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[2016] ZANCHC 71
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Bezuidenhout v S (CA&R76/2016) [2016] ZANCHC 71 (2 December 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kim
berley)
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:
2/12/2016
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 life
imprisonment, on the basis that the complainant had been a victim
who
had at the time of the incident been a “
physically
disabled person who, 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, 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 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. In
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 in there being no version on oath by
him on record. The evidence presented by the
prosecution called
for an answer and, in the 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.
[15.]
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, long 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 1
of Schedule to the
Criminal
Law Amendment Act
.
[17.]
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 its 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 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 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.
In my view a
sentence of 18 years imprisonment would have been an appropriate
sentence, taking into account the “
benchmark
”
set by the prescribed sentence of life 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 in Part I of Schedule 2 to the
Criminal Law Amendment Act
,
105 of 1997.
[3]
The appellant has an automatic right of appeal in
terms of section 309 (1) (a) of the
Criminal
Procedure Act
, 51 of 1977.
[4]
Compare
S v Senkhane
2011 (2) SACR 493
(SCA) para [27]
[5]
Compare
Stevens v S
[2005] 1 All SA
1
(SCA) para [17]
[6]
Compare
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para [24]
[7]
See section 51 (1), 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
2013 (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]