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[2016] ZANCHC 47
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Bezuidenhout v S (CA&R76/2016) [2016] ZANCHC 47; 2017 (2) SACR 577 (NCK) (2 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
REVIEW
CASE NO:
CA&R
76/2016
DATE
HEARD:
28/11/2016
DATE
DELIVERED :
2/
1
2/2016
In
the matter between:
BEZUIDENHOUT,
VUYANI
Appellant
and
THE
STATE
Respondent
Coram:
Olivier J
et
Erasmus AJ
JUDGMENT
Olivier
J:
[1.]
The appellant, Mr Vuyani Bezuidenhout, appeared in the Regional Court
at De
Aar
on
a
charge
of
housebreaking
with
intent
to
commit
rape,
and
rape
[1]
.
The appellant
pleaded
not
guilty.
He
denied
having
broken
into
the
house
of
the
complainant. He
admitted
intercourse,
but
claimed
that
the
complainant
had
consented
thereto.
[2.]
The appellant was convicted of the rape only and sentenced to l
i
fe
imprisonment, on the basis that the complainant had been a victim who
had at the time of the
incident
been a
"physically
disabled person wh
o
,
due
to
.
..
her
physical disability,
(was)
rendered
particularly
vulnerable"
[2]
.
This
appeal
is
against
both
the conviction
and
the
sentence
[3]
[3.]
The notice of appeal was filed late and the appellant accordingly
also applies for condonation. His affidavit in support of
such
application is very vague, but it was prepared without legal
assistance .
[4.]
What he did, however, pertinently allege is that there had been
repeated attempts by him to pursue his appeal,
inter alia
by
means of letters addressed to
"the court".
[5.]
In his heads of argument counsel for the respondent,
Adv J J Rosenberg, submitted that
condonation
should be refused because of the lack of detail in the appellant's
affidavit. No answering affidavit has however been
filed and
the appellant's explanation, vague as it may be, has not been
challenged on oath.
[6.]
It is so that the delay has been very long, in fact more than three
years, but it must be kept in mind that the appellant was
incarcerated during that period and had no legal representation.
[7.]
It is in any event trite that, insofar as the explanation for the
delay may be regarded as not completely satisfactory, that
fact will
have to be weighed up
against
the prospects on appeal
[4]
which
I will now turn to.
[8.]
The complainant denied having consented to intercourse. She
testified that she had in fact screamed for help and that
the
appellant had then fled, leaving behind his shoes.
[9.]
The complainant was a
single
witness in
respect
of
these
events,
and
her
evidence
would
therefore
have
had
to be approached
with
caution
[5]
. Mr Fourie,
on
behalf
of
the
appellant,
correctly
conceded that
there
were
no
material
contradictions
in
the
evidence of the complainant.
[10.]
The witness, Mr J. in any event corroborated her evidence in material
respects. His evidence was that he had passed the house
of the
complainant when he heard her calling for help. He saw the appellant
jumping out of a window of the complainant's house,
wearing socks but
no shoes. He tried unsuccessfully to apprehend the appellant. Shortly
thereafter he entered the house and found
the complainant crying. He
further testified that the complainant then reported to him that the
appellant had raped her.
[11.]
Both the complainant and Mr J. were found to have been credible
witnesses and that finding has not been criticised.
[12.]
The medical report (J88) reflects injuries to the genitalia which
were interpreted as a sign of forceful penetration. The
contents of
the report, which would include remarks about the injuries and the
conclusion, were admitted.
[13.]
The
appellant
chose
not
to
testify
or
to
present
any
evidence.
I
n
his
notice
of
appeal he
claimed
to
have
been
represented
by
an
incompetent
attorney and complained
that
the
matter
was
decided
without
regard
to
his
version.
These
allegations
are
not
borne
out
by
the
record.
