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2016
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[2016] ZAFSHC 33
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Tinte v S (A200/2015) [2016] ZAFSHC 33 (18 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A200/2015
In
the matter between:
TEBOGO
BARRY
TINTE
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI, J et CHESIWE, AJ
HEARD
ON:
15
FEBRUARY 2016
DELIVERED
ON:
18
FEBRUARY 2016
MOLOI,
J
[1]
This is an appeal against the conviction on a charge of rape and the
sentence of ten (10) years imprisonment imposed by the
Regional
Court. Leave to appeal was granted by the trial court.
[2]
The appellant was charged with rape of the complainant, one Rose
Thabethe, on 17 July 2009. The complainant was walking to a
tuck shop
at approximately 18h50. She saw the appellant standing near a
container. She knew the appellant well and they had attended
the same
school. After passing the appellant, he came from behind and grabbed
her by her neck holding a knife in one hand. He pulled
her towards
the playground and demanded that she undress herself. She tried to
resist and he stabbed her on the head with the knife.
The appellant
forcefully undressed her and fondled with her breasts and kissed her.
He raped her whereafter he ordered her to run
away naked threatening
to cut her tongue and kill her if she refused. She grabbed her jeans
and ran away leaving her cellular telephone
on the ground where it
fell. She immediately reported the incident to Matuna and told her
Barry (the appellant) raped her. Matuna
confirmed in her evidence
that the complainant was bleeding, crying and in a state of shock.
She (Matuna) also knew the appellant
very well. The J88 form
confirmed the injuries to her head and also those caused by forced
penetration of her vagina.
[3]
The only defence raised by the appellant was mistaken identity of the
complainant's attacker. He denied he was at the scene
and stated that
he had been with his wife at home. The magistrate found the evidence
of the complainant truthful and reliable as
she testified logically
and had no reason to falsely incriminate the appellant. The trial
court correctly applied the cautionary
rules regarding the evidence
of a single witness and the requirements of proper identification
citing the relevant decisions. I
must add that even the legal
representative of the appellant on appeal, Mr Van der Merwe conceded
that the evidence of the complainant
and her witness cannot be
criticised and would not persue the appeal against the conviction.
Even the purported
alibi
of the appellant was not persued.
[4]
As regards sentence imposed it was also conceded that the approach of
the trial court was balanced and all the factors to be
taken into
account, namely the personal circumstances of the appellant,
the nature and the gravity of the offence committed
as well as its
high rate in that community and as the interests of the community
were approached in the correct manner:
S
v
Banda
&
Others
1991(2)
SA (BGW) 355 A. It was also conceded that the court of appeal may not
lightly interfere with the sentencing discretion of
the trial unless
the sentence imposed was shockingly inappropriate:
S v
Makhando
2002(1) SA at 431 E-F (SCA). I was,
however, contended that the appellant's incarceration for a period of
two years awaiting trial;
S v Stephen and Another
1994 (2)
SACR 163
(W); that he was the first offender, that he was a
productive member of the community as he was working and earning
R1200-00 per
month and that he was maintaining his family should have
moved the court to a finding of the existence of substantial and
compelling
circumstances that would empower the court to deviate from
the imposition of the prescribed minimum sentence of ten years
imprisonment.
As against that argument the respondent contended that
the inhumane and degrading conduct to which the complainant was
subjected
and that the appellant was not a first offender as he had
two previous convictions having violence as an element viz robbery.
It
was also required that the finding of substantial and compelling
circumstance must be able to stand scrutiny and not be based on
the
whim of the presiding officer:
S
v
Matyityi
2011 (1) SACR 40
(SCA). The respondent further argued that the
period spent in custody awaiting trial alone cannot constitute
substantial and compelling
circumstances and quoted from
Director
of
Public
Prosecutions, North
Gauteng, Pretoria v Thusi and Others,
2012 (1) SACR 423
(SCA)
where it was stated:
".
. .even having regard to the time spent in custody by the respondents
pending finalisation of the trial, the prescribed
minimum sentences
were, in the totality of the circumstances encountered here, the only
fair and just sentences."
[5]
I am of the view that the brutal manner in which the complainant was
attacked simply because her father and sister were working
at the
police station by a person well known to her; and serious
injuries caused to her, cannot justify the deviation from
the
imposition of the prescribed minimum sentence.
[6]
In the result the following order is made
The
appeal against both the conviction and the sentence is dismissed.
_______________
K.
J. MOLOI, AJ
I
concur.
_______________
S.
CHESIWE, AJ
On
behalf of the Appellant:
Adv. PL
VAN DER MERWE
Instructed by:
Bloemfonte
i
n
Justice Centre
BLOEMFONTEIN
On
behalf of Respondent:
Adv MMM MOROKA
Instructed by:
Director
of
Publ
i
c
Prosecutions
BLOEMFONTEIN