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2017
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[2017] ZAFSHC 40
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Malinga v S (A164/2016) [2017] ZAFSHC 40 (23 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A164/2016
LUCKY
MALINGA
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
LOUBSER, AJ
JUDGMENT
BY:
LOUBSER, AJ
HEARD
ON:
06 MARCH 2017
DELIVERED
ON:
23 MARCH 2017
[1]
The Appellant was found guilty a charge of Rape in the Regional Court
sitting at Phuthaditjhaba and sentenced to life imprisonment
in terms
of the provisions of Section 51(1) of Act 105 of 1997. The sentence
was based on the finding of the Court
a
quo
that the
Appellant had raped the complainant altogether five times during the
course of the night of 25 February 2006.
[2]
Despite the numerous grounds of appeal in respect of the conviction
and the sentence in the Notice of Appeal, only two issues
were raised
before us in support of the contention that the appeal against life
imprisonment should succeed. These issues were,
firstly, the fact
that the Appellant had not been informed of the prescribed minimum
sentences provided for in Sections 51(1) and
51(2) of the Act
aforesaid, and secondly, that on a proper construction of the
evidence presented by the prosecution, the Court
a
quo
should have
found that the complainant was not raped more than once. Should this
argument succeed, then the minimum sentence of
life imprisonment
would obviously fall away.
[3]
In this respect, Mr Reyneke, appearing for the Appellant, contended
that the conduct of the Appellant pointed to only one act
of rape
despite the evidence of successive instances of penetration. At the
same time he conceded, quite correctly in my view,
that the evidence
precluded him from arguing that the Appellant had not raped the
complainant.
[4]
The complainant, 25 years of age, testified in the Court
a
quo
that on the
evening in question, she left a certain house in the company of her
boyfriend at about 8.30pm. Outside, they were confronted
by the
Appellant who took her by the hand and stabbed her boyfriend in the
neck with a knife to scare him off. The boyfriend ran
back to the
house to call for help. The Appellant then forced her under threat of
inter alia
,
a knife and a broken bottle, to take him to her place of residence,
where he undressed her in her bedroom, still threatening her
with a
knife not to resist.
[5]
What followed thereafter represented a rather bizarre sequence of
events. According to the complainant, he raped her about five
times,
but after each time, he knelt down and lit a match to view her
genitals in the light provided by the flame. Thereafter he
would
again penetrate her, only to repeat the ritual of the matches once
again. So it went on through the night until 4.am in the
morning,
when he fell asleep. She was then able to escape and to report what
had happened to her. The police then found the Appellant
still asleep
in her bed, and arrested him. The complainant sustained no injuries.
[6]
Concerning the fact that the Appellant was never warned in respect of
a possible minimum sentence, I should mention that the
charge sheet
did indeed refer to the Act, although the specific section was not
mentioned. In addition, the Appellant was legally
represented
throughout the trial proceedings, and the probability of any
prejudice to the Appellant is therefore regarded as minimal.
[7]
The Supreme Court of Appeal has recently pronounced itself on the
failure to refer to Act 105 of 1997 at the commencement of
a trial in
an unreported majority judgment in
Moses Tshoga and The State
,
case number (635/2016)
2016 ZASCA 205
dated 15 December 2016. In that
judgment, Schoeman AJA found that such failure does not necessarily
vitiate a sentence of life
imprisonment.
“
I
am of the view that the Appellant suffered no prejudice in the
circumstances of this case, by the fact that the provisions of
the
Act had not been mentioned in the charge sheet and that he had been
referred to the provisions of the Act by the trial Court
only after
conviction and prior to the commencement of the sentencing
proceedings.”
[8]
In the present case, there was indeed a reference to the Act in the
charge sheet, as mentioned earlier, and both the prosecutor
and the
legal representative of the Appellant have referred to the aspect of
minimum sentences prior to the commencement of the
sentencing
proceedings. I therefore find that there was no prejudice to the
Appellant caused by the failure concerned.
[9]
As to the question whether the Appellant had raped the complainant
only once, the Court
a quo
found beyond reasonable doubt that
she was raped at least five times during the course of the night. In
S v Blaauw
1999 (2) SACR 295
(W) Borchers J remarked as
follows:
“
Each
case must be determined on its own facts. As a general rule, the more
closely connected the separate acts of penetration are
in terms of
time (that is the intervals between them) and place, the less likely
a Court will be to find that a series of separate
rapes occurred.
Mere and repeated acts of penetration cannot without more, in my
mind, be equated with repeated and separate acts
of rape. A rapist
who in the course or raping his victim withdraws his penis, positions
the victim’s body differently, and
then again penetrates her,
will not, in my view, have committed rape twice. But where the
accused has ejaculated and withdrawn
his penis from the victim, if he
penetrates her thereafter, it should, in my view, be inferred that he
has formed the intent to
rape her again, even if the second rape
takes place soon after the first and at the same place.” (P.
300 a –
d).
See
in this regard also
S
v Mavundla
2012 (1)
SACR 548
(GNP).
[10]
In the present case, the evidence of complainant was sadly lacking in
providing the Court
a
quo
with any of the
information referred to in the authorities mentioned above. We do not
know, for instance, whether the Appellant
ever ejaculated during the
course of the events, nor do we know how long the intervals between
the separate acts of penetration
were. In my view, the Court
a
quo
was therefore
wrong in concluding that there were five separate incidents of rape.
The evidence of the complainant was glaringly
insufficient and
inadequate to justify the conclusion so reached.
[11]
It is found, in the circumstances, that the Court
a
quo
wrongly applied
the provisions of Section 51(1) of the Act and sentenced the
Appellant as if he had raped the complainant more
than once. Section
51(2)(b) of the Act prescribes a minimum sentence of 10 years
imprisonment for a first offender who commits
rape. It is noted that
the Appellant has been serving his sentence of life imprisonment
since the date of sentence, namely
25
May 2010
.
[12]
The Appellant was a first offender. We were not urged during argument
to find that there were substantial and compelling circumstances
justifying the imposition of a sentence less than the prescribed
minimum. At the time of his first appearance in Court during
2006
the Appellant was already 34 years of age. We take these facts into
consideration in favour of the Appellant, as well as the fact
that
the complainant sustained no injuries at all during the events in
question. There are, however, also aggravating factors,
namely that
the Appellant used a knife to ensure that the complainant complied
with his every need. The intercourse was also not
only prolonged, but
also humiliating to the complainant. The Appellant held the
complainant captive for almost the whole night,
while he humiliated
her by lighting a match after every act of penetration.
[13]
In my view, the aggravating facts justify a sentence heavier than the
prescribed minimum sentence. I regard 14 years imprisonment
as
appropriate in all the circumstances.
ORDER
[14]
The following order is therefore made:
1.
The appeal against sentence is upheld, and the sentence of life
imprisonment is set aside and replaced
with a sentence of 14 years
imprisonment.
2.
The substituted sentence must be deemed to have been imposed on 25
May 2010.
__________________
P.J.
LOUBSER, AJ
I
concur.
_______________
C.
REINDERS, J
On
behalf of the appellant: Adv.
Instructed
by:
BLOEMFONTEIN
On
behalf of the respondent: Adv.
Instructed
by:
BLOEMFONTEIN