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2017
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[2017] ZAFSHC 164
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Ramokone v S (A198/2016) [2017] ZAFSHC 164 (14 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A198/2016
In
the appeal between:
TSOEU
RAMOKONE
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J
et
REINDERS,
J
JUDGEMENT:
REINDERS, J
HEARD
ON:
3 SEPTEMBER 2017
DELIVERED
ON:
14
SEPTEMBER 2017
[1]
The appellant was arraigned in the Bloemfontein Regional Court on a
charge of rape, it being alleged that on or about 5 August
2015 he
unlawfully and intentionally committed an act of sexual penetration
with S. M. (the complainant) by penetrating her vagina
more than once
with his penis without her consent.
[2]
On 21 January 2016 the appellant pleaded not guilty but was convicted
as charged on 23 February 2016 and sentenced to life imprisonment.
He
feels aggrieved by the sentence imposed upon him and made use of his
automatic right to appeal in terms of sec 10 of the Judicial
Matters
Amendment Act 42 of 2013.
[3]
From the heads of argument prepared by Ms Kruger on behalf of
appellant as well as in oral submission before us it can be gleaned
that the attack on the sentence imposed are as follows:
The
court
a
quo
erred in not finding compelling and substantial circumstances to
warrant deviation from the minimum prescribed sentence as appellant
had expressed remorse; by not taking into account the time that
appellant had spent in custody awaiting trial; and due to the fact
that no evidence regarding lasting emotional trauma suffered by
complainant was placed on record.
[4]
Ms Moroka on behalf of the State supported the sentence on the papers
and in argument before us. She contended that the trial
court did not
misdirect itself in any way.
[5]
A brief exposition of the facts upon which the appellant was found
guilty appears from the record as follows:
On
the afternoon of 5 August 2015 at 15h00 complainant was walking past
the appellant who was herding cattle. Appellant called out
to her and
made small talk with her. She refused to present him with her contact
details and informed him that she was in a hurry.
Appellant offered
to carry her luggage and she proceeded to a hiking spot. Upon
realising that a vehicle passed her without
stopping, appellant
approached her again and she told him that she was married. Hereupon
appellant removed his waist belt and started
assaulting the
complainant by hitting her with the belt on her face whilst forcing
her to the foot of a nearby mountain hill. The
assault to her head
caused an open wound which bled and her left eye was swollen closed.
In spite of her plea that she was pregnant,
she was ordered to go
inside a donga where appellant raped her from behind. He then ordered
her to lay on her back and raped her
again. Hereafter she was tied to
a tree and muffled by putting her t-shirt into her mouth and wrapping
her clothes around her face,
even covering her eyes. She eventually
managed to flee late in the evening, and arrived at home at 04h00.
She made a report to
her brother and his friend, lay a claim with the
police and was taken to hospital for an examination. Not only
did complainant
point out the appellant as her assailant, but DNA
results positively linked appellant to the rapes.
[6]
This appeal lies against the sentence imposed by the court a quo. It
is trite that the powers of a court of appeal to interfere
with the
sentence so imposed are limited to the extent that the sentence is
disproportionate or harsh, or the sentencing court
committed a
material misdirection or did not exercise its discretion properly or
at all.
See:
S
v Pieters
1987(3)
SA 717 (A).
See
also:
S v Sadler
[2000] ZASCA 105
;
[2000] 2 All SA 121
at
334
d
-335
g
[7]
It is evident from the record that the learned magistrate considered
the triad consisting of the crime, the criminal, the interest
of
society as well as that of the victim. The court a quo had regard to
the appellant’s personal circumstances. The appellant
was
married and the father to a three year old girl. With his income he
maintained himself, his wife and his child. The court a
quo carefully
considered but rejected appellant’s claim to have remorse on
the basis of the following reasons:
“
You
said in your words that you apologise herein. I am not clear up to
this stage what is it that you claim to be sorry about. You
have not
even say you are remorseful for what you did. You were at pains in
answering the Prosecutor when he asked you to say it
in your own
words what it is you say you are sorry about.”
[8]
I agree with the trial court. From the record it is clear that the
regret displayed by the appellant does not translate to genuine
remorse.
See:
S
v Matyityi
2011
(1) SACR 40
at p47 par [13]
[9]
The learned regional magistrate in handing down sentence balanced the
personal circumstances of the appellant against the seriousness
of
the crime. She also considered the prevalence of the crime and the
interest of society, especially women, to be protected against
rapists. The court a quo dealt extensively with the gravity of
the offence. She alluded to the inhuman and degrading way
in which
the complainant, who was seven months pregnant at the time, was
treated. Not only did she sustain physical injuries, but
her own life
as well as that of her unborn baby was put at risk. Complainant also
ran the risk of contracting HIV as the appellant
did not wear a
condom. The court a quo was of the view that the rape was “..the
worst rape I have ever heard of..”
.
[10]
In my view the learned magistrate could derive from the
abovementioned and further exposition of the horrific facts as
alluded
to in par [5] above that complainant suffered lasting trauma
as a consequence of the rape. Even without introducing evidence in
respect of trauma to the complainant as appellant suggests should
have been done, I am of the view that even if there had been
a victim
impact report, it would not have aided the appellant at all when
balancing the gravity of the crime against all other
factors
considered by the court a quo
in
casu
.
[11]
It was submitted that the time appellant had spent in custody was a
factor to be considered in mitigation by the court a quo.
From the
record it appears that appellant had spent six months in custody. In
handing down sentencing the court a quo did not specifically
mention
that she took into account the fact that appellant had been in
custody for a few months. This does however not mean
that the
learned magistrate did not take this factor into account. But even if
she did not, the six months incarceration of the
appellant weighed
against the objective gravity of the offence, it’s prevalence
in our country and the legitimate expectation
of the society that
such crimes should be punished severely, does not tip the balance in
the favour of the appellant in my view.
The learned magistrate made
reference to
S
v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA) where it was held that the court has a duty to
protect women from the humiliating, degrading and brutal invasion of
their
privacy.
See also:
S
v Kwanape
2014
(1) SACR at 410 para [17]
[12]
The learned magistrate did not find any substantial and compelling
circumstances in respect of the rape charge and invoked
the
prescribed minimum sentence of life imprisonment as envisaged in
Section 51
(1) of the
Criminal Law Amendment Act 105 of 1997
read
with
Part 11
of Schedule 2. I have not been convinced by appellant
that the court a
quo
erred in finding as she did. I therefore come to the conclusion that
the appeal against appellant’s sentence should fail.
[13]
I accordingly make the following order:
The
appeal is dismissed.
______________
C.
REINDERS, J
I
concur.
______________
N.M.
MBHELE J
On behalf of the
Appellant:
Ms. S. Kruger
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
Respondent: Adv. M.M. Moroka
Instructed by:
Director:
Public Prosecutions
BLOEMFONTEIN