finding against his evidence and that of his
defence
witness.
[3]
The appeal against sentence is premised on the following:
·
The trial
court erred in overemphasising the aggravating factors with little or
no consideration to the mitigating factors;
·
The trial
court erred in that several mitigating factors were not properly
considered;
·
The trial
court erred in not finding the existence of substantial and
compelling circumstances.
FACTUAL
BACKGROUND
[4]
An account of the incident leading to the appellant’s
arraignment was related by the complainant, V. A. B.. During
the late hours of the night on the 27
th
December 2015, she visited a place called ‘The Lounge’,
accompanied by her friends and her brother. She consumed four
Storm
quart ciders that night and was moderately drunk. The appellant, a
friend of her brother and whom she regarded as an older
brother was
also present and was involved in a fight outside ‘The Lounge’.
She reprimanded him and went back
inside. She later saw
him in the early hours of the next morning at another tavern called
‘Supa’s Place’.
He was seated in his car
accompanied by two others and he called out to her. She
proceeded towards his vehicle and
sat in the back seat. One of the
occupants immediately left the vehicle and the appellant then asked
the second occupant to go
and buy liquor. Left alone with the
appellant, she requested that he take her home as she was feeling
tired and sleepy. On
route, the appellant asked her if she was
going to kiss him. She refused as she had a boyfriend and she
and the appellant
were not involved in a romantic relationship.
The appellant threatened to take her back to ‘Supa’s
Place’
to which she readily agreed. While the appellant
was driving, she fell asleep in the back seat and awoke to find the
appellant
on top of her, busy raping her. She was unaware of
where they were or how they had gotten there. She only observed
water, trees and bushes around her.
[5]
She pushed him off her and wiped her vagina with a piece of tissue
that she found in the car. She told the appellant that she
was going
to take the tissue with her to the police and report him. The
appellant grabbed the tissue from her and stomped
it with his shoes.
He bragged that her case would not be attended to as she was
drunk and his friend ‘Dumi’ was
the police officer on
duty. The appellant then drove her to her house and on route
they passed the mother of the appellant.
She wanted to inform
his mother of what had happened but the appellant refused to stop the
vehicle and drove onwards towards
her home. They also met her
brother on the street on their way to her home. After the
appellant left her and, upon
entering her home, she immediately
reported the incident to her brother and proceeded to lay a charge.
She went to Bongani Hospital
where she was treated. She
sustained no physical injuries.
[6]
According to the complainant, she was never involved in a romantic
relationship with the appellant. She denied asking
the
appellant for lift from ‘The Lounge’ to ‘Supa’s
Place’. She maintained that she sat in
the back seat of
the appellant’s vehicle when they left ‘Supa’s
Place’. She admitted that she could
not recall the
precise nature of the conversation between herself and the appellant
other than it was a general conversation. However,
she was adamant
that they never conversed about having sexual intercourse. She denied
undressing herself, she was also unaware
at which stage she was
undressed and she awoke to find herself undressed.
[7]
The brother of the complainant, P. D. B., the first report in this
matter, confirmed that the complainant was seated in the
car of the
appellant when he arrived at his home and that she did not vacate the
vehicle immediately. The appellant has been his
friend since school
and they have known each other for more than ten years. The
complainant appeared to be of sober disposition
and did not inform
him of the rape immediately upon seeing him. The complainant appeared
unhappy when she entered the house approximately
ten minutes later
and reported to him that she had been raped by the appellant.
[8]
She informed him that she had asked the appellant for a lift home and
whilst travelling with him, the appellant had asked her
to kiss him.
She refused to kiss him and the appellant had told her to get out of
his car. She had fallen asleep and
she awoke to find the
appellant was busy raping her in a veld somewhere. She further
informed her brother that upon threatening
to report the appellant to
the police, she was told that he knew a certain ‘Dumi’
in the police force and he
would not be arrested. She further
informed him that they had also driven past the appellant’s
mother on their way
home but the appellant refused to stop the
vehicle. She denied being in a relationship with the appellant.