In fact,
when
the
appellant's
legal
representative
at
the
time
informed
the
Regional
Magistrate
that
he
had
been
instructed
by
the
appellant to
close
his
case
without
presenting
evidence,
the
Regional
Magistrate
took
this
up
with the
appellant
himself
and
he
confirmed
those
instructions.
This
choice which the appellant had exercised, while he was
properly
legally
represented,
resulted
i
n
there
being
no version on oath by him on record.
The
evidence presented by the prosecution called
for
an answer and, in th
.
e
absence an answer, was sufficient
to
prove that the complainant had not consented to intercourse
[6]
.
[14.]
It is trite that the credibility findings of a trial court should not
readily be interfered with and in my view
there is no
cause to do so in the present matter.
[
1
5
.
]
The physical
disability
and
condition
of
the
complainant
at
the
time
of
the
incident
resulted
in
the
prescribed
sentence
of
life
imprisonment
being
applicable
[7]
.
Evidence
regarding
the
condition of the complainant was presented
and
the
physical
manifestations
and
effects
of
the
disability
were
placed
on
record.
The complainant
had
suffered a stroke,
l
ong
before this incident, which left her one hand deformed,
rendering
that
arm useless,
and
her
one
leg
weakened.
[16.]
The appellant, who had been a friend of the complainant's son, had
been aware of this. His legal representative conceded,
at the trial,
that the complainant was indeed, as a result of the stroke and its
consequences, a person as described in Part 1of
Schedule to the
Criminal Law
Amendment Act.
[
1
7
.
]
The
Regional
Magistrate
found
that
there
were
no
substantial
and
compelling
circumstances to justify
a
lesser sentence than life imprisonment. In an appeal
against
such a finding the approach differs from that applied in appeals
against
sentences
in
general.
This
court would be free to consider
"whether
the
facts
which
were
considered by the
sentencing
court
are substantial and
compelling,
or
not"
[8]
[18.]
The undisputed evidence was that the rape had left the complainant
feeling helpless and betrayed by somebody she had known
and had
trusted. She did not sustain serious physical injuries, but this must
be seen in the context of her physical condition.
She told the social
worker that she had been unable to push the appellant off her,
because of her weakened state. The appellant
would therefore arguably
not have had to apply any real physical violence to subdue the
complainant.
[19.]
According to the judgment on sentence the appellant had been only 20
years old at the time of the crime, and he was 21 years
old at the
time of the trial. He had left school in grade 9. He was single and
had no dependents. At the time of his arrest he
was employed and
earned an income of R40.00 per day.
[20.]
The appellant had previous convictions, but
none of them involved physical
violence or sexual misconduct. He had two previous
convictions of housebreaking
with
intent to steal and theft, in 2007, and one of theft in 2010.
He had served imprisonment before, albeit
for short
periods. Most importantly, however, he
had been out on parole
after his last
sentence of imprisonment when he committed the
present crime. This is an aggravating
factor, as is the fact that the
complainant was raped in her own bed and in her own house, where she
was supposed to feel safe.
[21.]
The appellant spent almost 15 months in custody before being
sentenced.
[22.]
The Regional
Magistrate
seems
to
have considered
the
appellant's
plea
of
not
guilty, and his persistence in
his
innocence, as aggravating, which
would
of course
have
been a misdirection,
because
it would have been appellant's constitutional
right
to put the prosecution to the proof of
i
ts
case
[9]
.
[23.]
The Regional Magistrate regarded the appellant's previous convictions
as indicative of his character, but made no mention
of the fact that
none of them were related to the crime the appellant had been
convicted of.
[24.]
In the judgment on sentence the Regional Magistrate mentioned that
reference had during the trial been made to the influence
of alcohol
on the appellant at the time of the incident. It is not clear from
the record exactly when that information was placed
before the court.
It may have been during the cross-examination of Mr J., because some
parts of what was put to him on behalf of
the appellant could not be
transcribed.
[25.]
