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[2016] ZAFSHC 55
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Leteane v S (A242/2015) [2016] ZAFSHC 55 (14 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal number:
A242/2015
In the matter between:
S.P.
LETEANE
Appellant
and
THE STATE
Respondent
HEARD ON:
29 FEBRUARY 2016
CORAM:
MOCUMIE, J et CHESIWE, AJ
HEARD:
29 FEBRUARY 2016
DELIVERED ON:
14 MARCH 2016
MOCUMIE, J
[1]
The appellant was twenty seven years of age when he was arrested on
17 November 2012 on allegations that he broke and entered
Mrs M’s
house and raped her. On 12 June 2013, he appeared in the regional
court, Thaba Nchu, on a charge of housebreaking
with intent to rape
and rape as defined in s3 of the Criminal Law Amendment (Sexual
Offences and Related Matters) Act 32 of 2007
(the Sexual Offences
Act) read with s51 (1) read with Part I of Schedule 2 of the Criminal
Law Amendment Act 105 of 1997(the Act). He pleaded
not guilty
to the charge. Despite his plea of not guilty, he was convicted as
charged. The trial court found no compelling and
substantial
circumstances that warranted a sentence less than life imprisonment.
It consequently imposed the prescribed life imprisonment.
This appeal
against both conviction and sentence is in terms of the appellant’s
right to automatic appeal in terms of s309
(1) (a) of the Criminal
Procedure Act 51 of 1977 (the CPA).
[2] The unrefuted
evidence of the State is that Mrs is a 56 years old woman. She is the
appellant’s neighbour as she resides
at 2391 Ratloung and the
appellant resides at 2411 Ratloung, Thabanchu. As he put it during
cross examination ‘I grew up
in front of her…’.The
night of 16 November 2012 she was home, alone, when the appellant
broke a window of her kitchen
to gain entry. He found Mrs M sleeping
on the floor. He demanded money from her. When she said she did not
have any, he tied up
her wrists with a barbed wire and proceeded to
rape her for the first time. He hit her with an iron rod on the head
and raped her
for the second time. He hit her again with the iron rod
on the head and all over her body, pulled her to her bedroom and
raped
her for the third time. He pulled her from that bedroom to
another bedroom where he raped her for the fourth time. Then to the
lounge and raped her for the fifth time. He also throttled her to
stop her from screaming for help. The appellant left Mrs M in
the
early hours of 17 November bleeding all over her body from the
injuries she had sustained as a result of the severe assault
on her;
from her head to her feet. Mrs M was discovered by her employer’s
daughter later that day around 10am. The appellant
was arrested later
that same day. The appellant and the complainant were well known to
each other as neighbours. Thus the identity
of the appellant was
never an issue. Over and above, the appellant admitted that he was in
Mrs M’s house
albeit
for a different reason than she proffered.
[3] The appellant’s
version which the trial court rejected was that the appellant and Mrs
M were having a secret sexual relationship
prior to this day. On that
day he had gone to Mrs M’s house to demand his R500 which Mrs M
owed him. Mrs M refused to pay
him and instead swore at him. As a
result, he assaulted her as she indicated but did not tie up her
hands with a piece of wire
found inside her house.
[4]
In his Heads of Argument Mr Makhena for the appellant submitted that
the conviction was wrong. But in his oral argument in court;
Mr
Makhena conceded that the State proved its case beyond reasonable
doubt in respect of the charge preferred against the appellant.
He
also conceded that he could not say with any conviction that the
trial court misdirected itself in any manner in respect of
the
sentence it imposed.
[5] It is trite that the
State bears the onus to prove the accused person’s guilt beyond
reasonable doubt while the accused
person has only to show that his
version is reasonably possibly true.
[1]
The trial court clearly considered the evidence in its totality;
weighed up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence,
taking proper account of the inherent strengths and weaknesses,
probabilities and improbabilities on both sides and having done
decided that the balance weighed so heavily in favour of the State
to
exclude any reasonable doubt about the accused’s guilt.
