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[2017] ZAFSHC 41
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Witfoot v S (A199/2016) [2017] ZAFSHC 41 (23 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A199/2016
In
the appeal between:-
SIPHO
EMMANUEL
WITFOOT
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
LOUBSER, AJ
HEARD
ON:
6
MARCH 2017
JUDGMENT:
REINDERS,
J
DELIVERED
ON:
23
MARCH 2017
[1]
On 23 July 2014 in the Regional Court for the district of the Free
State Province held at Bloemfontein the appellant was charged
with
rape involving the infliction of grievous bodily harm (count 1) and
attempted murder (count 2). The appellant enjoyed legal
representation and pleaded not guilty on both counts. On 7 October
2014 he was convicted and sentenced to life imprisonment and
5 years
imprisonment respectively. The appellant appeals against the sentence
imposed upon him by virtue of his right of automatic
appeal in terms
of section 309 (1)(a) of the Criminal Procedure Act 51 of 1977 (the
“CPA”).
[2]
Heads of arguments on behalf of the appellant was prepared by Mr PL
van der Merwe, but Mr Reyneke appeared before us when the
appeal was
heard. He aligned himself with the submissions advanced by Mr van der
Merwe in the written heads of argument in respect
of count 1. The
main thrust hereof was that the court a quo erred in sentencing the
appellant in terms of section 51(1) and not
in terms of section
51(2)(b) of the Criminal Law Amendment Act 105 of 1997 (the
“Act”). In respect of count 2
Mr Reyneke submitted that
the trial court did not err in any way.
[3]
Ms Lesie-Shale acting on behalf of the state supported the sentence
imposed by the court a quo in respect of count 2. The sentence
imposed on count 1 was not supported. She submitted that the trial
court erred in finding that the rape involved the infliction
of
grievous bodily harm as the evidence by the complainant was that the
injuries sustained were only inflicted after the rape.
Same was
indicative of the fact that the intention of the appellant was not to
subdue the complainant to rape.
[4]
According to the original indictment the appellant was charged with
rape read with the provisions of sec 51(1) of the Act. From
the
record it can be gleaned that the court a quo informed the appellant
that the first count (rape) falls under Part I of Schedule
2 and that
the prescribed minimum sentence is life imprisonment. The learned
regional magistrate in his judgment reiterates that
the first count
is read with the provisions of sec 51(1) of the Act and found the
appellant guilty as charged.
[8]
In handing down sentencing, the learned magistrate indicated that in
sentencing he was bound to impose life imprisonment but
may impose a
lesser sentence if he is satisfied that substantial and compelling
circumstances exist. He found none and proceeded
to sentence the
appellant to life imprisonment in respect of count 1 and 5 years
imprisonment in respect of count 2 and ordered
that it should run
concurrently.
[9]
When it comes to interfering with the sentence imposed by the court
a
quo
, it is trite law that the powers of the court of appeal are
limited, as was stated in
S v Pieters
1987 (3) SA 717
(A).
Interference is only warranted where the sentence is
disproportionate, harsh or where the sentencing court committed a
material
misdirection.
See
also:
S
v Makhondo
2002 (1) SA (SCA) at 43E-F.
[10]
In arriving at a guilty verdict on both counts as charged, the trial
court summarised the evidence by the complainant as follows:
“
She
testified on 5 August 2012 that it was on Sunday, she went to the
accused’s place. Accused was quiet on that day and when
she
asked him why he was so quiet accused just stood up and started
assaulting her. Accused punched her with fists, kicked her,
hit her
with an axe and open hands. He then forced her to have sex with him
and climbed on top of her, spread her legs and inserted
her penis
into her vagina. Accused assaulted her with open hands and fists on
her face, kicked her until she fell. Accused kicked
her on her ribs,
punching her neck are (sic). He hit her with the axe on her forehead.
Accused stopped when he heard the police
vehicle pulling outside his
house.”
[11]
The complainant testified as follow about the incident:
“
He
assaulted me like that, kicking me, hitting me, punching me with
fists and hitting me with open hands. I was crying, unable to
fight
for myself. After he assaulted me he wanted us to have sex. I
refused. Then he forced me, until I climbed on the bed and
he slept
with me. He finished his work and carried on assaulting me or beating
me. Until I lost conscious (sic). When I came too
I found him
standing next to me with an axe.
PROSECUTOR:
I just want to clarify if you recall. You said you lost your
consciousness at some stage. What I want to know is that,
at the
moment when you lost your consciousness, had he already inserted his
penis inside your vagina? Or he inserted it after you
regained
consciousness?---No, he only inserted his penis into my vagina after
I regained consciousness.”
