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[2017] ZAFSHC 89
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Rapitso v S (A67/2017) [2017] ZAFSHC 89 (8 June 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A67/2016
In
the matter between:-
THIBELLO
DAVID
RAPITSO
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
RAMPAI, J et MATHEBULA, J et MHLAMBI, J
HEARD
ON:
24 APRIL 2017
DELIVERED
ON:
08 JUNE 2017
MHLAMBI,
J
[1]
On 08 May 2015, the appellant was convicted in the circuit court at
Virginia by Mia AJ on charges of rape and assault with intent
to
commit grievous bodily harm. He was sentenced on 02 July 2015 to life
imprisonment on a charge of rape and 5 (five) years imprisonment
on a
charge of assault with the intention to inflict grievous bodily harm.
[2]
He applied for leave to appeal against both conviction and sentence.
The application for leave to appeal against the conviction
was
refused but granted against the sentence only. The appellant appeals
to this court against the sentence.
[3]
The issues to be considered are couched as follows in the application
for leave to appeal:
“
2.1
Whether the court a quo was correct in sentencing the Appellant to
life imprisonment on the basis that grievous bodily harm
were
inflicted during the course of rape. Despite the fact that the
Appellant was not charged for the rape involving the infliction
of
grievous bodily harm.
2.2
The Appellant submitted inter alia in his notice of appeal that
learned Acting Judge erred:
2.2.1
By imposing a sentence of life imprisonment in respect of count 1,
2.2.2
By not taking into account that the minimum sentence that was
applicable in respect of count 1 was 10 years imprisonment,
2.2.3
By over-emphasizing the interest of community and in doing so, the
court a quo ignored the personal circumstances of the Appellant.”
[4]
The evidence in this matter is that on the evening of 11 March 2012
at about 20h00 the complainant and her friends were at the
N. tavern
where they drank liquor when she was approached by the appellant who
proposed love to her. She was not interested. She
spent the whole
evening at the tavern and left at approximately two in the morning.
[5]
As she and her friend were on their way to her boyfriend’s
home, she noticed two males coming out of the tavern. The men
caught
up with them, grabbed the complainant, demanded that she accompany
them and pulled her along with them. Her friend fled.
When she
resisted, she was assaulted with fists, trampled upon and her mouth
gagged as she screamed. The appellant took out a knife
and threatened
to kill her if she continued to resist or to scream.
[6]
The assault continued until they reached a house where she was taken
inside and raped by both men. Whenever she refused their
advances she
was assaulted by both the appellant and the other man, known as
Moeketsi who died after the incident.
[7]
In paragraph 8 and 9 of the appellant’s heads of arguments
reference was made to page 247, line 1-13 of the case record
and it
was submitted that the court
a quo
“
found
that, the prescribed minimum sentence of life imprisonment was
applicable on this basis that grievous bodily harm was inflicted
on
the complainant during the course of the rape. The court a quo after
it was referred to State vs Mahlase, it decided to use
second count
in order to make count one to fall within the purview of
section
51(1)
of the
Criminal Law
Amendment Act 105 of 1977
.
9.2 It is our submission that the court a quo misdirected itself
material in sentencing the appellant in terms of section 51(1)
of the
Act to life imprisonment in respect of the rape charge. It is our
submission that the conduct of the court a quo of using
count 2 in
order to make count 1 to fall within the purview of
Section
51(1)
of the
Criminal Law
Amendment Act 105 of 1997
is
tantamount to duplication of conviction.”
[8]
Line 1-13 of the court record reads which reads as follows:
“
In
view of the factors referred to above, I am not persuaded that there
are weighting (sic) factors or any substantial and compelling
factors, which justify a deviation from the prescribed sentence.
In
the circumstances noted above, namely the rape, accompanied by
assault, causing grievous bodily harm, the sentence of life
imprisonment
would not be disproportionate to the crime,
the offender and the needs of
society, as to amount to injustice being done. The prescribed
sentence is applicable”
(my own
emphasis).
[9]
The argument is misplaced. The passages quoted above do not in
any way suggest that the court
a quo
used the second count, in
order to bring count one within the purview of
section 51(1)
of Act
105 of 1977. On page 242 of the record the following was stated
during sentence:
“
The
facts furnished, in the State’s summary of substantial facts
referred to an assault en route to the house, where the complainant
was raped, as well as an assault, during the rape, in paragraphs 3
and 4.
The
clinical findings on the J88 indicate that the complainant presented
with fresh injuries namely, swollen face, both eyes were
swollen and
blue eye, bruises, plus a small laceration on the right cheek,
bruises on the left cheek and bruises on the chin”
[10]
Relying on
S v Mahlase (255/1211)
(2011)
ZASCA 191
,
it
was, submitted furthermore in the heads of argument that the court
a
quo
erred in finding that the appellant was
charged with the rape involving the infliction of grievous bodily
harm. According to the
counsel the appellant could only be convicted
of rape as provided for in Part 3 of Schedule 2 of Act 105 of 1997.
Furthermore,
the counsel contended that the charge against the
appellant did not refer to Part 1 of Schedule 2. The former has as a
prescribed
minimum sentence imprisonment for a period of ten (10)
years. It was further argued that as charges were withdrawn against
the
co-accused who has since died, the appellant should have been
sentenced to a lesser term of imprisonment.