[6] In the absence of any
attack on the credibility findings of the trial court, this court is
bound by such findings; bearing in
mind the advantage which the trial
court has of seeing, hearing and apprising the witnesses.
[2]
[7] Based on the
concession correctly made by Mr Makhena and the overwhelming
unrefuted evidence the State led against the appellant,
there is no
reason for this court to interfere with the conviction.
[8] With regards to
sentence, in the minority judgment of
S
v Nkomo
[3]
Theron JA stated aptly that against the spate of rapes in this
country courts must also be mindful of their duty to send out a
clear
message to potential rapists and to the community that they are
determined to protect the equality, dignity and freedom of
all
women.
[4]
Society’s
legitimate expectation is ‘that an offender will not escape
life imprisonment-which has been prescribed for
a very specific-
reason, simply because [substantial] and compelling circumstances
are, unwarrantedly, held to be present.
[5]
The same sentiments were recently echoed in
S
v Matyityi
[6]
and
S
v Kwanape.
[7]
[9] The appellant was 27
years of age at the time of the commission of these offences and
would ordinarily not be regarded as a
youthful or immature offender
as he has one child aged 7 years. He was unemployed and stayed with
his parents. He has six previous
convictions including robbery and
assault committed since 2009.The appellant showed no remorse. He lied
about having a sexual relationship
with Mrs M who was his neighbour
old enough to be his mother. On the other hand, the most aggravating
factors are that the appellant
assaulted Mrs M, his neighbour, and a
small built woman of 56 years of age brutally in the sanctity of her
home. He assaulted her
so brutally that she sustained seventeen
assault wounds all over her body. The medical report confirms such
injuries from her head
to the feet. The appellant literally left her
for dead.
The
attack is what the court in
S
v Matyityi
[8]
described
as breathtakingly and brazenly brutal. The case was marred with
brutal horror.
[9]
[10] This type of rape
and violence perpetuated against elderly women is becoming normality
in society of late. Elderly women who
are known to stay alone are
attacked and raped more frequently. Rape of elderly women should not
be trivialised considering their
frailty and vulnerability as well
the disgrace, humiliation and trauma they would be expected to
experience through this type of
ordeal. The Legislature ought to give
the same consideration it has given to children to in respect of
elderly women; to afford
them the same protection as children.
Consequently, the trial court’s approach on sentence cannot be
faulted at all as Mr
Makhena correctly conceded.
[11] In the light of the
aforesaid, the sentence imposed ought to stand. In the result, the
following order is granted in respect
of both the conviction and
sentence.
ORDER
‘
The appeal against both the
conviction and sentence is dismissed.’
_________________
BC MOCUMIE, J
I
concur.
______________
S CHESIWE, AJ
On behalf of
appellant: Adv. O. Makhena
Instructed by:
The Legal Aid Board
Bloemfontein
On behalf of respondent:
Adv. Liebenberg
Instructed by:
The Director of Public
Prosecutions,
Bloemfontein
/PC
[1]
S v Chabalala
2003
(1) SACR 134
(SCA) at139
i-j.
See also S v V
2000 (1)
SACR 453
(SCA) at 455
A-C;
S
v Van Der Meyden
1999 (1)
SACR 447 (W).
[2]
S v Francis
1991 (1)
SACR 198
(A) at 204D.
[3]
S v Nkomo
2007 (2) SACR 198
(SCA) at 207.
[4]
S v Chapman
[1997] ZASCA 45
;
1997
(2) SACR 3
(SCA)
(1997 (3) SA 341)
at 5
D-E
.
[5]
Rammoko v Director of Public
Prosecutions
2003 (1) SACR
200
(SCA) ([2002]
4 All SA 731)
para13.
[6]
S v Matyityi
2011(1)
SACR 40 (SCA).
[7]
S v Kwanape
2014 (1) SACR 405 (SCA).
[8]
S v Matyityi
above.
[9]
Compare with the brutality and
violence in
S v Nkomo
2007 (2) SACR 198
(SCA) at 207.
,
S v Matyityi
2011
(1) SACR 40
(SCA) a
nd
S
v Mosia
2012
(2) SACR 537
(FB).