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[2016] ZAFSHC 71
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Machoba v S (A176/15) [2016] ZAFSHC 71 (5 May 2016)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : A176/15
In
the matter between:-
VUYANE
MACHOBA
First
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI,
J et MOHALE, AJ
HEARD
ON:
09
NOVEMBER 2015
DELIVERED
ON:
05
MAY 2016
MOLOI,
J
[1]
The appellant was convicted in the regional court on one count of
assault with intent to do grievous bodily harm and one count
of rape
in contravention of section 3 of the Criminal Law Amendment Act 32 of
2007. He was sentenced to five (5) years imprisonment
and twenty (20)
years imprisonment on the two counts, respectively. The sentences
were ordered to run concurrently. Leave to appeal
was not granted but
on petition to this count, leave to appeal was granted. The appeal is
against the sentence only.
[2]
On 1 January 2013 at approximately 20h30 the complainant was walking
in a street from a friend’s place to her home. It
was dark. The
complainant met the appellant whom she knew by sight only but he
lived in the neighbourhood. The street was abandoned.
The appellant
told the complainant her boyfriend was looking for her and that he
would accompany her to the boyfriend’s place.
The complainant
was not willing to do so. The appellant assaulted her by hitting her
with clenched fists and when she fell to the
ground, kicked her all
over and in her face with his booted feet. The appellant then pulled
her up and forcefully led her to an
open veld and raped her. The
appellant thereafter forcefully took her to a shack wherein he raped
her again. He released her to
go the following morning.
[3]
On her arrival at home the complainant immediately reported the
incident to her sister, Irene, who noticed the complainant face
was
heavily swollen and her clothes were blood stained. The complainant
described her assailant to Irene and she immediately mentioned
the
appellant’s name. The incident was reported to the police.
According to the appellant, the complainant was assaulted
by her
boyfriend, Tony, who denied having done so as he was in hospital when
this incident happened. The appellant denied having
assaulted and
raped the complainant but could not explain why he offered the
complainant his medical aid card to use when she went
to the doctor.
[4]
On appeal it was contended the sentences imposed were disturbingly
inappropriate in the light of the fact that the appellant
had passed
grade 10 at school and was making a living by doing piece jobs from
which he earned R750-00 per week; that he was 31
years of age when he
was sentenced and that he had spent nine (9) months in custody
pending trial. The appellant had three relevant
previous convictions
of rape or attempted rape and assault with intent to do grievous
bodily harm. The trial court found that there
were no substantial and
compelling circumstances and instead that it was entitled to impose a
sentence above the prescribed minimum
sentence of fifteen (15) years
in the circumstances. I agree with this view. An appeal court is not
at liberty to interfere with
the sentencing discretion of the trial
court except where the trial court had committed a misdirection of a
serious nature in exercising
its discretion-
S
v Kibido
1998(2) SACR 213 (SCA) or the sentence imposed induces a sense of
shock –
S
v De Jager and Another
1965 (2) SA 616
(A)
[5]
In the passing of sentence the trial court had made an order that the
appellant was not suitable to work with children, presumably
in terms
of section 120(4) of Act No 38 of 2005 though the court referred to a
2008 Act. The relevant section 4 provides
“
in
criminal proceedings, a person must be found unsuitable to work with
children –
(a)
on conviction of murder, attempted murder, rape,
indecent assault or assault with
intent to do grievous bodily harm
with
regard to a child
;
(my emphasis)”.
In
this matter the complainant was a 34 year old woman and can
consequently not be called a child. The order that the appellant
is
not suitable to work with children is consequently misplaced and
should be set aside.
[6]
In the premises the following order issues:
6.1
The appeal against the sentence is dismissed.
6.2
The order that the appellant is not suitable to work with children is
set aside.
_______________
K.J.
MOLOI, ADJP
I
concur
_______________
I.B
MOHALE, A.J
On
behalf of the appellant: Adv. O.
Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Bester
Instructed
by:
The
DPP
BLOEMFONTEIN