[11]
Mr Mthethwa, on behalf of the respondent, correctly submitted that a
sentencing court was not precluded from imposing a life
sentence
solely on the basis that the indictment did not refer to specific
jurisdictional factors listed in section 51(1) of Act
105 of 1998
and, coincidental thereto, that a sentence of life imprisonment might
be imposed upon him in the event that he is convicted
of rape where
there was infliction of grievous bodily harm in accordance with the
provisions of Part 1(c) of schedule.
[12]
At the outset of the trial, the state indicated that the charge in
count one should be read with the provisions of section
51(1) of
schedule 2 of the
Criminal Law Amendment Act. The
appellant’s
legal representative confirmed having discussed and explained to the
appellant that in the event of conviction,
the appellant would face a
minimum sentence of life imprisonment. The accused confirmed and
understood the explanation.
[13]
The charge sheet on the count of rape reads as follows:
“
1.
Contravening the provisions of
Section 3
read with
Sections 1
;
55
;
56
(1);
57
;
58
;
60
and
61
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
- and read with
Sections
256
;
257
; and
281
of the
Criminal Procedure Act 51 of 1977
- Rape
(read with the provisions of
Section 51(1)
and schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended).
In
that upon or about 11 March 2012 and at or near Phomolong, in the
district of Hennenman, the accused did unlawfully and intentionally
commit an act of sexual penetration with T S, an adult female person,
by penetrating her vagina without her consent and therefore
raped
her.”
[14]
Section 51(1)
of Act 105 of 1997 provides as follows:
“
[n]otwithstanding
any other law but subject to subsection (3) and “6”, a
High Court shall-
a)
if it has convicted a person of an offence referred to in Part 1
schedule 2; or
b)
….
sentence
the person to imprisonment for life”
On
page 241 line 25 and 242 line 1 to 5 of the record on sentence the
following was said:
“
The
charge against Mr Rapitso was formulated, so that it referred to
schedule 2, without referring to the specific Part 1 to 4.
There was
no objection, at the outset, to this formulation or that it failed to
give sufficient particularity, to enable Mr Rapitso
to respond
thereto”.
See
also
Senne v The State
(A15/2016) ZAHSA, 18 August 2016 (FB) paragraphs 25-26.
[15]
Returning to the merits it is quite obvious that the appellant was
sexually attracted to the complainant as from the time that
he
approached and unsuccessfully proposed love to her in the tavern. The
assault on the complainant by the appellant and Moeketsi
was not the
beginning and the end in itself, but was launched with the intention
to subdue her so that she should go with both
of them to the house
where the rape took place. The continued assault at the house
was to eliminate any further resistance
on her part to their sexual
advances. This much was conceded by the state when Mr Mthethwa
submitted that the assault, that
took place before they reached the
house was to render the complainant to succumb to the wishes of the
accused. He conceded furthermore
that the second charge of assault
with the intention of inflicting grievous bodily harm, was a
duplication and should be set aside.
There could therefore be no talk
or suggestion of separate “pockets of
dolus”;
o
ne formulated inside the house and the other
outside in the street. The intention to subdue the complainant in
order to rape her,
was continuous throughout, from the minute the
assault took place until the rape was completed. Both the accused had
one purpose
in mind, viz, to have carnal relations with the
complainant, with or without her consent. To achieve this aim, they
were prepared
to resort to violence. The application of the violence
on the complainant was not to hurt her per se, but to subdue her so
that
they could have their way with her.
[16]
In the premises it is therefore evident that the second count cannot
stand as it is a duplication and should therefore be set
aside
[17]
The court
a quo
found
that the appellant’s age, employment, impoverished
circumstances and consumption of alcohol did not individually or
accumulatively justify a deviation from the minimum sentence. Women
are entitled to the protection of their rights and to enjoy
them
without fear.
S v Matyityi
2011 (2)
All SA 424
SCA; S v Chapman
1997 (3) SACR 341
(SCA)
.
In my view this approach was correct. I could find no material
misdirection which would necessitate the interference with
the
sentence.
[18]
A court hearing a criminal appeal against sentence should be guided
by the principle that punishment is pre-eminently a matter
for the
discretion of the trial court and it should be careful not to erode
such discretion. The sentence should only be altered
if the
discretion has not been judicially and properly excised.
S
v Rabie
1975 (1) SA 855
(A) 857 D-F.
I
am of the view that the sentence is neither vitiated by a
misdirection nor is disturbingly inappropriate. Bearing in mind
the
guidance in
S v Malgas
2001 (2) SA 1222
(SCA)
that the Legislature has ordained
the prescribed sentence as the sentence that should ordinarily and in
the absence of weighty
justification be imposed in the specified
circumstances. I am of the view that the court
a
quo
exercised its discretion properly and
reasonably;
S v Pillay
1977 (4) SA 531
(A)
535 F-G.
[19]
I would therefore dismiss the appeal as regards the sentence imposed
in respect of the rape. Consequently, by virtue of the
reasons set
out above, I find that the second charge represents a duplication and
should be set aside.
[21]
I therefore make the following order:
ORDER:
(i)
The appeal against sentence in respect of
charge 1 is dismissed;
(ii)
The Conviction and sentence on the second
charge are set aside and substituted with the following order:
the accused is found not guilty.
_____________
M.H
RAMPAI, J
I
concur
__
________________
M.A
MATHEBULA, J
I
concur
_
_____________
J.J.
MHLAMBI, J
On
behalf of appellant: Mr L. Pretorius
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of appellant: Mr S Mthethwa
Instructed
by: Director Public Prosecutions
Bloemfontein