There was no indication that the appellant had planned the rape. How
exactly he had ended up inside the house of the complainant
is not
clear. The complainant's evidence was that the doors of the house
were closed when she went to bed, but she did not testify
that they
were locked. When Mr J. went to the house after the appellant had
escaped, he found a door of the house open, presumably
in the sense
of being unlocked. The appellant's version, as put to the witnesses
on his behalf, was that he had gone there to visit
the complainant's
son.
[26.]
In my view the ultimate and most severe sentence of
life
imprisonment
[10]
would in
these
circumstances constitute an injustice,
taking
into
account
the cumulative
effect
of the age of the appellant, the influence of alcohol, the absence of
serious
violence
and of serious injuries and the absence of related previous
convictions.
These
are in my
view
strong
indications that the appellant
is
capable of
rehabilitation.
Mr
Rosenberg
wisely
conceded
that
a
sentence
of
life
imprisonment
is
indeed disproportionate
to
the circumstances
of
the crime and of
the
appellant as
an
individual.
[27.]
Undoubtedly, however, the crime would still call for a long term of
imprisonment
and
Mr Fourie did not attempt to argue otherwise.
I
n
my view a sentence of
1
8
years imprisonment would
have
been
an
appropriate
sentence,
taking
into
account the
"b
e
nchmark
"
set
by the prescribed sentence of l
i
fe
imprisonment
[11]
, but also the
period already spent in custody awaiting trial.
[28.]
In view of the above there would, for the purposes of the application
for condonation, have been sufficient prospects of success
for
condonation to be granted.
[29.]
In the premises the following orders are made:
1.
THE LATE FILING OF THE NOTICE OF APPEAL IS CONDONED.
2.
THE APPEAL AGAINST THE CONVICTION IS DISMISSED AND THE CONVICTION IS
CONFIRMED.
3.
THE APPEAL AGAINST THE SENTENCE IS UPHELD, THE SENTENCE OF LIFE
IMPRISONMENT IS SET ASIDE AND IT IS SUBSTITUTED
WITH A SENTENCE OF 18
YEARS IMPRISONMENT, ANTEDATED TO 5 MARCH 2013.
____________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
____________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For
the Appellant:
ADV P J FOURIE
(Kimberley Justice
Centre)
For
the Respondent:
ADV. J ROSENBURG
(Office of the Director
of Public Prosecutions, NC)
[1]
In
contravention
of section
3
of the Criminal
Law
(Sexual
Offences
and
Related
Matters)
Amendment
Act,
32 of 2007
[2]
As envisaged
i
n
Part
I
of
Schedul
e 2 to the Criminal
Law
Amendment
Act,
I 05 of
1997.
[3]
The appellant has an automat
i
c
right of appeal in terms of section 309 (
I
)
(a) of the
Criminal Procedure
Act,
51 of 1977
.
[4]
Com
pare
S
v
Senkhane
2011 (2) SACR 493
(SCA) para [27]
[5]
Compare Stevens v S [2005] I
All
SA
I
(SCA)
para
[17]
[6]
Com
pare
S v Boesak 200 1 (!) SACR
1
(CC) para [24]
[7]
See section
51
(
I
), read
with
the classification of rape victims in
Part
I
of Schedule 2, of the
Criminal
Law
Amendment
Act,
105
of 1997
.
[8]
See S
v
PB
2013 (2) SACR 533
(SCA) para [20];
See
also S v GK 20
13
(2) SACR 505 (WCC)
[9]
Compare S
v
Njikelana
2003 (2) SACR 166
(C) at 175d; S
v
Ngada 2009 JDR 0216 (ECG) at p7 -
8;
S
v
Mncube
2005 JDR 0251 (W) para (29]
[10]
Compare Makwakwa
&
another v S
[2009] JOL 23789
(GSJ) para [12]; S v Mashava
2014 (1)
SACR
541
(SCA)
para [7]
[11]
Compare Director of Public Prosecutions, North Gauteng v Thabethe
2011 (2) SACR 567
(SCA) para
[30]