About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2017
>>
[2017] ZANCHC 68
|
|
Matroos v S (CA&R97/15) [2017] ZANCHC 68 (30 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGHT COURT KIMBERLEY)
Case
number
:
CA& R
97 /15
Date
heard:
26/06/2017
Date
deli
vered:
30/ 06
/
2017
In
the matter of:
JAMES
DAVID
MATROOS
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Williams J et Snyders AJ
JUDGMENT
SNYDERS,
AJ
1.
The appellant was convicted of rape and murder in the Regional Court,
Richmond on 20 March 2013. He was sentenced to two terms
of life
imprisonment and now appeals against the convictions and sentences
imposed.
2.
The appellant was charged with raping and murdering the 16 year old
deceased on 13 February 2010.
3.
The appellant pleaded not guilty to both charges and provided a
detailed statement in terms of s 115 of the Criminal
Procedure
Act 51 of 1977 ("the CPA"). The contents thereof will
not be repeated here, save to indicate the
pertinent aspects on
which his defence rested:
3.1
The appellant and the deceased were in a relationship;
3.2
The appellant and the deceased had consensual intercourse on the day
in question;
3.3
The deceased fell out of the mini bus taxi when the door slid
open whilst the appellant
was executing a u- t urn.
4.
The deceased's friend, Trishia Lottering, testified that the
appellant and deceased were acquainted with one another. The deceased
introduced the witness to the appellant and also sat next to him when
they
drove
to buy a coldrink. After purchasing the coldrink,
the deceased, her friends, the appellant and another gentleman drove
to a different
spot to drink the coldrink. However, as
soon as everyone alighted from the vehicle, the appellant drove away
at high
speed with the deceased still in the vehicle. The
witness did not know where the appellant and deceased were going.
5.
The pathologist, Dr Walraven, testified to the deceased's injuries.
Her testimony directly contradicted the basis of the
appellant 's defence. The extensive bruising of the pelvic wall, the
long tears in the vagina and the 4cm tear on the viginal
fornix
were all indicative of a violent rape. The pathologist further
testified that these injuries would have caused the deceased
to be
hysterical with pain. The pathologist's conclusion of a
violent rape was supported by the excessive
vaginal
bleeding that was
testified to by the professional nurse
and the attending doctor in De
Aar .
6.
The deceased suffered a brain injury. The pathologist testified that
the injury was typical of a motor cycle accident. Alternatively,
it
could have been caused by blunt force trauma that was applied while
the head was supported. By explanation, if the deceased
were
kicked in the head while the head was in contact with the floor.
7.
The deceased had some abrasions on her body. A fall from a
fast moving vehicle would have caused more abrasions
than those present on the deceased. Conversely, a fall from a
slow moving vehicle would not have
caused the skull
fracture. The pathologist thus ruled out consensual intercourse and
falling from a motor vehicle, regardless of
speed.
8.
The
appellant elected to remain silent. The Constitutional Court stated
the following in
S
v Boesak:
[1]
"The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to
remain silent
and may not be compelled to make any
confession or admission that
could be
used in evidence against that person. It arises again
at the trial
stage when an
l
appellant has the right to be presumed innocent,
to remain silent, and not to testify during the proceedings.
The fact that an appellant person is under no obligation to testify
does not mean that there are no consequences attaching
to
a decision to remain silent during the trial.
If there is evidence calling for an answer,
and an
appellant person chooses to remain silent in
the face of such evidence, a court may well be
entitled to
conclude that the evidence is sufficient in the absence of an
explanation to prove the guilt of the appellant. Whether
such a
conclusion is justified will depend on the weight of the
evidence.
"
9.
Thus,
although the appellant does
not
bear
the
onus,
there
are
consequences attached in remaining silent. The Magistrate correctly
evaluated the evidence before her in coming to a decision.
The proper
approach by for such evaluation was set out as follows in
S
v Chabala:
[2]
"The
correct approach is to weigh up all the elements which point towards
the guilt of the appellant against all those which
are indicative of
his innocence, taking proper account of inherent
strengths and weaknesses,
probabilities
and
improbabilities on both sides and, having done so, to decide whether
the balance weighs so heavily in favour of the State as
to exclude
any reasonable doubt about the appellant's guilt."