He was unaware
of any relationship that existed between the appellant
and complainant nor would he have objected if indeed one existed. He
instructed the complainant to lay a charge with the police.
[9]
The J88 was handed in by agreement between the parties and accepted
as evidence by the trial court, confirming that no injuries
were
sustained by the complainant on her private parts. The application
brought in terms of
section 174
of Act 51 of 1977 was refused.
[10]
On his own version, the appellant admitted to having consensual
sexual intercourse with the complainant. He knew the
complainant for approximately ten years and they were involved in a
romantic relationship on and off for approximately six to seven
years. They had engaged in sexual intercourse many times
notwithstanding the fact she had a boyfriend. On the night of the
27
th
,
he refused to give the complainant a lift to ‘Supa’s
Place’ and informed her that he was not going there. He
further denied being involved in a fight at ‘The Lounge’.
He later testified that he headed for ‘Supa’s
Place’ alone as he wanted to move on his own and he and the
complainant had had an altercation about her boyfriend.
While
at ‘Supa’s Place’, the complainant approached him
and his two friends whilst they were seated in his car
and chatted
with them. He had met his friends, Mbulelo and Skosana at ‘Supa’s
Place’. She got inside and
sat in the front seat and they
engaged in a general conversation. She did not appear to be drunk.
[11]
Upon both his friends leaving the vehicle, they left for a graveyard
to go and have sexual intercourse and were conversing.
On
route, they stopped at his place because the complainant was feeling
cold and wanted a warm top. They kissed and the complainant
undressed
herself and they engaged in consensual sexual intercourse in the
front passenger seat. After intercourse, she wanted
to wipe herself
off and he gave her some toilet paper. They returned to ‘Supa’s
Place’, bought more
beer and he then took the
complainant home. They met the complainant’s brother at
her house and talked to him there.
The complainant was awake
throughout the night and appeared to be in control of her senses and
capable of making her own decisions.
He could not fathom why the
complainant would accuse him of rape.
[12]
The second defence witness testified that he knew the appellant since
2014. He is a barman and served the appellant regularly.
They often went out together. He was aware of the
love affair between the complainant and the appellant and the
appellant often borrowed the keys to his room to have sexual
intercourse. On the night of the incident, the complainant had
requested
his room keys but he did not have it. He was unable to
account for the appellant omitting to mention this in his testimony.
He
initially stated that he left ‘The Lounge’ for ‘Supa’s
Place’ together with the appellant. He
later maintained
that the appellant left alone and he met the appellant along the way
and they arrived at ‘Supa’s Place’
together.
[13]
He was seated in the vehicle at ‘Supa’s Place’ with
the appellant and Mbulelo when the complainant approached.
The
complainant was drunk but she knew what she was doing and was talking
to them. Upon her entering the car, she and the appellant
started
kissing and he reprimanded them. He testified that the
complainant and the appellant would always hug and kiss each
other,
even in front of her siblings. He and Mbulelo stepped out of
the vehicle to buy liquor together and upon his return
from buying
alcohol, the appellant and complainant drove off. He confirmed
that he was neither Mbulelo nor Skosana. However,
he was with
the appellant that morning and he had no idea why he was not
mentioned.
GROUNDS
OF APPEAL
[14]
The fundamental question that arises on appeal in respect of
conviction is whether the state had proven its case beyond a
reasonable doubt.
[15]
The central thrust of the appellant’s challenge apropos the
conviction lies against the trial court’s accession
of single
witness testimony that was saturated with contradictions and
improbabilities notwithstanding the applicable cautionary
rule.
[16]
The issue for determination on appeal apropos sentence is whether the
trial court exercised it’s discretion properly
and judicially
in imposing an effective term of ten (10) years imprisonment.