[12]
The trial court in my view correctly found that the accused had
sexual intercourse with the complainant without her consent
and that
the injuries that she sustained all over her body and on her face,
coupled with the blood stained axe, were indicative
thereof that
appellant were attempting to kill the complainant.
[13]
As quoted in paras [10] and [11] above, it can be gleaned that the
complainant was not assaulted with the intent to subdue
her to rape.
I share the views of both Ms Lesie-shale and Mr Reyneke that the
assault by appellant and the rape constituted separate
acts and did
not constitute rape as is envisaged in Schedule 2 Part I where rape
involves the infliction of grievous bodily harm.
Section
51(2)(b)(i) prescribes the minimum sentence for a first offender
convicted of an offence referred to in Part III
of Schedule 2, as
imprisonment for not less than 10 years. In this regard I
am of the view that the learned magistrate
erred.
[14]
Although the appeal lies only against sentencing, I am of the view
that the trial court misdirected itself materially
in sentencing the
appellant in terms of section 51(1) of the Act to life imprisonment
in respect of the rape charge. As such we
are at large to interfere
and consider the sentence in regards to the rape charge afresh.
[15]
It was held by Marais JA in
S
v Malgas
2001 (1) SACR 469
(SCA) that all factors traditionally taken into
account in sentencing should be considered and none is to be excluded
in considering
whether substantial and compelling circumstances can
be found to warrant a deviation from the prescribed minimum sentence
ordained
by the legislature. A deviation should however not be for
flimsy reasons.
[16]
The appellant is a first offender in respect of the rape and
attempted murder. He is 32 years of age, the father of one child
and
resides with his mother. Before his arrest he was gainfully
employed and earned R 2000,00 monthly. He receives treatment
for TB
and have been in custody since 2013 (there is no indication that
appellant was granted bail pending the outcome of this
appeal) and he
indicated that he had remorse about the incident. The crime of
which the appellant was found guilty on charge
1 is so serious that
the legislature ordained minimum sentences to be imposed. Our courts
have described rape as a “brutal
invasion of the dignity and
the person of the victim.”
See:
S
v Chapman
[1997] ZASCA 45
;
1997 (2) SACR 3
(SCA).
Masiya
v Director of Public Prosecution, Pretoria and Another
2007
(5) SA 30
(CC)
[16]
In regards to the charge of attempted murder, the injuries sustained
by the complainant were serious. Being hit on the head
with an axe,
coupled with the bruising and swelling noted on the J88, is
indicative of the trauma and pain that the complainant
suffered at
the hand of her intimate partner. The impact that the rape and
injuries had on the complainant was not addressed by
the court
a
quo
as no evidence were led and a victim impact report was absent. It is
important that such information should be placed before the
trial
court in order to take into consideration the negative impact that
the incident had on the victim.
[17]
The community no doubt has an interest therein that violence against
women should not be tolerated. A clear message must be
sent out by
the courts in this regard in imposing sentences which would not only
give the community a sense of security, but also
deter would-be
offenders from these pervasive abuses of male power.
[18]
I do not find any substantial and compelling circumstances to justify
the imposition of a lesser prescribed sentence than ten
years
imprisonment in respect of count 1.
[19]
In applying the test laid down in
Pieters
supra
I do not find any reason to fault the sentence imposed by the trial
court in respect of count 2. It is evident from the record
that the
court a quo properly took into account all the applicable trite
factors to arrive at a just sentence.
[20]
Accordingly the orders of the court a quo are set aside and replaced
with the following:
1.
The
appeal succeeds to the extent that the conviction and sentence on
count 1are set aside and replaced with the following:
“
Count
1: Guilty of rape read with the provisions of section 51(2)(b) of the
Criminal Law Amendment Act 105 of 1997 (Part III of
Schedule 2).
The
accused is sentenced to ten years imprisonment.”
2.
The
appeal against the conviction and sentence of five years imprisonment
on count 2 is dismissed.
3.
It
is ordered that three years of the sentence imposed on count 2 is to
run concurrently with the sentence imposed on count 1.
4.
These
sentences must be deemed to have been imposed on 7 October 2014.
_______________
C.
REINDERS, J
I
agree.
________________
P.J.
LOUBSER, AJ
It
is so ordered.
On
behalf of appellant:
Mr D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
Legal
Aid SA
BLOEMFONTEIN
On
behalf of respondent: Adv K.E. Lesie-Shale
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN