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[2016] ZAFSHC 12
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Makhonanyane v S (A127/2015) [2016] ZAFSHC 12 (28 January 2016)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH
AFRICA
Appeal
No.: A127/2015
In
the appeal between:-
SELLO
ANDRIES
MAKHONANYANE
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
DELIVERED
ON:
28 JANUARY 2016
MOLEMELA,
J
[1]
This is an appeal against sentence only. The appellant was
convicted of rape by the regional court in Bloemfontein.
He was
subsequently sentenced to life imprisonment.
[2]
The facts giving rise to this appeal are as follows: The
complainant’s husband was employed at a tavern. On the night
of
the incident, the complainant visited the same tavern. The appellant
was one of the customers that were present on that night.
At some
point, the appellant was the only customer left. He refused to leave
despite a specific request from the complainant’s
boyfriend.
The complainant’s boyfriend decided to report the appellant’s
attitude to the owner of the tavern. At that
point, the complainant
went to the toilet situated in the yard of the tavern. While she was
in the toilet, the appellant opened
the door, pulled her out and
stabbed her with a screwdriver on her cheek. When the complainant
asked him why he did so, he stated
that he wanted to have sexual
intercourse with her. At that stage, her boyfriend emerged from the
house and demanded an explanation.
The appellant kicked him and
repeated that he wanted to have sexual intercourse with her. The
complainant’s boyfriend pulled
her into the house and then
locked the door. The appellant kicked the door repeatedly until it
flung open. He then threatened to
stab her boyfriend with the
screwdriver. The boyfriend fled the scene. He then grabbed the
complainant and forced her to accompany
him to his shack. Along the
way he stabbed her twice in the breast. He threatened to kill her
should she try to flee. Upon arrival
at his shack he raped her twice
and thereafter ordered her to share the bed with him for the rest of
the night. In the morning,
she woke up and quietly walked to the door
while the appellant was asleep. He woke up and told her that he would
not allow her
to go anywhere and again threatened to kill her. She
later obtained his permission to go to the toilet outside the shack.
She used
that opportunity to flee to her uncle’s house.
[3] The basis of the
appellant’s appeal against his sentence is that the sentence of
life imprisonment is shockingly inappropriate
and induces a sense of
shock, that the court
a quo
erred by not taking proper consideration of the appellant’s
personal circumstances of the appellant, that it further erred
in
considering the rape committed by the appellant to be one of the
worst kinds of rape and wrongly found that there were no substantial
and compelling circumstances warranting deviation from the sentence
imposed.
[4]
It was argued on behalf of the appellant that the court a
quo
failed
to pay due consideration to the appellant’s mitigating factors,
over-emphasised the nature of the offence and the interests
of the
community and consequently erred in finding that there were no
substantial and compelling circumstances warranting deviation
from
the mandatory life imprisonment sentence.
[5]
It is trite that a court of appeal may, on appeal, tamper with the
sentence imposed by the trial court only if the court of
appeal is of
the view that a material misdirection was committed or that the
sentence imposed was shockingly inappropriate
[1]
.
[6]
It deserves to be mentioned that the bill of rights enshrined in our
constitution
inter
alia
affords all persons alike the right to walk the streets at any time
of the day or night. Women in this country are, like women
in other
parts of the world, entitled to visit any place of entertainment of
their choice, including taverns, without fear of being
attacked or
raped. Sadly, this is a right that many women are deprived of in this
country due to the high prevalence of rape. That
r
ape
is a serious offence is a fact that can never be over-emphasised.
In S v C
[2]
,
the court aptly described this revolting scourge in the following
terms:
“
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim – he
murders
her self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deeds thereafter
after haunts
his victim and subjects her to mental torment for the rest of her
life – a fate often worse than loss of life”
.
[7]
The attack on the complainant was completely unwarranted. It is clear
from the facts set out above that the appellant was brazenly
determined to have his way with the complainant at all costs. Having
stabbed the complainant with a screwdriver, he abducted her
from the
safety of a locked room and the protection that her boyfriend had
offered her. Despite the fact that the complainant had
already
suffered injuries, he inflicted two more stab-wounds on her chest. He
showed the defenceless complainant no sympathy and
proceeded to rape
her twice despite the blood that was flowing from her wounds. At no
stage did he show any remorse for his actions.
I have no doubt that
these are serious aggravating factors that indeed bring this rape
within the category of the most severe kinds
of rape. Against this
background, the fact that the appellant was 36 years old, that he was
in gainful employment at the time of
his arrest and that he has two
minor children are neutral factors
[3]
.
[8]
The appellant’s argument that the court
a
quo
wrongly considered the fact that the complainant’s rape was
committed a mere three years after the appellant’s conviction
on assault with intent to do grievous bodily harm does not hold any
water since this was a fact that was borne out by the appellant’s
record of previous convictions. Assault is an offence that involves
violence and is therefore a relevant previous conviction as
rape also
entails violence. The court
a
quo
correctly
considered this previous conviction as an aggravating factor. The
appellant argued that no evidence was put on record
to suggest that
the complainant was emotionally traumatised by the incident, as no
victim impact report had been submitted. This
argument has no merit
as the court a quo made no reference to the complainant’s
emotional trauma in its judgment. In any
event, a plethora of cases
has acknowledged that rape is a traumatic experience for any of its
victims. In this case, the complainant
was not only raped, she was
stabbed with a screwdriver, abducted, was stabbed yet again before
being raped. After the rape, she
was denied her freedom for some
hours, notwithstanding her injuries. Throughout her ordeal, the
appellant repeatedly threatened
to kill her. This could only have
increased her trauma. The complainant’s trauma is borne out by
her evidence to the effect
that she was crying and confused at the
time when she was giving her statement to the police.
[9]
In
S
v Salzwedel & Others
[4]
, the court stated as follows:
“
An
appeal court is entitled to interfere with a sentence imposed by a
trial court in a case where the sentence is “disturbingly
inappropriate” or totally out of proportion to the gravity or
magnitude of the offence, or sufficiently disparate or vitiated
by
misdirections of a nature which shows that the trial court did not
exercise its discretion reasonably.”
[10]
Having considered the conspectus of the record, I am satisfied that
the court
a
quo
was thorough in its consideration of the triad of sentence and took
account of the appellant’s personal circumstances in
a balanced
fashion. It is clear that the aggravating factors far outweigh the
mitigating factors. Prescribed sentences may not
be departed from for
flimsy reasons
[5]
.
The court
a
quo
correctly found that there are no substantial and compelling
circumstances that justify deviation from the prescribed sentence
of
life imprisonment. The sentence imposed is not disproportionate to
the gravity of the rape committed by the appellant. I am
satisfied
that the court
a
quo
has
not committed a misdirection. Consequently, there is no basis for
tampering with the sentence it imposed.
[11]
Given all the circumstances of the case, the appropriate order is the
following:
ORDER:
1.
The appeal against sentence is dismissed.
2.
The sentence imposed by the court
a
quo
on 13 March 2015 is confirmed.
__________________
M. B.MOLEMELA,
JP
I
concur.
__________________
S.
NAIDOO, J
On
behalf of appellant:
Mr P L van der Merwe
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent:
Adv FJ Pienaar
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
[1]
S v
Pieters
1987 (3) SA 717
(A) at 728 b-c.
[2]
1996 (2) SACR 181
at 186 D.
[3]
S v Matyityi.
[4]
1999(2) SACR 586
(SCA) at 591 F-H
[5]
S v Malgas.