[17]
The central thrust of the appellant’s challenge apropos
sentence lies against the imposition of a strikingly inappropriate
minimum sentence notwithstanding the presence of substantial and
compelling circumstances.
EVALUATION
[18]
The appellant essentially placed reliance on the failure of the trial
court to properly apply the cautionary rule in the evaluation
of the
evidence of the complainant who was a single witness. The appellant
contended that the testimony of the complainant was
perforated with
contradictions, inconsistencies and improbabilities, some of which
were clearly omitted from the judgment of the
trial court. The
appellant further contended that the trial court erred in finding the
contradictions and improbabilities innate
in the testimony of the
complainant inconsequential; it erred in finding the testimony of the
complainant satisfactory because
she was honest and possessed no
reason to falsely implicate the appellant and it erred in finding
that the second state witness
corroborated the evidence of the
complainant. It was the appellant’s contention that the
trial court’s finding
on credibility was not correct and that
the copious contradictions and improbabilities between the
complainant and the second state
witness created the impression that
the evidence was fabricated. Notwithstanding the appellant’s
concession that his
testimony was not absent any contradictions, the
appellant maintained that they were not material to the extent that
it rendered
his version not reasonably possibly true.
[19]
The respondent supported both the conviction and sentence and
contended that the trial court neither erred in its verdict nor
misdirected itself in meting out sentence. It was patently alive to
the cautionary rule in its assessment of the contradictions
and
probabilities inherent in the complainant’s testimony and
treated the complainant’s evidence with the requisite
caution
and circumspection. The trial court gave a carefully reasoned and
deliberative judgment and was correctly persuaded with
the evidence
of the complainant.
[20]
It is well established that the guilt of an accused must be proven
beyond reasonable doubt.
[1]
It
is also putative that the state bears the onus of proving the guilt
of the accused beyond a reasonable doubt. There exists
no
burden on the accused to prove his version or his innocence.
The accused’s version only has to be reasonable possibly
true.
[2]
[21]
It is also accepted that a court of appeal will be extremely reticent
to interfere with the credibility findings of the trial
court as well
as the evaluation of the oral testimony, given the better position of
the trial court in hearing and appraising the
evidence of the
witnesses. It will however, interfere if it is convinced that the
credibility findings made by the trial court
are patently
incorrect.
[3]
[22]
It is further trite law that the evidence of a single witness must be
approached and evaluated with the necessary caution.
[4]
However, the exercise of such caution should and ought not to
displace the exercise of common sense.
[5]
All the contradictions, inconsistencies and probabilities must be
weighed up to arrive at a conclusion that the State has proven
its
case beyond a reasonable doubt. It is apparent from the
evaluation of the evidence presented that the trial court
was
indeed alive to the fact that this was single witness testimony in
respect of the rape and was alert to the dangers attendant
thereto.
The record indeed evinces that the evidence of the complainant was
properly scrutinised and that the cautionary rule was
properly
applied in the appraisal of her evidence as a single witness.
[23]
The trial court, in applying the cautionary rule correctly found the
evidence of the complainant to be satisfactory in all
material
respects. A conspectus of the record reveals that the complainant
indeed presented a coherent and cogent account of events.
Her
evidence was forthcoming and there were no attempts at evasion. She
did not unnecessarily embellish even when provided with
the
opportunity to do so and indeed had no reason to falsely incriminate
the appellant. Notwithstanding the contradiction
that existed
between her testimony and that of the second state witness or any
omission in her testimony, the trial court correctly
found it to be
immaterial having regard to the totality of the evidence tendered.
[24]
The complainant readily admitted to being under the influence of
alcohol and considered herself to be moderately drunk. It
is
noteworthy that her state of sobriety at that stage was indeed
corroborated by the second defence witness. She admitted to that
she
could not recall all aspects of the conversation and ascribed this to
the general nature of the conversation. This was also
corroborated by
the appellant who described the conversation as general. She
readily admitted that she was tired and sleepy
and fell asleep in the
back seat of the car. This is consistent with her version that she
had been awake the entire night and had
consumed only alcohol, having
eaten only the night before. The complainant however, remained
resolute in her testimony that she
was neither involved in a
relationship nor did she consent to having sexual intercourse with
the appellant.
[25]
Notwithstanding her state of sobriety, her narration of the incident
evinces a vivid recollection of what transpired. Her
evidence
reveals that the incident occurred in the back seat of the
appellant’s car which was not challenged by the appellant
and
who later testified that they engaged in sexual intercourse in the
front seat of his car. Her observations that there were
trees, bushes
and water around them is consistent with the contents of the
J88 and the version of the second state witness
that the incident
happened in the veld somewhere. The absence of abrasions at the
back of her legs as illustrated in the
J88 is consistent with her
testimony that the incident happened in the vehicle and not in the
veld. This is further corroborated
by the appellant who testified
that they engaged in sexual intercourse in the vehicle which was
parked in a graveyard,
albeit
on his version it was consensual and occurred in the front seat of
his vehicle.
[26]
In as much as there exists a contradiction in the testimony of the
two state witnesses as to where the appellant threatened
to drop off
the complainant after her refusal to kiss him, the trial court
properly found it immaterial having regard to the totality
of the
evidence. It patently suggests the absence of collusion between
the state witnesses as contended by the appellant.
The record
of proceedings clearly reflects the consistency in the testimony of
both state witnesses in that the complainant informed
her brother of
a certain ‘Dumi’, the ‘police official’ that
would ensure her case would not be attended
to. That the
complainant was emotional when she entered her house and spoke to her
brother was indeed corroborated by her
brother. Given the nature and
duration of the friendship between the brother and the appellant, it
is highly improbable that he
would not have known of a romantic
relationship between the appellant and the complainant which spanned
almost seven years. This
is further buttressed by the evidence of the
second defence witness that the relationship was not conducted in
secret, contrary
to the version of the appellant, and ultimately
lending credence to the version of the complainant that there was
indeed no relationship.
[27]
It becomes apparent that the testimony of the second state witness
reveals aspects which were omitted in the testimony of the
complainant. Her brother also questioned the existence of a
relationship between her and the appellant. Notwithstanding
such omission in the testimony of the complainant, such questioning
is in accord with the fact that he is her brother, he was also
friend
to the appellant and he was the first report. The revelation of
such omission indeed serves to provide a holistic
account of events
and further serves to buttress the complainant’s version that
she was never involved in a relationship
with the appellant.
[28]
It is indeed correct that the complainant did not try to get away
from her attacker as soon as the opportunity presented itself.
Her testimony that she was seated in the vehicle with the appellant
was corroborated by the second state witness and the appellant.
Her
testimony in fact reveals the congruency of her conduct from the
onset. She reprimanded the appellant for being
involved in a
fight the night before, she approached the appellant when he called
out to her and sat with him in the car, she asked
him to accompany
her home, she did not hesitate to be dropped off when the appellant
threatened her after her refusal to kiss him,
she pushed him off her
when she found him on top of her raping her. She was alone and
unhesitatingly threatened to go to
the police. She wiped herself
after being raped and threatened to take the tissue to the police.
It becomes apparent that
she was not intimidated by the appellant to
the extent that he rendered her unable to speak or defend herself.
This may well be
ascribed to the fact that she had known him for a
long time and considered him to be a brother. It is precisely
the consistency
of her conduct throughout that renders her version
more probable.
[29]
Salient aspects of the complainant’s testimony remained
uncontested and were patently not catechised. That she
asked
for and was refused a lift by the appellant at ‘The Lounge’
over an altercation about her boyfriend was never
canvassed with the
complainant. Notwithstanding her testimony that the appellant
called her to his car, the appellant elected
not to refute it. It is
noteworthy that her evidence was that she was raped in the back seat
contrary to the appellant’s
version that they had intercourse
in the front seat. It is also noteworthy that the complainant
was not interrogated about
the short stop over to retrieve a jersey
for her at the appellant’s home on route to the graveyard.
