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[2016] ZAECMHC 53
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Macimela v S (CA&R46/2016) [2016] ZAECMHC 53 (29 November 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. CA&R 46/2016
SOBAHLE
MACIMELA
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
BROOKS
J:
[1]
The appellant was charged in the Regional Court for the Regional
Division of the Eastern Cape held at Mount Frere with the crime
of
rape in contravention of the provisions of section 3 read with
sections 1
,
55
,
56
(1),
57
,
58
,
59
,
60
and
61
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, read
with sections 256, 257 and 281 of the Criminal Procedure Act 51 of
1977 (“the CPA”), the provisions of sections
51(1), 51(2)
and schedule 2 of the Criminal Law Amendment Act 105 of 1997 (“the
Act”) and sections 92 (2) and 94 of
the CPA.
[2]
At the outset, the prosecutor indicated to the magistrate that he had
established that the complainant was mentally retarded
and requested
that this fact be inserted on the charge sheet. The magistrate
advised the appellant that this fact had been
placed on record by the
prosecutor. In due course the charge sheet was amended without
opposition.
[3]
The appellant was legally represented in court
a
quo
.
After he had been warned that in the event of a conviction on the
charge, being rape of the complainant on more than one
occasion, he
would be sentenced in accordance with the provisions of sections
51(1), 51(2) and schedule 2 of the Act to life imprisonment
unless
there were substantial and compelling circumstances which justified
the imposition of a lesser sentence, the appellant pleaded
not guilty
to the charge.
[4]
Outlining the basis of his plea in accordance with the provisions of
section 115 of the CPA, the appellant indicated that the
sexual
intercourse with the complainant had occurred with her consent.
[5]
It is apparent from the evidence of the complainant that the
appellant is a member of her family. It is also apparent
that
she is intellectually challenged, often giving simplistic answers to
questions and omitting detail in the result. She
confirmed that
she had not proceeded beyond sub A at school and that she had been
rejected by her father. This led to her
moving to the
appellant’s homestead where she had resided for a long time
before the incidents concerning the appellant occurred.
She was
unable to tell the magistrate any details about her date of birth.
In due course, the evidence of another member
of the family, K. M.,
confirmed that the complainant was mentally challenged and in receipt
of an appropriate government grant
accordingly. M. confirmed
that the appellant was aware of the fact that the complainant was
mentally challenged. This
condition had also been noted on the
J88 from completed by the doctor who examined the complainant after
she had reported the incidents
of rape.
[6]
In her evidence the appellant identified the appellant as the person
who raped her on three occasions. The first occurred
at a
homestead other than that occupied by the complainant and the
appellant. The complainant had gone there to stamp mealies.
The second incident occurred in the garden at the appellant’s
homestead. On the third occasion the appellant raped
the
complainant in his bedroom. It is not clear whether these three
incidents occurred on the same day or not. Be that
as it may,
it is clear from her evidence that she was raped on three separate
occasions. On the second occasion, in the garden,
the appellant
had throttled her. The appellant refused to listen to her
request that he stop what he was doing to her and,
according to the
complainant, proposed a romantic relationship with her. The
complainant told the appellant’s wife
what was happening to
her. Initially angry with the complainant, she in turn was
prompted to buy a pregnancy test for the
complainant.
[7]
In his evidence, M. stated that he was informed telephonically by the
complainant that she had been raped by the appellant.
He was
shocked and contacted the complainant’s father, who thereafter
joined him and accompanied him to the police station
where they made
a report. He further stated that after reporting to the police,
he and the complainant’s father spoke
to the complainant about
the incidents. What she told them had occurred is consistent
with the evidence she gave before the
magistrate. M. expressed
concern to the magistrate that after these incidents the complainant
appeared to regard such behaviour
by a man as normal. Hirtherto
she had been sexually naïve.
[8]
In his evidence the appellant confirmed that the complainant lived in
his homestead. He maintained that the complainant
had consented
to sexual intercourse with him. He explained that he and his
wife had quarrelled, which had led to them occupying
separate
bedrooms. This had prompted him to take the complainant as a
wife. He claimed that on the first occasion he
had heard the
second of mealies being stamped at the neighbour’s house and
had discovered that it was the complainant at
work. He
approached her and told her that he wanted to “follow up”
on what they had agreed upon. According
to him she did not
respond. He then took a sack that was in the room and laid it
down, presumably on the floor. The
complainant removed only her
skirt. He did not penetrate the complainant but satisfied
himself using her legs. The
next occasion he described does not
appear to be alluded to by the complainant. According to the
appellant the complainant
contacted him telephonically and invited
him to “come around”. This he did and consensual
sexual intercourse
occurred whilst his wife was in church. Two
days later he and the complainant met again. He claimed that
they agreed
to have sexual intercourse in the garden. This
appears to be the incident referred to by the complainant in her
evidence
as the second occasion upon which she was raped. As to
the third occasion referred to in her evidence, the appellant claimed
that the complainant had crept out of the bedroom which she shared
with the appellant’s wife and came to spend the night
with the
appellant. The appellant claimed that although he knew that the
complainant received a government grant he did not
know why this was
the case. He stated that he didn’t “notice”
that she was mentally challenged “because
she was doing the
house chores”.
