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[2016] ZAGPPHC 456
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K.N.M. v S (872/2014) [2016] ZAGPPHC 456 (3 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
No:
A 8
7
2/2014
Date:
3/3/2016
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
In the matter between:
K.N.M. Appellant
and
The
State Respondent
JUDGMENT
Maumela J.
1.
In this case, leave to appeal was granted by this court upon petition
in terms of section 309 C of the "Criminal Procedure
Act"
1977: (Act No 51 Oof 1977). This court has jurisdiction to hear this
appeal against both conviction and sentence.
2.
Before the regional court for the regional district of the North
West, held at Potchefstroom, herein after referred to as the
court
a
quo,
appellant, who was legally represented, and was 29 years
of age, was charged with three offences of rape in contravention of
section
3, read with sections 1, 56(1), 57, 58, 59, 60 and 61 of the
Sexual Offences and Related Matters Amendment Act 2007: Act No 32 of
2007, read with the provisions of Section 51 and Scheduled 2 of the
Criminal Law Amendment Act 1997:(Act No 105 of 1997).
3.
Of the three counts charged, two were specific to the appellant only,
while in the third count, the allegations were against
both the
appellant and a co-perpetrator. On counts 1 and 2, the allegations
were that upon or about the 12th April 2008, and at
or near Tshing in
the Regional District of the North West, the accused, did unlawfully
and intentionally commit an act of sexual
penetration with the
complainant to wit, MM a 16 year old female, by inserting his, penis
into her, (complainant's), vagina without
her consent.
4.
On count 3, the allegations were the same, save for the fact that it
was alleged that the appellant committed that offence with
simultaneous participation by a co-perpetrator. At the time of his
trial, a search by the police for the co-perpetrator was still
underway, but had not yet borne any positive results. Due to the
allegations of participation by a co-perpetrator, the state contended
that that count 3 makes for what is called 'gang rape', which should
invite a harsher sentence.
5.
Before the court a
quo,
appellant, indicated that he
understands the charges put to him. He pleaded not guilty to all
charges. In explaining his plea in
terms of
section 115
of the
Criminal Procedure Act, the
appellant stated that sexual intercourse
with the complainant was with her, (complainant's), consent.
Appellant was convicted on
all the charges. The court a
quo
regarded count 1 and 2 as one for purposes of sentence. In that
regard, it sentenced the appellant to undergo 20 (twenty) years
imprisonment. In respect of count 3, the appellant was sentenced to
undergo 10 (ten) years imprisonment. As indicated above, this
appeal
is against both conviction and sentence.
AD
CONVICTION.
6.
The state led evidence. Complainant told court that on the day in
question, which was a Saturday, at around 20h00, she and a
friend
known as V, were on the street, en route to church. Along the way,
they met the appellant whom the complainant already knew
as a friend
to one K, who was her sister's boyfriend. She knew the appellant by
the name Sp. She said that appellant was with one
G, whom she had
seen in the company of K before. The two walked behind them.
7.
The two offered them a drink of 'Hansa', a brand of malt beer. When
they strove to turn down the offer of drink, the two threatened
to
beat them. V bolted and appellant having grabbed her, (the
complainant), she remained behind and was compelled to drink the
beer. She requested Sp to let her go, but he refused, whereupon he
dragged her towards his home.
8.
While they were already at the appellant's home G, who at some stage
chased after V, returned to find the appellant striving
to rape her.
Once inside the house, Sp, the appellant, pinned her onto the bed.
She pushed the appellant off her and he fell against
the dressing
table. Her efforts to dash to safety were thwarted by G who blocked
the doorway. Appellant asked G to catch her.
9.
G pushed and pinned her onto the bed while appellant stripped her
clothes off. He also took off his clothes. Appellant then forced
her
legs open. She threatened to lay charges against appellant and G.
Both told her that they do not care. Appellant threatened
to kill her
if she dares to lay charges. He then inserted his penis into her
vagina and had sex with her.
10.
After appellant had removed himself off her, G also took off his
clothes and lay on top of her. He inserted his penis into her
vagina
and had sexual intercourse with her. She continued with efforts to
brake free. The two compelled ·her to lie between
them on the
bed. Threatening to kill her, they ordered her never to scream. They
told her that nobody would ever know if they killed
her.