Given the romantic sexual
relationship that supposedly existed
between the appellant and the complainant, the reason why the
complainant would choose that
specific encounter to accuse the
appellant of rape also remained uninterrogated.
[30]
The trial court correctly found that the version of the appellant on
its own and when contrasted with the testimony of his
witness
resonated with contradictions and improbabilities. While the
appellant conceded their existence, he contended that it did
not
render his version not reasonably possibly true. It however,
becomes patent that these were not trifling in nature as
posited by
the appellant.
[31]
The trial court properly found it improbable that notwithstanding
having a sexual relationship for many years, the complainant
would on
this occasion denunciate him of rape. While it is correct that
the trial court incorrectly mentioned that
they were in a
romantic relationship for 15 years, this does not diminish the
profundity of the contradictions inherent in his
and his witness’s
testimony, nor does it detract from the improbability of his
version. Furthermore, his refusal to
give the complainant a
lift to ‘Supa’s Place’ vacillates from not wanting
to go there, to wanting to move on
his own to finally refusing the
complainant a lift over an argument regarding her boyfriend.
[32]
The trial court properly found his version even more improbable by
having sexual intercourse in the front seat of the car and
in a
graveyard notwithstanding the availability of the back seat, the room
at his own house where he had stopped to retrieve a
jersey for the
complainant as well as the room of the second defence witness that he
and the complainant frequented. The mother
of the appellant was
clearly not an issue. By the appellant’s account, his
mother was aware of their relationship and
was surprised that the
complainant had laid such a charge.
[33]
It is also noteworthy that the appellant initially testified that the
complainant was ‘fine’ when assessing her
state of
sobriety and later ascribed her lack of recollection about their
conversation about sexual intercourse to being under
the influence of
alcohol. This was correctly found by the trial court to be both
convenient and opportunistic.
[34]
The omission of the appellant in mentioning the presence and the
evidence of his witness to the complainant lends credence
to the
conclusion drawn that the presence of this witness was a resourceful
and opportunistic afterthought. The defence witness
placed
himself at both ‘The Lounge’ and ‘Supa’s
Place’ on the night and the morning in question.
He was
knowledgeable about the nature of the relationship between the
appellant and the complainant and often availed his room
for their
use. It was also his testimony that the complainant requested the
keys for his room for that exact purpose on the morning
in question.
It is astounding that the complainant was never confronted by
the appellant with such crucial evidence inimical
to her allegation
nor given the opportunity to refute it.
[35]
The evidence of the appellant and his witness is correctly found by
the trial court to be peppered with contradictions and
improbabilities. The appellant testified that he left ‘The
Lounge’ alone and arrived at ‘Supa’s Place’
alone. It is only at ‘Supa’s Place’ that he
met with his friends. Contrary to the appellant’s version,
the
defence witness stated that the appellant gave him a lift from ‘The
Lounge’ to ‘Supa’s Place’.
When confronted
with the testimony of the appellant, his version vacillates to that
of being met halfway and given a lift by the
appellant to ‘Supa’s
Place’. Notwithstanding the subsequent version tendered by this
witness, it nonetheless
contradicts the version of the appellant who
testified that he arrived at ‘Supa’s Place’ alone.
The testimony
of the appellant that the relationship between him and
the complainant was of a clandestine nature due to her reticence to
disclose
their relationship was clearly trounced by his witness who
testified that the appellant and complainant were always kissing and
hugging in public, even in the presence of her siblings. He
testified that he even reprimanded them in consequence on the
morning
of the incident. It is also noteworthy that this was never
reconnitred with the complainant or her brother and merely
serves to
buttress the version of the complainant.
[36]
Having regard to the above, I am satisfied that the trial court
exercised the requisite caution and correctly found that there
existed no evidential basis to suggest that the evidence of the
complainant and her witness was untruthful and unreliable.