[9]
Under cross examination the appellant admitted that it was not normal
to have sexual intercourse on a sack placed on the ground.
He claimed
that it was normal to have sexual intercourse on the grass in the
garden “if you are in the outskirts” and
explained that
he had not wanted the children to watch him and the complainant.
He could give no explanation for the claim
made by the complainant
that the sexual intercourse with him had occurred on each occasion
without her consent.
[10]
In my view, the magistrate was correct in finding, on the evidence
before him, that the complainant was mentally retarded.
Given
the close ties between the complainant and members of the extended
family which include the appellant, I am unable to accept
the
appellant’s assertion that he did not know that the complainant
received a government grant because of this condition.
In my
view, the claim made by him in this regard is intended to bolster his
version that the complainant had agreed to accept his
sexual
advances. All the evidence given by the complainant is mentally
challenged, the complainant’s evidence was satisfactory
in all
material respects. If the appellant was telling the truth, no reason
emerges from the evidence to explain why the complainant
made a
report of rape to M. and, indeed, to the appellant’s wife.
Nor would there be any explanation should have come
to court and
given false evidence.
[11]
It follows that in my view the magistrate was correct view accepting
the evidence given by the complainant and M. and in rejecting
the
appellant’s version. Accordingly, the appeal against the
conviction of the appellant must fail.
[12]
The correct approach to be adopted towards the appellant’s
appeal against the sentence of life imprisonment has been
enunciated
by the Supreme Court of Appeal
[1]
as
follows:
“
What
is then the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate court interfere
with
such a sentence imposed by the trial court exercising its discretion
properly simply because it is not the sentence which
it would have
imposed, or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should, in
my view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is
so because the minimum
sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy
reasons. It follows,
therefore, that a proper enquiry on appeal is whether the facts which
were considered by the sentencing
court are substantial and
compelling, or not.
”
[13]
Ultimately, the question to be answered is whether “the court
below erred in failing to find that the circumstances of
this case
were so substantial and compelling as to justify a departure from
imprisonment for life.” In considering
what response
would be appropriate to such enquiry in the present matter, I have
had regard to the following useful restatement
of the nature of the
enquiry:
“
Substantial
and compelling circumstances means truly convincing reasons.
There must not be marginal differences in personal
circumstances or
degrees of involvement. At the end of the day, the ultimate
cumulative impact of the circumstances must
be such as to justify a
departure.”
[14]
The personal circumstances of the appellant are the following:
·
the
appellant is fifty-five years of age;
·
he
is married and has six children;
·
he
is unemployed and in receipt of a disability grant;
·
the
appellant suffers from tuberculosis;
·
he
has a previous conviction of Assault GBH.
[15]
In argument in mitigation of sentence the appellant’s legal
representative placed reliance upon the personal circumstances
of the
appellant for the circumstances of the appellant for the submission
that substantial and compelling circumstances exist
which would
permit the court to deviate from the prescribed minimum sentence of
life imprisonment and to impose a lesser sentence.
[16]
In argument in aggravating of sentence the prosecutor stressed the
seriousness of the offence, particularly where the complainant
is a
person who is mentally retarded and who is a member of the
appellant’s family. The prevalence of the offence of
rape
within the region was also highlighted. The prosecutor
submitted that the medical condition from which the appellant
suffers
is treatable.
[17]
In considering all the facts before him, including the personal
circumstances of the appellant, the magistrate found that no
substantial and compelling circumstances emerged therefrom. In
my view, he cannot be faulted in his approach. In the
circumstances, the appeal against the sentence cannot succeed.
[18]
The following order will issue:
“
1.
The appeal against the conviction and sentence imposed by the
magistrate is dismissed.
2.
The conviction and sentence of life imprisonment imposed by the
magistrate are confirmed.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
ALKEMA
J:
I
agree.
S.
ALKEMA
JUDGE
OF THE HIGH COURT
Appearances:
For
the appellant: Mr
Sakwe
Mthatha
Justice Centre
For
the respondent: Adv Joubert,
The
Director of Public Prosecutions
MTHATHA
Date
heard:
25
November 2016
Date
delivered:
29 November 2016
[1]
S v P B
2013 (2) SACR 533
(SCA) par [20].