11.
Later towards 4h00, appellant raped her again while G slept.
Thereafter she demanded that the two let her go. At around 5h00,
appellant opened the door. From the Saturday on which the incident
happened, the two released her on a Tuesday. On a Sunday, and
a
Monday, they locked her into the room. Between 07h00 and 18h00, they
left the shack in which complainant was kept. While complainant
had
not divulged her rape to the police, in court she averred that the
two raped her over all the days over which she remained
locked in the
room.
12.
She stated that there are windows on the room in which she was
locked, but although the windows have no burglar bars fitted,
they
are very hard to open. The complainant's evidence was corroborated to
a material effect by that of V her friend. No explanation
was
advanced for why V, a friend to the complainant, who was in
complainant's company on the day she was dragged to the appellant's
home, failed to alert the complainant's grandmother about what had
befallen the complainant.
13.
Despite the fact that complainant was undergoing her menstrual
periods, the resultant report did not contradict her allegations
of
rape. EM, the complainant's grandmother told the court
a quo
that
the complainant was in a state of shock when she returned home on a
Tuesday. It is for that reason that she summoned complainant's
cousin
for the latter to witness the state in which the complainant was when
she returned home.
14.The
appellant averred that the complainant refused to leave his home
after his own father requested him to let go of the complainant.
On
the basis of the evidence adduced before it, the court
a
quo
found that the state proved its case beyond a reasonable doubt
and it convicted the appellant.
15.In
the case of S v Hadebe and Others
[1]
the court stated the following:
"In
the absence of demonstrable and material misdirection by the trial
court, its findings of fact were presumed to be correct
and would
only be disregarded if the recorded -evidence showed them to be
clearly wrong".
While
appellant contends that sex with the complainant was consensual, he
does not explain why she would have agreed to engage in
sexual
intercourse within full view of G
16.Appellant
also does not explain why he would have been willing to allow G to
also have sexual intercourse with the complainant,
whom he had taken
home for sex. Neither does he explain why complainant would have
agreed to engage in sex with two males at the
same time. At the same
time, nothing in this case suggests that the evidence for the state
which served before the court
a quo
was false. As such, the
judgment of the court
a quo
stands to be upheld.
ON
SENTENCE
.
17.
The .appellant is a first offender. He is 30 (thirty) years of .age.
Before his arrest, he was a farm worker, earning R 500-
00 per week.
For the offences on which the appellant stands convicted, prescribed
minimum sentences stand prescribed. These include
imprisonment for
life. Appellant had been in custody for over two years before he was
sentenced. The state' concedes that the sentence
imposed against the
appellant is too harsh.
18.
In the case
of S v Zinn
[2]
the court stated that a sentencing court has to heed the crime
committed, the personal circumstances of the accused, and the
interests
of the community. In S v Kumalo
[3]
the court stated:
A
Punishment must fit the criminal
as
well as
the crime, be fair to society, and be blended with
a
measure
of mercy according to the circumstances".
19.
The
offences of which the appellant stands convicted are very serious.
Rape is a crime that victimizes beyond the physical injuries
visible
on the body of the victim. In the case of S v De Beer
[4]
(SCA case No 121/04, 12 November 2004), (an unreported judgement), at
paragraph 18, the court stated the following:
"Rape
is
a
topic
that abounds with myths and misconceptions. It is
a
serious
social problem about which, fortunately, we are at last becoming
concerned. The increasing attention given to it has raised
our
national consciousness about what is always and foremost an
aggressive act. It is
a
violation
that is invasive and dehumanising. The consequences for the rape
victim are severe and permanent. For many rape victims
the process of
investigation and prosecution is almost
as
traumatic
as
the
rape itself'.
20.
As already
indicated, it is an approach in sentencing that sentences meted out
to offenders have to be blended with mercy.,InS,v
:Rabie
[5]
,
Holmes JA stated:
'Then
there is the approach
of
mercy or
compassion or plain humanity. It has nothing in common with maudlin
sympathy for the accused. While recognising that fair
punishment may
sometimes
have
to be robust, mercy is
a
balanced
and humane quality of thought which tempers one's approach when
considering the basic factors of letting the punishment
fit the
criminal, as well as the crime and being fair to society".