The
appellant’s version on its own and when coupled with that of
his witness is riddled with contradictions, inconsistencies
and
improbabilities to the extent that the correctness of the credibility
findings of the trial court cannot be doubted. I
am content to
find that it cannot reasonably possibly be true and that the trial
court correctly rejected the version of the appellant
as false beyond
a reasonable doubt. The evidence of the second defence witness
constituted a pitiable attempt to salvage the appellant
from the
consequences of his actions. The trial court correctly found that the
appellant took advantage of the complainant because
she was under the
influence of liquor and raped the complainant as narrated by her.
There therefore exists no reason to warrant
tampering with the
appellant’s conviction.
[37]
The appellant contended that the approach of the trial court was
unbalanced and the requisite factors for consideration in
the
determination of sentence, namely the personal circumstances of the
appellant, the nature and gravity of the offence committed,
the
interests of the community as well the prevalence of the crime were
incorrectly approached. According to him, the trial
court over
emphasised the aggravating factors with little or no consideration to
the mitigating factors. He further contended
that several of
the mitigating factors advanced were not properly considered
including his period of incarceration awaiting trial,
the absence of
any serious physical injuries or any lasting emotional trauma
sustained by the complainant and that alcohol played
a role in the
commission of the crime. Notwithstanding the concession that
rape is indeed a serious offence, the appellant
contended there
should be a differentiation between the degrees of seriousness in
such cases. He maintained that the imposition
of the minimum
sentence should be reserved for the more serious cases of rape.
Furthermore, there existed good potential for rehabilitation
and this
alone was a mitigating factor.
[6]
The appellant further contended that all circumstances advanced
should have persuaded the court to a find the existence of
substantial
and compelling circumstances that would have empowered
the trial court to deviate from the imposition of the prescribed
minimum
sentence of ten years imprisonment. Accordingly, the
trial court erred in finding that there were no substantial and
compelling
circumstances present to deviate from the minimum
sentence. It was submitted that the sentence of seven years was
a more
appropriate sentence.
[38]
The respondent argued that no misdirection occurred as contended by
the appellant and that the sentence imposed by the trial
court on the
appellant met all the sentencing demands of the time and no appellate
interference was warranted. The respondent further
argued the
mitigating factors tendered for consideration did not constitute
substantial and compelling circumstances.
[39]
The cardinal principle governing an appeal against sentence is that
punishment of an offender is pre-eminently a matter for
the
discretion of the trial court. It is putative that the court
hearing an appeal against sentence should be vigilant not
to erode
the sentencing discretion entrusted to the trial court. It is
well established that interference by the appellate
court is
warranted only if the discretion of the trial court was not
judicially and properly exercised or if there exists a marked
disparity between the sentence imposed by the trial court and the
sentence that the court of appeal would have imposed had it been
the
trial court
[7]
. The test to be
surmounted in every appeal against sentence is whether the sentence
is vitiated by irregularity or misdirection
or disturbing
inappropriateness.
[8]
This was
seamlessly captured in
S
v Malgas 2001(1)
SACR
469(A) at 478d-e which articulated the principle as follows:
“
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it.
To do so would be to
usurp the sentencing discretion of the trial court. Where
material misdirection by the trail court vitiates
the exercise of
that discretion, an appellate court is off course entitled to
consider the question of sentence afresh. In
doing so, it
assesses the sentence as if it were a court of first instance and the
sentence imposed by the trial court has no relevance.
As it is
said, an appellate court is at large. However, even in the
absence of material misdirection, an appellate court
may yet be
justified in interfering with the sentence imposed by the trial
court. It may do so when the disparity between the sentence
of the
trial court and the sentence which appellate court would have imposed
had it been the trial court is so marked that it can
be that it can
properly be described as ‘shocking’, ‘startling’
or ‘disturbingly inappropriate’.