10.
There are no grounds before me to set aside the conviction
herein, as
the
Magistrate had correctly found the state to have proven its case
beyond
reasonable
doubt.
11.
In
S
v De Jager and Another
[3]
,
the
Appeal Court postulated as follows regarding interferance with a
sentence imposed by the trial
court:
"It
would not appear to be sufficiently recognised that a court of appeal
does not have a general discretion to ameliorate
the sentence of
trial courts. The matter is governed by principle. It is the trial
court which has the discretion, and a court
of appeal cannot
interfere unless the discretion was not judicially exercised, that
is to say unless the
sentence is
vitiated by irregularity or
misdirection or is so severe that no
reasonable court could have imposed it. In
this latter
regard an accepted test is whether the sentence
induces a sense of shock, that is to say if there is a
striking
disparity between the sentences passed and that which the
Court of Appeal would have imposed. It should therefore be recognised
that appellate jurisdiction to interfere with punishment is not
discretionary but, on the contrary, is very limited."
12.
From the record, it is evident that the Magistrate had taken into
account and fairly balanced the appellant's personal
circumstances,
the prevalence and seriousness of the crimes and the interests of the
community in determining
a suitable sentence.
13.
The appellant raises the following factors, which Mr Van Tonder for
the appellant argued would cumulatively constitute substantial
and
compelling circumstances:
13.1.
He was 26 years old when he commited the offences;
13.2.
He was unmarried and had 3 minor children;
13.3.
He completed grade 11 in school and
worked as a taxi driver for R4 000. 00
per month;
13.4.
He was a first offender;
13.5.
The form of intention he was found guilty of was
dolus
eventualis;
13.6.
He spent approximately 3 years in custody awaiting finalisation
of
the trial.
14.
In considering the appropriate sentence, the Magistrate took
into account the fact that the rape
consisted of penetration with a penis,
as well as an other object. The Magistrate erred
in finding this to be the only reasonable
inference to be drawn based on the pathologist's testimony. However,
the absence of penetration by an object does not detract from the
brutality of the rape. The Magist1·ate also erred
in finding that the delay in finalising the matter was
the fault of the appellant and his first
attorney.
It is clear that a number of postponements were at
the instance of the state as well.
15.
That
being said, cumulatively, the circumstances raised
by the appellant do not constitute
compelling and substantial circumstances to justify
a deviation from the prescribed sentence. As set out in S
v
Malgas
[4]
:
"The
specified sentences are not to be departed from lightly and for
flimsy reasons. Speculative hypotheses favourable to the
offender,
undue sympathy, aversion to imprisoning first offenders, personal
doubts as to the efficacy of the policy underlying
the
legislation, and marginal differences in personal circumstances or
degrees of participation between co-offenders are to be
excluded. The
Legislature has however deliberately left it to the courts to decide
whether the circumstances of any particular
case call for a
departure from the prescribed sentence. While the
emphasis has shifted to the objective gravity of
the type of crime
and the need for effective sanctions against it, this does not mean
that all other considerations are to be ignored.
All
factors (other than those set out in D above) traditionally
taken into account in sentencing (whether
or not they
diminish moral guilt) thus continue to play a role; none
is excluded at the outset from consideration
in the
sentencing process. The ultimate impact of all the
circumstances relevant to sentencing must be measured against
the
composite yardstick ('substantial and compelling') and must be such
as cumulatively justify a departure from the
standardised
response that the Legislature has ordained. "
16.
Based on the above, I find that the Magistrate correctly convicted
and sentenced the appellant.
Wherefore
I make the following order:
1.
The
appeal
o
n
both
the
convictions and sentences is dismissed.
_________________
J.
A. SNDYERS
ACTING
JUDGE
I
concur
_________________
C.C
WILLIAMS
JUDGE
On
behalf of Appelant:
Mr
A Van Tonder (Legal Aid)
On
behalf of Respondent:
Adv. K Ilanga (DPP)
[1]
2001
(1) SARC 1 CC at para 24
[2]
2003
(1) SACR 134 SCA at para
15
[3]
1965
(2) SA 616
(AD) at 628 H-629
(A)
[4]
2001(
1) SACR 469
(SCA
)
at
470 D - 471 G