See
also S v Harrison
[6]
,
where the court stated:
"The
concept of mercy has been recognised by the courts of this country.
As has been said: ''Justice must be done, but mercy;
not
a
sledgehammer,
is its concomitant".
See
also; S v Sparks and Another
[7]
,
and S v Banda
[8]
.
21.
In this
case the court
a
quo
failed
to take into consideration the cumulative effect of the sentences
imposed on the appellant. In the case of S v Kruger
[9]
,
the court stated:
"The
trial
as
well
as
the High
Court reasoned that it
was
inappropriate
to order the sentences to run concurrently because the offences were
committed at different places and on different
times. While this may
be
a
consideration,
it cannot justify
a
failure
to factor in the cumulative effect of the ultimate number of years
imposed. I believe that sentencing courts ought to tirelessly
balance
the mitigating and aggravating factors in order to reach an
appropriate sentence. I also acknowledge that it is
a
daunting
exercise indeed".
22.
Imprisonment
over years is a harsh sentence for a first offender. It overlooks the
worth of rehabilitation as .a possibility where
the appellant is
concerned. In
S
v Mudau
[10]
,
the Supreme Court of Appeal restated the position thus:
"It
is equally important to remind ourselves that sentencing should
always be considered and passed dispassionately, objectively
and upon
a
careful
consideration of all relevant factors. Public sentiment cannot be
ignored, but it can never be permitted to displace the
careful
judgment and fine balancing that is involved at arriving at an
appropriate sentence. Courts must therefore always strive
to arrive
at
a
sentence
which is just and fair to both the victim and the perpetrator, has
regard to the nature of the crime and takes account
of the interests
of society. Sentencing involves
a
very
high degree of responsibility which should be carried
out
with
equanimity
......".
23.
23. In
S v Rabie
[11]
Corbett JA put it thus:
"[a]
judicial officer should not approach
punishment
in a spirit of anger, because, being human, that will make it
difficult for him to achieve that delicate balance
between the crime,
the criminal and the interest of society which his task and the
objects of punishment demand of him. Nor should
he strive after
severity; nor, on the other hand, surrender himself to misplaced
pity. While not flinching from firmness, where
firmness is called
for, he should approach his task with a humane and compassionate
understanding of human frailties and the pressures
of society which
contribute to criminality".
24.
In the result, the appeal against conviction stands to be dismissed.
The appeal against sentence must succeed. I therefore propose
the
following order:
ORDER
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld. The sentence imposed against
the appellant by the court a
quo
is set aside and it is
substituted by the following sentence:
2.1.
On count I, the accused is sentenced to undergo 18 (eighteen) years
imprisonment.
2.2.
On count II, the accused is sentenced to undergo 18 (eighteen) years
imprisonment.
2.3.
On count Ill, the accused is sentenced to undergo 10 (ten) years
imprisonment.
3.
The sentences in count II and Ill shall run concurrently with the
sentence in respect of count I.
__________________
T. A. Maumela
Judge of the High
Court Gauteng Division, Pretoria.
I agree,
__________________
N. Khumalo
Judge of the High
Court Gauteng Division, Pretoria.
[1]
1997
(2)
SACR
641
(SCA),
at
page
645
e –
f
[2]
1969
(2)
SA
537
(A),
[3]
1973
(3)
SA
697
(A),
at
698
a
[4]
(SCA case No 121/04, 12 November 2004). (an unreported judgment at
paragraph18).
[5]
1975 (4) SA 855
(A), at page 861, paragraph D.
[6]
1970 (3) SA 684
(A), at page 686 A; and
[7]
1972 (3) SA 396
(A), at page 410 (G).
[8]
1991 (2) SA 352
(8), at page 354 F.
[9]
2012
(1)
SACR
369
(SCA),
at
372
at
paragraph
[9]
[10]
2013
(2)
SACR
292
(SCA)
at
paragraph
13.
[11]
Supra