It must be emphasised
that in the latter situation the appellate court is not at large in
the sense in which it is at large in
the former. In the latter
situation, it may not substitute the sentence which it thinks
appropriate merely because it does
not accord with the sentence
imposed by the trial court or because it prefers it to that sentence.
It may only do so where the
difference is so substantial that it
attracts epithets of the kind I have mentioned.”
[40]
The trial court record clearly evinces a proper consideration of the
individual circumstances of the case in the light of the
renowned
triad of factors relevant to sentence. The personal circumstances at
the disposal of the trial court included the following,
namely, that
the appellant was 31 years old at the time of the commission of the
offence, he was a first offender
[9]
,
he was married and had three minor children, he was in gainful
employment at Star Diamond Mine and earned a monthly income of
R4800. In the determination of an appropriate sentence, the
trial court also considered the period of incarceration awaiting
trial, the nature of the injuries sustained by the complainant and
that alcohol played a role in the commission of the offence.
[41]
It is trite law that the sentence of an accused person must be
balanced between the interest of society, the nature, seriousness
and
the prevalence of the offence and the personal circumstances of the
accused.
[10]
The seriousness
of the crime that the appellant has been convicted of was given
prominence in
S
v S 1995 (1)
SASV
50 (ZS) on 61 d.
“
The essence of
the crime is an assault on the bodily integrity of a woman’s
femininity. If it is a function of the criminal
law to protect
members of society from those who would employ illegal means to prey
on those less able to defend themselves, then
rape is rightly
regarded as a crime of the utmost gravity”
.
In
S v
Ncheche
2005(2)
SACR 386 (W) the court expounded upon the gravity of the offence as
follows:
“
Rape is an
appalling and utterly outrageous crime, gaining nothing of any worth
for the perpetrator and inflicting terrible and
horrific suffering
and outrage on the victim and her family. It threatens every
woman, and particularly the poor and the
vulnerable. In our
country, it occurs far too frequently and is currently aggravated by
the grave risk of the transmission
of Aids. A woman’s
body is sacrosanct and anyone who violates it does so at his peril
and our Legislature, and the
community at large correctly expect our
courts to punish rapists severely.”
The
interests of the community was properly enunciated in
S v
Chapman
1997(2) SASV 3 (A) on 5 c-e:
“
Woman in South
Africa are entitled to protection of these rights. They have a
legitimate claim to walk peacefully on the streets,
to enjoy their
shopping and their entertainment, to go and come from work, and to
enjoy the peace and tranquillity of their homes
without fear, the
apprehension and the insecurity which constantly diminishes the
quality and enjoyment of their lives. The
courts are under a
duty to send a clear message to other potential rapists and to the
community. We are determined to protect
the equality, dignity
and freedom of all women and we shall show no mercy to those who seek
to invade those rights.”
The
trial court further considered the prevalence of the crime in the
imposition of a more severe sentence for purposes of deterrence.
[11]
[42]
In as far as the aggravating factors are concerned, the trial court
correctly took these factors into account and rightly so
and imposed
what it considered to be a just and appropriate sentence. It
correctly took cognisance of the fact that the appellant
abused the
trust that the complainant had in him while she was under the
influence of alcohol. It also noted that in persisting
with his
claim of innocence, the appellant wasted the opportunity to show
remorse for his actions. His lack of remorse impacts
negatively
on his prospects for rehabilitation.
[43]
It bears mentioning that the trial court record is patently absent of
any victim impact report which serves to inform the determination
of
sentence. Notwithstanding the absence of physical injuries sustained
by the complainant, the trial court correctly accepted
that she would
have endured emotional trauma because rape is indeed traumatic and
‘….
perhaps
the most horrific and dehumanising violation that a person can live
through … [it] is a crime that not only violates
the mind and
body of a complainant, but also one that vexes the soul.’
[12]
[44]
The trial court record is also absent of any information regarding
the appellant being the primary caregiver. No argument was
advanced
that the appellant was indeed the primary caregiver to his minor
children on whose best interests a custodial sentence
might have an
adverse impact. In the absence of such, I am inclined not to
delve further into this arena.
[45]
It is also correct that a court hearing an appeal in which the
minimum sentence legislation has application does not possess
the
proverbial clean slate on which to scribble its preferred sentence.
The sentencing discretion of the trial court is indeed
circumscribed
by law. It is further required that the finding of substantial
and compelling circumstances must be able to
stand scrutiny and not
be based on the whim of the presiding officer.
[13]
[46]
The charge of rape for which the appellant has been convicted of
clearly falls within the ambit of section 51 of the minimum
sentence
legislation. The minimum prescribed sentence for such offences
is ten (10) years imprisonment for a first offender
unless the court
found that substantial and compelling circumstances existed
justifying a departure. Notwithstanding the personal
and mitigating
factors tendered for consideration, the prescribed minimum sentence,
was in the totality of the circumstances encountered
here the only
fair and just sentence. The trial court correctly found that there
were no substantial and compelling circumstances
present. I am of the
view that the manner in which the complainant was taken advantage of
and the inhumane and degrading treatment
she was subjected to under
the circumstances cannot justify a deviation from the imposition of
the applicable minimum sentence.
[47]
Having said that, I am content that the trial court did not err or
misdirect itself in any manner. Nor does there exist a disparity
between the sentence imposed by the trial court and the one which
this court would have imposed if it were the trial court. There
thus exists no reason that warrants tampering with the sentence
imposed by the trial court.
ORDER
[48]
In the result, the following order is made:
1) The appeal
against both conviction and sentence is dismissed.
2) The conviction and
sentence imposed by the Regional Court on the appellant are
confirmed.
_______________
Q NULLIAH, AJ
I
concur
______________
C
REINDERS, J
On
behalf of the appellant:
PL van Der Merwe
Bloemfontein
Justice Centre
Legal Aid SA
On
behalf of the respondent:
Adv S Giorgi
Office of the Director of
Public Prosecutions
Bloemfontein
[1]
S v V
2000 (1) SASV 453 (SCA)
[2]
S v
Sithole and Others 1999(1) SACR 585 (W); S v Van Der
Meyden 1999 (2) SASV 79(W) and
S
v Mattioda 1973 (1) PH H 24.
[3]
S v
Mkhohle
1990 (1) SACR 92
at 100 e.
[4]
S v M 1992(2)
SASV 188 (W) op 194 h-I; J v S All SA 1998 (2) SA 267 (A).
[5]
S v
Aardman and
Ander 1968 (3) SA 339
(A).
[6]
S v Makhatu 2006 (2) SACR 582
(SCA).
[7]
S v
Pillay 1977(4) SA 551 (A) on 535 E-G
;
see also
S
v Rabie
1975 (4) SA 855
(A) at 857 D-F; see also S v Shapiro
1994
(1) SACR 112(A)
at 119j -120c; see also
S
v Anderson
1964 (3) SA 494
(A) on 495D-E.
[8]
S v
Makondo 2002(1) SA at 431E-F (SCA); see also
S v
Mothibe 1977(3) SA 823 (A) 830 D.
[9]
S v Woods 1973(4) SA
95 (RA) 96H – 97B:
The
question of an appropriate sentence in the case of a first offender
almost always presents a judicial officer with problems
of a
particular difficulty … the publicity, his exposure as a
criminal, the far reaching and often devastating effects
of
imprisonment on his social, family and economic life are, in the
case of a first offender, aspects of punishment that should
never be
overlooked and under estimated
.
[10]
S v Banda and Others 1991(2) SA
(BGD) on 355 A.
[11]
S v Reay 1987(1) SA 873(A) on 877 c.
[12]
Brendan Solly Ndlovu v State [2017]
ZACC 19.
[13]
Sv Matyiti 2011(1)
SACR 40 (SCA).